JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2022
DATE OF JUDGMENT:	13 October 2022 (revised 19 October 2022)
CASE MAY BE CITED AS:	Attorney-General v Khan (suppression order)
MEDIUM NEUTRAL CITATION:	[2022] VSC 627

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PRACTICE AND PROCEDURE – Suppression and non-publication orders – Power to make Interim Supervision Orders – Whether necessary to redact details identifying appointed case manager – Terrorism – Protection of safety of persons – Prejudice to the proper administration of justice – Prejudice to the interests of the Commonwealth in relation to national security – Open Courts Act2013, ss 14, 17, 18 – Criminal Code 1995 (Cth) div 105A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Ginsbourg with Dr L Hilly	Australian Government Solicitor
For the Defendant	Mr R Nathwani with Ms L Thies	Massi Ahmadzay & Associates

HIS HONOUR:

The plaintiff applied for an order that the name of the defendant's case manager, currently identified in interim supervision orders (ISO), be suppressed under ss 17 and 18 of the Open Courts Act2013. The basis for suppression is that it is necessary to protect the safety of the case manager and their family, to prevent any substantial risk of prejudice to the proper administration of justice by undermining the efficacy of any order made under Division 105A of the Criminal Code 1995 (Cth) by reason of the publication of the case manager's name or the prospect of that occurring, and to prevent prejudice to the interests of the Commonwealth in relation to national security. I must be satisfied that it is necessary to make a proceeding suppression order based upon the identified grounds.

The plaintiff relied on three affidavits: the affidavit of Brooke Hartigan, First Assistant Secretary of the Security and Counter-Terrorism Division of the Attorney-General's Department, affirmed 7 October 2022; the affidavit of Detective Superintendent Simone O'Mahony, affirmed 21 August 2022; and the affidavit of Frank Dumic, affirmed 19 August 2022. The plaintiff accepts that the starting point for the court is a commitment to open justice, particularly through recognition of the open justice principle by s 4 of the Act.[1]
[1]Russell v Russell (1976) 134 CLR 495, 520–1 (Gibbs J), 532 (Stephen J), applying Scott v Scott [1913] AC 417, 437, 441; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344, 352 [17] (Spigelman CJ); News Digital Media v Mokbel (2010) 30 VR 248, 258–9 [35] (Warren CJ and Byrne AJA) (News Digital Media); PQR v Secretary, Department of Justice and Regulation (No 1) (2017) 53 VR 45, 56–7 [34], 58–9 [38] (Bell J) (PQR).

I accept that, while open justice is a fundamental principle, it is not an absolute right and may on a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Khan (Suppression Order)

Details

AGLC: Attorney-General v Khan (suppression order) [2022] VSC 627
Case: [2022] VSC 627
Decision Date: 13 October 2022 (revised 19 October 2022)

CaseChat Overview and Summary

In the matter of Attorney-General v Khan, the dispute centred on the appropriateness of suppression and non-publication orders in relation to terrorism cases, specifically whether certain details identifying the appointed case manager needed to be redacted. The case was heard in the High Court of Australia, where the legal implications of such orders were examined in the context of protecting the safety of individuals and the interests of national security.

The central legal issues revolved around the interpretation and application of sections 14, 17, and 18 of the Open Courts Act 2013, as well as relevant provisions under the Criminal Code 1995 (Cth) division 105A. The court had to determine whether the making of interim supervision orders necessitated the redaction of details identifying the appointed case manager to safeguard the safety of individuals and to prevent prejudice to the proper administration of justice and the interests of the Commonwealth in relation to national security.

The court held that the open court principle, which underpins the presumption in favour of open justice, must be balanced with the need to protect safety and national security. It was found that the appointment of a case manager in terrorism cases is integral to the administration of justice and the protection of those involved. However, the court concluded that there was no necessity to redact the details identifying the appointed case manager, as this would not unduly prejudice the safety of individuals or the interests of national security. The decision underscored the importance of maintaining transparency in legal proceedings while also recognising the need for protective measures where warranted.

As a result, the court ruled in favour of the Attorney-General, affirming the power to make interim supervision orders without the requirement to redact the names of appointed case managers. The final orders confirmed that the suppression and non-publication orders could proceed as initially applied for, without the necessity of redacting the details in question.

Orders