Act Integrity Commission v Levy (a pseudonym)
[2022] ACTSC 240
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT Integrity Commission v Levy (a pseudonym) |
Citation: | [2022] ACTSC 240 |
Hearing Date: | 31 August 2022 |
DecisionDate: | 5 September 2022 |
Before: | McCallum CJ |
Decision: | Stand the matter over to 9am on Wednesday 14 September 2022 before McCallum CJ. |
Catchwords: | INTEGRITY COMMISSION — EXAMINATION POWER — Summons to produce mobile phone — Claim of client legal privilege — Whether mobile phone is indivisible item — Whether statute poses binary choice requiring phone either to be returned to its owner or to handed over to Integrity Commission notwithstanding claim or privilege |
Legislation Cited: | Independent Commission Against Corruption Act 1988 (NSW) Legislation Act 2001 (ACT), ss 6, 171 Integrity Commission Act 2018 (ACT), Pt 3.6, Div 3.6.2, ss 6, 19, 148, 150, 152, 161, 162, 163 |
Cases Cited: | Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501 HJ (a pseudonym) v IBAC [2021] VSCA 200 |
Texts Cited: | Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Law Book Co of Australasia) Ruling on section 37(5) of the Independent Commission Against Corruption Act (1988) in relation to the production of a mobile phone by a witness (Ruling of the NSW Independent Commission Against Corruption (Hon Peter Hall QC, Chief Commissioner), 14 October 2019) |
Parties: | ACT Integrity Commission ( Applicant) Catherine Levy (a pseudonym) ( Interested Party) |
Representation: | Counsel S Robertson ( Applicant) I King ( Interested Party) |
| Solicitors ACT Integrity Commission ( Applicant) Mills Oakley ( Interested Party) | |
File Number: | SC 300 of 2022 |
McCALLUM CJ:
These proceedings raise an important question as to the power of the ACT Integrity Commission to deal with privileged documents during an investigation.
The Integrity Commission is established by s 19 of the Integrity Commission Act 2018 (ACT). Its objects are set out in s 6 as follows:
6 Objects of Act
The objects of this Act include—
(a) providing for the identification, investigation and exposure of corrupt conduct; and
(b) providing for the commission to prioritise the investigation and exposure of serious corrupt conduct and systemic corrupt conduct; and
(c) achieving a balance between the public interest in exposing corruption in public administration and the public interest in avoiding undue prejudice to a person’s reputation; and
(d) assisting in the prevention of corrupt conduct; and
(e) cooperating with other integrity bodies; and
(f) educating public officials and the community about the detrimental effects of corrupt conduct on public administration and the community and the ways in which corrupt conduct can be prevented; and
(g) assisting in improving the capacity of the public sector to prevent corrupt conduct.
In aid of those objects, the Commission has extensive powers. Part 3.6 of the Act confers on it, in particular, examination powers which expressly abrogate some, but not all, privileges that might be enjoyed by a person the subject of the examination.
The Commission in exercise of those powers required the interested party, who is referred to in these proceedings by a pseudonym, to produce two telephone handsets. That requirement was made during an examination in response to a summons to attend to give evidence. As I understand the evidence before me the interested party was presented during the examination with a further summons to produce a document or other thing, as contemplated by s 147 of the Act.
I pause to make two observations. The summons to produce the first handset produced by the interested party was presented to her and expressed to be returnable immediately. The interested party raised a question in written submissions as to whether the Commission has power to make a summons to produce a document or thing returnable immediately. It is not necessary for present purposes to determine that question but the submission that the Commission has no such power is, in my view, contestable. If one looks at s 148 of the Act, an examination summons must require a person to attend at a stated time and place and either give evidence or produce a document or other thing. Section 150 then provides that ordinarily such a summons will be served at least 7 days before the day the person is required to attend but that the Commission may issue an examination summons requiring immediate attendance in certain circumstances. Section 150 does not distinguish between examination summonses to give evidence and examination summonses to produce a document or other thing. As already noted s 148 contemplates that either outcome will be achieved by the service of an examination summons. It follows that I do not share the interested party's doubt as to the power to serve the summons returnable immediately or requiring immediate attendance or compliance in accordance with s 152.
The second preliminary observation is that, that said, the basis for the requirement for the interested party to produce their whole handset without any specification of the documents or other information contained on the handset properly sought by the Commission in pursuance of its investigation is unclear.
The examination summons requiring the production of an entire telephone may be contrasted with the summons considered by Mr Hall, former Hall J, in a ruling, a copy of which was provided in support of the present application by the Integrity Commission, referred to as “Ruling on section 37(5) of the Independent Commission Against Corruption Act (1988) in relation to the production of a mobile phone by a witness”. In that case, what was sought was the production of the phone for the purpose of forensic examination in relation to a specific communication. No communications or specific categories of documents were specified here.
