Smith v Victoria Police
[2012] VSC 374
•30 August 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. S CI 2010 03723
| MARTIN JOHN SMITH | Plaintiff |
| v | |
| VICTORIA POLICE (STATE OF VICTORIA) | Defendant |
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JUDGE: | FERGUSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 July 2012 | |
DATE OF JUDGMENT: | 30 August 2012 | |
CASE MAY BE CITED AS: | Smith v Victoria Police | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 374 | |
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PRACTICE AND PROCEDURE – Discovery – Whether Whistleblowers Protection Act 2001 (Vic) prohibited production in proceedings brought by whistleblower of files maintained by Victoria Police – Whether responding to discovery request a function of the Chief Commissioner of Police under the legislation - Whistleblowers Protection Act 2001 (Vic) ss 19(1), 22(1)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F. Forsyth | Clark Toop & Taylor Lawyers |
| For the Defendant | Mr M. Wheelahan SC with Mr S. Gladman | Norton Rose Australia |
TABLE OF CONTENTS
Introduction and parties................................................................................................................... 2
The statutory framework and Sgt Smith’s claim.......................................................................... 3
The contentions of the parties......................................................................................................... 5
Is the production of the Whistleblower files in this proceeding a disclosure for the purpose of the exercise of the Chief Commissioner’s functions under the Act?............................................. 17
Conclusion......................................................................................................................................... 23
HER HONOUR:
Introduction and parties
The plaintiff, Martin Smith, is a member of the police force. He has brought a claim against the Victoria Police (State of Victoria) under the Whistleblowers Protection Act 2001 (Vic) (“the Act”). He alleges that he has suffered damage as a result of detrimental action taken against him in reprisal for disclosures he made as a whistleblower about other members of the police force. Part of his claim is that the Ethical Standards Division of Victoria Police and the State failed to ensure that his complaints were kept confidential and failed to set up or comply with any adequate system to protect him from reprisals.
The State has discovered, but objects to producing for inspection, two Ethical Standards Department files and a register maintained by the Protected Disclosure Co-ordinator which contains information relating to registered whistleblowers. I will refer to these documents as the “Whistleblower files”. The files are in the possession of the Chief Commissioner of Police. The State claims that it is prevented from producing these documents because of s 22 of the Act. In part and subject to limited exceptions, that section prohibits disclosure of information obtained as a result of a protected disclosure. One of the exceptions is where the disclosure is ‘for the purposes of…the exercise of functions under this Act of…the Chief Commissioner of Police’.[1] Sgt Smith contends that this exception applies to the Whistleblower files and sought orders for their production subject to a proposed confidentiality regime. An Associate Judge determined that the State was prevented from producing the documents and dismissed the application. Sgt Smith appeals from that order. The appeal is by way of a rehearing,[2] although the Court will give such weight to the decision of the Associate Judge as appears proper.[3]
[1]The Act, s 22(1)(a).
[2]Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 77.06(7).
[3]Southern Motors Pty Ltd v Australian Guarantee Corporation Limited [1980] VR 187 at 189-190.
The issue for determination is whether production of the Whistleblower files in this proceeding is a disclosure for the purposes of the exercise of the Chief Commissioner’s functions under the Act.
The statutory framework and Sgt Smith’s claim
The Act establishes a regime for the protection of whistleblowers who report improper conduct by public bodies and their officers. Section 1 sets out the purposes of the Act as follows:
(a) to encourage and facilitate disclosures of improper conduct by public officers and public bodies;
(b) to provide protection for—
(i) persons who make those disclosures; and
(ii)persons who may suffer reprisals in relation to those disclosures; and
(c)to provide for the matters disclosed to be properly investigated and dealt with.
Section 5 of the Act provides in part that a person who believes on reasonable grounds that a public officer (which includes a police officer[4]) has engaged in improper conduct, may disclose that improper conduct in accordance with the Act. Such a disclosure is referred to in the legislation as a protected disclosure.[5] A disclosure that relates to a member of the police force[6] may be made to the Chief Commissioner of Police.[7] Under the Police Regulation Act 1958 (Vic), if a police officer complains to a more senior member of the force about the serious misconduct of another police officer, it is treated as a complaint to the Chief Commissioner under the Act and the Act applies to such a complaint.[8]
[4]Definition of ‘public officer’ in s 3 the Act.
[5]The Act, s 12.
[6]Other than the Chief Commissioner of Police.
[7]The Act, s 6(5).
[8]Police Regulation Act 1958 (Vic), ss 86L(2A) and 86LA.
Section 18(1) of the Act provides that a person must not take detrimental action against a person in reprisal for a protected disclosure. What comprises detrimental action in reprisal is dealt with in s18(2) as follows:
A person takes detrimental action in reprisal for a protected disclosure if –
(a) the person takes or threatens to take the action because –
(i)a person has made, or intends to make, a protected disclosure; or
(ii)the person believes that a person has made or intends to make the protected disclosure; or
(b)the person incited or permits another person to take or threaten to take the action for either of those reasons.
Section 19(1) of the Act provides that a person who takes detrimental action is liable in damages.[9] The present proceeding is brought by Sgt Smith against the State of Victoria under that section. Sgt Smith alleges that he reported improper conduct of other police officers in accordance with the legislation to the Chief Commissioner of Police. He claims to have suffered detrimental action taken in reprisal against him. Sgt Smith pleads that he informed representatives of the Ethical Standards Division of the improper conduct and detrimental action being taken against him. He claims that various people including the Ethical Standards Division and the State failed to ensure that his complaints were kept confidential and failed to set up or comply with any adequate system to protect him from reprisals. Sgt Smith pleads that the same people were aware of the detrimental action and, despite this, they permitted and incited the detrimental action. He alleges that the State is both directly and vicariously liable to him for injury, loss and damage suffered as a result of the detrimental action.
[9]‘Detrimental Action’ is defined in s 3 of the Act to include:
(a)action causing injury, loss or damage; and
(b)intimidation or harassment; and
(c)discrimination, disadvantage or adverse treatment in relation to a person's employment, career, profession, trade or business, including the taking of disciplinary action.
Section 22(1) of the Act provides:
(1)A person who obtains or receives information in the course of or as a result of a protected disclosure or the investigation of a disclosed matter under this Act must not disclose that information except for the purposes of—
(a)the exercise of the functions under this Act of the President of the Legislative Council, the Speaker of the Legislative Assembly, the Ombudsman, the Director, the Chief Commissioner of Police or a public body;
(b)any report or recommendation to be made under this Act; or
(c)any report referred to in Part 9; or
(d)any proceedings in relation to an offence against section 60 or section 106 or this section or section 19 of the Evidence (Miscellaneous Provisions) Act 1958; or
(e)any criminal or disciplinary proceedings taken against a member of the police force as a result of an investigation of a disclosed matter by the Chief Commissioner of Police under Part 7.
Penalty: 60 penalty units or 6 months imprisonment or both.
Sgt Smith has assumed for the purposes of this application that the Whistleblower files are subject to this section. I will do the same.
The contentions of the parties
Sgt Smith contends that the exception in s 22(1)(a) of the Act applies to production of the Whistleblower files. He submits that the Whistleblower files are held by the Victoria Police Protected Disclosure Co-ordinators, on behalf of the Chief Commissioner of Police for the purposes of the Act. As such, he says that responding to a discovery request for documents in a proceeding under s 19 of the Act which brings into question the propriety of the manner in which an investigation was carried out on behalf of the Chief Commissioner under the Act is incidental to and ancillary to the functions of the Chief Commissioner under the Act.
The State contends that paragraphs (a) to (e) of s 22(1) delineate the circumstances under which a person may disclose protected information with each of the circumstances corresponding to a power or function under the Act. The State submitted that none of the paragraphs relates to proceedings under s 19 of the Act. As a consequence, the State says that it is not permitted to produce the Whistleblower files for inspection.
Sgt Smith relied on a number of cases considering exceptions to secrecy provisions in other legislation. The first case relied upon was Canadian Pacific Tobacco Company Limited v Stapleton.[10] The High Court considered the proper construction of s 16 of the Income Tax and Social Services Contribution Act 1936-1952 (Cth). Section 16(2) provided:
Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any such information so acquired by him.
[10](1952) 86 CLR 1.
Dixon CJ held that the section probably could not apply to courts because they could hardly be called persons.[11] The Chief Justice continued:
But, in any case, I think that the words ‘except in the performance of any duty as an officer’ ought to receive a very wide interpretation. The word ‘duty’ there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word ‘function’. The exception governs all that is incidental to the carrying out of what is commonly called ‘the duties of an officer's employment’; that is to say, the functions and proper actions which his employment authorizes.[12]
[11]Ibid 6.
[12]Ibid.
The next case relied upon by Sgt Smith was Commissioner of Taxation v Nestle Australia Ltd,[13] which also considered s 16(2) of the Income Tax Assessment Act 1936 (Cth). By the time of this case, the provision read:
Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of ‘officer’ in sub-section (1).
[13](1986) 12 FCR 257.
The Commissioner had filed a list of documents but claimed that certain documents did not have to be produced for a number of reasons including because the Commissioner contended that s 16(2) rendered them immune from discovery and inspection. Having observed that the expression ‘except in the performance of any duty as an officer’ ought to receive a very wide interpretation,[14] the Full Federal Court[15] turned to consider the scope of the ‘duty’ of an officer and stated:
The ‘duty’ of an officer extends beyond the performance of work of an administrative nature such as processing returns, making assessments, considering and dealing with objections, conducting investigations into the affairs of taxpayers and matters of this nature. It includes the occasions on which he is required by the judicial process to produce documents or give evidence in courts, by affidavit or viva voce, concerning the affairs of some other person which he has acquired as an ‘officer’, where the proceedings are referable to the imposition, assessment or collection of revenue….
Compliance by ‘officers’ (within the meaning of that expression in s 16) with orders of the Court for discovery and inspection of documents in proceedings of this kind readily falls within the scope of their duties as such officers for the purposes of s 16(2).
There is another, but independent, ground for rejecting the Commissioner's argument that s 16(2) applies in this case to bar discovery and inspection. The prohibition imposed by the subsection is against divulging or communicating information to ‘any person’ and this plainly could not apply to a court.[16]
[14]Ibid 261.
[15]Bowen CJ, Lockhart and Sheppard JJ.
[16]Ibid at 262.
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport[17] also considered s 16(2) of the Income Tax Assessment Act 1936 (Cth). The applicant had requested that the respondent provide a statement pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) giving reasons for a decision the Secretary had made under the Income Tax Assessment Act 1936 (Cth). The Secretary refused to give the statement and relied on s 16(2). Gummow J, having referred to the decisions in Canadian Pacific and Nestle, stated:
The functions and proper actions authorised, and indeed required, by the engagement of an officer in the defined sense, include observance of and compliance with obligations arising at common law and in equity, save as excluded or supplanted by statute. These general law obligations would include those of care and skill, fidelity and confidentiality. Also included, in my view, in the exception is what is appropriate to discharge or satisfy requirements or duties imposed pursuant to procedures existing under statutes other than the Tax Act. The receipt of a request which falls within the terms of s 13(1) of the ADJR Act leads, by dint of s 13(2) of that Act, to the imposition upon the decision-maker of a duty or requirement to prepare and furnish the statement described in subs (1). To the extent that in discharging or satisfying that duty or requirement the decision-maker, being an ‘officer’ for s 16 of the Tax Act, is divulging or communicating to any person any information respecting the affairs of another person acquired by him by reason of or in the course of his appointment or employment as an officer, he does so in the performance of a duty as an officer and within the exception provided in s 16(2).
It follows, in my view, that the existence of s 16(2) of the Tax Act did not remove the entitlement of the applicant to make the request it made under s 13(1) of the ADJR Act.[18]
[17](1986) 13 FCR 124.
[18]Ibid 136-137 [authorities and citations omitted].
In Law Institute of Victoria v Irving,[19] s 77(2) of the Legal Profession Practice Act 1958 (Vic) was considered by the Full Court.[20] That section provided:
The council on receiving a report made in pursuance of this Part shall consider the same in camera and not otherwise, and it shall not be lawful for any member of the council or any of its officers to communicate to any person any information disclosed in such report except in the performance of his duty or as is provided in the next succeeding subsection.
[19][1990] VR 429.
[20]Murphy, Gray and Beach JJ.
The Court held that the production of documents pursuant to a notice for discovery was in accordance with the performance of the duties of the council or its officers.[21] Having referred to the decision in Nestle and agreeing with the conclusion reached in that case, the Court went on to state that there was a further ground for rejecting the contention that the prohibition applied. That was that the prohibition was against communicating to ‘any person’ and that could not apply to a court.[22]
[21]Ibid 434.
[22]Ibid 435.
In Martin v Pharmacy Restructuring Authority,[23] Davies J considered whether s 135A(1) of the National Health Act 1953 (Cth) made it wrongful for the Pharmacy Restructuring Authority to give a pharmacist information concerning an application made by another pharmacist for approval. Section 135A(1) read:
A person shall not, directly or indirectly, except in the performance of duties, or in the exercise of powers or functions, under this Act or for the purpose of enabling a person to perform functions under the Health Insurance Commission Act 1973 (Cth), and while the person is, or after the person ceases to be, an officer, divulge or communicate to any person, any information with respect to the affairs of a third person acquired by the first-mentioned person in the performance of duties, or in the exercise of powers or functions, under this Act.
[23](1994) 34 ALD 534.
Davies J noted that under s 90 of the Act, the Secretary of the relevant Department had the function of approving or refusing to approve a pharmacist for the purpose of supplying pharmaceutical benefits at or from particular premises.[24] His Honour noted that s 135A(1) did not preclude an officer from making a disclosure in the performance of duties or in the exercise of powers or functions under the Act.[25] Consequently, his Honour held that neither the Authority nor any of its officers was precluded from giving the applicants such information about the application for relocation as it was required to satisfy the principles of procedural fairness.[26]
[24]Ibid 535.
[25]Ibid 536.
[26]Ibid 536 - 537.
The next case relied on by Sgt Smith is McMillan v Director-General of Communities NSW.[27] In part that case concerned s 17 of the Casino Liquor and Gaming Control Authority Act 2007 (NSW). That section provided that a person who acquired information in the exercise of functions under that Act or the Liquor Act 2007 (NSW) must not, directly or indirectly make a record of, or divulge the information to another person, except in ‘the exercise of functions under the gaming and liquor legislation.’ Hall J referred to the decisions in Canadian Pacific, Nestle and Martin. His Honour stated:
The present case… involves the interaction between two pieces of legislation: the Casino Act and the Liquor Act. Information obtained by Inspector Munt pursuant to his statutory power contained in s.26 of the Casino Act, was divulged by the Director in the exercise of the functions prescribed by the Liquor Act. The functions of the Director as provided by the Liquor Act include the determination of disturbance complaints including the convening of conferences in relation to such complaints. It was in connection with these particular functions that the Director disclosed the trading data to licensees. That disclosure enabled licensees to be aware of a basis of the complaint against them and to be in a position to provide submissions in accordance with s 81. As was the case in Martin and Ridgeway v the Pharmacy Restructuring Authority …, the provision of information was necessary to ensure that the requirements of procedural fairness were met. Having regard to the approach taken in the abovementioned authorities in relation to secrecy provisions, it is clear that the phrase “in the exercise of functions” must be given a wide interpretation.
In light of the specific exception provided for in s.17 of the Casino Act and the matters to which I have referred, I am of the opinion that the disclosure in this case can be properly considered as ancillary to the performance of the Director’s statutory functions, and as, accordingly, falling within the exception to the prohibition on disclosure. On that basis, there is no ground for the relief sought in the present proceedings.[28]
[27][2009] NSWSC 1236.
[28]Ibid [272]-[273].
In Transport Industries Insurance Co Ltd & Ors v Masel & Ors,[29] insurers had provided indemnity to the Health Commission of Victoria and a number of medical and hospital institutions under a policy of insurance in respect of 113 claims. The insurers alleged that they were entitled to avoid the policy of insurance and sought restitution of the money paid under it. One of the hospitals discovered but objected to producing medical records relating to patients on the basis that s 141(2) of the Health Services Act 1988 (Vic) prohibited disclosure. That section provided:
[29](Unreported, Byrne J 28 June 1996).
A person to whom this section applies must not, except to the extent necessary –
(a)to carry out functions under this or any other Act; or
(b)to exercise powers under this or any other Act in relation to a relevant health service; or
(c)to give any information he or she is expressly authorised, permitted or required to give under this or any other Act –
give to any other person, whether directly or indirectly, any information acquired by reason of being a person to whom this section applies if a person who is or has been a patient in, or has received health services from, a relevant health service could be identified from that information.
Section 141(3)(b) excluded from the obligation of confidentiality ‘the giving of information to a court in the course of criminal proceedings’.
Citing Canadian Pacific as authority, Byrne J observed that ‘function’ ‘is a word of wide meaning which encompasses not only the tasks required of [a person to whom the section applied] but all proper actions and things which are reasonably incidental to these tasks.’ However, his Honour went on to note that the legislation required that the function be authorised under the Health Services Act or some other Act of Parliament. His Honour noted that the legislation conferred on the hospital the legal capacity to sue and be sued and to do all acts and things which bodies corporate may do or suffer. The hospital was also empowered to carry out its objects and to do all things required or permitted under the Health Services Act. His Honour was unable to discern from the material available to him the objects of the hospital. His Honour continued:
The difficulty with all of this is that, as the powers of [the hospital] under the Act are more general, so too the confidentiality conferred by s 141(2) becomes more illusory, even giving full weight to the requirement that disclosure be necessary to exercise them. The requirement of confidentiality where medical services are provided by or in public institutions is widely accepted by Parliament….Likewise, where the information affecting personal privacy of some person is held by a government agency…. Against this background, I am reluctant to construe s 141 more generously than the words require. I conclude, therefore, that the disclosure is not protected by para (a) or para (b) of s 141(2).
However, his Honour held that s 141(2) did not apply where the information was given to the court rather than to a ‘person’. His Honour continued:
With respect to s141(3)(b), I am satisfied that it is explicable as a provision included from an abundance of caution to deal with an obvious case where disclosure should readily be made.
His Honour determined that it was appropriate for the documents to be produced and moulded orders aimed at protecting the identity of the patients concerned.
Next, Sgt Smith relied on Garnaut v Argall.[30] In that case, s 150 of the Child Support (Assessment) Act 1989 (Cth) was considered. Relevantly that section provided:
[30][2004] FCA 360.
(2)Subject to subsection (3), a person to whom this section applies must not:
(a) make a record of any protected information; or
(b)whether directly or indirectly, communicate to a person any protected information concerning another person.
(2A)Subsection (2) does not apply if the record is made, or the information is communicated:
(a)under or for the purposes of this Act; or
(b)in the performance of duties, as a person to whom this section applies, under or in relation to this Act.
…
(5)A person to whom this section applies is not required:
(a)to communicate protected information to a court; or
(b)to produce a protected document in court;
except where it is necessary to do so for the purposes of this Act.
Spender J referred to the decisions in Canadian Pacific and Nestle and set out the first paragraph from the quotation referred to in [15] above. His Honour continued:
It seems to me that, in those circumstances, the secrecy provisions do not inhibit the proper production of information relevant to, or in relation to, the Assessment Act. As that last quote from Nestle Australia Ltd shows, it is contemplated specifically by their Honours that applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review are proceedings of a kind that would be within the ordinary understanding of duty or function of an officer referred to in s 150(2A) and s 150 (5) of the Assessment Act.[31]
[31]Ibid [12].
In Rugs-A-Million (WA) Pty Ltd v Walker,[32] the Western Australia Court of Appeal dismissed an appeal from a decision of Master Newnes about the meaning of s 19 of the Consumer Affairs Act 1971 (WA). That section gave the Commissioner for Fair Trading certain powers “for the purposes of carrying out any investigation or inquiry in the course of carrying out his duties” under the Consumer Affairs Act or the Fair Trading Act 1987 (WA). The Master had held:
I do not consider that the reference to ‘carrying out his duties’ in s 19 is to be read as a reference to duties specifically imposed on the Commissioner under an Act, but rather to any duties of the Commissioner which arise by reason of that Act. Given the nature of the Commissioner’s functions under, in particular, the Act and the Fair Trading Act, I do not consider there is any reason why the reference to ‘carrying out his duties under [the Act]’ should be read as limited to ‘carrying out duties specified in the Act’, rather than to duties arising by virtue of the Act.[33]
[32][2007] WASCA 23.
[33]Ibid [26].
The Court of Appeal agreed with the Master’s reasons.
Sgt Smith submitted that, based on the case law set out above, responding to a discovery request pursuant to litigation contemplated and provided for by the Act is within a broad interpretation of the “functions” of the Chief Commissioner under the Act.
The State submitted that the Court would fall into error if it permitted the statements made in decisions about confidentiality provisions in other legislation to control the process of statutory construction of s 22(1)(a) of the Act. Further, the State contended that in any event, the decisions are distinguishable from the present case because:
(a)first, the decisions relate to the construction of legislation other than the Act, and thus necessarily turn on the different words, purposes and statutory context of the legislation in question;
(b)secondly, in four of the decisions, the legislation prohibited the disclosure of information by a person except “in the performance of any duty as an officer”[34] or “in the performance of his duty”.[35] The exception in s 22(1)(a), however, is confined to the exercise of functions “under this Act”; and
(c)thirdly, in each of the decisions, the legislation prohibited only the disclosure of information “to any person” or “to another person” and was held to be inapplicable to the disclosure of information to the court. Words such as those do not appear in s 22(1). The prohibition created by s 22(1) is therefore broader in scope than the prohibitions that were considered in the other decisions.
[34]Canadian Pacific Tobacco Company Limited v Stapleton (1952) 86 CLR 1; Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124.
[35]Law Institute of Victoria v Irving [1990] VR 429.
The State contended that Sgt Smith seeks to substitute a confidentiality regime suitable to him for the confidentiality obligations imposed by s 22 of the Act to avoid an inconvenient result.
The State contended for a narrow construction of s 22. It submitted that the functions of the Chief Commissioner of Police under the Act are not at large and none of the functions of the Chief Commissioner of Police under that Act relates to the defence of proceedings under s 19. The State noted that the Chief Commissioner of Police is not an office established under the Act. It is an office established by the Police Regulation Act. Therefore, the State contended that when s 22(1)(a) speaks of functions under the Act, it directs attention to functions under that Act, not the functions of the Chief Commissioner generally. Further, the State contended that the fact that one is able to identify statutory functions of the Chief Commissioner and other office holders referred to in s 22(1)(a) within the four corners of the Act indicates that one does not need and ought not to read “functions under this Act” more broadly. The State contended that the defendant to the proceeding might be an individual employee of a government department and there is nothing about being joined as a defendant to a civil proceeding which is indicative of the Chief Commissioner exercising some function under the Act.
The State contended that the ordinary and grammatical meaning of s 22(1) is that a person will commit an offence if he or she produces documents containing protected information for the purpose of this proceeding. The State submitted that the Court must give effect to this ordinary and grammatical meaning, unless Sgt Smith can establish that it would lead to some absurdity or some inconsistency with the rest of the Act,[36] or that there is another construction available that would better promote the purpose or object underlying the Act.[37] The State contended that no absurdity results if the ordinary and grammatical meaning is given to the words. The submission was developed as follows. The exceptions to the prohibition on disclosing protected information in s 22(1) fall into two categories. The first category comprises the exceptions in paragraphs (a), (b) and (c). Broadly speaking, these exceptions are for purposes connected with the exercise of legitimate functions under the Act. The second category comprises the exceptions in paragraphs (d) and (e). These exceptions are for the purposes of proceedings for offences under the Act or the Evidence (Miscellaneous Provisions) Act 1958 (Vic) and criminal or disciplinary proceedings taken against a member of the police force as a result of an investigation of a disclosed matter.
[36]Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, 340; Broken Hill South Ltd v Commissioner of Taxation (1937) 56 CLR 337, 371.
[37]Interpretation of Legislation Act 1984 (Vic) s 35(a); Laceyv Attorney-General (Qld) (2011) 242 CLR 573, 592 [44].
Further, the State submitted, there is nothing in the text or logic of the Act to suggest that the absence in s 22(1) of an exception for the purpose of proceedings under s 19 was inadvertent. Indeed, the State contended, the indications are to the contrary:
(a)First, proceedings under s 19 are civil proceedings in which the plaintiff seeks an award of damages. The nature and objects of such proceedings are very different from the nature and objects of criminal and disciplinary proceedings. In enacting s 22(1), the Parliament appears to have drawn a rational distinction between civil proceedings, on the one hand, and criminal and disciplinary proceedings, on the other.
(b)Secondly, the Parliament has made express provision for proceedings under s 19 elsewhere in the Act. Section 108(2)(b) of the Act provides that proceedings under s 19 are excluded from the operation of s 108(1), which makes protected information obtained by a party from the Ombudsman, the Director, the Chief Commissioner of Police or a public body, or from a person who obtained the protected information from any of those sources, inadmissible in legal proceedings.[38]
[38]So far as relevant s 108 reads:
(1) Information is not admissible as evidence (if given by a party) in legal proceedings if it was obtained or received by the party –
(a)from the …Chief Commissioner of Police… in the course of or as a result of –
(i)a disclosure under Part 2; or
(ii)the investigation of a disclosed matter under this Act; or
(b)from any person who obtained it in that way.
(2)Subsection (1) does not apply to - …
(b)proceedings under section 19 or 20 of this Act;…
In relation to the last matter, the State submitted that its significance is that when the Parliament considered that an exception should be made for the purposes of proceedings under s 19, it made express provision. The State argued that the Parliament could easily have made an exception for s 19 proceedings in s 22 but it has not done so.
So, the State contended, the ordinary and grammatical meaning of s 22(1) does not lead to any absurdity because its practical effect on proceedings under s 19 is simply to protect from production a class of documents, which may or may not be relevant to the facts in dispute. The State’s argument proceeded on the basis that the Parliament’s decision to omit from s 22(1) an exception for such proceedings is determinative of how the competing public policy considerations that are relevant to the Act should be balanced. In particular, so the State contended, that omission reflects a legislative intent that the public interest in encouraging people to disclose improper conduct by protecting the confidentiality of their disclosures should prevail over the more general public interest in litigation being conducted on the footing that all relevant documentary evidence is available. The State drew an analogy with the doctrine of client legal privilege which it contended produces similar results to s 22(1) of the Act, and is justified on similar public policy grounds.[39]
[39]Grant v Downs (1976) 135 CLR 674, 685.
The State also submitted that there is no inconsistency between ss 19 and 22(1) that would lead to an interpretation different from the ordinary and grammatical meaning of the latter provision. The State submitted that the right to compel the production of documents is a procedural right founded on the Court Rules and as such it does not attach to a particular cause of action. Thus, the State submitted, s 19 does not create any right to compel the production of documents and it has no bearing on the evidence that might be available to Sgt Smith in the proceedings.
Nor, the State contended, is there any inconsistency between s 108(2)(b) of the Act and the ordinary and grammatical meaning of s 22(1). The State argued that the admissibility of evidence in legal proceedings and the parties’ ability to compel each other (or non-parties) to produce documents in those proceedings are distinct legal issues.
Finally, the State contended that a strict approach to the exceptions in s 22(1) is consistent with the purposes of the Act (set out in [4] above) and the second reading speech (set out in [45] below). The State submitted that there is no contrary tenable construction to the one contended for by it because any alternative construction depends upon inserting words into s 22 which are not there.
Is the production of the Whistleblower files in this proceeding a disclosure for the purpose of the exercise of the Chief Commissioner’s functions under the Act?
The importance of the discovery process in litigation should not be forgotten. There are exceptions to the production by a party of relevant documents and limitations that the Court may impose on the breadth of discovery to be given. However, clear legislation would be required to broaden the exclusions from the requirement to produce relevant documents which will assist the Court in adjudication of the issues in dispute. As Sheppard J said in Sanko Steamship Company Ltd v Sumitomo Australia Ltd:[40]
Courts entrusted with the task of settling disputes between citizens have an important public function. There is a public interest in the proper administration of justice. The powers of courts to compel the production of documents have an ancient origin and have been restated and, in the case of courts having a statutory origin, re-enacted many times….One would not lightly infer that those powers were circumscribed in any way. That is why the legislature, when enacting the Income Tax Assessment Act, has been careful to include in s 15 an express provision limiting the powers of courts to compel the production of documents. Even so, the courts have nevertheless held that the Commissioner remains, in an appropriate case, obliged to give discovery of documents in a case in which he is a party: Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257.[41]
[40](1992) 37 FCR 353.
[41]Ibid 360. This passage was applied by Byrne J in Masel.
The question here is whether when properly construed, s 22 of the Act does prevent the State from producing the Whistleblower files as part of the discovery process.
I agree with the State that the cases relied upon by Sgt Smith are of little assistance in construing what is meant by the words ‘for the purposes of…the exercise of functions under this Act of…the Chief Commissioner of Police’ as they appear in s 22(1)(a). At a broad level, it might be said that all of the legislation considered by those cases is analogous because each piece of legislation concerns the protection of confidential information. Further, some of the legislation uses terms that are in some respects not dissimilar. However, it is not the same legislation and the text, context and purpose of the various pieces of legislation are not sufficiently similar to aid in any significant way in interpreting s 22(1)(a).
Rather, the Court should begin by giving the words in s 22(1)(a) their ordinary and natural meaning having regard to their context and legislative purpose.[42] The title “Whistleblowers Protection Act” is apt. The legislation was introduced ‘to protect persons disclosing information about serious misconduct or maladministration in the public sector.’[43] That is part of the context in which the words in s 22(1)(a) must be construed. As noted in [4] above, the purpose of the legislation includes encouraging whistleblowers to disclose improper conduct and protecting them when they do so. Part of the legislative scheme is to provide that when there is a breach of the statutory requirements aimed at protecting the whistleblower and the whistleblower suffers reprisals, not only are there criminal ramifications but there is also a civil remedy available to the whistleblower by virtue of s 19. In the second reading speech, the Attorney General stated:
Clause 18 creates a criminal offence, punishable by 2 years imprisonment, of taking detrimental action against any person in reprisal for a protected disclosure.
In addition to the criminal offence, clause 19 creates a statutory right of action in tort for the whistleblower to sue for damages for reprisals and clause 20 enables the whistleblower to apply to the Supreme Court for an injunction or an order requiring the person who has taken the detrimental action to remedy that action. These forms of relief will be extremely useful for the whistleblower who, despite the criminal offences created by the legislation, suffers reprisals for coming forward.
Maintaining confidentiality about the identity of the whistleblower is critical if people are to be encouraged to speak out about improper conduct. Clause 22 makes it an offence to reveal information received in the course of an investigation into a protected disclosure except for the legitimate exercise of functions under the bill and for the purposes of a limited range of proceedings.[44]
[42]Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, 649, [5] (per French CJ and Bell J).
[43]Victoria, Parliamentary Debates, Legislative Assembly, 31 August 2000, 384.
[44]Victoria, Parliamentary Debates, Legislative Assembly, 31 August 2000, 377-388.
It is clear that the focus for protection is on the whistleblower, not on the person to whom the disclosure is made nor the person who has taken reprisal action against the whistleblower.
What then are the functions of the Chief Commissioner under the Act? There is no provision that sets out a list of his functions as there is in the case of the Ombudsman.[45] That being so, the starting point is to look at the role he performs under the Act. Under the legislation, disclosures that relate to members of the police force may be made to the Chief Commissioner.[46] If such a disclosure is made, the Chief Commissioner must consider whether the disclosure is a public interest disclosure.[47] If it is, then the Chief Commissioner must refer the disclosure to the Ombudsman.[48] The Ombudsman has investigative powers and, if requested, the Chief Commissioner must make police officers available to assist the Ombudsman in that task.[49] Nevertheless, those police officers remain under the direction and control of the Chief Commissioner.[50] Among other things, on completing the investigation of a disclosed matter that relates to a police officer, the Ombudsman may make a written report to the Chief Commissioner and make recommendations as to the action to be taken.[51] If he does this, then the Chief Commissioner must respond in writing as to whether or not he proposes to take the recommended action.[52]
[45]The Act, s 38.
[46]Other than a disclosure that relates to the Chief Commissioner: ss 6(4) and 6(5)(c) of the Act.
[47]The Act, s 33(2).
[48]Ibid s 34(1)(b).
[49]Ibid s 48(2).
[50]Ibid s 48(3).
[51]Ibid s 63A.
[52]Ibid s 65.
Rather than investigating himself, the Ombudsman may refer a disclosed matter to the Chief Commissioner to investigate if he considers it appropriate to do so and the matter relates to a member of the police force.[53] The Chief Commissioner is required to investigate matters referred by the Ombudsman.[54] The Chief Commissioner has broad investigative powers.[55] If the Chief Commissioner finds that the reported conducted has occurred, then he must take steps to prevent it from continuing or occurring in the future and he may take action to remedy any harm or loss arising from the conduct.[56] The Chief Commissioner must give the Ombudsman progress reports and a final report once the investigation is completed.[57] If the Ombudsman disagrees with the Chief Commissioner, then he may make recommendations as to what steps should be taken.[58] The Chief Commissioner is required to respond to those recommendations.[59] The Chief Commissioner must inform the whistleblower of the findings of the investigation and the steps to be taken.[60]
[53]Other than the Chief Commissioner, Deputy or Assistant Commissioner of Police. The Act, s 44(1).
[54]The Act, s 84.
[55]Ibid s 90.
[56]Ibid s 92(1).
[57]Ibid ss 91 and 93.
[58]Ibid s 94(1).
[59]Ibid s 94(2).
[60]Ibid s95(1). This does not have to be done if the disclosure was made anonymously or if the Chief Commissioner is of the opinion that it would be contrary to the public interest to inform the whistleblower: The Act ss 95(2), (3).
In certain circumstances, the Ombudsman may take over the investigation[61] and the Chief Commissioner is then required to give the Ombudsman any information he has or any findings that he has made in respect of the matter.[62]
[61]The Act, s 86.
[62]Ibid s 87.
It is clear from what I have set out above that the Chief Commissioner has a pivotal role to play when it comes to protected disclosures about the conduct of police officers. He is charged with the responsibility of receiving complaints, investigating complaints that are referred to him by the Ombudsman, addressing any improper conduct and protecting the whistleblower. Essentially, the Chief Commissioner’s role is central to ensuring that the whistleblower scheme works so far as Victoria Police are concerned.
That being the case, it seems to me that in context and given the legislative purpose, the proper interpretation of s 22(1)(a) does not require an unnecessarily restrictive meaning to be given to the words ‘for the purposes of…the exercise of functions under this Act of…the Chief Commissioner of Police’. A narrow interpretation as contended for by the State would limit the word “functions” only to those tasks that specifically name the Chief Commissioner in the Act. However, in my opinion, the interpretation to be preferred and which would better promote the purpose and object underlying the Act would give the phrase “functions under the Act” broader operation. The phrase encompasses all actions of the Chief Commissioner, including incidental and ancillary actions, in the performance of his role as outlined above. It includes functions that arise by reason of the operation of the Act, not just those where he is specifically mentioned. Such an interpretation does not require the addition of words to the legislative text. Rather, it merely requires a more expansive meaning to be given to the text than that contended for by the State.
Part of the Chief Commissioner’s role includes investigating disclosures referred to him and taking steps to prevent improper conduct (including reprisals) from continuing or occurring in the future. If he fails to do that, then one consequence may be that a claim is made by the whistleblower under s 19. By reason of the Act, the Chief Commissioner is required to deal with the claim. If the claim is defended, then when that claim is brought against the State in relation to conduct of the Victoria Police, part of what the Chief Commissioner has to do is to provide documents for the purposes of discovery in accordance with the Court Rules which are in his power, custody or possession.[63] Such documents are likely to include documents created as part of the investigative process under the Act. It seems to me that the Chief Commissioner’s response to a discovery request is for the purpose of the exercise of his functions under the Act.
[63]Rule 29 Supreme Court (General Civil Procedure) Rules 2005 and, in particular, as to the scope of discovery rr29.01.1, 29.05, 29.05.1, 29.05.2 and 29.07(3).
As mentioned above, the State contended that the defendant might have been an individual employee and that there is nothing about being joined as a defendant to a civil proceeding which is indicative of the Chief Commissioner exercising some function under the Act. However, even if the State were not a party to the s 19 litigation, the Chief Commissioner may still be called upon to respond to a subpoena for production of the documents. In doing so, he would be performing a function under the Act.
In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation,[64] Mason and Wilson JJ stated:
Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.[65]
[64](1981) 147 CLR 297.
[65]Ibid at 320.
As counsel for Sgt Smith submitted, this is more than a case of mere inconvenience of outcome. The construction contended for by the State is improbable. Were it correct (and it is not) it would lead to a situation where the whistleblower who was to be protected could not gain access to critical documents which will likely be probative on the very matters that are the subject of his complaint. The effect would be to protect the alleged wrongdoer rather than the whistleblower. Such an interpretation would be contrary to the purpose of the legislation.
The fact that specific provision is made in s 22(1)(d) and (e) of the Act such that proceedings for offences and criminal or disciplinary proceedings are not subject to the prohibition on disclosure of protected information does not mean that it follows necessarily that the prohibition must apply in the case of civil proceedings. It is understandable that extra precaution might be taken by the legislature to ensure that particular reference is made to proceedings of a criminal nature.
Rather than supporting the State’s construction, it seems to me that s 108(2)(b) supports the interpretation that the Whistleblower files are to be available in a s 19 proceeding. As noted above, s 108(2)(b) makes information gathered as a result of a protected disclosure admissible in a proceeding under s 19. Whilst I accept that production of documents and admissibility of evidence are separate matters, it would be incongruous if the same documents that would be admissible under s 108(2)(b), on the State’s construction, would be prohibited from disclosure under s 22. That cannot have been the intention of Parliament and a construction that would lead to this result ought not be preferred.
Conclusion
The exception in s 22(1)(a) of the Act permitting disclosures which are ‘for the purposes of…the exercise of functions under this Act of…the Chief Commissioner of Police’ ought not be interpreted narrowly having regard to the context and legislative purpose. That being so, responding to a discovery request in a proceeding brought by a whistleblower under s 19 of the Act, falls within the exception in s 22(1)(a). Were a narrower construction employed, the effect would be to prevent a whistleblower and the Court from having access to information that is likely to be critical to the determination of the claim. It would serve to protect the alleged wrongdoer and would be contrary to the legislative purpose of the Act.
The order dismissing Sgt Smith’s application for access to the Whistleblower files will be set aside. Sgt Smith will be granted leave to inspect the Whistleblower files subject to a suitable confidentiality regime.
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