Crime and Misconduct Commission v FLP
[2011] QMC 8
•18 May 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION: Crime and Misconduct Commission v FLP [2011] QMC 008
PARTIES: CMC
(applicant)
v
FLP
(respondent)
FILE NO: MAG201054/10(9)
PROCEEDING: Application to set aside a summons of a witness
ORIGINATING COURT: Brisbane
DELIVERED ON: 18 May 2011
DELIVERED AT: Brisbane Magistrates Court
HEARING DATE: 4 May 2011
MAGISTRATE: Hine BP, Deputy Chief Magistrate
ORDER:The summons of a witness that was issued to The Proper Officer, Crime and Misconduct Commission is set aside.
CATCHWORDS: JURISDICTION, PRACTICE AND PROCEDURE - SUMMONS OF A WITNESS – SECRECY PROVISIONS-
INTERPRETATION
Crime and Misconduct Act 2001(Qld), s 62, s 213
COUNSEL: M.J. Byrne for applicant
S.Zillman for respondent
SOLICITORS: Crime and Misconduct Commission for applicant
Gilshenan & Luton Legal Practice for respondent
The Application
The respondent to this application FLP has been charged
1)that on the 13th day of October 2009 at Spring Hill in the State of Queensland he unlawfully and indecently assaulted one WNB: and further
2)that on the 15th day of October 2009 at Fortitude Valley in the State of Queensland he unlawfully and indecently assaulted one WNB.
A summons of a witness was issued to The Proper Officer, Crime and Misconduct Commission. That summons stated:-
“You are required to bring with you and produce all documents and writings in your possession or power, namely:
1.Documents identifying WNB’s position description/s during the time that she was employed with the Crime and Misconduct Commission.
2.WMBs’ complete personnel file
3.Any Curriculum Vitae or Résumé provided to the Crime and Misconduct Commission by WMBs’
4.WMBs’ application for employment with the Crime and Misconduct Commission.
5.Any documentation obtained or created as a consequence of security checks or clearances regarding WMB that were conducted by the Crime and Misconduct Commission.
6.Any letters or statements pertaining to WMB and her qualifications that were provided to the Crime and Misconduct Commission.
7.Any documents pertaining to complaints or reports of sexual harassment or bullying that WMB made about any other staff member or official during her employment with the Crime and Misconduct Commission.
8.WMBs’ contract of employment with the Crime and Misconduct Commission.”
The application the court is dealing with is an application to set aside the abovementioned summons. The application is made by Mr Peter Holohan, Proper Officer, Crime and Misconduct Commission and he seeks the following orders:
1. That the summons addressed to the Proper Officer, Crime and Misconduct Commission filed this 9 February 2011 be set aside.
2. Costs of and incidental to the application.
Two affidavits of Mr Holohan dated the 25th February 2011 were filed on the 28th February 2011 setting out the reasons for objections to producing the documents.
Miss Lucinda Mary McPhee, Solicitor in the employ of Gilshenan & Luton Legal Practice has sworn two affidavits, one dated the 28th day of February 2011 and one dated the 4th day of May 2011 in which she sets out the reasons why the documents are required.
Material supplied under the summons
The Crime and Misconduct Act 2001 (the Act) provides as follows:-
62 Restriction on access
(1)Any information, document or thing in the commission’s possession may be used and dealt with in performing the commission’s functions, but otherwise must not be given to or made available for inspection by any person without the commission’s express written authorisation.
(2) Subsection (1) is subject to sections 293 and 317.
In Accordance with that section the Chairperson of the Crime and Misconduct Commission who purports to be a delegate of the commission for the purposes of section 62 of the Act has given written authorisation (exhibit 1) for the information, documents or things in the possession of the Commission and specified in Part A of the schedule to the authorisation to be given to the person specified in part B of the schedule on the conditions specified in Part C of that schedule.
I set out in full the Schedule:-
SCHEDULE
Part A
o Summary of documents held by the Crime and Misconduct Commission (CMC) concerning harassment and bullying claims made by WNB against CMC officers; and
o Summary of documents held by the CMC concerning the qualifications of WNB
Part B
The Pesiding Magistrate
Brisbane Magistrates Court
363 George Street
BRISBANE QLD 4000Part C
The material is to be used exclusively for the purpose of the Presiding Magistrate hearing and deciding an application by the CMC to set aside a summons issued by Gilshenan & Luton Lawyers in the matter of Police v FLP dated 1 November 2010. The summons is for the production of documents relating to WNB, a former staff member of the CMC.
