Noonan and Australian Securities and Investments Commission - [2000] AATA 495

DECISION AND REASONS FOR DECISION [2000] AATA 495

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/167

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MAUREEN NOONAN
  Applicant
           And    AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
  Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date21 June 2000
PlaceSydney

Decision 1. The decision under review is varied by granting access to documents described with reference to their numbers shown in a schedule dated 5 June 2000 tendered by the respondent. Those documents are 43-119, 122, 124-127, 131, 154, 155 and 158-160. 2. In all other respects, the decision under review is affirmed.

..............................................
BJ McMahon
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – exempt documents – legal professional privilege – confidential communications between solicitor and client – criminal proceedings – whether release of documents could prejudice a fair trial – whether release of documents could lead to witness tampering.

Freedom of Information Act 1982 – ss 37(1)(a), 42, 56
Administrative Appeals Tribunal Act 1975 – s 26(1)(a)
Australian Securities and Investments Commission Act 1989 – ss 13, 14, 16, 18, 19, 22, 25

Edelsten and Australian Federal Police (1985) 9 ALN N65

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

This is an application to review a deemed decision refusing access to documents following a request made under the Freedom of Information Act 1982. The request was made on 30 September 1998. An appropriate response was not made within the time limited by the statute. The application therefore comes before this Tribunal pursuant to section 56. The application was by letter which, omitting formal parts, was in the following terms:
"I hereby request the following documents held by the ASIC or its officers:
Records of interview of the following persons held with respect to the Bond Investigation or later charges against Alan Bond, Peter Mitchell and Tony Oates, former Directors and Executives of same.
a) Robin Marc Devries         e) Lisa Jeffries          k) Adrian Nizzola
b) Alistair Nicholson              f) Trevor Benson        l) Mike Swan
c) Thomas Beregi                 g) Glyn Thomas        m) Alan Bond
d) Ken Williams  h) Bill Trenear           n) Tony Oates
  i) Simon Farrell         o) Peter Mitchell
  j) Graeme Baker
p) Briefs to and advice from the DPP and Counsel settling the terms of the charge and/or in relation to a charge of conspiracy to defraud against the abovementioned persons, but in so far only as they refer to Maureen Noonan or to her mention in the charge.
q) Any ASIC Reports whether external or Internal relating to the same matter mentioned in the last item.
r)The contents of any file held on Maureen Noonan
s)The interim and final reports of the Sulan Inquiry
t)Any other documents which may be known to Mr Alan Cameron, present or former leaders or members of the Bond Investigation team which would be relevant to the decision to name the applicant in the conspiracy charge.
In addition to this request, requests for access to information have been directed to the DPP, Attorney General and AFP.
I request access in the form of copies of documents.
In the even that this application does not comply with the requirements of the Freedom of Information Act, then I request that you take reasonable steps to assist me to make an application which complies with the requirements of the Act.
A cheque for the application fee of $30 is enclosed. I understand that I can expect acknowledgement of receipt of this application within 14 days and a notification of a decision within 30 days. Should your decision be to refuse access to any documents sought, full reasons pursuant to s.26 of the Act are hereby sought."

The documents lettered (a) to (p) are identical with documents to which access was sought by the applicant from the Commonwealth Director of Public Prosecutions. An application to review that decision was heard at the same time as the present application. By agreement between the parties, evidence in one application was evidence in the other. The decision and reasons for decision in that matter are published contemporaneously with these reasons. The result of the application contained in sections (a) to (p) will therefore be the same as in the other application. There are no differentiating facts or circumstances. The documents identified are the same, the grounds for exemption are the same and the evidence supporting those grounds is identical.
Item (s) above refers to a report dated 10 February 1992 made to the respondent following certain preliminary statutory authorisations. The report has been treated as confidential and has been limited in its circulation as appears from the affidavit of Mr Thorne.
"The Sulan Report or portions of the report have been provided only to a very limited class of persons, namely, persons conducting or contemplating proceedings directly relating to matters dealt with in the report and then on strong conditions designed to maintain the confidentiality of the report. The reason for attaching these conditions is that ASIC, together with the Commonwealth Director of Public Prosecutions, is concerned that any general disclosure of the Sulan report and the information in it may prejudice the pending trial of Anthony Gordon Oates, or earlier, trials of other persons that were then pending, but which have now been concluded. General disclosure could also prejudice the trial of any other persons against whom charges may be laid in the future.
ASIC's power to provide a copy of the Sulan Report or portion of the report, is limited to giving a copy of the report to a person whose affairs the report, or the relevant portion, "relates to a material extent."
Ms Noonan, was provided on 17 December 1991 and 2 January 1992, through her solicitors, with parts of the draft interim Sulan report. These extracts were Chapters 3, 13 and paragraphs 15.30-15.46, 15.59-15.66, provided on 17 December 1991 and Chapter 21, provided on 2 January 1992."

