Brown, P.J. v Commissioner of the Australian Federal Police

[1988] FCA 264

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

POLICS AND RS

No. G834 of 1988

Davims J.
31 nay 1988

Sydnoy

IN TB6 FBDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G834 of 1988
1

DIVISION GENERAL 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

C O R M :  Davier J.

DATE :	31 May 1988
PLACE :	8  ydne y

MINUTES OF ORDER

TEB COURT ORDER8 TEAT:

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	) No. G834 of 1988
)
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

C O R M :  Davier J.

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

l 2 .

(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
likely to be required -

(i)  in, or in connection with, proceedings of a kind referred to in sub-section 7 ( 6 ) ;

Or

. 4 .

(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

. 8.

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

. 11.

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

would b . espocially affected by the grant of access to the tapes

and, indoed, that there may not be any communication or any relevant coruunication involving M r Brown recorded thcreon.

However, it ir clear that MC Brown has a special interest	for the
accerr ir rought for the purpore 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 rerpondents. In my opinion, it is

unnecessary to do	80.	In the exerciao 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 Aurtralian Federal Police,	is still at
liberty to appear before	Mr Justice Campbell to express a view as
to the granting of acces6 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 rerpondents pay tho applicant'r costs. The proceedings wore justly brought and

the respondents should pay the costa thereof.
I certify that this and the	11

proceding pages aro a truo copy of
the Reasons for Judgment herein of

the Honourablo Ur Justico Davies.

Associate:

Date:  3 nay 1988

Counsel for the applicant: HT C.A. Evatt

Solicitors for the applicant: Teakle,	Ormsby & Associates
Counsel for the 1st and

respondents:	2nd	Hr J.J. Steele
Solicitor for the 1st and

rerpondentr:  Australian Governme t 2nd

Solicitor

Counrel for the 3rd respondent: Hr H.G.	Sexton
Solicitor for the
3rd rerpondent:	Bruce George Donald

Date of hearing:  1988 Hay 11