CATCHWORDS
ADHINISTRATIVE L A W - confidentiality of tapes recorded pursuant to warrants issued under Telecommunications
| (Interception) Act | - whether proviaions as to secrecy protect |
| the intercepted material | - duty of the Australian Federal |
Police - whother agreement to release tapes to ABC breach of duty under the Act
| Telecommunications (Interception) Act 1979 (Cth) | 13.7, s.20, |
| 6.24 |
| Judiciary Act 1901 (Cth) | s.39B |
PAUL JNYES BROWN V. COMISSIONSR OF THE AUSTRALIAN FEDERAL
No. G834 of 1988
Davims J.
31 nay 1988
Sydnoy
| IN TB6 FBDERAL COURT OF AUSTRALIA | ) |
| 1 |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| 1 |
| BETWEEN: | PAUL J M E S BROWN |
Applicant
-
| AND : | COMMISSIONER OF THE
AUSTRALIAN FEDERAL POLICE |
First Respondent
| AND : | RAYMOND JOHN MCCABE |
Second Respondent
| AND : | AUSTRALIAN BROADCASTING |
| CORPORATION |
Third Respondent
| DATE : | 31 May 1988 |
| PLACE : | |
MINUTES OF ORDER
| 1. | The | 8pplic8tion | be | dirmirred. |
| 2. | m0 rerpondentr | pay the applicant'. costs of the |
aQQliC.tiOn.
| - | NOTB : | Settleaant and entry of orders is dealt with in
Order 36 of the Federal Court Rules. |
| IN THE FEDERAL COURT OF AUSTRALIA | ) ) |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| ) |
| GENERAL DIVISION | 1 |
| BETWEEN: PAUL | JAHES | BROWN |
Applicant
| AND : | - | AUSTRALIAN FEDERAL POLICE |
| COMMISSIONER OF THE |
First Respondent
| AND : | RAYMOND JOHN MCCABE |
Second Respondent
| AND : | AUSTRALIAN BROADCASTING
CORPORATION |
Third Respondent
| DATE : | 31 nay 1988 |
| PLACE : | Sydney |
REASONS FOR JUDGMENT
| Thir ir an application for an order | of review under the |
| Administrative Decirions (Judicial Review) Act 1977 (Cth), |
| alternately for an order under the jurisdiction conferred | on this |
| Court by r.39B -of the Judiciary Act 1901 (Cth). |
The irsue concernr the confidentiality of tapes
| contained in reveral ruitcarer which were recorded pursuant | to a |
| warrant or warrant. | irrued by a judge or | judge. of this Court |
under S. 70 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 undor 0.20 of the Act and in cortain othor cases, sub-sections
| (4) and ( 4 A ) of 0.7 | provide, inter alia:- |
| " ( 4 ) | Subjoct to this soction, a person shall not divulge |
| or coruunicato to another person, or make | US. of or |
| record, | Information obtained by intercepting a |
| conunicat | ""7on parsing over a telecommunications system, |
| or obtainod by virtu. | of a warrant issued under section |
11, 11A or 21, excopt in the porformance of a duty of
| tho first-montioned porson as an officer of the |
Conisn ion .
| ( 4 A ) A person may communicate, oak. | us of, or make a |
rocord-of, information of the kind referred to in
| sub-soction | ( 4 ) (other than information obtained | by |
| Virtue of a warrant issued under section | 11A)- |
| (a) | in or in cannoction with the porformance by the Organization (The Australian Security Intelligence |
| Organisation) of its functions | O K otherwise for | |
purposes of security; or
| (b) | for tho purpose of narcotics inquiries that are being, or have been, made by members of the Australian Fedora1 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 -
| by way of a prosecution | for a narcotics offence; |
| by way of a prorecution | for an offence against the |
| Tolecormnlcationr Act 1975 | or a regulation or |
by-law in force under that Act;
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;
| by way of an application | for an order under |
| sub-section 2438 (1) | of the Customs Act 1901; | or |
for tho condoanation or recovery of a ship or
| aircraft, or of goods, seized under section 203 | of |
the Cu8tom8 Act 1901 in connection with the
cornirrion of a narcotics offence.” |
Section 24 provider additionally for the security of intercepted information and read8:-
| “24. | whore a rocord or copy, whether in writing or |
othorwiro, ha8 boon made of a communication intercepted
in purruance of a warrant irrued under section 2 0 , or a
| copy of 8 tologram ha8 boon | mad. | in pursuance of a |
warrant undor roction 2 1 . and tho Commissioner of Police
| and momberr of the Aurtralian Federal Police are |
88tirfi.d -
| (a) | that tho record or copy will not assist, and is | not |
| likely to arrist, tho Commissioner of Police | and |
| officorr of tho Australian Federal Police | in, or in |
connoction with, narcotics inquiries that are bolng, or have been, made by officers of the Aurtralian Fedora1 Police; and
| (b) | that the record or copy is not required, and is not |
| |
(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
circumstancer in which the Act expressly permits disclosure.
| In the present case, an inference may perhaps both from what occurred and from certain remarks made | be drawn, |
| by Mr J.J. |
Steele of counsel, who appeared for the first and second
| rerpondentr, that officers of the Australian Federal Police | look |
upon the secrecy provisions as protecting primarily the secrecy
of criminal and narcotic. investigations.
| That ir not ro . | The provisions am to secrecy are |
de8ign.d to protoct primarily the privacy and confidentiality of
| the intocceptod material. Tho general rule | is that stated in |
| s.7(1), | namely, that there shall not be interception of |
teleconunicationr. Tho following oub-sections of s.7 specify
| the circumstances and the only | circumstance. in which intercepted |
| material may be dirclored. |
When 8 judge isrues a warrant for the interception of
| telecommunication. | he does so on the understanding | and in the |
confidence that offlcers 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. | Warrantr are issued under 6 . 2 0 for the |
purpore of asristing in the identification and prosecution of
| narcoticr offencer. | Intercepted material gleaned under such a |
| warrant should be held and ured solely | for that purpose or any |
| other purpore authorised by the Act and all proper steps must | be |
| taken to ensure that intercepted material | is not made available |
| for some extraneour use. |
The prerent irrue arirer because a court is not a
| person for tha purporer of the Act and, therefore, | it has been |
| held that the dirclorure of | an intercepted telecommunication made |
| in the courre of the giving of evidence to a court | is not a |
| dirclorure which is a breach of the provisions of the | Act. See |
| Bilton v. Well8 (1985) 157 C.L.R. | 57 at p.76. | It likewise |
| follows that a dirclorurr made by a court itself would | not be a |
| disclorure prohibited by the Act for | it would not be a disclosure |
| by a parron and thereby prohibited | by the Act. But | to say that |
| ir not to lrrren the intent | of the Act to maintain the secrecy | of |
telecouunicationr 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 | r . 2 0 . |
| I turn to the facts of the case. | A judge or judges, |
| presumably of this Court, | and presumably by warrant or warrants |
| issued under 6 . 2 0 of the Act, authorised the interception | of |
telecommunications to or from certain telephone numbers. Hany
| taper of telephone calls, which now | fit into several suitcases, |
resulted from the interception. An examination of the tapes
| arristed 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 1906, Mr Justice Carruthers of the New
| South Wales Supreme Court, for purposes asrociated with the | fair |
trial of the accured in tho Supreme Court, ordered that the
| rubjoct tapos be delivered by the Australian Federal Police | nto |
| the custody of the Shoriff and that they remain | in his custody |
| until further order. | His Honour ordered that, upon completion of |
the procoedings including any appeal, all recordings permitted to
| be takon from tho master roels for the purposes of the trial | be |
| roturnad to the Shociff 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 redecal Police to regain custody of the tapes and that they romain in tho custody of the Sheriff of the Supreme Court of New South Walos.
l .
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 subrequently 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 |
tapos for tho purpose of ascertaining whether they contained a
| record of any tolephone conversation by | M r Brown and, if so, |
whether tho telophono conversation would support a plea of
| justification. | His Honour very properly directed that the |
Australian redoral Polico should be advised of the application
| for accors and should be given an opportunity to object | th reto. |
| Tho solicitor for tho ABC then wrote to the Australian |
| redera1 Police on | 11 April 1988 as | follows:- |
"I rofor 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, tapor and/or tranrcripts of Australian Federal
Police tap. recordings of legal telephone intercepts
| placed on tho telephone of ... insofar as those tapes | and/or tranrcripts show telephone conversations with |
| Paul JaBOS Brown or refer to Paul Jamor 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 Honourrs attentfon 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 posrible and in any event by no later than
Thursday, 14 Xarch, 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, Aseistant Commissioner McCabe, rigned the response which read as follows:-
| "I refer to your letter of 11th April, | 1988. |
This is to confirm that the Australian Federal Police ha8 no-objection to access being granted to the legal advisors of the Australian Broadcasting Corporation, for
| the purpose of the above proceedingr, to master | reels, |
which are in the posres8ion of the Sheriff of New South
| wales, of ~ustralian | Federal Police tape recordings of |
| legal telephone intercept8 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 6.398 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 roder81 Police, continues to have responsibility | for |
the same, which were obtained by the Australian Federal Police
| pursuant to a warrant or warrants issued undor the Act and | for |
| the purposes premcribed by the | Act. |
| It was no doubt thought by Assistant Commissioner |
| nccabe, whon h | . | signed the letter of 12 April 1988, that, as | the |
tapes wero 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 Hccabe took, the view was understandable and
| courteoum. | 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 enruring the fair trial of the criminal proceedings that were before it.
When M r 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
?adera1 Police, he war 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 |
mort 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
purpore for which the telecommunicationr interceptions were
authori8ed or undert8ken and not being a disclosure which the
| Australia0 Podera1 Police is authorised to rake under the Act | or |
| could make, having regard to the limited purpose | for which the |
| taper were obtained and held | by the Australian Federal | Police. |
| The proceedingr 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 disclorure 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 Carpbell 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 | f o r the limited purposes prescribed | by the |
| Act. The Aurtralian 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 am to the decision which Mr Justice
| Campbell or any other judge | of the Supreme Court of New South |
| Waler ought to mako on tho application for accerr. In | these |
proceedingr, I am concerned only with the action of the
| Australian roderal Polico and | of the response made by the |
| Aurtralian Federal Police to the very proper request | for an |
| indication of vior am to ruch release. |
| It war rubmitted by | M r M.G. | Sexton, counsel for the ABC, |
that tho applicant, MC Brown, had no standing to bring these
| proceedingr. It war submitted that | M r Brown was not a person who |