Bge19 v Minister for Home Affairs

[2020] FCCA 2904

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGE19 v MINISTER FOR HOME AFFAIRS [2020] FCCA 2904

Catchwords:
PRACTICE AND PROCEDURE – Notice to Produce – Application by the Minister for Home Affairs to set aside a Notice to Produce served by the Applicant – documents provided by the Minister in response to Notice to Produce contained redacted portions claimed to be the subject of public interest immunity – Applicant sought unredacted version of documents provided – HELD the unredacted portions of the documents the subject of the Notice to Produce did not have a legitimate forensic purpose and also were prima facie protected from production by public interest immunity – Notice to Produce set aside.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth)

Migration Act 1958 (Cth), ss.65, 101, 109, 128, 131

Cases cited:

Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427
Brennan v State of New South Wales [2006] NSWSC 167

El Ossman v Minister for Immigration and Border Protection (2017) 248 FCR 491

FUD18 v Minister for Home Affairs [2019] FCA 1858
Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police (2008) 234 CLR 532
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
R v Lipton (2011) 82 NSWLR 123
Sankey v Whitlam (1978) 142 CLR 1

Zarro v Australian Securities Commission (1992) 36 FCR 40

Applicant: BGE19

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 718 of 2019

Judgment of: Judge Dowdy

Hearing dates: 9 August 2019 & 5 December 2019

Delivered at: Sydney

Delivered on: 29 October 2020

REPRESENTATION

Counsel for the Applicant: Mr J. Gormly of Counsel

Solicitors for the Applicant: Sydney West Legal and Migration

Counsel for the Respondent: Mr G. Johnson of Counsel

Solicitors for the Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

(1)The Notice to Produce dated 8 May 2019, filed on 10 May 2019 and served by the Applicant on the Respondent on 11 May 2019 is set aside.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 718 of 2019

BGE19

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1.I am considering an application by the Respondent, the Minister for Home Affairs (Minister), to set aside a Notice to Produce served by the Applicant on the Minister on 11 May 2019 (Notice to Produce), having earlier dispensed with the need for the Minister to file and serve a formal Application in a Case seeking such relief.

2.The Applicant is a female aged 38 years who had been granted a Protection (Class XA) (Subclass 866) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (the Act) on the basis of her claim that she and her immediate family were stateless Rohingya who had no right to reside in Bangladesh or Burma.

3.The Applicant had initially arrived in Australia on 24 July 2007 on a Student (Class TU) (Subclass 573) visa (Student visa) holding a Bangladeshi passport issued out of the Bangladeshi Consulate in Jeddah, Saudi Arabia in July 2003 which recorded her place of birth as Chittagong, Bangladesh. She ultimately lodged her application for the Protection visa on 12 November 2010. Her mother had arrived in Australia on a Visitor visa and her brother on a Student visa, and on 12 November 2010 they also lodged their applications for Protection visas.

4.As part of the Applicant’s claims to protection, she claimed that she and her family were stateless Rohingya and that she had no citizenship at birth, no current citizenship and no right to enter or reside temporarily or permanently in any country. She claimed that she had been born in Jeddah and resided there under her father’s temporary work permit and that her current passport was a false one and that she and her family had lived illegally in Saudi Arabia. She further claimed that she had initially arrived in Australia on a false Bangladeshi passport and that she could not return to Burma because she was a Rohingya Muslim girl who would be at constant risk from military violence and the threat of torture and killing.

5.A delegate of the Minister found the Applicant’s claims to fear persecution under the Refugees Convention to be well-founded and she was granted a Protection visa on 26 July 2011.

6.Then on 18 October 2016 the Applicant was granted a Five Year Resident Return (Class BB) (Subclass 155) visa (Resident Return visa).

Notice of Intention to Consider Cancellation of Resident Return Visa and Cancellation

7.On 17 July 2018 the Department of the Minister (Department) issued a Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act, which notified the Applicant of the intention to cancel her Resident Return visa for non-compliance with s.101(b) in having given incorrect answers in relation to her application for the Protection visa.

