Criminal Justice Commission v News Ltd & Anor [1994] QSC 7

IN THE SUPREME COURT OF QUEENSLAND No. 27 of 1994 Brisbane Before Mr Justice Dowsett ~; [Re: King & Ors] BETWEEN: CRIMINAL JUSTICE COMMISSION Plaintiff AND: NEWS LIMITED First Defendant AND: MADONNA KING Second Defendant REASONS FOR JUDGMENT- DOWSETT J. Judgment delivered 21/01/1994 Counsel: Solicitors: Hearing Dates: Mr Callinan Q.C., with him Mr Favell for the Plaintiff Mr Cooper for the Defendants Mr Dunphy for the Acting Attorney-General Official Solicitor of the Criminal Justice Commission for the Plaintiff Blake Dawson Waldron for the Defendants Crown Solicitor for the Acting Attorney- General 12th and 13th January, 1994 -- 1 of 37 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before Mr Justice Dowsett [Re: King & Ors] BETWEEN: CRIMINAL JUSTICE COMMISSION NEWS LIMITED MADONNA KING No. 27 of 1994 Plaintiff First Defendant Second Defendant REASONS FOR JUDGMENT - DOWSETT J. Judgment delivered The first defendant is the publisher of the "Australian" and "Weekend Australian" Newspapers. The second defendant is an employee of the first defendant. It is rather more difficult to describe the plaintiff, but for present purposes it is necessary that I do so. The plaintiff is a body corporate established pursuant to the Criminal Justice Act 1989. The plaintiff shall, according to s. 2. 14 :- -- 2 of 37 -- 2 "(a) Continually monitor, review, co-ordinate and, if the Commission considers it necessary, initiate reform of the administration of criminal justice; (b) Discharge such functions in the administration of criminal justice as, in the Commission's opinion, are not appropriate to be discharged, or cannot be effectively discharged, by the Police Force or other agencies of the State." Subs.2.14(1) then charges the plaintiff as follows:- "In discharging its functions the Commission shall - (a) Wherever practicable, consult with persons or bodies of persons known to it to have special competence or knowledge in the area of the administration of criminal justice concerned, and seek submissions from the public; and (b) In its report thereon, shall present a fair view of all submissions and recommendations made to it on the matter in relation to which it is discharging its functions, whether such submissions and recommendations are supportive of, or contrary to, the Commission's recommendations on the matter." Subs.2.14(2) provides:- "Subject to s.2.18, the Commission shall report to the Parliamentary Committee - (a) On a regular basis, in relation to the Commission's activities; (b) When instructed by the Parliamentary Committee to do so with respect to that matter, in relation to any matter that concerns the administration of criminal justice; (c) When the Commission thinks it appropriate to do so with respect to that matter, in relation to any matter that concerns the administration of criminal justice." S. 2.15 confers specific "responsibilities" upon the plaintiff, involving in some cases, the obligation to "report", without identifying to whom such report is to be provided. Included in such responsibilities are:- (a) the acquisition and maintenance of appropriate resources, skill, training and leadership for the efficient administration of criminal justice; ' r -- 3 of 37 -- 3 (b) monitoring and reporting on the use and effectiveness of investigative powers in relation to the administration of criminal justice; (c) monitoring and reporting on the suitability, sufficiency and use of law enforcement resources and the sufficiency of funding for law enforcement and criminal justice agencies, including the offices of the Director of Prosecutions and of the Public Defender; (d) overseeing criminal intelligence matters and managing criminal intelligence with specific significance to major crime, organised crime and official misconduct; (e) researching, generating and reporting on proposals for reform of the criminal law and the law and practice relating to enforcement of or administration of criminal justice, including assessment of relative initiatives and systems outside the State; (f) to the extent that such functions cannot be effectively discharged by the police or other agencies of the State, research and co-ordination of criminal law reform, witness protection, investigation of official misconduct and investigation of organised crime; (g) monitoring the performance of the Police Force; (h) issuing policy directives to the Commissioner of Police; (i) overseeing the reform of the Police Force; (j) reporting regularly on the effectiveness of the administration of criminal justice; (k) reporting to the Legislative Assembly on the implementation of the (Fitzgerald) Report; (1) taking such action as the Commission considers to be necessary or desirable pertinent to the administration of criminal justice. Section 2.18 provides:- "(1) Except as is prescribed or permitted by s.2.19 a report of the Commission, signed by its Chairman, shall be furnished - (a) to the Chairman of the Parliamentary Committee; (b) to the Speaker of the Legislative Assembly; and -- 4 of 37 -- 4 (c) to the Minister. (2) The Commission may furnish a copy of its report to the principal officer in a unit of public administration who, in its opinion, is concerned with the subject matter of the report. ( 3) If a report is received by the Speaker when the Legislative Assembly is not sitting, he shall deliver the report and any accompanying document to the Clerk of the Parliament and order that it be printed. (4) A report printed in accordance with sub-section (3) shall be deemed for all purposes to have been tabled in and printed by order of the Legislative Assembly and shall be granted all the immunities and privileges of a report so tabled and printed; (5) A report received by the Speaker, including one printed in accordance with sub-section (3), shall be tabled in the Legislative Assembly on the next sitting day of the Assembly after it is received by him and be ordered by the Legislative Assembly to be printed. (6) No person shall publish, furnish or deliver a report of the Commission, otherwise than as prescribed by this section, unless the report has been printed by order of the Legislative Assembly or is deemed to have been so printed. (7) This section does not apply to an annual report of the Commission referred to in s.7.10." Section 2.19 provides:- "(1) A report of the Commission relating to- procedures and operations of any Court of the State; procedures and practices of the administrative offices of any Court shall not be furnished as prescribed shall be furnished - Registry or of the State, by s.2.18 but (a) to the Chief Justice of the State, if the report deals with matters pertinent to the Supreme Court; (b) (ba) (c) (2) Notwithstanding any other prov1s1on of this Act, if the Commission is of the opinion that information in ' ' -- 5 of 37 -- 5 its possession is such that confidentiality should be strictly maintained in relation to it - (a) the Commission need not make a report on the