Campbell & Anor v Australian Crime Commission [2013] ADMINISTRATIVE LAW – Request for reasons under s.13 of the Administrative Decisions (Judicial Review) Act – exceptions to obligation to provide reasons

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Campbell & Anor v Australian Crime Commission [2013] FCCA 2085 (9 December 2013)

Last Updated: 11 December 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMPBELL & ANOR v AUSTRALIAN CRIME COMMISSION

[2013] FCCA 2085

Catchwords:
ADMINISTRATIVE LAW – Request for reasons under s.13 of the Administrative Decisions (Judicial Review) Act – exceptions to obligation to provide reasons.

PRACTICE & PROCEDURE – Security for costs – overseas-based applicants with no assets in Australia.

PRACTICE & PROCEDURE – Claim of public interest immunity – possible prior loss of confidentiality – request to cross-examine witness deposing to confidentiality of documents over which public interest immunity claimed.

PRACTICE & PROCEDURE – Claim of legal professional privilege – possible waiver.

Legislation:

Administrative Decisions (Judicial Review) Act 1977, s.13, sch.2
Australian Crime Commission Act 2002, s.28
Federal Circuit Court of Australia Act 1999, s.80
Federal Circuit Court Rules 2001, r.21.01
Foreign Judgments Act 1991
Evidence Act 1995 (Cth), ss.130, 131A
Evidence Act 1995 (NSW), s.131A

Cases Cited:
X7 v Australian Crime Commission [2013] HCA 29; (2013) 87 ALJR 858
Department of Foreign Affairs & Trade v Boswell [1992] FCA 321; (1992) 36 FCR 367
JJ v Board of the Australian Crime Commission [2011] FCAFC 73; (2011) 278 ALR 571
Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356
PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 65 ALJR 642
Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd (In liq) [2011] NSWCA 84
New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Police Federation of Australia v Nixon [2011] FCAFC 161; (2011) 198 FCR 267
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (WA) [2008] HCA 4; (2008) 234 CLR 532
Woodroffe v National Crime Authority (1999) 168 ALR 585
Young v Quin (1985) 4 FCR 483
Traljesic v Attorney-General (Cth) [2006] FCA 125; (2006) 150 FCR 199
Lanyon Pty Ltd v Commonwealth of Australia [1974] HCA 11; (1974) 129 CLR 650
Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604
Rilstone v BP Australia Pty Ltd [2007] FCA 1557

First Applicant:

PETER CAMPBELL

Second Applicant:

HENRY SMART

Respondent:

AUSTRALIAN CRIME COMMISSION

File Number:

SYG 1556 of 2013

Judgment of:

Judge Cameron

Hearing dates:

26 September & 24 October 2013

Date of Last Submission:

24 October 2013

Delivered at:

Sydney

Delivered on:

9 December 2013

REPRESENTATION

Solicitors for the Applicants:

Nyman Gibson Stewart

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) The applicants’ application in a case filed on 19 September 2013 be dismissed.
(2) The applicants provide security for the respondent’s costs of the proceedings in the sum of $29,701.00 in a form acceptable to the Registrar of the Court.
(3) The proceedings be stayed until such time as the security ordered in order 2 is provided.
(4) The applicants be refused leave to cross-examine the manager of the respondent’s NSW office.
(5) Further argument on the respondent’s objection to producing certain documents on subpoena on the grounds of public interest immunity stand over to a date to be fixed.
(6) The applicants be refused access to the documents contained in the confidential exhibit referred to in the affidavit of Philippa Jane de Veau.
(7) The confidential exhibit referred to in the affidavit of Philippa Jane de Veau remain in a sealed envelope which is not to be opened without further order of the Court.

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT SYDNEY

SYG 1556 of 2013

PETER CAMPBELL

First Applicant

HENRY SMART

Second Applicant

And

AUSTRALIAN CRIME COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

Earlier this year, pursuant to summonses issued under s.28 of the Australian Crime Commission Act 2002 (“ACC Act”), the applicants attended examinations conducted by the respondent (“ACC”). The applicants have alleged that those summonses were invalid by reason of various errors of law, including procedural deficiencies, and that decisions by the ACC to compel them to give evidence over objection were erroneous for similar reasons. They sought orders under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”):
1. quashing the decisions to issue the summonses;
2. declaring that the summons were invalid; and

directing the ACC to destroy [the records of] their examinations and anything they produced during the examinations, in particular testimony or things which related to involvement in foreign criminal activity unrelated to Australia.

These reasons concern:

an application in a case filed on 19 September 2013 by which the applicants sought to learn why the summonses which compelled their appearances before the ACC were issued;
an application in a case filed by the ACC seeking security for costs; and

claims of public interest privilege and legal professional privilege made by the ACC in respect of documents falling within the scope of subpoenas for production issued at the request of the applicants.

