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F v Crime and Corruption Commission[2021] QCA 244

F v Crime and Corruption Commission[2021] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

F v Crime and Corruption Commission [2021] QCA 244

PARTIES:

F

(appellant)

v

CRIME AND CORRUPTION COMMISSION

(respondent)

FILE NO/S:

Appeal No XXXX of 2020

SC No XXXX of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2020] QSC 245 (Jackson J)

DELIVERED ON:

12 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2021

JUDGES:

Morrison and Mullins JJA and Boddice J

ORDERS:

  1. Leave to adduce the affidavit of Ms Cheeseman affirmed on 8 October 2020 on the appeal refused.
  2. Appeal dismissed.
  3. Any further submissions on costs must be made in writing and not exceed two A4 pages within seven days of the date on which these reasons for judgment are published.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES – PUBLIC INTEREST PRIVILEGE – where the respondent is investigating disclosures of information made by a police officer to the appellant journalist as part of a corruption investigation under the Crime and Corruption Act 2001 (Qld) (the Act) – where the appellant was summoned by the respondent to attend a closed hearing in relation to the corruption investigation – where the appellant refused to answer questions that would identify the source of this information on the basis of public interest immunity in reliance on s 192(2A) of the Act – whether the reference to “public interest immunity” in s 192(2A)(b) of the Act is a reference to common law public interest immunity – whether the primary judge erred in holding that the public interest immunity privilege did not extend to a journalist’s obligation not to disclose confidential sources of information

CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND – where the respondent is investigating disclosures of information made by a police officer to the appellant journalist as part of a corruption investigation under the Crime and Corruption Act 2001 (Qld) – whether there was limited utility in the respondent questioning the appellant as a police officer had been identified for prosecution as an alleged source – whether it was unfair for the respondent to pursue answers from the appellant to questions relating to the sources of information as part of a corruption investigation in respect of the identity of the appellant’s confidential source

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – OTHER MATTERS – where the respondent is investigating disclosures of information made by a police officer to the appellant journalist as part of a corruption investigation under the Crime and Corruption Act 2001 (Qld) (the Act) – whether paragraphs (a), (b) and (c) of s 15(1) of the Act are cumulative requirements or discrete consequences of the relevant conduct that must exist for the conduct to be corrupt conduct – whether s 15(1)(b) of the Act ought to be construed as requiring a stated result or consequential effect of conduct – whether the primary judge erred in concluding that the disclosure of information by a police officer about an arrest to a journalist is corrupt conduct

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION – RIGHTS AND FREEDOMS IMPLIED IN COMMONWEALTH CONSTITUTION – FREEDOM OF POLITICAL COMMUNICATION – PARTICULAR CASES – where the respondent is investigating disclosures of information made by a police officer to the appellant journalist as part of a corruption investigation under the Crime and Corruption Act 2001 (Qld) (the Act) – where s 192 and s 196 of the Act operate to compel a journalist to disclose a confidential source in all circumstances – whether the primary judge was bound by the decision of another intermediate appellate court which held that a similar provision was reasonably proportionate and adapted to the legitimate purpose of maintaining the institutions of representative government by investigating corruption involving or affecting public authorities – whether s 192 of the Act impermissibly burdens the implied constitutional freedom of political communication

Crime and Corruption Act 2001 (Qld), s 15, s 20, s 21, s 82, s 192, s 196, s 197, s 201, s 332, s 334

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85, cited

A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414, followed

Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23, cited

HT v The Queen (2019) 269 CLR 403; [2019] HCA 40, considered

John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346; [1988] HCA 54, followed

McGuinness v Attorney-General (Vic) (1940) 63 CLR 73; [1940] HCA 6, cited

R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166, considered

Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22; [2006] VSCA 85, considered

Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, considered

COUNSEL:

R J Anderson QC, with P Morreau, for the appellant

G W Diehm QC, with J S Brien, for the respondent

SOLICITORS:

Ashurst Australia for the appellant

Crime and Corruption Commission for the respondent

  1. [1]
    MORRISON JA:  I have read the reasons of Mullins JA and agree with those reasons and the orders her Honour proposes.
  2. [2]
    MULLINS JA:  The appellant is a journalist.  In June 2018 he received information from a police officer which led him to instruct another journalist and cameraman to attend a particular address to knock on the door.  Several days later, as a result of further information, he asked the same journalist and cameraman to attend the same address where they filmed a person being arrested on a charge of murder and other offences.  The respondent is investigating the disclosures made to the appellant as part of a corruption investigation under the Crime and Corruption Act 2001 (Qld) (the Act).  The respondent alleges that the disclosures made to the appellant had the potential of prejudicing police investigations that were ongoing and placed the safety of members of the police service and the journalist and cameraman who attended the particular address at risk.
  3. [3]
    The appellant was served with an attendance notice from the respondent pursuant to s 82(1)(a) of the Act to attend a hearing in relation to a corruption investigation and give evidence in relation to his knowledge of a criminal investigation relating to a specified murder, an investigation into the alleged terrorist activities of a named person, and the attendance by a named journalist at a specified address during a specified period.  The appellant attended a closed hearing.  Before he took an oath and answered questions, the presiding officer made an order pursuant to s 197(5) of the Act that all answers given by the appellant were to be regarded as answers given on objection on the basis of a claim of self-incrimination privilege which gave the appellant the benefit of s 197(2) of the Act that, subject to the exceptions otherwise in s 197(3), the answers, documents, things or statements given or produced by the appellant would not be admissible in evidence against him in any civil, criminal or administrative proceeding.  The appellant refused to answer questions that would identify, or tend to identify, the person to whom he spoke on the relevant dates (the sources of information questions), because he had agreed to keep that person’s identity confidential.
  4. [4]
    The basis the appellant gave for this refusal was a claim of privilege on the ground of public interest immunity in reliance on s 192(2A) of the Act.  By the time the appellant was questioned, the respondent’s investigation had revealed there was “one likely person” who had disclosed the information to the appellant, because there were numerous telephone contacts between this person and the appellant at the relevant times.
  5. [5]
    A week or so after the appellant had refused to answer the questions, he applied to the Supreme Court pursuant to s 196(2) of the Act for an order that the appellant’s claim of privilege made under s 192(2A) was established and should be upheld.  The appellant sought pursuant to s 332(1)(a) and s 334(1) of the Act to restrain the respondent from further questioning of the appellant in relation to the matters raised in the attendance notice, on the basis the investigation was being conducted unfairly to the extent the investigation required the appellant to be questioned in respect of matters for which he claimed privilege.  The appellant also sought pursuant to s 332(1)(b) and s 334(1) of the Act to restrain the respondent from proceeding further with the investigation insofar as it concerned the appellant on the basis that the investigation did not warrant further questioning of the appellant or that the conduct that was the subject of the investigation was not corrupt conduct within the meaning of s 15 of the Act.  The appellant sought alternative relief to the effect that, to the extent s 192 and/or s 196 of the Act required the appellant to reveal the identity of his confidential source, those provisions impermissibly burdened the freedom of communication about matters of government and politics implied in the Constitution of Australia and were therefore invalid.
  6. [6]
    Several months after the appellant’s application was filed, a certain police officer was charged with two offences of misconduct in relation to public office under s 92A of the Criminal Code (Qld) and one offence of communicating protected information under s 352(1) and (2)(b)(i) of the Police Powers and Responsibilities Act 2000 (Qld).
  7. [7]
    Before the primary judge, the appellant relied on an affidavit from an independent investigative journalist Mr Masters who dealt with the Code of Ethics and Codes of Conduct that usually apply to journalists, including an obligation to honour a source’s anonymity when that is sought by the source and agreed to by the journalist, after considering the source’s bona fides.  Mr Masters emphasised that source protection was an essential tool to serious investigative journalism.
  8. [8]
    The appellant was unsuccessful in obtaining any relief before the learned primary judge and the application was dismissed: F v Crime and Corruption Commission [2020] QSC 245 (the reasons).

Relevant legislation

  1. [9]
    Section 15(1) of the Act provides:

Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that—

  1. (a)
    adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of—
  1. (i)
    a unit of public administration; or
  1. (ii)
    a person holding an appointment; and
  1. (b)
    results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that—
  1. (i)
    is not honest or is not impartial; or
  1. (ii)
    involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or
  1. (iii)
    involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and
  1. (c)
    would, if proved, be—
  1. (i)
    a criminal offence; or
  1. (ii)
    a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.”
  1. [10]
    Under s 20(1) of the Act, the police service is a unit of public administration.  By virtue of s 21 of the Act, a police officer is a person who holds an appointment in a unit of public administration.
  2. [11]
    Under s 192(2A) of the Act, a person is entitled to refuse to answer a question at the hearing conducted by the respondent in relation to a corruption investigation on the following grounds of privilege:

“(a) legal professional privilege;

  1. (b)
    public interest immunity;
  1. (c)
    parliamentary privilege.”
  1. [12]
    Where a claim of privilege is made by a person under s 192 in relation to a refusal to answer a question, s 196(2) of the Act confers jurisdiction on a judge of the Supreme Court “to decide whether the claim is established and, if established, whether it is to be upheld”.
  2. [13]
    Section 196(5) applies where the claim of privilege is based on the ground of public interest immunity:

“If the judge decides that the claim is established on a ground of public interest immunity, the judge may order the person to give the information or produce the document or thing to the commission if the judge decides that, on balance, the public interest is better served by giving the information or producing the document or thing.”

