Samsonidis v Commissioner, Australian Federal Police

Importantly, the penal procedure against SAMSONIDIS and SKOURAS commenced on 16 May 2006. They will stand trial on 16 July 2007 before the 6th Athens Three‑Member Appeals Court for felonies (Criminal High Court of Justice). Consequently, the forwarding of this material to Greek Authorities is extremely urgent. Please contact me if you have any further enquiries or if I can be of further assistance." 11 Mr Valos sought advice from the applicant's lawyers in Greece as to the impact on the Athens Court of an order of the Federal Court of Australia in favour of the applicant in respect of the material forwarded to the Greek authorities by the AFP which is currently on the Athens Court file. In substance, the advice received was that the Three‑Member Criminal Appeals Court of Athens might use evidence which had been unlawfully obtained against the applicant, but that the court also had a discretion to reject it. The advice from the Greek lawyers was that it would be "particularly useful" for the Federal Court of Australia to declare that the provision of the material by the Australian authorities to the Greek authorities was unlawful and improper. 12 Mr Valos also asked the applicant's lawyers in Greece to ascertain what material had been placed on the Athens Court file and he was told that the only material currently on the file was the material previously forwarded to him on 26 July 2007. 13 In addition to the documents referred to in par [10] above, there were the following documents: (a) transcripts of telephone conversations; (b) a statement by Mr Creighton dated 19 June 2007 which included evidence of telephone calls lawfully intercepted by the AFP; (c) an index of a number of documents apparently obtained by the AFP under warrants; (d) a list of information volunteered to the AFP. 14 On 2 October 2006, Greece made a request to Australia for mutual assistance under the Mutual Assistance in Criminal Matters Act 1987 (Cth) ("the Mutual Assistance Act"). That request was marked "EXTREMELY URGENT - SECRET". It came from the Greek Ministry of Justice and was addressed to the Attorney‑General's Department. The subject of the request was for judicial assistance of the Public Prosecutor, Court of Appeals, Athens in relation to a case involving the applicant. Greece provided further clarification of the request under cover of a letter dated 8 December 2006. These requests were tendered in evidence by the Commissioner, AFP and the Attorney‑General. 15 On 21 May 2007 the Minister for Justice and Customs signed two authorisations pursuant to the provisions of the Mutual Assistance Act. These authorisations were tendered in evidence as confidential exhibits by the Commissioner, AFP and the Attorney‑General. One authorisation was to produce documents or other articles under subs 13A(1) of the Mutual Assistance Act. The authorisation is confidential and its terms are set out in the first part of a confidential schedule to the reasons which is only to be made available to solicitors and counsel for the parties. 16 The other authorisation was to provide material lawfully obtained to a foreign country under subs 13(1) of the Mutual Assistance Act. That authorisation is confidential and its terms are set out in the second part of the confidential schedule to the reasons. 17 The applicant initially sought relief against the Commonwealth Director of Public Prosecutions but did not pursue that relief in the course of the hearing. The applicant consented to the application against the Commonwealth Director of Public Prosecutions being dismissed. 18 In his amended application the applicant sought writs of mandamus and writs of certiorari and declaratory and injunctive relief in relation to the decisions and conduct of the respondents in providing material to Greek authorities and in relation to the lawfulness of the provision of the materials arising under the provisions of the Mutual Assistance Act and the Telecommunications (Interception and Access) Act 1979 (Cth) ("the TIA Act"). 19 The applicant summarised his claim under six complaints. They were as follows: 1. The information given to Mr Livanis by the AFP was provided unlawfully and was prohibited by the TIA Act. 2. The information provided to Mr Livanis has been used in evidence in proceedings in Athens against the applicant following upon a request from Greece to provide information under the provisions of the Mutual Assistance Act. 3. The AFP provided material to Greece on or about 17 May 2007 ("the May material") without the approval of the Attorney‑General as required by s 13A of the Mutual Assistance Act so that the provision of the May material was unlawful. 