Exhibit 2 is the Summary of documents held by the Crime and Misconduct Commission (CMC) concerning harassment and bullying claims made by WNB against CMC officers.
I was advised by Ms. Greenwood that an identical certificate has been issued in the name of Gilshenan and Luton and its legal representatives.
The Chairperson has also issued a further written authorisation (exhibit 3) for the information, documents or things in the possession of the Commission and specified in Part A of the schedule to the authorisation to be given to the person specified in part B of the schedule on the conditions specified in Part C of that schedule which authorisation reads as follows:-.
AUTHORITY TO GIVE INFORMATION DOCUMENT OR THING TO ANOTHER ENITY OR PERSON
I MARTIN PATRICK MOYNIHAN of the Crime and Misconduct Commission, and a delegate of the Commission for the purpose of section 62 of the Crime and Misconduct Act 2001, HEREBY AUTHORISE the information, documents or things in the possession of the Commission and specified in PART A of the attached schedule to be given to the person specified in PART B thereof on the conditions specified in PART C thereof.
DATED this 28 day of February 2011
MARTIN PATRICK MOYNIHAN
Chairperson
Crime and Misconduct Commission
SCHEDULE
Part A
·CMC Position Description – Deputy Director Vacancy Ref Number 31/08
·Crime and Misconduct Commission Application for Advertised Position dated 13/06/08
·Generic Curriculum Vitae/Demonstrated Competencies WNB, undated
PART B
Gilshenan and Luton Legal Practice
Level 11
15 Adelaide Street
BRISBANE QLD 4000PART C
The material is to be used exclusively for the purposes of the complainant in the matter of Police v FLP dated 1 November 2010
Accordingly those matters in Part A of the Schedule to Exhibit 3 are not in contention in this application.
Interpretation
In relation to documents 1 to 8 sought in the summons of a witness Mr. Holohan in his affidavit states:-
a.These documents have come into my possession because I am a Commission Officer;
b.Matters or things related to these documents have come to my notice because I am a Commission Officer;
c.The Commission or a Commissioner in the Commissioner’s official capacity is not a party to the proceedings;
d.It is not necessary to produce the document or disclose the matters contained in it to give effect to this Act or for a prosecution started as a result of an investigation conducted by the Commission.
S213 of the Crime and Misconduct Act 2001 states:-
213 Secrecy
(1) This section applies to a person who is or was—
(a) a relevant official; or
(b) a member of the reference committee; or
(c) a person to whom information is given either by the
commission or by a person mentioned in paragraph (a)
or (b) on the understanding, express or implied, that the
information is confidential.
(2)A person must not make a record of, or wilfully disclose, information that has come to the person’s knowledge because the person is or was a person to whom this section applies.
Maximum penalty—85 penalty units or 1 year’s imprisonment.
(3) However, a person does not contravene subsection (2) if—
(a) in the case of a record—
(i)the record is made for the purposes of the commission, this Act, the parliamentary committee, the parliamentary commissioner or an section; or
(ii) the making of the record was lawful under a
repealed Act; or
(b) in the case of a disclosure—
(i) the disclosure is made—
(A)for the purposes of the commission, this Act, the parliamentary committee, the parliamentary commissioner or an investigation of an alleged contravention of this section; or
(B)at the direction of the parliamentary commissioner under chapter 6, part 4; or
(ii) the disclosure was lawful under a repealed Act; or
(c)in the case of a record or a disclosure—the information was publicly available.
(4)A person may not be required to produce in any court a document that has come into the person’s possession, or to disclose to any court a matter or thing that has come to the person’s notice, because the person is or was a person to whom this section applies, unless—
(a)the commission, or a commissioner in the commissioner’s official capacity, is a party to the relevant proceeding; or
(b)it is necessary to produce the document or disclose the matter or thing—
(i) to give effect to this Act; or
(ii)for a prosecution started as a result of an investigation conducted by the commission.
(5) In this section—
require the production of documents or the answering of questions.
produce includes permit access to.
relevant official means a person who is or was one of the following—
(a) a commission officer;
(b) a member of the parliamentary committee;
(c) the parliamentary commissioner;
(d) an officer of the parliamentary service;
(e)a person appointed, engaged or assigned to help the parliamentary committee or the parliamentary commissioner;
(f) the public interest monitor;
(g)a person mentioned in section 132 of the repealed Criminal Justice Act 1989;
(h)a person to whom section 126 of the repealed Crime Commission Act 1997 applied.
repealed Act means—
(a) repealed Criminal Justice Act 1989;
(b) repealed Crime Commission Act 1997.