Applicants’ application in a case

The orders sought by the applicants in their application in a case were expressed as follows:
- Declaration that the First Applicant and Second Applicant is entitled to make the request for the production of the reasons for the issue of Summons No S0220/13 and S0221/13, pursuant to section 13(4A) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“Act”).
- That the Respondent shall provide the First Applicant and Second Applicant with the reasons for the issue of Summons No S0220/13 and S0221/13, pursuant to section 13(1) of the Act.
On 19 September 2013 the applicants’ solicitors wrote to the ACC’s solicitors noting that an ACC examiner who issues a summons pursuant to s.28 of the ACC Act must record in writing the reasons for doing so and requesting copies of those reasons pursuant to s.13 of the ADJR Act. The ACC’s solicitors replied the next day, stating that s.13 of the ADJR Act did not apply to the decisions in question and that the ACC had no obligation under s.13 to furnish a statement setting out the reasons for the examiner’s decisions to issue the summonses.
Initially, it appeared that the applicants believed that they were entitled to be provided with copies of the ACC examiner’s written records of his reasons for issuing the summonses. By the time the applicants’ interlocutory application was argued, the claim was not pressed in that form and, instead, the applicants sought statements of reasons pursuant to s.13 of the ADJR Act.
Section 13 of the ADJR Act relevantly provides:
- 13 Reasons for decision may be obtained
  - (1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
- ...
  - (3) Where a person to whom a request is made under subsection (1) is of the opinion that the person who made the request was not entitled to make the request, the firstmentioned person may, within 28 days after receiving the request:
    - (a) give to the secondmentioned person notice in writing of his or her opinion; or
    - (b) apply to the Federal Court or the Federal Circuit Court under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request.
- (4) Where a person gives a notice under subsection (3), or applies to the Federal Court or the Federal Circuit Court under subsection (4A), with respect to a request, the person is not required to comply with the request unless:
  - (a) the Federal Court or the Federal Circuit Court, on an application under subsection (4A), declares that the person who made the request was entitled to make the request; or
  - (b) the person who gave the notice under subsection (3) has applied to the Federal Court or the Federal Circuit Court under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request and the court refuses that application;
  - and, in either of those cases, the person who gave the notice shall prepare the statement to which the request relates and furnish it to the person who made the request within 28 days after the decision of the court.
(4A) The Federal Court or the Federal Circuit Court may, on the application of:
- (a) a person to whom a request is made under subsection (1); or
- (b) a person who has received a notice under subsection (3);
- make an order declaring that the person who made the request concerned was, or was not, entitled to make the request.
...
(11) In this section, decision to which this section applies means a decision that is a decision to which this Act applies, but does not include:
- ...
- (c) a decision included in any of the classes of decision set out in Schedule 2.
Schedule 2 of the ADJR Act relevantly provides:
- Schedule 2 - Classes of decisions that are not decisions to which section 13 applies
  - ...
  - (e) decisions relating to the administration of criminal justice, and, in particular:
    - (i) decisions in connection with the investigation, committal for trial or prosecution of persons for any offences against a law of the Commonwealth or of a Territory;
    - (ii) decisions in connection with the appointment of investigators or inspectors for the purposes of such investigations;
    - (iii) decisions in connection with the issue of warrants, including search warrants and seizure warrants, under a law of the Commonwealth or of a Territory;
    - (iv) decisions under a law of the Commonwealth or of a Territory requiring the production of documents, the giving of information or the summoning of persons as witnesses;
    - (v) decisions in connection with an appeal (including an application for a new trial or a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge) arising out of the prosecution of persons for any offences against a law of the Commonwealth or of a Territory;
    - ...
(ea) decisions under the Australian Crime Commission Act 2002 being:
- (i) decisions in connection with intelligence operations; or
- (ii) decisions in connection with investigations of State offences that have a federal aspect; ...