Those portions of the report relating to Ms Noonan have been extracted and have been made available to her. Counsel for the respondent advised me that she had read the whole of the report and that, apart from the extracts that had been made available to Ms Noonan, there was no other part of the report affecting her. This assurance was accepted by Ms Noonan who then announced that she no longer sought access to the document.
In a schedule of documents dated 5 June 2000, the three versions of the Sulan Report are documents 128 to 130 inclusive.
There were 161 documents identified as falling within the terms of the applicant's request. Each has been numbered and described in accordance with this Tribunal's practice direction. Following certain reviews, the respondent has agreed to give access to documents 43-119, 122, 124-127, 131, 154, 155 and 158-160 – a total of 90 documents. An agreement was put to the applicant pursuant to section 26(1)(a) of the Administrative Appeals Tribunal Act 1975 seeking her consent to a variation of the decision so as to provide for the release of these documents. Ms Noonan declined to sign the agreement, partly for the reason that she was under the impression that charges would be made for these documents.
The agreement itself specifically notes the respondent's resolution not to require the payment of charges. In my view, this is a proper concession as the respondent would not have been entitled to make such charges, the variation of the decision and the release of the documents occurring after proceedings were commenced in this Tribunal. The result is that the respondent no longer claims exemption in respect of these documents. That fact will be reflected in my formal order.
The remaining 71 documents can be grouped into 8 categories. Documents 1-22 are witness statements, identical with those considered in the DPP case, or transcripts of examinations made under section 19 of the Australian Securities and Investments Commission Act 1989 (the ASIC Law). The second category comprised in documents 132-157 consists of extracts from other section 19 transcripts which have been cross referenced to the applicant.
Documents 23-38 were also dealt with in the DPP application. They consist of communications between the respondent and its task force of investigators on the one hand, and legal counsel on the other, or officers of the DPP. These documents were the subject of a claim for legal professional privilege in the DPP application.
The fourth category comprised in documents 39-42 and 161 are minutes of meetings of the task force discussing progress in the investigation to which reference will later be made.
The fifth category is document 120 which sets out charges then under consideration to be made against the applicant. As it transpired, there were no such charges although, as appeared in the DPP application, Ms Noonan was named in charges against other defendants as a non-indicted co-conspirator.
The sixth category is also a single document. Document 121 is a statement by Ms Noonan, formally identifying cheques and other documents with which she was associated during the period under investigation.
The seventh category is the Sulan Report comprised in various versions in documents 129, 130 and 131. As noted above, the applicant no longer seeks access to these documents.
The eighth category is comprised of documents 89, 114 and 123. These have been partially released to the applicant. Deletions have been made to protect the integrity of the investigation.
In relation to the documents in common with the DPP application, claims for exemption were also made under section 42 on the basis that such documents would be privileged from production in legal proceedings on the ground of legal professional privilege. For the reasons which I set out in that matter, this claim will also be upheld in the present application.
In relation to all the other documents, claims have been made for exemption under a number of sections. In all cases, however, claims have been made under paragraph 37(1)(a) in relation to each document on the grounds that its disclosure under the Freedom of Information Act would, or could reasonably be expected to, prejudice the conduct of an investigation or prejudice the enforcement or proper administration of the law in a particular instance. In view of the conclusion to which I have come, it will not be necessary to examine claims made under other sections.
Part 3 of the ASIC Law deals with investigation and information gathering. Section 13 confers general powers of investigation on the respondent. The relevant investigation was directed by the Minister pursuant to section 14. Section 16 provides for the furnishing of an interim report as a result of the investigation. Section 18 permits the Commission to make a report or part of a report which relates to a person's affairs, to a material extent, available to that person. The Minister may also cause the whole or part of a report under this division to be printed and published. The evidence was that there has been no such authorisation.
Section 19 empowers the Commission to give notice requiring a person to appear for examination. Section 22 provides that this is to take place in private. The Commission, however, is empowered under section 25 to give copies of the record of examination in certain circumstances there described. The evidence did not disclose any of the enlivening circumstances following the present investigation.
All the 71 documents arose out of an investigation or series of investigations into the affairs of the Bond group of companies and individuals connected with that group. As I pointed out in the reasons given in the DPP application, Mr Bond and Mr Mitchell were both convicted of certain offences in relation to transactions involving Bell Resources Limited. Mr Oates, however, still faces charges. These have been dealt with at administrative proceedings by way of a preliminary hearing in Western Australia. An indictment has not yet been laid against Mr Oates pending his return to Australia from Poland to face trial.
In Edelsten and Australian Federal Police (1985) 9 ALN N65, this Tribunal held that section 37(1)(a) cannot be invoked in the case of completed investigations. The evidence before me, however, was that, at least so far as Mr Oates is concerned, the investigation could not be said to be completed. It would be more accurate to call it dormant. The evidence of Mr Thorne was that the investigation was still ongoing in the sense that it would be revived in the event of a pending trial. During the course of the investigation, offences were continually being identified as the investigation progressed. There was every reason to believe that further offences involving Mr Oates might be identified with further investigation.
Mr Thorne's evidence was unchallenged. I accept that a dormant investigation of this type could reasonably be expected to be prejudiced or compromised by the disclosure of documents bearing upon that investigation.
The use of the word "reasonably" in section 37 implies an obligation to consider the public interest when deciding whether the exemption applies. I reviewed the allegations made by Ms Noonan in the DPP matter on this subject. In the present application, I consider that there has been no evidence of a probative nature offered which would counterbalance the overwhelming public interest, not only in completing a dormant investigation. There is a strong public interest in the enforcement or proper administration of the law by ensuring that Mr Oates is brought to trial and by ensuring that his trial is carried out fairly. If any material is released verbatim into the public domain which might have the effect of influencing a juror's mind prior to the trial, there is a real danger that an application may be made for a permanent stay of the trial on the ground that it would be impossible to ensure that it was fair. Having regard to the extensive litigation involved in Mr Oates' resistance to attempts to have him extradited, I do not regard such a possibility as fanciful. Although there is no expressed public interest test in section 37, I consider that the interests of justice in these circumstances far outweighs any public interest considerations which Ms Noonan has suggested (without evidence for the most part) should be operative.
For these reasons, I consider that the claim for exemption in relation to all the non-released documents has been made out. This will be reflected in my formal decision.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:         .....................................................................................
  Dominika Rajewski, Associate
Dates of Hearing  05-08 June 2000
Date of Decision  21 June 2000
Representative of the Applicant    Self-represented
Counsel for the Respondent         Ms R.M. Henderson
Solicitor for the Respondent         National Co-ordinator, Administrative Law, ASIC