matter to which the information is relevant; or (b) if the Commission makes a report on that matter it need not disclose that information or refer to it in the report." The plaintiff is, in effect, a combination of a number of different agencies including:- (a) law reform commission; (b) police force; (c) auditor; (d) management consultant; (e) staff recruiter and trainer. The Commission also fosters Misconduct Tribunals established pursuant to Division 5 of Part II of the Act, adding a quasi-judicial function to its repertoire. These activities involve an unusual combination of research, intelligence- gathering and assessment, law enforcement and quasi-judicial functions. Some of these functions are appropriately conducted in public. Others are more appropriately conducted in private. Obviously, the Commission is a very powerful body. The Act makes provision for supervision of the Commission by the Parliamentary Criminal Justice Committee. This is an "all parties" committee, having as its functions:- (a) to monitor and review the discharge of the functions of the Commission as a whole and of the Official Misconduct Division in particular; (b) to report to the Legislative Assembly on matters pertinent to the Commission, including the discharge of its functions and exercise of its powers; -- 6 of 37 -- 6 (c) to examine the annual report and other reports of the Commission and report to the Legislative Assembly thereon; (d) to report on any matter pertinent to the Parliamentary Committee's function referred to it by the Legislative Assembly; (e) to participate in the constitution of the Commission and removal of Commissioners; (f) to review the activities of the Commission during the period of appointment of the Committee and to report to the Legislative Assembly and to the Minister administering the Act as to further action which should be taken in relation to the Act or the functions, powers and operations of the Commission. It is no doubt intended that the Parliamentary Committee facilitate supervision of the plaintiff by Parliament itself. Apart from participation in appointment of members of the plaintiff and their removal and requesting reports on particular subjects, the Parliamentary Committee has no positive function other than to monitor, review and report. There is a tendency to assume the existence of an hierarchical command structure with Parliament at the top, the plaintiff at the bottom and the Parliamentary Committee in the middle, but this is not what is contemplated by the Act. The Parliamentary Committee is not an intermediate commander; it is rather a committee assisting Parliament. It is also inaccurate to characterise the relationship between Parliament and the plaintiff as that of commander and subordinate. The plaintiff is only subject to Parliament to the extent to which it is affected by legislation and the availability of funds, although both Parliament and the Parliamentary Committee have roles in appointing and/or removing members of the plaintiff. -- 7 of 37 -- 7 I have spent some time in outlining the structure prescribed by the Act because a reader may only understand some of the issues falling for resolution in this case and my approach to their resolution if he or she understands this very unusual structure. In particular, it is important to keep in mind the wide variety of different functions which the plaintiff has, the inevitable secrecy attaching to some of those functions, the highly public nature of other functions and that the plaintiff is not a government department in any sense, although one would normally describe its functions as governmental. For the moment, the only other section of the Act to which I should refer is s.6.7. Prior to 10 December, 1993 that section provided as follows:- " ( 1 ) Any Commissioner or officer of the Commission who wilfully discloses, except for the purposes of the Commission, or of this Act, information that has come into the possession of the Commission, or ' the Commissioner or officer in the course of discharging a function or exercising a power or authority under this Act, or fOr the purposes of this Act, commits an offence against this Act. (2) A member of the Parliamentary Committee who wilfully discloses information that has come to his knowledge from the Commission because he is a member of the Committee, except where - (a) the disclosure is in discharge of a function of the Committee under this Act; or (b) the information is contained in a report of the Commission that has been ordered by the Legislative Assembly to be printed or is deemed to have been so ordered, commits an offence against this Act." The section was amended with effect from 10 December, 1993. It now provides:- "(1) Subsection (2) applies to- -- 8 of 37 -- 8 (a) a Commissioner; or (b) an officer of the Commission; or (c) a person engaged by the Commission under section 2.55 (Engagement of services). (2) A person must not wilfully disclose information that has come to the person's knowledge because the person is or was a person to whom this subsection applies unless the information is disclosed for the purposes of the Commission or of this Act. Maximum penalty - 85 penalty units or imprisonment for 1 year. (3) A person must not wilfully disclose information that has come to the person's knowledge from the Commission because the person is or was a member of the Parliamentary Committee unless - (a) the disclosure is in the discharge of a function of the committee under this Act; or (b) the information is contained in a report of the Commission that has been ordered by the Legislative Assembly to be printed. Maximum penalty - 85 penalty units or imprisonment for 1 year." For present purposes, the amendment makes no difference to the effect of the section. The plaintiff has obviously decided that in order to fulfil many of its functions, a high degree of publicity and public education is necessary. The affidavit of Robert James Todd sworn on 13 January, 1994 reveals something of this aspect of the plaintiff's operation. The Annual Report for 1992/93 presents the operation of the plaintiff in a very favourable light, as one would expect. There are various accounts of its activities, some of which are very specific and quite detailed and others more general in nature. In Appendix 7, there is a list of the lectures, addresses and presentations made by CJC officers in the course of the year. Numerous members of the staff of the -- 9 of 37 -- 9 plaintiff have taken the opportunity to speak to a wide variety of groups about many subjects coming within the plaintiff's ambit of operation. Topics having an apparent immediate relationship to issues raised in these proceedings which were the subject of such lectures include:- (a) Chinese organised crime; (b) Co-operation - the key to success in major investigations: inter-agency co-operation; (c) Corruption prevention; (d) Criminal intelligence computer system; (e) Defining organised crime; (f) Extent of organised crime; (g) Financial investigations and analysis; (h) Media and the criminal justice system; (i) Money laundering; (j) Politisation (sic) of crime crime in the media; (k) Proceeds of crime; (1) Professionalism in the criminal justice system- its impact on personnel, conduct and performance; (m) Role of the CJC; (n) Security, privacy and the intelligence function; (o) The media - friend or foe. I should say that some of the addresses were given to groups which may have been of select composition. In addition to the Annual Report, Mr Todd says that between April, 1990 and September, 1992, the plaintiff regularly provided journalists with reports on aspects of its operation, including witness protection, electronic and physical surveillance, -- 10 of 37 -- 10 complaints received, inquiries conducted by State and Federal law enforcement agencies, proceeds of crime and as to bodies jointly participating in activities with the plaintiff. Counsel for the defendants said that with the change in identity of the Chairman of the plaintiff on 30 November, 1992, there was a change in policy as to such disclosure. I do not know if this is so or not. A number of documents emanating from the plaintiff are exhibited to Mr Todd's affidavit. Two of them are obviously press releases, but the others appear to be copies of reports provided to the Premier by the then Chairman of the plaintiff. Mr Todd implies that all such copies were provided to journalists by the plaintiff. This is demonstrably the case in at least one instance because the report was accompanied by a letter from a lady called Marion Smith, said to be the media liaison officer of the plaintiff. This letter, dated 21 April, 1992, enclosed a copy of the report to the Premier for March, 1992. The report went to the Premier on 16 April, so disclosure to the media was virtually contemporaneous. I will refer in detail to only two of these documents for the present but may refer to some of the others at a later stage. In a document headed "Media Release" and dated 16 December, 1992, apparently emanating from Ms Smith, a number of topics were discussed. Firstly, the plaintiff disclosed an intention to participate in an Organized Crime Task Force in conjunction with the police, targeting specific organised crime groups. Secondly, the plaintiff disclosed that it was operating in, "multi- disciplinary teams including police investigators, lawyers and -- 11 of 37 -- 1 1 financial analysts." There was reference to the plaintiff's Proceeds of Crime unit. Targets for investigation (which were already subject to preliminary investigation by the plaintiff's Intelligence and Official Misconduct Divisions) included Italian organised crime, Chinese organised crime, Japanese organised crime and outlaw motorcycle gangs. Particular reference was made to the "Yakuza", apparently a Japanese criminal organisation with, "possible connection to Japanese business, tourism and investment". Outlaw motorcycle clubs were said to be, "well represented in Australia and Queensland", and several were said to have connections with "mother clubs" in the United States. It was said that these gangs were involved in drug manufacture and distribution, arms trafficking and crimes of violence. The proposed operations were to, "have access to computer support, mobile surveillance, listening devices and the compulsory powers of the Criminal Justice Commission, e.g. the power to summon and examine on oath and to require the production of documents." The undertaking would require, "an understanding of the culture involved; including the language, the organisation, the attitudes of the principal participants, infinite patience and a willingness to commit resources for the long term ... " In a further press release received on 7 February, 1992, the plaintiff disclosed its discovery of, "a major organised crime group responsible for controlling a large proportion of south-east Queensland's heroin trade." The report went on to refer to operations in conjunction with the Australian Federal -- 12 of 37 -- 12 Police and "two State law enforcement agencies". The fourth paragraph commenced:- "Although reluctant to comment on the Commission's operations, the CJC's Official Misconduct Director, Mr Mark Le Grand, said yesterday that the recent increase in activity by this group was under close scrutiny, and intelligence and investigative techniques were in place." One would expect such a coy reference to Mr Le Grand's reluctance to comment in a report of a press conference or interview. It is a very curious device to find in a press release by the plaintiff, Mr Le Grand's employer. The most likely inference is that the plaintiff hoped that the media would find it convenient to adopt the whole or a substantial part of the release, thus increasing the extent to which the plaintiff was able to control media reporting of its activities. I am not suggesting anything sinister about such conduct, but it reveals a relatively high degree of sophistication in media management. The existence of a media liaison officer also suggests this. Counsel for the plaintiff objected to the receipt of the various documents referred to in Mr Todd's affidavit, however I now overrule that objection. I consider that these documents are relevant to the questions of confidentiality and public interest, which matters I will address later in this judgment. Having outlined the statutory structure and functions of the plaintiff and some aspects of its operation, I turn to consider the matters which are the subject of these proceedings. On 28 December, 1993 the defendant published in its newspaper, "The Australian" an article written by the second defendant under the heading, "Japanese residents questioned in crusade against crime bosses". The following facts emerged from this article:- -- 13 of 37 -- 13 (a) Japanese company directors resident in south-east Queensland are being interviewed by a Japanese interpreter and investigator; (b) Information from AUSTRAC is being used; (c) A special intelligence analyst is probing activities in Queensland connected to Japanese organised crime and in conjunction with the Australian Federal Police, is monitoring the activities of any senior member of Yakuza who visits Queensland; (d) An earlier article in the "Weekend Australian" revealed unlawful conduct, including money laundering and associations between Australian companies and the Yakuza, and pointed to the absence of a national anti-crime strategy; (e) The plaintiff has received information that a high ranking member of Yakuza bought $700,000 worth of gambling chips at an Australian Casino and later cashed them, but left Australia with $100,000 less than the amount brought into the country, according to AUSTRAC records; (f) The Yakuza member is said to have extensive criminal convictions and is now being investigated for money-laundering; (g) Further investigations are being conducted by a joint organised crime task force comprising representatives of the plaintiff and the Queensland Police; (h) There are current investigations into a Japanese personality on the Gold Coast, another person who applied -- 14 of 37 -- 14 for a senior public service position and the possible recruitment of Australian girls for prostitution in Japan. In the "Weekend Australian" for January 1 - 2, 1994 a further article appeared, also written by the second defendant. The headline was, "CJC probes ethnic links to cocaine, heroin". The facts disclosed were:- (a) The plaintiff is investigating South American criminal involvement in cocaine distribution and Romanian and Vietnamese involvement in heroin trafficking in Queensland; (b) The plaintiff and the National Crime Authority are monitoring outlaw motorcycle gangs with chapters in New South Wales, Queensland and the Australian Capital Territory; (c) The plaintiff is monitoring events such as concerts and bike shows organised by outlaw motorcycle gangs in Queensland and developing "informants, profiles and organisational structures of the gangs"; (d) There is a specific investigation into an alleged murder within such a gang, involving an assault upon the victim followed by his being thrown onto a fire; (e) The National Crime Authority has approached, "Queensland investigators to assist in a three - State investigation into links between various chapters of the outlaw ,..,. motorcycle gang groups and a particular member, who is alleged to have been receiving significant profits from crime"; (f) The Australian Bureau of Criminal Intelligence is examining the activities of Romanian community members from a -- 15 of 37 -- 15 national perspective (whatever that may mean), and secret surveillance by the plaintiff of members of the Romanian community, mainly in the south-east corner of Queensland has resulted in several charges and indeed, convictions for serious drug offences; (g) The plaintiff proposes to assess the extent of cocaine distribution within Queensland with a particular emphasis on South American organised crime links; (h) The plaintiff has approached the Queensland Police, proposing an investigation of heroin-trafficking by members of the Vietnamese community; (i) There is concern that the Vietnamese community may have criminal links to the Chinese community in Brisbane; (j) The plaintiff proposes to investigate "total Asian crime in Queensland" in liaison with the Australian Federal Police, the Australian Customs Service and State police; (k) "Through interstate law enforcement intelligence and use of confidential sources, the activities of particular people are now being targeted, including several Vietnamese people believed to be involved in the importation of heroin". On 4 January, 1994 a third article appeared in the "Australian", again written by the second defendant, under the heading, "Secret CJC probe targets vice, police". The facts emerging from that report were:- (a) A secret Queensland investigation is under way into serious allegations that, "Fi tzgerald inquiry vice kings, organised prostitution, police corruption and drug-trafficking have re-emerged"; -- 16 of 37 -- 16 (b) A data base tracing the work patterns and organisation of Queensland prostitutes has been established as part of a covert operation undertaken by the plaintiff; (c) The operation has been under way for more than a year; (d) The plaintiff is investigating allegations of impropriety and criminality involving dangerous drugs against police officers, some of them "senior"; (e) Part of the investigation concerns police in the Logan and Beenleigh areas; (f) The plaintiff has recently prepared, "at least five briefs of evidence against police officers, with charges including official misconduct, forgery, stealing and assault"; (g) In those briefs, there is a recommendation that one officer be charged with five counts of official misconduct. constituted by assaults, spitting and falsely denying such spitting; (h) A second brief recommends misconduct charges against a senior police officer for visiting premises known to be used for prostitution and consorting with prostitutes. The officer is said to have resigned; (i) It is alleged that a police constable supplied cannabis and that another police officer allegedly raped a woman. In the former case, two women have alleged that a police constable threatened them and supplied them with cannabis. The investigation of the rape complaint is being conducted by a representative of the plaintiff and a police officer from the sex offenders squad. -- 17 of 37 -- 1 7 Paul Anthony Roger is the director of the Intelligence Division of the plaintiff. He has sworn two affidavits in which he informs me that the Official Misconduct Division of the plaintiff is investigating, "the suspected unauthorised release of a confidential Commission report completed by the Commission to the Parliamentary Criminal Justice Committee ... for November 1993 to a journalist from 'The Australian' newspaper and the subsequent publication in that newspaper of matters contained in or emanating from that report on 28 December, 1993, 2 January, 1994 and 4 January, 1994." I am told that the Parliamentary Committee meets regularly with officers of the plaintiff and to facilitate these meetings, the plaintiff prepares a report covering the activities of each of its divisions and forwards the report to the Parliamentary Committee prior to each meeting. Mr Roger asserts that some parts of the newspaper articles, "are almost identical in wording to parts of the Commission's report." He also says that the report in question is the only Commission document which records all of the disclosed information (that is the information contained in the articles) and that it is the only document containing some of that information. It is claimed that the report was distributed to the Parliamentary Committee upon a confidential basis. - Mr Roger, in his two affidavits, sets out what he considers to be examples of similarity in subject matter and expression between the newspaper articles on the one hand and the plaintiff's report on the other. For present purposes, I am satisfied that the second defendant must either have had access -- 18 of 37 -- 18 to a copy of the report or to extracts from such a copy, or must have received a substantial oral account of the contents of the report from somebody who had access to it. There is certainly a serious question to be tried with respect to that issue. Mr Roger also informs me that the report contains references to other activities of the plaintiff, including 16 specific operations or investigations, and in particular, that it contains sensitive material relating to:- (a) the presence and use of informants in covert operations; (b) the use of electronic and physical surveillance methods; (c) proposals for indemnification of witnesses; (d) complaints received but not yet fully investigated; (e) strategies in connection with confiscation of profits of crime and proposed action under relevant legislation, and evidence, "which may be used to rebut defence claims in the anticipated trials for the offences for which these restraining orders have been or will be sought"; (f) methods of operation adopted by other law enforcement agencies; (g) resumes and qualifications of recently appointed Commission staff in the investigative area, "particularly in the area of investigation of ethnic crime groups"; (h) status of inquiries being conducted by other law enforcement agencies; (i) bodies and agencies participating in corruption-prevention reviews by the plaintiff; ( j) relationships and agreements between the plaintiff and other agencies such as AUSTRAC; -- 19 of 37 -- (k) details of proposed 19 intelligence strategies being considered; ( 1) the plaintiff's Assessment; contribution to the National Drug (m) activities of the Witness Protection Division, including the number of witnesses currently under protection, the resources utilized in that protection, the services offered and the degree of protection being afforded. Mr Roger asserts concern on the part of other law enforcement agencies at these articles and the possibility that co-operation with overseas agencies may be impaired. Mr Roger considers that these disclosures give, "the impression that the Commission is incapable of keeping information, which is supplied to it by other bodies, confidential and has the potential to affect adversely and incurably the Commission's relationship with other law enforcement agencies." Particular concern is expressed about the reference to AUSTRAC which is, "a clear reference to a particular body which is unique and would be aware of the information contained in the articles. It is possible that the relevant body may be reluctant to provide similar information to the Commission in the future. Mention of the Commission's use of AUSTRAC as part of its investigation also provides details of the Commission's method .,. of operation and is therefore potentially damaging to investigations." As a result of all of this, the plaintiff seeks interlocutory injunctive relief restraining the defendants from publishing or in any other way disclosing the contents of any -- 20 of 37 -- 20 part of the report. Reliance was primarily placed upon the provisions of s.6.7. It was submitted that whoever disclosed the report or its contents to the second defendant was in breach of that section, that the section establishes that all of the information held by the Commission is confidential and that the plaintiff is therefore entitled to injunctive relief as claimed. This application is similar to that made by the Commonwealth in The Commonwealth of Australia v. John Fairfax & Sons Ltd (1980) 147 CLR 39. In that case, the Commonwealth sought to restrain the publication of a book containing various documents relating to Australian defence and foreign policy, the documents being government papers which were at least five years old. The Commonwealth sought to justify an interlocutory injunction upon three bases, namely:- (a) to restrain an actual or threatened breach of the criminal law; (b) to restrain disclosure of confidential information; (c) to restrain breach of copyright. As each of these bases was, to some extent, relied upon before me, I must consider their applicability in the present case. Actual or Threatened Breach of the Criminal Law This cause of action was only indirectly raised in argument, although the appearance of the acting Attorney-General to support the plaintiff's application was probably motivated by concern that his presence would be necessary to success upon this basis. S.6.7 purports to restrain Commissioners, officers of the Commission, and members of the Parliamentary Committee from -- 21 of 37 -- 21 disclosing information. Breach of this section is a criminal offence with a substantial penalty of up to 12 months imprisonment. The section does not purport to render unlawful the conduct of any "external" person who comes into possession of, or acquires knowledge of the contents of a Commission report and discloses such contents. A recipient might, in some circumstances, be a party to the original breach of s. 6. 7 pursuant to s.7 or, perhaps, s.8 of the Criminal Code. However any such misconduct in the present case cannot now be restrained. Further, as Mason J (as his Honour then was) pointed out in The Commonwealth v John Fairfax (at p.SO), an injunction will go to restrain actual or threatened criminal misconduct only in the case of frequently repeated disregard of the law, usually because of an inadequate penalty, or in cases of emergency. His Honour considered that in some circumstances, a statutory provision might be construed as not only prohibiting conduct, but also authorising injunctive relief to facilitate its enforcement. His Honour concluded that s.79 of the Crimes Act did not confer such an entitlement upon the Commonwealth, and s.6.7 also cannot be so construed. The plaintiff is not entitled to injunctive relief upon this basis. Disclosure of Confidential Information Where a private person seeks to restrain the disclosure by ~ another of information confided to the latter by the former, the former must show that the information in question is confidential, that it was imparted so as to impose an obligation of confidence upon the recipient and that any unauthorised use of that information will operate to the detriment of the party -- 22 of 37 -- 22 seeking relief. At p.51 of The Commonwealth v John Fairfax, Mason J. considered the detriment which the executive government must show to justify injunctive relief against the disclosure of information. His Honour said:- "The equitable principle has been fashioned to protect the personal, private and proprietary interest of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles. It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. Accordingly, the Court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected. The Court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality." ,. ' -- 23 of 37 -- 23 The plaintiff submits that it should not be cast in the role of the executive government, that it should be treated as a private citizen seeking to protect the privacy of its own affairs. To state the proposition in this way is to demonstrate its fallacy. The plaintiff is obviously a public authority performing a very important public function. It may well be in the public interest that some aspects of its operation be kept confidential, either for the time being or permanently, but consideration of the public interest cannot be avoided. It is of great importance that the plaintiff's activities be subject to public scrutiny and discussion. In order to justify reliance upon this basis for injunctive relief, the plaintiff must show that disclosure is likely to injure the public interest. Of course, these are interlocutory proceedings, and I am not suggesting that the plaintiff need finally demonstrate any aspect of the case at the present time. However, just as Mason J. proceeded to consider the question of public interest in The Commonwealth v John Fairfax and apparently had reference to some or all of the documents in question, I must similarly assess the public interest in this case. I will return to this aspect at a later stage. The defendants advanced an interesting and, at first glance, compelling argument that it was impossible for the plaintiff to ~ establish that the report should be protected. This was based upon the construction of ss.2.14, 2.15, 2.18 and 2.19 of the Act. The thrust of the submission was that ss.2.14 and 2.15 provide the authority for the plaintiff to report to the Parliamentary Committee and require that it report only in accordance with -- 24 of 37 -- 24 s.2.18. Such a report will, in due course, become public upon its being tabled and printed in accordance with the latter section. For present purposes, I assume that a tabled and printed document is in the public domain. It was submitted that the present report must be a report as contemplated by s.2.14 and so subject to s.2.18. Hence it must be tabled and printed, and therefore no purpose would be served by protecting it. The defendants also relied upon s.2.19 in support of this argument. The section contains two subsections, the first relating to reports concerning courts and the second dealing with confidential information. The two subsections do not seem to be related in any way, except that both deal with circumstances in which the public reporting process is truncated. Subs.(2) excuses the plaintiff from reporting confidential information. The defendants submitted that this strongly implies that any report must be public, confidential information being protected by non-inclusion. This argument assumes that it is not open to the plaintiff to communicate with the Parliamentary Committee other than by statutory report and that wherever the word "report" is used in the Act, it is used as a term of art having a specific meaning. The way in which the Act is drafted points very much in that direction, and the argument is not without appeal, however it pays no attention to the provisions of s.6.7. If the plaintiff may only communicate with the Parliamentary Committee by report and in accordance with s.2.18, then there will be no circumstance in which the obligation of confidentiality imposed upon members of the Parliamentary Committee by subs.6.7(2) can operate, save -- 25 of 37 -- 25 in the very short time between receipt of the report and its tabling in Parliament. S. 6. 7 clearly contemplates members of the Parliamentary Committee receiving information which is, and is to remain confidential. It must therefore follow that the Act contemplates the plaintiff communicating information which is not to be immediately released into the public domain. It also follows that the plaintiff must be permitted to communicate with the Parliamentary Committee other than by report pursuant to s.2.18. It may be arguable that this report is nonetheless a report for the purposes of subs.2.14(2) or s.2.15, and that it should have been submitted in accordance with s.2.18. It is a routine report, prepared and presented pursuant to an established practice, for the purpose of facilitating the discharge by the Parliamentary Committee of its responsibilities. This sounds very much like one of the reports contemplated by s.2.14(2)(a). It is possible that the plaintiff has mistaken its obligations under ss.2.14 and 2.18, and that an appropriate party could compel the present plaintiff to proceed to distribute the report in accordance with s.2.18, however I doubt that the report should be characterized as a report of that kind. Its purpose was the communication of confidential material to the Parliamentary Committee with no intention that it be more widely distributed. Once it is accepted that the plaintiff may communicate confidential material to the Parliamentary Committee other than by a report to which s.2.18 applies, there is no reason why a report intended to be confidential should be characterized as a public report. I reject the submission that the plaintiff may -- 26 of 37 -- 26 not communicate with the Parliamentary Committee on a confidential basis. Infringement of Copyright The plaintiff does not raise this cause of action by its writ, however in the course of argument, some attempt was made to rely upon copyright, and so I must deal briefly with that subject. This was the basis upon which the plaintiff succeeded at the interlocutory stage in The Commonwealth v John Fairfax. In that case, documents were published in full. There has been no such publication in the present case. To justify an allegation of breach of copyright, the plaintiff must show a reproduction, publication or adaptation of the document in question or a substantial part thereof. 'I'hese newspaper articles simply do not fit that description. It is not necessary to consider the availability of a defence of fair dealing for the purpose of reporting news pursuant to s.42 of the Copyright Act. Returning to the question of restraining the disclosure of confidential information, the plaintiff must show, to the extent necessary in interlocutory proceedings:- (a) that the information is confidential; (b) that it was disclosed to the second defendant's source in confidence; and (c) that disclosure is likely to injure the public interest. For present purposes it may be assumed that the effect of s.6.7 is that any disclosure of the plaintiff's information to Commissioners, staff or members of the Parliamentary Committee is made in circumstances of confidence and that the second defendant probably derived her knowledge from a person subject -- 27 of 37 -- 27 to s.6.7. The plaintiff must therefore address the first and third aspects mentioned above. Confidentiality and the public interest in non-disclosure were said to be also established by s.6.7 and by Mr Roger's affidavit. I find that assertion unattractive. Section 6.7 cannot be any more determinative of either question than was s.79 of the Crimes Act in The Commonwealth v John Fairfax. The plaintiff's functions and powers are such that there is great potential for corruption. Public scrutiny of its activities and methods is therefore a most important safeguard against abuse. The mere fact that Parliament has itself established a specific mechanism for supervision does not imply that other, less formal scrutiny should not occur. If anything, the need for such a system of parliamentary scrutiny highlights the importance of all forms of scrutiny in controlling the activities of the plaintiff. In any event, many of the functions of the plaintiff are appropriately, and even necessarily carried out in public. There could be no justification for the assertion that the law reform function, for example, should be performed in private. The overseeing of reform of the Police Force, one might think, is largely a public matter. Reports to the Legislative Assembly upon the implementation of the Fitzgerald Report should be public. Further, as I have demonstrated, the plaintiff has itself identified the importance of public relations and public education in the discharge of its function and has taken a very professional attitude to those matters. Given that the plaintiff has chosen to use so much of its resources in public relations and information distribution, the public interest will probably -- 28 of 37 -- 28 be best served by facilitating scrutiny of the plaintiff's operation, if only to enable an assessment to be made of the reliability and completeness of the plaintiff's own public disclosures. Mr Roger's affidavit causes me to doubt the discernment exercised by the plaintiff in identifying material as being confidential and worthy of protection in the public interest. Primarily, the plaintiff's fears relate to the identification of target groups for investigation and methods of investigation. These are legitimate concerns, but the justifiable degree of concern will vary, depending upon how specific is the identification. That the plaintiff is investigating organized crime is not a confidential matter. That is part of its job. That a particular person is being investigated may be a matter of confidentiality if the fact of investigation has not been disclosed. In considering the public interest, specificity will again be relevant. It may be in the public interest to protect the identity of the subject of a current inquiry, but it may not be in the public interest to suppress the fact that a particular inquiry is in train, without identifying the person involved. Prior general disclosure must also be considered in deciding both questions. Finally, the public may have an interest in knowing that particular misconduct is under investigation so that individual citizens can protect themselves from becoming victims. There would be little solace for the parents of a girl recruited for prostitution in Japan in the fact that she had been recruited whilst the plaintiff was investigating such matters in secret. -- 29 of 37 -- 29 They might well think that had they known of the risk, they might have avoided her recruitment. I turn to the various factual matters in the articles, starting with that of 28 December, 1993. (a) To say that Japanese residents, and in particular company directors, are being investigated against the possibility of involvement with Japanese organised crime cannot be a disclosure of confidential information in light of the press release of 16 December, 1992, ex.RJT 7 to the affidavit of Mr Todd. (b) That the plaintiff acts in co-operation with AUSTRAC can hardly be confidential in view of the reference to that organisation on p.11 of the 1993 report. (c) Monitoring the activities of identified senior Yakuza members visiting Queensland is not confidential in view of mention of the plaintiff's interest in that organisation in the press release. (d) The reference to the Yakuza member in connection with the gambling chips may be sufficiently specific to be confidential. (g) The possibility of a task force involving the plaintiff and the police force can hardly be confidential in view of the disclosures made in the press release. (h) The fact of investigations concerning a Japanese personality on the Gold Coast and a person who applied for a senior public service position are too imprecise to require protection in the public interest, however the reference to the senior public service position is -- 30 of 37 -- 30 identified with more particularity in the report, according to Mr Roger. That the plaintiff is investigating the recruitment of girls for prostitution may be confidential, but it is hard to see how it can be in the public interest that such fact be suppressed. As to the report of 1-2 January, 1994:- (a) the fact of liaison with the National Crime Authority was disclosed in the Annual Report. The investigation of the Romanian community and its association with drug dealing has, according to the article, already resulted in charges and convictions. It is difficult to see how the fact of such investigation can be confidential. (b) Investigation of the Vietnamese community and its possible association with the Chinese community and of "total Asian crime in Queensland'' seems to be a matter of broad policy. There can be no public interest in suppressing such information. (c) Similarly, the intention of .the plaintiff to assess the extent of cocaine distribution in Queensland is little more than one would expect having regard to the plaintiff's charter and the well-known connection between cocaine and South American organised crime. (d) (e) As to investigation of motor bike gangs, the press release dealt specifically with that subject, and there are extensive references to the plaintiff's interest in such groups in the Annual Report. The fact of participation in joint operations with other agencies is disclosed in the Annual Report. -- 31 of 37 -- 31 As to the report of 4 January, 1994:- (a) The continuing pre-occupation of government and newspapers with prostitution, police corruption and drug trafficking is well-kno~n and hardly capable of description as "confidential". (b) That there is a data base tracing prostitutes and their work patterns may be confidential, although given the continuing public interest in this area, it is hardly surprising. It is difficult to see any public interest in suppressing this information. (c) The references to specific allegations against individual police officers could only be confidential if the officers in question had not been advised of the allegations and nobody who had been interviewed about them was likely to disclose the fact. This seems quite unlikely. (d) If the plaintiff has reached the stage of preparing briefs of evidence against individual police officers, it is unlikely that they have not been interviewed. (e) The fact that the officer who is suspected of visiting premises used for the purposes of prostitution has resigned suggests that he is aware of the investigation. (f) Similar comments to those in para.(d) apply to the allegations of rape and supply of drugs. I am not saying that the fact that a person is being investigated may not, under some circumstances, be confidential. Until such time as the subject has been interviewed, it may well be unwise to make any disclosure of the fact of the investigation. However my experience is that such people are -- 32 of 37 -- 32 usually interviewed at a fairly early stage. To establish detriment from disclosure of the fact of such an inquiry, the plaintiff must demonstrate more than that the inquiry is proceeding. The factual matters disclosed in the articles in question are not necessarily the only matters contained in the report and within the knowledge of the second defendant. One is inclined to assume that she would have reported the most newsworthy aspects, but that may not be so. Other aspects of the report may be more sensitive than those which have been reported. I cannot assume that because most of the material disclosed to date is unlikely to be worthy of protection, that other material in the report should not be protected. Mr Roger refers to a number of topics dealt with in the report which, he says, are confidential. A number are obviously likely to be both confidential in the relevant sense and deserving of protection in the public interest. The presence of informants in a continuing investigation where the informants are still in place is obviously one such matter. The current use of electronic and physical surveillance is similarly in that category, as are proposals to indemnify witnesses in order to obtain evidence. Details of allegations received and not fully investigated might be deserving of protection, at least until the subject of the investigation has been interviewed. Possible future applications for restraining orders pursuant 'l' to the Crimes (Confiscation of Profits) Act may be appropriately confidential until such time as the relevant order is obtained, but I can see no basis for protecting evidence which may be used • 4 4 -- 33 of 37 -- 33 to rebut defence claims in anticipated trials. This sounds very much like information which should be made available at committal proceedings in any event. That the plaintiff is concealing such evidence will cause legitimate concern in some quarters. Once again, any claim for protection must be justified on a "case by case" basis. Methods of operation of other law enforcement agencies are not subjects which demand automatic protection in the public interest. There is a genuine public interest in scrutiny of methods used by public authorities. It is only by such scrutiny that inappropriate methods of investigation and operation can be subjected to public censure. No public authority has an absolute entitlement to keep its methods of operation secret, although some methods may be so sensitive as to demand protection~ Resumes and qualifications of the plaintiff's staff are not likely to require protection. The plaintiff has disclosed its use of multi-disciplinary teams. If what is meant by para. 11(g) is that members of ethnic communities may become aware that other members of such communities are employed by the plaintiff, then I do not see that as a matter deserving of protection in the public interest. Similarly, the "status of inquiries" being conducted by other agencies may be confidential, but to justify protection in the public interest would require much more .,. information. The identities of bodies and agencies participating in corruption-prevention reviews should not generally be protected. Knowledge that these bodies are participating in such reviews can only operate as a deterrent to corruption. -- 34 of 37 -- 34 As I have previously pointed out, that the plaintiff co-operates with other agencies and, in particular, AUSTRAC is made clear in the various public documents to which reference has already been made, including the Annual Report. It is surely only the fact of such co-operation which can be of any relevance to a potential subject of investigation. Specific aspects of the arrangements between these bodies may require protection, but I cannot see any basis for a blanket protection of the details of such relationships and agreements. As to details of future "pro-active intelligence strategies" currently being considered by the plaintiff, the extent to which such plans warrant protection depends upon the plaintiff's capacity to demonstrate that it is in the public interest that each be protected. I do not know what is meant by the "National Drug Assessment", and so I am unable to assess the public interest in protection of the extent of the plaintiff's contribution to it. As to the witness protection programme, the various documents to which I have referred give numerous references to that programme, including the number of persons in it at various times and the extent of protection offered. It is probable that individual aspects of this programme are worthy of protection, but in view of previous publicity, a blanket claim for protection cannot be justified. Mr Roger expresses concern that the disclosure of the information in the articles, "gives the impression that the Commission is incapable of keeping information which is supplied to it by other bodies confidential and has the potential to -- 35 of 37 -- 35 affect adversely and incurably the Commission's relationship with other law enforcement agencies." This may well be one of the reasons motivating the plaintiff in seeking relief, but that is not an argument in support of granting the injunction. Whilst it is valid for the plaintiff to pursue such avenues as may be open to it to prevent the disclosure of information, maintaining the image of the plaintiff is not an argument in favour of relief. If the plaintiff is unable to control information entrusted to it, then it is obviously in the public interest that other agencies and the public know as much. I do not suggest that the plaintiff is inept in this way. There are great difficulties lying in the way of anybody who would create a "leak-free" information system in these times when leaks seem to· be almost integral to the operation of government. I say only that the Court should not grant relief simply because it will make the plaintiff look better in the eyes of the law enforcement community. It follows that I am not willing to grant a blanket injunction restraining publication of the contents of the report. I am not satisfied that there is a serious question to be tried as to the confidentiality of the whole of the report, although I suspect that there is such a question for resolution as to some parts of it. I am also far from satisfied that there is a serious question that the public interest demands suppression of the whole report. I am willing to entertain an application for suppression of specific parts of the report. I will adjourn the hearing to enable the plaintiff to prepare submissions in this regard. It -- 36 of 37 -- 36 may be that in determining such an application, it will be necessary for me to have regard to the report, a step which I have not yet undertaken. As I observed in the course of argument, I would prefer that the Court not have access to material which is not disclosed to the defendants. I will hear counsel further as to the appropriate procedure. The plaintiff and the defendants are quite able to organise their affairs without my advice. However, I feel compelled to observe that proceedings such as these are unlikely to enhance community perceptions of any of the participants. For what it is worth, I suspect that the public is very wary of governmental bodies which make blanket claims to secrecy. It is too easy to hide inefficiency and corruption behind such claims. Equally, I suspect that the public is not greatly impressed by claims on behalf of the media to absolute access to all information and to the right to publish witho¥t regard to questions of personal sensitivity or the public interest. The view that publication is always in the public interest is not, I think, generally accepted in our society. -- 37 of 37 --