FEDERAL COURT OF AUSTRALIA

practice & procedure - discovery - application to set aside a subpoena - subpoena issued at request of appellant - subpoena sought production of affidavits sworn in support of warrant applications - such affidavits included “designated warrant information” within the meaning of the Telecommunications (Interception) Act 1979 (Cth) - whether appellant has a legitimate forensic purpose justifying the subpoena.

TELECOMMUNICATIONS (INTERCEPTION) ACT 1979 (Cth):   circumstances in which a person may communicate or use “designated warrant information” - whether Act prohibits the appellant from making use of the designated warrant information in judicial review proceedings - purpose of Act to assist law enforcement.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Customs Act 1901 (Cth), ss 219B, 219F

Telecommunications (Interception) Act 1979 (Cth), ss 5, 63, 67, 74, 77.

Telecommunications (Interception) Amendment Act 1995 (Cth)

Commissioner for Railways v Small (1938) 38 SR (NSW) 564, cited

Kizon vPalmer (1997) 142 ALR 488, applied

The Honourable James Wood, Royal Commissioner v Beves (unreported, Court of Appeal of NSW, 14 March 1997), considered

Ousley v The Queen (1997) 148 ALR 510, considered

Carmody v Mackellar (1996) 68 FCR 265, cited

tnt Australia Pty Ltd v Fels & Anor (1992) ATPR 41-190, cited

Re Federal Commissioner of Taxation;  Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247, cited

Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78, cited

Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) ATC 4054, cited

john kizon v palmer & ors

vg 403 of 1997

NORTHROP, FRENCH & BRANSON JJ

MELBOURNE

1 APRIL 1998

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

CONSTITUTED BY A SINGLE JUDGE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

on appeal from the federal court of australia

constituted by a single judge

REASONS FOR JUDGMENT

NORTHROP & BRANSON JJ

INTRODUCTION

The appellant, John Kizon, appeals from orders made by the Court constituted by a single Judge (Beaumont J) setting aside a subpoena issued on 13 March 1997 at the request of the appellant.  The subpoena was directed to the first respondent, Michael John Palmer, in his capacity as Commissioner of the Australian Federal Police.  In these reasons, Mr Palmer will be called “the Commissioner” and the Australian Federal Police will be referred to as the “AFP”.  At the hearing of the appeal, the appellant and the Commissioner respectively were represented by counsel.  The other respondents did not appear since they are not directly affected by the orders made by Beaumont J.

FACTUAL BACKGROUND

On 12 October 1994, a member of the AFP sought and was granted a listening device warrant (“LD warrant”) under s 219B(5) of the Customs Act 1901 (Cth) (“the Customs Act”).  On 28 October 1994, the same member of the AFP applied for a telephone intercept warrant (“TI warrant”) under s 45 of the Telecommunications (Interception) Act 1979 (Cth) (“the TI Act”).  It has been alleged that information obtained through the use of the LD warrant was offered in support of the application for the TI warrant.  Both warrants were issued by the third respondent, who is an “eligible Judge”within the meaning of the TI Act and the Customs Act.

The appellant was subsequently charged by the second respondent, who is a member                                                                                                                                                                                                            of the Western Australian Police Force, with a drug related offence, the prosecution of which is the responsibility of the fourth respondent, who is the Director of Public Prosecutions for Western Australia.  It has been alleged that the first, second and fourth respondents intend to give in evidence the information obtained by the listening devices and the interceptions.

On 6 October 1995, the appellant filed an application in this Court seeking review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) of the decision of the Commissioner of the AFP to apply for the LD warrant. The appellant sought in the same proceeding to review the decision of the third respondent to issue the LD warrant, and further sought declarations that each of the applications for, and the issuing of, the LD and TI warrants was “unlawful, void and of no force or effect.”  If the orders sought were made, it is possible that the information obtained by the listening devices might be inadmissible as evidence against the appellant.

On 24 October 1995, Northrop J made an order that there be limited discovery of the five affidavits placed before the third respondent in support of the warrant applications.  This order was commonly understood to be subject to the outcome of any application made by the respondents claiming public interest immunity in such documents.  By motion, in its amended form, notice of which is dated 15 March 1996, the Commissioner sought an order that -

“the applicant is not entitled to inspect or call for the production of the documents enumerated in Schedule 1 of the first respondent’s list of documents dated 14 November 1995, or any of them, by reason that each is protected from inspection and production on the ground of public interest privilege in that disclosure would be injurious to the public interest.”

In support of the motion, the Commissioner filed and served an “open” affidavit sworn by Assistant Commissioner Mills of the AFP (“the Mills affidavit”).  Annexed to the affidavit were edited versions of the five affidavits sworn in support of the applications for the warrants.  The Mills affidavit was sworn in support of the claim for public interest immunity in respect of the parts of the five affidavits ‘edited out’ and annexed in sealed envelopes to the Mills affidavit.

