Case: Kizon v Palmer (1997) 72 FCR 409
Outcome: followed
Mr Samsonidis' first submission is that s 63 of the TIA Act does not apply to lawfully intercepted information that has been published. He relies on the decision of the Full Court in Kizon v Palmer (1997) 72 FCR 409. That case concerned 'designated warrant information', which at the relevant time was defined in s 6EA of the TIA Act as being various information connected with a warrant issued under that Act. As with 'lawfully obtained information', s 63 generally prohibits the communication of 'interception warrant information' and, in its earlier form, prohibited the communication of 'designated warrant information'. 19 The applicant in Kizon v Palmer was aware of 'designated warrant information' that was to be used against him in a drug offence trial. He was aware of it because it was contained in an open affidavit, filed in proceedings to which he was a party. Lindgren J, with whom Jenkinson and Kiefel JJ agreed, said that a purposive construction of 'designated warrant information' was required and he referred to s 15AA(1) of the Acts Interpretation Act 1901 (Cth). He continued, at 434 435: "A purposive construction is necessary to avoid absurdity. It would be absurd that the prohibitions in s 63 should continue to apply to information of a kind referred to in the definition of 'designated warrant information' once that information is in the public domain by, for example, having been given in evidence publicly in a prosecution. There is no provision in Pt VII of the TI Act which expressly permits further divulging of designated warrant information which has been publicly given in evidence in a prosecution, yet according to a non-purposive construction, the prohibition would prevent a reporting of the evidence. This result cannot have been intended. Specific support for a purposive approach is found in the text of the definition of 'designated warrant information' itself. The opening words of par (b) of the definition, 'any other information that is likely to enable the identification of', suggest that par (a) is concerned with information about the fact that a TI warrant was or will be applied for (subpar (i)), was issued (subpar (ii)), existed or exists or did not or does not exist (subpar (iii)), or expired or will expire (subpar (iv)), which will enable identification of that which was not previously identified, namely, the particular telephone service in question or the particular person specified in the warrant as a person using or likely to use that service (see ss 45 and 46 of the TI Act). Finally, there is authoritative support for a purposive approach to the construction of Pt VII found in John Fairfax v Doe at 87E (Gleeson CJ) and Green v The Queen at 426 428 (Franklyn J)." 22 A further distinction between the two concepts is to be found in their treatment in s 63, the full text of which I have set out above at [12]. Curiously, the prohibition on communication is expressed differently for each concept. For 'lawfully intercepted information' a person shall not communicate it in the relevant circumstances, whereas for 'interception warrant information' a person must not communicate it. Nothing appears to turn on this difference. The two sub-sections of s 63 prohibit the same four acts, namely the communication of, making use of, making a record of and giving in evidence, either 'lawfully intercepted information' in the case of sub-section (1) or 'interception warrant information' in the case of sub-section (2). However, the two sub-sections are organised differently. It is almost as if the drafter chose to adopt different formulations in order to avoid repetition. If that is the case, it is unfortunate; where two concepts are intended to be treated identically in legislation, the preferable course is to apply identical language to them. At any rate, I can see no presently material difference between the treatment of 'lawfully intercepted information' and 'interception warrant information' and so the decision in Kizon v Palmer must apply equally to the former. 24 Mr Samsonidis submitted that there are two purposes of the TIA Act . A number of cases have held that "[t]he fundamental objective of the [TIA] Act is to protect the privacy of communications passing between users of telecommunications systems": Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 297 per Sackville J; see also Brown v Commissioner of Australian Federal Police (1988) 83 ALR 477 at 480; Edelsten v Investigating Committee (NSW) (1986) 7 NSWLR 222 at 229. This purpose is evidenced by s 7(1) which provides that telecommunications are not to be intercepted. Subsequent sub-sections provide exceptions to that general position. The second purpose is to assist law enforcement by allowing the contents of certain conversations to be intercepted and used as evidence: Kizon v Palmer (1997) 72 FCR 409 at 442. In a more general sense, the purpose of the TIA Act is to strike a balance between, on the one hand, allowing law enforcement authorities to have access to important information and, on the other, protecting the privacy of members of the public. It does this by providing for a general prohibition on the interception of telecommunications and then providing narrow exceptions. 25 The respondent submits that Kizon v Palmer (1997) 72 FCR 409 does not apply to this case because it is relevantly distinguishable. The first point of possible distinction is that in Kizon v Palmer , the 'designated warrant information' had been published in Australia, whereas in this case it is alleged to have been published in Greece. I do not think anything turns on this distinction. The relevant purpose to be considered here is the law enforcement purpose. The reason why the Full Court in Kizon v Palmer found that it would be absurd to maintain the s 63 prohibition was that once information is public there is no purpose to be served in attempting to keep it confidential. This reason is of equal force whether the publication is in Australia or elsewhere. 26 The next point of possible distinction is the nature of the publication. In Kizon v Palmer , the authority that had gathered the 'designated warrant information' had chosen to publish it in open court. Here, any publication to Mr Samsonidis has been by the DEA and not by the respondent. In my view this is not a relevant distinction. Assuming the DEA officer's evidence to be correct, the respondent has published information to the DEA. Whether the DEA has breached s 63 of the TIA Act is not an issue before the Court; if the respondent has concerns about the way the DEA has used the information, that is a matter between them. What matters for present purposes is that the information has been published and that publication has come to the attention of Mr Samsonidis. It is this that demands the application of the purposive approach referred to in Kizon v Palmer . 27 The final point of distinction is related to the difference between the 'publication' evidence in the two cases. In the present case there is a paucity of evidence as to the circumstances in which the alleged conversation was adduced in court in Athens. Mr Livanis, the DEA agent, gave evidence to an Examining Magistrate, which was recorded in a Report, a translation of which is before the Court. Mr Livanis deposed that information concerning Mr Samsonidis came to his agency from "the Australian authorities". The DEA then conducted an investigation and determined that Mr Samsonidis and two others were said to be the heads of a drug network. The DEA then "contacted the Australian authorities to release the police records" of those three, "an action which they performed". Further on in the Report it is said that "On 2/3/2006, after the legal, according to Australia laws, tapping of Samsonidis' phone they heard at eleven o'clock at night Australian time, namely three pm Greek time, when Skouras contacted Samsonidis by phone and they told me that the two of them spoke in a foreign language between them, obviously in Greek". It is not clear who precisely the word 'they' in the above passage is intended to refer to. 28 It is evident from the Report that a conversation between Mr Samsonidis and a Mr Skouras was tapped (which I understand to mean was intercepted) and that the DEA was aware of the contents of that conversation. It is not clear that a transcript was made of the conversation, or by whom the conversation was intercepted. The respondent has neither confirmed nor denied that it is in possession of 'lawfully intercepted information'. All of this must be contrasted with the position in Kizon v Palmer , where the evidence was perfectly clear that the 'designated warrant information' had been referred to in an open affidavit filed in Australian court proceedings. 29 Because of the nature of the relief sought to which I will come in due course it is not necessary to resolve all the evidential issues disclosed by what is recorded at [27] and [28]. In particular, I do not need to decide whether the respondent did in fact intercept a telephone conversation involving Mr Samsonidis. The uncontested evidence of Mr Samsonidis' solicitor is that reference was made in a Greek court to what was said to be an intercepted communication involving Mr Samsonidis. How publicly this evidence was given is not clear, but I do not think this matters. The purposive approach mandated by Kizon v Palmer does not apply only where there has been publication to the world at large. That would lead to just as unjustified a result. The mischief in a non-purposive approach that was recognised by Merkel J in Carmody v MacKellar is that a person who knows his communication to have been intercepted could not have access to the evidence of that communication that was needed to challenge its legality. Similarly, the mischief in the non-purposive approach in Kizon v Palmer is an accused person not having access to information that is to be used against him in criminal proceedings in order that he may rebut that information. 30 The purposive approach means, at the least, that it cannot be the intention of the legislature that a person to whom 'lawfully obtained information' is published cannot use that information either to challenge the legality of its being obtained or to defend himself against any allegations made as a result of that information. In the latter case, such an interpretation would run contrary to the well-established principles of justice and fairness that require prosecutors to disclose materials to defendants: see R v Reardon [2004] NSWCCA 197 at [46] [55] per Hodgson JA; R v Ulman-Naruniec [2003] SASC 437 at [136] [146] per Sulan J. In circumstances where as may be the case here publication has not been to the world at large, s 63 of the TIA Act may still prohibit dealings that involve publication of 'lawfully intercepted information' to those not already aware of it. In this case, Mr Samsonidis has had published to him the purported fact that 'lawfully intercepted information' concerning him has been obtained. An interpretation that denies him access to that 'lawfully obtained information' would be absurd and, on the authority of Kizon v Palmer , such an interpretation must be rejected.