Asp15 v Commonwealth of Australia and Anor (No.2)
[2015] FCCA 2731
•7 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASP15 v COMMONWEALTH OF AUSTRALIA & ANOR (No.2) | [2015] FCCA 2731 |
| Catchwords: PRACTICE AND PROCEDURE – Application for production of the unredacted documents – public interest immunity – application dismissed. |
| Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 Kirby v Prisoners Review Board [No 2] [2010] WASC 280 Plaintiff S4 – 2014 v Minister for Immigration and Border Protection [2014] HCA 34 Young v Quin (1985) 4 FCR 483 |
| Applicant: | ASP15 |
| First Respondent: | COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | MINISTER OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2164 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 7 October 2015 |
| Date of Last Submission: | 7 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 7 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J F Gormley |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitors |
ORDERS
The matter be stood over for further mention on 20 October 2015 at 9:30am.
The oral application for production of the unredacted documents SC2-SC14 is dismissed.
The question of costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2164 of 2015
| ASP15 |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
First Respondent
| MINISTER OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
These proceedings were originally commenced in the High Court of Australia and were remitted to this Court for determination. On 10 September 2015, orders were made facilitating the expeditious determination of the matter, including production of documents that were identified by the applicant as being relevant to alleged issues of unlawful detention formulated in a draft statement of claim, the essence of which is that, since the expiry of 90 days after a second RRT remittal of the matter on 10 July 2014, the continuing detention of the applicant is alleged to be unlawful due to unreasonable delay.
The applicant seeks to have taken into account the context and history in relation to the applicant being taken into detention. The applicant arrived without a visa on 11 April 2012. Part of that context involves criminal and security clearance steps, in circumstances where it appears that, on 24 October 2013, the applicant signed a consent form permitting the Department to disclose information to law enforcement authorities and that, thereafter, on 29 October 2013, the applicant’s solicitor made representations as to the reliance upon that consent, as a result of which the Department did not pursue the inquiries pursuant to that consent form.
It is clear from the affidavit evidence before the Court that there were other law enforcement agencies involved in criminal investigations and security clearance concerning the applicant. It is in that context that the orders made on 10 September 2015 provided for any dispute concerning public interest immunity to be dealt with by the Court today.
An affidavit has been filed by a senior officer of the Australian Federal Police identifying documents the subject of redactions on the grounds of public interest immunity. The documents the subject of those redactions were marked SC2 to SC14. Mr Gormley, counsel for the applicant, sought an order for production of unredacted copies of the material in SC2 to SC14.
The grounds upon which the redaction was made and over which public interest immunity was claimed were identified in para.9 of the deponent’s affidavit. No issue is taken as to correct identification of legal principle in respect of claims of public interest immunity as identified in para.9.
Paragraph 30 identified the redaction that had been taken place to exclude, relevantly, names of human sources, further other information which would tend to identify confidential human sources, and thirdly, descriptions of the information provided by those human sources, where those descriptions could identify the source in question.
In relation to the last category, the deponent said the following:
In my opinion, given the potential consequence of exposing the identity of a confidential human source as explained earlier in this affidavit, a precautionary approach should be applied to this task and this is how I have directed officers of the AFP to redact the documents in question. I am satisfied that the redactions that have been made are appropriate when regard is had to the above mentioned principles.
It is clear from the last sentence that the deponent has considered the actual redactions made, and it is clear from the form of the redactions to which the Court was taken that considerable care has been taken in identifying the material the subject of the claim of public interest immunity.
Notwithstanding the reference to a precautionary approach, I am satisfied that the redactions that have been made are in accordance with the claims for public interest immunity in respect of the descriptions to which I have referred.
The principles to be applied in relation to a claim for public interest immunity have been summarised usefully by Martin CJ in Kirby v Prisoners Review Board [No 2] [2010] WASC 280 at [4]-[6] as follows:
4 The basic principles governing the determination of claims for public interest immunity from inspection are not controversial. Those principles are conveniently set out in the following passage from the judgment of the court in CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48:
The relevant legal principles that apply to a claim to public interest immunity were considered by the High Court in Sankey v Whitlam (1978) 142 CLR 1 and confirmed in Alister v The Queen(1984) 154 CLR 404. The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However, the general rule will not apply where the court is of the opinion that the public interest in the fair administration of justice outweighs the interest giving rise to the immunity. The rationale to this principle was summarised in the judgment of Gibbs CJ in Alister where the Chief Justice, in referring to Sankey, said at 412:
.... when one party to litigation seeks the production of documents, and objection is taken that it would be contrary to the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely, whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration.
...
The mere fact that a claim of privilege may be asserted by a party is not conclusive. In all cases it is the duty of the court to decide whether a document should be produced or may be withheld:Sankey at 38; see also Alister; Commonwealth v Northern Land Council (1991) 30 FCR 1 (which we will call 'Northern Land Council (FCt)'. It is also clear that the court has the power to prevent disclosure of a document the production of which would be contrary to the public interest even if no claim is made by a Minister or other high official that its production be withheld:Sankey per Gibbs ACJ at 44; Conway v Rimmer [1968] UKHL 2; [1968] AC 910 per Lord Reid at 950. However, while the court has the power to intervene if it appears that the public interest requires disclosure it would only be in exceptional circumstances that it would do so when it was clear the relevant official had considered the question and decided that no objection should be taken: see Sankey per Gibbs ACJ at 46.
5 Accordingly, where it is established that it would be contrary to the public interest to disclose the document in question, and the document is relevant to an issue before the court, it is necessary for the court to weigh the competing elements of the public interest (Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38 - 39, 43, 60 - 64, 98 - 99). It follows that in my assessment of the immunity from inspection claimed in this case, it is necessary for me to address two issues relating to each document in respect of which immunity is claimed, namely:
(a) Would disclosure be contrary to the public interest?
(b) Is it a document relevant to a contentious issue in the case?
6 If the answer to both of these questions is in the affirmative, it will be necessary to weigh the competing public interests. If the answer to both questions is in the negative, no question of disclosure arises. If the answer to one of those questions is in the affirmative, and the other in the negative, the question that is answered in the affirmative will dictate whether or not disclosure is ordered.
It is clear that the claims in the present case are of a nature focused on particular content. On the evidence of Mr Connelly, I am satisfied that the claim of public interest immunity in respect of the redacted documents is properly made and that disclosure would be contrary to the public interest.
The potential disclosure of human sources falls within the context of public interest immunity protecting against disclosure of the identity of informers, which is a species of public interest immunity, as discussed in Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at [674]-[675].
The second issue in relation to the balancing exercise of public interest immunity turns on weighing whether the document is relevant to a contentious issue in the case. The redactions were said by counsel for the applicant to be relevant in determining the applicant’s claim that the continuing detention was unreasonable.
Counsel for the applicant argued that disclosure of the information would assist evaluation of whether the subject matter of the complaints were credible and whether the quality of the information justified the investigative steps and time taken by the differing law enforcement bodies in that regard.
In the Plaintiff S4 – 2014 v Minister for Immigration and Border Protection [2014] HCA 34 at [29], French CJ, Hayne, Crennan, Kiefel and Keane JJ said:
29. The duration of any form of detention, and thus its lawfulness, must be capable of being determined at any time and from time to time.
The applicant’s proceedings in the present case raise that issue from the expiry of the 90 days after the second Refugee Review Tribunal determination. The respondent’s case contends that the continuing detention arises from the applicant having arrived without a visa, and that it appears that a particular security clearance was recently obtained, in July of this year, in relation to the applicant and that the second respondent is in the process of considering the applicant’s application for a Temporary Protection (Class XD) visa.
The documents the subject of the redactions are not, on their face, obviously relevant to the duration of the detention insofar as the objective fact of that duration is already known to the applicant, and it is clear that the subject matter of the investigation by the different enforcement bodies were also clearly known to the applicant.
The argument that the applicant wishes to develop concerning credibility or quality of the information underlying the investigations is an argument that the applicant can, in my opinion, still advance on the material that has been disclosed. Whilst I accept that disclosure of the unredacted material might further assist the applicant’s evaluation of the credibility and strength of the subject matter of the investigation, the potential harm to the public interest in protecting the human sources in the present case, in my opinion, outweighs that relevance in this case.
Counsel for the applicant invited the Court to inspect the unredacted documents. The Court was taken to some of the redactions by counsel for the applicant, and the Court has looked at the whole of the affidavit and material in its redacted form annexed to the affidavit of Mr Connelly, and this is not a case where it is necessary for the Court to inspect the unredacted documents, as I am satisfied by the affidavit of Mr Connelly and identified redactions that the claim should be upheld.
I have taken into account that the power to examine the documents should be exercised sparingly, see Young v Quin (1985) 4 FCR 483 at [484]:
Where a claim of public interest immunity is made in respect of documents it is for the Court to decide whether or not to uphold the objection. The Court may ask for a clarification or an amplification of the objection to production, being careful not to impose requirements which could only be met by divulging the very matters to which the objection relates. The Court also has power to examine the documents privately. It has been said this power should be sparingly exercised. Indeed, the better view appears to be that the Court should not inspect the documents unless it decides that, on balance, the documents probably ought to be produced. (Conway v. Rimmer [1968] UKHL 2; (1968) A.C. 910 at pp. 952, 953 and 971 and see Air Canada v. Secretary of State for Trade (1983) 2 W.L.R. 494).
For these reasons, the oral application for production of the unredacted documents is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 21 October 2015
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