Mr Zilman submitted that the word ‘document’ in subsection (4) should be read down. He submitted that to exclude any information being made available whether it be in documentary form or otherwise would lead to an obvious absurdity in the construction of the provisions.
He states that if the provision of subsection (4) was read in the way urged by the applicant then the section would prohibit the requirement of the proper person to produce to this court a document to the effect that the staff’s Christmas function was held on a given occasion. It would also prohibit the Officer of the Commission revealing that carpets in the Commission were cleaned on a given day and other examples were given. It was submitted that these examples show that if such information was protected from disclosure it would lead to an absurd result.
Mr. Zillman states that it is a well established canon of statutory construction that a court will strive to avoid, in the construction of a provision of an act, any such absurdity. He submitted that there are instances of where an absurdity is able to be avoided by construing language in a given way. His submission in relation to s 213(4) is that the word ‘document’ as it appears and the words ‘matter or thing’ may be read as referable to the Commission’s functions. Section 23 was referred to under the heading “Commission functions, investigation and reporting” -
“23 Commission’s prevention function
The commission has a function (its prevention function) of helping to prevent major crime and misconduct.”
Mr. Zillman submits that that is what the Commission is all about and the other provisions come back and relate to those functions.
The submission is that Subsection (4) should be read with the words in italics inserted to remove any absurdity in the section as follows:-
“A person may not be required to produce in any court a document that has come into the person’s possession, or to disclose to any court a matter or thing that has come to the person’s notice, because the person is or was a person to whom this section applies and which relates to the Commissions functions of helping to prevent major crime and misconduct.”
It was submitted that Bergin v White 1956 Qd R 432 indicates how the Supreme Court of this State has approached the question where otherwise such a result would have occurred. In his judgment Stanley J. identified that if the section was read in the way contended that the language would result in unjust or absurd results. The courts response to the two identified absurdities was to construe the Act to avoid them. Mr Zillman quoted from the decision at page 441
“There is authority that in determining what is intended to be the scope of the statute it may be presumed that parliament did not intend to do a palpable injustice.”
And
“I think there is a general rule of construction of statutes which is applicable in this matter, namely that unless you are obliged to do so, you must not suppose that the Legislature intended to do a palpable injustice”.
He also quoted Pearce in his 1st edition in the 1974 work entitled “Statutory Interpretation” at pp15 and 16. Where a statute made it an offence to be found in the “vicinity of a prohibited place” and the defendant had been found in the prohibited place. The court considered that failure of the legislature to consider the latter conduct lead to an absurdity on the face of the act. Accordingly, the Golden Rule approach was applied and the court treated the act as if it read “in or in the vicinity” of the prohibited place.
The Acts Interpretation Act 1954 in s 14A under the heading ‘Interpretation best achieving Act’s purpose’ contained in Part 3 ‘General provisions applying to Acts’ states:-
(1)In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
(2)Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act.
(3)To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.
Example—
There is judicial authority for a rule of interpretation that taxing legislation is to be interpreted strictly and in a taxpayer’s favour (for example, see Partington v AG (1869) LR 4 HL 100 at 122). Despite such a possible rule, this section requires a provision imposing taxation to be interpreted in the way that best achieves the Act’s purpose, whether or not to do so would be in a taxpayer’s favour.
It is stated in the electronic version of Cross on Evidence in LexisNexis AU in the commentary on s 14A
[75,270.5] The modern approach to statutory interpretation
The modern approach to statutory interpretation in Australia is a purposive one. This is reflected in s 14A of the AIA, which requires that an Act be interpreted in a way that best achieves its purpose (subs (1)). Section 36 of the AIA defines ‘purpose’ as including policy objective.
This rule applies whether or not there is any ambiguity or absurdity in the ordinary meaning of the words. In interpreting an Act, the courts must determine its purpose and prefer the interpretation that best achieves that purpose. It is common for modern legislation to contain a provision stating the purpose or objective of the legislation. The rule applies whether or not the purpose of the legislation is expressly stated.
The rule in s 14A(1) does not create or extend criminal liability (subs (2)). It applies despite any presumption or rule of interpretation to the contrary (subs (3)).
Section 14A applies to Acts passed after 30 June 1991. It also applies to statutory instruments made after that date: SIA s 14.
