Browne v Beckingham
[2020] VSC 301
•12 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 03116
| ALLISON BROWNE | Appellant |
| v | |
| ROBERT OWEN BECKINGHAM | Respondent |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 May 2020 |
DATE OF JUDGMENT: | 12 June 2020 |
CASE MAY BE CITED AS: | Browne v Beckingham |
MEDIUM NEUTRAL CITATION: | [2020] VSC 301 |
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CRIMINAL PROCEDURE — Statutory offence — Independent Broad-based Anti-corruption Commission — Respondent charged with disclosure in breach of confidentiality notice — Notices prohibited disclosure of restricted matters — Proofs — Validity of charges — Whether notices lacked particulars of source of confidentiality obligation — Whether notices invalid for uncertainty in scope for want of constraining parameters — Independent Broad‑based Anti‑corruption Commission Act2011 ss 3, 42, 44.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Young SC with Mr T Warne-Smith | Tom Warne-Smith, Independent Broad‑based Anti‑Corruption Commission |
| For the Respondent | Mr C Carr with Ms A Dixon | Tony Hargreaves & Partners |
HIS HONOUR:
Introduction and issues
The respondent was charged in the Magistrates’ Court of Victoria on four counts of contravention of s 44(1) of the Independent Broad‑based Anti‑corruption Commission Act2011 (Vic) (IBAC Act). In summary the offence involves disclosure of restricted matters in breach of a confidentiality notice. On 12 June 2019, a magistrate dismissed the charges. The appellant, who was the informant before the magistrate, appealed pursuant to s 272 of the Criminal Procedure Act2009 (Vic), raising two questions of law:
(a) whether the magistrate erred in holding that the prosecution must prove as an element of an offence against s 44(1) of the IBAC Act, that the IBAC had considered on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice one or more of the matters identified in s 42(1)(a)‑(c) of the IBAC Act; and
(b) whether the magistrate erred in holding that there was no evidence the IBAC had considered on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice one or more of the matters identified in s 42(1)(a)‑(c) of the IBAC Act.
The scope of the dispute between the parties was reframed by the time the appeal was heard. The respondent contended, first that the charges were invalid for failing to specify which of two confidentiality notices was the source of the obligation breached by the alleged disclosure (‘want of particulars’ ground). Secondly, the respondent raised a question as to the validity of the notice on its face, because the confidentiality notices were so lacking in any constraining parameters and so uncertain of scope that they were invalid (‘unconstrained invalidity’ ground).
The appellant, properly in my view, took no point about these grounds not having been raised below.
Relevant statutory provisions
The main purpose of the IBAC Act is to establish the Independent Broad-based Anti-corruption Commission (s 1) and the objects of the Act (s 8) include the identification, investigation and exposure of corrupt conduct, and police personnel misconduct. There is no question that these are important public functions that serve important public purposes.
Section 42(1) of the IBAC Act relevantly provides:
(1)If during an investigation the IBAC considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice –
(a)that investigation; or
(b)the safety or reputation of a person; or
(c)the fair trial of a person who has been, or may be, charged with an offence –
the IBAC may issue an confidentiality notice in respect of that investigation to a person … specifying the restricted matter or restricted matters in accordance with this section.
Section 42 also requires that a confidentiality notice be in a prescribed form and that certain other documents must be provided with the confidentiality notice when it is served on the recipient. Sub-section (2) states:
(2) A confidentiality notice must—
(a) be in the prescribed form;
(b) specify the restricted matter or restricted matters in respect of which the confidentiality notice is issued;
(c) include a copy of the provisions of subsections (3) to (8) and section 44 and an explanation of the effect of those provisions;
(d) include a statement—
(i)advising the person to whom the confidentiality notice is issued that additional obligations under the Protected Disclosure Act 2012 relating to confidentiality may apply to the person; and
(ii) directing the person to the provisions of that Act which impose those obligations;
(e) if a restricted matter specified in the confidentiality notice is the fact that the person has been, or is proposed to be, examined by, or has produced, or may produce, any document or thing to, the IBAC, specify that the IBAC authorises the person to whom the confidentiality notice is issued to disclose the restricted matter to—
(i)the person's spouse or domestic partner; and
(ii) the person's employer or manager or both, for the purpose of enabling the person to whom the confidentiality notice is issued to take the appropriate leave from his or her employment in order to comply with the witness summons—
except to the extent that the IBAC considers that the authorisation to make the disclosure to the person's spouse, domestic partner, employer or manager would be likely to prejudice any of the matters specified in subsection (1)(a), (b) or (c).
Sections 42(3)-(5) operate to permit the IBAC in respect of a particular investigation to cancel confidentiality notices and/or issue a new notice in respect of that investigation. Section 42(9) provides that a confidentiality notice can be served on a person in the same manner as a witness summons. There is a sunset provision of 5 years (s 42(6)), which may be extended by this court.
The prescribed form of the confidentiality notice[1] relevantly states:
This confidentiality notice is issued under section 42 of the Independent Broad-based Anti-corruption Commission Act 2011 in respect of the following restricted matters:
[ specify restricted matter or matters ]
[1]Independent Broad-Based Anti-Corruption Commission Regulations2013 (Vic), reg. 32 – Schedule, Form 1.
‘Restricted matters’ are defined in s 3 of the IBAC Act.
restricted matter means –
(a) any evidence or information given to, or obtained by, the IBAC;
(b)the contents of any document, or a description of any thing, produced to, or obtained by, the IBAC;
(c)the contents of any document, or a description of any thing, which the IBAC has made a copy of or seized under Division 3 or Division 4 of Part 4;
(d)the existence of, or any information about, a confidentiality notice or a witness summons;
(e)the subject matter of an investigation in relation to which a witness summons has been issued;
(f)any information that could enable a person who has been, or is proposed to be, examined by, or who has produced, or may produce, any document or thing to, the IBAC, to be identified or located;
(g)the fact that a person has been, or is proposed to be, examined by, or has produced, or may produce, any document or thing to, the IBAC;
Section 44(1) relevantly provides:
Disclosure subject to confidentiality notice
(1) Subject to subsections (2), (3), (4) and (5), a person who –
(a)is duly served with a confidentiality notice by the IBAC under section 42(9), and if applicable, any order extending the confidentiality notice; or
…
must not disclose a restricted matter specified in the confidentiality notice while it has effect.
Penalty: 120 penalty units or imprisonment for 12 months or both.
Proceedings before the Magistrate
On 17 May 2018, the respondent was charged with six offences. Two of those charges related to false evidence given during an examination and four charges (which are the subject of this appeal) were for the offence of disclosing restricted matter in breach of confidentiality notices issued by the IBAC. Each charge was in similar terms and alleged that:
The accused at Melbourne in the State of Victoria on [date] being a person who was duly served with a Confidentiality Notice by the IBAC under section 42(9) of the [IBAC Act] did disclose to [named person] restricted matters specified in the Confidentiality Notice whilst the Confidentiality Notice was in effect, namely [disclosure described].
The charges variously alleged disclosure by the respondent of:
(a) the existence of the summons to attend the IBAC examination,
(b) the subject matter of the investigation to which the summons related,
(c) the description of a thing that he had produced to IBAC, and
(d) the evidence that he had given to IBAC.
Relevantly each Confidentiality Notice stated:
1. What is this notice?
This confidentiality notice is issued under section 42 of the Independent Broad-based Anti‑corruption Commission Act 2011 in respect of the following restricted matters:
·any evidence or information given to, or obtained by, the IBAC;
·the contents of any document, or a description of any thing, produced to, or obtained by the IBAC;
·the contents of any document, or a description of anything, which the IBAC has made a copy of or seized under Division 3 or Division 4 of Part 4;
·the existence of, or any information about, a confidentiality notice or a witness summons;
·the subject matter of an investigation in relation to which a witness summons has been issued;
·any information that could enable a person who has been, or is proposed to be, examined by, or who has produced, or may produce, any document or thing to, the IBAC, to be identified or located;
·the fact that a person has been, or is proposed to be, examined by, or has produced, or may produce, any document or thing to, the IBAC;
Because you have been given this confidentiality notice, you are not permitted to disclose the above restricted matters except as described below in the section headed ‘When are you authorised to disclose information?’
If you disclose a restricted matter when you are not permitted to, you can face several penalties, including up to 12 months in prison or a fine of up to 120 penalty units or both.
You should also note that additional obligations under Part 7 of the Protected Disclosure Act 2012 relating to confidentiality of assessable disclosures and people who make assessable disclosures may apply to you.
2. Why have you been given this notice?
You have been given this confidentiality notice because the Independent Broad‑based Anti‑corruption Commission (“IBAC”) considers that your disclosure of any of the restricted matters described above would be likely to prejudice:
·an IBAC investigation; or
·the safety or reputation of a person; or
·the fair trial of a person who has been, or may be, charged with an offence.
The summonses and confidentiality notices were signed by Deputy Commissioner Simon Heath who also conducted the respondent’s examination before the IBAC on 19 December 2017.
At the examination, the general subject matter of which was set out in the summons served on the respondent, the confidentiality notices were tendered and the ongoing operation and significant penalty for the breach of a confidentiality notice were drawn to the respondent’s attention at the conclusion of the examination. The confidentiality notices operated from the time of service until cancelled by letter dated 21 November 2018.
On 12 November 2018, at the Magistrates’ Court contest mention, the respondent gave no indication of what was, or was not, in issue and the matter was listed for a contest hearing on 1 May 2019.
At the trial, the prosecution called only the informant, Ms Allison Browne, and tendered without objection, the brief of evidence that included the two summonses and confidentiality notices, recordings and transcripts of intercepted telephone communications and the IBAC examination.
When the prosecution closed its case, the respondent called no evidence.
The respondent then submitted that the case in respect of the four s 44 charges had not been proven beyond reasonable doubt, because there was no evidence of the grounds on which the IBAC had issued the confidentiality notices, which was an element of proof beyond reasonable doubt for the prosecution to establish before the issue of a notice. As such, it was asserted that an essential legal element of the charge had not been proven. This issue has not been previously raised and on the conclusion of the respondent’s oral submissions, the magistrate ordered further written submissions.
The respondent then submitted:
The submission being put on behalf of Mr Beckingham is that, in summary, the IBAC has not alleged in any of charges 1, 4, 5 or 6 that it had reasonable grounds for issuing a confidentiality notice in accordance with the IBAC Act. Most importantly, the IBAC has not adduced any evidence that it did have reasonable grounds for issuing a confidentiality notice in accordance with that legislation.
As a result, this court cannot be satisfied beyond reasonable doubt that reasonable grounds existed for issuing a confidentiality notice. In the absence of any evidence on this point, the prosecution has not proved that the purported confidentiality notice was issued properly and was a valid notice. It follows that in the absence of proof that the purported confidentiality notice was validly issued charges 1, 4, 5 and 6 must be dismissed.
The respondent further submitted that there was an omission in the confidentiality notice because it did not ‘even claim that the notice had been issued only after the IBAC had found that reasonable grounds existed that warranted such action’.
In response the prosecution submitted:
Based on the evidence before the Court and, if necessary, the presumption of regularity there is sufficient evidence of the validity of the confidentiality notice to support a conviction on each of the confidentiality notice charges.
The prosecution cited a number of authorities including Cassell v The Queen.[2] Cassell was cited as authority for the proposition that in the absence of any evidence casting doubt on the regularity of an administrative decision that formed the basis of subsequent criminal liability, it was not necessary for the prosecution to adduce evidence positively proving that all of the relevant conditions precedent to the decision had been satisfied.
[2](2000) 201 CLR 189 (‘Cassell’).
The magistrate held that the prosecution was required to prove the validity of the confidentiality notices as an element of the offence against s 44(1) of the IBAC Act, and that there was:
...no evidence as to the basis upon which the IBAC issued a Confidentiality Notice. This was an element of proof that the prosecution had to establish beyond reasonable doubt before the issue of a Notice.
The magistrate concluded that the presumption of regularity did not apply, and that given the relevant matters were within the knowledge of the IBAC and could have easily been proven by the prosecution, the four charges were dismissed.
Appellant’s submission
First question of law
The appellant contended that, properly construed, s 44 of the IBAC Act required the prosecution to prove only that a valid confidentiality notice had been duly served on the respondent. The elements of the offence identified from the text of the section are:
(a) that there was a valid confidentiality notice that was binding on the accused at the relevant time;
(b) that the confidentiality notice had been properly served on the accused; and
(c) that the accused had disclosed a restricted matter that was specified in the notice to another person.
Elements (b) and (c) were not in dispute, but the respondent had submitted, and the magistrate accepted, that the prosecution had to prove, but had not done so, that there were in fact reasonable grounds upon which the IBAC had relied when issuing the confidentiality notices.
The appellant contended that it was not necessary to demonstrate compliance with the preconditions to the issue of a notice unless some doubt was cast on the validity of the notice, either on the face of the notice or by extraneous evidence.
The respondent accepted that it was not part of an element of the offence that the prosecution had to prove the particular basis on which the confidentiality notice was issued, and that it did not need to lead evidence to prove the basis for the issue of the notices. This concession confined the area of dispute on the appeal to the second question of law.
The appellant submitted that this concession acknowledged that the magistrate made an error of law. As noted, however, the respondent advanced a further argument opposing the relief sought based on two grounds.
Second question of law
The appellant submitted that as the confidentiality notice was in evidence before the magistrate, he was entitled to conclude that a valid confidentiality notice had been duly served. There was nothing about its formal content that suggested that it was invalid in any way. As the respondent did not put on any evidence that called into question the validity of the notice, no further proof was required of the prosecution.
The appellant submitted that the content of the notice recorded that the IBAC had considered the disclosure of the restricted matters would be likely to prejudice one or more of the matters in s 42(1)(a)-(c) of the IBAC Act. Further, the magistrate erroneously failed to draw the inference from the unchallenged notice that the preconditions to its issuance had been satisfied.
However, at the hearing before this court the respondent no longer contended that the prosecution was required to lead evidence that the IBAC had considered on reasonable grounds that disclosure would prejudice one or more of the matters in s.42(1)(a)-(c) of the IBAC Act. Absent doubt about the validity of the notice arising from the face of the notice or from evidence, tender of the notice sufficed to prove the first element of the charge.
The parties addressed the application of the presumption of regularity[3] in the context of this submission. As the issues on this appeal have evolved, it is no longer necessary to consider the application of the presumption. Instead, the respondent contended that there was a serious question that the notice was invalid on its face, such as would require the prosecution to have called additional evidence. The appellant accepted that if the respondent was right in contending that the charges were invalid or that a question as to the validity of the notice had been raised on the unconstrained invalidity ground, the prosecution would not have been assisted by the presumption of regularity.
[3]McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835, 850; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 645-6 [151]; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164; Bhalsod v Perrie (2018) 84 MVR 469.
It is convenient to now deal with the further grounds raised by the respondent.
Respondent’s submissions
The respondent submitted that on the proper construction of the IBAC Act, the notices were invalid. The respondent relied on four bases, evident from examination of the notices, for this submission:
(a) the notice purported to restrict disclosure of matters unconnected with the investigation and was not issued in connection with that investigation;
(b) the notice did not specify the restricted matters that were the subject of the notice. Generality cannot be sufficient when the statutory obligation is to ‘specify’. A matter cannot be specified as a restricted matter by nominating the entire description of a class or category of restricted matters. The generality of that description cannot be read down by reference to what the recipient knew for three reasons: the statutory language, ‘specify’, does not permit some, necessarily uncertain, reading down; the respondent is inherently likely as a police officer to know much about other, different, IBAC investigations; and the notice did not describe any IBAC investigation;
(c) where the ‘restricted matter’ is devoid of meaningful factual content, the state of mind that enlivened the statutory power to issue the notice cannot have been satisfied; and
(d) the restricted matters are not identified with reasonable clarity and were entirely uncertain.
These contentions were developed in the following way.
The respondent submitted that I ought bear in mind the principle of legality and prefer a narrower construction of legislation that infringes the fundamental common law right of freedom of speech, but this submission was not developed.
More specifically, turning to s 42(1) of the IBAC Act, the respondent submitted:
(a) the opening words '[i]f during an investigation' import a clear temporal limitation on the grant of power to issue a notice;
(b) there is a subject matter limit upon the power. The words ‘that investigation’ require that a notice may only be issued in respect of the particular investigation during which the IBAC formed the required view; and
(c) the power was contingent on IBAC considering, on reasonable grounds, that disclosure would be likely to prejudice the particular investigation, the safety or reputation of a person, or the fair trial of a person.
The argument was that the IBAC was empowered to issue a confidentiality notice to a person under s 42(1), if the IBAC considered on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice the investigation being conducted, the safety or reputation of a person, or the fair trial of a person who has been or may be charged. If the IBAC was so satisfied, it may issue a notice ‘specifying the restricted matter or restricted matters’.
The respondent contended that a notice will be invalid if it identified as a ‘restricted matter’, something about which the requisite state of satisfaction had not been reached by the IBAC because the notice must specify only the particular restricted matter or matters about which the requisite state of satisfaction has been reached. Otherwise, the notice would impose a restriction without satisfying the required statutory precondition.
Further, identifying the subject matter for non-disclosure by general categories described using the language of the definition of restricted matters, could not satisfy the statute because the person issuing the notice has to reach a state of satisfaction as to the likely result of disclosure of the subject matter of the notice on reasonable grounds.
The respondent contended that what necessarily and obviously followed from the power being contingent on such a state of mind was that the restricted matter must have some definite factual content to enable the IBAC to consider the likelihood of prejudice from disclosure. The IBAC could not, he submitted, consider in the abstract that a disclosure of a generic kind was likely to be prejudicial in the required sense. Accordingly, a notice needed to identify definite factual content, not simply some broad category of restricted matter into which definitive factual content might fall.
Next, the respondent contended that the scope of the restricted matters in each notice was breathtaking. In substance, the scope of the list of restricted matters in each confidentiality notice appeared to replicate the entire definition of restricted matters.
Taking the first restricted matter on the notice as an example to illustrate his submission, the respondent submitted that that IBAC could not have considered on reasonable grounds that it was necessary to prevent the respondent from disclosing any information that the IBAC had ever obtained about anything. In drafting the notice in those terms, the IBAC had exceeded the bounds of the proper exercise of the power under s 42 of the IBAC Act.
The respondent submitted that the use of the word ‘specify’ revealed the statutory intention that a notice identify definite factual content. I understood the respondent’s submission to be that absent clarity in the factual content of the restricted matter, the recipient of the notice was unable to determine whether he or she had complied with it. The IBAC will have the requisite knowledge about the underlying factual matrix that gives content to restricted matters, but absent specific identification of the restricted maters by reference to the underlying factual matrix the recipient will not know what is confidential.
That was because it is ‘inherently likely’ that [any] police officer, ‘indeed almost certain, [will] have knowledge about various IBAC investigations to varying degrees, which if one were to construe a notice against that background would suggest that the entirety of that knowledge is covered’. So much could be drawn, the respondent contended, from the context of the statute. Police personnel conduct and police personnel misconduct are defined in broad ways in s 5 of the IBAC Act incorporating conduct likely to bring Victoria Police into disrepute, and disgraceful or improper conduct. The IBAC’s powers and functions set forth in s 15 include identifying, exposing, investigating police personnel misconduct and assessing police personnel conduct, and so forth. The IBAC has wide powers of entry, search and seizure under Division 3 or Division 4 of Part 4 of the IBAC Act. In this context under the third dot point in the confidentiality notice the restricted matter must be very broad, unrestricted and effectively unspecified, particularly in the context that there was no search warrant executed or documents seized in the particular investigation from which this application arose. The respondent contended that:
Reading such a preclusion reasonably, it is difficult to avoid the conclusion that there is something else not the subject of this investigation which is precluded by that which the IBAC perceives the respondent to know about. In our submission the inclusion of such expressions as the one that I have just taken Your Honour to necessarily suggest a broader ambit than merely the present investigation.
Except to the extent that all that was submitted was that the interpretation of the statute must allow for the eventuality that a recipient (for example an investigative journalist) may have knowledge about multiple IBAC investigations, I cannot accept this submission. The submission provided some context for the respondent’s contention that the legislature’s use of the word ‘specify’ in s 42 required that unless the IBAC stated in explicit terms the various matters which subsection (1) required to be stated, the notice was invalid.[4] That is, the IBAC could not specify in vague generalities, such as the mere statement of the classes or categories of possible restricted matter that are set out in the definition. It was submitted that this was not what the statute required. Rather, particularity and detail were intended.
[4]Citing Jolly v Yorketown District Council (1968) 119 CLR 347, 351; Harofam v Scherman (2013) 42 VR 372, 376 [12]-[14]; AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296, 307 [35] and [39] (‘AB Pty Ltd v ACC’).
The respondent further contended that as the power under s 42 allowed an administrative officer to criminalise an otherwise lawful communication, it was a condition of the validity of a s 42 notice that the proscription is ‘reasonably clear’. So much was said to follow from Pyneboard Pty Ltd v Trade Practices Commission.[5] Reasonable clarity in this context required that the notice must make it abundantly clear what was to remain confidential so as to permit compliance with the requirement of the notice. The offence is one of absolute liability.
[5]Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, 372 (‘Pyneboard’), affirmed on appeal in Pyneboard Pty Ltd v Trade Practices Commission (1983) 52 CLR 328; See also Daniel (a pseudonym) v Secretary to the Department of Justice (2015) 45 VR 266, 273-4 [24]-[25] (‘Daniel’s Case’).
The respondent submitted that the appellant’s contention - that any other construction of the statute would be unworkable because the IBAC would have to constantly issue and reissue notices on each occasion that IBAC provided information, or a person became aware of information, and that was a consequence that plainly was not intended by the legislature - demonstrated the invalidating error. That was because the appellant’s contention was predicated on a notice in the form adopted by the IBAC that was not specific and was apparently intended to cover every eventuality. The IBAC cannot possibly have turned its mind to the particular impact of disclosure of particular things as and when they may become known to the IBAC.
The respondent gave the following example of how he contended that the IBAC might have clearly and permissibly defined a restricted matter by specifying it as required by the section. Assume the restricted matter considered likely to cause relevant prejudice if disclosed was the fact that the person has been, or is proposed to be, examined, a valid notice would specify that the restricted matter is ‘the fact that you have been or are proposed to be examined, whichever might be the case’.
This was a useful and practical example because the respondent had disclosed the existence of the summons to attend the IBAC examination. However, the notice stated the existence of, or any information about, a confidentiality notice or a witness summons was a restricted matter. This example could not establish the unconstrained invalidity ground.
The respondent also contended that the appellant’s submission that context was relevant, implicitly restricted the breadth of the notice by limiting the restricted matters specified to what the respondent knew about the specified restricted matter. Such an implicit restraint was necessarily uncertain because the IBAC may think it knows what the recipient knows, or some portion of it, but if in fact the recipient knows something different to what the IBAC thinks he knows, then the specification by the notice will be different to what was intended.
The respondent contended that once a question as to the validity of the relevant notice was raised, there existed a sufficient basis for the magistrate to determine that the notices were invalid on their face because they were so lacking in any constraining perimeters, and so uncertain of scope that they were invalid.[6] It could not be presumed that the IBAC reached a state of satisfaction of such unlimited scope. Further, the IBAC may have exceeded its power by not reaching the state of satisfaction required in respect of each restricted matter specified.
[6]Citing Daniel’s Case (n 5) 273-4 [24]-[25].
For this reason, notwithstanding that the magistrate’s path of reasoning to that conclusion may have been erroneous (accepting the appellant’s statement of the elements of the offence), the magistrate was correct to dismiss the charges on the basis that the IBAC had not proven the validity of the notices.
