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Federal Court of Australia - Full Court Decisions |
Last Updated: 23 April 2007
FEDERAL COURT OF AUSTRALIA
Commissioner, Australian Federal Police v Samsonidis [2007] FCAFC 54
ADMINISTRATIVE LAW –
telecommunications interception warrants – "lawfully intercepted
information" allegedly communicated by intercepting
agency, Australian Federal
Police, (AFP) to officer of US Drug Enforcement Agency and then disclosed in
pre-trial proceedings in
Athens Court of First Instance in Greece – record
of disclosure to Greek court obtained by participant in alleged telephone
communication – whether AFP precluded by s 63 of
Telecommunications (Interception and Access) Act 1979 from communicating
to participant transcripts, records or other documents related to telephone
communications allegedly involving
the participant and occurring at or about the
time of the communication disclosed to the Greek court – whether
information
disclosed to the Greek court was in "the public domain".
Telecommunications (Interception and
Access) Act 1979 ss 5, 6E, 6EA(1), 7(1), 63, 64, 67(1)
Freedom
of Information Act 1982 (Cth) Sch 3,
s 11
Samsonidis v Commissioner,
Australian Federal Police [2006] FCA 1592
Kizon v Palmer (No 1)
(1997) 72 FCR 409
Kizon v Palmer (No 2) (1998) 82 FCR 310
THE
COMMISSIONER, AUSTRALIAN FEDERAL POLICE v DIMITRIOS SAMSONIDIS
VID
1418 OF 2006
RYAN, MARSHALL AND JESSUP JJ
20 APRIL
2007
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The declarations and orders of 20 December 2006 be set aside.
3. The matter be remitted to the primary Judge for resolution of the issue identified at [31] of his reasons for judgment of 24 November 2006.
4. The parties file and serve within 14 days written submissions as to the orders which they contend should be made in respect of the costs of the appeal.
Note: Settlement and entry of orders is dealt
with in Order 36 of the Federal Court Rules.
|
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
|
|
BETWEEN:
|
THE COMMISSIONER, AUSTRALIAN FEDERAL
POLICE
Appellant |
|
AND:
|
DIMITRIOS SAMSONIDIS
Respondent |
|
JUDGES:
|
RYAN, MARSHALL AND JESSUP JJ
|
|
DATE:
|
20 APRIL 2007
|
|
PLACE:
|
MELBOURNE
|
REASONS FOR JUDGMENT
RYAN and MARSHALL JJ
1 The Commissioner, Australian Federal Police, appeals from orders of a single Judge of this Court who held that the respondent, Mr Samsonidis, is entitled to have produced to him information obtained by the interception of a telephonic communication between the respondent and another person; see Samsonidis v Commissioner, Australian Federal Police [2006] FCA 1592.
2 Mr Samsonidis is in a Greek prison awaiting trial on drug related charges. In pre-trial proceedings in the Athens Court of First Instance, an agent of the United States Drug Enforcement Agency ("the DEA") gave evidence that he had received information from Australian authorities derived from a telephone conversation between the respondent and another person.
3 This appeal raises for consideration the application of s 63 of the Telecommunications (Interception and Access) Act 1979 (Cth) ("the TIA Act") to circumstances where the existence of "lawfully intercepted information" has been disclosed to a person whose telephone communication is the subject of "lawfully intercepted information".
4 The primary judge held that s 63 of the TIA Act does not apply to "lawfully intercepted information" which has been published to the person seeking access to it. He considered that such a result flowed from a purposive construction of the section in accordance with a judgment of a Full Court of this Court in Kizon v Palmer (No 1) (1997) 72 FCR 409.
Legislative context
5 Section 7(1) of the TIA Act prohibits the interception of a communication passing over a telecommunications system. An exception is created by s 7(2)(b) in respect of the interception of a communication under a warrant. Information obtained by intercepting, otherwise than in contravention of s 7(1), is, by force of s 6E, "lawfully intercepted information".
6 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
(b) give in evidence in a proceeding;
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.’
7 Section 6EA(1) provides that a reference in the TIA Act to "interception warrant information" is a reference to;
‘(a) information about any of the following:
(i) an application for an interception warrant;
(ii) the issue of an interception warrant;
(iii) the existence or non existence of an interception warrant;
(iv) the expiry of an interception warrant; or
(b) any other information that is likely to enable the identification of:
(i) the telecommunications service to which an interception warrant relates; or
(ii) a person specified in an interception warrant as a person using or likely to use the telecommunications service to which the warrant relates.’
