Case: Zarro and Ors v Australian Securities Commission (1992) 36 FCR 40
Outcome: considered
I accept that in the present case that there may be documents in the possession of APRA whose release would clearly prejudice the public interest, for example documents identifying informers, documents containing details of financial affairs of third parties, documents which had been provided to APRA on a confidential basis, or documents which are pertinent to an ongoing investigation. It has generally been accepted that documents of this nature attract public interest immunity: see Zarro and Ors v Australian Securities Commission (1992) 36 FCR 40; Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140; Somerville v Australian Securities Commission and Ors (1995) 60 FCR 319; Spargos Mining NL &amp; Anor v Standard Chartered Aust Ltd &amp; Ors (No 1) (1989) 1 ASCR 311 at 312. The very restriction on the release of the final report without approval by the Attorney-General under s 60(6) suggests that reports of this nature may well contain information which, in the public interest, should not be disclosed. 49 However, in an application such as this, the Court must be satisfied that the specific documents sought by the applicant contain information of that nature. In Zarro Lockhart J observed at 50-1: 'In these days with large government instrumentalities and agencies involved in time consuming and extensive investigations into possible irregularities and offences, great care is required by the bodies themselves in ensuring both that the correct person within the structure of the organisation (that is, a person who knows the facts, has seen the documents and who is preferably at a high level within the organisation) swears the appropriate affidavit claiming public interest immunity and that the claim is not made too widely so as to sweep within its net documents that are not legitimately an essential integer in the investigative process. This also calls for vigilance by the courts lest documents are shielded from public scrutiny or inspection by parties to litigation under an unduly broad umbrella of public interest immunity.' 50 In the present matter the final version of the report may be released in the future to ZFS and ZAI (under s 60(5) of the Insurance Act ) as well as being publicly released (under s 60(7)). In addition, if proceedings are in the future brought against the applicant, then pursuant to s 60(8) the Court may order that he be provided with a copy of the final report. 51 It is therefore anticipated by the Insurance Act that in some circumstances a report of this nature will be made public or at least be provided to bodies outside of APRA. Accordingly, it must be anticipated that a report will not necessarily contain information which it is not in the public interest to reveal, even if the conduct of an investigation may require that its release be delayed. If such considerations apply to a final report, they may also apply to a draft report. 52 It is possible that the draft reports could contain material which falls into a category which usually attracts public interest immunity, but it is by no means certain. In these circumstances, before they would attract public interest immunity, I would need to be satisfied that these specific draft reports contain information which should not be released, because they identify informers, contain confidential information, because their release would prejudice ongoing investigations or legal proceedings or on some other basis. 53 The evidence provided by APRA does not contain details to this effect, but rather talks generally of the public interest in maintaining confidentiality of draft reports of APRA. It does not refer in any way to the specific basis on which the contents of these draft reports attract public interest immunity. Mr McKenzie-Craig's affidavit states generally that the release of draft findings of APRA ' could lead to tailoring or tainting of evidence, concealment of documents, or other conduct which diverts, hampers or even misleads APRA or the Inspector in the investigation '. However, the affidavit does not indicate why the release of the specific information contained in the draft reports would have this effect. Given that the final report has now been completed and those parts of the document which are referable to the applicant have already been provided to him, it is not immediately obvious that, if the reports were released for the limited purpose of these proceedings, APRA's investigations would be prejudiced. It appears that the evidence-gathering stage of the investigation is wholly completed and the decision is now a forensic and/or legal one.