CAMPBELL v Australian Crime Commission (No.2)

[2015] FCCA 3065

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMPBELL & ANOR v AUSTRALIAN CRIME COMMISSION (No.2) [2015] FCCA 3065

Catchwords:
PRACTICE AND PROCEDURE – Suppression and non-publication orders – relevant considerations.

Legislation:  

Administrative Decisions (Judicial Review) Act 1977

Federal Circuit Court of Australia Act 1999, ss.88E, 88F, 88G

First Applicant: PETER CAMPBELL

Second Applicant: HENRY EDWARD ALEXANDER SMART

Respondent: AUSTRALIAN CRIME COMMISSION

File Number: SYG 1556 of 2013

Judgment of: Judge Cameron

Hearing date: 9 November 2015

Date of Last Submission: 9 November 2015

Delivered at: Sydney

Delivered on: 20 November 2015

REPRESENTATION

Solicitors for the Applicants: Mr E. Chee of Nyman Gibson Miralis

Solicitors for the Respondent: Mr M. Varley of the Australian Government Solicitor’s Office

ORDERS

1. The applicants’ application in a case filed on 28 August 2015 be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1556 of 2013

PETER CAMPBELL

First Applicant

HENRY EDWARD ALEXANDER SMART

Second Applicant

And

AUSTRALIAN CRIME COMMISSION

Respondent

REASONS FOR JUDGMENT

Background

1. In 2013 the applicants were each served with summonses which required them to attend before the Australian Crime Commission (“ACC”) for compulsory examination.  They subsequently applied to this Court for orders under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) that the summonses be set aside or quashed and that the ACC destroy the records of their examinations and anything they had produced during those examinations. Amongst other matters alleged, the applicants asserted that the decisions to issue the summonses were made without power, amounted to denials of procedural fairness and involved failures to have regard to considerations said to have been relevant.

2. In an application in a case filed on 19 September 2013 the applicants sought orders requiring the ACC to provide them with the reasons for the issuing of the summonses.  They also served two subpoenas for production seeking documents associated with the issuing of the summonses.  The ACC, for its part, sought security for costs.  On 9 December 2013 I ordered that the applicants’ application in a case be dismissed and that they provide security for the ACC’s costs.

3. Later, the whole proceeding was settled.  In consent orders made on 16 May 2014, it was relevantly ordered:

   (1)The Respondent destroy (physically, digitally or otherwise) any and all originals and any and all copies of the following items and materials that are in its possession (to the extent that the entire item and its contents cannot be used, read, examined, interpreted or understood by any means whatsoever and removed from existence to the extent that the item cannot be and must not be reproduced, reassembled, recreated or brought back into existence in anyway):

   i.all records of the Applicants’ compulsory examinations, including any electronic records;

   ii.all notes including handwritten notes taken by persons present during the Applicants’ compulsory examinations;

   iii.     all material produced by the Applicants or tendered during the course of their examinations, including materials imaged and downloaded from electronic devices owned by the Applicants including:

   a.     1 x Apple iPhone brand mobile IMEI no. 013346005427036;

   b.     1 x Blackberry brand mobile - IMSI no. 359850040179421;

   c.      1 x LG brand mobile - IMSI 355296050720551;

   d.     1 x Macbook Pro brand laptop computer; and

   e.      1 x SIM IMSI no. 51010143032655;

   iv.     all material produced by the Applicants to the Respondent pursuant to written or oral notices to produce; and

   v.     all material removed from the Applicants by Australian Customs which was provided to the Respondent pursuant to a request by the Respondent, including:

   a.     items photocopied from the Applicants’ wallets and credit card details; and

   b.     data generated from a digital forensics acquisition (under s 16 of the Customs Administration Act 1985 (Cth)) of Apple iPhone 5 IMEI no. 013346005427036.

   The Court also noted:

   5.The Respondent no longer wishes to access or disseminate the material referred to in order 1.

4. The then Australian Customs and Border Protection Service (“Customs Service”) entered into a similar agreement with the first applicant in respect of information it held arising out of its separate acquisition and examination of electronic devices owned by him.