4. On or before 31 May 2007, the Attorney‑General authorised the taking of evidence and production of documents under s 13 of the Mutual Assistance Act in furtherance of the request from Greece. The Attorney‑General gave no notice of the proposed decision to the applicant who claims he was entitled to receive notice of the proposed decision. The Attorney‑General made application to the Magistrate for orders under s 13 of the Mutual Assistance Act. The applicant was not given any notice of that application and the Magistrate gave no consideration to giving notice of the application to the applicant. The applicant contended that this process was a formalisation by the Attorney‑General of the provision of the information given to Mr Livanis. 5. On or about 31 May 2007, the Magistrate took evidence on oath and required the production of documents or other articles under s 13 of the Mutual Assistance Act ("the June material"). In June 2007 the Attorney‑General provided the June material to Greece. The applicant contended that the provision of the June material was unlawful because he was not given notice of the hearing and was not given the opportunity to be heard at it. He also contended that the provisions of the Mutual Assistance Act were not complied with because the use of the s 13 procedure was not authorised by the Act. He contended that the provision of material obtained under the TIA Act was prohibited by that Act. In substance, he contended that there was no authorisation for the material to be provided to Greece. 6. On or about 19 June 2007, an AFP agent, Mr Creighton, provided to Greece a statement containing warrant interception and information obtained by the AFP under the TIA Act and the applicant contended that the provision of this material contravened s 63 of that Act. 20 The issues involved in this proceeding require a detailed consideration and analysis of a number of provisions of the TIA Act and the Mutual Assistance Act. The TIA Act was the subject of recent consideration by a Full Court of the Federal Court in Commissioner, Australian Federal Police v Samsonidis [2007] FCAFC 54. That proceeding involved an earlier application by the applicant in which he sought from the AFP the material supplied to Mr Livanis and the telephone intercepts which formed the basis of Mr Livanis' evidence in Greece. Ultimately the applicant gained access to that material from the court file in Greece. 21 In that case Jessup J explained the relevant structure of the TIA Act in the following passage ([48] and [49]): "Relevantly to the present case, the purpose of the TIA Act is, as stated in the preamble, "to prohibit the interception of, and other access to, telecommunications except where authorised in special circumstances". Chapter 2 of the TIA Act deals with the matter of the interception of telecommunications. It commences with s 7(1), which contains a sweeping prohibition. The balance of the chapter is largely concerned with the exceptions to that prohibition. Relevantly to the present matter, there is a pattern in the chapter of providing for an exception, and then limiting the extent to which information obtained as a result of the application of the exception may be used, communicated etc. Thus it may be seen that the area marked out by each exception is tightly defined and guarded. Each seepage of information beyond any such area should rightly be regarded as a failure to achieve the object to which the preamble refers, and which is given practical expression in s 7(1) and the "special circumstances" to which subsequent provisions of Chapter 2 relate. In my view, both the nature of the subject matter of, and the detailed provisions in, the TIA Act bespeak the appropriateness of a court showing particular deference to the terms in which the legislature has chosen to express itself. It is those terms which should, save in a very clear case, be treated as embodying legislative purpose. Relevantly to the present matter, I can think of no reason why the purpose of the legislation should be seen as anything other than preventing the communication, use etc of lawfully intercepted information save in the specific circumstances for which the TIA Act itself provides. Section 63 operates subject to Part 2-6, in which words I discern a purpose that only the provisions of that part should qualify the otherwise absolute prohibitions set out in the section itself." 22 It was accepted by the applicant that the interception of the telephone conversations which had occurred and which were the subject of Mr Livanis' evidence in Greece and which were contained in the material sent to Greece was lawful. What was in issue was the lawfulness of the further communication of the intercepted telephone conversations after they were intercepted and recorded. 23 Section 7 of the TIA Act provides: "(1) A person shall not:

(b) authorize, suffer or permit another person to intercept; or

(c) do any act or thing that will enable him or her or another person to intercept;

a communication passing over a telecommunications system.

(2) Subsection (1) does not apply to or in relation to [a number of specified circumstances]."

Section 63 of the TIA Act provides: "(1) Subject to this Part, a person shall not, after the commencement of this Part:

(a) communicate to another person, make use of, or make a record of; or

lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1).

(2) Subject to this Part, a person must not, after the commencement of this subsection:

(a) communicate interception warrant information to another person; or

(b) make use of interception warrant information; or

(c) make a record of interception warrant information; or

(d) give interception warrant information in evidence in a proceeding."

As I have noted earlier, it was accepted by the applicant that the intercepted telephone conversations were "lawfully intercepted information". 24 Section 67(1) of the TIA Act provides: "An officer or staff member of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of the following:

(a) lawfully intercepted information other than foreign intelligence information;

The expression "permitted purpose" is defined in s 5, in relation to an interception agency (which includes an agency and the AFP), an eligible Commonwealth authority or an eligible authority of a State, as meaning, inter alia: "…a purpose connected with … an investigation by the agency or eligible authority of a prescribed offence". A prescribed offence includes a serious offence, as defined, against the laws of the Commonwealth or a State. 25 Section 74(1) of the TIA Act provides: "A person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding." 26 Section 5B(1)(h) of the TIA Act provides that a reference in the Act to an "exempt proceeding" is a reference to, inter alia: "…a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to a criminal matter (within the meaning of that Act) that concerns an offence, against the laws of the foreign country that made the request resulting in the proceeding, that is punishable by imprisonment for life or for a period, or maximum period, of at least three years." 27 I turn to relevant provisions of the Mutual Assistance Act. Section 7(1) provides that "Subject to this section, this Act applies to all foreign countries". Relevantly, in relation to one of the submissions raised by the Attorney‑General, s 7(3) provides: "If the regulations provide, in accordance with subsection (2), that this Act applies to a foreign country subject to a mutual assistance treaty, then: (a) if the treaty relates wholly to the provision of assistance in criminal matters - this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country; or (b) if the treaty relates in part to the provision of assistance in criminal matters - this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters." 28 The Mutual Assistance in Criminal Matters (Greece) Regulations 2004 provide in reg 4 that the Mutual Assistance Act: "… applies to Greece subject to the Treaty between Australia and the Hellenic Republic on Mutual Assistance in Criminal Matters done at Athens on 4 July 2002, a copy of the English text of which is set out in Schedule 1." Article 1 of the Treaty provides: "The Contracting Parties undertake to afford to each other, in accordance with the provisions of this Treaty, the widest measure of assistance in connection with investigations or proceedings brought in respect of offences the punishment of which at the time of the request for assistance falls within the jurisdiction of the Requesting State, including the supply of evidence for the proceedings." Article 9 of the Treaty provides: "PROTECTING CONFIDENTIALITY AND RESTRICTING USE OF EVIDENCE AND INFORMATION

1. The Requested State, if so requested, shall keep the application for assistance, the contents of a request and its supporting documents, and the fact of granting of such assistance, confidential. If the request cannot be executed without breaching confidentiality, the Requested State shall so inform the Requesting State which shall then determine whether the request should nevertheless be executed.
2. The Requesting State, if so requested, shall keep confidential information and evidence provided by the Requested State, except to the extent that the evidence and information is needed for the investigation and proceeding described in the request.
3. The Requesting State shall not use information or evidence obtained, nor anything derived from either, for purposes other than those stated in the request without the prior consent of the Requested State." 29 Section 13 of the Mutual Assistance Act provides: "Requests by foreign countries for the taking of evidence or the production of documents: (1) Where a request is made by a foreign country (requesting country) that: (a) evidence be taken in Australia; or (b) documents or other articles in Australia be produced; for the purposes of a proceeding in relation to a criminal matter in the requesting country or another foreign country, the Attorney‑General may, in his or her discretion, by writing in accordance with the approved form, authorise the taking of the evidence or the production of the documents or other articles, and the transmission of the evidence, documents or other articles to the requesting country. (2) Where the Attorney‑General authorises the taking of evidence or the production of documents or other articles under subsection (1): (a) in the case of the taking of evidence - a Magistrate may take the evidence on oath of each witness appearing before the Magistrate to give evidence in relation to the matter, and a Magistrate who takes any such evidence shall: (i) cause the evidence to be put in writing and certify that the evidence was taken by the Magistrate; and (ii) cause the writing so certified to be sent to the Attorney‑General; or (b) in the case of the production of documents or other articles - a Magistrate may, subject to subsection (6), require the production of the documents or other articles and, where the documents or other articles are produced, the Magistrate shall send the documents, or copies of the documents certified by the Magistrate to be true copies, or the other articles, to the Attorney‑General. (3) The evidence of such a witness may be taken in the presence or absence of the person to whom the proceeding in the requesting country relates or of his or her legal representative (if any). (4) The Magistrate conducting a proceeding under subsection (2) may permit: (a) the person to whom the proceeding in the requesting country relates; (b) any other person giving evidence or producing documents or other articles at the proceeding before the Magistrate; and (c) the relevant authority of the requesting country; to have legal representation at the proceeding before the Magistrate. …" 30 Section 13A of the Mutual Assistance Act provides: "Requests by foreign countries for provision of material lawfully obtained: (1) If: (a) a foreign country (the requesting country) has commenced an investigation into, or proceedings in relation to, a serious offence against the laws of that country; and (b) that foreign country requests the provision of material relevant to that investigation or those proceedings; and (c) the Attorney‑General is satisfied that the material requested is: (i) material lawfully obtained by an enforcement agency in Australia; and (ii) material lawfully in the possession of that enforcement agency; the Attorney‑General may, by writing in accordance with the approved form, authorise the provision of that material to the requesting country. (2) Subsection (1) does not permit the Attorney‑General to authorise the provision to the requesting country of material obtained through the use of a surveillance device unless the request relates to an investigation into, or proceedings in relation to, a serious offence against the laws of that country that is punishable by a maximum term of imprisonment of 3 years or more, by imprisonment for life or by the death penalty. … (6) In this section: … material lawfully obtained by an enforcement agency in Australia includes: (a) material obtained from individuals or entities by consent; and (b) material obtained by warrant or the exercise of a coercive power by a court in Australia for the purposes of a domestic investigation or prosecution; but does not include material obtained under the Telecommunications (interception and Access) Act 1979."

THE LIVANIS EVIDENCE 31 The applicant's submission in relation to the evidence given by Mr Livanis to the Athens Court can be summarised as follows: (a) in May 2006 the AFP provided transcripts of the intercepted telephone conversations or copies of the intercepted telephone conversations to Mr Livanis in contravention of s 63(1) of the TIA Act; (b) although the definition of a "permitted purpose" in subpar (a)(i) of the definition of that expression (par [24] above) includes an investigation by the agency or eligible authority of a prescribed offence, those offences are limited to domestic offences and the exception in subpar (a)(i) of the definition of "permitted purpose" does not permit a communication to a foreign police force for the purpose of providing assistance to that police force in any investigation it is undertaking; (c) the communication of the intercepted telephone conversations to Mr Livanis and by him to the Athens Court was unlawful. 32 The difficulty with the applicant's submission in this respect is that there is no evidence before the Court as to the circumstances under which Mr Livanis obtained the information which was the subject of his evidence to the Athens Court on 28 June 2006 referred to in par [5] above. Further, there is no evidence as to the identity of the person who supplied that information to him. As Mr Ginnane, Senior Counsel for the Commissioner and the Attorney‑General submitted, the transcript of Mr Livanis' evidence to the Athens Court does not prove the truth of the statements made by him in relation to the intercepted telephone conversations and there is no evidence that the AFP provided the information to Mr Livanis for the purpose of the proceeding in Athens. 33 The applicant submitted that it was clear that Mr Livanis had transcripts or access to transcripts of the intercepted telephone conversations. That may be true, but I do not consider that there is sufficient evidence from which I can infer that the purpose for which the transcripts were provided to Mr Livanis was unlawful. The evidence of Mr Livanis does not establish or prove the source of his information nor the purpose for which the AFP, if indeed it was the AFP, made contact with him. Indeed, if any inference is to be drawn from Mr Livanis' evidence, it is that the AFP communicated the transcripts or contents of the intercepted telephone communications for a "permitted purpose" and for no other purpose within s 67(1) of the TIA Act, namely for a purpose connected with an investigation by the AFP of "serious offences" as defined in the TIA Act. 34 One of the functions of the AFP, provided in s 8(1) of the Australian Federal Police Act 1979 (Cth), is: "the provision of police services and police support services for the purposes of assisting, or cooperating with, an Australian or foreign: (i) law enforcement agency; or (ii) intelligence or security agency; or (iii) government regulatory agency." 35 It is apparent from Mr Livanis' evidence, from the letters from the AFP to the Greek Ministry of Justice (par [10] above) and from Mr Creighton's evidence to the Magistrate and his 19 June 2007 statement that prior to May 2006 the AFP was carrying out an investigation of the applicant and others in relation to allegations of money laundering, structuring financial transactions to avoid reporting cash transactions of more than $10,000 and conspiracy to import a controlled substance into Australia. For example, I refer to Mr Livanis' evidence (par [5] above) that Australian authorities had informed him that: "… they had information that Samsonidis and his network were preparing or had prepared a factory in Australia for the production of synthetic drugs such as amphetamines and methamphetamines." 36 As noted in par [24] above, s 67 of the TIA Act allows the AFP to communicate to another person lawfully intercepted information for a "permitted purpose" which includes "a purpose connected with an investigation by the [AFP] of a prescribed offence". Assuming for present purposes (although it is not established on the evidence) that the AFP communicated the intercepted telephone conversations to Mr Livanis, I consider that such communication was for a purpose "connected with" its investigation of the applicant in relation to the alleged offences to which I have referred in par [35] above. The communication to Mr Livanis, in order for it to be lawful, did not have to be for the purpose of the Australian investigation but rather a purpose "connected with" that investigation. I am satisfied that, on the assumption that the AFP communicated the intercepted telephone conversations to Mr Livanis, it did so for the purpose of assisting Greek authorities who had charged the applicant with the commission of offences either the same as, or similar to, the alleged offences under Australian law which the AFP was investigating. 37 Mr Judd, Senior Counsel for the applicant submitted that the evidence established that the communication to Mr Livanis was for a foreign purpose, namely to assist in the Greek prosecution. But that submission does not mean that it was not for a purpose "connected with" the AFP's investigation of offences alleged to have been committed under Australian law by the applicant. Nor does it give sufficient content to the words "connected with" in the definition of "permitted purpose". Mr Judd invited me to infer that the purpose of the communication was for a foreign purpose and therefore an improper purpose. He submitted that the AFP had to establish that the communication was for a proper purpose and that there was a shift in the evidentiary burden having regard to the information available to the AFP and what the evidence disclosed. 38 I do not accept the submission that if the purpose of the communication was for a foreign purpose it was an improper purpose. Further, it was for the applicant to establish or prove that the purpose for the communication was improper and unlawful. On the material before me it is open to me to infer that the communication to Mr Livanis was for a purpose connected with the Australian investigation and I am satisfied that this is the inference I should draw. 39 The relevant inquiry to make in relation to whether the communication of lawfully intercepted information has been for a permitted purpose is not to ask only about the purpose which was achieved by the communication but also to ask, whether the purpose of that communication was "connected with" an investigation by the AFP of a prescribed offence. Senior Counsel for the applicant submitted that the words "connected with" did not mean just "related to" but rather referred to something that was likely to advance the investigation of the Australian authorities. He submitted that the connection must have a purpose in advancing the Australian investigation and that what the AFP did was no more than assist the Greek authorities with a prosecution and that it would torture the word "connection" to link the assistance given to the Greek authorities with the Australian investigation. 40 I do not accept this submission. I am satisfied that for some time prior to the time Mr Livanis gave his evidence to the Athens Court on 28 June 2006, the AFP was conducting an investigation into alleged breaches of Australian law by the applicant. I am prepared to infer that details of the intercepted telephone conversations, which were "lawfully intercepted information" for the purposes of s 67 of the TIA Act, were communicated to Mr Livanis, a member of the American Drug Enforcement Agency, in connection with the investigation by the AFP of alleged offences against Australian law. I consider that the phrase "connected with" has a similar connotation to the phrase "related to" or "in relation to" and does not include a component of advancing, helping or aiding the progression of the investigation in Australia by the AFP. 41 I consider that this construction of the phrase "connected with" in the definition of "permitted purpose" is consistent with other cases which have considered this phrase. 42 In Brown v Rezitis (1970) 127 CLR 157 the High Court considered the proper construction of s 88F(2) of the Industrial Arbitration Act 1940‑1967 (NSW), which provided (at 160): "The commission, in making an order or award pursuant to subsection one of this section, may make such order as to the payment of money in connection with any contract, arrangement, condition or collateral arrangement declared void, in whole or in part, or varied in whole or in part, as may appear to the commission to be just in the circumstances of the case." Barwick CJ, with whom the other members of the Court agreed, said at 165: "Whilst it can be said that the expression 'in connection with' is of wide import, it does emphasize the need for a close connexion between the order made and the contract or arrangement varied or avoided. In my opinion, the power to make an order for the payment of money is at best no more than a power to make such an order as can reasonably be thought to have a real connexion with the making, variation or avoidance of the contract or arrangement which has been varied or avoided." 43 In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 a Full Court of the Federal Court was concerned with the construction of s 164 of the Customs Act 1901 (Cth) which provided for the payment of a rebate in respect of diesel fuel used for certain purposes. The term "agriculture" was defined as including certain operations "connected with" certain other operations. The Full Court said at 288: "The words 'connected with' are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. As Sheppard and Burchett JJ observed in Australian National Railways Commission v Collector of Customs (SA) at 378, the meaning of the word 'connection' is wide and imprecise, one of its common meanings being 'relation between things one of which is bound up with, or involved in, another': Shorter Oxford English Dictionary." 44 This passage was adopted by Sackville J in Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 295. Sackville J continued: "The question remains in a particular case what kind of relationship will suffice to establish the connection contemplated by the statute. This requires, to use the language in Pozzolanic, at FCR 289, a 'value judgment about the range of the Act'. The value judgment required is more likely to depend on the statutory context than on dictionary definitions." 45 I consider that the same approach should be taken to the meaning of "permitted purpose" in s 67(1) of the TIA Act. It will be a question of fact as to what is the close or real connection but I do not consider that it must be established that the connection must have a purpose of advancing, helping or aiding the Australian investigation. It is a sufficient connection that the purpose of the communication was to assist the Greek authorities in relation to the prosecution of the applicant in Greece, in relation to the same or similar offences which the AFP was investigating in Australia. 46 As I have noted earlier, there is no evidence which enables me to determine the circumstances under which the contents of the intercepted telephone conversations were communicated to Mr Livanis. Accepting for the purpose of the analysis what Mr Livanis said to the Athens Court, it is apparent that by May 2005 the American Drug Enforcement administration and the AFP were investigating a network that was trafficking various kinds of drugs in a number of countries, including Greece and Australia. It is apparent from Mr Livanis' evidence that the American Drug Enforcement administration and the AFP were exchanging information about this network. I am prepared to infer from Mr Livanis' evidence that if indeed it was the AFP that communicated to him the details of the intercepted telephone conversations that such communication had a close and real connection with the AFP's investigations in Australia in relation to contraventions of Australian law by the applicant and others. 47 It follows that I am not satisfied that the applicant has made out the proposition that the AFP communicated details of the intercepted telephone conversations for a purpose which was not a permitted purpose within the meaning of s 67 of the TIA Act or that such communication as the AFP made was unlawful.