[75,270.10] Contrast to literal approach
The purposive approach can be contrasted with the literal approach, which involves determining the “grammatical and ordinary sense of the words used”: Grey v Pearson (1857) 6 HL Cas 61; 10 ER 1216.
The literal rule, which was traditionally the predominant approach to statutory interpretation, was subject only to the exception that, if the ordinary and grammatical meaning produced an absurd result or an inconsistency with the rest of the Act, the court could modify the sense of the words to avoid that absurdity or inconsistency: Grey v Pearson, above.
The High Court recognised that the common law approach to statutory interpretation in Australia had shifted from the literal approach to a purposive approach in Bropho v Western Australia (1990) 171 CLR 1; 93 ALR 207; 64 ALJR 374; BC9002906.
(QLD) Property Agents and Motor Dealers Act 2000 s 366.
(QLD) Body Corporate and Community Management Act 1997 s 212.
[75,270.15] Purposive approach: considering purpose and context
(a) Project Blue Sky v ABA
One of the foremost authorities on the purposive approach to statutory interpretation in Australia is the High Court decision in Project Blue Sky v ABA (1998) 194 CLR 355; 153 ALR 490; [1998] HCA 28; BC9801389.
McHugh, Gummow, Kirby and Hayne JJ stated at [69] that “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.”
(b) Consideration of context
The purposive approach requires that context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise. It uses “context” in its widest sense to include such things as the existing state of the law and the mischief which the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618; 71 ALJR 312; BC9700046 per Brennan CJ, Dawson, Toohey and Gummow JJ.
See also Project Blue Sky v ABA, above, at [69].
Context is not limited to the text of the rest of the statute. It includes:
·the state of the law when the statute was enacted;
·its known or supposed defects at that time;
·the history of the relevant branch of the law, including the legislative history of the statute itself
·extrinsic materials that may throw light on the meaning that the enacting legislature intended to give to the provision:
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; 221 ALR 448; [2005] HCA 58; BC200507453 per McHugh J at [124].
(c) Primacy of language used in the statute
Case law has stressed that the starting point of a purposive interpretation is the language used in the statute, not any extrinsic materials: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151; 11 ATR 949; BC8100079 at [6].
See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; 260 ALR 1; [2009] HCA 41; BC200908882 and Connor Hunter (a Firm) v Keencrest Pty Ltd [2009] QCA 156; BC200904911.
(d) No special rules for penal or taxing legislation
The fact that an Act is a taxing Act does not mean that a different rule of interpretation applies: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, above, at [33].
Similarly, the purposive approach to interpretation can be applied to a penal Act: Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; 149 ALR 623; 72 ALJR 97; BC9706330.
(e) Example of the purposive approach: consumer protection legislation
In MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515; [2005] ANZ ConvR 384; [2005] QCA 230; BC200504347, at [16], in relation to the vendor’s warning statement required under s 366 of the Property Agents and Motor Dealers Act 2000 to be given to a purchaser of residential property, the Court of Appeal held that context weighed against a liberal interpretation of s 366.The Court noted that Chapter 11 of the Act contained a detailed set of technical requirements plainly directed to ensuring a form of consumer protection for purchasers and that one of the objects of the Act, stated in the preamble, was “to protect consumers against particular undesirable practices”.
This finding has been applied in numerous cases, including Mark Bain Constructions Pty Ltd v Tim Barling, Alex Watson and Timothy Scott (2006) ANZ ConvR 281; (2006) Q ConvR 554-646; [2006] QSC 048; BC200601421; Cheree-Ann Property Developers Pty Ltd v East West International Development Pty Ltd [2007]1 Qd R 132; [2006] QSC 182; BC200605803; Johnston v Jewry [2008] 1 Qd R 360; (2007) Q ConvR 54-671; [2007] QCA 188; Juniper v Roberts [2007] QSC 379; BC200710867; Doolan v Rothmont Projects Pty Ltd [2010] QSC 193; BC201003759.
The case was, however, distinguished in QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008]QCA 257; BC200807823, which involved the issue of whether there was a valid appointment of a real estate agent under the Property Agents and Motor Dealers Act 2000.
An interpretation consistent with the aim of consumer protection was adopted in relation to s 212 of the Body Corporate and Community Management Act 1997: Hannah v TW Hedley (Investments) Pty Ltd [2010] QCA 256; BC201007090.
