Case: Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408
Outcome: distinguished
The applicant submitted that the s 13 proceeding before the Magistrate was a process to which the rules of natural justice, in particular the right to be heard, applied. The applicant relied, in particular, on subs (4) of s 13 (par [29] above). He also submitted that in exercising her discretion under subs (3) of s 13 (par [29] above) whether to take the evidence of a witness in the presence or absence of the applicant, the Magistrate should have given the applicant a hearing in relation to the exercise of that discretion. The applicant relied on Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 in support of his submission. The applicant relied, in particular, upon the reasoning of McHugh J at 472: "Thus, procedural fairness required as a minimum that the appellant be given the opportunity to put submissions before the A.S.C. relating to matters requiring the non-disclosure of information by the A.S.C." 53 The applicant submitted that the circumstances in Johns v Australian Securities Commission (supra) were the same as existed before the Magistrate. He contended that the statutory scheme in the Mutual Assistance Act did not interfere with his right to be heard. In Johns v Australian Securities Commission (supra), it was held that the delegate of the Australian Securities Commission should have given Mr Johns an opportunity to be heard before she decided to allow the transcripts of Mr Johns' evidence before the Australian Securities Commission to be made available to the Royal Commission. It was clear in that case that the decision to allow the use of the transcripts of Mr Johns' evidence in public hearings were prejudicial to his interests. 54 However, I consider that the statutory scheme under the Mutual Assistance Act is significantly different from the facts and circumstances which underpin the decision in Johns v Australian Securities Commission (supra). As noted earlier in par [28] above, the Mutual Assistance Act applies to Greece with whom Australia has entered into a Mutual Assistance Treaty. Accordingly, the Mutual Assistance Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to that Treaty. Article 9 of the Treaty (par [28] above) required the relevant Australian officers to keep the request from Greece confidential. Further, the relevant Australian officers were required by Article 9 to keep confidential the evidence provided by Australia. It is apparent from the request for assistance from Greece that it required confidentiality to be applied to its request and to the evidence provided. 55 Such confidentiality could not have been maintained if the Magistrate or the Attorney-General were obliged to inform the applicant of the request or invite his participation in the Mutual Assistance Act s 13 proceeding. In exercising the discretion committed to her in s 13(3) of the Mutual Assistance Act, the Magistrate was obliged to take into account the application of s 7(3) of the Mutual Assistance Act and the confidentiality sought by Greece. Section 13(4) does not take the matter any further as the discretion to allow a person in the position of the applicant to have legal representation at the proceeding was dependent upon the Magistrate deciding whether or not to take evidence in the presence or absence of the applicant. 56 Further, I consider that the nature of the procedure under s 13 of the Mutual Assistance Act to be different in nature from the process considered by the High Court in Johns v Australian Securities Commission (supra). Under that procedure the Magistrate had no discretion in relation to the acceptance or rejection of the evidence. 57 It follows that I do not accept the submission that the applicant was entitled to be given notice of the application to the Magistrate or that he was entitled to be heard in relation to it. 58 I turn to the applicant's submission that the s 13 Mutual Assistance Act procedure undertaken was not lawful or in accordance with the provisions of the Mutual Assistance Act. It is important to note that a proceeding under s 13 of the Mutual Assistance Act in relation to a criminal matter that concerns an offence against the laws of a foreign country that made the request resulting in a proceeding that is punishable by imprisonment for life or for a period or maximum period of at least three years is an "exempt proceeding": s 5B(1)(h) of the TIA Act . Section 74(1) of the TIA Act provides that a person may give lawfully intercepted information (other than foreign intelligence information) "in evidence" in an exempt proceeding.