THE MAY MATERIAL 48 Prior to the commencement of the hearing, the applicant had not seen, nor had he or his legal advisers been given access to, the authorisations by the Minister for Justice and Customs dated 21 May 2007 referred to in pars [15] and [16] above. When those authorisations were tendered by Senior Counsel for the AFP and the Attorney‑General in the course of the hearing, Senior Counsel for the applicant accepted, quite properly, that the authorisation under s 13A(1) of the Mutual Assistance Act was a sufficient authorisation enabling the provision of what was called the May material to the Greek Ministry of Justice. It follows, that the provision of the May material was lawful and the applicant is not entitled to any relief in respect of the communication or provision of the May material.

THE JUNE MATERIAL 49 As noted earlier (par [10(e)] above), on 13 June 2007 a legal officer in the Mutual Assistance Section of the Mutual Assistance and Extradition Branch of the Attorney‑General's Department sent to the Greek Ministry of Justice a compact disc containing audio records of intercepted telephone conversations, transcripts of those audio records and the transcript of the proceeding before the Magistrate on 31 May 1007. There was also enclosed the authorisation signed by the Minister for Justice and Customs pursuant to s 13 of the Mutual Assistance Act referred to in par [15] above). 50 It was not open to the Minister to authorise the provision of that material pursuant to s 13A of the Mutual Assistance Act, as material obtained under the TIA Act was expressly excluded from the definition of the material which could be provided under that section. Accordingly, in order for the material to be provided the Minister had to have recourse to s 13 of the Mutual Assistance Act. 51 As noted earlier, the applicant challenged the validity of the provision of the June material on the following grounds: (a) he was not given any notice of the application to the Magistrate and he was entitled to be given notice of that application; (b) the provisions of the Mutual Assistance Act were not complied with because he was not given notice of the proposed provision of that material and he was not afforded the opportunity to be heard in relation to it; (c) the use of the procedure pursuant to s 13 of the Mutual Assistance Act was not a proper use of that procedure and it was not authorised by the Act; (d) the provision of the statement by Mr Creighton contravened s 63 of the TIA Act. As noted earlier in par [10(f)] above, Mr Creighton's witness statement was sent by the AFP to the Greek Ministry of Justice on 19 June 2007. 52 The applicant submitted that the s 13 proceeding before the Magistrate was a process to which the rules of natural justice, in particular the right to be heard, applied. The applicant relied, in particular, on subs (4) of s 13 (par [29] above). He also submitted that in exercising her discretion under subs (3) of s 13 (par [29] above) whether to take the evidence of a witness in the presence or absence of the applicant, the Magistrate should have given the applicant a hearing in relation to the exercise of that discretion. The applicant relied on Johns v Australian Securities Commission (1993) 178 CLR 408 in support of his submission. The applicant relied, in particular, upon the reasoning of McHugh J at 472: "Thus, procedural fairness required as a minimum that the appellant be given the opportunity to put submissions before the A.S.C. relating to matters requiring the non‑disclosure of information by the A.S.C." 53 The applicant submitted that the circumstances in Johns v Australian Securities Commission (supra) were the same as existed before the Magistrate. He contended that the statutory scheme in the Mutual Assistance Act did not interfere with his right to be heard. In Johns v Australian Securities Commission (supra), it was held that the delegate of the Australian Securities Commission should have given Mr Johns an opportunity to be heard before she decided to allow the transcripts of Mr Johns' evidence before the Australian Securities Commission to be made available to the Royal Commission. It was clear in that case that the decision to allow the use of the transcripts of Mr Johns' evidence in public hearings were prejudicial to his interests. 54 However, I consider that the statutory scheme under the Mutual Assistance Act is significantly different from the facts and circumstances which underpin the decision in Johns v Australian Securities Commission (supra). As noted earlier in par [28] above, the Mutual Assistance Act applies to Greece with whom Australia has entered into a Mutual Assistance Treaty. Accordingly, the Mutual Assistance Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to that Treaty. Article 9 of the Treaty (par [28] above) required the relevant Australian officers to keep the request from Greece confidential. Further, the relevant Australian officers were required by Article 9 to keep confidential the evidence provided by Australia. It is apparent from the request for assistance from Greece that it required confidentiality to be applied to its request and to the evidence provided. 