Chief Commissioner of Police (Victoria), Applications by

[2004] HCATrans 331

[2004] HCATrans 331

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  Nos M34, M35, M49, M50
  M102 and M103 of 2004

In the matter of –

Applications by the CHIEF COMMISSIONER OF POLICE (VICTORIA)

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 SEPTEMBER 2004, AT 10.01 AM

Copyright in the High Court of Australia

MS A. MENDES DA COSTA:   May it please the Court, I appear for the Chief Commissioner of Police.  (instructed by Victorian Government Solicitor)

MS V.C. BYRNE:   May it please the Court, I appear for The Age Newspaper Ltd, which was an intervener in the proceedings.  (instructed by Minter Ellison)

HIS HONOUR:   Now, I have before me a summons and there is an affidavit which has been sworn.  I think I will not identify the name of the deponent, but you rely on and read that affidavit, do you?  You put that before me?

MS MENDES DA COSTA:   Yes, I do, your Honour.

HIS HONOUR:   Well, just let me take a moment to remind myself of its provisions.  Yes, I have read the affidavit of the deponent sworn 7 September 2004.

MS MENDES DA COSTA:   Your Honour, in paragraph 5 the deponent refers to an article which he believes, or believed, would be published in The Age newspaper today.  That article, or articles, have been published today, as has an article in The Herald Sun newspaper.  I have the newspapers in Court with me and I am instructed that items have appeared on radio and television in Melbourne this morning regarding this matter.

HIS HONOUR:   Yes, well, I have no knowledge of those facts, but I assume that they would be uncontroversial and matters of public record.

MS MENDES DA COSTA:   Yes, your Honour.

HIS HONOUR:   The purpose of the summons, as I understand it, is to provide for the restriction of access to the documents but, as I understood it, the object of the summons is really restricted to limiting access to the names of the detectives who were involved in the proceedings, is that correct or not?

MS MENDES DA COSTA:   It goes further than simply the names, your Honour.  It goes to the transcripts of the evidence given by the undercover operatives in camera in the Supreme Court hearings in relation to Favata and Tofilau and that evidence refers to matters involving the history and experience of the operatives, particularly the deponent and also refers to the operations of undercover operatives in Victoria. 

HIS HONOUR:   Well, of course, the Court has made orders in the proceedings which were before the Court in Adelaide and those orders have not yet been the subject of published reasons by the Court.  So at this stage the full extent of the Court’s reasoning is not known to your client or to The Age newspaper or, indeed, to the general community so that what I would be inclined to do would be to give some relief but limited to the interval between now and the publication of the Court’s reasons, because on one view, the Court might say well, the reasons for the dismissal of the orders was that there was no substance in the Chief Commissioner’s arguments.  On the other hand, the reasons might give some comfort to the Chief Commissioner’s application.  That will not become known until the reasons are published and so that I would be inclined to give some protection until they are published and to have the matter returned before the Court after that time. 

I must say to you, however, there is a public interest in this matter and in a sense, it is left to the Judges to protect the public interest.  The Chief Commissioner has the interests of the Victoria Police to protect and that is entirely understandable.  The Age newspaper, which is here as an intervener, has the interest of its newspaper and perhaps of media to protect, but who is here to protect the public interest if it is not the Court?

MS MENDES DA COSTA:    Yes, your Honour, though the material – certainly the identity of the undercover operatives is protected in terms of publication by various suppression orders made by the Supreme Court of Victoria ‑ ‑ ‑

HIS HONOUR:   But as I remember it, and I am going on my recollection of the argument in the case now, those suppression orders only lasted for an interval of time until after the conclusion of the case.  Is that not correct?

MS MENDES DA COSTA:   It is correct, your Honour, though yesterday his Honour Mr Justice Teague made continuing suppression orders which will operate until 31 December 2005 in three of the matters.  Those orders will prohibit, or do prohibit publication of the names of the undercover operatives and any information or pictures, photographs or drawings which would identify the undercover operatives, and similar orders have been made by other judges in the court this week.

