Restraints on use of information obtained by compulsion

The rule in Home Office v Harman governs the use of documents and information obtained by people generally by various forms of compulsion in litigation: the court rules about interrogatories (a form of statute), Court orders for discovery, witness statements served pursuant to an order to do so.  But when I carefully checked this point a while ago, it seemed clear that the principle had no application outside litigation, the exception being, perhaps, arbitration.

Outside litigation, however, the main source of powers to compel the production of documents and the disclosure of information is statute, and the main repository of them mandarins.  When a mandarin (disguised say as a Commissioner, or an Inspector) obtains information by compulsion, there is an important limit on what the mandarin may do with it.  The important limit is that the information may only be used for the purpose the power of compulsion was bestowed.  This is a proposition which I vaguely knew I had read somewhere, but which has several times eluded me when I tried to look it up.  But now it’s back in my quiver, courtesy of Apache Northwest Pty Ltd v Agostini [2009] FCA 534.  The relevant High Court authority is Johns v Australian Securities Commission (1993) 178 CLR 384; [1993] HCA 56, which is posted about separately here.

Sometimes, as in Apache, the purpose for which the power may be exercised is stated in the provision providing for the power.  Other times it has to be discerned by a reading of the provision in its statutory context.  In Apache, the specific provision was rather unhelpfully general, however, stating that the power could only be used for the purposes of the Act in which it was found.  You can kind of hear the despondency in Justice McKerracher’s voice when he noted that the Act had no purposes provision.

Apache arose out of WA’s equivalent of our Longford incident: a gas plant operated by Apache exploded and Westralians had cold showers for a long time afterwards. The Varanus Island gas plant was one bit of engineering, but different bits of it were regulated by different statutes, depending on whether they were in State or Commonwealth waters, for example. State petroleum inspectors swooped in from mid-2008 and scooped up documents under s. 63 of the Petroleum Pipelines Act, 1969 (WA).  The inspectors held the office of Inspector personally.

This year, the Commonwealth and WA governments jointly set up an inquiry into various aspects of upstream petroleum operations (including Varanus Island, the main focus of the inquiry). Two panel members who possessed no powers of compulsion were appointed. Without Apache’s consent, the State of WA (presumably having been reported to appropriately by the inspectors) provided to the panel members the documents Apache had produced under the inspectors’ compulsion.

Justice McKerracher held that was illegal because some of the State’s purposes in doing so were alien to the purposes for which the inspectors had compelled the documents, even though most of the purposes for collection and the purposes of the enquiry to which they were donated were common.  The State’s purpose was to assist the joint State / Commonwealth inquiry, but its terms of reference included matters which had nothing to do with the Petroleum Pipelines Act, 1969, or the Varanus Island explosion (such as the cyclone emergencies which affected two ships involved in upstream petroleum supply 6 months later). At [120], his Honour said:

‘it is not to the point that you can find some of the purposes of the 1969 State Act reflected in the proposed work of the Panel. Once it was clear that the Panel intended to carry out functions which go beyond the purposes of the 1969 State Act, it cannot be said that the release is for the purposes of the 1969 State Act.’

His Honour continued:

‘121.  In the terms of the 2009 Inquiry, it is clear that there is no expressed limitation to the 1969 State Act. Nor would that be expected. Clearly the Commonwealth and national interests were of very real importance. The Commonwealth was paying for it. As to its subject matter, the nature of the inquiry is to review regulations for all ‘upstream operations’. There is a reference to licences (ie plural) rather than the Apache licence PL 12 which applied under the 1969 State Act. The reference to the vessels could only be referable to an inquiry into the regulation for all ‘upstream operations’ in the terms of reference as distinct from matters pertaining to the 1969 State Act.

122.  The 2009 Inquiry is legitimately a joint inquiry looking at all of the upstream petroleum operations regardless of which legislation applies. But necessarily that takes it outside the scope of the 1969 State Act.

123.  Apache argue that the question is not, as framed by the respondents, that if you had an inquiry under the 1969 State Act limited to its purposes, could you rule out questions about another part of the pipeline or another licence on the grounds of relevance? The answer to that may well be no. However, in this situation the starting point is that the 2009 Inquiry is on its face much broader. It is not limited to matters governed by or the purposes of the 1969 State Act. The answer to the question which is posed by the parties cannot be determined by use of the converse approach, that is, by identifying matters in the 2009 Inquiry which are relevant to the 1969 State Act so as to establish that the disclosure is necessarily for the purposes of the 1969 State Act. Once you have an inquiry which is a review of regulation for all upstream operations including other licences and vessels, it is an inquiry necessarily beyond the purposes of the 1969 State Act. 

124.  The State point to the fact that the s 63 information could be obtained in other ways as Apache were under an obligation after the Varanus Island Incident to give the Director General of the State Department a written report giving ‘full information on the accident’: see regs 23 and 24 of the 1970 State Regulations. The Minister could also require the licensee to submit ‘such reports on the operation of the pipeline as the Minister may direct under the Act’: see reg 25 of the 1970 State Regulations. Licence conditions can and do require the production of documents to the Minister. As such, directions, regulations and licence conditions can and do give the State Minister the right to directly obtain from the licensee documents which may be required under s 63 of the 1969 State Act. In that statutory context the State argues that there is no basis for implying in the 1969 State Act any restriction on the provision of documents obtained under s 63 of that Act to the State Minister or his Department

125.  It may well be that the s 63 information could have been obtained for the benefit of the 2009 Inquiry through other legitimate means just as the s 63 information itself was originally acquired on a legitimate basis. However, the fact that the s 63 information was lawfully acquired and can be conveniently and pragmatically conveyed to the 2009 Inquiry is not an answer to the question posed by the parties which is whether the release of the information to the 2009 Inquiry was, at the time it was released, for the purposes of the 1969 State Act and the Regulations.’

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