Case: Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd [2003] FCA 626
Outcome: followed
The "public interest" claimed by the ACCC to require protection of Category III documents from disclosure was said to be to encourage, by ensuring the confidentiality of information they provide, cartel whistleblowers to come forward. In ACCC v ABB Power Transmission Pty Ltd [2003] FCA 626 at [43] , the Court suggested in obiter dicta that such a public interest might exist. In the present case, Counsel for the ACCC put it this way: The public interest ... is to induce the Amcors of this world - those who come forward early, under the immunity policy - to give the fullest possible assistance to the [ACCC] to ensure that the cartel is put at an end as quickly as possible, prosecuted, and brought to finality quickly. The more assistance that Amcor gives the [ACCC] in that regard, the better the quality of the admissions and the evidence ... 28 Counsel for the ACCC conceded that confidentiality could not be absolute, in that both the ACCC and any potential whistleblower should reasonably expect that the whistleblower might have to testify in open court (ie, the whistleblower's statements might ultimately come into the public domain). Nevertheless, counsel for the ACCC maintained that this expectation was not inconsistent with a reasonable expectation that statements provided to the ACCC will remain confidential because most cartel cases settle with the result that: (1) it never becomes necessary for witness statements of whistleblowers to be used in court; and (2) the entry into the public domain of witness statements of whistleblowers is the exception rather than the rule. Without being able to rely on the confidentiality of statements not used in court, counsel for the ACCC submitted that whistleblowers might be dissuaded from coming forward and the public interest in rooting out cartel conduct correspondingly injured. 29 Regardless of whatever theoretical merit the argument may have (which I will address shortly), the force of the ACCC's submission was undercut by the evidence of its own witness Mr Cassidy (the officer in charge of the leniency program for cartel whistleblowers) that in the present case Amcor did not seek confidentiality guarantees in its immunity application. In ACCC v ABB Power Transmission Pty Ltd [2003] FCA 626 at [44] , the Court suggested that the force of any public interest immunity claim will be vitiated where the independent witnesses cooperating with the ACCC did not even seek confidentiality. I agree. Moreover, even the broader factual merit of the claim is suspect, as the ACCC led no evidence that any cartel whistleblower, whether in this case or otherwise, has demonstrated reluctance to come forward based on a concern that information provided might become public. 30 The theoretical merit of the ACCC's confidentiality contentions is even more deficient. A cartel claim, by definition, involves collusion between two or more actors. In the same way that it is both inevitable and self-evident that the statements of a cooperating criminal conspirator will be used against (ie, disclosed to) the non-cooperating conspirators, it must be taken for granted that a cartel participant contemplating a confession to the authorities knows, or should know, that his statements will be used by the authorities to prosecute the other party or parties. As such, the ACCC's claim that a party like Amcor can have a reasonable expectation of confidentiality with respect to statements made to investigators is devoid of substance. And without such a reasonable expectation, the ACCC's contention that non-disclosure of the documents is required to protect the public interest cannot stand.