Fitzgerald, Brian --- "Is a server a 'record'? TLC Consulting v White and fundamental rights" [2003] PrivLawPRpr 38; (2003) 10(4) Privacy Law and Policy Reporter 72

---

Is a server a ‘record’? TLC Consulting v White and fundamental rights

Brian Fitzgerald QUT LAW SCHOOL

Later this year the High Court will hear argument in what promises to be a landmark case, over whether a computer or server is a ‘record’ for the purposes of the Fair Trading Act 1989 (Qld). The case arose out of an investigation by the Queensland Office of Fair Trading into the activities of a Gold Coast ‘introduction’ agency, TLC Consulting Services. Pursuant to a warrant issued under s 89(3) of the Fair Trading Act 1989 (Qld) an Inspector from the Office of Fair Trading seized TLC’s computer which contained some 20,000 files, 39 of which were sought by the inspector. The inspector purported to act under the authority of s 89(1)(e)(i) of the Fair Trading Act to ‘take possession of ... records relating to ... services supplied or to be supplied or relating to any matter the subject of an investigation under this Act’. The term ‘records’ is defined by s 5 of the Fair Trading Act to include ‘any record of information however compiled, recorded or stored and any books, documents or writings’. The term ‘document’ is also defined by s 36 of the Acts Interpretation Act 1954 to include, among other things, ‘any disc, tape or other article or any material from which ... writings ... are capable of being produced or reproduced (with or without the aid of another article or device)’.

Unhappy with the removal of the server, TLC sought review of the decision to seize the computer under the Judicial Review Act 1991 (Qld). Mullins J at first instance held the computer was not a record for the purposes of the Fair Trading Act and ordered that the computer be returned to TLC. A preservation order was made ensuring a mirror copy of the computer’s hard drive was created and deposited with the Court.

On appeal the Queensland Court of Appeal in the judgment of de Jersey CJ, with which Davies and Atkinson JJ agreed, held that a computer was a record for the purposed of s 89(1)(e)(i). Chief Justice de Jersey explained:

The language of the provisions is, in my view, clear and unambiguous, yielding a comprehensible obvious construction in its application to this case. That being so, the restrictive process of reading down urged for the respondent — as to which see Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 at 141 — would be unjustified.^[1]

He also noted that there was nothing precluding the application of the Acts Interpretation Act definition of ‘document’ to the Fair Trading Act.

In issuing orders in the case the Chief Justice concluded that:

There will be an order that if, in the course of examining the mirror copy of the hard drive of the server the relevant officers of the appellant identify a document to which legal professional privilege could reasonably be considered to apply, those officers will not further examine the document. The application for a stay is refused.

This approach was questioned in the special leave application to the High Court where Richter QC stated:

What the Court of Appeal did, which is shown at the end of its judgment, almost as an afterthought, was to make an order which, in our respectful submission, is simply not a proper order. What it said in relation to it was that effectively if the inspectors were looking through the hard drive, found that there was something that they might think was entitled to the protection of legal professional privilege — and this is at page 32:

There will be an order that if, in the course of examining the mirror copy of the hard drive of the server the relevant officers of the appellant identify a document to which legal professional privilege could reasonably be considered to apply, those officers will not further examine the document.

This was in the context of saying, ‘We’d like a stay because we’ve argued legal professional privilege.What are we going to do about legal professional privilege?’ So we got that, which we would say is an egregious error.

You cannot have a situation in which the person seeking is made the arbiter of whether or not there is legal professional privilege. The vice in what the Court of Appeal did — and it did it very quickly and did it very peremptorily, without having regard to any of the arguments that arose on the review application. Certainly Mullins J narrowed down the confines of the argument because it was easy to dispose of it by taking the statutory construction position. That was not the end of it. If the Court of Appeal thought that she was wrong on her statutory construction, it should have remitted the matter to her to make a proper determination as a review of an administrative decision, and it did not. It made no decision as to the review of the administrative decision itself, instead of which it ordered the return of the server. So that was, in our respectful submission, an egregious failure to accord natural justice and a procedural unfairness which constitutes an injustice.^[2]

Further at the hearing of the special leave application Gleeson CJ asked: ‘I understand that. Put to one side the complication that arises out of the way these records were kept. If there had been a filing cabinet with an individual file for each client, what would they have been entitled to on the reasoning of the Court of Appeal, 39 files or the whole filing cabinet?’ To which Richter QC replied: ‘The whole filing cabinet’.

The case has enormous significance for individual rights within a democratic society. While an argument based on inconsistency (under s 109 of the Constitution, as suggested by Callinan J in the earlier special leave application) between the Privacy Act 1988 (Cth) and Fair Trading Act 1989 (Qld) was not pursued in the special leave application — and this really needs to be considered further before or at the hearing — there can be little doubt that this case raises fundamental issues concerning privacy, the administration of justice and due process.

Fundamental rights in the electronic world?

Writing some years ago I expressed the view that ‘digital constitutionalism’ may need to be etched out of the interstices of judicial interpretation of the law.^[3] With increasing reliance on digital technology and computers I am convinced now more than ever that this needs to be the case. A fundamental principle of human existence in a democratic society must surely be that our rights (including those that are guaranteed by nothing more than judicial interpretation in accordance with the rule of law^[4]) should not be contingent upon the technology in question. At very least this proposition needs to be tested before the High Court, perhaps as an issue of statutory interpretation. Should our rights be equivalent of respect whether they are claimed in ‘real’ or ‘digital’ space? To disadvantage an individual merely on the basis in which information is stored — hard versus digital copy — makes the rule of law more contingent on technology and more arbitrary. If it is decided that technological neutrality must give way to the advanced capacity and power of technological innovation, then we need to reconsider how rights to privacy and due process are to be protected in this vast new and easily surveyed landscape. This may well mean that arguments for stronger privacy rights preserving the integrity of human existence (especially in the case of third parties) need to be further addressed by the legislature and the courts.^[5]

Similar arguments might also be made in relation to the process of discovery of electronic documents in civil litigation.^[6] l

Professor Brian Fitzgerald, Head of School, QUT Law School.

Endnotes

[1]. TLC Consulting Services Pty Ltd v White [2003] QCA 131 (21 March 2003).

[2]. 25 June 2003; see </www.austlii. edu.au/au/other/hca/transcripts/2003/ B14/5.html>.

[3]. See B Fitzgerald, ‘Software as Discourse: The Power of Intellectual Property in Digital Architecture’ (2000) 18 Cardozo Journal of Arts and Entertainment Law Journal 337 at 382–5.

[4]. Coco v Queen [1994] HCA 15; (1994) 179 CLR 427.

[5]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1; Grosse v Purvis [2003] QDC 151 (6 June 2003); M Kirby, ‘Privacy in Cyberspace’ [1998] UNSWLawJl 47; (1998) 21 UNSWLJ 323.

[6]. See Sony Music Entertainment (Australia) Ltd v University of Tasmania [2003] FCA 532 (30 May 2003); Sony Music Entertainment (Australia) Ltd v University of Tasmania [2003] FCA 724 (18 July 2003).