Case: Commissioner, Australian Federal Police v Samsonidis [2007] FCAFC 54
Outcome: cited
The issues involved in this proceeding require a detailed consideration and analysis of a number of provisions of the TIA Act and the Mutual Assistance Act. The TIA Act was the subject of recent consideration by a Full Court of the Federal Court in Commissioner, Australian Federal Police v Samsonidis [2007] FCAFC 54. That proceeding involved an earlier application by the applicant in which he sought from the AFP the material supplied to Mr Livanis and the telephone intercepts which formed the basis of Mr Livanis' evidence in Greece. Ultimately the applicant gained access to that material from the court file in Greece. 21 In that case Jessup J explained the relevant structure of the TIA Act in the following passage ([48] and [49]): "Relevantly to the present case, the purpose of the TIA Act is, as stated in the preamble, "to prohibit the interception of, and other access to, telecommunications except where authorised in special circumstances". Chapter 2 of the TIA Act deals with the matter of the interception of telecommunications. It commences with s 7(1) , which contains a sweeping prohibition. The balance of the chapter is largely concerned with the exceptions to that prohibition. Relevantly to the present matter, there is a pattern in the chapter of providing for an exception, and then limiting the extent to which information obtained as a result of the application of the exception may be used, communicated etc. Thus it may be seen that the area marked out by each exception is tightly defined and guarded. Each seepage of information beyond any such area should rightly be regarded as a failure to achieve the object to which the preamble refers, and which is given practical expression in s 7(1) and the "special circumstances" to which subsequent provisions of Chapter 2 relate. In my view, both the nature of the subject matter of, and the detailed provisions in, the TIA Act bespeak the appropriateness of a court showing particular deference to the terms in which the legislature has chosen to express itself. It is those terms which should, save in a very clear case, be treated as embodying legislative purpose. Relevantly to the present matter, I can think of no reason why the purpose of the legislation should be seen as anything other than preventing the communication, use etc of lawfully intercepted information save in the specific circumstances for which the TIA Act itself provides. Section 63 operates subject to Part 2 - 6 , in which words I discern a purpose that only the provisions of that part should qualify the otherwise absolute prohibitions set out in the section itself." 22 It was accepted by the applicant that the interception of the telephone conversations which had occurred and which were the subject of Mr Livanis' evidence in Greece and which were contained in the material sent to Greece was lawful. What was in issue was the lawfulness of the further communication of the intercepted telephone conversations after they were intercepted and recorded. 23 Section 7 of the TIA Act provides: "(1) A person shall not: (a) intercept; (b) authorize, suffer or permit another person to intercept; or (c) do any act or thing that will enable him or her or another person to intercept; a communication passing over a telecommunications system. (2) Subsection (1) does not apply to or in relation to [a number of specified circumstances] ." Section 63 of the TIA Act provides: "(1) Subject to this Part, a person shall not, after the commencement of this Part: (a) communicate to another person, make use of, or make a record of; or (b) give in evidence in a proceeding; lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1). (2) Subject to this Part, a person must not, after the commencement of this subsection: (a) communicate interception warrant information to another person; or (b) make use of interception warrant information; or (c) make a record of interception warrant information; or (d) give interception warrant information in evidence in a proceeding." As I have noted earlier, it was accepted by the applicant that the intercepted telephone conversations were "lawfully intercepted information". 24 Section 67(1) of the TIA Act provides: "An officer or staff member of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of the following: (a) lawfully intercepted information other than foreign intelligence information; (b) interception warrant information." The expression "permitted purpose" is defined in s 5 , in relation to an interception agency (which includes an agency and the AFP), an eligible Commonwealth authority or an eligible authority of a State, as meaning, inter alia : "...a purpose connected with ... an investigation by the agency or eligible authority of a prescribed offence". A prescribed offence includes a serious offence, as defined, against the laws of the Commonwealth or a State. 25 Section 74(1) of the TIA Act provides: "A person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding." 26 Section 5B(1)(h) of the TIA Act provides that a reference in the Act to an "exempt proceeding" is a reference to, inter alia : "...a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to a criminal matter (within the meaning of that Act) that concerns an offence, against the laws of the foreign country that made the request resulting in the proceeding, that is punishable by imprisonment for life or for a period, or maximum period, of at least three years." 27 I turn to relevant provisions of the Mutual Assistance Act. Section 7(1) provides that "Subject to this section, this Act applies to all foreign countries". Relevantly, in relation to one of the submissions raised by the Attorney-General, s 7(3) provides: "If the regulations provide, in accordance with subsection (2), that this Act applies to a foreign country subject to a mutual assistance treaty, then: (a) if the treaty relates wholly to the provision of assistance in criminal matters this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country; or (b) if the treaty relates in part to the provision of assistance in criminal matters this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters." 28 The Mutual Assistance in Criminal Matters (Greece) Regulations 2004 provide in reg 4 that the Mutual Assistance Act: "... applies to Greece subject to the Treaty between Australia and the Hellenic Republic on Mutual Assistance in Criminal Matters done at Athens on 4 July 2002, a copy of the English text of which is set out in Schedule 1." Article 1 of the Treaty provides: "The Contracting Parties undertake to afford to each other, in accordance with the provisions of this Treaty, the widest measure of assistance in connection with investigations or proceedings brought in respect of offences the punishment of which at the time of the request for assistance falls within the jurisdiction of the Requesting State, including the supply of evidence for the proceedings." Article 9 of the Treaty provides: "PROTECTING CONFIDENTIALITY AND RESTRICTING USE OF EVIDENCE AND INFORMATION 1. The Requested State, if so requested, shall keep the application for assistance, the contents of a request and its supporting documents, and the fact of granting of such assistance, confidential. If the request cannot be executed without breaching confidentiality, the Requested State shall so inform the Requesting State which shall then determine whether the request should nevertheless be executed. 2. The Requesting State, if so requested, shall keep confidential information and evidence provided by the Requested State, except to the extent that the evidence and information is needed for the investigation and proceeding described in the request. 3. The Requesting State shall not use information or evidence obtained, nor anything derived from either, for purposes other than those stated in the request without the prior consent of the Requested State."