Commonwealth of Australia and Australian Federal Police v Criminal Justice Commission

[1995] QCA 333

IN THE COURT OF APPEAL

[1995] QCA 333

SUPREME COURT OF QUEENSLAND

Appeal No. 157 of 1995

Brisbane

Before McPherson J.A.

Davies J.A.

Fryberg J.

[Commonwealth of Australia & A.F.P. v. Criminal Justice Commission ]

BETWEEN

THE COMMONWEALTH OF AUSTRALIA First Appellant

AND

THE COMMISSIONER OF THE AUSTRALIAN

FEDERAL POLICE Second Appellant

AND

THE CRIMINAL JUSTICE COMMISSION Respondent

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered the 9th day of August 1995

Mr R.V. Hanson Q.C. was on 5 June 1995 appointed to constitute the Criminal

Justice Commission of Queensland ("CJC") to conduct a hearing into the question whether

any officer of various designated bodies, including the CJC itself, had wrongly

disseminated information concerning "Operation Wallah". That operation had been the

subject of a report of which a copy had been delivered to the AFP. It contained information

which, it may be inferred, suggested that certain persons might have committed offences

against Commonwealth law.

The Australian Federal Police ("AFP") have in their turn been required to undertake

a review of the activities referred to in the CJC Report on Operation Wallah. Their report

on the subject, which is entitled "Operation Gallon", is dated 24 May 1995. A copy of it was

given to a Mr Russel Pearce, who is an officer of the CJC who was charged with

investigating matters the subject of Operation Wallah.

In the course of the hearing before Mr Hanson Q.C. the AFP Report has become

the subject of attention. In giving evidence Mr Pearce has been referred to some of the

contents of that Report and has commented on them. For the purpose of taking

instructions from their clients or prospective witnesses legal representatives appearing

before Mr Hanson have been authorised by him to have access to the AFP Report subject

to conditions intended to prevent its dissemination.

It has been confirmed by Mr MacSporran (counsel assisting Mr R. Hanson Q.C.) that

the conditions under which confidential exhibits (such as the Gallon Report currently is) are

being disclosed as follows:

"*	They are not to be copied;
*	They are only to be used for the purpose of taking instructions from prospective witnesses to the inquiry being conducted by Mr R. Hanson Q.C.;
*	That the exhibit is to be returned to the custody of the CJC at the completion of Mr Hanson's Inquiry or such earlier time as Mr R. Hanson directs."

Mr Hanson has made a suppression order with respect to it, of which the effect is to

prevent publication of the evidence until an application could be made to court to decide

whether an injunction should issue restraining the CJC from publishing or disseminating

the Report and ordering that it and all copies be delivered to the AFP.

This is an appeal against a decision by the Chamber Judge refusing that injunction. Before the judge below it was contended that the AFP Report had been delivered

by the AFP to Mr Pearce and the CJC subject to and on the terms of a written

understanding entered into between those two investigative organisations. This would, on

one view of it, have meant that the CJC was obliged to keep it secret. The contention to

that effect was rejected in the Court below and was not repeated on appeal. It may

therefore be disregarded here.

The ground on which Mr Bell Q.C., who appeared for the Commonwealth of which

the AFP is an instrumentality, submitted that the injunction should have been granted is that

the contents of the Report were confidential and that it would be prejudicial to the public

interest if it or they were to be disclosed. The Report carries on its front page a notation

to the effect that:

"The content of this report is confidential and should not be disclosed to a

third party without the permission of the Australian Federal Police".

That notation, although perhaps a factor to be considered, is not decisive of the question

before us. The question is whether, even assuming it was received by the CJC in

confidence, the Report or its contents answer the description claimed for it by the

Commonwealth.

Early in the hearing of the appeal we expressed the view that we were not prepared

to act on the bare assertion of an officer of the AFP that the Report or its contents were of

such a character as to require protection by injunction without our having read it ourselves.

It is not of course enough for the Commonwealth as plaintiff to assert that the Report is of

a confidential nature or that it should, in the public interest, not be referred to or used in the

manner contemplated by Mr Hanson Q.C. at the inquiry being conducted by him. It is for this Court, and not the AFP, to decide whether or not the Report merits the protection of the

law.

Mr Bell Q.C. then provided copies of the Report to the members of the Court. Each

of us has now read it. Mr Bell also provided a written summary of matters, identified by

reference to pages or subjects in the Report, which he submitted justified granting the

injunction sought.

Having read the Report in question and considered the matters in the passages so

identified, we are very far from being persuaded that it contains much, if any, confidential

information which it would be prejudicial to the public interest to disclose. To that general

conclusion we would add only one qualification, which is that there is some material which

on a generous view of it may conceivably have the effect contended for.

In relation to it, we find it convenient to adopt the classification used by Mr Bell

without committing ourselves finally to the view that a case is made out for protection of the

matters we are about to mention.

The first category consists of sources of police information which it is said will "dry

up" if publication is permitted in the manner envisaged. None of the matters mentioned in

the summary appear to us, on a fair reading, to partake of this character.

The second category consists of material which, if publication takes place, will (it

is said) be liable to compromise police investigations. As to this category, we are

prepared for present purposes to accept that some such consequence might or may issue

if the following matters are disseminated:

(a)       on p.9, the matters in the paragraph headed "Other allegations".

(b)       on p.45-46, the matters appearing under the heading "Corporation and Taxation

Offences";

(c)        on p.46-47, the matters appearing under the heading "Possible Passport Offences";

(d)       on p.47-48, the matters appearing under the heading "Recommendations".

The third category consists of material said to disclose "police methods". With

respect to this, the following matter may perhaps be considered confidential: on p.14, the

first full paragraph on that page.

Mr Hanson Q.C. has hitherto demonstrated his willingness to ensure that publication

or dissemination of the Report "Operation Gallon" does not exceed what is needed to

enable him to discharge his functions.

In view of this we would be content to accept an undertaking (to continue until further

order) from counsel on behalf of the defendant CJC that the matters we have identified in

that Report are covered up, obscured, or otherwise rendered indecipherable before it is

published or disseminated.

On receipt of that undertaking, the appeal should be dismissed.

There should be liberty to apply.

The appellant should be ordered to pay the respondent's costs of this appeal.

ABBREVIATED CATCHWORDS:

Commonwealth of Australia & Aust. Federal Police v. Criminal Justice Commission]

CIVIL -

McPherson/Davies/Fryberg

August 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 157 of 1995

Brisbane

[Commonwealth of Australia & A.F.P. v. Criminal Justice Commission ]

BETWEEN

THE COMMONWEALTH OF AUSTRALIA First Appellant

AND

THE COMMISSIONER OF THE AUSTRALIAN

FEDERAL POLICE Second Appellant

AND

THE CRIMINAL JUSTICE COMMISSION Respondent

McPherson J.A.
Davies J.A.

Fryberg J.

Judgment delivered 09/08/95

Reasons for judgment by the Court

APPEAL DISMISSED ON RECEIPT OF UNDERTAKING FROM COUNSEL ON BEHALF OF DEFENDANT CJC THAT THE MATTERS IDENTIFIED IN THE REPORT ARE COVERED UP, OBSCURED, OR OTHERWISE RENDERED INDECIPHERABLE BEFORE IT IS PUBLISHED OR DISSEMINATED. THERE SHOULD BE LIBERTY TO APPLY AND THE APPELLANT TO PAY THE RESPONDENT'S COSTS OF THIS APPEAL.

CATCHWORDS	INJUNCTION - Whether injunction should issue restraining CJC from publishing or disseminating confidential police report - Whether disclosure of report would be prejudicial to public interest.
Counsel:	J. Bell Q.C., with him P. Dunning, for the appellant
C.E.K. Hampson Q.C., with him L. Hampson, for the respondent
Solicitors:	Australian Government Solicitor for the appellant
W.H. Tutt & Quinlan for the respondent
Hearing Date:	8 August 1995