The respondent also raised what he submitted was a knock out point that the relief sought by the appellant ought to be refused in any event because it would be futile to remit the charges back to a magistrate for further consideration. Each of the charges failed to identify which of the two confidentiality notices that were served on the respondent related to the specific charge. This defect required that each charge was insufficient to found a conviction.
The form of the charge is set out above. I accept the respondent’s contention that the particular confidentiality notice to which the charge related was not identified. The respondent submitted that consequently, the charge failed to identify the particular source of the obligation that was said to have been breached.[7] The respondent contended that each notice suffered from the same defect and both notices were invalid. Nothing that was set out in the charge assisted to identify which of the two notices, which discrete obligation of confidentiality, was imposed on the respondent.
[7]Citing Wells v Stillman [2020] VSC 51 (‘Wells v Stillman’).
Appellant’s reply submissions
The appellant contended that the respondent’s argument that the confidentiality notices were invalid on their face because of their unconstrained breadth failed to address the correct enquiry. The enquiry that the respondent identified from Daniel’s Case was inappropriate and the applicable enquiry had been identified by the full Federal Court in Comcare v Lilley.[8]
[8](2013) 216 FCR 214, 235 [87] (‘Comcare v Lilley’).
The appellant contended it was necessary to consider the statutory power and the context and purpose of the IBAC Act, particularly by reference to s 42(1) and the definition of ‘restricted matters’. The appellant contended that there was nothing in the text of s 42 nor in the Independent Broad‑based Anti‑corruption Commission Regulations2013, nor in the definition of ‘restrictive matters’, that required a confidentiality notice to set out a relationship of any kind between the specified restricted matters and the summons, and examination or an investigation. IBAC was permitted by s 121(2) of the IBAC Act to tell a person nothing of the matters about which the person will be questioned. The respondent could not point to anything that required the restricted matters specified in the confidentiality notice to be any more specific, or detailed, than the ‘restricted matters’ defined in the IBAC Act itself. Accordingly, a confidentiality notice could identify ‘restricted matters’ in the same terms as those used in the Act, and it was unsurprising that a notice might be of considerable breadth.
If the respondent’s contentions were accepted, further conditions or limitations beyond the text and context would impermissibly be implied into s 42 of the IBAC Act.
There were further reasons for rejecting the respondent’s contention about the ‘breathtaking’ scope of the notice:
(a) the notice prohibited disclosures. When considering uncertainty, the notice was directed at what the recipient ought not do, rather than what the recipient ought to do;
(b) the recipient of a confidentiality notice will ordinarily know nothing about the ‘restricted matters’ beyond what IBAC has provided, or disclosed, to him. The common sense practical construction of the notice requires the respondent not to disclose what he knew about the ‘restricted matters’;
(c) there was no evidence of any actual uncertainty or ambiguity in the notices, or evidence that the respondent was confronted with any difficulty in deciding what he could and could not disclose;
(d) it was not an issue that the respondent disclosed the existence of the witness summons, the subject of the investigation, the description of a thing he had produced and the evidence he had given. These disclosures fell within sub‑paragraph (a), (d), (e) and (g) of the statutory definition of ‘restricted matters’.
According to the appellant, if this submission was accepted there was no defect or error on the face of the notices, and no evidence before the magistrate that called into question their validity. Accordingly, once tended before the court, and having regard to the inferences arising therefrom, proof of the first element of the charge was made out. The appellant accepted that the presumption of regularity cannot cure defects or errors on the face of the notices. However, reliance was not placed on the presumption to prove an essential element of a criminal offence, but rather, to prove the validity of an administrative act. Had the confidentiality notices been challenged or had there been evidence about the invalidity of the notices, the prosecution would have had to have lead evidence about the issuing of those notices, but such circumstances never arose.
Turning to the respondent’s argument that there were two identical confidentiality notices served on him, and the charges did not identify which of the two notices was said to give rise to the obligations breached, the appellant made two points in reply. First, no particulars of the relevant charges were ever requested and secondly, because the two notices were identical, it could not be said that identifying one notice rather than another would have made any difference to the question whether the charge sufficiently made known what the recipient did and should not have done.[9]
[9]Citing Wells v Stillman (n 7) [22].
Analysis
Turning first to the respondent’s knock out point, I do not accept that the fact that the two notices are in identical form is entirely irrelevant. To the contrary, it is the answer to the respondent’s objection. Either notice identified an identical obligation of confidentiality. There could be no conflict. There was no confusion or uncertainty evident as arising from the statement of the charges and the existence of two confidentiality notices, such as would flummox the respondent about his duty of confidentiality imposed by the IBAC. There was no evidence that the respondent could not identify his obligation of confidentiality. There was evidence that he told the IBAC examiner that he understood the confidentiality notice and the obligations that it imparted. Particulars were not sought prior to, or at trial. No objection based on a want of particularity of the obligation was ever taken. The point was first taken on the appeal.
To illustrate his point, the respondent submitted an example constructed by reference to two identical offences of assault, one a charge laid under s 23 of the Summary Offences Act 1966, and the other at common law. Although the elements of each offence are precisely the same, that fact would not save charges that alleged the assault but failed to identify which obligation was said to be breached. The requirement remains that one must identify the particular obligation that is said to be breached.
Like the primary submission, this illustrative example is misconceived. The assault charges do not require identification of an obligation that was breached. The breach of the legal norm not to assault is unambiguous. The charges are defective, not in substance, because they identify the elements of the offence charged, but in form, because they do not identify the source of the offence.[10]
[10]Criminal Procedure Act 2009, Schedule 1, cl. 1.
The confidentiality obligation that was breached was stated in identical terms in each notice. Unless the respondent succeeded on his primary contention that the notices were invalid on their face, the obligation not to disclose restricted matters was clearly communicated by either or both notices in identical terms. The charges clearly stated the offence the respondent was alleged to have committed, relevantly identifying the section of the IBAC Act that created the offence. They also stated that the respondent did what he should not have done - the respondent disclosed to [named person] restricted matters specified in the Confidentiality Notice.