8 As Lindgren J observed in Kizon v Palmer (No 1) 72 FCR at 421, s 63(1) "is the continuing prohibition which relates to information obtained by an interception ... while s 63(2) is the newly introduced prohibition directed to a wide range of information touching a TI warrant itself and the authority conferred by it."
9 Part 2-6 of the TIA Act describes the circumstances in which dealing with "lawfully intercepted information" and "interception warrant information" may permissibly occur. None is presently relevant. An example is to be found in s 64 which permits dealing with lawfully intercepted information and interception warrant information in connection with the performance of the functions of the Australian Security and Intelligence Organisation or otherwise for purposes of security.
Kizon v Palmer (No 1)
10 In Kizon v Palmer (No 1) 72 FCR 409 Lindgren J (with whom Jenkinson and Kiefel JJ agreed) held that s 63(2) should be given a purposive construction. At the time of Kizon v Palmer (No 1) 72 FCR 409, "interception warrant information" was called "designated warrant information". His Honour observed, at 434;
‘A purposive construction is necessary to avoid absurdity. It would be absurd that the prohibitions 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.’
11 In Kizon v Palmer (No 1) 72 FCR 409, the "designated warrant information" was contained in an open affidavit filed in Court and served on the applicant who had read it as intended by the respondent. The applicant sought to rely on the affidavit in support of an attack mounted in this Court on the validity of warrants pursuant to which communications had been intercepted and recorded. At 435, Lindgren J said;
‘No purpose to which s 63 is directed would be served by construing the section as preventing the applicant from relying on the affidavit and its annexures. 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.’
12 As Lindgren J said in Kizon v Palmer (No 1) 72 FCR at 419 "designated warrant information" referred to in s 63(2) is "information broader in scope than the result of an interception". It is broader than the information referred to in s 63(1).
The purpose of section 63
13 An obvious purpose of s 63 is the safeguarding of the confidentiality of telephonic communications which have been lawfully intercepted. Lindgren J, in Kizon v Palmer (No 1) 72 FCR at 418-419, described the December 1995 amendments to the TIA Act as further safeguarding the confidentiality of telephonic communications and, at 436, his Honour identified an additional purpose of "assisting of law enforcement".
14 In Kizon v Palmer (No 2) (1998) 82 FCR 310, Northrop and Branson JJ agreed with the analysis of Kizon v Palmer (No 1) 72 FCR 409 by the trial judge, Beaumont J, who said, as quoted in Kizon v Palmer (No 2) 82 FCR at 313;
‘The purpose of the prohibition [in] 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.’
15 At 324-325, Northrop and Branson JJ said;
‘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 TI Act). 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.’
Lawfully Intercepted Information
16 This appeal concerns s 63(1) of the TIA Act as applied to "lawfully intercepted information" defined in s 6E. The information is said to have been obtained by lawfully intercepting telephone conversation between the respondent and another person. The appellant neither confirms nor denies the fact of the interception and the existence of a record of any information derived from it.
Is the information sought by Mr Samsonidis in the public domain?
17 The appellant contends that the Australian Federal Police ("the AFP") has not made any public disclosure of any relevant information concerning the respondent or in circumstances where it could be taken to have intended that the respondent should receive the information. He says that no finding can be made of any public disclosure of lawfully intercepted information because there is no evidence of the extent, if any, to which the proceedings in Greece involving the respondent have been conducted in public. The only evidence is that the respondent’s solicitor has read a document which records what the DEA agent has said concerning an alleged conversation between the respondent and another person.
18 The appellant further contends that, if there had been any disclosure of information by the AFP, that was made privately and for a limited "permitted purpose" pursuant to s 67.
19 It is difficult, in the face of the AFP’s refusal so far to confirm or deny the possession of any relevant lawfully intercepted information, to determine whether any communication was for a permitted purpose or permitted purposes so as to bring it within s 67 of the TIA Act. "Agency" is defined in s 5 of the TIA Act as meaning in, amongst others, s 68, an "interception agency". That expression, in turn, is relevantly defined as meaning "a Commonwealth agency" which is defined, also in s 5, as including the AFP. 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;
(b) interception warrant information.’