HIS HONOUR:   Those orders are perfectly normal orders to protect the names of police informers and persons of a similar kind.  Such orders are commonly made, but what you are seeking by your summons is a restraint on access to the court’s records in the confidential supplementary documents in identified proceedings, and that goes beyond the suppression of the identity of the undercover agents.  It goes far beyond that.  It goes to everything that is in those supplementary documents.

MS MENDES DA COSTA:   In particular, in terms of the supplementary documents, your Honour, what is sought in terms of a restriction is in particular the transcript of the evidence of the two undercover operatives given in the Supreme Court proceedings.  Those transcripts are not available in any event.  Mr Justice Teague indicated yesterday in relation to the matter of Favata that he was not prepared to order the release of that transcript of the in-camera proceedings and, in fact, would be taking steps to keep that transcript, and it would not be placed on the court file.

In my submission, your Honour, apart from this Court’s file, there is not generally access available to others to these transcripts, and certainly in relation to the names of the undercover operatives, that information is not available and cannot be published, but access can be gained, in my submission, at this point to this Court’s file which would identify those two operatives, and, in those circumstances, would render ‑ ‑ ‑

HIS HONOUR:   Would it not be a response to the concern of the Chief Commissioner to make an order that provided for the deletion and masking of the names of the operatives, but otherwise made the documents available.

MS MENDES DA COSTA:   In respect of the deponent, your Honour, in my submission, he gave evidence in relation to his own background and training and his current position which, in my submission, would identify him or would enable others to gain information which would identify him.

HIS HONOUR:   Is this material in the so‑called confidential supplementary materials that were placed before the Full Court of this Court?  Is it in that file?

MS MENDES DA COSTA:   Yes, it is, your Honour.

HIS HONOUR:   What is the page reference that you are referring to?

MS MENDES DA COSTA:   The evidence of the deponent to the affidavit, your Honour, commences at page 153.

HIS HONOUR:   Yes, I have that.

MS MENDES DA COSTA:   And, in particular ‑ ‑ ‑

HIS HONOUR:   Just give me an instance of the concern you have that the suppression of the name in that document would not be sufficient for the purpose of preventing identification of the deponent.

MS MENDES DA COSTA:   At the second paragraph of page 156, your Honour.

HIS HONOUR:   Yes, anything else?

MS MENDES DA COSTA:   That in particular, your Honour, is the information which, in my submission, could very well lead to the identification of the deponent.

HIS HONOUR:   I want to tell you that what I am inclined to do is to ensure that the maximum possible material that is on this Court’s record should be available in the normal way in this Court’s files, but I am equally determined that the identity of the undercover operatives should be protected.  Therefore, I would be inclined to make orders for the removal of the name of the operative and for the removal of that passage on page 156, from lines 8 to 21, which in addition to removing the name might lead to the identification of the operative.  If you have any other material in the book that would have that consequence, I would consider removing such identifiers.

MS MENDES DA COSTA:   There is certainly in terms of the affidavits by both operatives.  One commences on page 4, your Honour, and the other on page 94.  The formal details and certainly the first paragraph of each of the affidavits identifies the deponents and also identifies their position and roles in the homicide scenario techniques and certainly the details of the jurat on each of the affidavits identifies the name of the deponents. 

HIS HONOUR:   So that my present inclination will be clear and so that you can address it, my inclination is to make an order suppressing in the records of this Court (a) the identity of the operatives; (b) any indication as to their address; (c) any indication as to their prior service; but as to (d), indications of the techniques, I would only be inclined to make an order protecting that until after this Court’s reasons are handed down because it may be that this Court will, in its reasons, indicate that there is no foundation for ongoing protection of the techniques that was the subject of the arguments and submissions in Adelaide.

MS MENDES DA COSTA:   I certainly do not seek an order in terms of the techniques, given the decision of this Court, your Honour, but I would seek an order and, in my submission, it would be appropriate that there be suppression of any material which would identify the roles of the particular covert operatives in the techniques.

HIS HONOUR:   Would you give me an example of what you are seeking here?