The amended motion was listed for hearing before Davies J on 21 June 1996.  At that hearing it was contended by counsel for the Commissioner that certain provisions of the TI Act and theCustoms Act, including certain provisions which came into effect on 12 December 1995, prohibited the disclosure of the documents in question.  Counsel for the applicant submitted that if such construction were placed on the statutory provisions relied on by the Commissioner then the prohibitions would have a wide effect, affecting a significant proportion of the documents and submissions made or to be made in the proceeding, and thus that the statutory provisions would have to be invalid for constitutional reasons.  Under s 25(6) of the Federal Court of Australia Act 1976 (Cth) Davies J stated a case and reserved questions in relation to the issues of construction and of constitutional law for the consideration of a Full Court of the Federal Court.

The Full Court of the Federal Court, constituted by Jenkinson, Lindgren and Kiefel JJ, held that ss 63 and 67 of the TI Act operated to prohibit discovery of the material sought by the applicant before Davies J, and that such provisions were valid laws of the Commonwealth.  The reasons for judgment of the Court are expressed by Lindgren J, with whom Jenkinson and Kiefel JJ agreed.   Such reasons are to be found at (1997) 142 ALR 488.  Beaumont J, in the decision under appeal, relevantly summarised the decision of the Full Court in respect of the stated case as follows (the page references are to the Australian Law Report):

“•        The prohibitions against disclosure in the TI and Customs Acts prevented the AFP from producing for inspection by the applicant under the discovery order, those parts of the five affidavits which contained information obtained from the telecommunications interceptions and listening devices, or designated warrant information, that is, information about the TI warrants or the related services or users (at 503, 504 and 522-3).

•          The prohibitions did not prevent the applicant, in resisting the AFP’s public interest immunity claim, from placing reliance upon the AFP’s open affidavit and the five annexed “edited” affidavits, or from contending that there is no public interest immunity which would prevent him from inspecting the documents (at 503, 504, 505, 507 and 510). 

            •           The word “person” in the prohibition provisions did not apply to or include the Court in this proceeding, so that the judge hearing the public interest immunity claim could examine those parts of the five affidavits containing the prohibited information (at 505-7).

                        -           -           -           -           -           -           -          

•          The definition of “designated warrant information” and the various provisions in the TI Act which invoke it are to be read purposively, to avoid absurdity.  It would be absurd that the prohibitions in s 63 should continue to apply to such information once it is in the public domain, by, for example, having been given in evidence publicly at a prosecution (at 509-10).

•          Sub-section 63(2) is to be read down so as not to apply to designated warrant information already known to all relevant parties in the present proceeding.

•          Sub-section 63(2) of the TI Act does not prevent a person from compelling production of the documents in question to this or to any other court by the process of subpoena.  Question 2(a) was answered affirmatively by the Full Court because it related to production to a person, as distinct from a court.  Having compelled production of the documents to a court in which a person such as the applicant is being prosecuted for a prescribed offence, the person would be entitled to give the designated warrant information in evidence in that proceeding in the course, for example, of a hearing, on the voir dire, of the question of the admissibility into evidence against the person charged, of information obtained by a TI pursuant to a warrant (at 511).

•          The purpose of the prohibition on s 63(2) of the TI Act is not only one of protecting privacy.  The prohibition is also directed to assisting law enforcement.  Contravention of s 63(2) is, on its face, inimical to the processes of law enforcement, because it enables identification of a particular telecommunications service or person the subject of a TI warrant (at 511).

•          Conformably with what another Full Federal Court had said in Flanagan v Commissioner of the Australian Federal Police (1996) 134 ALR 495, a challenge to a warrant directed to the admissibility of evidence in a trial should ordinarily be brought as part of the trial in order to avoid “fragmentation” of the trial (at 519).

•          The operation and effect of s 63 in the present case is to make certain evidence unavailable to the applicant, and so, in practice, to prevent him from proving a case of invalidity of a certain kind in administrative review proceedings.  Where, as here, the applicant is being prosecuted, in order not to ‘fragment’ the criminal proceeding, it is only in exceptional or extraordinary circumstances that this Court would grant relief in respect of a warrant (cf. Flanagan, above).  The effect of s 63 is that it is impossible for a person in the applicant’s position, in any proceeding other than an exempt proceeding, to establish what is contained in, or omitted from, the application and supporting affidavit, and, to that extent and in that respect, to establish that the “warrant” does not enliven the exception in para 7(2)(b) to the prohibition in s 7(1) [of intercepting a communication over a telecommunications system].  Sub-section 7(1) and Part XA reveal an intention that the only rights which an individual is intended to have in respect of an interception are the rights provided for in the TI Act, and that the only remedies which he or she is to have are those provided for in Part XA.  The map of substantive rights of the individual in respect of interception of telephone communications is that laid down in the TI Act itself, and is not to be found elsewhere (at 520-1).”

With one qualification we are content to adopt the above summary of Beaumont J.  The qualification is that Lindgren J in Kizon v Palmer at 510 said:

            “In my view, s 63(2).... is to be read down so that the descriptions of the acts in the paragraphs of the subsection do not catch those acts as they apply to designated warrant information already known to all relevant parties.”

His Honour, in summarising this passage, has referred to “all relevant parties in the present proceeding”.  We are not persuaded that Lindgren J intended that his reference to “all relevant parties” should be understood as a reference to all relevant parties inthe present proceeding.  We understand him to have been concerned with all parties with a proper interest in maintaining the confidentiality of the designated warrant information.