I do not accept that the charges do not give reasonable particulars of their nature. Those reasonable particulars would remain unaffected by nomination of either or both of the confidentiality notices as the source of the obligation for any particular charge.
In Wells v Stillman,[11] Wells sought to have struck out, on the basis that it was invalid, a charge that without reasonable excuse, he accessed ‘police information’ contrary to his duty not to access the information, an offence contrary to s 227(1) of the Victoria Police Act 2013 (Vic). The issue before the court was whether the charge was invalid because it did not include the essential factual ingredients of the alleged misconduct, in additional to the legal elements of the charge.
[11](n 7) [22].
Quigley J accepted that the police information that was the subject of the charge needed to be identified by particulars since such particulars, by identifying the nature of the police information, give colour to the officer’s relevant duties. As the charge was framed, it was not realistic for Wells to know what was the material and particular information that formed the subject of the offence. As the charge was invalid on its face, it could not be cured by particularisation that ought to have initially identified the ‘police information’ that he accessed contrary to his duty not to do so.
The restricted matters that the respondent was under an obligation to keep confidential were not, subject to the unconstrained invalidity ground argued on the appeal, in any doubt. I now turn to that second ground.
When evaluating whether the confidentiality notices were invalid as lacking restraining parameters or were uncertain in scope, it is pertinent to recall that unlike the circumstances of most, if not all of the cases cited to me, the respondent was charged with doing an act that he had by notice been prohibited from doing, rather than not doing an act that was demanded of him by notice. Invalidity of a notice on this ground does not result from a freestanding principle. In question is the scope of the statutory obligation.
In Daniel’s Case, the Court of Appeal was concerned with the validity of a single condition contained in a supervision order made under the Serious Sex Offenders (Detention & Supervision) Act 2009 prohibiting the appellant from practising or performing ‘magic tricks’. Questions raised by the appeal included what is a ‘magic trick’ and is a condition prohibiting the appellant from performing magic tricks in private, reasonably necessary to reduce the appellant’s risk of reoffending. The appeal did not concern any uncertainty or ambiguity in the statutory provisions under which the supervision order was made.
Priest JA considered it desirable that conditions in supervision orders be expressed with the same clarity and precision as is appropriate for injunctions. A person subject to a restraint was entitled to know what he was required to do, not as a matter of law, but as a matter of fact. As with an injunction, any condition attached to a supervision order must be expressed in as clear and unambiguous language as the circumstances reasonably permit. The language of a condition must be sufficiently precise as to make plain to a person subject to the supervision order what are the limits of the prohibited act or acts.
Priest JA concluded that an ordinary member of the public with a modicum of common sense generally would identify a ‘magic trick’ to be a feat which gives the illusion of magic (that is, producing an effect through some supernatural influence). But the appeal was decided on a different ground and Priest JA found it unnecessary to decide whether the impugned condition was so uncertain as to render it invalid. The legislation required the court to ensure that the conditions of a supervision order ‘constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions’.[12] Priest JA considered that it was plain that the impugned condition went far beyond what the Act would authorise in that respect.
[12]Serious Sex Offenders (Detention & Supervision) Act 2009, s 15(6).
In Comcare v Lilley, the Full Federal Court observed:
The point is, uncertainty (which may often be a synonym for lack of precision) is not some kind of freestanding criterion for invalidity. Uncertainty will only invalidate because one can derive from the text, context and purpose of the statute an intention by Parliament that the power be confined in a way which requires a high level of certainty (or precision). That will not always be the case.[13]
[13]Comcare v Lilley (n 8) 235 [87].
Although I am not concerned with the validity of delegated legislation as was the court in Comcare v Lilley, the same principles apply to written instruments issued under statutory power.[14] In Pyneboard, the Full Federal Court observed:
uncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning.[15]
[14]AB Pty Ltd v ACC, (n 4) 305 [31].
[15]Pyneboard (n 5), 372.
The respondent contended that the statutory question was whether s 42 required that the IBAC specify the restricted matters with reasonable clarity and by reference to the relevant factual matrix of the investigation. The appellant contended that the question was whether s 42 evinced an intention that expressing a confidentiality notice in the same terms as are used in the Act without more would render the notice invalid. The appellant submitted that specifying the restricted matters in the same language as was used by the act to define the nature of restricted matters could not render a notice invalid unless there was a statutory intention that restricted matters be identified in a notice in more specific detail than was provided by use of the definitional language.
The essence of the issue joined between the parties was whether the term ‘specify’ expressed such a statutory intention. For the reasons that follow, it does not.
In AB Pty Ltd v ACC, Flick J upheld the exercise of a power to obtain documents by notice to produce under s 29 of the Australian Crime Commission Act 2002 (Cth). The applicant contended that the notices to produce were invalid as they did not identify the documents sought to be produced with the degree of specificity required by s 29, and that the examiner when issuing the notices failed to consider the relevance of the documents to the special operation being undertaken. The notice listed extensive categories of financial and corporate records but specified limited information about the purpose of production. There was a notation that the ‘Australian Crime Commission is conducting a special operation’ and that an examiner whose signature was indecipherable stated that he was ‘satisfied that it is reasonable in all the circumstances’ to require the production of the documents thereafter listed in the Schedule.
Section 29 relevantly provided that ‘an examiner may, by notice in writing served on a person, require the person … to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special [Australian Crime Commission] operation/investigation’. Before issuing a notice, the examiner needed to be satisfied that it was reasonable in all the circumstances to do so. As with s 42 of the IBAC Act, there are few restraints on the power to require production expressed in s 29 or more broadly in the Australian Crime Commission Act.
I pause to observe that specifying what must be produced is conceptually different from specifying what should not be disclosed. Producing a document or providing information requires the notifier to specify what it wants. This is not done by choosing from a statutory list. In the case of maintaining confidentiality, the IBAC Act defines restricted matter. When the empowering act does not define what documents the notifier is entitled to, a notice to produce a document requires more in the act of specifying. In distinction, what is specified under s 42 must be limited by what is set out in the definition.
Flick J noted that the legislature had considered extensive powers of production of documents to the Australian Crime Commission to be appropriate and necessary and that such powers had the very real potential to intrude on the liberty and privilege enjoyed by an individual to keep his documents confidential to himself. After considering other statutory provisions and cases in respect of them, Flick J noted that although guidance may be gained from the manner in which other statutory provisions have been construed and applied, it remained the terms of s 29 that dictated the conclusion to be reached in the that proceeding.
AB Pty Ltd submitted that there was uncertainty in the notice arising from the use of expressions in the notice such as ‘business unit’, ‘all corporate records’, ‘indirectly’, and ‘company or ‘company’s’, that required that the notice be found to be not authorised or beyond the power conferred by s 29. Rejecting this contention, Flick J observed that no greater guidance was provided by the legislature as to the manner in which a document or thing may be identified, other than it must be specified in the notice.
The word ‘specify’ is defined in The Macquarie Dictionary in these terms:
1. to mention or name specifically or definitely; state in detail. 2. to give a specific character to. 3. to name or state as a condition. — verb (i). 4. to make a specific mention or statement.
Context is significant. What s 42 of the IBAC Act requires is that the notice specifies ‘the restricted matter or restricted matters in accordance with this section’. The provisions of the section are set out earlier, and notably, restricted matters are defined by the IBAC Act. There appears to be no reason why the power conferred by s 42 should not be construed using the meanings that the words in context naturally bear. The authorities record the concern of the law to ensure that statutory demands authorising the production of information or documents for regulatory or law enforcement purposes, are construed in a practical and common sense manner. Ambiguity may be discerned by those with initiative to find uncertainty where none really exists.
The appellant contended for the fourth of the meanings found in the dictionary although in the present context, I discern no difference in meaning between the first and the fourth meanings. Either phrase describes the natural meaning of specify in the context in which it is found in s 42. I doubt that the parties were apart on this as the respondent seemed to submit that ‘specify’ was synonymous with ‘identify’. As I note later in these reasons, restricted matters are defined, and the drafter of a s 42 notice specifies by choosing from the definitional list.
The respondent submitted that the principles are best espoused by the Full Federal Court in Pyneboard, a decision that concerned a notice under s 155 of the Trade Practices Act 1974 (Cth). The point of this submission was a little obscure. Although the statutory context was different in each case, the power under s 42 of the IBAC Act is more analogous with s 29 of the Australian Crime Commission Act than s 155 of the Trade Practices Act. Moreover, Flick J carefully considered Pyneboard and many other cases in the line of authority that flows from that case. In the context of the task presently before the court, I prefer the careful and considered approach adopted by Flick J in AB Pty Ltd v ACC in laying out the proper approach to construction of the statutory power. The respondent’s authorities, notably Daniel’s Case and Pyneboard identify, consistently with AB Pty Ltd v ACC, how the court should approach the proper assessment of the validity of the notice.
In Pyneboard, Northrop, Deane and Fisher JJ relevantly observed:
Questions of ultra vires aside, we would respectfully agree with Fox J that uncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning. Strictly speaking, when this point is reached, what is involved is not a matter of mere ambiguity or uncertainty,[16]
and later:
The requirement that a notice under s 155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion. Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s 155(1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear.[17]
[16]Pyneboard (n 5), 372.
[17]Ibid (citations omitted).
Subsequent authorities have applied a broad common sense approach to the construction of statutory notices as an expression that fairly synthesises the detailed discussion in Pyneboard.[18] If the demand can be reasonably understood, the notice is valid. Further, if a specification in a notice may convey several different meanings it is for the court to say looking at the general background, the surrounding circumstances, the subject matter of discourse and other aids derived from the context of the specification, supplemented not infrequently by certain legal presumptions, what meaning is to be attributed to it.
[18]SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357, 370; Fieldhouse v Deputy Commissioner of Taxation (1989) 25 FCR 187, 208; Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) (2007) 240 ALR 135, [36]-[43]; CK Nominees Australia Pty Ltd v Offıcial Receiver (WA) (2007) 160 FCR 524, 537 [39]; AB Pty Ltd v ACC (n 4).
Having regard to the functions vested in the IBAC, the requirements for a valid notice through the exercise of the power under s 42 are less constrained than the position in respect of notices for production of documents or information in the cases discussed.[19] A recipient of a confidentiality notice under s 42 may not have any knowledge of a particular investigation or of the underlying factual matrix. The recipient may have no knowledge of the information available to the IBAC or of how that information may expose the relationship between the recipient and the investigation, or between the recipient and others considered to be related to the investigation, and there may be good reason to keep such information confidential to a corruption investigating body. That, however, was not this case.
[19]Note the summary of that position in Australian Securities Commission v Lucas (1992) 36 FCR 165.
On careful reading of the text of s 42, no requirement beyond the use of the word ‘specify’ for any greater detail than is set out in the definition of ‘restricted matters’ in s 3 of the Act, is evident. The definition in s 3 is a list of various matters that are restricted matters. It is an exhaustive list, which is made clear by the opening expression ‘restricted matter means’.
The appellant submitted, and I agree, that ‘specifying’ in the context of this section means no more than ‘identifying or stating the restricted matter or matters in accordance with the section’. There is no requirement for greater detail. It is a matter of identifying which one or more of the matters defined as restricted matters are relevant in the circumstances of the notice. Section 42(2) requires that a confidentiality notice be in a prescribed form and that it specify the restricted matter or matters. Clearly in that statutory context, this is a reference to the definition.
The appellant drew attention to s 42(2)(e), a subsection since repealed, that demonstrated how Parliament, when referring to a particular restricted matter, defined it in precisely the same terms as had been used in the definition in s 3. In that sense, Parliament was contemplating how restricted matters might be defined in a notice. The use of ‘specify’ throughout that subsection is consistent with the natural meaning of the term as discussed above.