55 Such confidentiality could not have been maintained if the Magistrate or the Attorney‑General were obliged to inform the applicant of the request or invite his participation in the Mutual Assistance Act s 13 proceeding. In exercising the discretion committed to her in s 13(3) of the Mutual Assistance Act, the Magistrate was obliged to take into account the application of s 7(3) of the Mutual Assistance Act and the confidentiality sought by Greece. Section 13(4) does not take the matter any further as the discretion to allow a person in the position of the applicant to have legal representation at the proceeding was dependent upon the Magistrate deciding whether or not to take evidence in the presence or absence of the applicant. 56 Further, I consider that the nature of the procedure under s 13 of the Mutual Assistance Act to be different in nature from the process considered by the High Court in Johns v Australian Securities Commission (supra). Under that procedure the Magistrate had no discretion in relation to the acceptance or rejection of the evidence. 57 It follows that I do not accept the submission that the applicant was entitled to be given notice of the application to the Magistrate or that he was entitled to be heard in relation to it. 58 I turn to the applicant's submission that the s 13 Mutual Assistance Act procedure undertaken was not lawful or in accordance with the provisions of the Mutual Assistance Act. It is important to note that a proceeding under s 13 of the Mutual Assistance Act in relation to a criminal matter that concerns an offence against the laws of a foreign country that made the request resulting in a proceeding that is punishable by imprisonment for life or for a period or maximum period of at least three years is an "exempt proceeding": s 5B(1)(h) of the TIA Act. Section 74(1) of the TIA Act provides that a person may give lawfully intercepted information (other than foreign intelligence information) "in evidence" in an exempt proceeding. 59 The applicant submitted that s 74(1) related to evidence given in the course of the proceeding but not to evidence which was the object of the proceeding in the sense that it was the evidence to be transmitted to a foreign country. The applicant submitted that under s 13 lawfully intercepted material might be disclosed only for the purpose of conducting the proceeding. The applicant submitted that if s 74(1) was construed otherwise it would undermine the whole structure of the TIA Act which was directed to prohibiting the communication of lawfully intercepted information other than through a narrow band of exceptions. 60 I do not consider that s 74(1) should be so construed. Section 13 of the Mutual Assistance Act enables the Attorney‑General to authorise "the taking of the evidence" requested by the foreign country. The reference in s 74 giving lawfully intercepted information "in evidence" in an exempt proceeding includes, in my view, the evidence to be taken referred to in s 13(1) of the Mutual Assistance Act. 61 I do not consider that s 74(1) is ambiguous or unclear in this respect. However, if there be any doubt, the construction which I have placed on s 74(1) is confirmed by the Second Reading Speech for the Law and Justice Legislation Amendment Act 1989 (Cth) which inserted paragraph (h) in s 5B(1) of the TIA Act. In the Second Reading Speech the Attorney‑General said: "Secondly an amendment will allow lawfully intercepted information to be given in evidence in proceedings under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to offences for which the penalty is imprisonment for at least 3 years. Under that provision, the Attorney‑General may authorise the taking of evidence or production of documents before a magistrate in Australia for the purposes of a proceeding relating to a criminal matter in a foreign country. Such proceedings are not ones in which information lawfully obtained by interception may currently be given in evidence. The amendment will allow Australia to give an assurance of reciprocity to other countries from which Australia may wish to seek intercepted information relating to prosecutions for Australian offences." 62 The applicant submitted that the process adopted under s 13 of the Mutual Assistance Act appeared to have been employed as a device to achieve the impermissible purpose of providing protected material under the TIA Act to Greece. He submitted that the s 13 procedure was designed to enable compulsory process to be used to obtain material not in the possession of the Commonwealth. He further submitted that it would make a farce of the legislative scheme if the Commonwealth could authorise a magistrate to take evidence and compel the production of material from the Commonwealth only then to certify its obtaining and to give it back to the Commonwealth. However, there is no limitation in s 13 which precludes the procedure which was followed in this case. Further, if the applicant be correct, then it is not easy to see what operation there is for ss 74 and 5B(1)(h) of the TIA Act. 63 I turn to the provision of Mr Creighton's statement to Greece on 19 June 2007. The applicant submitted that the provision of this material contravened s 63 of the TIA Act. Mr Creighton's statement falls within the window of communication provided by s 67(1) of the TIA Act. The permitted purpose relating to Mr Creighton's statement is found in subpar (a)(i) in the definition of "permitted purpose" in s 5 of the TIA Act as it was communicated to the Greek Ministry of Justice in connection with the investigation by the AFP of prescribed offences under Australian law.