As a result of the decision of the Full Court, on 24 March 1997, it was ordered, by consent, that the order for discovery made by Northrop J be vacated.  On that same date, Beaumont J heard the application to which this appeal relates, namely, that the subpoena issued at the request of the appellant on 13 March 1997 directed to the Commissioner be set aside.  That subpoena sought production by the first respondent of the five affidavits in support of the applications for the warrants, this being the material the subject of the now vacated order for limited discovery.

STATUTORY BACKGROUND

The TI Act was enacted in 1979 and came into effect on 1 June 1980.  It is described in the long title as -

“An Act to prohibit the interception of telecommunications except where authorised in special circumstances or for the purpose of tracing the location of callers in emergencies, and for related purposes.”

Subsection 7(1) contains the prohibition referred to in the long title.  It reads:

“A person shall not:

     (a)          intercept;

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

     (c)          do any act or thing that will enable him or another person to intercept a communication passing over the telecommunications system.”

Subsections (2) to (11) of s 7 of the TI Act deal with the exceptions to 7(1); they are mainly concerned with necessary interceptions arising out of the installation of telephone equipment or where telephonic communication is being used as a means of serious harassment or threats.  However, subsection 7(2) reads:

“Subsection (1) does not apply to or in relation to:

            ...

            (b)        the interception of a communication under a warrant;

                   ...”

Section 7 constitutes the entirety of Part II of the TI Act, Parts I and IA containing preliminary and interpretative provisions.  Parts III and V deal with the interception of telecommunications by the Australian Security Intelligence Organization and by the police in the event of medical emergencies, respectively.  Part VI is entitled:  “Warrants Authorising the Australian Federal Police to Intercept Telecommunications”.  Division 3 of Part VI sets out the procedure to be followed in applying for a warrant;  s 39(1) stating that “an agency may apply to an eligible Judge for a warrant in respect of a telecommunications service”, and s 39(2) listing the persons who can so apply.  Sections 40 and 41 specify the required form and content of an application, while s 42 provides:

“(1)     A written application by an agency for a warrant shall be accompanied by an affidavit complying with this section.

(2)       The affidavit shall set out the facts and other grounds on which the application is based.

(3)       The affidavit shall specify the period for which it is requested that the warrant be in force and shall state why it is considered necessary for the warrant to be in force for that period.

(4)       The affidavit shall set out, in relation to the service, and in relation to each person to whom the application relates, the following information, so far as it can be derived from the agency’s records:

            (a)        the number of previous applications (if any) for warrants that the agency has made and that related to the service or to that person, as the case may be;

            (b)        the number of warrants (if any) previously issued on such applications;  and

            (c)        particulars of the use made by the agency of information obtained by interceptions under such warrants.

(5)       Notwithstanding subsection (1), a written application may be  accompanied by 2 or more affidavits that together set out each matter that, but for this subsection, this section would have required an affidavit  accompanying the application to set out, specify or state.”

Sections 45 and 46 of Division 4 of Part VI confer a discretion upon the eligible Judge to issue a warrant authorising the interception of communications made to or from a telephone service where the Judge is satisfied of a number of specified matters, including whether the requirements of form have been complied with and whether the information likely to be obtained by virtue of the interception would be likely to assist in connection with the investigation of an offence.

Part VII is entitled “Dealing with intercepted information”.  Section 63(1) provides as follows:

“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

(b)       give in evidence in a proceeding;

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

“Lawfully obtained information”is defined in s 6E(1) as follows:

“... a reference in this Act to lawfully obtained information is a reference to information obtained ... by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system.”

Subsection 63(2) of the TI Act was introduced by the Telecommunications (Interception) Amendment Act 1995 (“the TI Amendment Act”) with effect from 12 December 1995, that is, two months after the order for limited discovery by Northrop J.  Subsection 63(2) assumed a central role in the Full Court’s finding that the TIAct prohibited the disclosure by discovery of the affidavits sought to be inspected by the appellant.  It reads:

“Subject to this Part, a person must not, after the commencement of this subsection:

            (a)   communicate designated warrant information to another person; 

                   or

            (b)  make use of designated warrant information; or

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

            (d)  give designated warrant information in evidence in a proceeding.”

“Designated warrant information” is defined in s 6EA as follows:

“A reference in this Act to designated warrant information is a reference to:

(a)       information about any of the following:

            (i)         an application for a warrant;

            (ii)        the issue of a warrant;

            (iii)       the existence or non-existence of a warrant;

            (iv)       the expiry of a warrant; or

(b)       any other information that is likely to enable the identification of:

            (i)         the telecommunications service to which a warrant relates; or

            (ii)        a person specified in a warrant as a person using or likely to use the telecommunications service to which the warrant relates.”

The next relevant provision is s 67, which creates an exception to the prohibitions prescribed by s 63 in respect of communicating, making use of or making a record of the two types of information.  It provides that:

“An officer 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 obtained information other than section 11A information;

(b)       designated warrant information.”

