FEDERAL COURT OF AUSTRALIA CC Pty Ltd v Australian Crime Commission [2006] FCA 1230 PUBLIC INTEREST IMMUNITY – Australian Crime Commission – discovery and production of documents – whether documents subject to public interest immunity – whether documents relevant Sankey v Whitlam (1978) 142 CLR 1 referred to Alister v The Queen (1983) 154 CLR 404 referred to CC PTY LTD & ORS v AUSTRALIAN CRIME COMMISSION AND THE BOARD OF THE AUSTRALIAN CRIME COMMISSION SAD 315 OF 2005 MANSFIELD J 12 SEPTEMBER 2006 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 315 OF 2005 BETWEEN: CC PTY LTD & ORS Applicants AND: AUSTRALIAN CRIME COMMISSION First Respondent THE BOARD OF THE AUSTRALIAN CRIME COMMISSION Second Respondent JUDGE: MANSFIELD J DATE OF ORDER: 12 SEPTEMBER 2006 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Vary the order for discovery made on 30 May 2006 by substituting orders that the respondents file and serve a list of documents which discovers (to the extent to which the respondents have not already discovered to the applicants): (a) The Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003; (b) The Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) Amendment No.1 of 2004; the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) Amendment No.1 of 2005; and the Australian Crime Commission – Operation and Investigations (Participants) Determination 2003; (c) The minutes of the second respondent which, but only to the extent to which, they record: i. the fact of the making and the time of the making of the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003, the Australian Crime Commission Special Investigation Authorisation and Determination (Firearms Trafficking) 2003, the Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) 2003 and the Australian Crime Commission Special Investigation Authorisation and Determination (South East Asian Organised Crime) 2003; and ii. the time taken by the second respondent in the making of the said determinations. 1. The application of the respondents that the minutes of the second respondent of 13 May 2003 to be discovered, and which do not relate to the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003, not be produced for inspection on the ground of public interest immunity, is refused. 1. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), direct that the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003, the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) Amendment No.1 of 2004, the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) Amendment No.1 of 2005 and the Australian Crime Commission – Operation and Investigations (Participants) Determination 2003 not be published to any person other than to counsel and solicitors for the applicants. 1. Liberty to any person with a proper interest to apply to vary or discharge Order 3 hereof. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 315 OF 2005 BETWEEN: CC PTY LTD & ORS Applicants AND: AUSTRALIAN CRIME COMMISSION First Respondent THE BOARD OF THE AUSTRALIAN CRIME COMMISSION Second Respondent JUDGE: MANSFIELD J DATE: 12 SEPTEMBER 2006 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 On 7 November 2005 seven warrants were issued under s 22 of the Australian Crime Commission Act 2002 (the ACC Act) authorising the entry into certain premises with which the applicants were associated, and the search for and seizure of certain items at those premises. The warrants were executed on 18 November 2005. In each case the things to be seized, as described in the warrants, were connected with a 'special investigation' by the first respondent. 2 The special investigation was established by: (1) Originating Instrument entitled Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003 (the 2003 Determination); and (2) Amending Instrument entitled Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) Amendment No.1 of 2004 (the 2004 Amendment); and (3) Further Amending Instrument entitled Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) Amendment No.1 of 2005 (the 2005 Amendment); and (4) Australian Crime Commission – Operation and Investigations (Participants) Determination 2003 (the 2003 Amendment). They are collectively called 'the Determinations'. 3 The applicants challenge the validity of the warrants, principally because they challenge the validity of the Determinations in respect of which the warrants were issued. Resolution of that challenge has not progressed as quickly as desirable. It is not necessary to go into the reasons for that. 4 On 30 May 2006 I ordered that the respondents file and serve a list of documents which discovered: a) The minutes of the Board of the Australian Crime Commission which, but only to the extent to which, they record: i. the determinations of the Board made on 13 May 2003 including the 2003 Determination; ii. any amendment to such determinations; iii. any earlier consideration of the 2003 Determination; including, to the extent to which the minutes record the times during which those determinations or proposed determinations were considered and made, that information. b) The determinations made on 13 May 2003 and any amendments to them. 5 There appears to have been some ambiguity in that order. I intended it to require disclosure of the minutes of the second respondent only to the extent to which they record the fact of the making and the time of the Determinations, and the time taken to consider the making of the Determinations. To avoid any misunderstanding, I will vary that order to make that clear. 6 On 14 June 2006 I also directed the exchange of points of claim and points of defence to better define the issues between the parties. 7 The respondents have now applied to vary the discovery order made on 30 May 2006 firstly to confine it explicitly in the way which (as I have indicated) I intended it to be read, and secondly to restrict its operation to the Determinations and not to any other determinations. 8 The evidence indicates that there were three other determinations made by Instrument on 13 May 2003, namely: · Australian Crime Commission Special Investigation Authorisation and Determination (Firearms Trafficking) 2003; · Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) 2003; · Australian Crime Commission Special Investigation Authorisation and Determination (South East Asian Organised Crime) 2003. They are collectively called 'the other Determinations'. 9 The respondents then claim that, to the extent to which the discovery order continues, an order should be made that documents to be discovered are protected from inspection on the ground of public interest immunity. 10 The attack upon the warrants, as I have indicated, is in essence through an attack upon the validity of the Determinations. I hope I do not do injustice to the relevant parts of the Points of Claim by identifying the relevant issues for present purposes as being: (1) Whether the second respondent properly considered the making of the 2003 Determination and the other Determinations because there is some evidence that they were all made within the space of a few minutes on 15 May 2003, and that also in reality they were made on 13 May 2003. The copy of the 2003 Determination served with the warrants included the note: 'Note that the time and date of making of the instrument indicated above as 15 May 2003 is incorrect and evidence is available to show that the instrument was made by ACC Board resolution on 13 May 2003. The Chair signed this version of the instrument on 15 May 2003. The ACC has received advice that such a misdescription does not affect the validity of the instrument.' (2) Whether the 2003 Determination, and consequently its amendments, are invalid because the 2003 Determination was not made on 15 May 2003 as appears on its face, and because there is evidence that the consideration of the second respondent on the occasion of the making of those determinations involved their authorisation pursuant to s 7C(1)(c), but not a determination that they should be special investigations, pursuant to s 7C(3) of the ACC Act. discovery 11 As I have indicated I propose to vary the discovery order made on 30 May 2006 to make it clear precisely what I intended to order to be discovered. 12 The remaining issue concerns discovery of the other Determinations and the minutes of the second respondent to the extent to which they record the fact of the making and the time of the making of the other Determinations and the time taken in their consideration. 13 I must decide that issue by reference to the Points of Claim and the Points of Defence. As I have indicated, there is an issue as to whether the 2003 Determination was in fact relevantly considered on 13 May 2003 or at all. There is presently no application to strike out that part of the claim summarily, either because it does not disclose a cause of action, or because there is no real prospect of the claim succeeding (particularly in the light of the affidavit of the Chair of the second respondent Mr Keelty), or because it is an abuse of process. I am not to be taken as indicating whether any such application may be appropriate. The point is simply that issue on the pleadings is a live one. 14 The respondents contend nevertheless that the additional documents sought are not relevant so that they should not be ordered to be discovered. 15 In respect of the contents of the other Determinations, I accept that submission. I do not see how the contents of the other Determinations can advance the contentions of the applicants. 16 However, in my view, the certain parts of the minutes of the second respondent concerning the other Determinations do go to a matter of fact which is presently in issue, namely the extent to which the 2003 Determination and the other Determinations were properly considered by the second respondent on 13 or 15 May 2003. 17 I therefore propose to direct that the respondents discover the minutes of the second respondent which, but only to the extent to which, they record the fact of the making and the time of the making of the other Determinations, and the time taken by the second respondent to consider the making of the other Determinations. The existence of the other Determinations is acknowledged by Mr Keelty in explicit terms in his affidavit, so the applicants have the foundation for the proof of them. If that were in doubt, I would order the discovery of the other Determinations. public interest immunity 18 There was no real dispute between the parties as to the applicable principles. 19 The claim for public interest immunity protects from disclosure documents of which the disclosure would be prejudicial or injurious to the public interest: Sankey v Whitlam (1978) 142 CLR 1 at 48-9. Consequently, it is necessary to balance two competing aspects of the public interest, namely the effect upon the administration of justice if the evidence is withheld on the one hand, and the effect upon the wider public interest if the documents are made available for inspection: see generally Alister v The Queen (1983) 154 CLR 404 at 412. It is inappropriate, in my view, simply to take the view that because a document relates to an investigation of criminal conduct, its disclosure would necessarily have a significant adverse consequence to that investigation and so should not be disclosed. It is necessary to consider the particular circumstances of the proceedings and of the documents which are sought to be investigated. It is also necessary to bear in mind, in a matter such as the present, that there is no real public interest in not exposing any illegal conduct on the part of the authorities. That is not to suggest that such conduct is or may be established in this matter, but that is the allegation. I have also borne in mind the intention of the Parliament as evidenced in the ACC Act, in particular ss 29 and 30 and 51(3). 20 I have considered the evidence in support of the claim for public interest immunity. The fact of the other Determinations is not in issue. It has been confirmed by Mr Keelty. Consequently, they were resolved upon by the second respondent. I do not see how disclosure of the minutes of the second respondent limited to recording the fact and time of the making of the other Determinations and the time taken to consider the making of the other Determinations could be adverse to the public interest in those circumstances. In reality the only additional information which would thereby be disclosed are the matters of time. On the other hand, the matter of time is very significant to the present allegations of the applicants, but without it they are assertions of illegality in the Points of Claim and could not be made out. 21 I therefore do not propose to make the orders sought in respect of those minutes. section 50 federal court of australia act 22 I have ordered that significant parts of the affidavit of James Duffy in support of the claim for public interest immunity should not be published, except in a limited respect and to limited people in respect of these proceedings. The respondents also seek an order that the Determinations and, to the extent to which they are to be produced the minutes of the second respondent, should be similarly restricted in their publication. 23 Given the provisions of the ACC Act to which I have referred, I propose to order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) that the publication of the Determinations be restricted to counsel and solicitors for the parties. The applicants are each bound by the ACC Act not to publish those documents. For the same reasons as I have indicated that public interest immunity does not attach to those parts of the minutes of the second respondent which I have directed to be discovered, I do not see any foundation for those minutes being regarded as confidential. I will give liberty to any person properly interested to apply to vary or discharge those orders under s 50. 24 I will make orders to give effect to those reasons. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 12 September 2006 Counsel for the Applicants: M Abbott QC with CD Bleby Solicitor for the Applicants: Patsouris & Associates Counsel for the Respondents: S Maharaj QC with S Doyle Solicitor for the Respondents: Australian Crime Commission Date of Hearing: 11 September 2006 Date of Judgment: 12 September 2006