20 It follows that, to justify disclosure to a DEA agent of lawfully intercepted information (assuming that such disclosure occurred), the AFP would have to demonstrate that the communication was for a permitted purpose in relation to the AFP. As defined in s 5 of the TIA Act, "permitted purpose" means, in relation to an interception agency, a purpose connected with;
‘(a) in any case:
(i) an investigation by the agency or eligible authority of a prescribed offence;
(ii) the making by an authority, body or person of a decision whether or not to begin a relevant proceeding in relation to the agency or eligible authority;
(iii) a relevant proceeding in relation to the agency or eligible authority;
(iv) the exercise by the chief officer of the agency or eligible authority of the powers conferred by section 68; or
(v) the keeping of records by the agency under Part 2-7, or by the eligible authority under provisions of a law of the State that impose on the chief officer of the authority requirements corresponding to those imposed on the chief officer of a Commonwealth agency by sections 80 and 81; ...’
21 The remaining paragraphs of the definition relate it to purposes connected with specified agencies or authorities. That connected with the AFP is (b) which extends the definition to a purpose connected with;
‘in the case of the Australian Federal Police:
(i) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, being an investigation or inquiry under a law of the Commonwealth or by a person in the person’s capacity as an officer of the Commonwealth;
(ii) a report on such an investigation or inquiry;
(iia) the making by a person of a decision under the Australian Federal Police Act 1979 in relation to the engagement of an AFP employee, the retirement of an AFP employee or the termination of the employment of an AFP employee or in relation to the appointment or the termination of the appointment of a special member of the Australian Federal Police;
(iib) a review (whether by way of appeal or otherwise) of such a decision;
(iii) the tendering to the Governor-General of advice to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth; or
(iv) deliberations of the Executive Council in connection with advice to the Governor-General to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth; ...’
22 On the face of those provisions, only para (a)(i) appears to be available to support a communication by the AFP to a DEA agent of lawfully intercepted information in relation to activities of the respondent in Australia. It may be that the communication by the DEA agent to the court in Athens of lawfully intercepted information was itself a contravention of s 63(1) of the TIA Act. We note, parenthetically, that the hearing or inquiry conducted in Athens was not a "proceeding" within the definition of that expression in s 5 of the TIA Act which confines it to a proceeding or proposed proceeding in a federal court or in a court of a State or Territory or before a tribunal or similar body in Australia. In any event, even if the DEA agent has contravened s 63(1), that cannot confer any rights on the respondent to compel disclosure to himself of the relevant information.
23 We are also unpersuaded that any communication which has occurred of lawfully intercepted information has brought that information into "the public domain" as that expression was used in Kizon v Palmer (No 1) 72 FCR 409. The evidence before the learned primary Judge discloses only that:
• the DEA agent had told the Athens Court he had received information from Australian authorities;
• the information allegedly concerned lawfully intercepted telephone conversations involving the respondent, including a conversation in which the respondent discussed the sale of illegal drugs; and
• the particular conversation had occurred at 11.00 pm ("Australian time") on 2 March 2006 when another person had telephoned the respondent by telephone and conducted a conversation in Greek.
24 That analysis of the evidence demonstrates that it was insufficient to support a finding that the information to which the respondent sought access was in "the public domain". The content of the information, if it exists and the evidence about it in Athens is accepted as true, has not been disclosed. Only a scant hearsay summary of the occurrence of a telephone conversation in which the participants allegedly discussed the sale of illegal drugs has been the subject of evidence in the Athens Court. The facts of the present matter are in marked contrast to those in Kizon v Palmer (No 1) 72 FCR 409.
25 In that case, the applicant challenged in this Court the validity of a "listening device" warrant issued under s 219B of the Customs Act 1901 (Cth) and of a "telephone intercept warrant" issued under the TIA Act. Both warrants had been issued on the application of the AFP. After the warrants had been executed, the applicant and another man were charged with conspiracy to possess a quantity of cannabis with intent to sell or supply it contrary to the provisions of the Misuse of Drugs Act 1981 (WA). The police brief delivered to the applicant contained copies of the two warrants and references to material obtained pursuant to them.
26 The questions reserved on a case stated for the consideration of the Full Court included whether s 63(2) of the TIA Act operated to prevent the applicant from relying, in the proceedings in this Court, on an "open" affidavit by Alan James Mills of the AFP which had been sworn in support of a claim of public interest immunity and served on the applicant. The agreed statement of facts recited that the Mills open affidavit had annexed to it an edited version of the five affidavits which had supported the warrant applications. One paragraph of one of the affidavits supplied to the applicant contained information which had been obtained by intercepting a communication. It was assumed that the Mills’ open affidavit and annexures contained "designated warrant information" (the equivalent of "interception warrant information" in s 63(1) in its present form).
27 It was against that background that Lindgren J adopted the purposive construction to avoid absurdity which is outlined in the extract reproduced at [10] above. His Honour continued, at 435, to observe;
‘In the present case, the designated warrant information is supposedly contained in the Mills open affidavit, its annexures or both. That affidavit and those annexures have been read by the applicant and were intended by the first respondent to be read by him. No purpose to which s 63 is directed would be served by construing the section as preventing the applicant from relying on the affidavit and its annexures. 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.’
28 In the present case, by contrast, the only presumed lawfully intercepted information or interception warrant information already known to the respondent is that set out in the statement of the DEA agent which is exhibit CN1 to the affidavit of Charles Nikakis sworn 13 September 2006. However, as disclosed by exhibit CN4 to the same affidavit, the respondent seeks that the AFP provide to him the following "information and documents";
‘(i) All documents howsoever described containing or referring to information supplied by Australian authorities to the American DEA, in particular, John Livanis, regarding Mr Samsonidis.
(ii) Records of telephone conversations alleged to be between Mr Samsonidis and others, specifically records concerning telephone conversations in or about March 2006.
(iii) Copies of those telephone calls.
(iv) Transcripts of those telephone calls.
(v) By what lawful authority such information was supplied to the DEA and/or John Livanis.’
29 That information, assuming it exists, ex hypothesi goes far beyond what has been indicated in the DEA agent’s statement so as to be already known to the respondent. In the second place, the respondent seeks access to the presumed lawfully intercepted information and interception warrant information, not for the purpose of its use in proceedings before an Australian court or tribunal, but to defend himself against the charges which are the subject of the proceedings in Greece. For these reasons, we have concluded that the information which the respondent seeks is not in the public domain in the sense in which that expression was used by Lindgren J in Kizon v Palmer (No 1) 72 FCR 409. Moreover, because of the factual differences which we have noted, the absurdity identified by his Honour in that case is not present here. This analysis makes it unnecessary to consider the further submission of the appellant that Kizon v Palmer (No 1) 72 FCR 409 was wrongly decided and should not be followed.
Conclusion
30 For the reasons which we have explained, the respondent is not entitled to a declaration that s 63 of the TIA Act does not prohibit the appellant from providing to the respondent lawfully intercepted information which has been published in the legal proceedings in Greece concerning the alleged telephone call of 2 March 2006. It follows, we consider, that the disclosure of the presumed information sought by the respondent is prohibited by a provision stipulated in Schedule 3 of the Freedom of Information Act 1982 (Cth) so that any document containing that information is exempt for the purposes of s 11 of that Act.
31 Each of the declarations made on 20 December 2006 should therefore be set aside. The learned primary Judge pointed out at [31] of the reasons below;
‘Mr Samsonidis raised an alternative argument based on s 67 of the TIA Act. Section 67 provides an exception to s 63 and allows the respondent to deal with "lawfully intercepted information" for "permitted purposes", which include a purpose connected with the investigation of a prescribed offence. Much argument was directed to the meaning of "connected with" in this context. Since Mr Samsonidis has succeeded on his s 63 argument, it is not necessary for me to consider this argument.’
32 Those considerations led his Honour to "otherwise dismiss" the
application before him. However, because Mr Samsonidis has
not maintained,
before this Full Court, his success on the s 63 argument, it will be
necessary to resolve the issue in relation to s 67. Since we have not had
the benefit of the extensive argument on that issue to which his Honour
referred, the matter must be remitted
to his Honour for resolution of that
issue. We would, accordingly, set aside, as well as the declarations, the
remaining paragraphs
of the order of 20 December 2006. As a result, the learned
primary Judge will be required to exercise afresh, in the light of the
reasons
of this Full Court, his discretion as to the costs at first instance including
the costs up to and including the order of
20 December 2006. The parties should
file and serve within 14 days written submissions as to the costs of the
appeal.
Associate:
Dated: 20
April 2007
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
|
|
BETWEEN:
|
THE COMMISSIONER, AUSTRALIAN FEDERAL
POLICE
Appellant |
|
AND:
|
DIMITRIOS SAMSONIDIS
Respondent |
|
JUDGES:
|
RYAN, MARSHALL AND JESSUP JJ
|
|
DATE:
|
20 APRIL 2007
|
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PLACE:
|
MELBOURNE
|
REASONS FOR JUDGMENT
JESSUP J
33 This is an appeal from declaratory orders made by the court on 20 December 2006 based upon reasons given on 24 November 2006. The proceeding before the trial Judge concerned the appellant’s obligations under the Telecommunications (Interception & Access) Act 1979 (Cth) ("the TIA Act") with respect to the transcript of a telephone conversation said by the respondent to have been intercepted and recorded pursuant to a warrant under Chapter 2 of the TIA Act. Although the appellant has not admitted that any such transcript exists, for reasons to which I shall refer below the respondent believes both that there was a conversation, that he was a party to it and that it was intercepted and transcribed by or with the authority of the appellant. He sought access to the transcript under the provisions of the Freedom of Information Act 1982 (Cth) ("the FOI Act"). If disclosure of the transcript – assuming it to exist – would be prohibited by s 63 of the TIA Act, the transcript would be an exempt document within the meaning of s 38 of the FOI Act and thus not required to be provided to the respondent. The appellant contended that he was prohibited from disclosing the transcript by the direct operation of s 63 of the TIA Act and correspondingly not required to provide access to it under the FOI Act.