[75,270.20] Limits to the purposive approach
The purposive approach does not allow the courts to ignore the words used in an Act: Mills v Meeking(1990) 91 ALR 16; 64 ALJR 190; BC9002951.
If the grammatical or literal meaning gives effect to the purpose of the Act, the Act must be given its ordinary and grammatical meaning: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, above, at CLR 305. See also WACB v Minister for Immigration and Multicultural and Indigenous Affairs(2004) 210 ALR 190; (2004) 79 ALJR 94; [2004] HCA 50; BC200406533 at [39] and Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; 215 ALR 253; 79 ALJR 1121; [2005] HCA 28; BC200503300.
An inconvenient or unjust result alone does not justify departing from the ordinary meaning of the language when read in context: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, above, at CLR 320. However, if the ordinary meaning of a provision is manifestly absurd or unreasonable, this can create a doubt as to whether Parliament would have intended the provision to have its ordinary meaning: Saraswati v R (1991) 172 CLR 1; 100 ALR 193; 65 ALJR 402; BC9102595 at [9].
If the purpose of the legislation is clear, the courts may interpret a provision in a way that ‘strains’ the ordinary meaning of the words used in order to achieve that purpose. However, the courts can not interpret legislation in a way that is unreasonable or unnatural: Newcastle City Council v GIO General Ltd, above.
In Carr v Western Australia (2007) 232 CLR 138; 239 ALR 415; [2007] HCA 47; BC200708991 at [5], Gleeson CJ noted a particular difficulty in applying the purposive approach to legislation that strikes a balance between competing interests. His Honour commented at [5] that: “[w]here the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.”
On rare occasions, the courts can interpret a provision as if it contained additional words, if to do so would give effect to the legislative purpose: Newcastle City Council v GIO General Ltd, above. In that case, McHugh J stated that 3 conditions apply before a court can read words into legislation:
(a) first, the court must know the mischief with which the legislation is dealing;
(b)second, the court must be satisfied that Parliament inadvertently overlooked an eventuality that must be dealt with for that purpose to be achieved;
(c)third, the court must be certain which words Parliament would have used to overcome the omission if it had been aware of the defect.
See also the useful analysis of the relevant case law by Muir JA in Witheyman v Simpson [2009] QCA 388; BC200911300 at [43]–[49].
General principles for consideration
In Alister and Other Appellants and The Queen Respondent 154 CLR 404 Gibbs CJ stated:-
“The fact that disclosure of the fact whether the documents sought by the subpoena in the present case exist, and their production if they do exist, would be harmful to the public interest is sought to be established by the affidavit of the Attorney-General. But Sankey v. Whitlam decides that an objection, even if properly taken, is never conclusive, although there will of course be instances (such as documents containing defence secrets in time of war) when, as Stephen J. said in Sankey v. Whitlam15, "the Court's acceptance of the claim [to Crown privilege] may often be no more than a matter of form". When the grounds of objection in the present case are examined it will be seen that the first ground (that stated in par. (a)) is merely preliminary and not in itself sufficient. To say that it is in the public interest to maintain an intelligence organization does not mean that it would necessarily be contrary to the public interest to disclose whether that organization had any records of a particular kind. The second ground (stated in par. (b)) is prima facie convincing, but is expressed, with candour, only in a qualified way. ASIO now functions under the Australian Security Intelligence Organization Act 1979 (Cth), as amended, the provisions of which have been discussed by this Court in Church of Scientology v. Woodward16. Its functions include the obtaining of intelligence relevant to security: s 17(1)(a). The disclosure of information that a particular person had gathered intelligence for ASIO would in many cases not only injure the national security but also endanger the person concerned, but that would not always be so. The ground stated in par. (b) calls for an examination of the circumstances of the particular case in order to decide whether any danger to the public interest is likely if the information is disclosed in those circumstances. The third ground (stated in par. (c)) is expressed absolutely. If it is intended to do no more than state the effect of pars. (a) and (b), it cannot be regarded as accurate, because the categorical assertion made in par. (c) does not follow from the qualified claim made in par. (b). If par. (c) is intended to stand alone as an independent ground, it is unconvincing, because it is difficult to accept that effective security can be maintained only if ASIO can refuse in all cases to disclose whether any documents sought exist. For example, if it was publicly known that a particular person, acting for ASIO, had gathered certain intelligence, it would not seem, generally speaking, to jeopardize security to disclose whether any documents prepared by that informant were in existence. Notwithstanding the respect that must be paid to a claim for immunity made by a Minister in relation to a matter of national security, I am not at all convinced that the public interest requires that ASIO should be able in all cases to refuse to disclose whether any document exists, and to refuse to produce it if it does exist.”
