Bond, A v Australian Broadcasting Tribunal
[1988] FCA 241
•31 MAY 1988
Re: PAUL JAMES BROWN
And: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE; RAYMOND JOHN MCCABE and
AUSTRALIAN BROADCASTING CORPORATION
No. G834 of 1988
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)
CATCHWORDS
Administrative law - confidentiality of tapes recorded pursuant to warrants issued under Telecommunications (Interception) Act - whether provisions as to secrecy protect the intercepted material - duty of the Australian Federal Police - whether agreement to release tapes to ABC breach of duty under the Act
Telecommunications (Interception) Act 1979 (Cth) s.7, s.20, s.24
Judiciary Act 1901 (Cth) s.39B
HEARING
SYDNEY
#DATE 31:5:1988
Counsel for the applicant: Mr C.A. Evatt
Solicitors for the applicant: Teakle, Ormsby & Associates
Counsel for the 1st and 2nd respondents: Mr J.J. Steele
Solicitor for the 1st and 2nd respondents: Australian Government Solicitor
Counsel for the 3rd respondent: Mr M.G. Sexton
Solicitor for the 3rd respondent: Bruce George Donald
ORDER
The application be dismissed.
The respondents pay the applicant's costs of the application.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
JUDGE1
This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), alternately for an order under the jurisdiction conferred on this Court by s.39B of the Judiciary Act 1901 (Cth).
The issue concerns the confidentiality of tapes contained in several suitcases which were recorded pursuant to a warrant or warrants issued by a judge or judges of this Court under s. 20 of the Telecommunications (Interception) Act 1979 (Cth)("the Act"). The amendments to that Act which were made by Act No. 89 of 1987 are not yet in force and we are not concerned with them.
It is fundamental to this case that the Act provides guidelines with respect to the secrecy of telecommunications. The general rule is that set out in s.7(1) which provides:-
"7.(1) A person shall not -
(a) intercept;
(b) authorize, suffer or permit another person to intercept; or
(c) do any act or thing that will enable him or another person to intercept,
a communication passing over a telecommunications system."
With respect to information obtained pursuant to a warrant issued under s.20 of the Act and in certain other cases, sub-sections (4) and (4A) of s.7 provide, inter alia:-
"(4) Subject to this section, a person shall not divulge or communicate to another person, or make use of or record, any information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under section 11, 11A or 21, except in the performance of a duty of the first-mentioned person as an officer of the Commission.
(4A) A person may communicate, make us of, or make a record of, information of the kind referred to in sub-section (4) (other than information obtained by virtue of a warrant issued under section 11A)-
(a) in or in connection with the performance by the Organization (The Australian Security Intelligence Organization) of its functions or otherwise for purposes of security; or
(b) for the purpose of narcotics inquiries that are being, or have been, made by members of the Australian Federal Police."
Sub-section 6 provides:-
"(6) Without limiting the application of sub-section (4), a person may give information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under section 11 or 21, in evidence in a proceeding -
(a) by way of a prosecution for a narcotics offence;
(b) by way of a prosecution for an offence against the Telecommunications Act 1975 or a regulation or by-law in force under that Act;
(c) by way of a prosecution for any other offence against the law of the Commonwealth or of a State or Territory punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years;
(d) by way of an application for an order under sub-section 243B (1) of the Customs Act 1901; or
(e) for the condemnation or recovery of a ship or aircraft, or of goods, seized under section 203 of the Customs Act 1901 in connection with the commission of a narcotics offence."
Section 24 provides additionally for the security of intercepted information and reads:-
"24. Where a record or copy, whether in writing or otherwise, has been made of a communication intercepted in pursuance of a warrant issued under section 20, or a copy of a telegram has been made in pursuance of a warrant under section 21, and the Commissioner of Police and members of the Australian Federal Police are satisfied -
(a) that the record or copy will not assist, and is not likely to assist, the Commissioner of Police and officers of the Australian Federal Police in, or in connection with, narcotics inquiries that are being, or have been, made by officers of the Australian Federal Police; and
(b) that the record or copy is not required, and is not likely to be required -
(i) in, or in connection with, proceedings of a kind referred to in sub-section 7(6); or
(ii) in, or in connection with, the exercise by officers of the Australian Federal Police of the powers conferred on the Commissioner of Police by sub-section 7(5),
the Commissioner of Police shall cause the record or copy to be destroyed."
These provisions necessarily imply an obligation on behalf of the Australian Federal Police, to whom a warrant under s.20 is given, to take all reasonable steps to protect the secrecy of information obtained pursuant to the warrant and to ensure that that information is not disclosed save in the circumstances in which the Act expressly permits disclosure.
In the present case, an inference may perhaps be drawn, both from what occurred and from certain remarks made by Mr J.J. Steele of counsel, who appeared for the first and second respondents, that officers of the Australian Federal Police look upon the secrecy provisions as protecting primarily the secrecy of criminal and narcotics investigations.
That is not so. The provisions as to secrecy are designed to protect primarily the privacy and confidentiality of the intercepted material. The general rule is that stated in s.7(1), namely, that there shall not be interception of telecommunications. The following sub-sections of s.7 specify the circumstances and the only circumstances in which intercepted material may be disclosed.
When a judge issues a warrant for the interception of telecommunications he does so on the understanding and in the confidence that officers of the Australian Federal Police will fulfill the duty impliedly cast by the Act upon them, namely to maintain proper secrecy of intercepted material by all means which are reasonably practicable. Were judges not to have that confidence, were members of the Australian Federal Police not to recognise or fulfill that duty, warrants would not readily be issued under the Act. Warrants are issued under s.20 for the purpose of assisting in the identification and prosecution of narcotics offences. Intercepted material gleaned under such a warrant should be held and used solely for that purpose or any other purpose authorised by the Act and all proper steps must be taken to ensure that intercepted material is not made available for some extraneous use.
The present issue arises because a court is not a person for the purposes of the Act and, therefore, it has been held that the disclosure of an intercepted telecommunication made in the course of the giving of evidence to a court is not a disclosure which is a breach of the provisions of the Act. See Hilton v. Wells (1985) 157 CLR 57 at p 76. It likewise follows that a disclosure made by a court itself would not be a disclosure prohibited by the Act for it would not be a disclosure by a person and thereby prohibited by the Act. But to say that is not to lessen the intent of the Act to maintain the secrecy of telecommunications or to reduce the duty of the Federal Police to maintain the privacy of intercepted material which has been obtained pursuant to a warrant under s.20.
I turn to the facts of the case. A judge or judges, presumably of this Court, and presumably by warrant or warrants issued under s.20 of the Act, authorised the interception of telecommunications to or from certain telephone numbers. Many tapes of telephone calls, which now fit into several suitcases, resulted from the interception. An examination of the tapes assisted the identification of certain criminal activities and the subsequent successful prosecution of a number of persons. The prosecutions took place in the Supreme Court of New South Wales. The accused were convicted and sentenced to terms of imprisonment.
On 24 January 1986, Mr Justice Carruthers of the New South Wales Supreme Court, for purposes associated with the fair trial of the accused in the Supreme Court, ordered that the subject tapes be delivered by the Australian Federal Police into the custody of the Sheriff and that they remain in his custody until further order. His Honour ordered that, upon completion of the proceedings including any appeal, all recordings permitted to be taken from the master reels for the purposes of the trial be returned to the Sheriff to abide the further order of the Court.
Although the trial and the appeal from the convictions have been completed, it appears that no step has been taken by the Australian Federal Police to regain custody of the tapes and that they remain in the custody of the Sheriff of the Supreme Court of New South Wales.
In 1984, the third respondent, the Australian Broadcasting Corporation ("the ABC"), published several programs which included material concerning the applicant, Paul James Brown, who was, and I take it still is, a police officer. Mr Brown subsequently sued the ABC for damages for defamation. In its defence, the ABC did not plead justification or truth of the imputations alleged in the statement of claim. However, early this year, the ABC received information that there may be material on one or more of the subject tapes which would justify the raising of a defence of truth as to one or more of the imputations.
The ABC applied to Mr Justice Campbell of the New South Wales Supreme Court for an order that it be given access to the tapes for the purpose of ascertaining whether they contained a record of any telephone conversation by Mr Brown and, if so, whether the telephone conversation would support a plea of justification. His Honour very properly directed that the Australian Federal Police should be advised of the application for access and should be given an opportunity to object thereto.
The solicitor for the ABC then wrote to the Australian Federal Police on 11 April 1988 as follows:-
"I refer to previous correspondence and conversations with your office and in particular with Inspector Peter Duffy, who I understand is not in the office this week. I confirm that a Subpoena for Production directed to The Sheriff of New South Wales for production of master reels, tapes and/or transcripts of Australian Federal Police tape recordings of legal telephone intercepts placed on the telephone of ... insofar as those tapes and/or transcripts show telephone conversations with Paul James Brown or refer to Paul James Brown was returnable before his Honour, Mr. Justice Campbell at 10.00 a.m. today, 11 April, 1988. A copy of the Subpoena is enclosed for your information.
His Honour stood the matter over until 10.00 a.m. next Friday, 15 April, 1988 pending receipt of a letter from the Australian Federal Police stating that it has no objection to access being granted to the legal advisors of the ABC to the material produced in answer to the above Subpoena.
We understand that it is the AFP's position that it has no objection to access being granted to the ABC's legal advisors. In this regard, on 25 March, 1988 Inspector Peter Duffy advised Mark Lynch of this office that the AFP would not be taking any objection to access being granted to the material in question.
We appreciate that you may have some concern with the provisions of the Telecommunications (Interception) Act 1979, as amended. We do not share these same concerns and in any event it is for the Court to decide whether or not access should be granted. His Honour's attention has been drawn to the relevant provisions of the above Act.
If acceptable we would appreciate receiving a letter from the AFP along the lines of the attached draft as soon as possible and in any event by no later than Thursday, 14 March, 1988.
If you have any difficulties in this regard, please telephone me on 356 5849."
That letter enclosed a draft response. On the following day, 12 April 1988, the second respondent, Assistant Commissioner McCabe, signed the response which read as follows:-
"I refer to your letter of 11th April, 1988.
This is to confirm that the Australian Federal Police has no objection to access being granted to the legal advisors of the Australian Broadcasting Corporation, for the purpose of the above proceedings, to master reels, which are in the possession of the Sheriff of New South Wales, of Australian Federal Police tape recordings of legal telephone intercepts placed on the telephone of ... ."
That letter was then forwarded to the ABC.
These proceedings were then brought for orders under the juridiction conferred by the Court by s.39B of the Judiciary Act 1901 (Cth). The application made an additional claim under the Administrative Decisions (Judicial Review) Act 1977 (Cth) but that claim was not proceeded with as decisions made under the Act are thereby excluded from review thereunder.
I cannot express too strongly my view that the action taken by the letter of 12 April 1988, which amounted to active co-operation by the Australian Federal Police in the release to the media, the ABC, of tapes which were subject to the Act, was an abnegation of the duty which was imposed upon the Australian Federal Police under that Act.
The tapes are the property of the Commonwealth Government and the first respondent, the Commissioner of the Australian Federal Police, continues to have responsibility for the same, which were obtained by the Australian Federal Police pursuant to a warrant or warrants issued under the Act and for the purposes prescribed by the Act.
It was no doubt thought by Assistant Commissioner McCabe, when he signed the letter of 12 April 1988, that, as the tapes were in the custody of the Supreme Court of New South Wales, a judge of the Supreme Court would do whatever was proper to do with them. If that was the view which Assistant Commissioner McCabe took, the view was understandable and courteous. However, the Supreme Court of New South Wales does not have ownership of the tapes. It merely has custody thereof and that custody was obtained for a limited purpose, namely, the purpose of ensuring the fair trial of the criminal proceedings that were before it.
When Mr Justice Campbell directed that the application before him be brought to the attention of the Australian Federal Police and sought advice as to the attitude of the Australian Federal Police, he was seeking an expression of view not only from one of the parties in whose interests the tapes had been impounded, but also of the party who represented the owner of the tapes, the Commonwealth of Australia, and whose views would be most influential in the decision which his Honour was called upon to make.
In my opinion, it was the duty of the Australian Federal Police to respond to the notification directed by his Honour by appearing before his Honour to object to the disclosure of the tapes for the purpose of civil proceedings, that not being a purpose for which the telecommunications interceptions were authorised or undertaken and not being a disclosure which the Australian Federal Police is authorised to make under the Act or could make, having regard to the limited purpose for which the tapes were obtained and held by the Australian Federal Police.
The proceedings before Mr Justice Campbell were not proceedings in which an officer of the Australian Federal Police was called upon to give evidence in a civil proceeding and the giving of that evidence required the disclosure of the intercepted material. Even then, I think it would have been the duty of the Australian Federal Police to object to the giving of that evidence, although, of course, whether or not the evidence would be required would depend upon principles of law which I do not need to discuss in these reasons. The proceedings before Mr Justice Campbell were not proceedings in which that circumstance arose, but merely an application in which the ABC sought access, for the purpose of a civil proceeding, to the tapes which had been obtained and held for the limited purposes prescribed by the Act. The Australian Federal Police should have taken reasonable steps to protect the privacy of the tapes by opposing the grant of such access.
I should make it clear that, in these reasons I do not direct any observations as to the decision which Mr Justice Campbell or any other judge of the Supreme Court of New South Wales ought to make on the application for access. In these proceedings, I am concerned only with the action of the Australian Federal Police and of the response made by the Australian Federal Police to the very proper request for an indication of view as to such release.
It was submitted by Mr M.G. Sexton, counsel for the ABC, that the applicant, Mr Brown, had no standing to bring these proceedings. It was submitted that Mr Brown was not a person who would be especially affected by the grant of access to the tapes and, indeed, that there may not be any communication or any relevant communication involving Mr Brown recorded thereon. However, it is clear that Mr Brown has a special interest for the access is sought for the purpose of the proceedings in the Supreme Court of New South Wales in which he is a plaintiff and the access may disclose a communication which is adverse to his interests. In my opinion, Mr Brown has standing.
It was put by Mr C.A. Evatt of counsel, who appeared for Mr Brown, that, in the circumstances, I should make a number of orders directed to the respondents. In my opinion, it is unnecessary to do so. In the exercise of the Court's discretion, I decline to make an order. The letter of 12 April 1988 does not contain a final and binding decision. The first respondent, the Commissioner of the Australian Federal Police, is still at liberty to appear before Mr Justice Campbell to express a view as to the granting of access to the tapes by the ABC. I have confidence that the Commissioner will take note of the observations I have made and will perform the duty in that regard. If not, the applicant will have the advantage of my remarks and may bring them to the attention of the Court.
Notwithstanding that, as a matter of discretion, I shall dismiss the application, I shall order that the respondents pay the applicant's costs. The proceedings were justly brought and the respondents should pay the costs thereof.
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