The reasons

  1. [14]
    The primary judge summarised (at [13] of the reasons) the sources of information questions.
  2. [15]
    The primary judge dealt (at [23]-[29] of the reasons) with the legislative history of the expression “public interest immunity” in s 192(2A) of the Act and the forerunner provisions.  Subsection (2A) was inserted into the Act in 2008.  From 2001, there was an exception for a person to refuse to answer a question on the ground of public interest immunity.  The primary judge noted (at [24] and [26] of the reasons) that there was nothing of assistance in the explanatory note to the Bill for the Act or the explanatory note for the Bill that amended the Act in 2008 that assisted in construing “public interest immunity”.  The primary judge referred (at [28] of the reasons) to the equivalent provision to s 192 of the Act in the forerunner Criminal Justice Act 1989 (Qld) that entitled a person to claim privilege on the ground:

“(a) of legal professional privilege; or

  1. (b)
    of Crown privilege or other public interest; or
  1. (c)
    of parliamentary privilege”.
  1. [16]
    The primary judge considered (at [29] of the reasons) that the explanation for the change of expression from “Crown privilege or other public interest” in the 1989 Act to “public interest immunity” in s 192(2A)(b) of the Act was the change in usage of the expressions used at common law to describe the privilege and referred (at [30]-[32] of the reasons) to authorities that supported that proposition.
  2. [17]
    The primary judge proceeded on the basis (at [33] of the reasons) that these authorities show that public interest immunity privilege is the modern description of Crown privilege and it is a long-standing common law privilege.  The primary judge noted (at [34] of the reasons) that the immunity “is from production of a governmental document or disclosing a governmental communication” and referred to HT v The Queen (2019) 269 CLR 403 at [70].  The primary judge therefore concluded (at [35] of the reasons) that a journalist’s claim of so called “privilege” against revealing confidential sources of information was not within the concept of public interest immunity, because the journalist’s claim “is not an immunity from production of a governmental document or communication and it is not an objection taken by an arm of the executive”.
  3. [18]
    The primary judge referred (at [36] of the reasons) to the authority of John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 354 for the proposition that “a journalist’s claim of so-called ‘privilege’ against revealing confidential sources of information is not protected by any general doctrine of ‘public interest immunity’”.  The primary judge accepted (at [38] of the reasons) that “there is a public interest in the protection of a journalist’s confidential sources of information”.  The primary judge held (at [40] of the reasons) that the expression “public interest immunity” in s 192(2A)(b) of the Act should not be given a wider meaning than the recognised common law meaning of public interest immunity and concluded (at [41] of the reasons) that the appellant’s claims of privilege against being required to answer the sources of information questions on the ground of public interest immunity were not established.
  4. [19]
    For the purpose of dealing with the relief claimed pursuant to s 332(1) of the Act which did not depend on establishing public interest immunity privilege, the primary judge assumed (at [52] of the reasons) that the answers to the sources of information questions may reveal or disclose the identity of a person or persons who may have contravened obligations in relation to the authorised use of information of police investigations into the alleged murder and the alleged terrorist activities.  The primary judge observed (at [53] of the reasons) that, given that the possible contraventions in part relate to the disclosure of information to the appellant, “at first blush it is difficult to understand why or how it is unfair to ask the [appellant] the sources of information questions in a corruption investigation into those disclosures”.
  5. [20]
    The primary judge rejected (at [58] of the reasons) the appellant’s submission that the meaning of “unfairly” in s 332(1)(a) was wide enough to encompass a proceeding which failed to uphold the public interest in keeping a journalist’s confidential sources of information confidential.  The primary judge concluded (at [58]) that, on the basis the subjects of the respondent’s investigation were within its powers to investigate and conduct a hearing, it was not unfair to ask the sources of information questions, even if to do so would breach a journalist’s obligation of confidence, absent other factors.  The primary judge then stated at [58]:

“To conclude that to ask the sources of information questions is in itself to conduct the investigation unfairly would be to create an additional de facto category of journalist’s privilege, under the rubric of unfairness, when it is not otherwise a recognisable category of privilege against answering the questions.  There is no other aspect of the commission’s conduct that is particularised as unfair.”

  1. [21]
    The primary judge then stated (at [59] of the reasons) that his Honour was not satisfied as to the matter claimed by the appellant (using the language of s 334(1) of the Act) for the relief sought by the appellant pursuant to s 332(1)(a).
  2. [22]
    The primary judge dealt with the application based on s 332(1)(b) of the Act that the complaint or information on which the respondent’s investigation into corrupt conduct was being conducted did not warrant an investigation.  The primary judge rejected (at [65] of the reasons) the appellant’s submission that the disclosure of information to the appellant did not result in, and could not result in, the performance of powers by police in a way that met the requirements of s 15(1)(b) of the Act on the basis that it was inapt to describe the disclosure of information to the appellant as “conduct … that … could result in the performance of functions or the exercise of powers … in a way that involves a misuse of information”.
  3. [23]
    There was an additional argument by the appellant that since a police officer had been charged already with offences arising from events the subject of the investigation, there was no utility in requiring the appellant to answer the sources of information questions.  The primary judge rejected (at [67] of the reasons) that submission on the basis the appellant’s answers may provide information that the appellant, if called as a witness in a relevant proceeding against the charged police officer, would be able to give answers that directly proved that it was the charged police officer who made the disclosure of information to the appellant and the appellant’s answers may refer to a police officer other than the presently charged officer or other facts that are relevant to the subjects of the investigation.
  4. [24]
    In dealing with the constitutional validity question, the primary judge noted (at [72] of the reasons) that both parties accepted the approach of the High Court in Comcare v Banerji (2019) 267 CLR 373 at [29], the respondent did not contest that s 192 and s 196 could operate as an effective burden on the implied freedom of political communication, and the appellant did not contest that those provisions had a legitimate purpose.  The question to be determined was then set out (at [73] of the reasons) as to whether those provisions “are appropriate and adapted or proportionate to the achievement of their legitimate purpose consistent with the system of representative and responsible government having regard to the requirements of suitability, necessity and adequacy in balance” in reliance on Banerji at [32]-[38].
  5. [25]
    On the basis the relevant constitutional questions had been considered and answered by the New South Wales Court of Appeal in a case concerned with similar legislation in A v Independent Commission Against Corruption (2014) 88 NSWLR 240 and the application of the reasoning in that case at [68]-[69] was not distinguishable from the application to the appellant’s position as explained by the primary judge (at [82]-[86] of the reasons), the primary judge refused (at [87]-[88] of the reasons) to grant relief based on the constitutional invalidity of the relevant provisions of the Act.

