Theophanous and Australian Criminal Intelligence Commission (Freedom of information)
[2018] AATA 1106
•1 May 2018
Theophanous and Australian Criminal Intelligence Commission (Freedom of information) [2018] AATA 1106 (1 May 2018)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2015/1878
Re:Andrew Theophanous
APPLICANT
AndAustralian Criminal Intelligence Commission
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment
Date:1 May 2018
Place:Sydney
The decision under review is affirmed.
...................................[sgd]....................................
Deputy President B W Rayment
Catchwords
FREEDOM OF INFORMATION – scope and search – Tribunal satisfied that respondent took all reasonable steps to locate relevant documents – exemption – legal professional privilege – whether “real harm” caused if documents subject to legal professional privilege exemption claim were produced – power to release exempt document does not arise under Freedom of Information Act 1982 -whether waiver of privilege – privilege not waived – documents affecting enforcement of law – personal privacy exemption – business name exemption – certain operation of agencies exemption – decision affirmed
Legislation
Freedom of Information Act 1982 (Cth) ss 3A, 15(2), 37(1), (2), 38, 42(1), (2), 47F, 47G, 55, 57A, 58, 93A
Telecommunications (Interception and Access) Act 1979 (Cth) s 68
Cases
Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 210 CLR 49; (1999) 168 ALR 123
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19; (1995) 129 ALR 41
Taggart and Civil Aviation Safety Authority [2016] AATA 327
Theophanous and Australian Criminal Intelligence Commission [2017] AATA 1146Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54; (1987) 71 ALR 673
Secondary Materials
Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982
REASONS FOR DECISION
Deputy President B W Rayment
1 May 2018
BACKGROUND
The applicant sought under the Freedom of Information Act 1982 (Cth) (the Act) nine categories of documents from the Australian Crime Commission (ACC) now known as the Australian Criminal Intelligence Commission, which is the successor to the National Crime Authority (NCA) and now holds the documents of that body. The context of the request was that Dr Theophanous was charged with a number of offences, on some of which he was convicted. There was an appeal against his convictions and as to one, which Dr Theophanous described as the main charge, his conviction was quashed and a new trial was ordered. His conviction was confirmed on three other charges and he served a term of imprisonment. When the new trial as to the major charge was to come on, an order was made by Judge Morrish in the Victorian County Court permanently staying the proceedings. In the course of a lengthy judgment of Judge Morrish, substantial criticism was made by her Honour of the document disclosure which had been made by the NCA both at the original trial and for the purposes of the new trial.
Dr Theophanous filed a Petition for Mercy (which is pending) seeking either a pardon or a new trial on the other charges of which he was convicted and the documents which were the subject of his request were sought for the purpose of their possible submission in support of the Petition for Mercy.
These proceedings come before the Tribunal following a decision of the Australian Information Commissioner no longer to conduct a review. The reviewable decision is therefore that of the agency, being the ACC, in accordance with s.57A of the Act.
The proceedings before the Information Commissioner had progressed a certain distance before the Commissioner elected no longer to proceed with his review.
A number of discussions took place between the parties to the review both directly, and with the assistance of a Conference Registrar of the Tribunal. As I understand the matter, although both parties conceived that disputes over document production were likely to be resolved, that turned out not to be the case, and even though I was provided with some lengthy submissions made by the applicant to the Conference Registrar I have treated the respondent as having an onus to demonstrate, in the usual way, that its response to the request was correct. An attempt to resolve the various differences which arose before the Conference Registrar did not seem to me to be useful, and looked likely to make the resolution of the issues arising under the Act more complicated than they ought to be. I have therefore proceeded on the basis that the respondent must simply discharge its onus to my satisfaction, and have treated the parties as if no particular issues have already been agreed between them. I declined to deal on the papers with aspects of the apparent differences between the parties for reasons which I explained in an interlocutory decision of 26 July 2017 reported at [2017] AATA 1146. By that decision, I left it to the parties to re-agitate any submission at the hearing if desired.
I held a staged hearing of these proceedings rather than one hearing because the respondent indicated that it was not ready to file its evidence in support of the various exemptions which it decided to claim from the documents which it has produced to the applicant. The first stage of the hearing related to the issues of scope and search. The respondent led evidence on those matters in open session and Dr Theophanous cross-examined on it. Certain evidence was also led as to the search issues in closed session.
I have concluded that in making its searches the respondent acted consistently with the proper construction of the applicant’s request, and that it took all reasonable steps to locate the relevant documents. In case the documents in respect of which exemption was claimed, should reveal that issues of search require to be revisited, I withheld making findings on the issues of scope and search until I had examined the documents in respect of which exemptions were claimed, in case those documents cast further light on the search issues. Having now examined those documents as well, I am in a position to publish a judgment on all issues, including the exemption claims.
SCOPE AND SEARCH
The categories of documents included in the FOI request were as follows:
1The affidavits used by the National Crime Authority (NCA) in seeking warrants for telephone interceptions against [the Applicant] on 3 September 1998, 22 September 1998 and early November 1998;
2The full and unedited case log of Operation Legume for the period of 19 December 1998 to 2 March 1999;
3Any documents relating to the internal discussions within the NCA in preparing and determining the contents of the Admissions Statements of the NCA in relation to the charges against [the Applicant];
4Any documents of discussions between NCA officers, including Ms Twigg, dealing with issues that may arise under Ridgeway principles because of the use of ‘unlawful actions’, as given in the Admissions document;
5Any notes or minutes within the NCA explaining why it was decided to initiate the refugee claimants issue involving CAO Hui Chao and LIU Zhou Hui and when it was decided to do so. Also any notes or discussions between Ms Park, Mr Arnold and other NCA members before Ms Park initiated this exercise to involve the NCA in these matters;
6Any notes from the NCA concerning Mr Cheung’s dealings with Mr Huang, including meetings which Mr Cheung had with him and asking him for money;
7Any notes which demonstrate instructions given to Mr Cheung in relation to the two refugee claimants, especially on the question of Mr Cheung’s requests for money from the two refugees;
8Any notes of the discussions within the NCA or notes from any relevant officers which led to a charge being laid in 1999 and included in the charges at the Committal Hearing in 2000, relating to $6000 paid by Li to [the Applicant] on or about 25 October 1998 for assistance to be given by [the Applicant] in relation to resolving Li’s immigration problem; and
9Notes or transcripts of the NCA interviews with Mr Fensling and Mr McLaughlan, which were conducted prior to their witness statements.
The terms of the request are not to be narrowly construed. They must be construed in their context, and in a broad common-sense and practical way, which gives effect to the fact that the person requesting the documents will not normally be able to describe the documents sought with great exactitude. The terms of the request will nevertheless govern the scope of the request, because the Act requires the request to be in writing: see s.15(2)(a); and also that it must provide “such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it” (s.15(2)(b)).
There were disputes between the parties in relation to only some of those categories. The first category, for example, admitted of no dispute.
The disputes related for the most part to questions of search but in relation to category 4, there was a dispute relating to a question of the scope of the request.
Category 4 of the Applicant’s FOI request of 29 October 2011 was headed: “NOTES ON THE NCA PREPARING IN ADVANCE FOR A RIDGEWAY JUDGMENT”.
Category 4 refers to “Ridgeway principles”. That refers to Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19; (1995) 129 ALR 41. The full bench of the High Court quashed a conviction of the appellant in that case and ordered that there be a permanent stay of further proceedings in relation to the two alleged offences under s.233B(1) of the Customs Act 1901 (Cth). That was because the importers of the product in respect of which charges were brought against the appellant were police officers, who were not themselves charged with that offence, inferentially because those higher up approved of their illegal actions. But for the importation by or on behalf of the police, the accused would not have been guilty of the particular offences with which he was charged.
A number of principles were discussed by the members of the Court. The reference in category 4 of the request to “Ridgeway principles” was not interpreted by those who did searches as being limited to a discussion of those legal principles, and that interpretation accorded with the intention revealed by the terms of the request in my opinion. The contrary was not submitted to me by either party.
The respondent, in its written submissions dated 14 August 2017, contended for a somewhat narrow construction of category 4. It submitted that it meant that the agency should search only for documents recording conversations in preparation for the voir dire proceedings themselves. On that view, nothing which happened before charges were laid against Dr Theophanous would be relevant. Such a view would exclude, for example, any earlier conversation in which the solicitor for the NCA had warned that particular proposed NCA conduct could lead to problems for the prosecution of Dr Theophanous. The respondent also submitted that if the contrary view of the applicant were correct, the respondent would be searching for documents relating to the conduct of the NCA which the applicant alleges “were contrary to the principles in Ridgeway”. The respondent pointed out that such a request would not be practicably possible to comply with.
I read the category as extending to notes of discussions preparatory to the expected or anticipated proceedings to exclude evidence or to seek a permanent stay of the proceedings on the main ground that the NCA had itself been involved in illegal conduct, or that some of its officers had been so involved. Many of those conversations or discussions would have been expected to have taken place in connection with the voir dire proceedings themselves, although some of them may have taken place earlier, including at the time that any illegal conduct was engaged in, or contemplated by the NCA. The request seems to relate to the particular illegal conduct to which the NCA admitted in the Admissions statement, but may possibly not be so limited. That reading causes me to reject the submission of the respondent recorded at paragraph 15. Similarly, I see nothing in the request to justify a suggestion that the allegations of the applicant, rather than objective facts, would govern the interpretation of category 4.
In his written submissions of 21 August 2107, Dr Theophanous disputed the submissions of the respondent which I have recounted in paragraph 15 without making clear what alternative submission he made, apart from his specific denial that his allegations of breach of the Ridgeway principles governed the proper interpretation of the request.
Searches were originally made by or at the direction of Mr Brian Dargan, the FOI delegate of the ACC. His decision of 25 January 2012 is the main reviewable decision with which I am concerned, although it has since been revised on several occasions. The searches conducted by Mr Dargan or at his direction in relation to category 4 appear to me to have accorded with the reading I have described at paragraph 16. Mr Dargan said, when discussing exemptions claimed in his decision relating to category 4 in the request:
I am of the opinion that documents you have requested are conditionally exempt as part of a deliberative process because they involve correspondence created for the purpose of recommending how to proceed in relation to the investigation of matters relating to relevant criminal activities.
Mr Dargan and his assistant Mr McInnes are no longer employed by the respondent and were not called before me. Instead the present FOI coordinator of the respondent, Ms Shelby Simadas, did or directed the searches under each category again in the year 2016. In the result, many hundreds of hours have been spent searching for documents by the respondent and its predecessors. Ms Simadas, whose evidence is before me, elected to start the searches again from the beginning and also had regard to information supplied by Dr Theophanous in January 2016, which included some of the documents which had been made available to him in the course of the various proceedings in the County Court of Victoria. Dr Theophanous’ submission enabled Ms Simadas to conduct her searches more efficiently and exhaustively. She located relevant documents which had not previously been located.
Ms Simadas, who gave evidence before me in public and private session was examined and cross-examined in public session on the searches she conducted for the purposes of category 4. Her evidence satisfies me that, like Mr Dargan, she searched on the understanding of category 4 that I have set out at paragraph 16. In answer to some questions which I asked, she said that she searched for any reference to “Ridgeway”, but also for any discussions around preparing to make an argument in relation to unlawful actions that had been taken in relation to Operation Legume (the operation relating to Dr Theophanous). She said she did not search only for materials that came into existence after the charges were laid, and did not limit her searches by time. Amongst other things, she searched the complete diaries of Ms Vanessa Twigg herself and those of the officers who had been involved in the work done prior to charges being laid and whose diaries had been retained.
There were proceedings before the original trial judge, Judge Crossley, heard by him before the trial itself began. He rejected an application by Dr Theophanous apparently to seek a permanent stay of the proceedings, which had been put on the basis of an alleged entrapment of Dr Theophanous by the NCA, or involving illegal conduct said to have been engaged in by the NCA. Ms Twigg was a solicitor employed by the NCA, who had been involved in the trial proceedings and in the giving of information and instructions to the Commonwealth Director of Public Prosecutions (CDPP), and to some extent in the events leading up to the charges brought against Dr Theophanous.
Prior to these proceedings coming on for hearing in the Tribunal there was much discussion between the applicant and the respondent, and communications with the Office of the Australian Information Commissioner (Commissioner), prior to its decision no longer to investigate the response to the FOI request of Dr Theophanous. The Commissioner was informed in 2012 that over 240 hours of staff time had been spent in processing the FOI request and dealing with the application to the Commissioner for review.
The parties had certain discussions about their disputes. As a result of those discussions the Tribunal was asked to check work which had been done by Ms Simadas. Only to a limited extent did I agree to undertake that task. The task was intended by the applicant to unearth documents that justified his suspicion that the search had not been undertaken properly and that documents within one category or another must have been relevant to his request. By the respondent the task was intended to reassure the applicant that a proper search had been undertaken.
In closed session I also looked at the unredacted form of a number of documents on a list described as an “agreed list”, which it turned out was not in fact agreed by the applicant as the only documents requiring further inspection, but which contained some categories of documents that the applicant believed must contain documents within the scope of his FOI request. It represented a set of documents that Dr Theophanous relied upon to show that a proper search had not been conducted. I then did the task which I had earlier been asked to do on the papers, and I satisfied myself with the benefit of evidence given by Ms Simadas in closed session, that the decisions taken by her that the documents on the agreed list were properly found by her not to be captured by the FOI request. In some cases Dr Theophanous was provided prior to the trial with redacted portions of the documents, and he put the documents forward on the basis that his FOI request must have captured all or some of that which had been redacted. In each case what was blacked out on the copies possessed by Dr Theophanous falls outside the scope of his FOI request.
I embarked to a very limited extent on the other task which I had been asked to perform of looking at documents, such as diaries, which had previously been considered by Ms Simadas when conducting her search. I did so not for the purpose of undertaking the task which I had been asked to perform, but to assess the time that would be involved in performance by the Tribunal of the task it had been asked to perform. At an earlier stage I warned the parties that I had not decided that it was a task I would agree to perform.
The documents which I examined did not contain documents falling within the scope of the FOI request. The reasons why I did not agree to go further into the documents which were produced to the Tribunal were twofold. In the first place, I did not think that the Tribunal was in a position to devote the substantial amount of time to this matter that was required to do the task. Ms Simadas had spent considerable time reading documents which were provided to the Tribunal, amounting in all to several weeks. Documents which I did not examine except to a limited extent, for example, included the handwritten diary of Ms Twigg, only some pages of which were produced by the respondent as relevant to the FOI request. Ms Simadas, who had become familiar with the other documents produced to the applicant and had searched for others, spent a number of days studying that diary alone.
In the second place, the first stage of this case was listed for two days, took almost three days, and if alarm bells were ringing about the searches which had been conducted, the solution would not be for the Tribunal to make the search, but for the reviewable decisions to be set aside and the respondent to be required to make a further search. The Tribunal ought not be required to become a searcher as such during the course of a review.
Ms Simadas swore an affidavit and gave oral evidence. From that material it is apparent that after February 2016 when she became the FOI Coordinator, she examined the comprehensive submission made by Dr Theophanous in January of that year, which made a number of suggestions as to errors and omissions made by the respondent in its searches to that date. Ms Simadas, when she gave evidence before me last year, was in the final year of a combined legal and international relations course at the University of Canberra. She had therefore been at an advanced stage of her courses when she did the work of searching in 2016. As I have said, the persons responsible for the earlier searches were no longer employed by the respondent, and Ms Simadas became the person responsible for the applicant’s FOI request. She took the following actions:
(a)She initiated further searches for the documents referred to in the submissions of Dr Theophanous and to check that no documents other than those which had been identified earlier as being within the scope of the applicant’s request were held by the respondent.
(b)She familiarised herself with the transcript of the applicant’s trial and the Ridgeway decision.
(c)She personally searched the TRIM, ACID/ALEIN and PROMIS databases (being all relevant databases maintained by the respondent, designed to include all electronic records retained by the respondent) against the names suggested by the applicant in his submission of January 2016 and also names relevant to Operation Legume, which related to him, and other documents relevant to the FOI request.
(d)She tasked officers in the operational support area with locating any further electronic or physical files not detected through her electronic searches.
(e)She went to the respondent’s Melbourne offices and spent three days there inspecting the contents of some 75 archive boxes looking for any material relevant to the applicant’s FOI request. Two boxes contained material of the kind referred to by the applicant.
She estimated that in the search phase she spent in excess of 50 hours on the task of identifying documents that might fall within the scope of the FOI request, both conducting electronic searches and physical searches of documents held in some 75 boxes at the respondent’s Melbourne offices. She then spent some weeks going through diaries and daybooks and other records to identify any documents which fell within the FOI request. She directed searches by others as was considered appropriate.
Ms Simadas had what she described as a running consultation with her superiors about the work she was doing and with respect to a few documents which she thought were near the borderline, she consulted with lawyers in the employ of the respondent who agreed with her assessment in each case. The number of those documents was less than ten.
She says that based on her work of searching for and examining the documents produced, she does not believe that the respondent holds any other documents relevant to the FOI request. As previously mentioned, she undertook searches as if she were the original coordinator in charge of answering the whole of the applicant’s FOI request. I accept her evidence as reliable. Her searches appear to have been comprehensive and diligently conceived and executed.
Dr Theophanous’ January submission and his later submissions made to me suggested that he should be provided with the entirety of diaries and the like, with exemptions as required. This suggestion was not in accordance with his FOI request, and would have involved ignoring the limitations involved in the request and a broadening of its scope. That course is not one justified by the statutory regime.
No evidence was elicited from Ms Simadas suggesting that she had taken too narrow a view of the scope of the FOI request. Its scope does not appear to me to be doubtful, and the interpretation put upon the FOI request by the respondent appears to me to have been correct. The respondent has also satisfied me that it took all reasonable steps to locate documents in its possession which answered the FOI request. My own examination of materials was limited as I have indicated above. That examination did not provide any reason to be concerned about the quality of the endeavours undertaken by Ms Simadas, but it was so limited, by reason of the time available, that I do not rely upon it in making the finding which I have that the respondent took all reasonable steps to locate the relevant documents.
That finding remained subject to revision in the light of any information which might have emerged from my consideration of the exemptions claimed by the respondent. For example, if the material exempted suggested that there were defects in the searches conducted because other documents which fell within the ambit of the FOI request, yet had not been disclosed to the applicant then there may have been reason to make a different finding about the searches conducted.
Therefore I notified the parties that it was appropriate for the final stage of the hearing to take place and I gave directions for the filing of evidence for that purpose.
EXEMPTIONS
I concluded my hearing on the exemptions claimed on 9 March 2018, a further three day hearing about the documents for which exemption was claimed, whether in whole or in part. I examined each of the documents in their unredacted form.
The contents of those documents did not suggest to me any reason to modify the findings made above as to search, and I now confirm those findings.
A number of documents were withheld in whole or in part on the ground of legal professional privilege.
The “real harm” question
A question of law arose during submissions about this matter, as to whether I have jurisdiction to review the view taken by the respondent that real harm would be caused if documents the subject of a legal professional privilege claim were produced. The respondent in accordance with the Guidelines published by the Information Commissioner considered whether real harm would be caused if the documents were released and concluded that such harm would be caused if the documents were released. Dr Theophanous asked me to review that decision. That raises no discretionary question but rather a legal one.
A similar question arose before the Federal Court at first instance and on appeal in Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53 and [2004] FCAFC 237. The legislation was then somewhat different, in that the Office of the Australian Information Commissioner did not then exist and s.55 of the Act was in different terms. Today the Act requires agencies to have regard to the Guidelines published by the Information Commissioner. Section 58 of the Act was in the same terms as the current provision, which relevantly provides as follows:
58 Powers of Tribunal
1Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
2Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
6The powers of the Tribunal under this section extend to matters relating to charges payable under this Act in relation to a request.
In Bennett’s case, attention had been given by the agency to a Cabinet decision of 1986 and to a Memorandum from the permanent head of the Attorney-General’s department stating that privilege should not be claimed unless real harm would flow from the release of the document. Both at first instance and on appeal it was held that the AAT was not able to review a decision that real harm would ensue if the document were released. Neither the Cabinet decision nor the Memorandum was made under the Act.
In the Full Court Gyles J with whom Tamberlin J agreed said:
[71] It is argued that s 58(1) creates two separate heads of power – namely the power:
(i) to review any decision that is made by an agency in respect of the request; and
(ii) to decide any matter in relation to that request which, under the Act, could have been decided by the agency.
It is submitted that the first power is not confined to a decision ‘under the Act’ but rather relates to any decision in respect of the request. It is submitted that an intermediate decision along the way to the ultimate decision is a threshold question as to whether to claim exemption for a document. It is thus submitted that the decision to claim the exemption based upon legal professional privilege can be reviewed as such without reviewing the validity of the claim itself. There were further submissions as to how that issue might be approached.
[72] It is not at all clear to me that this point was raised before the Tribunal. In any event, in my opinion, it is unsound. The decision of the primary judge on the point discloses no error. Section 58(1) is typical of provisions for review of an administrative decision by a second body, and makes clear that the reviewing body stands in the shoes of the first for the purpose of carrying out the functions committed to it on review. It does not expand those functions. Furthermore, the construction that is advanced is inconsistent with the policy reflected in s 58(2) of the Act. However s 58(1) is construed, proceedings in the Tribunal authorised by it would be proceedings under the Act and caught by s 58(2). Furthermore, it would be unusual for statute to provide for review of an intermediate decision in such an indirect way (cf Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321).
Thus the Full Court said two things: (i) that under s.58(1) the Tribunal may not review any decision not taken under the Act; and (ii) that in any event the Tribunal could not decide to release an exempt document.
For both those reasons, I have decided that I cannot review the decision of the agency not to produce the documents in respect of which legal professional privilege in the light of the Guidelines (to which it was the agency’s duty to have regard under s. 93A of the FOI Act) which also nominated a “real harm” test. The Guidelines were a matter to which the agency had to have regard, but its decision to release a document was not taken under the Act. It essentially involved the waiver of privilege, and the agency did not have that power under the Act, although it may be true to say that s.42(2) recognises that the agency has such a power.
Sections 42(1) and (2) of the Act provide as follows:
(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.
(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
The expression “under the Act” means “pursuant to the Act” or “by virtue of the Act”. All the Act mandates is that in deciding whether, amongst other things, to waive or not to waive privilege, the agency must have regard to what appears in the Guidelines. Section 42(2) proceeds on the basis that it is within the competency of an agency to waive privilege, but does not confer that power, which is possessed independently of the Act. Section 3A of the Act specifically states that the power to release an exempt document does not arise under the Act. It provides as follows:
3A Objects--information or documents otherwise accessible
Scope
(1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act.
Publication and access powers not limited
(2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:
(a) in the case of the power to publish the information or document--despite any restriction on the publication of the information or document under this Act; and
(b) in the case of the power to give access to the information or document--whether or not access to the information or document has been requested under section 15.
In any event, the release of the document at the instance of the Tribunal, in substitution for the agency’s decision not to waive privilege would amount to a decision by the Tribunal that privilege should be waived, and that decision would not be open to the Tribunal because of s.58(2) of the Act.
I therefore did not give directions for the agency to put on evidence indicating the grounds on which it had decided that real harm would flow from the release of the documents, and I decline to review the decision taken by the agency not to release the documents. That decision is in writing within the ‘T-Documents’ tendered by the respondent. It is part of the reviewable decision. Mr Dargan, the decision maker who is no longer employed by the respondent, said:
I have taken into account the advisory notice used by the Secretary of the Attorney-General’s Department dated 2 March 1986, referred to in paragraph 5.130 of the FOI Guidelines. Agencies such as the ACC are not to assert legal professional privilege unless real harm would result from disclosure of the information. I am satisfied that harm could flow from the release of information in this document and that a claim for privilege should be maintained over it. The relevant communications were conducted in confidence in the course of preparations of the Crown’s legal submissions.
Legal Professional Privilege
That leaves the question of the privilege claim itself. The test for common law legal professional privilege does not exclude government lawyers advising or acting in litigation for government. In Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54; (1987) 71 ALR 673 it was decided by Mason, Wilson and Deane JJ that legal professional privilege attaches to confidential professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connection with anticipated or pending litigation. Later the High Court adopted the ‘dominant purpose’ test in place of the ‘sole purpose’ test: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 210 CLR 49; (1999) 168 ALR 123. In Waterford, Mason and Wilson JJ said of government lawyers; “Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment” (163 CLR at 62). In the course of his judgment, Deane J referred to the importance of “full independence” of the independent lawyer.
The advice in Waterford was that of the Australian Government Solicitor and of officers of the Attorney-General’s Department. Brennan J, who wrote reasons rather more conservative than those of Mason, Wilson and Deane JJ on the privilege issue, thought that the necessary independence appeared from that fact.
The High Court did not itself nominate the circumstances in which, in the case of other government departments, evidence of independence might be necessary.
The respondent submits that the requisite matters are established, without more, because the CDPP represented the Crown in the proceedings against Dr Theophanous and Ms Twigg acted in her capacity as a professional legal adviser to the NCA involved in the giving of instructions to the CDPP. That is, she gave no relevant advice herself but rather assisted the ACC in its dealings with the CDPP. The relevant relationship was between the CDPP and the ACC, not between the ACC and Ms Twigg.
Deputy President Forgie received evidence on the independence question in Taggart and Civil Aviation Safety Authority [2016] AATA 327. The evidence she received is set out at paragraphs [48]-[56] of that decision. No such evidence was called before me.
It is clear that the CDPP’s office has the necessary independence, and, just as in Waterford itself, no evidence is necessary to be called of such independence.
Waterford itself shows that if the relevant adviser were the Australian Government Solicitor, it would sufficiently appear that the requisite independence was present. The same would be true if the claim relates to litigation privilege, and communications with the CDPP were involved.
The relevant privilege is litigation privilege in the case of all documents for which privilege was claimed, and the role played by Ms Twigg in those communications was not as an advisor but mainly one of liaison. Ms Twigg communicated with the CDPP counsel (and amongst other things, furnished them with instructions she had obtained from NCA officers) or prepared drafts for their consideration, and reported within the NCA on those communications or drafts and on conferences she had had with CDPP counsel. That was the dominant purpose of each document.
I am satisfied that litigation privilege is properly claimed for the relevant documents. Ms Mayo’s affidavit sufficiently shows that confidentiality has been maintained in the exempt documents and that privilege has not been waived.
Other exemptions
Another category of exemptions claimed related to s.37(1)(b) of the Act. By that provision a document is an exempt document if its disclosure under the Act would, or could reasonably be expected to disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law. I examined in closed session the documents which are suggested to be exempt on that basis and received evidence from Mr Jason Halls, who is the State Manager (Victoria) of the respondent. That evidence satisfies me that the exemption is properly claimed.
At paragraphs [34]-[38] of its submissions dated 3 November 2017 the respondent submitted as follows:
34. Section 38(1) of the FOI Act relevantly provides that a document is an exempt document if its disclosure, or the disclosure of information contained in the document, is prohibited under a provision of an enactment specified in Schedule 3.
35. Schedule 3 of the FOI Act relevantly lists s 63 of the Telecommunications (Interception and Access) Act 1979 (Cth). This section provides:
(1)Subject to this Part and section 299, a person shall not, after the commencement of this Part:
(a) communicate to another person, make use of, or make a record of; or
(b) give in evidence in a proceeding;
lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1).
(2)Subject to this Part and section 299, a person must not, after the commencement of this subsection:
(a) communicate interception warrant information to another person; or
(b) make use of interception warrant information; or
(c) make a record of interception warrant information; or
(d) give interception warrant information in evidence in a proceeding.
36. ‘Lawfully intercepted information’ is defined in s 6E of the Telecommunications (Interception and Access) Act 1979 as:
(1)Subject to subsection (2), a reference in this Act to lawfully intercepted information is a reference to information obtained (whether before or after the commencement of this section) by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system.
(2)A reference in this Act to lawfully intercepted information that was originally obtained by an agency, or by an eligible authority of a State, is a reference to:
(a)information obtained, whether before or after the commencement of this section, by intercepting a communication under a warrant issued to the agency or authority; or
(b)information communicated to the agency or authority in accordance with section 65A or 63E.
37. ‘Interception warrant information’ is defined in s 6EA of the Telecommunications (Interception and Access) Act 1979 as:
(a)information about any of the following:
(i)an application for an interception warrant;
(ii)the issue of an interception warrant;
(iii)the existence or non‑existence of an interception warrant;
(iv)the expiry of an interception warrant; or
(b)any other information that is likely to enable the identification of:
(i)the telecommunications service to which an interception warrant relates; or
(ii) a person specified in an interception warrant as a person using or likely to use the telecommunications service to which the warrant relates.
38. Documents 1.1, 1.2, 1.3, 2.0, 4.1 and 5.2 contain ‘lawfully intercepted information’ or ‘interception warrant information’. This is evident from the face of these documents. Disclosure of this information is prohibited under s 63 of the Telecommunications (Interception and Access) Act 1979, and is therefore exempt under s 38 of the FOI Act.
Each paragraph of those submissions is correct in my opinion. I adopt them as part of these reasons. Exemptions are correctly claimed pursuant to s.38 of the Act and s.63 of the Telecommunications (Interception and Access) Act 1979 (Cth) for the documents in question.
The next category of exemptions claimed which I will deal with arises under s.37(2)(b) of the Act which provides as follows:
(2)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(b)disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; …
Ms Lynn Moore, who is employed in the Department of Immigration and Border Protection as Assistant Secretary, Border Intelligence Fusion Centre, and who has responsibility for the collection and coordination of tactical and targeting intelligence for that Department, has affirmed an affidavit read before me concerning this exemption. It relates to two Passenger Automatic Selection System (PASS) Alerts issued by the NCA. The covert checks that immigration officers may undertake in response to the terms of the Alerts may be used by persons to modify behaviour so as to avoid detection of unlawful activities. Prejudice to the effectiveness of methods and procedures would be likely to ensue from disclosure of the PASS alerts, and I am satisfied that the exemption is properly claimed.
Some personal information such as names and passport numbers is the subject of a claim for conditional exemption under s.47F of the Act in relation to documents 2.0 and 4.2. Also the names of several businesses which are still trading have been redacted and conditional exemption claimed under s.47G of the Act.
These matters were the subject of evidence given by Mr Halls in his non-confidential affidavit. I did not understand Dr Theophanous to take issue with the exemptions claimed under s.47F and 47G.
Where such names were previously disclosed to Dr Theophanous in the course of the criminal proceedings, they have not been redacted. Similarly, if businesses have ceased to trade, those names have not been redacted.
However, where such persons or trading companies have not been the subject of NCA investigations, there appears to be no discernible public interest served by the disclosure of their names, which could be injurious to their reputations. The disclosure of their names would be unreasonable and contrary to the public interest.
Similarly, the respondent has redacted the names of three NCA officers who had a peripheral involvement in Operation Legume and whose names have not been publicly disclosed. Only one of those three has been able to be located and he objects to the disclosure of his name. No discernible public interest would be served by the disclosure of their names and on balance it would be contrary to the public interest to give access to their names.
Dr Theophanous not only cross-examined witnesses in these proceedings, but made oral submissions and very extensive written submissions, extending to some hundreds of pages. To the extent to which those submissions canvassed issues arising on this review, I have made findings of fact and law which I trust will sufficiently explain my acceptance or rejection of his submissions. The proceedings have been transcribed and the written submissions of Dr Theophanous will remain with the papers in case they may be required for the purposes of any appeal to the Federal Court. It is not practicable or convenient to summarise the voluminous submissions which Dr Theophanous made in the course of the hearing conducted for the purposes of this review.
A number of documents have from time to time been released to Dr Theophanous in the course of these proceedings and Dr Theophanous has conceded that exemptions are properly claimed in respect of a number of other documents. Those documents and exemptions ceased to be in issue.
DECISION
In the result the reviewable decisions will be affirmed.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment
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Associate
Dated: 1 May 2018
Dates of hearing: 28-30 August 2017, 1-2 & 9 March 2018 Applicant: In person Solicitors for the Respondent: Australian Government Solicitor
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