Later His Honour stated:-
“Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam20), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.”
In R v Spizzirri [2000] QCA 469 a leading Queensland case on access to subpoenaed documents,.Pincus JA stated –
“Use of documents or information contained in them in an attempt to discredit the principal Crown witness is a legitimate forensic purpose. It is also important to notice that the judge made the decision, by inspecting the documents himself, that they were not useful for the purpose of the defence.
[34]In my opinion the proper practice would have been first to determine whether there was a legitimate forensic purpose in requiring inspection and then, if there was such a purpose, to let them be inspected by counsel. It was held in Saleam that:
"If no public interest immunity or other privilege is claimed (and upheld), and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence. Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in appropriate cases, for his legal advisers only) to satisfy himself on that score after his own inspection of the documents". (18)
This passage appears to set out a procedure which should be followed. Experience, particularly in civil cases, suggests that where documents are properly subpoenaed it is not the function of the judge or magistrate to go through them and select those which he or she thinks are relevant”
A number of principles can be established from the decisions. Firstly as stated by deJersey CJ in Spizzirri (supra)
“…counsel in such a case should be required "to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents.”
I am satisfied that the legitimate forensic purpose is adequately set out in the affidavit of Ms. McPhee dated 28 February 2011 in that it is at least 'on the cards' that the documents in question would assist the appellant in his appeal .
Secondly again as stated by the Chief Justice in Spizzirri (supra)
“..courts should be careful not to deprive the defence of documents which could be of assistance to the accused.”
Thirdly as stated by Pincus JA in Spizzirri (supra)
“..if a legitimate forensic purpose for their production is demonstrated the judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence.”
The first matter to determine, however is if the claimed privilege is upheld or in this case whether the legislation itself prevents access. It is only if the privilege is not upheld that the second step is necessary of determining whether there is a legitimate forensic purpose demonstrated for each of the documents requested.
The intention of parliament
The counsel for the Commission has provided an extract of the explanatory notes for the introduction of the Crime and Misconduct Bill 2001 in particular in relation to section 213 it states as follows:-
Confidentiality to be maintained [CJA, s84D,s 132;CCA, s126]
Clause 213 .––combines secrecy and confidentiality requirements of the repealed legislation and imposes secrecy and confidentiality requirements on the named relevant officials to maintain confidence of material that came to their knowledge because of their involvement in the administration of the Act. The requirements extend to past and present officers and those that were past officers under the repealed Acts. There are exceptions such as where the information is publicly available.
In Cairns Shelfco No. 16 v. State of Queensland [1996] QCA 038. In his reasons for judgement FIitzgerald P. dealing with extrinsic material states:-
“The use of extrinsic material, such as the speech to which reference has been made, is governed by s. 14B of the Acts Interpretation Act 1954. The argument advanced for the respondent was to the effect that the provision is ambiguous within the meaning of s. 14B(1)(a) and therefore the extrinsic material may be used to provide an interpretation. But s. 14B(2) requires that, in determining whether consideration should be given to extrinsic material and in determining the weight to be given to such material, regard must be had to "the desirability of the provision being interpreted as having its ordinary meaning" - para. (a).
Where the interpretation which is advanced, based on the extrinsic material, is one which would be unlikely to occur to a reader of the statute itself, it seems to me that it is prima facie undesirable to adopt as law, as we are in effect invited to do here, the language of the parliamentary speech; the tendency of the authorities is rather against that course. In re Boulton; ex parte Beane (1987) 162 C.L.R. 514 at 517 one finds, in the course of a discussion as to the relevance of a second reading speech:
"The words of a Minister must not be substituted for the text of the law . . . it is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the rule of Parliament as expressed in the law." - per Mason CJ, Wilson and Dawson JJ.
Courts have been reluctant to read a statute, on the basis of extrinsic material, in a substantially amended way, although the High Court’s decision in Coco (1994) 179 C.L.R. 427 is perhaps an example of that being done; see the discussion at pp. 444, 445.”
Extrinsic material includes an explanatory note or memorandum relating to the Bill that contained the provision. The argument advanced by the respondent is not assisted by the explanatory note as it refers to requirements on the named relevant officials to maintain confidence of material that came to their knowledge because of their involvement in the ‘administration’ of the Act. There is a chapter on ‘Administration’ in the Act which includes inter alia:-
293 Powers
(1) The parliamentary committee has power to call for persons,
documents and other things.
