F v Crime and Corruption Commission

This appeal considered whether the public interest immunity privilege extends to protect a journalist’s confidential sources, and if not, whether the fact that ss 192 and 196 of the Crime and Corruption Act 2001 operate to compel a journalist to disclose a confidential source in all circumstances impermissibly burdens the constitutional implied freedom of political communication such that they are unconstitutional. The Court answered no to both questions.

Morrison and Mullins JJA and Boddice J

12 November 2021

Background

The appellant is a journalist. In June 2018, he received information from a police officer which led him to instruct a journalist and cameraman to attend a particular address where they filmed a person arrested on a charge of murder. The respondent is investigating the disclosures made to the appellant as part of an investigation made under the Crime and Corruption Act 2001 (“the Act”). [2].

At the hearing in relation to the corruption investigation, the appellant refused to answer questions that would tend to identify the person to whom he spoke, because he had agreed to keep that person’s identity confidential. [3]. The basis the appellant gave for his refusal was a claim of privilege on the ground of public interest immunity (“PII”) in reliance on s 192(2A) of the Act. [4].

A week or so after the appellant had refused to answer the question, 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 (as well as other relief). [5]. The primary judge dismissed the application. [8].

The legislation

Under s 192(2A) of the Act, a person is entitled to refuse to answer a question at the hearing on the following grounds of privilege ([11]):

“(a) legal professional privilege;

(b) public interest immunity;

(c) parliamentary privilege.”

Where a claim of privilege is made by a person under s 192, 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”. [12].

Section 196(5) applies where the claim of privilege is based on the ground of public interest immunity ([13]):

“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.”

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

There were two issues raised by this ground:

1. First, whether, as a matter of statutory construction, the reference to “public interest immunity” in s 192(2A)(b) is a reference to the concept of PII recognised at common law; and
2. Secondly, whether the circumstances in which PII can be invoked under s 192(2A)(b) extends, or should extend, to a journalist’s confidential source.

Justice Mullins (with whom Morrison JA and Boddice J agreed) held that the primary judge had not erred in his consideration of either issue.

The primary judge had found that there was nothing in the explanatory notes to the provision, or in its forerunner, that suggested that the reference was other than to the immunity recognised at common law. [33]. This, Mullins JA held, is consistent with the other grounds specified in s 192(2A) of legal professional privilege and parliamentary privilege, being privileges developed at common law. It is also consistent with the lack of any statutory definition of PII in the Act. [33].

As for the appellant’s argument to extend PII, the appellant accepted that the primary judge’s conclusion that PII only protects “governmental documents or communications” has some support in Australian authorities. [31]. The appellant submitted however that the development of PII at common law is not stagnant – and its scope should expand to protect a journalist’s anonymous source. [31].

Justice Mullins rejected that argument, finding that it to be inconsistent with “unequivocal statements from the High Court” 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 John Fairfax & Sons v Cojuangco (1988) 165 CLR 346, 356. [37].

The appellant therefore failed on this ground. [47].

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

In the alternative, the appellant submitted that because ss 192 and 196 of the Act operate to compel a journalist to disclose a confidential source in all circumstances, s 192 impermissibly burdens the implied constitutional freedom of political communication. [60].

The appellant argued that the primary judge had erred in finding otherwise, by following the case of A v ICAC (decided in the context of s 35 Independent Commission Against Corruption Act 1988 (NSW)), either because that case was wrongly decided, or because it was distinguishable. [61].

Justice Mullins disagreed.

Her Honour held that each of the four reasons given by the NSW Supreme Court were correct, and that its provisions were materially indistinguishable from the relevant Queensland Act. [65].

The appellant’s argument that a requirement to answer the questions would place him in a position where he had to choose between “breaching his ethical obligation” and “facing a significant penalty” directed to the “practical effect” of the sections’ validity, and was not itself a reason for finding that those provisions were not “reasonably appropriate or adapted to the achievement of the legitimate purpose of the maintenance of the system of representative and responsible government”. [66].

The appeal was dismissed.

Z Brereton of Counsel