The applicants submitted that the matters referred to in para.(e) of sch.2 were to be construed by reference to the words which appear at the beginning of that paragraph, “the administration of criminal justice”, which, they argued, referred to Australia’s accusatorial system of criminal justice. They submitted that as the ACC formed no part of that system, its decisions were not excluded from the reach of s.13 of the ADJR Act. The applicants also pointed to para.(ea) of sch.2, arguing that the existence of a provision specific to the ACC indicated that para.(e) was not intended to apply to it.
In support of their submission that the ACC was not part of the system of the administration of criminal justice, the applicants referred to numerous provisions of the ACC Act which, they said, demonstrated that the ACC’s operations were distinct and different from the administration of criminal justice in Australia, citing in this regard X7 v Australian Crime Commission [2013] HCA 29; (2013) 87 ALJR 858. The applicants also submitted that as sch.2 of the ADJR Act represented a departure from the general policy of that Act, it ought not be construed broadly: Department of Foreign Affairs & Trade v Boswell [1992] FCA 321; (1992) 36 FCR 367 per Hill J at 377.
The applicants submitted that unless the ACC’s powers and functions were found to be part of Australia’s system of administration of criminal justice, they were entitled to be provided with the reasons for the issuing of the summonses.
The ACC submitted that as well as decisions made in connection with investigations, the administration of criminal justice includes decisions made under Commonwealth laws which require the production of documents, the giving information or the summonsing of witnesses. It submitted that the latter two categories covered its decisions to summons the applicants to appear before it.
The ACC relied on JJ v Board of the Australian Crime Commission [2011] FCAFC 73; (2011) 278 ALR 571 where the Full Court of the Federal Court said:
- In considering the adequacy of the examiner’s reasons, we must keep in mind the fact that the ACC Act does not require that reasons be given to the recipient of the summons. We infer that they are not prepared for any reason associated with the rules of procedural fairness, but rather as a mechanism for ensuring accountability in decision-making. See Barnes v Boulton (2004) 139 FCR 356; [2004] FCA 1219 at [25]–[29]. To the extent that a decision under s 28 is reviewable pursuant to the ADJR Act, s 13 of that Act (concerning reasons) does not apply. See Sch 2, item (e). We should add that item (ea) may not apply to a special investigation (as opposed to a special operation) save to the extent that it falls within item (ea)(ii). However that is irrelevant for present purposes as item (e) clearly applies. ... (at 583 [51])
The applicants submitted that that statement was not part of the ratio of the case and that I was free to disagree with it. The applicants made a similar submission in relation to Finn J’s statement in Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356 at 363 [29] that s.13 of the ADJR Act gives parties summonsed under s.28 of the ACC Act no right to be given the reasons for the issuing of their summonses. The applicants further submitted that the arguments they were advancing in these proceedings did not appear to have been argued in either JJ v ACC or Barnes v Boulton and so the Federal Court had not yet considered them. They said that therefore, and particularly as the Federal Court’s statements on the issues had been quite brief, those two judgments could not be regarded as authoritative.
Although I agree that the relevant statement in JJ v ACC did not form part of the ratio of that decision, this Court is not the forum to question, except on a pro forma basis, a statement made unanimously by the Full Court of the Federal Court citing an earlier statement of a single judge of the Federal Court to the same effect. In any event, with respect, I agree with their Honours. The applicants’ submissions focussed on the extraordinary nature and powers of the ACC as indicia that it was not part of the system of criminal justice. However, to be covered by para.(e) of sch.2 to the ADJR Act a decision need only be one “relating to” the administration of justice. ACC examinations which are part of enquiries whose purpose is to investigate crime and which may lead to its prosecution relate to the administration of criminal justice even if they are not part of it. I infer that the examinations of the applicants were of that nature.
The existence of para.(ea) of sch.2 to the ADJR Act does not affect that conclusion. The history of that provision discloses that it was introduced to address a particular issue concerning the reach of para.(e) and was based on an understanding that para.(e) applied to the ACC, albeit not in respect of the matters intended to be covered by para.(ea). The existence of para.(ea) does not indicate that para.(e) was not intended to, and does not, apply to the ACC.
For those reasons, I conclude that the decisions to summons the applicants to appear before the ACC fell within the exclusions to the operation of s.13 of the ADJR Act found in para.(e) of sch.2 to that Act. Consequently, the applicants have no entitlement under the ADJR Act to be provided with the reasons for the issuing of their summonses and their application in a case will be dismissed.