8.It is convenient for present purposes to record that at the hearing on 5 December 2019 when Mr J. Gormly of Counsel appeared for the Applicant and Mr G. Johnson of Counsel appeared for the Minister, Mr Johnson summarised without objection the basis of the NOICC and the decision under s.131 of the Act not to revoke the NOICC, as follows:

MR JOHNSON:     The core of the decision was that the applicant was initially cancelled.  Her … visa was cancelled because she claimed and was granted a visa on the basis that she was a stateless Rohingya from Burma.  She had lived for some time in Saudi Arabia but had claimed to be stateless and that was the reason she was granted a Protection visa.  In connection with other family members of hers who came to the attention of the department for different reasons, attention was directed towards the applicant and other family members concerning this claim to have been stateless and noting in all of this that the applicant came to Australia on that last occasion using a Bangladeshi passport which she claimed in her Protection visa application was a fraudulent document.  She said she wasn’t Bangladeshi, it was a false document created to enable her to travel.  That was initially accepted when she was granted the Protection visa but due to investigations it came to light that the applicant was not stateless, that she was Bangladeshi and that therefore she had provided false information in her Protection visa application.

9.In particular the NOICC:

a)referred to a site visit to Chittagong in Bangladesh conducted by officers of the Department at the Australian High Commission in Dhaka which suggested that the Applicant’s father owned a four-storey building there, of which the ground and second levels had operated as a school for the last ten years and the top floor was occupied by the family, and that this indicated that the father was a Bangladeshi national;

b)recorded that a month after the grant of her Protection visa the Applicant travelled on 28 August 2011 to Bangladesh and remained there for 11 months and that the length of her stay indicated that she had a right to reside in Bangladesh and this was further evidence of her Bangladeshi citizenship;

c)concluded that the Applicant was a Bangladeshi citizen with the rights and privileges of all Bangladeshi citizens and that she was not stateless as claimed in her Protection visa application; and

d)concluded that her Bangladeshi passport was not a false passport, as claimed in her Protection visa application.

10.Over the period from 20 July 2018 to 12 November 2018 the Applicant responded to the NOICC by submissions and the provision of documents.

11.On 15 November 2018 the Resident Return visa was cancelled under s.128 of the Act. In short, the Notice of Cancellation and Decision Record (NOC) found as follows:  

I am satisfied that there are grounds for cancellation of this visa under section 128 of the Migration Act 1958, relying on the grounds at 116(1)(d) and the provisions of section 107A because the visa holder provided incorrect information on Form 866C Application for a Protection visa lodged on 12 November 2010 when she claimed that she was a stateless person. Section 101(b) provides that no incorrect answers be given when completing an application form.

Information available to the Department indicates the visa holder is not a stateless person but holds Bangladeshi citizenship and did so at time of her Protection visa application.

It appears the visa holder provided incorrect information in her application for a Protection visa in order to obtain a migration outcome. I am satisfied the visa holder provided incorrect answers in contravention of section 101(b) of Subdivision C of the Act and I am satisfied that grounds for cancellation exist.

12.On 15 November 2018 the Applicant requested revocation of the NOC, submitting a large number of documents and submissions up to 15 February 2019 in support of this request.

13.By Decision Record dated 18 February 2019 a Delegate of the Minister decided not to revoke the NOC. I was informed by Mr Johnson at the hearing on 9 August 2019 that at that time the Applicant was in Bangladesh and she remains there.

Proceeding in this Court

14.By Application filed 22 March 2019 the Applicant seeks to quash and have re-determined in accordance with law the decision of the Minister   dated 18 February 2019 not to revoke the NOC.

Grounds of Attack on NOC

15.The Grounds relied on by the Applicant are as follows:

The decision of the Minister’s delegate was affected by jurisdictional error in that:

1. The delegate constructively failed to exercise the jurisdiction under s 131 of the Migration Act 1958 and failed to afford the applicant procedural fairness in that he failed to respond to component integers of the applicant’s primary argument that her father’s Bangladesh passport was not genuine and was a proof that he was not a citizen of Bangladesh as the passport was obtained through the provision of false information and was a ‘bogus document’.

Particulars

a. It was an integer of this primary argument that the applicant’s father had obtained the Bangladesh passport by falsely claiming to the issuing Bangladesh authorities that he was born in Bangladesh, which was also indicated as his place of birth in the passport, whereas the applicant’s father had in fact been born in Myanmar.

b. It was also an integer of this primary argument that Bangladeshi law provides that any person born in Bangladesh prior to 1971 was a citizen of Bangladesh and therefore the applicant’s father would not have needed to apply to acquire Bangladeshi citizenship if the false information on the passport of his place of birth were true.

c. These integers were substantial and clearly articulated and argued by the applicant relying upon established facts.

d. The delegate did not address these integers or the claimed contradiction between a finding that the applicant’s father obtained a genuine Bangladesh passport as a naturalized Bangladeshi citizen on the one hand, and on the other hand the undisputed facts that the father was born in Myanmar and that if he was in fact born in Chittagong Bangladesh as his passport stated he would not have needed to apply to acquire citizenship. Rather, this false place of birth on the Bangladesh passport was a proof that the passport was a ‘bogus document’ and that the father did not acquire Bangladesh citizenship to obtain it.

e. The failure to consider these integers was also material to the delegate’s findings that the applicant was a citizen of Bangladesh jus sanguinis from her father’s Bangladeshi citizenship such that the applicant had given incorrect information in her original protection visa application that she was stateless.

2. The determination that the applicant’s father was enabled to apply for Bangladeshi citizenship by ‘family or business ties to Bangladesh’ was unreasonable in lacking an evident and intelligible justification or sufficient probative basis.

Particulars

a.In addition to the particulars to ground 1, there was no evidence before the delegate as to what particular ‘family and business ties’ enabled the applicant’s father to apply for Bangladeshi citizenship, or how or on what basis or when this was done.

3. The delegate’s finding that the indication of Chittagong as the applicant’s place of birth on her passport instead of her true place of birth, Jeddah KSA, was a ‘transliteration error’ rather than evidence that the passport was a ‘bogus document’ was irrational and illogical.

4. The delegate misunderstood the applicant’s claim that her father owned an equitable interest in property in Bangladesh but was not the legal owner.

Particulars

a. The delegate misunderstood ownership of an equitable interest to be a kind of part or shared ownership, as if the other ‘owner’ must have paid for her interest.

b. The delegate misunderstood the difference between legal ownership of property and ownership of an equitable interest in that property.

Notice to Produce

16.By the Notice to Produce under consideration the Applicant sought production of the following documents:

a)Item 14 of the Court Book Index: Identity Assessment Report undated NR.  

b)Chittagong Site Visit file concerning site visit 25/2/2016 – ICSE Request ID 8557429.

17.On 24 May 2019 the Minister produced to the Applicant, in response to the Notice to Produce, the following documents:

a) the Identity Assessment Report which had been prepared in respect of members of the Applicant’s family (the Identity Assessment Report);

b) a Site Visit Report – ICSE Request ID 85575429 (the Site Visit Report); and

c) an email dated 4 February 2016 (the Site Visit Email).

However, there were various redactions to those documents based on a claim to public interest immunity. On 8 July 2019 some of the redactions to the Identity Assessment Report and the Site Visit Report were removed because it was ascertained that the Applicant’s solicitor had already seen them under a Freedom of Information application.

18.The Minister has produced to the Court both redacted copies and confidential unredacted copies of the documents the subject of the Notice to Produce. The redacted copies comprise Annexure AL-2 to the affidavit of Ms Lucchese affirmed on 8 July 2019 and the unredacted copies comprise Confidential Annexure AL-3 to the same affidavit. Further, Mr Johnson at my request provided a Key to the redacted and unredacted copies of the relevant documents, which also summarises the basis upon which public interest immunity is claimed for the respective pages. The Key is as follows:

Redacted Page of AL-2	Corresponding Unredacted Page of AL-3	Basis upon which public interest immunity is claimed
Identity Assessment Report
1.	11	79	Reveals outcomes of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations.
2.	12	80	Reveals outcomes of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations.
3.	14	82	Reveals outcomes and thought processes of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations,
4.	24	92	If disclosed could hinder an ongoing identification investigation.
5.	27-29	95-97	Reveals outcomes, thought processes and sources of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations. Reveals confidential investigative methods.
6.	32	100	Reveals a source of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations. Reveals confidential investigative methods.
7.	33	101	Reveals a source of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations. Reveals confidential investigative methods.
8.	34	102	Reveals a source of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations. Reveals confidential investigative methods.
9.	40	108	Reveals sources of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations.
10.	41	109	Reveals outcomes, thought processes and sources of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations.
11.	42	110	Reveals outcomes, thought processes and sources of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations.
12.	51	119	Reveals outcomes, thought processes and sources of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations.
13.	54-56	122-124	Reveals outcomes, thought processes and sources of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations. Reveals confidential investigative methods.
14.	57-59	125-127	Reveals sources of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations.
Site Visit Report
15.	63	131	Reveals the name of a third party unconnected to the proceeding that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations.
16.	64-66	132-134	Reveals outcomes, investigation methods and sources of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations.
Site Visit Email
17.	67-72	135-142	Internal Department email relating to the site visit conducted in Bangladesh. It reveals outcomes, investigation methods and sources of information of a Department investigation that, if disclosed, would hinder, inhibit or diminish the ability of the Department to properly conduct investigations, or risk hindering ongoing identification investigations.

Evidence in Support of Claim for Public Interest Immunity

19.The Minister relied upon the affidavit of Mr Michael John Minns affirmed on 8 July 2019. Mr Minns is the Assistant Secretary of the Identity and Biometric Specialist Services Branch of the Department of Home Affairs, and in that role has overall responsibility for the delivery of complex identity investigation, including the processes, procedures, practices and systems utilised to undertake identity investigations and produce identity assessment reports. In relation to the Identity Assessment Report Mr Minns deposed at [6] of his affidavit to the following:

[6] The Identity Assessment Report contains details of the investigations undertaken by the Department as to the identities of the applicant in these proceedings and some members of her family. The document contains details of identity investigation methods and conclusions including, but not limited to, details regarding who undertook the investigations and the types of methods undertaken. I believe that the redacted parts of this document prevent the disclosure to the applicant and the public generally of confidential processes which the Department utilises to administer and enforce provisions of the Migration Act 1958 (Cth) (Act). I believe that these processes must remain confidential in order to maintain the Department’s ability to administer and enforce the Act.

20.In relation to the Site Visit Report Mr Minns deposed as follows at [7]:

[7] The site visit report contains details of a site visit which occurred as part of the investigations undertaken by the Department as to the identities of the applicant in these proceedings and some members of her family. I believe the redacted parts of this document prevent the disclosure of the details of the persons who undertook these investigations and the nature and extent of the investigations. I believe that the redacted parts of this document prevent the disclosure of information that would risk hindering ongoing identity investigations and/or prosecutions under the Act.

21.In relation to the Email Mr Minns deposed at [8] as follows:

[8]The email dated 4 February 2016 contains an internal Departmental request relating to the site visit report. The email contains details of identity investigation methods including ongoing investigations. I believe that the redacted parts of this document prevent the disclosure to the applicant and the public generally of confidential processes which the Department utilises to administer and enforce provisions of the Act. I believe that the information contained in the email must remain confidential in order to maintain the Department’s ability to administer and enforce the Act. I also believe that the redacted parts of this document prevent the disclosure of information that would risk hindering ongoing identity investigations and/or prosecutions under the Act.

22.In these circumstances Mr Minns stated at [9] of his affidavit:

[9] Overall, I am of the opinion that the redacted parts of the documents contained in Annexure AL- 2 should not be disclosed to any party including the applicant on public interest grounds on the basis that the information would, if revealed:

a.disclose confidential identity investigative methods of the Department;

b. risk hindering, inhibiting or diminishing the ability of the Department to properly administer the Act insofar as the Department undertakes identity investigations; and

c. risk hindering ongoing identity investigations and/or prosecutions under the Act.

23.Mr Minns was not required for cross-examination on his affidavit, although I note that in any event there is no general right to cross-examine the deponent of an affidavit in support of a claim for public interest immunity, and leave to cross-examine is granted only rarely or in exceptional circumstances: El Ossman v Minister for Immigration  and Border Protection (2017) 248 FCR 491 at 500 [31] per Wigney J.

Consideration

24.There was no objection to me looking at and comparing Annexures AL-2 and AL-3. I note that it is well established that in ruling on a public interest immunity claim the Court may inspect the documents the subject of the claim without those documents being revealed to the party seeking production: see Crennan J in Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police (2008) 234 CLR 532 at 595 [180].

Legitimate Forensic Purpose?

25.The first matter for consideration is whether or not the redacted portions of the documents required to be produced are sufficiently relevant to the Grounds to justify production, and the onus of establishing that they are rests upon the Applicant. The Applicant is required to identify a legitimate forensic purpose for which access to the redacted portions is sought, buts he is not required to establish that these portions would be admissible or admitted into evidence at the final hearing. The relevant principles are conveniently summarised by Thawley J in FUD18 v Minister for Home Affairs [2019] FCA 1858 at [24] – [25] as follows:

[24]The question whether the documents are sufficiently relevant to justify production is not whether the documents sought under the Notice to Produce are admissible or will be admitted into evidence.  The question has been framed as whether the documents sought are of “apparent relevance to the issues” in the proceedings – see: National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 385. It has been framed as whether the documents sought are “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case” – see: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927 (Waddell J). The concept of “apparent relevance” was explained by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103 as involving the question whether the material “could possibly throw light on the issues in the main case”.

[25]In Alister v The Queen (1984) 154 CLR 404 at 414, Gibbs CJ concluded that “a subpoena had a legitimate forensic purpose if it [appeared] to be ‘on the cards’ that the documents [would] materially assist the defence” in a criminal proceeding.

26.At the hearing Mr Gormly based and supported his contention that the unredacted portions of Confidential Annexure AL-3 had a legitimate forensic purpose only on Grounds 1 and 2.

27.Ground 1 in short contends that the Delegate, in deciding not to revoke the cancellation of the Resident Return visa under s.131 of the Act, constructively failed to exercise jurisdiction and failed to afford procedural fairness by failing to respond or deal with an argument put by the Applicant that her father’s passport was not genuine. Ground 1 obviously relies on the well-established principle stated by the Full Court of the Federal Court comprised of Black CJ, French (as he then was) and Selway JJ in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17 [55] in the following terms:

[55]     … Where the [administrative decision-maker] fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act…

28.Ground 2 in short contends that the Delegate acted legally unreasonably in refusing to revoke the cancellation of the Resident Return visa in that the decision lacked an evident and intelligible justification or sufficient probative basis, because there was no evidence before the Delegate as to what particular basis enabled the Applicant’s father to apply for Bangladeshi citizenship.

29.I have examined for myself the redacted portions of the documents the subject of the Notice to Produce in Annexure AL-2 and compared them with the corresponding unredacted pages of Confidential Annexure AL-3.

30.In my view the unredacted portions are of no apparent relevance to the issues raised by Grounds 1 or 2 (or for that matter 3 or 4), are not reasonably likely to add in the end in some way or other to the relevant evidence in the case and could not possibly throw light on the issues in the case. I do not consider that it is “on the cards” that the unredacted portions are relevant or would assist the Grounds relied upon by the Applicant, and accordingly I am not satisfied that they are sought for a legitimate forensic purpose.

Public Interest Immunity?

31.As I have found that the production to the Applicant of the unredacted portions of the documents subject to the Notice to Produce have no legitimate forensic purpose, the Notice to Produce is liable to be set aside for that reason alone. Nevertheless, I proceed to consider the issue of whether the Notice to Produce ought be set aside on the basis of public interest immunity.

32.An objection can be made to the production of a document because it would be against the public interest to disclose its particular contents or because it belongs to a class of documents which in the public interest ought not be produced, whether or not it would be harmful to disclose the contents of the particular document: Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 39.

33.In R v Lipton (2011) 82 NSWLR 123 at 148 [84] McColl JA said:

[84] Public interest immunity is a doctrine of substantive law. It represents a fundamental immunity. It allows for the withholding of documents in a variety of circumstances where disclosure of the documents would harm the public interest. The balancing process applied in determining whether a claim for public interest immunity should be upheld requires that the public interest in confidentiality must be weighed against the public interest in disclosure: Whealy J in R v Baladjam (No 31) [2008] NSWSC 1453 at [29] applying Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572 at 588–589. Section 130 of the Evidence Act invokes the same two stage process of analysis as the common law: State of New South Wales v Public Transport Ticketing Corporation at [42]–[43] per Allsop P (Hodgson JA and Sackville AJA agreeing).

34.Further, in Brennan v State of New South Wales [2006] NSWSC 167 at [41] Hall J said:

[41] Public interest immunity is a rule of substantive law and, where applicable (as the Commissioner claims here), it operates to permit documents or information to be withheld in the public interest from a party to criminal or civil proceedings and from being otherwise published. In general terms, the immunity protects information, the disclosure of which would tend to harm the public interest, whether held by a member of the executive government or otherwise. It is the name given to a body of substantive and procedural rules whereby information that is otherwise relevant is withheld on the ground that the public interest in disclosure is outweighed by a competing public interest in its suppression or non-disclosure: see generally Alister v The Queen (1984) 154 CLR 404.

35.It will have already been seen that Mr Minns has deposed that:

a)the redactions to the Identity Assessment Report prevent the disclosure to the Applicant and the public generally of confidential processes which the Department utilises to administer and enforce provisions of the Act and he believes that these processes should remain confidential in order to maintain the Department’s ability to administer and enforce the Act;

b)in relation to the Site Visit Report the redactions prevent the disclosure of the details of the persons who undertook these investigations, the nature and extent of the investigations and the release of information that would risk hindering ongoing identity investigations and / or prosecutions under the Act; and

c)in relation to the Site Visit Email that the redactions prevent the disclosure to the Applicant and the public generally of confidential processes which the Department utilises to administer and enforce provisions of the Act and that the information contained in the email must remain confidential in order to maintain the Department’s ability to administer and enforce the Act. Further, he deposed to believing that the release of the email would risk hindering ongoing identity investigations and / or prosecutions under the Act.

36.At the hearing Mr Gormly responsibly conceded that the bases of the claims for public interest immunity set out in the Key are in truth proper bases on their face for public interest immunity but could “not concede that the public interest would be injured… by the disclosure of the redactions because we don’t know, so we can’t concede that… we say that we’re not in a position to say that the public interest would be injured by the disclosure of that document”. This was a reference to the fact that Mr Gormly was at all material times at the disadvantage that the redactions have never been identified to the Applicant or him as Counsel.

37.I am of the view that the 17 documents the subject of the Key are prima facie protected from production by public interest immunity on the bases explained in the Key. The redacted portions are in documents of a confidential nature which relate to investigations by the Department of irregularities or breaches in relation to the Act. They are of similar kind to the documents of the Australian Securities Commission considered by Drummond J in Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427 at 431, where he said as follows:

I have no difficulty in accepting the general proposition that the activities of the Commission are such that, in a proper case, it would be entitled to justify non-production to a party against whom it has court proceedings on foot of documents relevant to the issues between them on the ground that such non-production is justified by a claim of public interest immunity.

In Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311 at 312, McLelland J said:

"In my opinion, documents within the possession of the [National Companies and Securities] Commission of a confidential nature recording information received by the Commission relating to possible offences or irregularities, or recording information received in the course of the investigation of possible offences or irregularities, including the identity of informants, and confidential documents recording the actual or possible course of such investigations or particulars of available or potentially available evidence, are in the public interest prima facie immune from compulsory disclosure, on the basis that such disclosure would be likely to seriously impede the ability of the Commission to fulfil its function of effectively investigating possible offences under, inter alia, the Companies (New South Wales) Code, and in appropriate cases instituting and prosecuting criminal or civil proceedings in the public interest.

I see no difference in substance for the present purposes between  such an investigation by the Commission on the one hand and the investigation by the Police of possible criminal offences in other areas on the other."

38.On appeal in the Full Court, Lockhart J in Zarro v Australian Securities Commission (1992) 36 FCR 40 at 46 said:

Documents within the possession of the ASC (an investigative and law enforcement agency) of a confidential nature, which record information received by it concerning possible offences or irregularities and recording the possible course of investigations or information with respect to evidence concerning proceedings to which the ASC is a party, plainly may fall within the scope of public interest immunity...

39.I find that the Minister has established a prima facie basis to his assertion of public interest immunity in the redacted portions of the documents that comprise Annexure AL-2. If I had found that any of the redacted documents did have a legitimate forensic purpose for being sought then I would have had to engage in the balancing exercise of on the one hand taking into account the damage that would be done to the public interest by producing the documents falling within the class of protected documents and on the other hand the evidentiary value and importance of those documents in the context of this particular litigation and whether that evidentiary value and importance outweighed any damage that would be caused to the public interest by production of documents otherwise protected by public interest immunity.

40.However, as I have found that the production of the redacted portions does not have a legitimate forensic purpose, that normally required balancing exercise cannot be meaningfully undertaken. It would be a nonsense to abstractly and theoretically consider the redacted portions as having a legitimate forensic purpose and balance them against the claim of public interest immunity, when I have found that the redacted portions do not in truth have a legitimate forensic purpose.

Conclusion

41.The redacted portions of the documents comprising Annexure AL-2 do not have a legitimate forensic purpose in relation to this proceeding and I have upheld the Minister’s claim to public interest immunity in respect of them. Accordingly, the Notice to Produce will be set aside.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date: 29 October 2020