The concept of a “permitted purpose”is explained in s 5(1) as follows:

“ “permitted purpose”, in relation to an agency, or an eligible authority of a State, means a purpose connected with:

(a)       in any case:

            (i)         an investigation by the agency or eligible authority of a prescribed offence;

            ......

            (iii)       a relevant proceeding in relation to the agency or eligible authority ...”

A “prescribed offence”is also defined in s 5(1).  It is accepted that the offence with which the appellant is charged is such an offence.   The meaning of “a relevant proceeding” is elaborated upon by s 6L(1), which reads:

“A reference in this Act, in relation to an agency, or an eligible authority of a State, to a relevant proceeding is, in the case of the Australian Federal Police or a Police Force of a State, a reference to:

(a)       a proceeding by way of a prosecution for a prescribed offence that is an offence against a law of the Commonwealth, or of that State, as the case may be;

......

(e)        a police disciplinary proceeding that is a proceeding against a member of  the Australian Federal Police, or of that Police Force, as the case may be; or

(f)        any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it related to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, or of the State, as  the case may be.”

Section 5A of the TI Actstates:

“For the purposes of this Act, a person who gives to another person, makes use of, makes a record of, or produces in evidence in a proceeding, a record (in this section called the “relevant record”)obtained by an interception, whether or not in contravention of subsection 7(1), of a communication shall be taken to communicate to  the other person, make use of, make a record of, or give in evidence in that proceeding, as the case may be, so much of the information obtained by the interception as can be derived from the relevant record.”

Section 74 of the TI Act further limits the prima facie operation of s 63(2) of the TI Act.  Section 74 provides as follows:

“(1)     A person may give lawfully obtained information (other than section 11A information) in evidence in an exempt proceeding.

(2)       For the purposes of applying subsection (1) in relation to information, the question whether or not a communication was intercepted in contravention of subsection 7(1) may be determined on the balance of probabilities.

(3)       A person may give designated warrant information in an exempt proceeding.”

“Exempt proceeding” is defined in s 5B, which reads:

“A reference in this Act to an exempt proceeding is a reference to:

(a)       a proceeding by way of prosecution for a prescribed offence; or

.....

(e)        a police disciplinary proceeding; or

(f)        any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or the State; ...”

The pending prosecution of the appellant is an “exempt proceeding” within the meaning of the Act.  It was submitted by both sides before the Full Court, and accepted by the Full Court, that the proceeding before the Court is not an “exempt proceeding”within the meaning of para (f) of s 5Bnor is it a “relevant proceeding” as provided for in para (f) of 6L(1).  Lindgren J noted that each of ss 5B and 6L paras (f) took its colour from the immediately preceding para (e) with its reference to a “police disciplinary proceeding”and also from the references in paras (b) and (c) of s 5(1) to a permitted purpose being investigations into conduct warranting the termination of the appointment of a police officer.  His Honour concluded (at 509):

“In my view, s 5B(f)’s and s 6L(1)(f)’s reference to a proceeding relating to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State, is a reference to alleged misbehaviour or improper conduct of a kind commonly associated with disciplinary action against an employee or an office-holder, such as dismissal, removal from office or other sanction.  The alleged non-disclosure by Drew [the  deponent of the five affidavits in support of the warrant applications] in breach of the pleaded duty uberrima fides incumbent upon him as applicant for a TI warrant, to make full and frank disclosure to the third respondent by disclosing that he had no reasonable or proper basis for believing that the applicant had been or was involved in an offence or offences referred on the face of the warrant, belongs, in my opinion to a different realm of discourse.”

Another exception to the prohibition contained in s 63 on giving in evidence lawfully obtained information or designated warrant information is contained in s 76A, which was inserted into the TI Act by the TI Amendment Act.  Section 76A provides as follows:

“(1)     A person may give information obtained in intercepting a communication in contravention of subsection 7(1) in evidence in a proceeding by way of an application under section 107A for remedial relief in respect of:

            (a)        the interception; or

            (b)        the communication (in contravention of section 63) of information obtained by the interception.

(2)       A person may give designated warrant information in evidence in a proceeding by way of an application under s107A.”

Section 107A of Part XA of the TI Act provides civil remedies by way of a number of possible orders for a person who is “aggrieved” by an interception of telephonic communications or by the communication of information derived thereby.  However, clause 19 of Schedule 1 to the TI Amendment Act provides that remedies under s 107A are not available in respect of warrants obtained prior to the commencement of Part XA, namely, 12 December 1995.  Part XA, therefore, has no application to the warrants the subject of this case.

Section 77 addresses the issue of the admissibility in evidence of information obtained from a telephonic interception.  Subsections (1) and (2) provide as follows (the references to s 76A were added by the TI Amendment Act):

“(1)     Where a communication passing over a telecommunications system has been intercepted, whether or not in contravention of subsection 7(1), then:

            (a)        subject to paragraph (b), neither information, nor a record, obtained by the interception is admissible in evidence in a proceeding except in so far as section 63A, 74, 75, 76 or 76A permits a person to give in evidence in that proceeding information so obtained; and

            (b)        for the purpose of determining the extent (if any) to which section 63A, 74, 75, 76 or 76A permits a person to give in evidence in a proceeding information obtained by the interception:

                        (i)         a person may communicate to another person, make use of, make a record of, or give in evidence in the last-mentioned proceeding, information so obtained; and

                        (ii)        information, or a record, so obtained is admissible in evidence in the last-mentioned proceeding.