Respondent’s application in a case

Security for costs

In its application in a case filed on 25 September 2013, the ACC sought an order that the applicants provide security for its costs of the proceedings in the sum of $30,649.50. The ACC referred in this regard to the applicants’ own evidence in related Federal Court proceedings which, it was said, made it clear that the applicants were not ordinarily resident in Australia and that they had no assets in the jurisdiction against which a costs order made against them could be enforced.
In response, the applicants pointed to the nature of the ACC’s powers and to the fact that the ACC Act makes provision for the Attorney-General to provide financial support to persons who appear before the ACC or who seek judicial review of decisions made under the ACC Act. They submitted that, given the existence of such provision, it would not be appropriate to order security for the ACC’s costs. They further submitted that these proceedings raised important and novel matters touching on the public interest, such as whether the ACC’s actions on the occasions in question had been unlawful and whether those actions amounted to abuses of power.
The applicants conceded that they had not sought financial assistance from the Attorney-General.
The applicants’ solicitor-advocate indicated in argument that if an order for security for costs were made, he would need to obtain instructions on whether the applicants would wish to press on with the proceedings, submitting that such an order might have the effect of stifling the proceedings.
Section 80 of the Federal Circuit Court of Australia Act 1999 and r.21.01 of the Federal Circuit Court Rules 2001 set out the Court’s power to order security for costs and make it clear that the Court’s discretion in this area is unfettered. Of the various matters which may be considered relevant to an application of this sort, the ones which I consider material to this case are the applicants’ overseas residence, whether they have any assets in the jurisdiction to satisfy a possible order that they pay the costs of the proceedings and whether an order for security for costs might stifle the proceedings.
There is no issue that the applicants are not resident in Australia and no evidence was adduced to suggest that they had any assets here. Indeed, affidavits they have sworn indicated quite the contrary. In PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 65 ALJR 642 McHugh J held at 643 [7] that the fact that a party bringing proceedings resides out of the jurisdiction and has no assets within the jurisdiction is a circumstance of great weight in determining whether an order for security for costs should be made and that the practice has been to make such an order unless the applicant can point to circumstances which overcome the weight of the fact that he or she is overseas and without assets here.
The applicants submitted that the ACC knew where they lived, had information about their bank accounts and their means generally and could enforce any costs orders under the Foreign Judgments Act 1991. However, they did not identify to the Court the countries in which they lived or demonstrate that those countries would recognise the Court’s orders. In such circumstances the issues must be considered without reference to the Foreign Judgments Act. In this regard the reasons of the NSW Court of Appeal in Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd (In liq) [2011] NSWCA 84 at [38]- [39] are of particular relevance:
- ... The reason for giving the court power to make orders for security for costs is to make sure, as much as can be done, that an Australian citizen is not prejudiced because he or she is being sued by an overseas individual and there might be barriers put in the way of collecting the successful order for costs.
- If one gets to the situation where one has to debate whether or not there are barriers and how significant the barriers are, it seems to me the court does not decide that, but just says that the plaintiff is entitled, having been sued by a foreign person, to have some certainty that he or she will collect their costs. ...
The applicants did not go so far as to say that they would have to abandon the proceedings if security for costs were ordered and the inference I draw from the applicants’ submissions concerning the Foreign Judgments Act is that they do have assets which could satisfy a costs order, albeit not ones that are in Australia. I therefore infer that an order for security of costs would not be so financially onerous that it would necessitate the applicants’ abandonment of the proceedings.
Having regard to all these matters I conclude that the applicants should provide security for the ACC’s costs of these proceedings.
As to the quantum of the security to be provided, the ACC relied on the affidavit of Kristy Lee Alexander sworn on 25 September 2013 which annexed a schedule of estimated costs based on the Court’s scale costs. In my view that schedule set out a reasonable and appropriate estimation of costs, subject to one qualification. That qualification is that I do not consider it appropriate to allow an advocacy loading for appearances at directions hearings or for appearances to take judgments. Exclusion of those loadings produces a total amount of $29,701.00 which will be the amount in respect of which the applicants will be ordered to provide security.
The ACC also sought an order dismissing the proceedings if the security were not to be provided within fourteen days of it being ordered. That prayer was not canvassed at the hearing of the relevant application and would not be appropriate to grant unless there were persuasive arguments in its favour. As such arguments were not advanced, I consider it more appropriate to order that the proceedings be stayed until security is provided. If it is not provided within a reasonable time then the ACC can take such further steps as it may be advised.

Subpoenas for production

As noted earlier, the applicants served two subpoenas for production. The first required production of:
1. a copy of all reasons for the issue of Summons No S0220/13 as recorded in writing under s.28(1) of the ACC Act at 2:56pm on 4 July 2013; and
2. a copy of all reasons for the issue of Summons No S0221/13 as recorded in writing under s.28(1) of the ACC Act at 3:44pm on 4 July 2013.

and the second required production of:

a copy of all legal submissions in respect of Peter Campbell dated 4 July 2013 as referred to in the ‘Materials Considered’ in the Reasons for the Issue of a Summons; and
a copy of all legal submissions in respect of Henry Smart dated 4 July 2013 as referred to in the ‘Materials Considered’ in the Reasons for the Issue of a Summons.

The ACC identified four documents (“Subject Documents”) as falling within the terms of the subpoenas, namely:
1. ‘Application for the issue of a summons’ in relation to Mr Peter Campbell dated 4 July 2013, comprising ‘Part A: Statement of Facts and Circumstances’ and ‘Part B: Legal Submissions’;
2. ‘Application for the issue of a summons’ in relation to Mr Henry Smart dated 4 July 2013, comprising ‘Part A: Statement of Facts and Circumstances’ and ‘Part B: Legal Submissions’;

‘Reasons for the issue of a summons’ to Mr Peter Campbell dated 4 July 2013; and

‘Reasons for the issue of a summons’ to Mr Henry Smart dated 4 July 2013.

The ACC filed a Notice of Objection in relation to the first subpoena, asserting that it was a fishing expedition which had no legitimate forensic purpose. It subsequently submitted that the Subject Documents were protected from production by public interest immunity. A claim of legal professional privilege was made in respect of the documents entitled “Part B: Legal Submissions” (“LPP documents”).

