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Greenleaf, Graham --- "Johns v Australian Securities Commission" [1994] PrivLawPRpr 5; (1994) 1(1) Privacy Law & Policy Reporter 10

Johns v Australian Securities Commission

High Court of Australia, Brennan, Dawson, Toohey, Gaudron and McHugh JJ, 13 October 1993 (1993) 116 ALR 56

Breach of confidence; statutory powers to obtain information; statutory obligation of confidence; Australian Securities Commission Act 1989 (Cth), s127(4)(b); information entering ''public domain'

Natural justice opportunity to object to disclosure

J was the managing director of 22 companies comprising the Tricontinental group at the time of its collapse. A Royal Commission was appointed by the Victorian government to inquire into its affairs. The Australian Securities Commission (ASC) was also investigating the affairs of Tricontinental. The ASC made available to the Royal Commission the services of M, who became Director of Investigations for the Royal Commission. The ASC delegated to M the powers and functions of the ASC under Pt 3 of the Australian Securities Commission Act 1989 (Cth) (the Act). J was required to appear before M and answer questions concerning the affairs of Tricontinental on a number of occasions. Transcripts were made of the examinations, which were in private. The transcripts were subject to s127(1) of the Act which provided that the ASC ''shall take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers'. s127(4)(b) provided that

''where the Chairperson is satisfied that particular information... will enable or assist a government, or an agency, of a State or Territory, to perform a function or exercise a power ... the disclosure of the information to the agency or government by a person whom the Chairperson authorises for the purpose shall be taken to be authorised use and disclosure of the information'.

s25(3) of the Act provided that the ASC ''may, subject to such conditions (if any) as it imposes, give to a person a copy of a written record of any examination'. M, purporting to exercise delegated powers under s25(3), gave transcripts of J's examinations to the Royal Commission, together with written permission to the Commission to use the transcripts in a public hearing. When the transcripts were tendered at the public hearings, the Royal Commission made copies available to media representatives including journalists from the Sydney Morning Herald and Weekly Times (sixth respondent) and Australian Broadcasting Commission (seventh respondent), and details were subsequently published in the media.

J sought orders in the Federal Court restraining further publication by the media respondents. Heerey J dismissed J's action, and the Full Court of the Federal Court by majority (Black CJ and van Doussa J; Davies J dissenting) dismissed J's appeal. J's special leave to appeal to the High Court was granted (a) to attack the validity of M's decision to release the transcripts to the Royal Commission under conditions which allowed general publication; and (b) to argue for consequent relief if any of M's decisions were invalid.

Held, allowing the appeal in part:

1. Per Brennan, Dawson, Gaudron and McHugh JJ (Toohey J dissenting): A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The person obtaining information in the exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature (Marcel v Commissioner of Police [1992] Ch 225; Morris v Director of the Serious Fraud Office [1993] 3 WLR 1 approved).

Such a duty is a duty imposed by statute, not by equity, but the equitable remedy of injunction is available in appropriate cases to enforce such a duty against a public authority. The confidentiality of the information contained in the transcripts was thus amenable to protection by injunction where its use or disclosure was not authorised by statute.

2. Per Brennan, Dawson, Toohey, Gaudron and McHugh JJ: s127(4)(b) did give authority to the ASC to disclose the transcripts to the Royal Commission under conditions which allowed general publication.

3. Per Brennan, Dawson, Gaudron and McHugh JJ (Toohey J dissenting): The rules of natural justice required that the exercise of the authority under s127(4)(b) should only have been made after J was given a formal opportunity to object to such disclosure. There seems to have been no exigency warranting a failure to give him such an opportunity. A declaration should be made that the decision to disclose was invalidly taken for failure to accord J such an opportunity (Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 followed).

Per Brennan, Dawson, and Gaudron JJ: J's prima facie right to insist upon the maintenance of confidentiality of the transcripts supports the natural justice requirement.

Per McHugh J: J's interest in his reputation supports the natural justice requirement.

4. Per Brennan, Dawson, and Toohey JJ (Gaudron and McHugh JJ dissenting): No obligation of confidence was imposed on the sixth and seventh (media) respondents either by equity or the Act because the transcripts were tendered in public proceedings of the Royal Commission and therefore became part of the public domain.

Per Brennan J: When the proceedings of a court, tribunal or commission created by statute or in exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, information published in those circumstances enters the public domain by a lawful gate.

Per Gaudron J (dissenting): Whatever the position with judicial proceedings, it is not apparent that a Royal Commission is in the same position as a court. Alternatively, the proceedings may only have passed into the public domain of Victoria.

Per Gaudron and McHugh JJ (dissenting): The issue of whether the information retained its confidential character in the hands of the media organisations should be returned to the Federal Court to determine.

Per Brennan, Dawson, and Toohey JJ (Gaudron and McHugh JJ not deciding): No relief is available under s16(1)(d) of the ADJR Act

Graham Greenleaf Next issue includes: Austen v Ansett Transport Industries (Operations) Pty Ltd (Federal Court of Australia).


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