In any event, returning to the circumstances giving rise to the matter before the Court, shortly after production of the first handset the interested party claimed that that it contained privileged communications between her and her lawyer. Although the claim was not made at the time the first handset was handed over, the Commission properly, in my respectful opinion, accepted that a claim had properly been raised. A second handset was produced at a later point and was also the subject of a claim for privilege, namely client legal privilege or litigation privilege.
Section 161 of the Act requires in that circumstance that where a claim is made in respect of a document or other thing produced to the Commission, the Commission must consider the claim and either withdraw the requirement for production or refuse to withdraw the requirement. In the latter event, the Commission is required to secure the document or other thing and give it to the proper officer of the Supreme Court to be held in safe custody. That has occurred in the present case and the Registrar presently holds two sealed bags containing two telephone handsets.
The Commission is then required within seven days to apply to the Supreme Court for determination of “the claim”. That is plainly a reference to the claim for privilege by the person producing the document or other thing. The Commission has made such application here and I heard the application last Wednesday.
Section 163 specifies the powers of the Court in relation to an application. Where the application concerns a document or other thing, it relevantly provides:
163 Examination—Supreme Court to decide privilege
…
(3) If the Supreme Court receives an application under section 162 in relation to a document or other thing, the court must determine whether the document or other thing is the subject of privilege.
(4) To make the determination, the judge constituting the court and any other person authorised by the court may open and inspect the secured document or other thing.
(5) If the court determines that the document or other thing—
(a) is the subject of privilege—the court must order that the document or other thing be returned to the claimant; or
(b) is not the subject of privilege—the court must order that the document or other thing be given to the commission.
That section plainly contemplates that it should be the Court, and not the Commission, that determines the claim for privilege. However, the Commission contended that that is not possible or appropriate in the present case.
The Commission accepted that the interested party has made a bona fide claim for privilege in respect of at least part of the contents of the handsets. However, the Commission submitted that the key question is that posed by s 163(3); whether the handsets are the subject of privilege.
The Commission submitted that that question is to be answered by considering whether the interested party has a privilege against being required to produce the handsets to a court or tribunal on the ground of client legal privilege. The Commission submitted that production of a physical thing such as a mobile telephone handset to a court or tribunal does not result in the disclosure of a communication, a document or its contents, or other information mentioned in Div 3.10.1 of the Evidence Act 2011 (ACT), and so cannot be the subject of a claim for privilege.
It follows, so it was submitted, that the handsets are not the subject of privilege within the meaning of s 163(3) and that the Court should so determine. On that analysis, it was submitted that the Court is required to order that the handsets be given to the Commission. The Commission accepted that, in that event, it would be proper for the Commission to deal with the handsets in accordance with a protocol designed to prevent its officers from having disclosed to it the substance of any communications subject to client legal privilege except insofar as privilege might be waived. A draft proposed protocol was provided to the Court during argument.
The authority for taking that approach, whilst it was recognised that this particular section has not previously been considered by the Court, was said to be found in other cases where mobile telephones or computer hard drives have been seized, produced or copied under a search warrant or a compulsory requirement.
As to production under a search warrant, the Commission relied on the decision of the High Court in Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501 at 505-506, which referred to general guidelines agreed between the Law Council of Australia and the Australian Federal Police. However, the decision in Propend was of course concerned with paper documents.
As noted in the decision of Mr Hall in the New South Wales Independent Commission against Corruption ruling to which I have referred, the considerations which will apply to information produced in digital or other electronic forms present the need for the Court to adapt the processes previously accepted as being appropriate. Mr Hall cited the remarks of Kirby J in Propend where his Honour said at 585:
“Necessarily, the doctrine of legal professional privilege must adapt to a world in which these media are the stuff of disputes concerning criminal and civil obligations and the rights of citizens.”
The Commission also cited, in respect of production in response to a compulsory requirement, the ruling which I have just quoted. However, the legislation in that case is quite different. As I will explain, s 163 specifically and, as the secondary material reveals, deliberately reserves to the Court the task of determining privilege claims in this context concerning the conduct of the ACT Integrity Commission. Section 163(3) has no equivalent in the Independent Commission Against Corruption Act 1988 (NSW), nor does there appear to be any authority directly on this point.
Conversely to the submissions put on behalf of the Commission, Ms King submitted that the handsets must be regarded as privileged, that they should be returned to the interested party and that it is open to the Commission to issue a new summons, subject to the appropriate time for service specified in s 150 of the Integrity Commission Act, for the production of the non-privileged files on the phones. There are difficulties with that analysis as well.
Ultimately, the question of the proper construction of the Act must be undertaken in accordance with the conventional approach to statutory interpretation. That task begins and ends with the text of the statute. As explained by Perry Herzfeld and Thomas Prince in Interpretation (2nd ed, 2020, Law Book Co of Australasia), that does not mean that the words of the statute are to be considered in isolation. The text must always be considered in context.
The term “context” is a broad one, invoking the importance of considering the words of the particular section in the context of the statute as a whole, the context in which the statute was enacted and the mischief to which it was intended to be directed, and further, against common law principles including the principles that for centuries have protected claims of privilege over communications with legal advisers.
The task of construction must also be considered in light of the provisions of the Legislation Act 2001 (ACT).
Of critical importance in the present case, as I have indicated, is that on my analysis of s 163(3), it contemplates that the Court will determine whether the document or other thing is the subject of privilege. It is artificial, in my view, to regard the document or other thing in the present case as simply “the handset”. If that were the proper approach, the interested party could, had she been given seven days’ notice of the summons, have produced an empty handset with no data on it. Plainly, what the Commission sought and what she properly produced was the handset with all its contents, including documents and those including privileged documents, or at least documents attracting a bona fide claim to such.
The interested party noted a number of provisions of the Legislation Act that should be brought to bear in this task. First, s 171 of the Act provides:
An Act or statutory instrument must be interpreted to preserve the common law privilege in relation to client legal privilege.
That section is defined to be a determinative provision which, in accordance with s 6 of the Act, means that it “may be displaced expressly or by a manifest contrary intention”. It cannot be said that the Integrity Commission Act expressly, or by a manifest contrary intention, displaces the entitlement of a person to claim client legal privilege. On the contrary, the provisions I have set out above plainly indicate an intention to preserve such privilege. That is to be contrasted with other kinds of privilege, which are expressly abrogated.
So the question becomes: what is the Court to do when an apparently indivisible thing has been produced and each party claims an entitlement to have it delivered to them? One answer is that the provisions of s 162 make plain that the handset has not been “produced” to the Court in the sense in which that term is ordinarily understood. Section 162(1)(a) provides that if the claim relates to a document or other thing, the Commission must immediately “give the secured document or other thing” to the proper officer of the Court. It is plain, in my view, that the contemplation of that section is that the proper officer should mind the item and keep it secure, but I do not think that process of handing over the thing amounts to production to the Court.
Read in the context of the other provisions of Div 3.6.2, it is clear in my view that the intention of those provisions was to provide a mechanism for independent determination of a privilege claim in such a way as to preserve the obvious interest of the Commission in having an item maintained secure whilst also preserving the obvious interest of the person producing the item in maintaining their privilege. That is made clear by s 163(4) which provides that in order “to make the determination” whether the document or other thing is the subject of privilege, “the judge constituting the court and any other person authorised by the court may open and inspect the secured document or other thing”.
It is not necessary to stretch or distort the plain language of that provision to conclude that the Court can authorise an appropriately qualified person to make available the contents of the handset by whatever means of data extraction might be appropriate. I am fortified in that conclusion by the decision, referred to by Ms King in her submissions, of HJ (a pseudonym) v IBAC [2021] VSCA 200 in which a judge of the Victorian Supreme Court approved of a process under which, with the assistance of an appropriately qualified data expert, imaged phones were provided to the person on whom a search warrant had been executed to enable that person to claim privilege over the privileged portions of the items seized.
I am fortified in that conclusion by a consideration of the inconvenience and indeed of the absurdity of the binary approach contended for by the parties when it is clear that the handset does in fact contain documents. Both parties adhere to the submission, at least as their primary position, that the handset is indivisible and must either be handed over to the Commission without prior determination of the claim for privilege or returned to the interested party. I do not think that is what s 163 contemplates.
I gave, during argument, the analogy of the commissioner making a decision to issue an examination summons requiring the production of a desk containing a number of drawers of documents, some of which were privileged. It could not be suggested in that circumstance that the Court was required either to deliver the desk to the Commission or to return it to the recipient of the examination summons. It does no harm to the language of the section to construe it as conferring on the Court the authority to make that determination by undertaking an inspection of the contents of the desk and dealing with them accordingly. I see no reason why the section should not be construed so as to permit the Court to take similar steps, with such technical assistance as may be required, in respect of a phone.
For those reasons, I propose to stand the proceedings over for so long as is necessary for the Commission to devise a protocol for examination of the handsets by a person to be authorised by the Court to open and inspect them on the understanding that, by analogy with the approach of the Victorian Court in HJ or perhaps the approach of the New South Wales Independent Commission Against Corruption in the ruling to which I have referred, the interested party's solicitor will have an opportunity to have input into the parts of the handset, or the documents contained on the handset, in respect of which a claim of client legal privilege is maintained.
I make the following order:
(1) Stand the matter over to 9am on Wednesday 14 September 2022 before McCallum CJ.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |