Haneef and Australian Federal Police

[2010] AATA 514

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL        )

)         No: 2008/5463

2008/5465

General Administrative Division           )

Re: Mohamed Haneef
Applicant

And: Australian Federal Police
Respondent

And: Commonwealth Director of Public Prosecutions
Respondent

DIRECTION

TRIBUNAL:             Senior Member Bernard J McCabe

DATE:                      30 July 2010

PLACE:                   Brisbane

1.The Tribunal directs the Registrar, pursuant to subsection 43AA(a) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision and reasons for the decision in this application as follows.

a)    The text of paragraph 13 (a) of the decision is amended so that it reads as follows:

The decision to exempt the first redacted entry on p 2 under s 42 is set aside. The decision to exempt that material under ss 33(1)(a)(iii) and (b) is affirmed.

b)    the fifth and sixth sentences in paragraph [215] of the reasons for the decision are deleted;

c)    After paragraph [250] of the reasons for the decision, a new paragraph is added to read:

The sentence at the bottom of the second page of document 175 includes information that was obviously provided by the Metropolitan Police.  The information relates to events in the United Kingdom. Mr Appleby’s evidence suggests all of that information was provided under the terms of the memorandum of understanding. The information provided by the MPS under that arrangement was provided in confidence. For the same reasons I give in relation to similar claims in respect of document 36, I would allow an exemption under ss 33(1)(a)(iii) and (b) in relation to the relevant portion of document 175.

................[Sgd]...................................................

Senior Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 514

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2008/5463
   2008/5465

GENERAL ADMINISTRAIVE DIVISION		)
Re		MOHAMED HANEEF

Applicant

And AUSTRALIAN FEDERAL POLICE

Respondent

And COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 9 July 2010

Place Brisbane

DecisionThe Tribunal affirms, varies and sets aside the decisions under review as follows:

1. The decision to exempt the following documents under s 42 of the Freedom of Information Act 1982 (Cth) (“the FOI Act”) is affirmed: documents 1 – 35, 37 –59, 62 – 68, 70 – 101, 103 – 114, 116 – 124, 126 – 128, 130 – 143, 145 - 148, 150, 152 – 156, 158 – 163, 167 –174 and 176 – 184.

2. The decision to exempt the following documents under s 41 of the FOI Act is affirmed: documents 25, 27, 57, 58, 128, 130, 143, 146, 148, 149, 151 – 153, 156, 163, 164, 165, 170, 176 178 and 183.

3. The decision to exempt the following documents under ss 33(1)(a)(iii) and (b) of the FOI Act is affirmed: documents 5, 28 – 31, 33 – 34 and 60.

4. The decision that portions of the following documents are irrelevant under s 22 of the FOI Act is affirmed: documents 61, 69 and 127.

5. The decision to exempt the following documents under ss 38 of the FOI Act is affirmed: document 178 and 184.

6. The Tribunal sets aside the decision that document 36 is exempt under s 42 and decides in substitution that the document is not exempt under s 42. The Tribunal affirms the decision that the document is exempt under ss 33(1)(a)(iii) and (b).

7. The decision to claim an exemption under the following documents is varied to provide that the portions of text that are identical to text already released is not exempt under s 42. The decision to exempt the information contained in the rest of the documents is otherwise affirmed under s 42: documents 102 and 125.

8. The decision to exempt document 129 is varied to provide that:

a) the first two redacted extracts on p 1 are not exempt pursuant to s 42;

b) the first two sentences in the first passage on p 2 are exempt pursuant to s 42;

c) the three sentences in the second paragraph of the first redacted passage are not exempt pursuant to s 42, except for the last three words, which are exempt pursuant to s 42;

d) the whole of the second passage on p 2 is exempt pursuant to s 42;

e) both of the redacted passages on p 3 of the document are exempt pursuant to s 42;

f) the three redacted passages on p 4 are exempt pursuant to s 42;

g) the first note of two lines on p 5 is exempt pursuant to s 42;

h) the second note of three lines is not exempt pursuant to s 42;

i) the second redacted passage on p 5 is exempt pursuant to s 42;

j) the first redacted passage on p 6 is exempt pursuant to s 42;

k) the second redacted passage on p 6 is not exempt pursuant to s 42;

l) the two redacted passages on p 7 are exempt pursuant to s 42;

m) the redacted passages on pp 9,10,12 and 13 are exempt pursuant to s 42;

n)    the last three lines on p 16, the first four lines on p 17 and the third line on p 18 are not exempt; and

o) the reference to the name of an individual at p 6 is exempt pursuant to s 41.

9. The decision relating to document 144 is varied to provide that:

a) the Tribunal affirms the decision that the redacted portions of document 144 claimed under ss 41 and 42 are exempt; and

b) the Tribunal affirms the decision that the portions of document 144 claimed under s 22 are irrelevant, but remits the decision in relation to the travel arrangements of the author of the email in the second of the three deleted sentences to the respondents for reconsideration of whether the material is irrelevant.

10. The decision relating to document 147 is varied to provide that:

a) the Tribunal affirms the decision that the redacted portions of document 147 claimed under s 41 are exempt; and

b) the Tribunal affirms the decision that the portions of document 147 claimed under s 22 are irrelevant, but remits the decision in relation to the travel arrangements contained in line six of the first email to the respondents for reconsideration of whether the material is irrelevant.

11. The decision relating to document 157 is varied to provide that:

a) the first four redacted passages on p 1 and the last three redacted passages on the same page are exempt pursuant to s 38; and

b) three redacted passages at p 3 are exempt under s 42;

c) the redacted entries on pp 4, 5 and 6 are exempt pursuant to s 42;

d) the first redacted passage on p 7 is exempt pursuant to s 42;

e) the text accompanying dot points 1, 3 and 5 on p 7 is not exempt pursuant to s 42; and

f) the redacted portions of document 157 claimed under s 38 and 41 are exempt.

12. The decision to exempt the redacted portions of documents 163 and 166 pursuant to s 42 is affirmed and the decision to exempt the telephone number of Mr Robinson on p 2 of the handwritten notes is varied so that the phone number is not exempt pursuant to s 41. The decision under s 41 is otherwise affirmed.

13. The decision to exempt document 175 is varied to provide that:

a)    the decision to exempt the first redacted entry on p 2 is set aside and instead remitted to the respondents for reconsideration to determine whether a different exemption is available.

b) the redacted extract that begins on p 4 is exempt under s 42.

14. No finding is made in relation to document 115.

The decision in this matter takes effect 28 days after the date on which the reasons are delivered. Pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), the Tribunal orders that the reasons for decision not be published to anybody apart from the parties and their legal advisers and the Tribunal for a period of 7 days following the date of the decision. The redacted portions of the reasons for decision in paragraph 253 are confidential and may not be published to any person apart from the Tribunal, the respondent and their legal advisers until further order pursuant to s 35(2) of the AAT Act.

........................[Sgd]......................

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – documents relating to applicant’s detention – response to terrorist investigations in United Kingdom – charges and proceedings discontinued – Clarke Inquiry and Report – respondents claiming exemptions on release of documents – legal professional privilege – assessment of the dominant purpose – effect of advice given that exceeded authority – attachment of privilege to copies of documents – waiver of privilege – exemption of personal information – documents affecting international relations of the Commonwealth – information communicated in confidence on behalf of an international authority – irrelevant information – documents to which secrecy provisions of enactments apply – confidentiality order issued – respondents’ claims affirmed, varied and set aside.

Administrative Appeals Tribunal Act 1975 (Cth), s 35

Australian Federal Police Act 1979 (Cth), s 60A

Crimes Act 1914 (Cth), ss 3W, 23CB, 23DA, 70

Director of Public Prosecutions Act 1983 (Cth)

Freedom of Information Act 1982 (Cth), ss 11, 16, 22, 33, 38, 41, 42, 55

Queensland Police Service Administration Act 1990 (Qld), s 10.1

Australian Competition and Consumer Commission v Australian Safeways Stores Pty Ltd (1998) 153 ALR 393

Baker v Campbell (1983) 153 CLR 52

Brambles Holdings Pty Ltd v Trade Practices Commission (No 3) (1981) 58 FLR 452

Cain v Glass (1985) 3 NSWLR 39

Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67

Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792

Grant v Downs (1976) 135 CLR 674

Grofam Pty Ltd v Australian and New Zealand Banking Group Limited (1993) 45 FCR 445; [1993] FCA 501

Haneef and Australian Federal Police [2009] AATA 51

Haneef and Secretary, Department of Prime Minister and Cabinet [2009] AATA 777

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530

Kennedy v Wallace [2004] FCAFC 337

Komacha v. Orange City Council, (Unreported, Supreme Court of New South Wales, Rath J., 30th August, 1979)

Mann v Carnell (1999) 201 CLR 1

Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] VSCA 59

R v Petroulias (No 22) [2007] NSWSC 692

Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission [2007] FCAFC 147

Waterford v The Commonwealth (1987) 163 CLR 54

REASONS FOR DECISION

9 July 2010  Senior Member Bernard J McCabe

2.Dr Mohamed Haneef is the applicant in these proceedings. He has asked the Tribunal to reconsider decisions of the Commonwealth Director of Public Prosecutions (“the CDPP”)[1] and the Australian Federal Police (“the AFP”) made under the Freedom of Information Act 1982 (Cth) (“the Act”) to deny access to certain documents.

[1] In the reasons that follow, I shall use the acronym CDPP when referring to the office of the Commonwealth Dicrector of Public Prosecutions. When I refer to the office-holder, I shall refer to him as “the CDPP himself”, “the director”, or Mr Bugg, QC who was the office-holder at the relevant time.

3.The applicant’s request for access to documents was contained in a letter from his solicitors addressed to the CDPP Freedom of Information officer dated 12 June 2008. The letter is found at document T3 of exhibit two. It states relevantly:

Our client seeks all documents, created or brought into existence, or received by your Department, on or after 2 July 2007, to the present date, relating to:

1. the decision to detain our client, and his ongoing detention;

2. the decision to charge our client;

3. the decision to withdraw the charge against our client;

4. the review conducted by your Department into (2) and (3);

5. the issue of a Criminal Justice Stay Certificate, or any other Criminal Justice Stay Certificate in relation to our client, and/or any associated criminal justice visa;

6. the cancellation of his visa subclass 457 Business (long stay)(Class C), which had an expiry date of 30 August 2010;

7. the making of a residence determination under subdiv.B, Div.7, Part 2 of the Migration Act, in favour of our client;

8. communications with other government Departments or agencies, regarding our client.

3. The CDPP commenced a search for documents covered by the terms of the request. The relevant officer concluded some of the documents were likely to be in the possession of the AFP rather than the CDPP. The CDPP passed the request to the AFP pursuant to s 16(1)(b) of the Act on 24 July 2008.

4.The CDPP and the AFP made separate decisions in response to the request. A number of documents were released. Both agencies have sought to withhold other documents on the basis that those documents are irrelevant within the meaning of s 22 of the Act. The respondents also say a number of documents (or parts of documents) are exempt under one or more heads of exemption provided for in Part IV of the Act. The applicant sought internal review of the decisions. The CDPP’s reviewable decision is dated 26 September 2008. It is found at document T6, exhibit 1. The AFP’s reviewable decision is dated 18 September 2008. It is found at document T8, exhibit 2. The decisions are now before the Tribunal pursuant to s 55 of the Act. Both of the decisions were dealt with in the course of the one hearing, and both respondents were represented by the same counsel.

5.The respondents provided the Tribunal with schedules setting out the documents in dispute and identifying the claims made in respect of each document. There are a lot of documents, and a lot of claims. The schedules were updated on several occasions to take account of changes in the claims that were being made. A number of documents were released to the applicant after the process had begun. I heard evidence from several witnesses and received their statements, some of which are confidential. I was also asked to have regard to some evidence that had been given in previous Tribunal hearings involving the applicant and other agencies.

6.I have decided some of the claims made by the respondents in respect of the documents cannot be maintained. I explain my reasons below.

Background to the dispute

7.A detailed discussion of the history of this matter is set out in The Report of the Inquiry into the Case of Dr Mohamed Haneef, which is also known as the “Clarke Report”. The report includes a number of recommendations which do not concern us here. I was provided with a copy of the report and asked to read it with a view to acquainting myself with the factual background to the dispute. I will say at once that I was not given any reason to doubt or dispute the findings of fact made by Mr Clarke in his report, and I accept them. I have summarised those parts of the history that are relevant to this claim in order to establish a chronology of events.

The investigation begins

8.The story of Operation Rain begins in late June 2007. Dr Haneef was working at the Gold Coast hospital at the time. In the month that followed, Dr Haneef was arrested, detained, questioned and charged under the anti-terror provisions in the Criminal Code. He was then removed from Australia when the minister decided to cancel his visa. The charges against him were subsequently withdrawn by the CDPP and the decision to cancel his visa was set aside.

9.Operation Rain was a response to two terrorist incidents in the United Kingdom at the end of June 2007. The first occurred in London on 29 June. Two improvised explosive devices were found in the city centre. Neither device exploded. The next day, in a separate but apparently related attack, two individuals crashed a vehicle carrying explosive material through the front doors of Glasgow airport. The vehicle burst into flames although the explosive material did not detonate. One of the would-be bombers was arrested at the scene. The other occupant died as a result of burns sustained in the fire. One of those individuals was related to the applicant.

10.The Metropolitan Police Service (“the MPS”) briefed AFP liaison officers in London on the initial stages of the investigation in the course of the next day or so. There was no suggestion of any connection between the incidents and Australia at that point. But that changed on 2 July 2007. The MPS liaison officer in Canberra telephoned Commander Ramzi Jabbour at home in the early hours of the morning. Mr Jabbour was the AFP’s “Manager – Counter Terrorism Domestic”. The MPS officer, Detective Superintendent John Prunty, said the MPS was urgently looking for Dr Haneef, and believed he was in Australia. Mr Prunty told Mr Jabbour at a meeting later in the morning that the MPS believed a mobile phone subscribed in Dr Haneef’s name may have been used in the Glasgow attack. Mr Jabbour said he was left with the impression that the MPS regarded Dr Haneef as its “number one most wanted person”. He understood Dr Haneef might be a member of the terrorist group behind the attacks and formed the view that locating Dr Haneef was a high priority for the MPS investigators: exhibit A8, “AM-1” at 46. 

11.Mr Jabbour soon learned that Dr Haneef was living and working on the Gold Coast. An investigative team was assembled to look into the matters raised by the MPS. They began to gather information about the applicant from a variety of sources. In the meantime, Dr Haneef’s residence was placed under surveillance. The surveillance commenced at 7.40am on 2 July. His car was discovered and placed under surveillance later in the day. Little time was wasted in launching the investigation, but the investigators knew little of Dr Haneef at that point: exhibit A8, “AM-1” at 46-47.

12.That evening, a little after 8pm, Dr Haneef was observed boarding a bus bound for Brisbane airport. The two lead investigators, Detective Sergeant Simms (a Queensland police officer on secondment to the AFP) and Agent Thompson, raced to the airport to meet the bus when it arrived. They did not make themselves known to Dr Haneef at this point; it was decided in a series of phone calls between the officers and their superiors that they should wait and see what transpired: exhibit A8, “AM-1” at 47-48. The officers watched Dr Haneef in the terminal from a distance. His baggage was searched covertly. The investigators did not find anything suspicious.

13.While this was going on, Mr Jabbour was in contact with Mr Prunty from the MPS. Mr Prunty said the MPS still regarded Dr Haneef as a suspect but had downgraded his importance on the basis that he was not in the United Kingdom when the incidents occurred. Mr Prunty said it was up to the Australian authorities to decide how they should handle the matter: exhibit A8, “AM-1” at 48.

14.Senior AFP officers involved in the case said they were worried about the safety of the other passengers on the plane which Dr Haneef was about to board. They were also concerned about the need to uncover and preserve evidence of an offence. They said they wanted to ascertain whether there was any threat to Australia. Those officers concluded Dr Haneef should not board the plane and leave the country. They wanted him arrested. But they knew it was not their decision to make: exhibit A8, “AM-1” at 48-49.

15.The decision to make an arrest was a matter for the officers at the scene. As the departure time for the flight approached, they were told of the wishes of their superiors. The officers balked: they were not convinced there were sufficient grounds for an arrest at that point. They asked for more information. Their supervisor made contact with other AFP officers and asked additional questions about Dr Haneef. The answers were communicated back to the officers at the airport. On the strength of that information, Mr Simms decided he had enough information to form a reasonable belief that Dr Haneef had provided support to a terrorist organisation in the United Kingdom. The officers arrested Dr Haneef at 11.05pm in the departure lounge shortly before the flight was called: exhibit A8, “AM-1” at 49-50.

16.Mr Clarke examined the decision to arrest in some detail in the course of his report. He noted the investigators knew little of Dr Haneef at that point. The arresting officers’ decision to arrest was based on scraps of information that were relayed to them by their supervisor. Messrs Simms and Thompson were not aware Dr Haneef was travelling on a one way ticket, or that he had been involved in an internet chat with a relative that might have aroused suspicion: exhibit A8, “AM-1” at 52. They made their decision to arrest under enormous pressure. Their superiors had communicated a clear view. The flight was about to be called. Dr Haneef would soon be beyond their reach if he were allowed to depart. Mr Clarke opined that it was “at least arguable that there existed reasonable grounds for a belief that Dr Haneef had committed an offence…”: exhibit A8, “AM-1” at 53-54. But Mr Clarke added (exhibit A8, “AM-1” at 52):

I consider it almost certain that Dr Haneef would not have been arrested on the night of 2 July 2007 if he had not been about to leave the country. In this sense, Dr Haneef’s actions in booking and attempting to board an international flight were such as to ‘force the hand’ of the AFP. Were it not for those actions, the AFP would probably have placed Dr Haneef under surveillance and continued its investigation into his association with the people detained in the United Kingdom and his possible involvement in the terrorist incidents in London and Glasgow.

Dr Haneef is detained while the investigation proceeds

17.Whether or not the arrest was technically lawful, the decision to arrest Dr Haneef at such an early stage of the investigation would have fateful consequences. The investigators were not prepared for the interviews that would follow. The investigation team did not execute search warrants on Dr Haneef’s home and workplace until after he was arrested. Data on his home computer had to be recovered and interpreted into English before it could be analysed – a process that would take several days. Information about the progress of the investigation in the UK was also trickling in slowly.

18.The difficulty of the investigators’ position became apparent almost immediately. Mr Clarke noted Part 1C of the Crimes Act1914 (Cth) (“Crimes Act”) permits a person to be arrested and held in relation to a terrorism offence for a reasonable investigative period of up to four hours. But Dr Haneef was hurriedly arrested in the middle of the night. After a brief initial interview at Brisbane airport, Dr Haneef was taken to AFP headquarters in Brisbane. He was placed in an interview room but the investigators were detained performing administrative tasks. They also ran up against the problem that Dr Haneef had asked for the assistance of a lawyer.

19.Shortly after the arrest, members of the investigative team began preparing an application to extend the investigation period. It was not necessarily unusual that an application would be made so soon after an arrest, as Mr Clarke observed in his report: exhibit A8, “AM-1” at 66. The arresting officer prepared a draft of the documents required for the application in consultation with Mr Rendina, who was described in the Clarke Report as a “senior lawyer, AFP legal”. The application was made to a magistrate under s 23DA of the Crimes Act. Section 23DA permits an extension of the detention by up to 20 hours. The magistrate agreed to extend the period at first instance by eight hours.

20.Mr Clarke noted that CDPP officers first learned of the arrest on the morning of 3 July as a result of media reports. Mr Clive Porritt, a senior prosecutor in the CDPP Brisbane office, contacted the AFP to find out what was going on. He was not provided with a formal briefing at that point. Mr Porritt was subsequently appointed as the CDPP case officer in relation to the matter.

21.The AFP officers interviewed Dr Haneef on 3 July over six and a half hours, although there were seven breaks during that period. A second application for an extension under s 23DA was made that evening. Mr Rendina was involved in the application. The magistrate allowed a further extension of 12 hours.

22.The AFP decided it needed still more time. It was receiving information from overseas and the local investigation was proceeding. Mr Jabbour had already instructed Mr Rendina and others to prepare an application under s 23CB. An order under that section would effectively ‘stop the clock’ on the time allowed for questioning while the applicant remained under arrest. The same magistrate who had granted the extensions under s 23DA decided to allow the investigators a suspension (known as “dead time”) for 48 hours while they continued with their investigations. He made the order late in the evening of 3 July.

23.The CDPP was not involved in the applications to the magistrate under s 23DA however CDPP officers did provide advice in relation to what Mr Clarke described as “applications for investigative tools”. Those applications were made on 4 and 5 July. Mr Clarke also noted a conversation on 4 July between Mr Jabbour and Mr Davidson, a deputy director in the officer of the CDPP responsible for counter-terrorism matters. The report notes senior CDPP officers were irritated by the fact that they were learning more about the case from the media than they were learning from the AFP: exhibit A8, “AM-1” at 132.

24.A further application was made for dead time on 5 July. Mr Rendina and Mr Simms represented the AFP at the hearing in the magistrate’s chambers. The AFP asked for an additional four days so they could deal with the volume of material that was being collected by the investigators.

25.The transcript of the conversation between Mr Simms and Dr Haneef on 5 July in relation to the application under s 23CB makes for interesting reading. It is reproduced in the Clarke Report (exhibit A8, “AM-1” at 80). Mr Simms said:

The importance of the investigation in terms of what has happened…make it vital that our investigations are complete, um, which is why we will be seeking another extension…We have to be sure one way or the other…of either your involvement in any of those incidents…or your non involvement ok…It’s absolutely vital and, given what’s happened, it’s crucial that we determine, like I said, one way or the other, whether you’re involved with these people in the United Kingdom or whether you’re not…If it comes to a point where we obviously investigate things to a point that we can say Mohamed’s definitely not involved, and we are happy and can categorically state that, you will be released prior to that four day period.

26.The quote is troubling in that it suggests Dr Haneef was being held until it was possible to disprove his involvement in the offence for which he was arrested. As Mr Clarke observed, that is not the purpose of extended detention under Part 1C of the Crimes Act: exhibit A8, “AM-1” at 80. Mr Clarke rightly cautioned against attaching too much weight to these comments. But they do invite questions over the AFP's purpose in continuing to detain Dr Haneef.

27.Dr Haneef’s lawyers became involved in the process at this point. He was represented by a solicitor at the second application under s 23CB on 5 July. The solicitor, Mr Russo, had only been able to obtain rudimentary instructions. He was not in a position to make extensive submissions and was excluded from part of the hearing before the magistrate because of the sensitive material in the application prepared by Mr Rendina and the arresting officer. The magistrate agreed to extend the dead time for a further 96 hours.

The CDPP becomes more closely involved

28.Mr Porritt of the CDPP was provided with a briefing at AFP headquarters in Brisbane on 6 July. Mr Clarke pointed out the briefing did not extend to every aspect of Operation Rain. It focused on matters relevant to the application for investigative tools: exhibit A8, “AM-1” at 132.

29.Mr Russo and his legal team had begun to press the AFP for information about the investigation. On 8 July, Mr Jabbour and his investigators decided to apply for further dead time under s 23CB so that the material uncovered during the course of the investigation could be analysed. Mr Jabbour also wanted time to prepare an interview strategy before embarking on an interview with Dr Haneef - something that would probably have been done before an arrest in an ordinary case. The application was lodged on 9 July with the same magistrate that had dealt with the earlier requests. Mr Keim SC, who appeared for Dr Haneef, argued his client was entitled to see the confidential material being placed before the magistrate. The magistrate allowed a 48 hour extension, although there was discussion about a longer extension being granted.

30.Mr Porritt was also seeking answers from the AFP. His superior in Brisbane had instructed him to find out the offence for which Dr Haneef was arrested. On 9 July, Mr Porritt put the question to the AFP in an email. He had a telephone conversation with Mr Jabbour and a further conversation with Mr Rendina. Mr Rendina told Mr Porritt about the applications under Part 1C of the Crimes Act. Mr Rendina said he expected Dr Haneef would eventually be charged: exhibit A8, “AM-1” at 133.

31.The AFP soon decided it would need more than the 48 hours it had been allowed. Mr Jabbour decided on 10 July to make a further application under s 23CB. At this point, the AFP retained the Australian Government Solicitor (“AGS”) to prepare the application. The AFP wanted to ask the magistrate for a further 72 hours. The application was made on the afternoon of 11 July. Dr Haneef’s legal representatives asked that the magistrate disqualify himself. Rather than dealing with the application at that point, the magistrate reserved his decision until 13 July. Although he did not make a decision to grant the application for an extension on 11 July, reserving the decision for two days had the practical effect of extending the period of dead time at least until the application was resolved.

32.In the meantime, Mr Porritt had been invited to attend a briefing on 10 July to discuss possible charges against Dr Haneef. The briefing was subsequently rescheduled to 12 July. Notwithstanding the topic of conversation, Mr Clarke noted Mr Jabbour had already prepared a briefing note that conceded the AFP did not have enough evidence to charge Dr Haneef at that point. Mr Clarke found Mr Jabbour was still of that view on 13 July, although Mr Clarke noted Mr Jabbour explained he wanted the briefing so he could obtain the professional opinion of the CDPP: exhibit A8, “AM-1” at 133.

33.Mr Jabbour conducted the briefing on 12 July for Mr Porritt. A number of other senior officers from the AFP, Queensland police and the MPS were present. Mr Rendina from the AFP legal section and lawyers from AGS were also in attendance. Mr Clarke noted it was the first occasion upon which anyone had provided a detailed briefing to the CDPP on the case: exhibit A8, “AM-1” at 134. Mr Jabbour said he wanted an opinion as to whether there was enough evidence to charge Dr Haneef. It was agreed a briefing paper would be hastily prepared outlining the state of the evidence. It was to be provided to Mr Porritt the following day.

34.The briefing paper was 48 pages in length. Mr Clarke described the document as “a disorganised summary that reproduced various bits of evidence in a rambling way, without any structure or focus”: exhibit A8, “AM-1” at 134. It was also inaccurate in some respects, and used pejorative language (the document referred to Dr Haneef attempting to “flee Australia” in order “to avoid arrest”: exhibit A8, “AM-1” at 136). It was handed to Mr Porritt when he returned to AFP headquarters in Brisbane on 13 July. Whatever its shortcomings, the document did identify at least one crucial gap in the case against Dr Haneef: exhibit A8, “AM-1” at 135. It acknowledged there was no evidence that Dr Haneef shared his cousin’s radical views or that Dr Haneef provided financial support for terrorist organisations: exhibit A8, “AM-1” at 136.

35.Mr Clarke reported (exhibit A8, “AM-1” at 137) that a good deal of important information was not provided to Mr Porritt during or following the briefing as he was asked for advice. In particular:

·     Mr Porritt did not receive transcripts of the interviews with Dr Haneef on 3 July, although he spoke with various police officers who spoke of an impression that Dr Haneef behaved evasively.

·     An email from one of the terrorists to a family member which had come to the attention of the AFP was not made available to Mr Porritt, even though the email suggested on its face that other family members (including Dr Haneef) knew nothing of what was planned.

·     Mr Porritt was not supplied with copies of assessments prepared by ASIO that cleared Dr Haneef. Assessments to this effect had been provided to the AFP throughout the investigation.

·     Mr Porritt was not told of the collective view of the AFP investigative team that there was not enough evidence to justify a charge. To the contrary, he was given the impression at the briefing that Mr Jabbour in particular was confident about the strength of the case: exhibit A8, “AM-1” at 138.

36.Mr Porritt was unaware of other developments in his own organisation that might have been relevant. He was not the only CDPP officer in contact with the AFP in relation to the case during this period. On 10 July, an officer from the Attorney-General’s department contacted a lawyer within the CDPP head office in Canberra to arrange for assistance in the preparation of a mutual assistance request. The lawyer was put in contact with an AFP officer involved in the investigation. The lawyer was provided with some information about Operation Rain that had not been provided to Mr Porritt in Brisbane. Mr Porritt, it seems, was not told of the mutual assistance request or the contact with the Canberra office of the CDPP. Mr Clarke also found Mr Porritt was not told of a conversation between Mr Bugg, the CDPP, and Commissioner Keelty of the AFP on 12 July. Apparently the Commissioner had said there was not enough evidence to charge Dr Haneef but warned Mr Bugg that the AFP wanted to move quickly if further evidence came to light: exhibit A8, “AM-1” at 133-134.

37.Mr Porritt was left to consider his advice after reading the document on 13 July. He remained at AFP headquarters with a junior colleague from the CDPP. Early that afternoon, Mr Jabbour asked Mr Porritt whether he had reached a view as the AFP was in the process of deciding whether to persist with its application for an extension of time. Mr Porritt said he was not ready to provide any advice at that point.

38.The AFP withdrew its application for further dead time later in the afternoon of 13 July without further reference to Mr Porritt. Investigators resumed the interview with Dr Haneef that afternoon in the presence of his lawyer.

39.Mr Porritt and his colleague left AFP headquarters in the middle of the afternoon of 13 July. Mr Porritt said he had reservations at that point over whether there was enough evidence to sustain a charge. He repeated his view later that afternoon in a telephone conversation with Mr Davidson, the assistant director of the CDPP. Mr Davidson reminded Mr Porritt that the decision to charge was a matter for the AFP, not the CDPP. Mr Davidson wanted Mr Porritt to make that clear to the AFP. He pointed out the CDPP had not been provided with a proper brief of evidence and it did not have sufficient material to make an informed decision on the question of whether there were reasonable prospects of a conviction in any event: exhibit A8, “AM-1” at 138-139. 

40.Mr Porritt returned to AFP headquarters where he addressed the question of whether the so-called “arrest test” was satisfied – in other words, whether there were reasonable grounds for believing the applicant had committed an offence. It is unclear why Mr Porritt thought he needed to address that issue at that time. Mr Davidson said he did not discuss the arrest test with Mr Porritt in the course of their telephone conversation. The decision to raise that issue with the investigators proved to be especially unfortunate because the advice was widely misunderstood. The senior officers on the investigation team had resigned themselves to the conclusion that they did not have sufficient evidence to justify a charge – until they heard from Mr Porritt. They recalled Mr Porritt telling them “I think you have got enough to charge”: exhibit A8, “AM-1” at 139. Mr Porritt said he was talking about the arrest test, but the investigators understood he was answering the question that was in the forefront of their minds at the time: do we have enough evidence to lay charges against Dr Haneef?

41.The investigators asked Mr Porritt to provide his advice in writing. That advice was confusing, but it also included a charge in draft form. Mr Porritt subsequently acknowledged that his advice and the conversations which followed during the course of the afternoon had the unintended effect of “giving the tick to charge”: exhibit A8, “AM-1” at 141.

42.There was disagreement within the investigation team over Mr Porritt’s advice. The senior AFP officers, notably Mr Jabbour, were buoyed by what Mr Porritt had said. The QPS officers were more circumspect. During a break towards the end of the interview in the early hours of 14 July, the interviewing officers were asked for their views. Neither of them was confident that there was sufficient evidence to charge Dr Haneef: exhibit A8, “AM-1” at 144.

43.The AFP decided to charge Dr Haneef. The charge was laid by Mr Jabbour. Dr Haneef was told of the charge at the conclusion of the interview around 7am on 14 July. He was taken to the city watch-house and formally charged at 7.40am.

The bail application and the decision to discontinue the proceedings

44.The CDPP assumed a central role in the process at this point. Mr Porritt attended court on the morning of 14 July on behalf of the prosecution. He was provided with several documents by the AFP officers who were in attendance. The briefing material was limited. Mr Jabbour, the charging officer, was not present. Mr Porritt was not even provided with a copy of the charge, although he was the author of the original draft. He was finally shown a copy by the defence at which point it became apparent that the charge would need to be amended: exhibit A8, “AM-1” at 145.

45.Mr Keim SC, counsel for Dr Haneef, applied for bail on his client’s behalf. Mr Keim criticised the prosecution case and suggested it was so weak that it constituted special circumstances justifying bail. Mr Porritt made submissions opposing bail. Some of the submissions turned out to be based on incorrect information. The application was adjourned. The CDPP instructed its in-house counsel to appear at the resumed hearing that afternoon. The magistrate adjourned the case to consider the matter but granted bail when the hearing resumed on 16 July.

46.On 16 July, Assistant Commissioner Prendergast of the AFP complained to Mr Davidson about reports he had heard to the effect that the CDPP believed the case was weak. Mr Prendergast said he was surprised at this view in light of what he understood to be the more aggressive advice provided by Mr Porritt on 13 July. Mr Porritt met Mr Jabbour on 16 July and asked whether the AFP wanted to withdraw the charge. Mr Jabbour said the AFP wished to press ahead. He agreed to prepare a paper summarising the AFP’s case against Dr Haneef. The paper was provided to the CDPP on 17 July: exhibit A8, “AM-1” at 147.

47.Mr Davidson had serious misgivings over the case after he read the briefing paper. He shared his doubts with Mr Bugg, the director. Mr Davidson met with Mr Jabbour on 23 July to discuss the case. Mr Davidson said Mr Porritt’s instructions on 13 July were quite specific and limited, and they had been framed that way on purpose in light of concerns about the case. On 24 July, a CDPP officer reviewed the tapes and records of interview with Dr Haneef and formed a different view of his behaviour than that held by Mr Jabbour who had made much of what he described as Dr Haneef’s evasive and uncooperative behaviour. Mr Adsett formally wrote to the AFP on 26 July to express its reservations about the case. On the same day, Mr Adsett recommended to the director that the case be discontinued on the basis that there was no prima facie case and no reasonable prospect of a conviction. The CDPP asked the magistrate to dismiss the charge the following day at a directions hearing: exhibit A8, “AM-1” at 148-149.

Review of the CDPP’s role

48.From the time of the arrest until 10 July, the AFP looked to its own in-house legal officers such as Mr Rendina for advice on how to proceed. From 10 July, the AFP was assisted by AGS. Mr Clarke also noted the AFP sought “legal and policy advice” from the Attorney-General’s department in relation to the operation of Part 1C of the Crimes Act: exhibit A8, “AM-1” at 68-69. The CDPP’s active involvement in the investigation before 12 July was mainly limited to advising in relation to investigative tools. Mr Clarke pointed to well-understood arrangements under which the AFP would seek assistance from the Attorney-General’s department and AGS in relation to applications under Part 1C of the Crimes Act in relation to extended detention: exhibit A8, “AM-1” at 134. Mr Porritt of the CDPP was formally briefed on 12 and 13 July and the CDPP assumed control of the legal proceedings that were initiated when Mr Jabbour charged Dr Haneef. But Mr Clarke also noted it would have been better if the CDPP had been more closely involved in the case at an earlier point, if only so it was in a better position to provide advice when it became appropriate to do so: exhibit A8, “AM-1” at 149.

49.The CDPP subsequently engaged outside counsel to undertake an independent review of the performance of the office in relation to the investigation. The review was conducted by Mr Richard Maidment, QC of the Victorian Bar. He was assisted by Mr Nicholas Robinson. In the course of their review, Messrs Maidment and Robinson had access to many of the documents in dispute.

Claims for exemption

50.Section 11 of the Act recognises a right of access to documents held by an agency or Minister unless that document is exempt under the Act. If a document can be released with exempt or irrelevant portions deleted, that should be done: s 22.

51.The exemptions are set out in Part IV of the Act. In this case, most of the documents are subject to a claim under s 42, which deals with legal professional privilege. I will focus on those claims first.

Section 42: Legal professional privilege

52.Section 42(1) of the Act provides:

(1)  A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

53.While s 42 of the Act is concerned with documents that may be privileged, strictly speaking the privilege attaches to confidential communications rather than documents: Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 at [36] per Gleeson CJ, Gaudron and Gummow JJ. The privilege is available in relation to a confidential communication that was made or brought into existence for the dominant purpose of (a) obtaining legal advice (the advice privilege) or (b) use in legal proceedings (the litigation privilege). The privilege may also extend to documents that are not in and of themselves communications but which are nonetheless created for the dominant purpose of litigation, such as an aide-memoire prepared by a client for use in discussions with her legal advisers: Kennedy v Wallace [2004] FCAFC 337 at [229]-[234] per Allsop J; see also Heydon, Cross on Evidence (LexisNexis-Butterworths, 8 ed, 2010) at 882. A lawyer’s file notes recording deliberations on legal questions and drafts of documents in connection with the proceedings would also be privileged. Litigation for the purposes of the rule includes criminal and civil proceedings as well as proceedings before some quasi-judicial bodies like the Tribunal: see Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792; cf Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530. The privilege belongs to the client, not the lawyer, and it may be waived: see Mann v Carnell (1999) 201 CLR 1 at [28] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. I will have more to say about waiver in due course.

54.I have already observed that the privilege is potentially available to the Crown in connection with criminal proceedings: see Cain v Glass (1985) 3 NSWLR 39 at 42-43 per Lusher J. The privilege may extend to witness statements and other documents generated during the course of the investigation if the dominant purpose test is satisfied. The privilege is available even though the prosecution may later be required to disclose the documents to the defence after proceedings have been commenced in accordance with the CDPP Statement on Prosecution Disclosure: see R v Petroulias (No 22) [2007] NSWSC 692 at [63] per Johnson J. As a practical matter, the crown is entitled to claim the privilege if it arises unless and until the privilege is effectively overridden by the competing duty of disclosure.

55.There are a number of exceptions to the general rule as to privilege, but I do not understand any of them are said to arise in this case. It is therefore unnecessary to discuss them here.

56.The respondents argue there are several lawyer-client relationships involved in the Haneef case that are capable of founding a claim for privilege. They say these include:

·the relationship between the CDPP and the AFP which commenced on or about 4 July 2007 when the AFP first approached the CDPP for assistance in connection with the investigation. In that case, the AFP was the client. I note Mr Keim argued the relationship ended when charges were laid; and

·the relationship between the AFP and AGS.

57.The respondents also say the privilege covers many internal exchanges between various officers of the CDPP, including communications between officers of the CDPP and the director himself, and communications between CDPP officers and independent counsel. The potential for privilege to attach to the advice of in-house advisers is has been recognised in the past: see Waterford v The Commonwealth (1987) 163 CLR 54 at 63-64 per Mason and Wilson JJ. Some of the internal documents in question here were generated in connection with the lawyer-client relationship between the CDPP and the AFP. In other cases, the director was the client of his own officers or outside counsel: see Petroulias at [56]. If the applicant is right that the lawyer-client relationship between the CDPP and the AFP concluded when the charges were brought, privilege may still attach to communications between the CDPP and AFP officers because the communications occurred for the purpose of the proceedings. As it happens, I do not accept the bald proposition that the professional relationship between the AFP and the CDPP ends when charges are brought so that all further communications with the AFP are incapable of attracting the privilege. It seems to me that a professional relationship remains after the CDPP takes over the prosecution. The parties certainly acted as if such a relationship persisted, according to evidence recounted in the Clarke Report. For example, the Report noted:

·     Mr Davidson’s instructions to Mr Porritt that he ask Mr Jabbour on 16 July whether the AFP wished to withdraw the charge: exhibit A8, “AM-1” at 147; and

·     Mr Adsett wrote to Mr Jabbour on 24 July seeking advice about further evidence: exhibit A8, “AM-1” at 148.

Even if the respondents misunderstood the precise nature of the relationship, the communications between them might still be privileged for the reasons given by the Full Court in Grofam Pty Ltd v Australian and New Zealand Banking Group Limited (1993) 45 FCR 445; [1993] FCA 501. I will say more of that case below. In any event, I accept communications that occur after the charge might still be privileged on the basis that they occur for the purposes of the proceedings.

58.The applicant pointed out it is necessary to scrutinise each communication (and the circumstances in which it occurs) to ensure it can be attributed to a lawyer-client relationship. Mr Keim, in his submissions, pointed out the CDPP has a variety of roles and functions. The director might communicate with his officers for the purpose of obtaining legal advice, but he might equally speak to them in some other capacity that does not attract privilege – in relation to an employment matter, for example. Mr Keim added that privilege would not attach to internal communications that discussed policy or practical matters that could not be said to be legal advice. That is all true enough. Mr Keim argued that the evidence of Mr Carter on these issues was unhelpful. I think the evidence was of general assistance in explaining the role of the CDPP and the statutory framework. But I acknowledge there is no substitute for reviewing the documents in their context.

59.I am satisfied the respondents have done a good job of weeding out material that might fall outside the boundaries of a lawyer-client relationship. Except where I indicate otherwise, I accept the communications fall within the boundaries of the various relationships I have described.

60.The respondents say all of the relationships in question give rise to an obligation of confidentiality. The obligations arise out of:

·s 60A(2) of the Australian Federal Police Act 1979 and s 70 of the Crimes Act 1914 in the case of AFP officers;

·s 10.1 of the Queensland Police Service Administration Act 1990 (Qld) in the case of Queensland police officers involved in Operation Rain;

·the Australian Public Service Code of Conduct which refers to an obligation of confidentiality set out in the Public Service Regulations 1999 and s 70 of the Crimes Act 1914 in the case of officers of the CDPP;

·s 70 of the Crimes Act 1914 as well as professional rules applicable to lawyers in the private sector in the case of AGS lawyers;

·professional rules in the case of outside counsel.

Assessing the dominant purpose

61.The test approved by the High Court in Esso and other cases requires an analysis of the purpose for which the documents in question were created. The applicant rightly points out that a document will not be privileged merely because a client gives it to her lawyer.

62.Mr Keim’s written submissions argue the Tribunal would have a hard time concluding that many of the documents in question are properly the subject of a claim of legal professional privilege in the absence of evidence from the individuals who created the documents. Mr Keim said the authors of the documents should have given evidence at the hearing as to their purpose when they brought the documents into existence. Those individuals should then have been made available for cross-examination out of fairness to the applicant, although that would have added considerably to the cost and length of the proceedings.

63.Mr Keim submitted that many of the documents – such as witness statements – might have been created for the purpose of investigating crime pursuant to the AFP’s statutory charter. As I understand the argument, documents prepared in the course of a general investigation do not attract the privilege merely because an investigation has been initiated. It is not difficult to imagine circumstances in which the AFP might create documents – as part of an intelligence gathering exercise, or with a view to assisting a foreign police agency – that are not undertaken with the dominant purpose of using them in legal proceedings. Mr Keim says that if another purpose is of equal weight to, or more important than, the purpose of providing or obtaining legal advice or using the documents in the course of litigation, the dominant purpose test will not be satisfied.

64.Dr Renwick, counsel for the respondents, argues in his submissions that the requisite purpose is clear from the nature of the communication in many or most of the documents. He also argued that I should consider the circumstances in which the communications were made. Reduced to its essence, Dr Renwick’s argument is as follows: Dr Haneef was arrested because the police thought he might be involved in a terrorist offence. The arrest and investigation which followed occurred with a view to prosecution if the case developed in the way investigators anticipated. Witness statements and other documents that were prepared by investigators and in many instances provided to the CDPP were almost certainly generated as part of a process of building a case that would end up in court. Dr Renwick pointed out there were long-standing arrangements between the CDPP and the AFP to provide assistance in relation to aspects of an investigation before charges were laid, and the AFP customarily briefed the CDPP on the progress of an investigation in anticipation of charges being laid. Those arrangements were intended to facilitate successful prosecutions.

65.Mr Keim is right when he says I must be satisfied that each of the documents in question satisfies the ‘dominant purpose’ test before the privilege applies. The opinions of the authors of the documents over which privilege is claimed will ordinarily be useful evidence in relation to this issue. But Dr Renwick has a point when he says I am entitled to draw inferences about purpose from the nature and content of the documents and the circumstances in which they came to existence: see Petroulias at [37]; see also Grant v Downs (1976) 135 CLR 674 at 689 per Stephen, Mason and Murphy JJ. The point was made clearly in Australian Competition and Consumer Commission v Australian Safeways Stores Pty Ltd (1998) 153 ALR 393. In that case, Goldberg J emphasised one must look to all of the facts and circumstances and ask whether the document was created for the dominant purpose of obtaining legal advice or for use in connection with legal proceedings. His Honour pointed out the subjective opinions of the individuals who created the documents were not necessarily conclusive as to purpose: at 424; see also Grant v Downs at 424.

66.Where legal proceedings have already commenced, the purpose of the document will often be clear. Where the legal proceedings are merely in prospect, the question must be asked more critically. Goldberg J in Safeways said it would not be enough if the legal proceedings in question were possible but unlikely. His Honour said there must be a reasonable probability or likelihood of proceedings before documents could be said to have been created with the requisite purpose in mind: at 424-425. In Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] VSCA 59, Batt JA spoke of a “real prospect” of litigation (at [22]), which appears to be a lower standard. The Full Federal Court in Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission [2007] FCAFC 147 appeared to favour the formulation adopted by Batt JA in Mistubishi although Weinberg J cautioned that the apparent difference between the “tests” In Safeways and Mitsubishi was unlikely to be meaningful: at [33]. His Honour emphasised (at [33]-[34]) the real question in each case was one of fact: was the litigation reasonably anticipated?

67.The Victorian Court of Appeal in Mitsubishi held that some events or circumstances were notoriously likely to result in litigation – so much so that one could readily infer documents created in the wake of the event were likely to have been created with the dominant purpose of legal proceedings. The Court in that case was dealing with an explosion in a workplace. Batt JA explained (at [22]):

“the occurrence of an event of a kind that, in common experience, very often leads to litigation may found a sufficient anticipation of litigation to attract privilege”.

68.Arresting and detaining an individual in connection with a terrorist offence is surely such an event. The likelihood of legal proceedings is inherent in the so-called ‘arrest test’ in s 3W of the Crimes Act, which authorises a constable to arrest a person without warrant if the constable believes on reasonable grounds that (a) the person in question has committed or is committing an offence and (b) proceeding by summons would not achieve one or more specified purposes. It follows that a valid exercise of the power to arrest is pregnant with the real possibility – even probability - of charges. At common law, the connection between arrest and charge was particularly clear: the law required that an arrested person be brought before a court as soon as practicable. The Crimes Act now permits the police to delay charging an arrested person for a period for the purposes of questioning, and – as I have already noted – there are provisions that permit the police to extend the period of detention. But those reforms do not break the clear nexus between a valid arrest and detention and the legal proceedings that typically follow.

69.The arrest and detention of Dr Haneef was admittedly unusual in some respects. I have already noted the arrest occurred soon after the investigation commenced. That meant much of the evidence required to lay charges had not yet been gathered, and the investigation team was not properly prepared to question Dr Haneef, let alone lay charges. Mr Clarke concluded in his report that Dr Haneef might not have been arrested at all but for the fact he was in the process of leaving the country. Mr Clarke considered whether the arrest was technically valid in the circumstances but expressly declined to reach a view, saying (exhibit A8, “AM-1” at 53-54):

…it was at least arguable that there existed reasonable grounds for a belief that Dr Haneef had committed an offence against s 102.7(1) or s 102.7(2) of the Criminal Code at the time the arrest was made.

70.Importantly, Mr Clarke does not conclude that the arresting officers and the rest of the investigation team acted for any improper or collateral purpose when they decided to arrest and detain Dr Haneef. Mr Clarke identified procedural irregularities and questioned some of the judgments that were made by various individuals, but there is no reason to doubt that the investigation team was, almost from the moment Dr Haneef arrested, acting with a view to charging someone whom they believed was involved with a terrorist plot. That is not to say that the investigators were necessarily convinced they would succeed in bringing charges. Mr Appleby’s answers in cross-examination confirm it was uncertain whether charges would ultimately be laid and even Mr Jabbour had his doubts about the strength of the case. But there is no doubt the investigators were working with a view to charging the applicant if the evidence added up the way they expected. I am fortified in this view by the recollections of one of the lawyers involved in the case who subsequently provided information in the course of a review conducted by Mr Richard Maidment, SC. I am not at liberty to recount the detail of that communication as I have decided it is itself privileged for reasons that I will explain. Suffice to say that the evidence in question suggests the investigators clearly understood they were gathering evidence rather than intelligence. With the benefit of hindsight, we know the investigators were wrong. However I have no reason to doubt from Mr Clarke’s report or any other evidence that the view was genuinely held by Mr Jabbour in particular, who was in charge of the investigation.

Does the privilege attach to advice that may have been given without authority?

71.The applicant argued there must be a question-mark over privilege in relation to any advice given by Mr Porritt in circumstances where he appeared to have exceeded the terms of his authority. The Clarke Report makes clear that Mr Porritt did not follow the instructions from his superiors when he tendered his fateful advice on the arrest, which was misinterpreted: exhibit A8, “AM-1” at 147. The respondents say the misunderstanding between Mr Porritt and his superior over the advice did not take that advice outside the scope of the CDPP’s retainer. I am inclined to agree. The Full Federal Court’s decision in Grofam Pty Ltd v Australian and New Zealand Banking Group Limited (1993) 45 FCR 445; [1993] FCA 501 deals with this issue. In that case, the Court doubted whether the advice tendered by the CDPP was authorised under the Director of Public Prosecutions Act 1983. But it was satisfied that the CDPP and its client agencies were operating under the assumption that the CDPP was entitled to give advice. Northrop, Ryan and Beazley JJ concluded (at [21]):

When it is borne in mind that legal professional privilege is essentially concerned with the protection of the client, we consider that as a matter of judicial policy, communications between the client and a lawyer, which would normally be privileged, ought to be protected where the client involved genuinely believed that there was an entitlement to give the legal advice in question.

72.There is no reason to doubt that the AFP thought it was entitled to seek and rely upon the advice of the CDPP throughout the process. Mr Clarke made some recommendations about how that relationship might be clarified in the future, but the correspondence and other evidence of interaction in the documents confirms the respondents’ belief that the AFP was entitled to legal advice from the CDPP in the circumstances.

Are copies privileged?

73.The applicant argued that a copy is, in effect, a separate document and the purpose of its creation must be assessed against the “dominant purpose” test.  It follows that a copy of a non-privileged document that is made for the requisite purpose may be privileged: see Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 at 509 per Brennan CJ, 543-544 per Gaudron J and 554 per McHugh J. Copies made of a privileged document may also be privileged: see Brambles Holdings Pty Ltd v Trade Practices Commission (No 3) (1981) 58 FLR 452 at 458 per Franki J. In that case, his Honour observed (at [28]):

I am satisfied that legal professional privilege attaches to a draft or copies of a document which is itself entitled to that privilege, at least if the existence of the draft or copy represents a reasonably necessary stage in the preparation of the document to which privilege attaches.

74.Brennan CJ noted in Propend Finance that it is common in the age of the photocopier and laser printer that multiple copies of a document might come into existence: at 507. In a large organisation, copies of documents being forwarded to lawyers for the purposes of advice might be made widely available to corporate officers with an interest in the questions being put to the lawyers. The reasoning of Franki J in Brambles suggests the courts need to take a reasonably flexible approach when dealing with the reality of how organisations function. As a practical matter, the process of seeking advice is not necessarily a linear one that proceeds from a single officer of the client to a single officer of the law firm. The process of advice seeking might require the input of many people on the client’s side. Many copies and drafts and other internal communications might be generated in the course of what could be a lengthy, almost bureaucratic process. Once the request for advice is received by the lawyer, the process of giving advice might involve input from a great number of lawyers - from the hapless articled clerk who is commissioned to undertake a narrowly defined research task without any sense of the larger issues, to the senior lawyer who has contact with the client and an overview of the file but who mostly orchestrates the work of others. Documents stored on databases might be accessed and copied many, many times in the course of this process. Questions of privilege must be decided with this reality in mind.

75.The author of Cross on Evidence (Lexis-Nexis Butterworths, 8 ed, 2010) appears to have been conscious of this reality when he suggested (at 909) that the privilege may attach to a copy even if the copy was made for what was, on one view, a non-privileged purpose. The learned author referred to the example of Rath J in Komacha v. Orange City Council, (Unreported, Supreme Court of New South Wales, Rath J., 30th August, 1979). (Franki J referred to the relevant portions of that case in the course of his decision in Brambles.) Rath J held that copies of a privileged document that were circulated to officers in a corporation for their information were also privileged.

76.The applicant says many of the documents, or at least the copies, were generated for another purpose that had nothing to do with legal advice. Mr Keim referred in particular to the documents provided to Mr Maidment of counsel for the purposes of his review. He argued that the use of the documents for that purpose was not privileged.

77.The privilege over documents is not necessarily waived just because they are shown to someone else, and the decision in Komacha confirms that a copy of a privileged document may also be privileged even though copies were made for distribution within the organisation for information purposes only. I do not think that making copies for Mr Maidment to inspect for the purposes of what was really an internal review could be said to be so different to the situation in Komacha. I am satisfied that in the absence of other circumstances, privilege can be validly asserted over copies of privileged documents even though the copies were brought into existence  for the purposes of Mr Maidment’s review.

Waiving the privilege

78.The privilege may be waived expressly or by implication from the conduct of the person entitled to the privilege.  Implied waiver occurs if the communication is published or used in a way that is inconsistent with the maintenance of the confidentiality that is the hall-mark of privilege: see Mann v Carnell [1999] HCA 66 at [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ.

79.The respondents pointed out in their submissions that the question of whether a limited disclosure of material amounts to a waiver of the privilege needs to be assessed in the context of the case. In Osland v Secretary, Department of Justice [2008] HCA 37, the High Court considered the conduct of a state official who issued a press release referring to the existence and effect of confidential legal advice. Gleeson CJ, Gummow, Heydon and Kiefel JJ noted the official was undoubtedly intending to provide sufficient information to reassure the public that the subject of the advice had been carefully considered, at least partly to deflect any criticism. But that behaviour was not necessarily inconsistent with the maintenance of the privilege in that case, and did not result in unfairness to the applicant: at [48].

80.The decision in Osland is of particular interest in light of the applicant’s argument that the respondents have waived any privilege over documents generated in connection with the Maidment Report. I do not think the CDPP was acting inconsistently with the maintenance of confidentiality when it commissioned the report, even if the report subsequently enjoyed a high profile. The CDPP approached experienced counsel to examine its performance in order to determine what went wrong, and to identify any potential liability. The contents of document 123 confirm Mr Maidment enjoyed virtually unfettered access to files and CDPP personnel. There is no doubt that material was provided on a confidential basis. The CDPP was not waiving its privilege when it commissioned the report, even if it might have subsequently referred to the report and some of its conclusions in a public way as the official did in Osland.

81.The discussion of waiver in this case is complicated in a number of other respects. Firstly, the investigation, the aborted prosecution, the visa cancellation and their aftermath attracted intense media interest. There were leaks during the course of the investigation and some of the material was placed in the public domain by the applicant’s lawyers. The Clarke inquiry picked over what occurred. In doing so, it had access to documents provided by the respondents but it had access to other sources of information as well. As a result of all of this, many of the facts (or what are reported to be facts) about the investigation have become notorious. But just because information referred to in a document has made its way into the public forum does not necessarily mean the privilege in respect of that document has been waived. The real question is whether the person entitled to the privilege has conducted herself in a way that suggests she has waived the privilege. In this case, there are two agencies that might be in a position to claim privilege over some documents. The fact that one of the agencies has acted in a way that suggests it has abandoned its claim for privilege does not mean the other agency will also be taken to have waived any rights it might have. I accept a lawyer might waive privilege on behalf of her client, but the context in which that waiver is said to occur must be taken into account: see Osland. The CDPP’s provision of documents to Mr Clarke is case in point. The release of documents by the CDPP in the wholly unusual context of the Clarke Inquiry should not bind the AFP, if only because the CDPP was defending its own role and had certainly ceased to act on behalf of the AFP at that point.

82.A second difficulty arises because I cannot refer to the place where the material in a suppressed document may or may not be revealed without exposing the contents of the document. Even where I am inclined to accept that waiver has occurred, I must discuss the document in a way that does not prejudice the appeal rights of the respondent.  

Assessing the documents: legal professional privilege

83.Documents 1-53 are AFP documents. The rest of the documents are from the CDPP. I have made my assessment of the documents with reference to the schedule provided by the respondents under cover of a letter from their solicitor dated 6 November 2009.

84.Documents 1-4 are statements prepared by a Queensland police officer attached to the investigation. The form and contents of the documents clearly suggest they were prepared for the purpose of legal proceedings against Dr Haneef. The claim is made in respect of the entirety of each document. I am satisfied the claim is made out: the documents were clearly prepared for the dominant purpose of use in connection with legal proceedings, and perhaps for the purpose of obtaining legal advice. The decision to exempt these documents under s 42 is affirmed.

85.Document 5 is an undated chart of telephone links that was provided to the CDPP. The document includes the notation, “Intelligence purposes only”. I have already observed that the fact a document was passed to a lawyer does not in and of itself render it privileged. The question is the purpose for which the communication was brought into existence. The notation and the raw nature of the information in the document may suggest the document was created, as the note suggests, for intelligence purposes rather than for the dominant purpose of use in legal proceedings.  But I cannot ignore the fact that the intelligence gathering exercise in this case occurred in the context of an investigation that followed an arrest. The document – which appears to include input from a foreign agency – was almost certainly created in circumstances where the investigator knew it would be used as part of a case against Dr Haneef. In other words, I am satisfied from the circumstances of the investigation that the document was created as part of an evidence-gathering process, as opposed to an intelligence-gathering exercise. I do not accept that it was simply a record prepared for the investigators’ convenience and analysis which was subsequently sent to the CDPP, especially in light of the criticisms in the Clarke Report of the investigators’ lack of formal procedures for assimilating and analysing evidence. I infer that the document is in a readable form precisely because it was meant to be read by the CDPP. I accept the document was probably created for the dominant purpose of seeking advice and use in connection with the charges. In any event, for reasons I will explain, I am satisfied the document is exempt under ss 33.

86.Documents 6-23 are witness statements. Some of them were prepared under what I take to be a standard form QPS header; others were prepared by AFP investigators. While all of the statements would presumably be disclosed in due course if the proceedings had continued, the respondents say each document is privileged in its entirety and therefore exempt under s 42. The form and content of the documents suggest they were all prepared for use in connection with the proceedings. The documents are not comprised of etchings in a note book or other temporary record that formed part of an undirected inquiry. They are clearly formal statements that are intended to form part of a brief of evidence. I am satisfied the documents were created for the requisite dominant purpose. The decision to exempt the documents under s 42 is affirmed.

87.Document 24 is a briefing paper that was handed to the CDPP on 13 July 2007. Part of the document is hand-written. The document was referred to in Mr Clarke’s report at 134. It was prepared in connection with a briefing provided to Mr Porritt of the CDPP. The respondents claim large parts of the document are privileged. They have nonetheless agreed to release some portions of the document on the basis that privilege was waived when some of the information in the document was disclosed in the Clarke Report at pp 135-136.

88.The document was clearly created and provided to the CDPP for the purposes of obtaining legal advice. That much is obvious from the form and content of the document and from what we know of the circumstances in which it was created. I am satisfied the whole document is privileged. But how much of it has been waived? The respondent says only those portions of the document which have been released were referred to in the Clarke Report. The balance of the document has not been used in a way that is inconsistent with the maintenance of the privilege. I am inclined to agree. I acknowledge there was a public reference to the advice prepared by Mr Porritt when the AFP announced it was charging the applicant. That advice was presumably based in part on the contents of the briefing document. Whatever the position of the advice itself in light of the public disclosures, I do not accept the respondents (specifically the AFP) have waived the privilege in the briefing documents provided to the CDPP. The applicant also argues that waiver occurred when the document was provided to Messrs Maidment and Robinson. For reasons I have already explained, I do not accept there was a waiver and I think that privilege can persist over copies of privileged documents that were made for the purposes of the Maidment Report. The decision to exempt the redacted portions of the document under s 42 is affirmed.

89.Documents 25-27 are also briefing papers provided to the CDPP. The respondents claim privilege over the entire contents of each document. Document 25 is undated but it was handed to the CDPP on 17 July 2007. It sets out the case against Dr Haneef at that point. It appears to have been created on or shortly before the date it was provided to the CDPP. There is no reason to believe the document was generated for any other purpose apart from submission to the CDPP for the purposes of advice and in connection with the proceedings that had commenced. Document 26 is undated but it is an extract of a briefing paper that was apparently prepared for the CDPP for the purposes of obtaining legal advice. The schedule provided by the respondents suggests document 27 was created on 13 June 2007, but I assume that is an error and that the document was provided on 13 July 2007. This document is also part of a briefing paper that was obviously prepared for the dominant purpose of obtaining legal advice.

90.I am satisfied that the matters disclosed in the Clarke Report that might be traced back to these documents merely waive the privilege in respect of the released portions of the document. The applicant’s written submissions argue that privilege over large parts of document 25 in particular are waived because of material that the CDPP has released: submissions at [147]-[156]. Even if the CDPP could be said to have waived any privilege that it might have because of what it did with other documents, document 25 is an AFP document and it is the AFP’s conduct that is relevant. I would add that I am not satisfied there was any waiver of the privilege merely by reason that the document (or a copy) was provided by the CDPP to Messrs Maidment and Robinson. The decision to exempt the documents pursuant to s 42 is affirmed.

91.Documents 28 and 29 are charts that illustrate connections between events or suspects. Document 28 was created on 7 July 2007, before the CDPP became actively involved in the case. Document 29 was created on 12 July, the day Mr Porritt was briefed by Mr Jabbour at AFP headquarters. I am satisfied document 29 was created in connection with that briefing. It obviously represents an attempt to render the evidence into a more intelligible form in order to obtain legal advice. The claim for privilege is made out in respect of document 29 and I affirm the decision to exempt it under s 42. The fact document 28 was created several days in advance of the briefing to the CDPP raises a question as to its purpose. After looking at the document and considering the circumstances in which it was created – as part of an evidence gathering process – I am satisfied it was prepared for the dominant purpose of the legal proceedings. The decision to exempt document 28 is therefore affirmed.

92.The same can be said in relation to documents 30 and 31. Both of these documents are charts that point out connections between individuals. I note that document 31 in particular was created at an early stage in the investigation, but I do not think that makes any difference in the circumstances. The documents were plainly generated in anticipation they might be used for the purposes of obtaining legal advice, or in criminal proceedings, or perhaps in extradition proceedings if the United Kingdom authorities wanted Dr Haneef returned to Britain. The decision under s 42 is affirmed.

93.I would add that I am satisfied in any event that documents 28-31 are also exempt under s 33, for reasons I will explain.

94.Document 32 is another briefing or summary paper that was provided to the CDPP. It is undated. It includes handwritten annotations by a CDPP officer that were apparently made in the course of giving advice – although it is the purpose for which the document was created rather than its subsequent use which is determinative. As it happens, I am satisfied from the form and content of the document that it was generated for the dominant purpose of obtaining legal advice. The document is clearly intended to inform the CDPP of the AFP’s case. The decision to exempt the document pursuant to s 42 is affirmed.

95.Documents 33 and 34 are spreadsheets or charts that show calls between the applicant and others. They are both undated. The data in each spreadsheet has obviously been distilled from raw data. The schedule provided by the respondents asserts both documents were provided by the AFP to the CDPP for the purposes of obtaining legal advice. I have no reason to doubt the documents were provided for that purpose, but for what purposes were they were created? One might expect to see spreadsheets of this nature created in the course of any investigation, even an intelligence-gathering exercise. But I have already concluded that this investigation was, from the outset, more than an open-ended inquiry into a criminal event. It was a targeted investigation of an individual who had been (mistakenly) identified as a suspect in a terrorist attack. From a very early stage of the investigation, the AFP anticipated bringing charges against the applicant if the evidence confirmed the suspicions that had been raised. The data in the spreadsheets was obviously prepared with a view to demonstrating links between the applicant and others, which would be part of a case against him. I have no difficulty accepting the document was prepared in this way for the CDPP’s benefit, and perhaps for the benefit of a jury in due course. I am satisfied that was the dominant purpose, in any event. Both documents are privileged in their entirety and therefore exempt pursuant to s 42. I am also satisfied the documents are exempt pursuant to s 33 for reasons I will explain.

202.While much of the evidence against the applicant has already been canvassed in various public fora, including the Clarke Report, I am satisfied the bulk of the material in the dot points that has been withheld is privileged, and that the privilege has not been waived. Much of the evidence is supplemented by what might be described as editorial comment: the evidence referred to in each note is evaluated by the lawyer, and the evaluation makes the entries privileged. The exceptions are in dot points 1, 3 and 5. Given that evidence is unevaluated and its existence has already been disclosed, I think it should be released. The decision under review should be varied to that extent. The balance of the two passages is privileged. I think the same reasoning applies to the redacted passage on p 8. It contains a discussion and evaluation of evidence and advice about other matters that is clearly privileged.

203.Document 158 is comprised of another email chain annexed to the Maidment report. The larger of the two emails is from Mr Porritt to Mr Adsett. The email from Mr Adsett to Mr Bugg (with copies directed to others within the CDPP) forwards the email from Mr Porritt. Mr Porritt sets out his recollections of meetings and other events. It refers to confidential legal advice provided to the AFP and legal opinions that were formed in the course of that process. It recounts the author’s recollections of instructions from the AFP and strategic discussions and other events and evidence. The material is clearly privileged; the fact copies were made does not change that analysis. The email from Mr Adsett, in contrast, is very brief. But it is provided in the process of advising the CDPP. I think the entire document is exempt pursuant to s 42.

204.Document 159 is another chronology document recording the recollections of Ms Curnow, a CDPP officer. The chronology was also attached to the Maidment report. The note refers to instructions and advice that passed between the AFP and the CDPP officers at various points throughout the investigation and prosecution. There is evaluation of the evidence and comment on evidence-gathering techniques. There are a few short extracts which have been released on the basis that any privilege which might have attached to those extracts has been waived. I accept the balance of the document records privileged information. I am satisfied the decision to exempt the document pursuant to s 42 should be affirmed.

205.Document 160 is another formal Summary of Facts for Charging sheet prepared by the AFP in relation to the Haneef case. The document is similar (but not identical) to sheet in document 142. I am satisfied document 160 is privileged on the same basis as document 142. The decision to exempt the document is affirmed.

206.Document 161 is a copy of the Objection to Bail affidavit, including annexures that were provided to Mr Maidment and included in his report. Most of the document has been released but there is a series of notes in pp 6-8 of the document that the respondents say are privileged. The respondents are right. The notes record the arguments to be offered by the CDPP and points that should be drawn to the attention of the court in connection with the bail application. It seems to me those notes – effectively the working notes to be used by an advocate in the course of his or her submissions – are privileged. The privilege has not been lost or waived by providing copies of the documents to Mr Maidment. The decision to exempt the material under s 42 is affirmed.

207.Document 162 is comprised of two documents that were prepared for use in connection with an application to the court to extend dead time pursuant to s 23CB of the Crimes Act. They were annexed to the Maidment report. The application and supporting affidavit have been prepared in the name of Mr Simms, one of the investigating officers. Neither document is signed, presumably because the documents were not used. They were both clearly prepared in contemplation of proceedings. They are privileged. The privilege has not been lost or waived by providing copies of the documents to Mr Maidment. The decision to exempt the document is affirmed.

208.Document 163 is another set of handwritten notes provided by Mr Porritt of the CDPP to Mr Maidment and attached to the Maidment report. The fax cover sheet that accompanied the notes has been released. Some of the text of the notes has also been released. The quality of the handwriting in the released portions might give some clue to the difficulty I experienced in making sense of the notes. The notes were apparently prepared on 12 July in connection with Mr Porritt’s briefing from the AFP. They record legal questions and advice and evaluations of evidence and strategy. I am satisfied the bulk of the notes are privileged. I do not think that claim has been compromised by providing copies of the note to Mr Maidment. In the case of at least one of the released portions of text on p 3, which refers to Mr Maidment and Mr Robinson, it is apparent the handwritten notes were made after the meeting occurred. The respondents do not say those subsequent notes are privileged although they say the two phone numbers are exempt under s 41. The decision to exempt the redacted material pursuant to s 42 is affirmed. I note the document is reproduced in document 166 under cover of a fax from Mr Porritt to Mr Robinson. The redacted portions of text in document 166 are exempt from production on the same basis as the redactions in document 163.

209.Document 167 is a file note prepared by a CDPP officer. It is dated 30 July 2007. It records the writer’s recollections of the CDPP’s role in advising the AFP in connection with its investigative processes. The redacted portions go to that issue. The advice was clearly privileged when it was given. The recollection of that advice must also be privileged. The material is therefore exempt pursuant to s 42.

210.Document 168 is a copy of the hand-written notes taken by Mr Robinson of counsel as he and Mr Maidment conducted their interview of Mr Porritt for the purpose of their report to Mr Bugg. The notes are extensive and record a wide range of questions and answers. Large portions of the notes have been released.  The redacted portions tend to disclose references to evidence and opinions that are privileged. I am satisfied those entries are all exempt.

211.Document 169 is a copy of Mr Robinson’s handwritten notes of the meeting with Mr Adsett for the purposes of the Maidment report. A number of passages have been redacted. The redacted portions of text include references to advice and strategy discussions and evaluations of evidence and other matters that were obviously privileged. I do not accept the recollection of those matters changes the analysis. The decision to exempt the material should therefore be affirmed. Document 170 is another set of Mr Robinson’s notes. These notes record the details of a discussion with Mr Rendina of the AFP. The redacted passage on p 1 of the note records the CDPP’s role in giving advice in respect of an investigative process. The other brief note which is said to be privileged on p 6 refers to another, apparently unrelated case. Revealing the name of the case in this context might tend to disclose privileged advice that was provided in that case. I am satisfied the decision to exempt the material under s 42 should be affirmed.

212.Document 171 is a further set of Mr Robinson’s handwritten notes. These notes record the details of an interview with Mr Prunty of the MPS for the purposes of Mr Maidment’s report. Recall that Mr Prunty was attached to the AFP investigation. He participated in a number of the discussions with CDPP officers where information and advice was provided. That information and advice was clearly privileged. After reviewing the redacted entries in this document, I am satisfied that revealing the contents would effectively disclose privileged information. The exemption should stand.

213.Document 172 is another set of Mr Robinson’s notes. These notes were prepared in connection with an interview of Mr Craig of the AFP for the purposes of the Maidment report. Mr Craig recounts his recollections of the briefing provided to the CDPP officers on 12 July 2007 at AFP headquarters. The redacted passages set out Mr Craig’s recollections of questions about the evidence and the case directed to the lawyers, and the lawyers’ answers. The material in the redacted text, while unremarkable, is privileged. I am satisfied the recollections of the material in the notes should therefore be exempt pursuant to s 42 as well.

214.Document 173 is a set of notes prepared by Mr Robinson in connection with the interview of Mr Rice of the CDPP for the purposes of the Maidment report. Two passages of text have been redacted. In the first, Mr Rice recalls his advice given at a meeting. That advice was obviously privileged. The second entry is more complicated. It records Mr Rice’s reaction to a media report which he believed to be untrue, or at least exaggerated. On the face of it, a private reaction is not privileged. I am ultimately persuaded it is privileged however because disclosing the reaction would tend to reveal the advice which formed the basis for his view. The decision to exempt the material pursuant to s 42 is therefore affirmed.

215.Document 174 is another set of handwritten notes of Mr Robinson that were prepared in connection with the interview of Messrs Howe and Berger of AGS for the purposes of the Maidment report. The text from the second half of p 3 to the end of the document has been redacted. The text records the recollections of the two AGS officers of advice they gave and the discussions with the CDPP about the evidence and the progress of the negotiations. The advice they gave to the AFP was privileged, and the notes tend to disclose advice given by the CDPP and information provided by the AFP and discussed with the CDPP for the purpose of preparing advice. I accept that the whole of the redacted material is exempt.

216.Document 175 is another set of handwritten notes prepared by Mr Robinson in connection with an interview of Superintendent Hogan of the QPS for the purposes of the Maidment report. The first redacted entry is on p 2. The meaning and import of the note is unclear. I am unable to conclude it is privileged, although it may be exempt from production on a different basis. The parties have not had any opportunities to make any submissions in light of my conclusions on this point. I think the decision in relation to this extract must therefore be set aside and remitted to the respondents for reconsideration to determine whether a different exemption is available. The redacted extract that begins on p 4 records Ms Hogan’s recollections of a meeting in which legal advice was sought and received. Revealing the notes would tend to disclose the confidential legal advice. I am satisfied the exemption under s 42 in respect of this text is made out.

217.Document 176 is another set of handwritten notes prepared by Mr Robinson in connection with an interview of Mr Jabbour for the purposes of the Maidment report. Two words have been deleted from p 1 of the document on the basis that they contain personal information. I will deal with that claim in due course. The redacted passage on p 2 refers to legal advice from counsel. The advice was clearly privileged, and I think the recollection of that advice in the context is also privileged. The redacted passage on p 5 refers to another case; releasing the text would tend to reveal privileged legal advice about the other case. The extract on p 6 records part of an exchange with the CDPP in which a member of the investigative team sought legal advice. Once again, that information was privileged and I think the recollection of the advice is also exempt pursuant to s 42. The redacted extract on p 8 recollects a discussion of what further evidence would be required in order to support the charges. The advice on this point was clearly privileged and the entry recording the recollection should be exempt pursuant to s 42.

218.Document 177 is another set of handwritten notes prepared by Mr Robinson in connection with an interview of Mr Simms for the purposes of the Maidment report. There is only one redacted passage. It recounts legal advice that Mr Simms sought from Mr Porritt of the CDPP. I am satisfied that advice was privileged. The recollection of that advice in the notes should not be released.

219.Document 178 is yet another set of handwritten notes prepared by Mr Robinson in connection with an interview of Ms Curnow for the purposes of the Maidment report. The four redacted passages on p 1 of the document all refer to the investigative processes. The references in question are bare references in the sense that there is no intimation of the CDPP’s role or any advice. I am satisfied the material is exempt pursuant to s 38 in any event, for reasons I will explain. The redacted passage at the top of p 2 is difficult to read – the handwriting and the cryptic nature of the entry complicate my task. I am ultimately persuaded that the note records matters that would, if disclosed, tend to reveal confidential advice that passed between the CDPP and the client at that meeting or an earlier one. The notes recording the recollection of that advice should be exempt pursuant to s 42.

220.The redacted entry on p 3 records the client’s request for advice from the CDPP at a meeting. It is clearly part of a confidential exchange that is privileged. The redacted entries on pp 4-18 essentially record the same things: the notes record the recollections of the exchange of information and advice between the AFP and the CDPP as they discussed the evidence and what was required to make out a charge. There are a number of references to advice being sought and given in relation to aspects of the arrest and investigation. There is also some discussion in the notes of which counsel to brief. It seems to me that the recollections of these matters should be exempt pursuant to s 42.

221.Document 179 is a table prepared by a CDPP lawyer. It is undated. It appears to be a working document prepared for the purposes of giving advice to the client or in order to assist counsel. In either event, the form and contents of the document suggest it is privileged and exempt pursuant to s 42.

222.Document 180 is a set of notes made by counsel (either Mr Maidment or Mr Robinson) for the purposes of the review commissioned by Mr Bugg. The redacted text refers to the CDPP’s role in providing legal advice and assistance to the AFP in relation to an investigative process. Document 181 is another set of notes. The redacted passage refers to advice given in another, unrelated matter. That passage is privileged and revealing the name of the matter might provide a means to identify the content of the advice. In each case, I am satisfied the material is exempt pursuant to s 42.

223.Document 182 is a draft brief to counsel. The redacted passage refers to the CDPP’s role in providing advice and assistance in relation to an investigative process. It is privileged and exempt pursuant to s 42.

224.Document 183 is a statement prepared by a CDPP officer commenting on aspects of the Haneef case. There are several redacted passages. The passages in question all refer to other, apparently unrelated cases. The passages recount legal advice based on experience in those other cases. The advice is privileged and should not be disclosed. The names of the other cases should also be deleted on the basis that revealing the names may tend to reveal privileged advice in relation to those matters. The names of the other cases in this document (and in all the other documents where I have seen them mentioned) are irrelevant within the meaning of s 22 in any event. There is also a set of handwritten notes attached to that document. The notes are especially difficult to read. The redacted text refers to another case and the lessons to be drawn from that. I am satisfied the document was obviously brought into existence in connection with the preparation of advice. The entry is privileged and exempt pursuant to s 42.

225.Document 184 is the last document in the bundle. It is a draft memorandum to Mr Bugg from Mr Maidment. The draft summarises Mr Maidment’s findings and advice. The bulk of the text has been released. The redacted passage on p 3 refers to the CDPP’s role in providing assistance and advice to the AFP in connection with investigative processes. I think it is privileged although it is exempt for other reasons that I will discuss in due course. The first redacted entry on p 7 refers to legal advice that was sought by a member of the investigative team. It is also privileged. The second entry on p 7 refers to advice given in relation to another, unrelated matter that was made available to the CDPP in relation to the Haneef investigation. The advice is privileged and should not be disclosed. The name of the other matter is probably irrelevant within the meaning of s 22 in any event.

Other claims for exemption

226. Most of the documents were subject to claims under s 42, but the respondents made a variety of other claims. For reasons of economy, I will only address claims in respect of documents that I have not exempted on the basis of legal professional privilege, or where it is desirable to address the additional claims for the sake of completeness.

227.   I turn firstly to document 25. An individual’s name is mentioned on p 20 of the document. The respondents say the name is personal information that should be exempt from release pursuant to s 41. The section requires that personal information about a person must not be unreasonably disclosed. There is no doubt that a person’s name is personal information, but would it be unreasonable to disclose the name in the circumstances of this case?

228.   The person referred to was obviously involved with Dr Haneef in some way at some point. His name is already in the public forum, which tends to suggest that his privacy has already been compromised. But it is now several years since the events that triggered the investigation. The individual’s privacy might have been restored to some extent, at least in the sense that his unwitting role in the drama may have faded from the public memory. I do not think any purpose is served by refocusing the glare of public attention on this individual. I think it would be unreasonable to disclose the individual’s name at this juncture. The decision in that respect of affirmed.

229.   Document 27 includes another claim for exemption under s 41. The claim is in respect of a handwritten note of a telephone number on the upper corner of the first page of the document. A mobile phone number is undoubtedly personal information. It is also private, in the way that an office number recorded in a directory may not be. I do not see any good reason why the number should be disclosed and I affirm the decision under s 41.

230.   I turn next to document 36. I found that the document was not exempt under s 42 because there is no evidence it was created for the purposes of obtaining legal advice. But the respondents have also sought an exemption under ss 33(1)(a)(iii) and (b).

231. Section 33(1)(b) is the stronger of the two claims. The respondents say the document was provided under the terms of a Memorandum of Understanding between the MPS and the AFP. The Memorandum was discussed in the Tribunal’s earlier decisions in Haneef and Australian Federal Police [2009] AATA 51 (at [40]) Haneef and Secretary, Department of Prime Minister and Cabinet [2009] AATA 777 (at [69]-[76], [80]-[81]). Mr Appleby gave evidence in these proceedings and in previous proceedings to the effect that the MPS expected that every piece of information that it provided should be treated as being confidential. Mr Keim pointed out that some of the supposedly confidential information has long since been released. It is possible that some of the information is on the public record in the UK and Australia in any event. But Mr Appleby made it clear that the information, whether confidential in and of itself, was nonetheless provided to the AFP in confidence. He said the MPS expected the AFP to respect that understanding.

232.   Mr Keim criticised Mr Appleby’s evidence in written submissions. Mr Keim pointed out Mr Appleby had agreed he did not receive any of the documents from the MPS himself, and he had no first hand knowledge of the attitude of the MPS to questions of confidentiality.

233.   The Tribunal accepted the respondents’ submissions on this point in the earlier proceedings. I did so in Haneef and Secretary, Department of Prime Minister and Cabinet with some hesitation – not because I doubted Mr Appleby’s integrity, but because (as Mr Keim argues) his evidence is not clearly based on direct knowledge of MPS attitudes. But Mr Appleby’s evidence is consistent with the text of the Memorandum of Understanding. That document suggests the MPS is serious about protecting secrets. It is irrelevant whether that attitude is consistent, reasonable or admirable. I accept there is a risk that information from overseas might be rendered inaccessible through the simple device of channelling it through the hands of a supposedly prickly agency. Mr Keim says the document is drawn so widely that it is attended by an “air of unreality”: applicant’s submissions in reply at [25]. While I would prefer to hear from the MPS itself about these things, I accept I have enough evidence before me to decide the question in favour of the respondents.

234. I do not have any reason to take a different view of the claim under s 33(1)(a)(iii) either. We have Mr Appleby’s evidence that the relationship with the MPS would be imperilled if the AFP were to release documents that were provided by the MPS. I do not have any other evidence to suggest that is not correct. As I pointed out in Haneef and Secretary, Department of Prime Minister and Cabinet, it does not matter whether that reaction is a reasonable one: at [79]. It follows the decision in relation to document 36 and ss 33(1)(a)(iii) and (b) is affirmed.

235.   For the sake of completeness, I would add I am satisfied documents 5, 28-31 and 33-34 are also exempt under ss 33(1)(a)(iii) and (b) on the same basis as document 36. All three documents contain information provided by the MPS that was gathered in the course of its investigation in the United Kingdom.

236.   I earlier affirmed the respondents’ decision to redact certain portions of document 57 under s 42. In addition to this privileged information, the emails also include the names of an individual or individuals at several points. The respondents say disclosing the names would be unreasonable within the meaning of s 41. I agree. While a number of names of Dr Haneef’s friends and colleagues have been discussed in the public forum, it would be unreasonable given the passage of time to reignite the controversy surrounding their involvement. I am satisfied all of the claims for exemption under s 41 in relation to document 57 have been made out. I would reach the same view for the same reasons in relation to the entries in document 58.

237.   Document 60 includes a claim for exemptions under ss 33(1)(a)(iii) and (b). The two lines of text are obscure. A close reading suggests the information was provided by the MPS. There is no reason to doubt it was provided in confidence along with all of the other information under the terms of the Memorandum of Agreement. For the reasons given in relation to a similar claim in document 36, it will be apparent I accept the respondents’ argument on this point. I also accept Mr Appleby’s assessment of the likelihood of damage being done to Australia’s international relations if the material were released.

238.   Document 61 includes a few lines of text which the respondents say are irrelevant within the meaning of s 22. They argue it should be deleted. They are right. The redacted text refers to a matter that is plainly unrelated to the Haneef investigation. The deleted text does not fit within the terms of the applicant’s request. It should not be released.

239.   Document 69 also includes material redacted pursuant to s 22. I agree that the material should not be released. The text refers to matters that are plainly unrelated to the Haneef investigation. The text does not fit within the request that was made.

240.   Document 127 includes two additional portions of redacted text which were not the subject of the aforementioned claim for exemption under s 42. The first entry, on p 1, is plainly irrelevant to this case. It does not fall within the scope of the applicant’s request. It should be deleted pursuant to s 22. The entry on the second line of paragraph [2] is a mobile phone number. I am satisfied it is personal information. Disclosing a mobile phone number in the circumstances would be unreasonable. The decision is affirmed in relation to both of these claims.

241.   Document 128 includes a reference to an individual that has been deleted on p 8. I am satisfied the disclosure of the name would serve no purpose other than to renew and compound an earlier invasion of the individual’s privacy. It should be deleted pursuant to s 41.

242.   Document 129 also includes a reference to the name of an individual at p 6. I would affirm the decision to exempt the text for the same reasons as I gave in relation to document 128.  The name redacted from the first page of document 130 should also be exempt on the same basis.

243.   Documents 143 and 144 include a number of names. The respondents say it would be unreasonable to now disclose those names. I agree, for substantially the same reasons I gave in relation to similar entries in document 128. The respondents have also redacted three separate sentences from document 144. The first and third sentences refer to a named individual. While it would probably be enough to delete the name, I accept the sentence without the name might still provide enough information to inform the alert reader of the identity of the person. The whole of each sentence is exempt under s 41. The second of the three deleted sentences refers to the travel arrangements of the author of the email. It is almost certainly irrelevant, but the respondents have not requested that the information be deleted on that basis. I suppose one could argue that information about private travel arrangements was personal information; in the circumstances, I am not persuaded the claim is made out. I would remit the decision in relation to that line of text to the respondents for reconsideration of whether the material is relevant under s 22.

244.   The email exchanges in documents 143 and 144 are substantially reproduced in documents 146 and 147. I would exempt the names of the individuals from release on the same basis that I explained in document 143. The redacted line of text towards the middle of the first page of document 146 and the line of text towards the bottom of document 147 are exempt on the same basis as the first and third sentences I discussed in document 144. The sentence at line 6 of the first email in document 147 merely details travel arrangements. I would remit the decision in relation to that line of text to the respondents to reconsider whether it should be deleted on the basis that it is irrelevant. It should otherwise be released.

245.   The mobile phone number which is set out in the body of the second page of document 148 should also be exempt under s 41 for the reasons I gave in relation to document 27. The number is repeated in document 149. That text should also be deleted under s 41 for the same reasons.

246.   An individual is named on the third page of document 151. I think disclosure of that personal information in all the circumstances would be unreasonable within the meaning of s 41 for the reasons I have given elsewhere.

247.   The mobile phone number on the third page in document 152 should also be exempt under s 41. The number is personal information and it would be unreasonable to disclose it.

248.   Document 153 reproduces the emails in documents 143 and 144. I would exclude the same text from these emails for the same reasons that I gave in the course of the discussion in relation to documents 143-144. I would also exclude the private phone numbers listed on the second last page of the document (and another phone number appearing on the second page of document 156) for the same reasons I gave in relation to document 27.

249.   The name of the individual appearing in the middle of the first page of document 157 should also be deleted pursuant to s 41 for the reasons I gave in relation to similar claims in other documents.

250.   The telephone numbers appearing on the third page of document 163 and in documents 164 and 165 should be exempt under s 41. There is no public interest in disclosing that personal information; it would be unreasonable to do so. The exemption is made out. The numbers on the fifth page of document 166 are the same as the numbers referred to in document 163. Those numbers are exempt from disclosure on the same basis. The number on p 6 of document 170 is exempt on the same basis.

251.   Document 166 is a note from Mr Robinson of counsel in relation to a phone call from Mr Porritt. Mr Porritt had called Mr Robinson to mention the notes that are in document 163. A copy of document 163 is annexed to Mr Robinson’s note. I have already indicated my satisfaction that the redacted portions of document 166 are exempt from production on the same basis as redacted material in document 163. The respondents have also submitted the two phone numbers appearing in the text of p 2 of the handwritten portions of both documents should also be exempt under s 41. I agree that the phone number alongside Mr Maidment’s name should be exempt: it is a mobile number, and it would be unreasonable to disclose that number when it is not widely available. The number alongside Mr Robinson’s name is in a different category. It is his office number. His office number appears in the open on the letterhead on the first page of document 166. It cannot be unreasonable to release the information in those circumstances. I would therefore vary the decision under review to release the phone number of Mr Robinson appearing at p 2 of the handwritten notes of both documents 163 and 166.

252.   The names of the individuals referred to on the first page of document 176 and p 13 of document 178 are exempt under s 41 for the same reasons that I gave in relation to similar claims in other documents.

253. The phone numbers on the first and third pages of document 183 are also exempt pursuant to s 41 for the same reasons I gave in relation to similar claims in other documents.

254. I will refer lastly to three other documents that the respondents say include text which should not be released pursuant to s 38. Documents 157, 178 and 184 include information that cannot be disclosed as a result of legislation referred to in schedule 3 of the Act, namely the [text omitted]. Section [text omitted] of that Act prohibits the disclosure of “[text omitted]” within the meaning of s [text omitted]. The redacted material in documents 157, 178 and 184 contains [text omitted]. The decision to exempt that material is therefore affirmed.

Conclusion

255.My decision in this matter takes effect 28 days after the date on which the reasons were delivered. Pursuant to s 35(2) of the AAT Act, I direct that the reasons for decision not be published to anybody apart from the parties and their legal advisers and the Tribunal for a period of 7 days following the date of the decision. The redacted portions of my reasons for decision in paragraph 253 are confidential and may not be published to any person apart from the Tribunal, the respondent and their legal advisers until further order pursuant to s 35(2) of the AAT Act.

I certify that the 254 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ....................[Sgd].......................................................
  Patrick MacDonald

Dates of Hearing  22 – 24 July 2009
  10 November 2009 
Date of Decision  9 July 2010
Counsel for the Applicant         Mr S Keim SC
  Mr G Rebetzke
Solicitor for the Applicant          Mr A McKean
Counsel for the Respondent     Dr J Renwick

Solicitor for the Respondent     Mr J Hyland