(2)       Neither information, nor a record, obtained by virtue of a warrant under section 11A is admissible in evidence in a proceeding unless section 63A or 74 permits a person to give in evidence in that proceeding information obtained by virtue of the warrant.”

Subsections (3) and (4) were added by the TI Amendment Act.  They read:

“(3)     Designated warrant information is admissible in evidence in a proceeding only to the extent that section 63AA, 74, 76 or 76A permits a person to give designated warrant information in evidence in that proceeding.

(4)       For the purpose of determining the extent (if any) to which section 63AA, 74, 76 or 76A permits a person to give designated warrant information in evidence in a proceeding:

            (a)        a person may:

                        (i)         communicate the information to another person; or

                        (ii)        make use of the information; or

                        (iii)       make a record of the information; or

                        (iv)       give the information in evidence in the proceeding;  and

            (b)        the information is admissible in evidence in the proceeding.”

Significantly, clause 34 of Sch 1 to the TI Amendment Act provides as follows:

“The amendments made by this Part [that is, Part 4, which introduced to the TI Act the provisions concerning designated warrant information] apply in relation to a warrant issued before the commencement of this item.”

Part VIII of the TI Act provides for the keeping and inspection of interception records of Commonwealth agencies and Part IX for the making of reports about interceptions.  Part X of the TI Act is headed “Offences”, with s 105 providing that a person who contravenes ss 7(1) or 63 is guilty of an offence.  Part XA of the TI Act has been referred to above and is not applicable here.  Part XI of the TI Act provides for the making of regulations under theTI Act.

It is also necessary to set out s 219F of theCustoms Act:

“(1)     A person shall not divulge or communicate to another person, or make use of or record, any information obtained by using a listening device for the purposes of narcotics inquires that are being, or have been, made by officials of a Commonwealth law enforcement agency, being information that has come to his knowledge or into his possession by reason of his being, or having been, an official of the agency or by reason of his having entered into an arrangement with an official of the agency to use a listening advice for the purpose of those inquiries, except for the purposes of those inquiries.

            Penalty: Imprisonment for 3 years.

(2)       [not here relevant]

(3)       Without limiting the purposes for which a person may, in accordance with subsection (1), divulge information, a person may divulge or communicate information obtained by using a listening device for the purpose of narcotics inquiries that are being, or have been, made by officials of a Commonwealth law enforcement agency, for a purpose connected with:

            (a)        the making by an authority, body or person of a decision whether or not to begin a relevant proceeding; or

            (b)        the conduct of a relevant proceeding.

(4)       Where a person is prosecuted before a Court for a prescribed offence, the Court may, in its discretion, refuse to permit information referred to in subsection (3) to be given in evidence in the proceedings if it is satisfied that it would be unfair to the accused to admit the information in evidence.”

Lindgren J in the Full Court had the following to say about the above section:

“It will be noted that the prohibition is against divulging, communicating, making use, and making a record, but not against giving in evidence, information of the kind described in s 219F(1).  Moreover, s 219F(1) is directed only to persons who have received information as “officials of a Commonwealth law enforcement agency” or by reason of their having entered into an arrangement with such an official to use a listening device for the purpose of narcotics inquiries being conducted by the agency.  In both respects the prohibition is narrower than those contained in s 63 of the TI Act.”

REASONING OF THE PRIMARY JUDGE

Beaumont J considered that the reasons of Lindgren J in the Full Court had virtually decided the point that was before him.   He took the view that the reasoning of the Full Court on the discovery question should be seen as analogous to the question before him as to whether a subpoena could be used to achieve the same object.

His Honour acknowledged that Lindgren J in the Full Court had drawn the well-known distinction, adverted to in Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 and other cases such as Brown v Commissioner of Australian Federal Police (1988) 83 ALR 477, between communications to a person and communications to a court.  However, his Honour did not consider that by so doing Lindgren J was addressing the possibility that a subpoena might be used in an area where discovery was prohibited.

Beaumont J noted that both the process of discovery, and the process of the issue of a subpoena, are a part of the court’s own procedures, and that each process is designed to ensure that documents are made available to parties to litigation as part of the process of adjudication.   His Honour concluded that the Full Court had adopted the proposition that it was impermissible for the appellant to seek to have the documents the subject of the subpoena made available to him in this Court. His Honour observed that the proper forum for the pursuit of the information sought by the appellant is the criminal court in which he faces charges and before which the evidence obtained as a result of the issue of the warrants is to be relied upon.

Beaumont J further expressed the view that, even if the question before him were not regarded as, in substance, decided by the Full Court, he would have found the issue of the subpoena to be an abuse of the Court’s process as a attempt to achieve indirectly that which the Full Court had held could not be achieved directly through the process of discovery (Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516 at 522-523).  

In addition, his Honour placed weight on the rule preventing the substitution of the subpoena process for discovery against a party;  his Honour made particular reference to Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 and to P.M. Wood, “Challenging subpoenas duces tecum, is there a third party view?” (1984) 10 Syd L Rev 379 at 397.