34 According to the evidence before the trial Judge, the respondent is being held in a Greek prison while he awaits trial on drug dealing charges. On 28 June 2006, Mr John Livanis, an officer of the Drug Enforcement Agency of the United States of America, gave evidence before an examining magistrate in Athens. According to a document entitled "Report on the Sworn Examination of the Witness" which was before his Honour, Mr Livanis gave evidence in English, which was translated into Greek. The report which was in evidence before his Honour was, in turn, a certified translation into English of the Greek report of Mr Livanis’ evidence. According to that translation, Mr Livanis gave evidence of a telephone conversation between the respondent and another person on 2 March 2006 as a result of what was "the legal, according to Australian laws, tapping of [the respondent’s] phone". It is not however obvious that Mr Livanis himself either listened to, or had a verbatim transcript of, that conversation. The report of Mr Livanis’ evidence is not, and does not contain, such a transcript. One of the reasons for the respondent seeking access to that transcript is that he disputes the accuracy of the evidence of Mr Livanis.
35 The trial Judge decided the matter in favour of the respondent, and declared that –
‘Section 63 of the Telecommunications (Interception and Access Act) 1979 (Cth) (the TIA Act) does not prohibit the applicant from providing to the respondent "lawfully intercepted information’ (as that term is defined in section 6E of the TIA Act) that has been published in legal proceedings in Greece concerning the telephone call that occurred on 2 March 2006 and referred to at paragraphs 5 and 27 of the Reasons of Sundberg J in the proceedings (the Relevant Information).
Pursuant to s 11 of the Freedom of Information Act 1982 (Cth) the respondent is required to produce to the applicant any documents or parts of documents that contain the Relevant Information.’
36 The first declaration made by his Honour concerned the operation of s 63 of the TIA Act. That section is as follows:
‘(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
(b) give in evidence in a proceeding;
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.’
In the TIA Act, "lawfully intercepted information" is defined in s 6E as follows:
‘(1) Subject to subsection (2), a reference in this Act to lawfully intercepted information is a reference to information obtained (whether before or after the commencement of this section) by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system.
(2) A reference in this Act to lawfully intercepted information that was originally obtained by an agency, or by an eligible authority of a State, is a reference to:
(a) information obtained, whether before or after the commencement of this section, by intercepting a communication under a warrant issued to the agency or authority; or
(b) information communicated to the agency or authority in accordance with section 65A.’
The term "interception warrant information" is also defined, it being concerned not with information obtained as a result of intercepting a communication, but with information about the warrant itself and the identification of the communications service to which the warrant relates.
37 Section 7(1) is central to the scheme of the TIA Act. It provides as follows:
‘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 her or another person to intercept;
a communication passing over a telecommunications system.’
Many exceptions to the general prohibition in subs (1) are then set out. His Honour was not required to consider which, if any, of those exceptions applied to the assumed circumstances of the present case. The case proceeded before him, (and was argued on appeal) on the assumption that the information to which the respondent sought access was "lawfully intercepted information" for the purposes of s 63 of the TIA Act. Indeed, it may be that the legality of the interception pursuant to which the information sought by the respondent was putatively obtained had no bearing on the application of s 63, since that section applies both to "information obtained ... by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system" (s 6E) and to "information obtained by intercepting a communication in contravention of subsection 7(1)" (s 63(1) itself).
38 The operation of s 63 of the TIA Act is subject to the provisions of the part in which it is found, Part 2-6. There are many such provisions which permit conduct that would otherwise be in contravention of s 63. For the most part, those provisions are detailed and tightly worded. One of them is s 67, the relevance of which was also argued before his Honour, but which was not dealt with on appeal. Another is s 74, under which a person may give "lawfully intercepted information ... in evidence ... in an exempt proceeding". The term "exempt proceeding" is itself defined in a detailed and prescriptive way. By s 75A of the TIA Act, if information is given in an exempt proceeding pursuant to s 74, that information, or any part of that information, may later be given in evidence in any proceeding. I need not refer further to the exceptions to the operation of s 63 of the TIA Act, save to observe that they bespeak careful, detailed and comprehensive attention, both as a matter of policy and as a matter of drafting, to the situations in which the legislature would permit information to be communicated, used etc in a way that would otherwise be in contravention of that section.
39 Before the trial Judge, the respondent relied not upon any of the statutory exceptions to s 63 of the TIA Act, but upon the judgment of the Full Court in Kizon v Palmer (1997) 72 FCR 409. His Honour substantially upheld the respondent’s case in this respect. His Honour regarded Kizon v Palmer as authority for the proposition that s 63 should be given a purposive construction as required by s 15AA(1) of the Acts Interpretation Act 1901 (Cth). His Honour said:
‘The purposive approach means, at the least, that it cannot be the intention of the legislature that a person to whom ‘lawfully obtained information’ is published cannot use that information either to challenge the legality of its being obtained or to defend himself against any allegations made as a result of that information. In the latter case, such an interpretation would run contrary to the well-established principles of justice and fairness that require prosecutors to disclose materials to defendants: see R v Reardon [2004] NSWCCA 197 at [46]–[55] per Hodgson JA; R v Ulman-Naruniec [2003] SASC 437 at [136]–[146] per Sulan J. In circumstances where – as may be the case here – publication has not been to the world at large, s 63 of the TIA Act may still prohibit dealings that involve publication of ‘lawfully intercepted information’ to those not already aware of it. In this case, Mr Samsonidis has had published to him the purported fact that ‘lawfully intercepted information’ concerning him has been obtained. An interpretation that denies him access to that ‘lawfully obtained information’ would be absurd and, on the authority of Kizon v Palmer, such an interpretation must be rejected.’
40 Kizon v Palmer came before the Full Court on a case stated under s 25(6) of the Federal Court of Australia Act 1976 (Cth). There was a statement of agreed facts. According to that statement, Kizon had been charged with conspiring to possess a quantity of cannabis with intent to sell and/or supply. The police brief contained copies of warrants issued under the Customs Act 1901 (Cth) and under the TIA Act (then called the Telecommunications (Interception) Act 1979). Kizon commenced a proceeding challenging the issue of the warrants pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). The court made orders for discovery and inspection of documents. Palmer (the Commissioner of the Australian Federal Police) filed a list of documents in which he claimed public interest immunity for certain documents referred to in affidavits sworn by a Detective Superintendent. Kizon challenged the claim for public interest immunity. The court made orders requiring Palmer to file a more detailed affidavit supporting that claim. Pursuant to those orders, Palmer filed an affidavit sworn by an Assistant Commissioner, to which was annexed an edited version of certain documents for which the immunity was claimed and which, together with the Assistant Commissioner’s affidavit itself, contained information relating to the interception warrants and, in one respect, information which had been obtained by the interceptions. The Assistant Commissioner’s affidavit was "open", by which I understand that no claim for confidentiality was made in relation to it, or to its annexures, at the point of filing.
41 Of the questions referred to the Full Court under s 25(6) of the Federal Court Act in Kizon v Palmer, two are relevant for present purposes. The first is question 2(b) which inquired whether s 63(2) and s 67(b) of the TIA Act, (and another section not presently relevant) operated to prevent Kizon from "placing reliance ... upon" the Assistant Commissioner’s affidavit, and the exhibits thereto. At the time, s 63(2) dealt with what was called "designated warrant information". That is a reference to what the TIA Act now calls "interception warrant information", namely, information about the warrant itself.
42 In delivering a judgment with which Jenkinson and Keifel JJ concurred, Lindgren J held that the definition of "designated warrant information" (now "interception warrant information"), and the various provisions which invoked it, and the definition of "lawfully obtained information" (now "lawfully intercepted information") (and, presumably, also the provisions which invoked it) were to be read purposively. His Honour relied upon s 15AA(1) of the Acts Interpretation Act. His Honour said:
‘A purposive construction is necessary to avoid absurdity. It would be absurd that the prohibitions 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 Part 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.’
Since Kizon v Palmer, the TIA Act has been amended such that there is now a provision in Part 2-6 thereof which would permit the further (limited) divulging of interception warrant information, and, subject to a presently irrelevant exception, lawfully intercepted information, which has been publicly given in evidence in a prosecution – s 75A to which I have referred.