Grounds of appeal

  1. [26]
    There are 11 separate grounds of appeal and it is convenient to group them as the parties did in their submissions.
  2. [27]
    In summary, grounds (a), (b) and (c) allege that the primary judge erred in holding that neither public interest immunity privilege at common law nor s 192(2A)(b) of the Act extended to a journalist’s obligation not to disclose or reveal confidential sources of information.
  3. [28]
    Grounds (d), (e) and (f) concern the primary judge’s conclusions that it was not unfair for the appellant to be asked the sources of information questions.
  4. [29]
    Grounds (g), (h) and (i) allege that the primary judge’s conclusions that s 15(1)(b) of the Act was invoked and that there was utility in requiring the appellant to answer the sources of information questions were made in error.
  5. [30]
    Grounds (j) and (k) concern the constitutional validity of s 192 and s 196 of the Act.

Did the primary judge err on the public interest immunity question?

  1. [31]
    The appellant accepts that the primary judge’s conclusion that public interest immunity protects only governmental documents or communications has some support in the Australian authorities.  The appellant submits, however, there is no justification to limit modern public interest immunity in such a way or confine it to what was formerly known as Crown privilege and there is also support in the authorities for the common law to develop, so that public interest immunity applies to a journalist’s confidential source, unless a greater public interest requires disclosure.
  2. [32]
    There are two issues raised by this ground.  The first is whether, as a matter of statutory construction, the reference to “public interest immunity” in s 192(2A)(b) of the Act is a reference to the concept of public interest immunity recognised at common law.  The second issue is whether the circumstances in which public interest immunity can be invoked under s 192(2A)(b) extends, or should extend, to a journalist’s confidential source.
  3. [33]
    On the first issue, as the primary judge noted (at [24] and [26] of the reasons) there was nothing in the relevant explanatory notes that suggested that the reference to public interest immunity in s 192(2A)(b) or its forerunner provision in the Act was to other than public interest immunity recognised at common law.  That is consistent (as noted at [23] of the reasons) with the other grounds specified in s 192(2A) of legal professional privilege and parliamentary privilege being privileges developed and recognised at common law.  It is also consistent with the lack of any statutory definition of public interest immunity applicable to s 192(2A).
  4. [34]
    The appellant argues that the development of public interest immunity at common law is not stagnant and there is scope for public interest immunity to develop in such a way as to protect a journalist’s anonymous source, subject to a more pressing public interest.  It is in this sense that the appellant uses the description of a qualified public interest immunity which prevails unless disclosure is necessary to meet a higher order public interest.
  5. [35]
    On the basis the primary judge recognised (at [38] of the reasons) that there is a public interest in the protection of a journalist’s confidential sources of information and that has resulted in legislative reform in other jurisdictions (such as s 126K of the Evidence Act 1995 (NSW)), the appellant submits that the primary judge erred in not considering whether the common law should apply public interest immunity to a journalist’s confidential source of information consistent with legislative reform where that has occurred elsewhere and conditional upon there being no superior public interest that should override the public interest in maintaining a journalist’s confidential source.
  6. [36]
    One problem with the submission is that it is clear from the reasons that the primary judge’s acknowledgement that there is a public interest in the protection of a journalist’s confidential sources of information was in respect of public interest in that context and not treating that public interest as being of the same class or type as, or equivalent to, the public interest that grounds public interest immunity.
  7. [37]
    Another problem with this submission is that it is seeking this court to develop the common law in relation to public interest immunity in a way that is inconsistent with unequivocal statements in the High Court of Australia to the effect that the law does not protect the public interest in the free flow of information to the media to the extent of conferring an immunity on the media from disclosure of its sources: see Cojuangco at 356.  The submission also does not address the recent dicta in HT at [28] and [55] from which it is implicit that it is government documents or documents which concern government policy to which public interest immunity applies and at [70] from which it is explicit that the entitlement to object to production of relevant evidence on the grounds of public interest immunity rests with an arm of the executive government.  The dicta in HT rely on the explanation of Gibbs ACJ as to the nature of Crown privilege (or when evidence is excluded as prejudicial to the public interest) in Sankey v Whitlam (1978) 142 CLR 1 at 38-43.
  8. [38]
    In Cojuangco, the issue was whether an error had been made in the exercise of a judge’s discretion in ordering preliminary discovery under the Rules of Court in favour of Mr Cojuangco against a newspaper publisher and the author of the relevant article to disclose the identity of the sources of information upon which the article was based and which article Mr Cojuangco alleged defamed him.  The focus of the decision was whether the judge’s discretion should have been guided by the “newspaper rule” that applied in defamation proceedings where a newspaper would not usually be compelled an in interlocutory proceeding to disclose its source of information.  It was not essential to the issue decided in Cojuangco for the judgment to make observations about the extent of public interest immunity in relation to journalist’s sources, but the statement in the joint judgment made at 356 did not leave open the development of public interest immunity to apply to a journalist’s confidential sources.
  9. [39]
    The appellant places emphasis on the use of the word “immunity” in Cojuangco at 352 and 353 of the joint judgment to describe the operation of the newspaper rule and submits that the rationale for the newspaper rule and its operation could be given equal effect as a species of public interest immunity in the absence of any other public interest that should prevail.  The appellant’s argument does not reconcile with the joint judgment’s endorsement in Cojuangco of the explanation of the newspaper rule by Dixon J in McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 104-105 and the joint judgment’s summary of the effect of that explanation at 356:

“First, the rule is one of practice, not of evidence. Secondly, although the rule rests on a recognition of the public interest in the free flow of information, the law gives effect to that recognition of the public interest by exercising a discretion to refuse to order disclosure of sources of information in interlocutory proceedings in defamation and, perhaps, other analogous actions, even though disclosure would be relevant to the issues for trial in the action. The law does not protect that public interest to the extent of conferring an immunity on the media from disclosure of its sources.”

  1. [40]
    The appellant’s response to the express statement in the joint judgment set out above to the effect that the common law does not protect the public interest in the free flow of information to the media by conferring an immunity on the media from disclosure of its sources is that is a reference to absolute public interest immunity in contrast to the conditional or qualified public interest immunity that the appellant submits recognises the public interest in journalists’ maintaining the confidentiality promised to the sources of the journalists’ information, but will be overridden where there is a greater public interest to which effect must be given.  The respondent makes the valid point that the appellant is endeavouring to quarantine the confirmation in Cojuangco that public interest immunity does not apply to a journalist’s confidential sources by blurring the distinction the joint judgment made between the application of public interest immunity and the application of the newspaper rule.
  2. [41]
    Another flaw in the appellant’s response is that there is no warrant in the authorities to describe public interest immunity in terms of being an “absolute” immunity in contrast with the concept of a conditional or qualified public interest immunity which the appellant seeks the court to embrace.  As explained in Sankey at 38, the executive government may object to the production of documents on the ground of public interest immunity, but it is the duty of the court to decide whether the document will be produced or may be withheld by balancing the public interest which requires that the document not be produced with the public interest in the court performing its functions and deciding where the balance of the competing aspects of the public interest lies.
  3. [42]
    In R v Young (1999) 46 NSWLR 681, Mr Young was charged the sexual assault of a complainant who had a history of psychiatric illness and had made allegations of prior sexual assault.  Mr Young issued subpoenas to a hospital requesting the notes, records files and like documents relating to the complainant.  At that time, s 126H of the Evidence Act 1995 (NSW) conferred sexual assault communications privilege.  The relevant issue in Young was whether the common law on public interest immunity should be extended to recognise a sexual assault communications privilege that accorded with the relevant provisions of the NSW Evidence Act.  Strong views were expressed by Spigelman CJ on the requirement that the public interest to which public interest immunity refers “requires a dimension that is governmental in character” and that the references in the case law to the proposition that the categories of public interest are not closed should be similarly confined.  See Young at [53]-[56], [86] and [90].  In Young, James, Abadee and Barr JJ agreed with Spigelman CJ’s observations on public interest immunity.  See Young at [217], [225]-[228] and [349]-[350].  Beazley JA dissented in Young (at [214]-[215]) and would have extended public interest immunity to the disclosure of confidential counselling communications of sexual assault victims, subject to the balancing exercise which the court is required to carry out when a claim of public interest immunity is made.
  4. [43]
    The issue in Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22 was whether the patient’s medical records attracted the protection offered by the common law principle of public interest immunity where the records were sought by the Medical Practitioners Board in connection with the investigation of a complaint into the patient’s treatment by certain medical practitioners.  Warren CJ agreed (at [34]) with the analysis of Spigelman CJ in Young that:

“In the context of the common law doctrine of public interest immunity, it is not appropriate for courts to arbitrarily speculate about what the benefit (or for that matter the disbenefit) to the public may or may not be, outside of the established categories as they apply to the proper functioning of government.”

  1. [44]
    Maxwell P agreed (at [39]) with Warren CJ that the class of documents the subject of the hospital’s claim for public interest immunity was not capable, as a matter of law, of attracting public interest immunity and noted (at [59]) that concern about the importance of maintaining the confidentiality of the patient-doctor relationship was a matter for Parliament.  Charles JA, the other member of the court in Royal Women’s Hospital, had substantial reservations (at [122]-[124]) as to whether the hospital was entitled to claim public interest immunity, but decided the appeal (at [150]-152]) on the basis there was no error in the court below in concluding, on the balancing exercise, that the hospital had failed to establish any basis for refusal of production of the documents.
  2. [45]
    At first instance, the appellant had relied on extracts from Hansard of the Legislative Assembly of the Parliament of Queensland that indicated in 2008 there was a policy of the respondent not to call journalists to a hearing to reveal their sources.  Evidence of that practice does not assist in dealing with what constitutes public interest immunity according to the cases.  For the purpose of the appeal, the appellant sought leave to adduce further evidence from one of the solicitors acting for the appellant that exhibited a transcript of the public meeting of the Parliamentary Crime and Corruption Commission with the respondent on 11 September 2020 in which the chairperson of the respondent commented on the primary judge’s decision and whether there was a need for shield laws to allow a journalist to protect his or her sources of confidential information.  Even though that transcript is evidence that was not available for the hearing before the primary judge and supplements the original evidence relied on by the appellant about the respondent’s policy in relation to journalist’s sources, it is not evidence that has any effect on that issue on this appeal.  The appellant also sought to rely on the further affidavit in relation to lack of utility in addressing the unfairness of the respondent’s hearing, because of the view expressed by the chairperson about the nature of the relationship between the journalist and the source that is recorded in that transcript.  It is not appropriate to request the court to take a statement of the chairperson made to the Parliamentary Committee in a particular context and use it to draw a conclusion about the respondent’s motivation in respect of the hearing involving the appellant.  I would therefore refuse the leave to adduce that further evidence on the appeal.
  3. [46]
    To the extent that there is support in the authorities that public interest immunity protected only governmental documents or communications, the appellant submits that it was assumed that was the case in Sankey and Alister v The Queen (1984) 154 CLR 404 at 412-414 and 453 and to the extent it was embraced in authorities such as Young and Royal Women’s Hospital, those decisions should be treated as erroneous.  Despite some indications in some authorities that the categories of public interest may not be closed, McGuinness and Cojuangco remain authoritative for the proposition that public interest immunity does not apply to protect a journalist’s confidential sources of information and the appellant also cannot overcome the hurdle that public interest immunity applies to governmental documents or communications recognised as recently as 2019 by the High Court in HT and applied by intermediate Courts of Appeal in Young and Royal Women’s Hospital.  I therefore agree with the primary judge’s conclusion (at [39] of the reasons) that public interest immunity at common law does not extend to a journalist’s obligation not to disclose the confidential sources of information.
  4. [47]
    The appellant does not succeed in the appeal on grounds (a), (b) and (c) that depend on public interest immunity being extended to protect a journalist’s confidential sources.

Did the primary judge err in holding that it was not unfair to ask the sources of information questions?

  1. [48]
    The appellant had provided further and better particulars of the features of unfairness that he was relying on for the purpose of obtaining the orders pursuant to s 332(1)(a) and s 334(1) of the Act.  One of the features was that the appellant alleged that the interest in maintaining the investigation in the manner in which it was pursued against the appellant did not outweigh the privilege and there appeared to be sufficient evidence to cover the issue without requiring the appellant to disclose his confidential source.  Ground (e) is in the following terms:

“The primary judge erred in holding (at [59]) that he was not, for the purpose of s 334 of the Act, satisfied as to the matter claimed by the appellant under s 332(1)(a), without taking into account the further circumstance that the public interest in upholding the journalist's confidence was not outweighed by the public interest in requiring answers in this case because there is sufficient evidence to cover the issue without requiring the appellant to disclose his confidential source(s).”

  1. [49]
    In support of ground (e), the appellant submits that the primary judge did not address the specific submission made before the primary judge in reliance on this feature that the pressing of the answer from the journalist occurred in circumstances where it appeared the respondent already had sufficient evidence upon which to identify and prosecute the alleged source and which made the conduct of the investigation unfair.  This submission proceeds on the basis that public interest immunity did not apply to the appellant’s refusal to disclose his source, but that the respondent had a discretion whether to pursue the appellant for answers to the sources of information questions and, in exercising that discretion, should have taken into account the appellant’s interest as a journalist in protecting the identity of his source from disclosure in combination with the lack of utility or very limited utility in pursuing answers from the appellant to the source of information questions.
  2. [50]
    The appellant emphasises that, even if the appellant could not rely on keeping his source confidential by reference to public interest immunity, there was still a public interest in maintaining the anonymity of a journalist’s confidential source.  As the respondent points out, this argument ignores that a purpose of the respondent’s hearing at which the appellant was questioned was to pursue a corruption investigation in respect of the identity of that confidential source.
  3. [51]
    On the hearing of this appeal, the respondent concedes that the primary judge did not address separately the specific aspect of unfairness that there was otherwise sufficient evidence of the identity of the appellant’s source and which is the subject of ground (e) in dealing with the issue of unfairness for the purpose of s 332(1)(a) of the Act.  The respondent submits that was explicable due to the manner in which the appellant conducted his case before the primary judge where the feature of unfairness about maintaining the investigation was expressed in terms of balancing the pursuit of the investigation against maintaining the confidentiality of the appellant’s source in circumstances where there appeared to be sufficient evidence on the issue without requiring that disclosure.  The respondent submits this argument was treated as a composite proposition and was disposed of by the primary judge (at [58] of the reasons) on the basis that to accede to the appellant’s argument would be “to create an additional de facto category of journalist’s privilege, under the rubric of unfairness”.  In addition, to the extent the appellant’s submission on unfairness incorporated the allegation of lack of utility in requiring the disclosure, the primary judge addressed (at [67] of the reasons) the same argument about lack of utility when disposing of the argument based on s 332(1)(b) of the Act and there was no basis for a different approach to the argument of lack of utility for the purpose of s 332(1)(a).
  4. [52]
    It was a matter for the respondent to assess and determine whether the appellant should be pressed for answers to the source of information questions.  It is speculation by the appellant that there was only very limited utility in obtaining answers from the appellant.  It does not follow from the fact that a police officer was charged with relevant offences after the appellant filed his application in the Supreme Court that either the prosecution’s case against that police officer or the respondent’s further investigation into the disclosure of the information to the appellant that resulted in his sending the journalist to the relevant address on two occasions in June 2018 may not be affected by the appellant’s answers to the sources of information questions.
  5. [53]
    To the extent that the primary judge did not address this specific aspect of unfairness alleged by the appellant before the primary judge when dealing with s 332(1)(a), but did reject the analogous argument when dealing with s 332(1)(b), it was not a matter that would have altered the conclusion of the primary judge on the issue of unfairness for the same reasons the primary judge rejected the argument for the purpose of s 332(1)(b).  I reach the same conclusion on the issue of lack of utility for the purpose of s 332(1)(a) that the primary judge reached about the issue of lack of utility for the purpose of s 332(1)(b).
  6. [54]
    The appellant does not succeed in this appeal on grounds (d), (e) and (f).

Did the primary judge err in applying s 15(1)(b) of the Act?

  1. [55]
    The appellant argues that s 15(1)(b) of the Act ought to be construed as requiring a stated result or consequential effect of conduct and that was not met by the circumstances of the disclosure by the police officer to the appellant, as the “conduct” was that of the police officer who disclosed the information, rather than the appellant as the recipient of the information, and the disclosure or disclosures did not result in, nor could result in, the performance of powers by police in a way that involved a misuse of information or material.  The appellant submits that paragraphs (a), (b) and (c) of s 15(1) are cumulative requirements and the word “results” in paragraph (b) must be given some meaning.  The appellant therefore submits that “results” refers to the consequence or possible consequence of the corrupt conduct mentioned in the introductory words to s 15(1) and does not describe the nature of the corrupt conduct itself.  The appellant therefore argues that the primary judge erred in concluding that the subject of the investigation was corrupt conduct within the meaning of s 15(1)(b) of the Act.
  2. [56]
    The respondent argues that the appellant misconstrues s 15(1) and that the requirements in paragraphs (a), (b) and (c) are not cumulative matters, but are discrete consequences of the relevant conduct and must exist for the conduct to be corrupt conduct.  On that basis the respondent submits that s 15(1)(b) does not require a result separate from the relevant conduct, but requires that the relevant conduct adversely affects, or possibly adversely affects, the performance of functions as set out in s 15(1)(a) and results in the performance of the functions in a way that is stated in any of subparagraphs (i), (ii) or (iii) of s 15(1)(b).  The respondent therefore submits that there was no error in the primary judge’s conclusion (at [65] of the reasons).
  3. [57]
    The wording of s 15(1) of the Act is cumbersome, but it is apparent from the structure of s 15(1) that the opening words of s 15(1) qualify each of paragraphs (a), (b) and (c).  That means (in the context of the facts of this matter) that it is the relevant conduct (disclosure of information to a journalist about an imminent arrest) that adversely affects the performance of functions by the relevant police officer and also results in the performance of those functions in a way that involves a misuse of information by the relevant police officer in the performance of functions.  I therefore do not consider there was any error in the primary judge’s conclusion at [65] of the reasons.
  4. [58]
    The second aspect of the grounds concerning s 15(1)(b) of the Act is the primary judge’s conclusion (at [67] of the reasons) that the respondent’s submissions on the utility in requiring the appellant to answer the sources of information questions should be accepted.  For the reasons set out above (at [52]), there was no error in the primary judge’s conclusion on this aspect.
  5. [59]
    The appellant does not succeed in this appeal on grounds (g), (h) and (i).

Did the primary judge err in rejecting a submission that s 192 and s 196 of the Act were constitutionally invalid?

  1. [60]
    As an alternative to the other arguments, on the basis that s 192 and s 196 of the Act operate to compel a journalist to disclose a confidential source in all circumstances, the appellant submits that s 192 impermissibly burdens the implied constitutional freedom of political communication.  It was common ground that the primary judge addressed the only question (set out at [73] of the reasons) that was in issue between the parties on this topic.
  2. [61]
    The appellant submits that the primary judge erred in failing to treat the decision in A v ICAC as erroneous or otherwise distinguish A v ICAC.  The respondent submits that A v ICAC is not materially distinguishable, the primary judge was bound to follow it, and this court should also follow A v ICAC, as it is the decision of another intermediate appellate court and is not obviously incorrect.
  3. [62]
    In A v ICAC, the Commission summoned the proper officer of a company to appear and produce documents at a compulsory examination pursuant to s 35 of the Independent Commission Against Corruption Act 1988 (NSW) (the NSW Act).  The summons required the company to produce documents comprising the email accounts and the electronic calendar of a political journalist within its control.  The company requested the Commission to set aside the summons which it refused to do.  The company applied to the Supreme Court of New South Wales to set aside the summons and, relevantly, for a declaration that s 35 was invalid.  The company was unsuccessful at first instance and appealed to the Court of Appeal.  It was held (at [68]-[69] and [161]) that, although s 35 of the NSW Act may indirectly burden the freedom of political communication that is implied in the Commonwealth Constitution, it is reasonably proportionate and adapted to the legitimate purpose of the legislation being to maintain the institutions of representative government by investigating corruption involving or affecting public authorities and is therefore not constitutionally invalid.
  4. [63]
    Basten JA (with whose reasons Bathurst CJ agreed) identified four reasons (set out at [68]-[69] of A v ICAC) for why s 35 of the NSW Act was reasonably appropriate and adapted to the achievement of the legitimate purpose for which the powers were conferred.  Before the primary judge and on this appeal, it was not in issue that Basten JA’s first reason applied to s 192 and s 196 of the Act.  The respondent is a similar investigative agency to the NSW Commission.  When Basten JA was referring in his second reason to investigative agencies in the sense that the powers conferred on the Commission for the purposes of investigation could be described “as commonplace statutory powers conferred upon investigative agencies”, it was investigative agencies of the nature of the Commission and the respondent.  Basten JA’s second reason was equally applicable to the respondent.
  5. [64]
    Basten JA’s third reason (set out at [68] of A v ICAC and explained by the primary judge at [85] of the reasons) was based on Bathurst CJ’s reasons in The Age Company Ltd v Liu (2013) 82 NSWLR 268 at [96]-[99] as an example of how a legislative provision that reduces the ability of a journalist to keep confidential the identity of a source of information may be appropriate and adapted to the legitimate purpose of the legislative provision.  I agree with the primary judge’s explanation of the effect of Basten JA’s third reason and it applies equally to s 192 and s 196 of the Act.
  6. [65]
    The appellant seeks to distinguish Basten JA’s fourth reason that under the NSW Act there are significant limitations in the use of the confidential information obtained on subpoena for the purpose of a compulsory investigation by pointing to s 201 of the Act and the fact that, as a police officer has been charged in respect of the release of information to the appellant, any disclosure of information by the appellant in answering the sources of information questions would then be disclosed to the police office or his lawyers upon request to the respondent, unless the court otherwise orders.  First, it is ironic that the appellant seeks to challenge the constitutionality of s 192 and s 196 of the Act in requiring him to answer the sources of information questions by the possibility that, if he does, disclosure of that evidence would be made to the police officer who has been charged with disclosing the information to the appellant.  Second, s 113 of the NSW Act at the time relevant to A v ICAC operated in a similar way to s 201 of the Act.  The limitations on, and the protections in respect of, the use of the information obtained from a closed hearing in a corruption investigation under the Act are materially indistinguishable from those that were in the NSW Act that applied in A v ICAC.
  7. [66]
    The appellant also argues that a requirement to answer the sources of information questions places the appellant in the position where he must make a choice between breaching his ethical obligation as a journalist to protect his source’s anonymity or face a significant penalty for refusing to do so.  That is an argument directed at the practical effect of s 192 and s 196 being valid and is not itself a reason for finding that those provisions are not reasonably appropriate or adapted to the achievement of the legitimate purpose of the maintenance of the system of representative and responsible government.
  8. [67]
    Like the primary judge (at [87] of the reasons), I am satisfied that A v ICAC is neither wrongly decided nor distinguishable and should be followed.
  9. [68]
    The appellant does not succeed in this appeal on grounds (j) and (k).

Orders

  1. [69]
    It follows that the appeal must be dismissed.
  2. [70]
    At the hearing of the appeal, the respondent sought an order for costs in its favour, if the appeal were dismissed.  Although the appellant did not reserve the right to make submissions on costs, there may be matters relevant to the exercise of the costs discretion in respect of this appeal arising from the nature of the application before the primary judge and whether the approaches to costs reflected in s 196(7) and s 332(4) of the Act have any application in determining costs on the appeal.  I would therefore permit the parties to make any further submissions on costs in writing and not exceeding two A4 pages within seven days of the date on which these reasons for judgment are published.
  3. [71]
    BODDICE J:  I agree with Mullins JA.
Close

Editorial Notes

  • Published Case Name:

    F v Crime and Corruption Commission

  • Shortened Case Name:

    F v Crime and Corruption Commission

  • MNC:

    [2021] QCA 244

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Mullins JA, Boddice J

  • Date:

    12 Nov 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

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