Finally, his Honour expressed the view that neither discovery, nor the subpoena process, may be  used  in  this Court  in  judicial  review  proceedings  to  circumvent  the  manifest  intent of s 63(2) of the Act that designated warrant information is not to be disclosed other than in the course of prescribed criminal proceedings.

Beaumont J set aside the subpoena as an abuse of process.

CONTENTIONS OF THE PARTIES

The appellant contends that the question before Beaumont J was not, in substance, decided against the appellant by the Full Court.  He contends that the reasoning of the Full Court on the discovery question was not properly analogous to the question of whether the subpoena should be set aside.  The appellant places reliance on the distinction between disclosure of information to a person and disclosure to a court, and on the legitimate forensic purpose for which the documents are sought in the Federal Court.

The appellant disputes that the TI Act discloses an intention that communication of the contents of an interception is only to occur in exempt proceedings.  He also challenges the finding, or assumption, of Beaumont J that it would be open to the appellant to seek the information in aid of a challenge to the admissibility of evidence in the criminal proceeding;  the appellant asserts that the proper forum for the pursuit of the type of information sought by the applicant by his subpoena is in the administrative law jurisdiction of the Federal Court.  He draws attention to the potential embarrassment in a State court, and particularly an inferior court, being required to decide a question as to the appropriateness of the conduct of an “eligible judge”.

The appellant further disputes that an obvious aim of the TI Act is to ensure that communication of the contents of an intercept will only occur in exempt proceedings.

It is contended by the appellant that the issue of the subpoena does not amount to the appellant seeking to achieve indirectly what he could not achieve directly by an order for discovery, and that the TI Act should not be interpreted as directly, or indirectly, requiring that the appellant be denied the right to use a subpoena to seek material to advance proceedings in this Court.   It is further contended by the appellant that nothing in Commissioner of Railways v Small prevents the issue of a subpoena in the circumstances of this case.  He drew attention to the fact that Jordan CJ in Commissioner of Railways v Small was concerned with a subpoena widely drawn so as to require judgments to be made by the recipient akin to those required to be made by a party giving discovery.  The subpoena in this case calls for the production to the Court of five specified documents.

The Commissioner does not challenge the contention of the appellant that s 63(2) of the TI Act is not contravened by the production of documents containing designated warrant information to a court.  Further, he does not challenge the contention that s 63(2) of the TI Act would not prevent the Court from thereafter allowing the appellant to have access to such documents.  However, he asks the question, what happens next?

The Commissioner contends that the plain effect of s 63(2) of the TI Actis that the appellant and his legal advisers would be unable to make use of the designated warrant information or give such information in evidence in the proceeding in this Court.  The respondent therefore contends that no legitimate forensic purpose can be served by the delivery to the Court of the documents sought by the subpoena and an order giving the appellant access to such documents.

The Commissioner further contends that as his Honour’s order was made in the exercise of the discretionary power of the Court to set aside a subpoena, or alternatively, in the discretionary exercise of the Court’s inherent jurisdiction to prevent abuse of its own process, it should not be set aside unless some error of principle can be identified.  The respondent argues that no injustice to the appellant can be shown as he can challenge illegality in respect of the warrants in the course of his trial.

CONSIDERATION

Mr Weinberg QC, who appeared with Mr Johnson for the appellant, properly drew to the Court’s attention the decision of the Court of Appeal of NSW in The Honourable James Wood, Royal Commissioner v Beves (unreported, Court of Appeal of NSW, 14 March 1997).    In that case, Cole JA and Studdert AJA, Handley JA dissenting, held that ss 63, 74 and 77 of the TI Act operate to preclude lawfully obtained information, within the meaning of s 6E of the TI Act, being admitted into evidence and used in a court in any proceeding, notwithstanding that such lawfully obtained information has been given in evidence in exempt proceedings open to the public.  Neither of the parties to this appeal sought to argue that Kizon v Palmer (1997) 142 ALR 488 was wrongly decided.   Had either party sought to do so, it would have been appropriate for him to have raised that matter with the Court, no later than the Full Court call-over, to allow the Chief Justice to give consideration to the possibility of constituting a Full Court consisting of five judges sitting together  to hear the appeal.  In the circumstances, this appeal is to be dealt with on the basis that Kizon v Palmer is rightly decided.  It may, however, be noted that the Court of Appeal in the Beves’ Case was concerned with the admissibility of evidence in a proceeding for contempt of court,  circumstances which might be regarded as distinguishable from those with which this appeal is concerned.

Since the conclusion of the hearing of this appeal on 8 October 1997, the High Court has given judgment in Ousley v The Queen on 20 October 1997.  The legal advisers for the appellant presented further submissions in writing based on the opinions given in Ousley.  Those opinions support the view that in issuing the warrants, the third respondent was acting in the capacity of designated person and not as a judge.  Accordingly, there is nothing to prevent a court, including an inferior court, from determining at a criminal trial the admissibility of evidence said to be inadmissible by reason of defects in a warrant issued under the Customs Act or the TI Act.  The High Court held also that at the trial an attack could not be made on the admissibility of the evidence based on a collateral attack on the validity of the warrant because of the absence of material to justify the granting of the warrant.  The High Court confirmed the view of Merkel J in Carmody vMackellar (1996) 68 FCR 265 that the validity of a warrant could be tested in separate proceedings such as those in the present case.  This latter conclusion is accepted;  were it not, this application before the Court would have been promptlydismissed.  In truth, the views in Ousley are not relevant to the issue to be determined in this appeal.