43 The second presently relevant question in Kizon v Palmer, question 5(b), inquired whether s 63(1) and s 67(a) of the TIA Act prevented Kizon from "placing reliance ... upon" the Assistant Commissioner’s affidavit and the exhibits thereto. Subsection (1) of s 63 related to information obtained as a result of intercepting the communication in question (as it still does). Lindgren J dealt with question 5(b), and with the point arising under s 63(1), briefly towards the end of his reasons as follows (72 FCR at 447):
‘The question should be answered "no" because the prohibition should be construed purposively for the reasons which I gave earlier in relation to question 2(b). Fairfax v Doe at 87E per Gleeson CJ and Green v R (1996) 135 ALR 181 at 185-6 per Franklyn J offer direct support for that approach to the construction of the prohibition in s 63(1).’
It is apparent that his Honour saw no relevant distinction between the way s 63(1) dealt with "lawfully obtained information" and the way s 63(2) dealt with "designated warrant information". As I have said, the TIA Act now provides, in s 75A, for some circumstances in which information of the kind to which s 63(1) refers may be divulged after having been given in evidence in a prosecution.
44 In point of fact, Kizon v Palmer is to be distinguished from the present case on at least two bases. First, the question there (relevantly to the present matter) was whether s 63 stood in the way of Kizon relying on an open affidavit which had been filed in the very proceeding on behalf of Palmer. I can understand that Lindgren J would consider that for s 63 to be so construed as to prevent a party to the instant proceeding from relying upon an open affidavit which had been filed and read in that proceeding would involve an absurdity. In the present case, by contrast, the appellant has taken no step to divulge the information in question in this proceeding. Secondly, Kizon sought only to rely upon information which he already had and which was, in terms, on the court file. In the present case, the respondent has a report of what (twice translated) was apparently said before the examining magistrate in Athens, but that is not the information to which he seeks access. Rather, he seeks access to information which he has not got and the existence of which the appellant has not admitted. And he does so for reasons which include his belief that Mr Livanis did not accurately transmit the context of the conversation which was putatively intercepted and recorded – a stated belief which amounts to an assertion that the information to which he seeks access is not the information which was produced before the examining magistrate.
45 In their written outline on behalf of the appellant, Mr Pagone QC and Ms Walker submitted that Kizon v Palmer was wrongly decided, and should be overruled. They adverted to that submission only fleetingly at the hearing of the appeal, preferring to support their attack upon the judgment below on the basis that Kizon v Palmer should be distinguished for reasons which included those referred to in the previous paragraph of these reasons. Mr Livermore, who appeared for the respondent, supported his Honour’s judgment on the basis that the present case was covered by Kizon v Palmer, and that that case was correctly decided. He submitted that here, as there, to construe s 63 as precluding the appellant from divulging the original transcript of the evidence that was given in court proceedings in Greece would be absurd, and could not have been intended by the legislature.
46 As is apparent from what I have said above, I agree with Mr Pagone that the facts of the present case are very different from those of Kizon v Palmer. However, particularly given the position taken by Mr Livermore, the question is whether they differ in a way which is relevant to the proposition for which that judgment stands. Mr Pagone eschewed any suggestion that Kizon v Palmer stands for the bare proposition that s 63 has no application to information that has come into "the public domain". He said that Lindgren J’s phrase was significantly limited to information that had come into the "public domain" by, for example, having been given in evidence publicly in a prosecution. In other words, according to Mr Pagone, Kizon v Palmer stands for the proposition that s 63 has no application to information that has come into the public domain by a method or means of which the giving of evidence publicly in a prosecution is an example. As so stated, the proposition is not obviously calculated to exclude from its scope the method or means by which the information in the present case came to the attention of the respondent. It may be true (it was not established either way) that the evidence of Mr Livanis was not given publicly, but the trial Judge considered that that was not a proper ground upon which to distinguish Kizon v Palmer. In proceeding that way, his Honour was recognising that Lindgren J’s reference to the giving of public evidence in a prosecution was by way of example only, and that the context in which Mr Livanis gave evidence in Athens came within the class of circumstances of which that example was a member.
47 If Lindgren J’s proposition involves something more limited than the information in question having been brought into the public domain by any means at all, I consider, with respect, that the additional defining element, expressed as it was by example only, would be bound to lead to further disputes in its practical application, as it has in the present case. Neither can his Honour’s proposition be considered to have been confined to circumstances where the information came into the public domain by having been divulged in public evidence in a prosecution, since Kizon v Palmer itself was not a prosecution. In the circumstances, I do not think that the proposition for which Kizon v Palmer stands, and which required it to be decided the way it was (its ratio decidendi), is to be found in Lindgren J’s statement about the public domain – with or without qualifier. I consider that the relevant proposition was that a purposive approach to the construction of s 63 was warranted where necessary to avoid an absurdity. I believe that the present appeal may be disposed of in a way which is consistent with that proposition.
48 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.
49 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.
50 I do not accept Mr Livermore’s submission that to allow s 63 to operate literally in the circumstances of the present case would produce an absurdity. The respondent has a report of what Mr Livanis said to the examining magistrate in Athens. I do not consider it at all absurd that, in those circumstances, he should be unable to obtain access to something different – the original transcript (if it exists) of the conversation upon which Mr Livanis’s evidence was based. With respect, I do not agree with his Honour’s view to the contrary. I do not accept that, on the limited materials before his Honour, the respondent should have been regarded as someone who was unable to defend himself against allegations made in Greece. Those materials show that the respondent’s Athens lawyer told his Melbourne solicitor that the Greek authorities had not provided the respondent with the original transcript which he now seeks. He has not applied for bail because his prospects of being granted bail depend substantially upon him being able to produce material to dispute Mr Livanis’s evidence. It seems, therefore, that the point has not yet been reached where Mr Livanis’s evidence is sought to be used in a hearing in which the respondent’s guilt or innocence is at stake. The proposition that the respondent will be unable to defend himself unless given access to the original transcripts – materials which, for all the evidence shows, the Greek prosecuting authorities themselves may not have – involves, in my respectful view, all manner of silent assumptions about the operation of the Greek criminal justice system and the extent to which, and the means by which, the well-established principles to which the trial Judge referred in the extract from his reasons which I have set out in par 39 above are given practical expression. With respect to the trial Judge, I do not consider that s 63 should be construed by reference to those assumptions.
51 In the context of facts such as those assumed to exist here, I do not consider it at all absurd to opine that the legislature probably did not regard s 63 as inapplicable to information which had been used against a person in a criminal proceeding in a foreign court. As propounded by the respondent, the exception (to the operation of s 63) on which he relies would be broader in scope even than that provided specifically by s 75A of the TIA Act itself. That section makes an exception in the case of information given in evidence in "an exempt proceeding", but then only for the purpose of the information being given in evidence in another proceeding. By contrast, the respondent submits that s 63 does not apply at all to the information that formed the basis of Mr Livanis’s evidence – ie not only for the purpose of later court evidence, but generally. That could not have been intended. It is sufficient, however, to say that the literal operation of s 63 could not in the circumstances be regarded as absurd.
52 We were referred to Wood v Beves (1997) 137 FLR 436. While the approach which I have taken here is consistent with that of Cole JA (with whom Studdert A-JA agreed) there, it is by reference to Kizon v Palmer that our own deliberations should proceed. I have attempted to elucidate the proposition for which Kizon v Palmer stands, and to express my reasons consistently with it. The trial Judge also referred to a number of judgments which propounded the wisdom of the purposive approach to statutory construction. I have not found it necessary to consider those judgments directly, since our obligation to take such an approach is mandated by s 15AA of the Acts Interpretation Act, about which there is no presently relevant controversy. The real question, as I have attempted to explain, lies in identifying the purpose of the relevant provisions of the TIA Act.
53 It follows that I would set aside the trial Judge’s declarations
and his costs order in favour of the respondent. According
to his
Honour’s reasons, the respondent had another basis upon which he sought to
contend that the prohibitions in s 63
of the TIA Act were inapplicable in
the circumstances – that the appellant was permitted, under s 67(1)
of the Act, to
communicate lawfully intercepted information for "a purpose
connected with ... an investigation ... of a prescribed offence". Because
of
the respondent’s success on the Kizon v Palmer point, his Honour
did not need to deal with the point arising under s 67. He "otherwise
dismissed" the respondent’s application.
In the absence of a
determination of the s 67 point, that order too should be set aside. We
were not addressed on the s 67
point, and are in no position to determine
it. It will have to be referred back to his Honour for hearing and
determination.
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I certify that the preceding twenty-one (21) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Jessup.
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Associate:
Dated: 20 April 2007
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Solicitor for the Appellant:
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Australian Government Solicitor
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Counsel for the Respondent:
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Mr G Livermore
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Solicitor for the Respondent:
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Haines & Polites
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Date of Hearing:
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Date of Judgment:
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/54.html