(3) Further, the parliamentary committee or a person appointed,
engaged or assigned to help the parliamentary committee
may—
(a) inspect any non-operational record or thing in the
commission’s possession;
317 Powers of the parliamentary commissioner
(1) The parliamentary commissioner has power to do all things
necessary or convenient for the performance of the
parliamentary commissioner’s functions.
(2) For the performance of the parliamentary commissioner’s
functions, the parliamentary commissioner may, by giving
written notice to the chairperson, require a commission officer
to do 1 or more of the following—
(a) produce to the parliamentary commissioner, or allow the
parliamentary commissioner access to, all records, files
and other documents in the commission’s possession;
There is an absurdity if Section 213 is read as a singular provision. However when read with Section 62 it shows that the absurdity is no longer apparent because the Commission is able to give certain information, documents or things to persons outside the Commission.
This would appear to be a construction of the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute as stated in the decision in Project Blue Sky (supra).
It could not be said that in this matter Parliament inadvertently overlooked an eventuality that must be dealt with for the purpose to be achieved.
Parliament has enacted provisions such as the Corrective Services (Administration) Act 1988 which is mentioned in R v Spizzirri (supra). That Act states at s 61:-
Secrecy
61.(1) A person shall not, without the prior approval of the chief executive, produce in any court or provide to any person any document, or disclose to any court or person any information, that has come into his or her possession or to his or her knowledge in the discharge of his or her functions or the exercise of his or her powers under a prescribed Act unless—
(a)the commissioner or other person does so for the purposes of a prescribed Act or the Juvenile Justice Act 1992; or
(b)the commissioner or other person is required to do so by order of any court or Judge or otherwise by law.
It can only be assumed that Parliament intended to leave a provision, whereby a court can order production, which was put in a 1988 Act in s 61(1) b) of the Corrective Services (Administration) Act out of the Crime and Misconduct Act in 2001.
The Explanatory Notes to the Crime and Misconduct Bill 2001 state:-
Fundamental legislative principles
The bill seeks to balance and promote fundamental legislative principles.
Care has been taken to ensure that existing coercive powers of the commission remain subject to checks and balances such as those provided by the Public Interest Monitor, the parliamentary committee and by the parliamentary commissioner.And
Powers of the commission
The commission has extensive powers that raise issues about the rights of individuals. These powers are equivalent to those presently given to the CJC and QCC. Apart from the specific matters above, great care in drafting has ensured that where powers have been updated, they have not resulted in an increase in power in respect of crime or misconduct investigations. The powers continue to be necessary and justified on the basis of the important functions that the commission will carry out. The breach of fundamental legislative principles is justified on the basis that the power is necessary to allow the commission to perform its operational responsibilities. Surveillance devices are an effective way of obtaining evidence, particularly in relation to possible police involvement in organised crime. Furthermore it is considered that appropriate safeguards such as court scrutiny and the Public Interest Monitor are included in the legislation which will minimise the adverse impact. The commission’s use of such powers for crime functions will now be subject to the additional oversight by the parliamentary committee and parliamentary commissioner.Comments have consistently been made such as “The breach of fundamental legislative principles is justified on the basis that the power is necessary to allow the commission to perform its operational responsibilities.” In the explanatory notes and the comments of the Hon. P. D. Beattie the Premier and Minister for Trade at the time in the second reading speech of the Crime and Misconduct Bill where he stated:
“To date, the CJC has been the only public agency that has not been subject to the requirements of the Criminal Justice Act 1989. There is a need to remedy this. Like any other unit of public administration, the commission and individual officers within the commission should be held accountable for misconduct or official misconduct. To date the CJC has reported such matters to the parliamentary committee pursuant to an agreed protocol. This arrangement is now given legislative force, requiring the commission to report to its committee all conduct of a commission officer that the chairperson suspects may involve improper conduct.”
These comments tend to show that it was intended that the purpose or policy objective of the legislature was that the Commission be provided statutory protection and it not be required to produce documents as a normal public entity would. In view of the above I am satisfied the grammatical or literal meaning gives effect to the purpose of the Act and accordingly the Act must be given its ordinary and grammatical meaning:
The court must prefer the interpretation that best achieves that purpose. The interpretation that does not read down the word “document” in subsection (4) of section 213 or in the alternative that does not include extra words that have the effect of reading down the word “document” must be preferred. I am also satisfied that the context weighs against a liberal interpretation of s 213.