64 It is apparent from Mr Livanis' evidence and from the letters from the AFP to the Greek Ministry of Justice that the AFP had been conducting an investigation into the applicant and Mr Skouras in relation to a number of alleged offences including money laundering and drug‑related offences since 2005, which investigation was continuing. That investigation was being carried out under two operational names. Mr Creighton gave his evidence to the Magistrate on 31 May 2007 which included a reference to the investigation carried out under those operational names. The proceeding in the Athens Court related to offences of drug trafficking, money laundering and unlawful possession of firearms.

65 I consider that Mr Creighton and the AFP were entitled, and empowered, to communicate the contents of his statement made on 19 June 2007 (which related to the investigation carried out by the AFP under one of the operational names) to the Greek Ministry of Justice, insofar as that statement contained lawfully intercepted information, pursuant to s 67(1) of the TIA Act. That information was communicated for a "permitted purpose", namely a purpose "connected with" the AFP's investigation of prescribed offences alleged to have been committed by the applicant and others against Australian law. The purpose of the communication of the lawfully intercepted information contained in Mr Creighton's statement was to assist the Greek authorities in relation to offences with which the applicant had been charged in Greece which were similar to the offences alleged against the applicant in relation to contraventions of Australian law. The purpose of communicating Mr Creighton's statement had a direct relationship with the Australian investigation of the applicant because the proceeding in Greece related to the same type of offences which the AFP were investigating in Australia.

66 The applicant's amended application will be dismissed with costs. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate: Dated: 7 September 2007 Counsel for the Applicant: Mr J Judd QC with Mr G Livermore

Solicitor for the Applicant: Haines and Polites

Counsel for the First and Second Respondents: Mr T Ginnane S.C. with Ms R Doyle

Solicitor for the First and Second Respondents: Australian Government Solicitor

Counsel for the Third Respondent: Dr S Donaghue

Solicitor for the Third Respondent: Commonwealth Director of Public Prosecutions

Date of Hearing: 3 September 2007

Date of Judgment: 7 September 2007