On the question of public interest immunity, the ACC relied on an open but circumspect affidavit sworn by the manager of its NSW office, Mr Gray, to which were annexed heavily redacted versions of the Subject Documents. The applicants sought to cross-examine Mr Gray on his affidavit and the ACC opposed that course. Mr Gray had also prepared a confidential affidavit which he said set out in greater detail, and by un-redacted annexures, the information over which public interest immunity was claimed, being the redacted portions of the Subject Documents which were not subject to the legal professional privilege claim (“PII information”), and the ACC’s reasons for asserting that public interest immunity attached to it. That affidavit has not yet been handed up. A question also arose concerning whether it would be necessary for the Court to read Mr Gray’s confidential affidavit in order to decide the public interest immunity question.

The applicants submitted that when determining the ACC’s claim of public interest immunity, it was appropriate for the Court to have regard to both the common law and s.130 of Evidence Act 1995 (Cth) (“Evidence Act”), which provides for the exclusion of evidence of matters of state. They referred in this regard to New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60. However, in that case the NSW Court of Appeal applied the Evidence Act 1995 (NSW) whose s.131A is different from the Evidence Act’s s.131A. Relevantly, the NSW provision applies the statutory provisions concerning public interest immunity and legal professional privilege to documents produced in answer to subpoenas for production. Section 131A of the Evidence Act does not. Consequently, in this case the questions of public interest immunity and legal professional privilege will be determined by reference to the common law and not the Evidence Act.

Public interest immunity

The general rule is that the Court will not order the production of a document, although relevant and otherwise admissible, if its disclosure would be injurious to the public interest: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38. In Police Federation of Australia v Nixon [2011] FCAFC 161; (2011) 198 FCR 267 the Full Court of the Federal Court described the steps a court should take when deciding a claim for public interest immunity:

... When a claim of public interest immunity is made, the Court must embark upon a three stage process. It must:

1. determine whether there is a public interest in the disclosure of the information in question;
2. determine whether there is a public interest in the non-disclosure of the information in question; and
3. if there are public interests both for and against disclosure, balance the public interest in disclosure against the public interest in non-disclosure, in order to decide whether or not the information should be disclosed. (at 287 [81])

In Sankey v Whitlam, Stephen J described the two competing interests in the following way:
- ... Because disclosure to the world at large of some information concerning sensitive areas of government and administration may prejudice the national interest there exists a public interest in preventing the curial process from being made the means of any such disclosure. At the same time the proper administration of justice, of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in our courts. (at 48-49).
Which public interest will predominate in a particular case must be determined by reference to the circumstances of that case: Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 676, and it may be that the result of the balancing exercise will be that an applicant will be denied access to information with the consequence that his or her proceedings may fail: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (WA) [2008] HCA 4; (2008) 234 CLR 532.

Evidence

Mr Gray deposed to having had twenty-seven years’ experience in law enforcement, mainly in the Australian Federal Police, and set out in some detail the ACC’s role in the investigation of “serious and organised crime” as well as some information concerning the special investigation of which the applicants’ examinations were a part. He said that between January 2012 and July 2013 he had chaired a management group which oversaw that investigation and that he had detailed knowledge of it and of the sensitivities associated with it.
Mr Gray deposed that disclosure of the PII information would prejudice an ongoing investigation by revealing some of the ACC’s information and intelligence holdings in considerable detail. He also said that the PII information had been provided to the ACC in confidence (or was information directly derived from such information) and that its disclosure would cause grave prejudice to the ACC’s ability to access information critical to its future ability to investigate serious and organised crime as well as to the discharge of its statutory obligations more generally. He deposed that disclosure of the PII information would be extremely damaging to the public interest.

Confidentiality lost?

The applicants submitted that confidentiality in the PII information had been lost because it had been disclosed to them in the course of their examinations and that in order for the Court to decide whether that was so, it had to have before it the transcripts of the examinations as well as the other information which was referred to during the examinations. The applicants noted in this regard that a confidentiality order made by the ACC examiner specifically permitted the evidence taken at the examinations to be disclosed to the Court and to the parties’ legal representatives.
It can be inferred from the applicants’ oral submissions that the confidentiality order prevented disclosure of the PII information to anyone other than the Court and the parties’ legal representatives and thus that the applicants, to the extent that they could remember it, were prohibited from disclosing that information to anyone other than the Court and their lawyers and that their lawyers could disclose it only to the Court. The applicants did not suggest that any PII information disclosed at their examinations had been or would be published more widely than the confidentiality order permitted, their submission being that it was publication of that information to them which rendered the public interest immunity claim untenable.
The applicants’ proposition was not supported by reference to authority and is contrary to authority, the relevant principle being discussed in Sankey v Whitlam. In that case Gibbs ACJ said:
- ... once the document has been published to the world there no longer exists any reason to deny to the court access to that document, if it provides evidence that is relevant and otherwise admissible. (at 45)

Stephen J said:

The public interest in non-disclosure will be much reduced in weight if the document or information in question has already been published to the world at large. There is much authority to this effect, going back at least as far as Robinson v State of South Australia (No 2) [1931] AC 704, per Lord Blanesburgh at 718. ... The reason of the thing necessarily tends to deny privilege to information which is already public knowledge. As Lord Blanesburgh observed, at 718, “the privilege, the reason for it being what it is, can hardly be asserted in relation to documents the contents of which have already been published”. In Whitehall v Whitehall [1957] SC 30 the Lord President (Clyde) in referring to a document already the subject of some quite limited prior publicity observed, at 38, that “the necessity for secrecy, which is the primary purpose of the certificate, then no longer operates ...”. (at 64)

Mason J put it as follows:

If it were established that a document the subject of a claim to Crown privilege had been widely published in the community it would be difficult to sustain the claim to privilege. The damage, if any, consequent upon disclosure would have occurred and the additional use of the document in court proceedings would make little, if any, difference. (at 101)

It can therefore be seen that something more than an act which would amount to a waiver of legal professional or client legal privilege is needed before the Court will find that the confidentiality of a document has been lost. In this case, there is no reason to believe that the applicants, their solicitors or counsel have failed to observe the non-disclosure order or that the PII information has been published outside the ACC and its examinations contrary to that order. I therefore conclude that such disclosure of the PII information as may have occurred at the applicants’ examinations did not destroy the ACC’s claim of public interest immunity over those documents. As the question has been decided on that basis, it has not been necessary to consult any material from the examinations.

Cross-examination of Mr Gray

The applicants indicated that they wished to cross-examine Mr Gray on a number of matters, although they also indicated that they did not seek to elicit any information which would reveal, or have a tendency to reveal, the PII information. The applicants foreshadowed that any cross-examination would seek to canvass:
- (a) the suitability of a confidentiality regime to restrict the information to the applicant’s solicitor;
- (b) the deponent’s actual knowledge of the circumstances of the applicants, including of their examination; and
- (c) the deponent’s knowledge of any evidence which would suggest that the claims made by the deponent would not apply to the specific circumstances of the applicants.
The applicants submitted that cross-examination could assist the Court to determine the legitimacy of the claim for public interest immunity and would give them procedural fairness. It was also noted that the Court could close the court and make a suppression order in respect of evidence given in cross-examination.
While there is no doubt that the Court could allow cross-examination of Mr Gray at this interlocutory stage, I am not persuaded that such leave should be granted. Overall, it is difficult to see how the proposed cross-examination could be of any value unless it strayed into areas covered by the confidential affidavit or, to put it another way, it appears unlikely that it would be of any relevance unless it did. The Court should be very cautious about permitting such cross-examination even if conducted in camera and a suppression order made: Woodroffe v National Crime Authority (1999) 168 ALR 585 at 589 [13], Young v Quin (1985) 4 FCR 483 at 487 and 489; Traljesic v Attorney-General (Cth) [2006] FCA 125; (2006) 150 FCR 199 at 209-211 [22]– [25]. The risk which the proposed cross-examination presents is that hitherto confidential information would be exposed and potentially, even if inadvertently or unintentionally, made more widely known. As Rares J said in Traljesic v Attorney-General at 209 [22], [23]:
- The problem with secrets is that the revelation of the secret to one person can have the unintended consequence that a cat gets out of the bag. ...
- Once that occurs ... the damage is done and cannot be undone. In circumstances where the security of the nation has been confided by statute to a Minister of the Crown who forms a view that there is a risk to security by a revelation of information, I do not consider that it is an irrelevant consideration for the Minister to have regard to an assessment of risk, even of remote risk, in circumstances where the person who is applying, as in this case, to have information revealed to him or her could be put into the position where, inadvertently and through no design of his or her own, he or she will unconsciously reveal something of importance which may be of no meaning to him or her. In Jackson v Wells [1985] FCA 100; (1985) 5 FCR 296 at 307-308 Wilcox J said this:
  - "Thirdly, Mr Roberts suggested that, if I were not disposed to grant access to the subject material to the parties, I should at least grant access to the legal representatives of the parties. I gave this submission anxious consideration. It was a course apparently considered by the High Court in Alister [v The Queen (1984) 154 CLR 404], although ultimately not adopted. As I have indicated, I would have welcomed the assistance of counsel upon the content of the documents. The applicants would, no doubt, have felt more satisfied that the documents were rigorously examined by the court if their counsel had been given the opportunity to take the court through the documents. But, in the end, I rejected the proposal. It involves a number of problems. Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely commonsense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure. Weighing the assistance likely to be obtained from counsels submissions against the sensitivity of the material, it seemed better not to accede to Mr Roberts' suggestion."
Similar considerations apply in this case.
Further, the foreshadowed cross-examination topics are not ones which would justify a grant of leave to cross-examine. The first topic was one on which Mr Gray’s opinion was not relevant or admissible. To the extent that the second was concerned with the degree to which the PII information had been disclosed to the applicants at their examinations, for the reasons already given, no purpose would be served by questions on that subject. Further, the relevance to the ACC’s claim of public interest immunity of Mr Gray’s knowledge “of the circumstances of the applicants” is not immediately apparent and was not identified.
Cross-examination on the third topic would seek to adduce evidence to show that Mr Gray’s opinion that the public interest required that the PII information’s confidentiality be maintained was erroneous or should not be accepted by the Court as authoritative. However, any such cross-examination would be pointless unless undertaken by reference to the PII information. That is to say, information which is in Mr Gray’s confidential affidavit and thus not presently before the Court would need to be disclosed for the cross-examination to have any value. Given, for reasons which follow, I do not propose at this point to read the confidential affidavit, cross-examination on information which it contains should not be permitted. In any event, the applicants did not seek to cast doubt on Mr Gray’s evidence concerning his experience and expertise, which were the bases for the ACC’s claim that the Court should accept his opinion concerning the public interest in maintaining the confidentiality of the PII information. That being so, the Court should give considerable weight to his opinion that disclosure of the PII information would be contrary to the public interest. Weighing that evidence against the assistance likely to be obtained from the applicants’ submissions, I conclude that cross-examination on the third proposed topic should not be allowed.
For all these reasons, leave to cross-examine Mr Gray will be refused.

Confidential affidavit

Although the Court may privately inspect a document over which public interest immunity is asserted, it is not necessarily essential or appropriate that that occur, such circumstances usually being limited to determining whether a document falls within a protected class or to confirm a provisional view that, on balance, the document should be produced: Lanyon Pty Ltd v Commonwealth of Australia [1974] HCA 11; (1974) 129 CLR 650 at 653; Sankey v Whitlam at 46; Young v Quin at 484; Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 617, 619.
At this point, although they have filed written submissions, the parties have not fully argued the public interest immunity issue. In those circumstances it is too early to rule on whether I need to read the confidential affidavit.

Further conduct

The public interest immunity argument will be listed for further argument on a date to be fixed, which listing will be subject to the applicants providing security for costs.

Legal professional privilege

Preliminary point

The applicants submitted that the ACC may have waived privilege over the LPP documents and that the transcripts and other material from their examinations would be relevant to determining that issue. As the parties making that submission, it was for the applicants to identify information which had been disclosed such that it had lost whatever privileged quality it might have had. They have not done so. In this regard I note that the parties agreed that the applicants’ solicitors had been invited by the ACC, but declined, to listen to the audio recordings of the examinations in order to identify matters which could be relied on in an argument such as the present. I make no criticism of that decision, merely noting it lest it be thought that the applicants had been in no position to substantiate the claim of waiver.
Consequently, I find that it has not been demonstrated that any legal professional privilege attaching to the LPP documents has been waived by disclosure at the applicants’ ACC examinations of the matters over which that claim has been made.

Evidence

In an affidavit sworn 16 October 2013, the National Manager of the ACC’s Legal Services Branch (“LSB”), Ms de Veau, deposed that the LSB operated as a separate and independent unit within the ACC, that the LSB’s lawyers reported to her directly or through a hierarchy of other legal officers, that almost all of the LSB’s lawyers had practising certificates, that none were part of an ACC investigation or intelligence operation team and that in the provision of legal advice none were subject to direction by a non-lawyer.
Ms de Veau deposed to the process by which an ACC examination was established, relevantly stating that legal submissions such as the LPP documents were part of a larger document known as an “Application for the Issue of a Summons” and that those legal submissions went through a number of possible iterations, each of which, at least beyond the first draft, was drawn, amended or settled by an LSB lawyer, with the final version being signed by an LSB lawyer. She said that those legal submissions provide ACC examiners with legal advice to assist them when considering whether or not to issue a summons.
Ms de Veau also deposed that the creation of the LPP documents followed the procedure she had described and that they had been created for the sole purpose of providing legal advice to the ACC examiner concerning the issuing of the applicants’ summonses.
In cross-examination Ms de Veau said that the information in her affidavit concerning the LPP documents had been provided to her by others and that she did not have personal knowledge of those matters. She also said that although she had deposed in her affidavit that the first draft of the LPP documents had been prepared by an investigator rather than by an LSB lawyer, in fact the first drafts had been prepared by an LSB lawyer whom she identified. Ms de Veau also explained that all the other drafting work on the LPP documents had been performed by LSB lawyers.
Ms de Veau agreed that the lawyer who had signed the LPP documents had also acted as counsel assisting the examiner at the applicants’ examinations and that he had been organised to act in that role before he signed the LPP documents. She said that before an examination is conducted, the ACC first determines whether there are staff and other resources available to conduct the examination and that before a decision to proceed with an examination is made the necessary resources are earmarked to it. She said that the early allocation of staff and resources was designed to ensure that, if a particular examination went ahead, there would be resources available to support it. Ms de Veau rejected the suggestion that a decision to proceed with the examination had been made before the examiner decided to issue the applicants’ summonses.
The LPP documents were referred to in Ms de Veau’s affidavit as a confidential exhibit and were provided to the Court in a sealed envelope.

LPP documents not privileged?

The applicants argued in their written submissions that the LPP documents were not privileged because their first drafts had been prepared by an investigator rather than by a lawyer. However, since the oral evidence of Ms de Veau, which I accept, contradicted that submission, I find that it is not made out.
The applicants also argued that the process by which the LPP documents were brought into existence lacked a clear division between the role and input of investigators and the role and input of the lawyers involved. However, as this submission was also based on an understanding that the first drafts of the LPP documents had been prepared by an investigator, rather than by a lawyer which I accept to have been the case, it too is not made out.
It was further submitted by the applicants that because the lawyer who settled and signed the LPP documents had also acted as counsel assisting at their examinations, he was not independent of the ACC’s investigative operations and had thus not been capable of providing independent legal advice in respect of their summonses.
That submission was based on two premises. The first was that the lawyer in question had had a personal interest in being counsel assisting and so had had a conflict of interest and duty when providing legal advice on the proposed summonses. However, Ms de Veau said that ACC lawyers are paid their designated salaries regardless of the particular work they perform. In Ms de Veau’s cross-examination it was suggested that some benefit might be thought to have flowed to the lawyer in question, through his involvement in examinations as counsel assisting, and that the independence of his advice was compromised as a consequence. That was a far-fetched proposition and I am not persuaded that any such considerations affected the independence of the advice tendered in the LPP documents.
The second premise of the submission was that the lawyer who settled and signed the LPP documents and who later acted as counsel assisting the examiner had confronted a conflict of duties, one being to provide legal advice on the summonses and the other being to assist in the examinations’ investigative function. The flaw in that argument was that the advice in the LPP documents was given before the examiner decided to issue the summonses and therefore before the lawyer in question had any duties as counsel assisting. Because one duty was performed before the other came into existence, no conflict of duties arose.
The applicants also submitted that because the lawyer who settled and signed the LPP documents was part of a hierarchy which ultimately reported to the chief executive officer of the ACC, he lacked the independence necessary to clothe the advice he tendered in the LPP documents with legal professional privilege. In light of Ms de Veau’s evidence concerning the structure of the LSB, I am satisfied that the LSB, and thus also the lawyer who settled and signed the LPP documents, was sufficiently separate from the investigative operations of the ACC to be considered an independent source of advice, absent any circumstances of a particular case indicating the contrary.
A further submission was to the effect that the LPP documents had not been created for the dominant purpose of providing legal advice but to further the ACC's investigations. In this regard the applicants referred to Rilstone v BP Australia Pty Ltd [2007] FCA 1557. That case is distinguishable from this one because it concerned documents which, although created following a request for legal advice, had an investigative purpose as well as a legal advice purpose. The documents in question were records of interview and, on the evidence, Besanko J was unable to find that the obtaining of legal advice had been the dominant purpose behind their creation. In this case, however, I find that the LPP documents were not created for an investigative purpose such as the one considered in Rilstone but as part a process by which the ACC determined whether a particular, potential step in an investigation would be taken, specifically, for the purpose of providing legal advice relevant to the decision whether to issue summonses addressed to the applicants. Moreover, I have inspected the LPP documents and am satisfied that they are properly characterised as legal advice.
Finally, the applicants submitted that because the examiner’s reasons for issuing the summonses made specific reference to the LPP documents, any legal professional privilege attaching to them had been impliedly waived. However, a reference to a document which does not disclose anything about its substance does not amount to a waiver of any legal professional privilege attaching to that document. That was the case here.
For these reasons I conclude that legal professional privilege does apply to the LPP documents and so the applicants will be refused access to them. The confidentiality of those documents is to be preserved by retaining them, pending further order of the Court dealing with them, in the sealed envelope in which they were provided to the Court.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date: 9 December 2013

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COMMONWEALTH OMBUDSMAN MISCONDUCT

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CHAPTER 2The organisation

Role and functions

Saturday 11 January 2014

Federal Circuit Court of Australia

Campbell & Anor v Australian Crime Commission [2013] FCCA 2085 (9 December 2013)