Present application

1. These reasons concern a further application in a case which was filed by the applicants on 28 August 2015 seeking orders prohibiting access to or publication of material held in the Court’s file in this matter on the grounds that such orders were necessary to prevent prejudice to the proper administration of justice or prejudice, harm or damage to them.  The applicants identified in this regard fifteen documents or sets of documents as well as undefined “other documents in support of this application”.  With the exception of the undefined “other documents”, the documents identified were annexed to the affidavit of the applicants’ solicitor, Mr Chee, filed in support of the application in a case. 

2. The ACC neither consented to nor opposed the orders sought by the applicants.

Relevant legislation

1. The Federal Circuit Court of Australia Act 1999 (“the Act”) relevantly provides:

   88E Safeguarding public interest in open justice

   In deciding whether to make a suppression order or non‑publication order, the Federal Circuit Court of Australia must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

   88F Power to make orders

   (1) The Federal Circuit Court of Australia may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

   (a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Federal Circuit Court of Australia or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Federal Circuit Court of Australia; or

   (b) information that relates to a proceeding before the Federal Circuit Court of Australia and is:

   (i)      information that comprises evidence or information about evidence; or

   (ii)     information obtained by the process of discovery; or

   (iii)   information produced under a subpoena; or

   (iv)    information lodged with or filed in the Federal Circuit Court of Australia.

   (2) The Federal Circuit Court of Australia may make such orders as it thinks appropriate to give effect to an order under subsection (1).

   88G Grounds for making an order

   (1) The Federal Circuit Court of Australia may make a suppression order or non‑publication order on one or more of the following grounds:

   (a) the order is necessary to prevent prejudice to the proper administration of justice;

   (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

   (c) the order is necessary to protect the safety of any person;

   (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

   (2) A suppression order or non‑publication order must specify the ground or grounds on which the order is made.

Applicants’ submissions

1. Noting that the ACC and the Customs Service had destroyed materials relating to them, the applicants submitted that the Court’s file for the present matter still contained copies of documents:

   … which refer to the fact that the Applicants were said to be involved in  criminal activity, were examined about their criminal activity and made admissions concerning their involvement, during their compulsory examinations.

2. The applicants argued that the fifteen specific documents and the “other [unspecified] documents” contained the sort of information referred to in s.88F(1) of the Act. The information which the applicants sought suppressed was information which they said tended to reveal their identities, information that comprised evidence in this proceeding, information produced under subpoena and information lodged with or filed with the Court.

3. The applicants submitted that as the ACC and Customs Service had destroyed documents and material relating to their examinations “and any evidence that is capable of being used to demonstrate what they were asked, their responses and material from which such information might be derived”, it would be anomalous if the public could have access to material on the Court’s file which might be capable of demonstrating the same matters.  It was submitted that the consent orders and negotiations between the first applicant and the Customs Service might be rendered “all but nugatory” if a non-publication order were not made in respect of the documents the applicants identified in their application in a case.  The applicants also argued that reference in the Court’s file to the fact that they had attended compulsory examinations offended the spirit of the consent orders which, they said, had been concerned with the destruction of all documents in the ACC’s possession which referred to the fact that the examinations had taken place.  They submitted that the availability of such information would “undo the spirit of the consent order[s]”.

4. The applicants submitted that the non-publication orders they sought ought to be made in order to avoid prejudice to the administration of justice, in the sense that the full operation of the Court’s consent orders and the agreement between the first applicant and the Customs Service should not be compromised. They argued that until a non-publication order was made, the consent orders and agreement with the Customs Service would be of limited effect. This argument sought to engage s.88G(1)(a) of the Act, quoted above.

5. The applicants further submitted that harm to their reputations might follow from public access to material in the Court’s file. They also submitted that as the Court’s file contained information concerning their places of residence, harm or damage to them might follow from public access to the file. This argument appeared to seek to engage s.88G(1)(c) of the Act, also quoted above.

Consideration

1. I have considered the fifteen specific documents identified by the applicants as well as the transcripts of proceedings in this Court which were annexed to Mr  Chee’s affidavit.  No arguments were addressed to the “other documents” and they were not identified.  In those circumstances they need not be further considered.  For the reasons which follow, the application in a case will be dismissed.

2. The basis of the applicants’ principal argument was that if information obtained through coercive powers possessed by the ACC and the Customs Service was subsequently destroyed then documents in a court file which referred to the fact that information had been obtained, what had been obtained and the reasons why it had been obtained deserved to be kept confidential to the parties. 

3. One aspect of this argument, that it was in the interests of the administration of justice to suppress or prevent the publication of the contents of the Court’s file, implied that information in that file was the same as at least some of the information which the ACC and the Customs Service had agreed to destroy.  If that were the case then the applicants’ arguments might have had better prospects of success, however, there is no evidence that it is the case.  The applicants did not point to anything in the Court’s file which records the substance of the evidence they gave at their compulsory examinations or the information which they otherwise gave or surrendered to the ACC and the Customs Service.  In particular, I was not taken to any material in the Court’s file which recorded that the applicants had made to the ACC any admission of misconduct.  The Court’s file does contain a confidential exhibit but I am unaware of its contents as it was placed, and remains, in a sealed envelope which is not to be opened without an order of the Court.

4. The other aspect of the applicants’ principal argument concerned their assertion that availability on the Court’s file of information that they had attended the ACC for compulsory examination offended the objects of the consent orders. Contrary to this contention, no such object emerges from the terms of the consent orders, which have relevantly been quoted earlier at [3]. The consent orders are concerned with destruction of the information obtained from the applicants as a result of the compulsory examinations, and of the records of that information, not with the fact that the examinations took place. The orders do not require the ACC to destroy all record of the examinations having taken place. Consequently, the fact that the Court’s file also records the same information is not inconsistent with the objects of the consent orders.

5. Importantly for present considerations, the Court’s file records that the applicants brought proceedings against the ACC which were settled in their favour.  In particular, it records that information provided to the ACC was to be destroyed and that the ACC “no longer wishe[d] to access or disseminate the material” which the applicants had provided or surrendered.  In those circumstances, the full effectuation of the Court’s orders of 16 May 2014 will not be compromised by a refusal by the Court to make the orders sought in the application in a case filed on 28 August 2015.  The potential accessibility of such information on the Court’s file will therefore not prejudice the proper administration of justice as claimed.  Similar considerations also apply to the settlement of the first applicant’s litigation with the Customs Service, although that information did not appear on the Court’s file until the present application in a case was filed.

6. The conclusion that the proper administration of justice will not be prejudiced by the potential public availability from the Court’s file of the information which the applicants seek suppressed or made subject to a non-publication order, is supported by s.88E of the Act and by the importance of openness to the administration of justice. Although the Court’s file contains documents which record the fact and the basis of the ACC’s interest in the applicants, as far as the present proceeding is concerned the ACC’s concerns remain no more than allegations. In the context of the present proceeding, particularly where the ACC has stated, and the Court has noted, that it “no longer wishes to access or disseminate the material”, the interests of the administration of justice lie more in public awareness that the ACC, and Customs Service, reconsidered their positions following litigation than it does in suppressing the fact that the applicants were compelled to attend compulsory examinations and to provide or surrender information.

7. The applicants advanced only one other argument which might have engaged s.88G. That submission, appearing in the applicants’ written submissions under the heading “Prejudice, harm and damage to the Applicants”, was an assertion that harm to them or to their reputations might follow from public access to material in the Court’s file. Potential damage to reputation is not a ground for the grant of suppression or non-publication orders under s.88G. Further, no persuasive case was made out that the safety of the applicants, or anybody else, was placed at risk because of information contained in the Court’s file, including information concerning where the applicants resided. Specifically, the applicants did not suggest how, why or at whose hands their or another person’s safety might be at risk if the orders sought were not made.

Conclusion

1. I find that the applicants have not satisfied the criteria set out in s.88G of the Act for the making of suppression or non-publication orders.

2. Consequently, the applicants’ application in a case filed on 28 August 2015 will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 20 November 2015