At the heart of the submissions of the appellant was the contention that Lindgren J, speaking for the Full Court in Kizon v Palmer, has enunciated the proposition that once certain designated warrant information is known to the person whose relevant communication has been intercepted, that is the end of the prohibition contained in s 63(2) of the TI Act.

The relevant passage from the reasons for decision of Lindgren J is at 509-510 where his Honour said:

“In my view, the definition of “designated warrant information” and the various provisions  which invoke it are to be read purposively.  Section 15 AA(1) of the Acts Interpretation Act 1901 so requires.  That familiar provision is as follows:

                        (1)          In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

A purposive construction is necessary to avoid absurdity.  It would be absurd that the prohibition in s 63 should continue to apply to information of a kind referred to in the definition of “designated warrant information” once that information is in the public domain by, for example, having been given in evidence publicly in a prosecution.  There is no provision in Pt VII of the TI Act which expressly permits further divulging of designated warrant information which has been publicly given in evidence in a prosecution, yet according to a non-purposive construction, the prohibition would prevent a reporting of the evidence.  This result cannot have been intended.

                        -           -           -           -           -           -           -           -

In my view, s 63(2), importing as it does the definition of “designated warrant information” in s 6EA, is to be read down so that the descriptions of the acts in the paragraphs of the subsection do not catch those acts as they apply to designated warrant information already known to all relevant parties.”

The submissions of the appellant on the present appeal give little, if any, weight, to the following passage from the reasons for decision of Lindgren J at 511:

            “....the purpose of the prohibition contained in s 63(2) is not only one of protecting privacy.  The prohibition against the disclosure of designated warrantinformation is also directed to assisting law enforcement.   Contravention of s 63(2) is, on its face, inimical to the processes of law enforcement, because it enables identification of a particular telecommunications service or person the subject of a TI warrant.”

The argument which is at the heart of the case for the appellant has four steps.   The first two of the steps were not sought to be contradicted by the respondent but the Court expresses no view on their correctness.   The third step was sought to be contradicted by the respondent.

The first step in the appellant’s argument is that the Court is not a person within the meaning of s 63(2) of the TI Act, and thus it cannot be an offence for a police officer who receives a subpoena to produce a document to the Court notwithstanding that the document contains designated warrant information; the police officer does not thereby communicate any information to another person.  In any event, the documents are delivered into the custody of the Court.  The Court does not look at the documents until they are tendered in evidence or until the Court is required to look at them on an interlocutory application.  The second step of the argument is that it cannot be an offence for the Court to permit the person on whose behalf the subpoena was issued or any other party to have access to the document produced to the Court in response to the subpoena because the Court is not a person;  the communicating of information by the Court is not a communication by a person and thus it falls outside the ambit of s 63(2) of the TI Act.

The third step of the appellant’s argument was put by Mr Weinberg as follows:

“Once Mr Kizon is able to see, if he is able to see, what was in the relevant documents that he has subpoenaed, there is no longer any purpose to be served by s 63(2)(b)(c) and (d), and therefore why should he not then be able to talk to his barristers about those matters, why should he not then be able to give those matters in court?  No privacy interest of his can possibly be affected.

The respondents of course have their protection, they still have their right to claim and maintain if they can public interest immunity, if there is a case for doing that but we have been stopped from ever getting to that point by the interpretation of these provisions which have effectively stopped discovery and now it is said also stop an otherwise valid subpoena from being returned to the court.”

The weakness of the third step in the appellant’s argument, in our view, is that it overlooks the conclusion of Lindgren J, which, with respect, is undoubtedly correct, that the purpose of s 63(2) of the TI Act is not only the protection of privacy but is also the assistance of law enforcement.

Lindgren J spoke in Kizon v Palmer of the significance of designated warrant information being in the public domain as a consequence of having been given in evidence publicly in a prosecution.  There is a real difference between the circumstance which his Honour so envisaged, and a circumstance in which a litigant, being the subscriber to a telecommunications service the subject of a warrant, seeks to obtain such information in a non-public way by being given access to documents produced into the custody of a court in response to a subpoena.

It is accepted that the documents the subject of the subpoena contain designated warrant information.  Such information may relate to a person or persons other than, or in addition to, the appellants.  Protection of the privacy of all such persons may be assumed to be a purpose of the TI Act.  (See, for example, s 46(2)(a) of the TIAct).  Moreover, there will be circumstances in which law enforcement may continue to be assisted by the suppression from publication of designated warrant information, even where the subscriber to a telecommunications service the subject of a warrant is alert to the existence of the warrant.  The TI Act discloses an intention to provide to designated warrant information protection from publication in addition to that which may result from a claim for public interest immunity.