Section 121(2) requires that a witness summons to give evidence before the IBAC must state the nature of the matters about which the person is to be questioned. An exception exists however permitting the IBAC, where it considers on reasonable grounds that this would be likely to prejudice the conduct of the investigation or would be contrary to the public interest, to not state the nature of the enquiry. In that circumstance, on the one hand, it may be desirable to provide information other than is conveyed by using the statutory definitional language. On the other hand, providing any further detail might compromise the policy reflected in s 121(2). However, that too was not this case.
The appellant submitted that, considered more broadly, requiring restricted matters to be stated in greater detail than is evident from the definitional language, as the respondent contended, may limit the investigative efficacy of the IBAC in a manner that is not evident from the text of the statute. Whether requiring greater detail in a confidentiality notice would have this effect is ultimately dependent upon the circumstances. In my view, it is unnecessary to further explore this question, because the context and background of the investigation was identified for the respondent’s benefit.
The express legislative constraint that the respondent sought to invoke was, first, the requirement that the notice specify the restricted matters and second, the requirement that the IBAC have a state of satisfaction about the prospect of prejudice to the matters identified in the section. Concentrating for the moment on the first of these asserted constraints, the respondent’s contention that the notice was impermissibly vague, broad, and unlimited confused the principles governing construction of the notices with those governing the construction of the statute. The statutory requirement to specify must be construed in a manner applicable generally and consistently in all circumstances where the statutory power is invoked. The construction of the statute does not admit of an analysis of the background and context of this particular notice, or of the degree or extent of the recipient’s knowledge about restricted matters.
On the other hand, the construction of the notices must occur in that context. The notices, while adopting that statutory language for the specification, do so in the background and context of the particular investigation. Accordingly, the court may take into account the respondent’ knowledge and background and contextual facts. When viewed in this context, I cannot accept the respondent’s contention that the notices are invalid for being impermissibly vague and unlimited. There cannot be imprecision and uncertainty about the restricted matters when the notice uses the identical language to the definition in the Act. The contention could not be founded on a common sense interpretation of the notices.
When the respondent was served with the confidentiality notice he was also served with a summons pursuant to s 120 of the IBAC Act that set out the general subject matter of the examination. It stated:
You will be required to give evidence before the IBAC in relation to –
·Your knowledge of and involvement in, matters concerning the arrest of [named persons] on the [date] and the subsequent withdrawn prosecution and internal investigation of [named police officers].
·Your involvement in appropriately accessing information held in a Victoria Police database.
Plainly, the confidentiality notices stand to be construed in this context and against this background. On any view, a significant factual matrix was revealed that colours the restricted matters identified in the confidentiality notices.
The restricted matters that the notices specified were identified in the dot points set out in paragraph [13] above. I commence with a caveat. The slavish repetition in the notice of the definition of restricted matters from the statute often produces poor legal drafting. To say that the drafting is not perfect falls well short of saying that it is inadequate and that the notices are invalid. As the appellant submitted, the text and context of the statute do not require greater detail of the specific factual matrix lying behind the IBAC’s determination to be provided in the notice specifying the restricted matter. Neither does the text and context of the statute preclude use by repetition of the definitional language from the statute in the notice, when that language is sufficiently precise to permit the drafter of the notice to ‘specify’ using that language.
The scope of the categories of restricted matter in the statutory definition is not hard to discern. The first descriptive category restricts disclosure of any evidence or information given to, or obtained by, the IBAC. The second and third categories restrict disclosure of the contents of any document, or a description of anything, produced to, or obtained by the IBAC, including by copying or seizure under Division 3 or Division 4 of Part 4 of the IBAC Act. The fourth category addresses the existence of, or any information about, a confidentiality notice or a witness summons. The fifth category restricts from disclosure the subject matter of an investigation in relation to which a witness summons has been issued. The sixth category restricts identification or location of an examinee or a person who has produced documents or things to the IBAC, and the final category restricts disclosure of the fact that a person has been, or is proposed to be, examined by, or has produced, or may produce, any document or thing to, the IBAC.
There is no uncertainty of scope, or impermissible want of constraint in these categories when considered in the relevant context. I see no difficulty with any specification that was liable to raise an issue as to the validity of the notices. None is uncertain or unlimited, if read in a practical common sense way, in the context and background that I have identified.
In describing why the recipient has been given the notice, the notice explains the state of satisfaction reached by the IBAC about the likelihood of prejudice from disclosure of any restricted matter to an investigation it is conducting, the safety or reputation of a person or the opportunity for a fair trial. In doing so, the notices follow not just the language of the section, but also the language of the prescribed form, as the section requires.
There could not sensibly be any challenge that the IBAC could, on reasonable grounds, consider that disclosure of any of the restricted matters was likely to be prejudicial in one or more of the three ways identified in the section.
The respondent retreated to the suggestion that a recipient may know evidence, information, the content of documents or descriptions of things that extended beyond the investigation relevant to the respondent, at which point the scope of the notices became uncertain because the ‘specifying’ was of broad, unlimited categories of restricted matters. Ambiguity of this sort is illusory and the submission was searching for uncertainty where none in fact existed. The contention was, classically, a submission that avoided a common sense and practical approach to construing the notices and was enslaved by an initiative to find uncertainty where none really existed.
Conclusion
For these reasons, I am satisfied that the magistrate was in error on each ground and there was no substance in the additional grounds raised by the respondent that challenged the validity of the notice. I was not persuaded that it would be futile to set aside the dismissal of the charges and remit them to the Magistrates Court to be reheard in accordance with my reasons.
I will make the following orders:
(a) The appeal will be allowed.
(b) The order of Magistrate Gilligan in the Magistrates’ Court of Victoria at Melbourne on 12 June 2019 in case no J11317875, dismissing charges 1, 4, 5 and 6 will be set aside.
(c) The proceeding will be remitted to the Magistrates’ Court of Victoria for further hearing and determination according to law.
Ordinarily, costs follow the event, meaning that the respondent ought to be ordered to pay the appellant’s costs of the appeal. I direct the parties to confer as to whether liability for costs can be resolved, and if so, to submit a consent minute. Otherwise, I direct that by 19 June 2020, the parties file and exchange submissions in respect of costs. Unless persuaded by those submissions to do otherwise, I will determine the question of costs on the papers.
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