I am satisfied that the documents sought in the summons to witness therefore come within section 213 and that a person may not be required to produce the documents in this court.
I am somewhat fortified in my decision by the decision by Martin CJ with whom Newnes AJA agreed in ex parte Western Australian Newspapers Limited[2008] WASCA 209 where His Honour stated:-
17 The other legislative provision which is relevant is s 152 of the CCC Act:
152. Disclosure by the Commission or its officers
(1) In this section -
'Commission lawyer' means -
(a) a legal practitioner appointed to assist the Commission; and
(b)a person who assists, or performs services for or on behalf of a legal practitioner appointed to assist the Commission in the performance of the legal practitioner’s duties assisting the Commission;
'court' includes a tribunal, authority or person having power to require the production of documents or the answering of questions;
'official information', in relation to a relevant person, means information acquired by the person by reason of, or in the course of, the performance of the person’s functions under this Act;'produce' includes permit access to;
'relevant person' means a person who is or was -
(a) an officer of the Commission; or
(b) a Commission lawyer.
(2)Subject to subsections (3), (4) and (6) a relevant person must not, either directly or indirectly -
(a) make a record of any official information; or
(b) disclose any official information.
Penalty: Imprisonment for 3 years and a fine of $60 000.
(3)Despite subsection (2), a relevant person may make a record of official information -
(a) under or for the purposes of this Act;
(b) otherwise in connection with the performance
(4)Despite subsection (2), official information may be disclosed by a relevant person if it is disclosed -
(a) under or for the purposes of this Act;
(b)for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act or any other prosecutions or disciplinary action in relation to misconduct;
(c)when the Commission has certified that disclosure is necessary in the public interest;
(d)to either House of Parliament or to the Standing Committee;
(e) to any prescribed authority or person; or
(f)otherwise in connection with the performance of the person’s functions under this Act.
(5)A relevant person is not authorised to disclose operational information under subsection (4)(d) or (e) unless the Commission has certified under subsection (4)(c) that disclosure is necessary in the public interest.
(6)Despite subsection (2), a relevant person may disclose the fact that an allegation has been received or initiated by the Commission or the details of an allegation.
(7)A relevant person cannot be required to produce or disclose any official information in or to any court except for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act.
(8)This section also applies to the Commission as if references to official information were references to all information acquired by the Commission by reason of, or in the course of, the performance of the Commission’s functions under this Act.
18 It seems relatively clear that the videotape of the interview of
Mr Rochford, and the portions to which WAN seek access, are 'official
information' within the meaning of that section, with the consequence that
the portions of the videotape could only be provided by the CCC to WAN
if the CCC certified that disclosure was necessary in the public interest.
Although Section 152 of the Corruption and Crime Commission Act 2003 (WA) appears to roll section 213 and Section 62 of the Queensland Crime and Misconduct Act 2001 into one section it does show that a somewhat similar provision meant that the ‘official information’ could not be disclosed other than by a similar method to the Queensland Sect 62.
Finding and order
I find that the court has no power to order production of the documents referred to in the summons to witness.
I set aside the summons of a witness that was issued to The Proper Officer, Crime and Misconduct Commission.
Requested intimation by the court
There is nothing in s 62 to set out how the Commission determines why information, documents or things in the commission’s possession are to be given to or made available for inspection by any person. Mr. Zillman has asked that the court make an intimation as to whether in this case it is appropriate to do so. I do not consider it appropriate for a court to attempt to advise the Commission how it should operate as Parliament has provided an oversight committee for that purpose.
As stated previously the Explanatory Notes to the Crime and Misconduct Bill 2001 show that Parliament considers that the Commission remains subject to checks and balances such as those provided by the Public Interest Monitor, the parliamentary committee and by the parliamentary commissioner. I consider that it would be more appropriate to go through the appropriate channels provided by the legislation. The Act provides, for example, that the Parliamentary Committee may issue guidelines to the Commission about the conduct and activities of the Commission. One would envisage that the Parliamentary Committee could investigate whether the Commission has properly exercised its discretion to withhold the documents.
I will hear the parties as to costs.
Costs order
I order the respondent FLP pay the amount of $1680.00 costs to the Crime and Misconduct Commission through the Clerk of the Court at Brisbane within one (1) month.
(B.P. Hine)
DEPUTY CHIEF MAGISTRATE
18 May 2011.
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