Even if it were to be assumed that it would be a legitimate exercise of the Court’s discretion to allow a party access to documents produced to the Court in response to a subpoena, that is, to allow a party access to designated warrant information, the Court should not be prepared to take the appellant’s third step.  That is, we do not regard the publication of such designated warrant information to a person in the position of the appellant as the equivalent of placing such material in the public domain so as to avoid the ongoing operation, in respect of such information, of s 63(2) of the TI Act.

We therefore accept the submission of the respondent that, even if the documents the subject of the subpoena were made available to the appellant, the appellant and his legal advisers would be unable to make use of the designated warrant information contained therein or give such information in evidence in the proceeding in this Court.  No purpose will thus be served by the subpoena remaining on foot.  We are in agreement with Beaumont J that it should be set aside.

Further, we are of the view that ordinarily the Court will not exercise its discretionary power to order that a party have access to documents produced into the custody of the Court in response to a subpoena in a manner calculated to circumvent the manifest intention of s 63(2) of the TI Act.

The appeal should be dismissed with costs.

Associate:

Dated:             

On appeal from the federal court of australia

CONSTITUTED BY A SINGLE JUDGE

REASONS FOR JUDGMENT

FRENCH J:

This appeal concerns a challenge by John Kizon to the validity of Listening Device and Telecommunications Interception warrants issued in October 1994.  Mr Kizon has been charged with drug related offences.  His challenge, by way of application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) arises out of the possibility that information gathered pursuant to the warrants may be used as evidence against him in the prosecution of the offences.

The appeal is brought against a decision of Beaumont J in the judicial review proceedings setting aside a subpoena directed to the respondent, Palmer, in his capacity as Commissioner of the Australian Federal Police.  The subpoena sought production of five affidavits used in support of the applications for the warrants.  The principal question for determination in this case is whether the production of documents by the Court under subpoena can serve any legitimate forensic purpose having regard to the provisions of s 63(2) of the Telecommunications (Interception) Act 1979 (Cth).

The rather convoluted history of the interlocutory proceedings is set out in the joint judgment of Northrop and Branson JJ.  I agree with their Honours for the reasons they enunciate, that the appeal should be dismissed.

The argument on the hearing of the appeal was largely directed to the operation of s 63(2) of the Telecommunications (Interception) Act and its impact upon the use to which documents produced to the Court could subsequently be put in proceedings before the Court.  It is the inability of the parties, by virtue of that section, to make use of the “designated warrant information” that would be produced under the subpoena that, in the opinion of the Court, deprives the subpoena of forensic legitimacy.

I would simply wish to add that it should not be thought that, absent the provisions of s 63(2) forensic legitimacy would be presumed.  As explained in the joint judgment, Northrop J had made an order for limited discovery of the five affidavits on 24 October 1995.  That was to be subject to any public interest immunity claims which might be brought.  His Honour’s order was later vacated following the judgment of the Full Court of the Federal Court in Kizon v Palmer (1997) 142 ALR 488 on a case stated by Davies J in relation to inspection of the discovered documents. 

It was  contended for the appellant that, absent the statute, the question of the legitimacy of the application for discovery had been resolved in his favour and that there was no scope for debating that matter in relation to the subpoena.

In my view it is important to make clear that generally speaking parties are not entitled to initiate an application in this court and use the court processes, whether by discovery, interrogatories or subpoena to find out whether they have a case.  That is a proposition of general application.  It applies to judicial review proceedings as well as to others.

Discovery and the other coercive interlocutory processes of the Court are available in appropriate cases in judicial review proceedings - TNT Australia Pty Ltd v Fels and Anor (1992) ATPR 41-190 (Gummow J) at 40,600; Re Federal Commissioner of Taxation Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247 at 248-249 (Beaumont J).  There must, however, be evidence before the Court “to ground a suspicion that the applicant has a good case, proof of which is likely to be aided by discovery” - Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78 at 83 (Wilcox J); Reid v Nairn (1985) 17 A. Crim. R. 29 at 33-4 (Fisher J). 

And in challenges to investigative processes related to pending criminal proceedings, particular caution should be exercised by the Court.  In Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) ATC 4054 at 4059, Davies J said:

“It is to be kept in mind that an order for general discovery will not be made against a prosecutor on the application of a defendant in criminal proceedings.  See Trade Practices Commission v Australian Feather Mills Pty Ltd (1990) 26 FCR 555.  And it is also to be kept in mind that there is a principle of public policy which enjoins a court against concerning itself with the steps taken in the course of the investigation with an offence or indeed even with the institution of a prosecution for an offence.  The point of public policy is that it is necessary for a court to be seen to stand apart from, and be unconnected with, the investigation of crimes and the taking of decisions to prosecute.”

The same general principles should apply to orders for limited discovery, interrogatories and subpoenas in judicial review proceedings which are essentially collateral to the criminal process.  The risk of fragmentation of the processes of the criminal justice system and undue interference in the investigation of criminal offences indicates the need for a significant threshold before the Court accedes to the invocation of its coercive processes in challenges to decisions made in the course of investigations or which are otherwise collateral to criminal prosecutions.

Associate:

Dated: