Attorney-General of the Commonwealth v Collaery & Anor

[2022] HCATrans 66

[2022] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C22 of 2021

B e t w e e n -

ATTORNEY-GENERAL OF THE COMMONWEALTH

Applicant

and

BERNARD COLLAERY

First Respondent

THE QUEEN

Second Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 13 APRIL 2022, AT 9.33 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR S.P. DONAGHUE, QC,  Solicitor‑General of the Commonwealth, appears with MR T.M. BEGBIE, QC, and MS C. ERNST for the applicant.  (instructed by Australian Government Solicitor)

MR B.W. WALKER, SC appears with MR C.S. WARD, SC and MS R. KHALILIZADEH for the first respondent.  (instructed by Gilbert + Tobin)

MR C.J. TRAN appears with MS A.M. HABAN‑BEER for the second respondent.  (instructed by Commonwealth Director of Public Prosecutions)

KIEFEL CJ:   Yes, Mr Solicitor. 

MR DONAGHUE:   Your Honours, this application concerns the publication of the reasons for judgment of the ACT Court of Appeal in circumstances where the publication of those reasons in the form that is proposed will, in the Attorney‑General’s assessment, cause serious harm to Australia’s national security.  I say “in the Attorney‑General’s assessment” because the process by which the Supreme Court is considering whether or not it agrees that the public revelation of information that includes the information now in dispute, whether or not that information should be prevented on national security grounds, is not yet complete.

Your Honours can see the reason why the process is incomplete if you turn to the orders that are reproduced in the application book at page 75.  These are the orders made by the Court of Appeal as a result of the judgment, the redaction of which is now in issue.  If your Honours have those orders, you will see the appeal was allowed, but then, paragraph 2 of the orders records that:

the Attorney‑General sought to rely on “court only” material that had not been provided to –

the applicant.  That had been resisted, and the primary judge had not decided the point, in effect, because his Honour decided it was appropriate to make the orders that the Attorney‑General had sought without reference to that “court only” material.  That had the consequence that your Honours see recorded in order 4, that the matter was:

remitted to the primary judge to consider the admissibility of the “court only” material and, if it is admissible, the effect of that material on –

the orders to be made.  The practical result of that state of affairs, in our submission, is that the Attorney‑General’s application is part heard.  Indeed, the Chief Justice, Chief Justice Murrell, acknowledged as much in her judgment that your Honours will see in paragraph 17 on page 68 of the application book, when her Honour said that:

the matter was remitted so that –

the primary judge could – and I quote:

continue the s 27(3) hearing by considering the admissibility of the “court only” material ‑ ‑ ‑

GORDON J:   Mr Solicitor, you have provided to the Court a copy of that remitter – being a judgment of Justice Mossop of 11 March 2022 – where his Honour appointed special counsel and then adjourned off the matter for further directions.  Were those directions held?

MR DONAGHUE:   I think they are still coming, your Honour.  I think they are due - 20 April, I am told. 

GORDON J:   So, paragraph 4 was that the proceedings were to be listed on Friday, 18 March, for the making of orders and directions.  That did not occur?

MR DONAGHUE:   It did occur, your Honour, and further directions have now been listed to take place on 20 April.

GORDON J:   What is expected will happen on 20 April?

MR DONAGHUE:   Timetable for hearing, your Honours. 

GORDON J:   When will the hearing take place?

MR DONAGHUE:   I think that has not yet been determined.

GORDON J:   When is it likely to take place?

MR DONAGHUE:   Those who are instructing me, your Honour, are indicating in the first half of the year but it is not possible to be more precise about that at the moment. 

GORDON J:   Is it the position that, as a result of that hearing, these issues will then be resolved?

MR DONAGHUE:   Your Honour, not in the sense that – as we see it, anything short of a grant of special leave in this application will have the consequence that the Court of Appeal’s reasons will be published without the redactions that the Commonwealth contends are needed and, in that way, it will cut across the orders that his Honour Justice Mossop might make if persuaded by the “court only” material that it is necessary to protect the material.  We are here because being here is the only way to stop that consequence from occurring.

KIEFEL CJ:   Your application for special leave is more or less in the nature of an application for a stay. 

MR DONAGHUE:   Your Honour, what we submit is that it, in effect - in practical terms there is something in what your Honour the Chief Justice puts to me in that we contend that the reasons for the Court of Appeal should not be published until the 27 process – the section 31 orders have been finalised.  Once they have been finalised, then the Court of Appeal should revisit the question of what is published having regard to the final state of affairs that is reached in the section 31 hearing. 

KIEFEL CJ:   I am sorry, I am having difficulty understanding.  The remitter to consider the “court only” material was on the basis that the final order under section 31(4) could not be made until that process was complete.  So, I am just struggling to understand how the Court of Appeal’s judgment can be published without that process being complete because it could have some effect upon it - not necessarily, but what Justice Mossop is hearing could have an effect upon it.

MR DONAGHUE:   Well, your Honour that is our ‑ ‑ ‑ 

KIEFEL CJ:   You are saying there is nothing to prevent publication?

MR DONAGHUE:   No, what your Honour the Chief Justice just put to me is exactly the situation.  But, unfortunately, the Court of Appeal did not see it that way, so that the ‑ ‑ ‑

GORDON J:   Have you gone back to them and asked them?  I mean, if there has been a change in what has happened - you now have an order from Justice Mossop for a process – and I do not know whether that judgment is the subject of appeal, or whether it may be – and then you have a further hearing, as I understand it, relatively soon.  As the Chief Justice says, this is an application for a stay pending determination of the final proceeding and it is fragmentation of criminal proceedings at its worst, is it not?

MR DONAGHUE:   We respectfully submit not, your Honour – although I do agree with much of what your Honour just put to us.  Chief Justice Murrell was aware, of course, of the remitter because she was a party to the court that made the remitter order to Justice Mossop.  Then, that having happened, we went before the Court of Appeal seeking to preserve the position pending the final determination of the section 31 hearing.  We lost because, in effect, her Honour regarded her function, in our submission, in deciding what to publish as herself undertaking some balancing of the competing public interest in the very way that still needs to happen at the ‑ ‑ ‑

EDELMAN J:   Mr Solicitor, did you submit at that hearing that the entire judgment should not be published?

MR DONAGHUE:   No.

EDELMAN J:   So, you submitted that only parts of the judgment should be redacted?

MR DONAGHUE:   Yes.

EDELMAN J:   Where, in the Chief Justice’s judgment, do you say an error was made in responding to those submissions about redaction of only parts of the judgment?

MR DONAGHUE:   Your Honours will have seen from the judgment that her Honour the Chief Justice gives reasons, and then she says there is a table which gives effect - by which I indicate which parts of the judgment should be redacted to give effect to my reasons.  The colour‑coded version of the Court of Appeal’s reasons that your Honours have in the application book, starting at 40 of the application book, is a colour‑coded version that my instructors have prepared that reflects what her Honour said.  The error that we identify is that her Honour did not accede to our application to redact from the judgment all of the material that your Honours see in red in that marked‑up version of the judgment.

EDELMAN J:   In other words, Mr Solicitor, what you say is the error is that the Chief Justice did not make the orders that you sought.  There is nothing in the reasons that you point to before this Court that contains any error.

MR DONAGHUE:   No, that is not the case, your Honour.  There is much in the reasons that I point to that contains the error, but I was trying to identify – your Honour asked me did we say the whole judgment should…..the answer to that is no.  We agreed that a version of the judgment could be published that would reveal all of the material that your Honours can see revealed in the version that is now before the Court.

So part of our point was that, insofar as the public interest requires knowledge of why the Court of Appeal allowed the appeal, that could amply have been achieved by publishing the judgment in the exact form that your Honours now have it, because one can see, particularly at the consideration section at the end of that judgment, paragraphs 120 to 126, there are basically no redactions in it, very, very minor redactions.  So, the public could have been informed as to why the court made the order.

As to your Honour’s question about errors, we submit that there are two.  The first is the denial of procedural fairness, which does not require me to point to a particular part of it, but, your Honours, as the Chief Justice put to me earlier, we are in a situation where the court has decided to publish a judgment about why certain information should or should not be protected in circumstances where the very question that underlies that is not yet decided.  We have evidence ‑ ‑ ‑

EDELMAN J:   Mr Solicitor, does that mean in every case for public interest immunity or legal professional privilege, there will always be a denial of procedural fairness if the judge hearing that application does not accede entirely to the orders that are sought by the party seeking the immunity?

MR DONAGHUE:   Not at all, your Honour, not at all.  Do your Honours have the judgment that Justice Gordon referred to, Collaery (No 11), that we provided to the Court?

GORDON J:   Can I ask one other question?  Did you apply for a stay to the Court of Appeal?

MR DONAGHUE:   Your Honour, the answer to that is no, because, in our submission – and this is a submission that I will develop if I am able to – the effect of the Act itself is that, one, the certificate given by the Attorney should be determinative until the section 31 process is over – which it is not at the moment – so, in our submission, the certificate continues to operate; and, two, the Court of Appeal’s order does not take effect when it is under appeal.  That is section 32(4), so that ‑ ‑ ‑

GORDON J:   It does not stop a stay - it does not stop application for a stay.

MR DONAGHUE:   No.  Your Honour, the difficulty is that we did say to the Chief Justice that, in order to not to cut across the remittal, it was necessary to redact more of the judgment than was redacted, and her Honour rejected that submission. 

EDELMAN J:   That sounds a lot like procedural fairness to me.

MR DONAGHUE:   The reason it is a failure of procedural fairness, your Honour, is that, as the orders I have just shown you acknowledge, the Attorney has always sought, as part of its case to protect this information, to rely upon closed evidence.  The only reason that was not received when we originally sought to rely upon it was because the court decided in our favour without having heard it.

The court recognised the evidence needs to be heard before the matters can be finalised, and Justice Mossop has now looked at that evidence, and this is evidence of the Director of National Intelligence, the Director‑General of ASIS, the then Secretary of DFAT, the Secretary of Home Affairs, these are senior officials with responsibility for national security, who were cross‑examined before him on their open and confidential affidavits, and who he found to be impressive witnesses calibrating their judgment in the circumstances.

They have evidence that Justice Mossop has looked at, and if your Honours go to that judgment at paragraph 63, you will see what his Honour thinks of that evidence.  He summarises it, having inspected it, and says, reading from the second line:

The nature of the material is such that it is directly relevant to the consequences of failing to make orders that would protect from disclosure the Contested Material.  The evidence is detailed and raises matters which may ultimately be found to significantly favour the making of orders protecting the Contested Material . . . readily distinguished from the –

other material already considered:

Having inspected the material, it cannot be said that it would clearly be insufficient to support a conclusion different from that reached by the Court of Appeal.  On the contrary it appears to provide support for the position adopted by the Attorney‑General.

That evidence has not been considered and yet orders are being made that will release information into the public domain that those witnesses say will cause damage to national security.  That is the denial of procedural fairness.  We have not had a chance to complete our case.

GORDON J:   Do we have a definition of what is “Contested Material”?

MR DONAGHUE:   It is – no, not easily available, your Honour, but it was called “identified material” in the court below, and it is redacted for the obvious reason that – but it is six particular matters that the defendant says should be able to be disclosed.  So, your Honours may appreciate that there is a large amount of confidential material in the classified brief.  Most of that material, the parties are agreed, needs to be protected, and over time, as the application was narrowed, the defendants’ position came to be, well, we agree that most of it should be protected, but there are these six identified matters that we say can be made public.  That was what the contest ended up being about.  That is what ‑ ‑ ‑ 

EDELMAN J:   Mr Solicitor, was the “court only” material, to which you refer in – or which is referred to in paragraph 63, that you have just drawn our attention to – before the Chief Justice?

MR DONAGHUE:   No. 

EDELMAN J:   Did you seek to put it before the Chief Justice?

MR DONAGHUE:   No, your Honour, because what had been remitted to Justice Mossop was a contest about whether we were allowed to put the contested material into evidence.  So, we would have been putting back before Chief Justice Murrell the contest that the court had just remitted to the primary judge.

KIEFEL CJ:   The Court of Appeal had remitted it by the time it had got before the Chief Justice on the redaction judgment.

MR DONAGHUE:   That is correct, yes.

EDELMAN J:   Yes.  No, I am simply asking whether you sought to raise any of these issues as issues that should affect whether the judgment should be redacted or not?

MR DONAGHUE:   Well, we raised them in the sense, your Honour, that we said that judgment needs to be redacted in a way that is not inconsistent with the order that the Court of Appeal has just made remitting this whole contest about whether closed evidence can be received, and, if so, what affect it has on the orders..  So, we would have just moved back before Chief Justice Murrell the very debate that the Court of Appeal had sent back to Justice Mossop if we tried to do that.

GORDON J:   One other question:  did you ask to wait for that judgment to be – that is, the judgment of Chief Justice Murrell, or the application to be heard before her – to be delayed pending the outcome of the 31 orders?

MR DONAGHUE:   Your Honour, I think the answer to that is no.  We understood that it was desirable in the public interest that the Court of Appeal publish its judgment in some form.  We were not seeking to prevent any publication, we were actually in favour of a course of affairs that allowed the judgment to be published to the greatest extent possible consistent with the public interest.  So, we could not really defer the question without, in effect, preventing the publication of far more than was necessary to preserve national security and that is why we did not take that course.

EDELMAN J:   Mr Solicitor, all of this is occurring in the context of a pending criminal trial.  Has the criminal trial been set down?

MR DONAGHUE:   I do not believe that it has, your Honour, no.  But this process is not delaying that trial at all, in my submission. 

GORDON J:   But is that right, Mr Solicitor?

MR DONAGHUE:   Yes.

GORDON J:   I thought the whole purpose of the 31 hearing was to work out the extent to which it was going to be held in public or not.

MR DONAGHUE:   Your Honour, the 31 process needs to be completed before the trial can proceed.  But this appeal is not about the 31 process.  This appeal is about the publication of the Court of Appeal’s reasons.  Justice Mossop can continue to progress the section 31 process completely unimpeded by anything that might happen in this Court.  So, we are not slowing down the criminal proceedings to any extent. 

The other thing I should say, your Honours, is that, as we see it, if your Honours were to grant special leave, this appeal could be dealt with extremely quickly and on the same material that your Honours now have before you – on the open material.  We would not be asking your Honours to plunge into all of the classified material.  We say that we can demonstrate error on the material that your Honours have.  It is less than a half‑day hearing and what we would seek – if we succeed – is to have your Honours return the matter to the Court of Appeal to decide what should be published after the section 31 process is complete.  So, it is a very confined exercise that we are asking your Honours to undertake.

I note the time warning and I should, if I may, just try to answer Justice Edelman’s question about errors in the judgment because there is a very significant error.  If your Honours could turn to Chief Justice Murrell’s reasons at page 69 of the application book, paragraph 26.  There, your Honours will see that the Chief Justice noted that there was a certificate in place under section 26 that certified that there was:

“a real, and not merely a remote, possibility that –

the disclosure:

will prejudice national security”. 

She pointed out that the certificate itself did not address:

degree of likelihood nor degree of prejudice –

but said that it:

remains conclusive evidence –

that the matter is:

“likely to prejudice national security”.

Our friends take from that the proposition that her Honour decided to publish the judgment on the basis that everything that was protected by the certificate would be withheld.  So, they say our application is misconceived because her Honour was already intending and conscious of protecting everything in the certificate.  That, we submit, is not right because one needs to read on from 26.  At 27, her Honour says:

the court should consider any other matters that are relevant to disclosure.  In particular . . . whether preventing disclosure “would seriously interfere with the administration of justice” –

Then, at 28, she says, the:

likelihood and degree of prejudice to national security must be considered together –

with the countervailing feature:

of interference with the administration of justice –

taking us, then, at 33, to an express recognition that question (1) is, is it covered by the certificate, but then, question (2) is:

If so –

assuming it is covered:

are there other matters that inform whether the information should be disclosed –

So, what her Honour was evidently doing is balancing information covered by the section 26 certificate against countervailing interests and deciding that some of it should be published – and you see that most clearly at paragraph 43, your Honours.  Your Honours, might I have 30 seconds to complete this point?

KIEFEL CJ:   You can have longer that that if you need to finish your submissions.

MR DONAGHUE:   Thank you, your Honours.  Our essential point, your Honours, is that one sees from that process of reasoning that her Honour saw her role as to do something very similar to the section 31 process – to balance prejudice to security against other interests – but she was doing that balancing without knowing what was in the closed evidence.  So, she was bound to reach the wrong result because she did not have the material before her that required proper consideration of that issue.

So, that is a fundamental error in the conception of the task and is the main reason in addition to the denial of procedural fairness that we contend that the appeal would be a straightforward affair and what is really required here is for the Court of Appeal to do this task again once all of the information that bears upon it is properly available to the court.

Unless your Honours have any questions, those are my submissions.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  Yes, Mr Walker.

MR WALKER:   May it please your Honours.  There are a number of matters that my learned friend has raised which find no footing whatever in the way issue was joined and argument proceeded before the Chief Justice.  It was not an adjournment application, it was not an argument concerning timing – that is sequence of steps – and, in particular, it was not an argument that concerned the closed material which has been dubbed the “court only” material.  That was not only not before her Honour, there was not argument concerning how its contents might cast any light on the issues of redaction that were before her Honour.

Were special leave to be granted, nothing in the nature of evidence comprising some or all of that “court only” material could be before this Court – the appeal – section 73 – nor of course could some foretaste by way of summary from Justice Mossop’s subsequent interlocutory reasons possibly be called in aid for exactly similar reasons.  The fact is that there was an issue of redaction which called for evaluative assessments by her Honour, which she proceeded to carry out unaffected by any misdirection or misunderstanding of the issues, let alone error of principle.

To remind your Honours, just picking up some of the passages, and other relevant passages to which my learned friend has been, at page 69 of the application book, paragraph 26 was drawn to attention.  There is no error in the last sentence of 26, particularly when one sees what her Honour regarded as flowing from it, thus, for example, on page 70, in her paragraph 34, in particular the third of the matters which guided her Honour’s reason critically, namely, that there not be an effective undermining of the primary judge’s final decision, that is, a decision that lay in the future.

In paragraph 39 on page 71, there are unexceptionable comments of a kind that one might expect to find in an argument about whether a decision as to redaction or not would undermine a pending, uncompleted, final decision concerning the certificate.  It is for those reasons, in our submission, that one can say, first, that this appeal does not provide an opportunity for the Commonwealth to rely upon the closed court material my friend ‑ ‑ ‑ 

EDELMAN J:   Mr Walker, accepting that the language of “undermining” is not a language of balancing, what do you say about paragraph 43, though?  Do you accept paragraph 43 is a paragraph where there are suggestions of a balancing process?

MR WALKER:   No, the need to protect the administration of justice can scarcely be denied.  The, if you like, adjectival question as whether the administration of justice is protected by some illegitimate form of balancing is another question altogether.  There can be no doubt that the general proposition that the administration of justice, including the qualified principle of full publicity, the open court rule, is of significance and her Honour is really not going beyond that in paragraph 43.  So, I think my answer to your Honour’s question is no.

EDELMAN J:   That is…..light of the earlier - undermining references.

MR WALKER:   No, the undermining reference, in particular, is picking up the matter that is introduced in paragraph 26, to the effect that, of course, a redaction or any decision in the Court of Appeal, where it is understood the final decision of the Attorney’s certificate is yet to be delivered, cannot either anticipate an outcome or render it nugatory.  Her Honour is of course correct in that, and we are not at odds with our learned friends on that point. 

My argument here is that there has been no identification of a matter worthy of appellate consideration by this Court where, practically speaking, there can be demonstrated to have been an error of approach because, in our submission, the evaluative assessment involved – whether or not truly a discretion is not to the point – the evaluative assessment involved is identified correctly in her Honour’s paragraph 39 as requiring some characterisation of that which is in contest as to whether it should be redacted or not ‑ ‑ ‑ 

KIEFEL CJ:   Mr Walker, on the balancing question – a question that Justice Edelman put to you – if one reads paragraph 28 with paragraph 43 of her Honours reasons we see something of that process, the administration of justice trumping, in effect – it seems to be the approach that her Honour was taking.  In relation to the point that the Attorney is seeking to bring before the Court, I had understood it to be that the legislative scheme is such that the Attorney’s certificate holds the status quo until the section 31(4) orders are completed – that process is completed.  That is not what her Honour appears to have accepted.

MR WALKER:   No ‑ ‑ ‑

KIEFEL CJ:   I had understood that what could come out of the proceedings that Justice Mossop is undertaking is that if the material is relevant to what has been determined by the Court of Appeal there needs to be some reconsideration at that point.  The procedure is rather messy, but there seems to have been some acknowledgement that there might be something coming out of the court material that could affect what has been determined to this point by the Court of Appeal.  So, it seems something in the nature of an interim order.

MR WALKER:   There is a lot of what your Honour has put to me which is common ground between the parties.  Can I try to expound it in this way?  There is no difference between us, neither is there any error by her Honour concerning the fact that there is unfinished business by reason of which the Attorney’s certificate presently governs the position of disclosure. 

Now, that is disclosure of specified material.  Redaction, which is, of course, ancillary to the duty of the court to observe the position while business is unfinished obviously involves, therefore, characterising, in relation to any contested matter of redaction, whether it would impinge upon the accepted continuing obligation of non‑disclosure until completion of the section 31 process. 

That was the issue that her Honour was addressing in paragraph 39 on page 71, to which I have drawn the Court’s attention.  It was not an illegitimate and extra‑statutory balancing approach, a second look by a court after the balance struck legislatively by the statutory provisions that the parties agree govern, and uncontentiously govern, and it is for those reasons ‑ ‑ ‑ 

EDELMAN J:   Mr Walker, it is really whether this Court should perform the same exercise, probably for a third time, because the Court of Appeal would have implicitly written its reasons or considered redaction of its own reasons.  Justice Murrell then considered, on submissions by the Attorney‑General, whether there should be further redactions, and it would be the same question, would it, for this Court, as to whether those redactions were correct.

MR WALKER:   Yes, and all without the so‑called closed court material.  That is a furphy.  It was not relied upon before the Chief Justice, and my friend finished by disavowing that there would be any attempt, contrary to section 73, to introduce evidence not before the Chief Justice in order to demonstrate error in her outcome.  That is why, we submit, that insofar as there is thought to be some…..policy or query, principle of timing whereby, for example, no issue of redaction can – not should, but can – be considered by a court where there is an unfulfilled remitter under section 31, unless that were the issue, then there is no special leave point, is our submission.

GORDON J:   Mr Walker, can I ask something about that?  Is it, as the Chief Justice put to the Solicitor, really an application for stay, and if it is, if you take up the marked‑up copy of the judgment of the Full Court, which includes what I will call the additional redactions sought, is there anything preventing the parties, in effect, publishing it with the red material subject to further redactions being removed once the Mossop judgment is handed down and 31(4) orders are made?

MR WALKER:   That is ultimately a matter for the responsible court.  I would hesitate to say, particularly where the Crown is also present, that this is a matter that can lawfully turn on our consent or not.  I think the answer to your Honour’s question is, can the lack of contest by us mean that the question of redaction itself is seen as an interim position and, in principle, no, of course, there is no problem with that ‑ ‑ ‑

GORDON J:   I suppose I am being blunt.  If you look at the judgment which is marked up and one takes and identifies the red passages – of course we do not know what is behind them – it would be possible, would it not, consistent with the proper administration of justice, for the judgment to be published in that form and for then a subsequent copy of the judgment to be published if later the 31(4) orders affected it in the way the Chief Justice described it.

MR WALKER:   Unquestionably, your Honour, unquestionably.  This was not how it was put below.  It was not said below, look, there is this closed court material and it may have this effect.  It was really for the Commonwealth, the Attorney, to make such an argument if one was going to say her Honour was in error not deferring to that possibility because it is clear from, first of all, how the three members of the Court of Appeal, what I might call provisionally proposed to publish, and then, after the Chief Justice for the Court of Appeal hears full argument on all matters of redaction, in paragraph 39 reaches a conclusion which has nothing to do with undermining or anticipating without evidence the outcome of an argument with evidence before Justice Mossop.  It has to do with her evaluative assessment that the material in question in relation to those contested redactions is not material that would accomplish the disclosure forbidden by the statute until the end of a section 31 process. 

Now, that involves no matter of principle.  It would involve perhaps the third look to which Justice Edelman directed my attention.  It is for those reasons, in our submission, that it cannot be seen that, by special leave, there can or should be an appeal which, without looking at the closed court material, simply says, in particular, that paragraph 39 must be wrong on the basis of so‑called open material. 

There is no special leave point in that and there has been no attempt in writing or in my friend’s address to persuade you that there is, let alone as to the prospects of an error, which is a matter of factual characterisation, being shown on the part of her Honour.  It is for those reasons, in our submission, that questions by your Honours to my learned friend and now to me concerning is this really a part of a stay…..still continue the rather awkward framing or mis‑framing of the issue by the Attorney and that is because the order that would be stayed would be an order settling the extent of redaction for the publication of the Court of Appeal’s reasons. 

It is not an order – there was not an order sought that there would be no publication of any reasons at all pending completion of the remitter, and presumably any appeals following after a remitter.  That was not the nature of the dispute between the Chief Justice.  It is for those reasons, in our submission, that even the notion of a stay does not provide what might be called the procedural coherence necessary to constitute this a vehicle for special leave. 

I stress, that is not what was sought before the Chief Justice, and there cannot be special leave, surely, to allege error by her Honour in not doing what she was not asked to do, let alone in not doing something for which no reasons were given on the basis of material to which the Attorney, for some reason, has thought it appropriate to refer this Court on this application, namely Justice Mossop’s subsequent comments, all of which, of course, are avowedly provisional. 

It is for those reasons, in our submission, that this is not an appropriate case for special leave, not least because the appeal is not one that addresses an issue which was live before her Honour and upon which it

can therefore be said with fairness that her Honour has erred, let alone the sufficient prospect of that being true so as to justify the grant.  May it please your Honours. 

KIEFEL CJ:   Yes, thank you, Mr Walker.  Yes, Ms Haban‑Beer.  I think you are still muted, Ms Haban‑Beer - we still cannot hear you.  We might have to adjourn briefly while we establish audio connection.

AT 10.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.15 AM:

KIEFEL CJ:   Yes, Ms Haban‑Beer.

MS HABAN‑BEER:   Apologies, your Honour.  May it please the Court, the Crown has nothing to add in this application.

KIEFEL CJ:   Yes, thank you.  Anything by way of reply, Mr Solicitor?

MR DONAGHUE:   Just briefly, your Honour.  Your Honours, can I read one paragraph of the written submissions?  It is paragraph 2 of the written submissions the Attorney‑General made to Chief Justice Murrell on the application.  The Attorney said this, in paragraph 2:  “The proposed redactions would make the majority and substance of the decision publicly available.  Depending upon the outcome of the primary judge’s further consideration – and any appeals therefrom – it may be appropriate to then publish those parts of the Court of Appeal’s reasons which are subject to the proposed redactions.  In the meantime, the proposed redactions should be made so as to preserve the operation of the regime for which the NSI Act makes provision and, otherwise, to preserve the Commonwealth’s position on remittal”. 

That, we submit, is entirely consistent with what I have just put to your Honours and it reflects the observations your Honour Justice Gordon made about how this could appropriately be done – that is, publish everything except the redacted parts until the section 31 process is over and then, once it is over, revisit whether more can be published or not.  That is what we put before the Chief Justice and it is what, we submit, should be the outcome of this application.  If the Court allows an appeal, it should just remit the matter to the Court of Appeal to undertake that exact task.

We are not asking this Court to do, for a third time, an exercise that has already been done.  We are asking for the exercise to be done once, but properly.  So, the Court of Appeal did not consider what parts of its reasons should be redacted.  That was left to be done in an application under section 32 – being the application Chief Justice Murrell ruled upon. 

We submit that her Honour erred and that the exercise should be done again according to law.  We are not asking your Honours to do it either.  In our submission, your Honours could not properly do the exercise without all of the classified material.  As I said in‑chief we are not seeking to burden your Honours with that task.

In our submission, you cannot separate – as Mr Walker invites you to do – the question of redaction of the reasons from disclosure of the information.  They are inextricably tied up.  You could only separate them if the redaction exercise – or if the disputed redactions related only to material that stood outside the section 26 certificate.  But, one can see from the reasons – and I took your Honours to the passages – 28, 33(2), and 43 are the clearest examples – that her Honour was not dealing with this on the basis that all of the contested redactions stood outside the certificates.

If your Honours look at the main red redactions on pages 46 and 47 of the application book, what is redacted there are quotes, or extracts, from the primary judge’s reasons which his Honour agreed to redact where he is summarising the evidence that the parties led to explain why the disclosure of the identified matters, or the contested matters, would prejudice national security and then his Honour’s conclusions arising from that evidence.  That is material that obviously relates directly to the question of the damage to the public interest that will be….. 

Can I say in closing, at the moment there is an order that will release this judgment to the public unless special leave is granted.  In our respectful submission, that is a powerful reason why the Court should grant special.  If the Court pleases.

KIEFEL CJ:   The Court will adjourn to consider the course that it will take.

AT 10.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.33 AM:

KIEFEL CJ:   Mr Solicitor, the Court is having some difficulty with the application for special leave.  The Court is prepared to stand the matter out of the list – in effect, adjourn the matter pending a final order under section 31(4).  If that course were not taken, the order would be special leave refused.  Which course would you prefer the Court to take?

MR DONAGHUE:   The former, your Honour.  If the appeal for this Court – or the application for special leave is stood out of the list pending a finalisation under section 31 then, in our submission, that would be appropriate.

KIEFEL CJ:   Mr Walker, do you have any objection to that course?

MR WALKER:   No, your Honour.

KIEFEL CJ:   Thank you.

The order of the Court then is that the matter be stood out of the list of applications for special leave pending the determination by Justice Mossop of a final order under section 31(4) of the National Security Information (Criminal and Civil Proceedings Act 2004 (Cth).

MR DONAGHUE:   Your Honour, might I say for the avoidance of doubt ‑ just so that there is no suggestion we are cutting across what the Court is doing – if the parties were to reach some agreement about returning to the Court of Appeal would your Honours have any objection to that course?

KIEFEL CJ:   Of course not.  If necessary the matter could be brought before any member of this panel as a single judge matter.

MR DONAGHUE:   Thank you, your Honour.

KIEFEL CJ:   The Court will adjourn to reconstitute.

AT 10.34 AM THE MATTER WAS CONCLUDED