MS MENDES DA COSTA:   It would then prohibit any reference to the ‑ ‑ ‑

HIS HONOUR:   I think you have to be specific about this because you can take it from me, I am not inclined to give a blanket prohibition on all access to the confidential file of supplementary materials.  I am inclined to protect the identity or identifiers of the operatives and to do that to the fullest extent that is just and is in accordance with the ordinary convention of protecting confidence or sources of police information, but beyond that I am not presently inclined to go.

Would it be more helpful to you and to your client for you to go through the book and to make a list of the matters that you want specifically to be suppressed and then for the matter to be listed a little later in the day for the purpose of my ruling on those matters and then a composite order can be composed which covers the prevention of access to any of those matters, at least until after this Court’s reasons have been published, and say two weeks after that, on which date I would be inclined to allow The Age newspaper or any other person with an interest, or the Chief Commissioner, to relist the matter with a view to orders varying those which I make today.

MS MENDES DA COSTA:   Yes, your Honour.

HIS HONOUR:   Do you understand what I am inclined to do?

MS MENDES DA COSTA:   I do, your Honour.

HIS HONOUR:   In the meantime the file is in my possession and therefore there is no prospect that in practical terms anybody has access to it.  Later in the morning I would be inclined to make orders such as you have been seeking, suppressing the name of the deponent, including in the affidavit which has been filed in support of the summons, suppressing the name of the affidavit in the compilation called “Confidential Supplementary Materials”, suppressing the paragraph on page 156 that you have referred to, from which it might be possible to identify the name of the agent, and considering any other passages in the book that you consider would identify the agent.

It would obviously be necessary for someone in your instructing solicitors to prepare a schedule which could be sent to the Registrar of this Court so that they are not searching through the Court file for the purpose of blacking out these names.  Then what I would have in mind would be that the original of the document would be placed in a safe place and access to that prevented, but access to the rest of the document with the deletion of names and identifiers would be available to the public in the ordinary way.  That would mean that the public would have access to the great bulk of the

material but not to anything that would identify the operatives from their name, their address or from any of their past experience which would tend to indicate their name and identity.

MS MENDES DA COSTA:   Yes, your Honour.

HIS HONOUR:   So if you care to get that done and even if it would be possible to prepare a substitute confidential supplementary materials with the identifiers deleted and then come back to me and indicate what you have suggested, then arrangements can be made later in the day for the substitute document to be substituted for the document which is currently in the Court file.

MS MENDES DA COSTA:   I will attend to that with my instructor, your Honour.

HIS HONOUR:   Yes, very well.  Now, I think I might just ask the representative of The Age, the intervener, Ms Byrne, to let me know whether she has any submissions to make in relation to the course which I have proposed.

MS BYRNE:   Thank you, your Honour.  Your Honour, we have no objections in relation to the course your Honour proposes, just with the caveat, that is the material that the Chief Commissioner’s instructors propose to seal up, as it were, is specifically limited to, I suppose, matters (a), (b) and (c) which your Honour referred to earlier.  Subject to that, we have no objections.  We should point out obviously that we hold a number of copies of the confidential material, which we will obviously keep.  That has been provided to us in the course of the proceeding, but obviously we will be subject to the suppression order your Honour makes in relation to those specific parts of the material. 

HIS HONOUR:   Yes, well, I remember very distinctly that at the return of the matter in Adelaide counsel for The Age Newspaper Ltd indicated that it was not the submission of your client that the identifiers of the police operatives and undercover agents should be made public, and that that was not your intention. 

MS BYRNE:   That is correct, your Honour. 

HIS HONOUR:   That would certainly be my intention, that that should not be done.  Indeed, that conforms to the very well‑settled principles that protect confidential sources of information to police, which is a well‑established category that is protected by the courts.  Save for that, and save for any arguments that Ms Mendes Da Costa can suggest, that would

be the extent of the suppression that I would be inclined to make at the moment. 

MS BYRNE:   We would make no further submissions in relation to that, your Honour. 

HIS HONOUR:   Very well.  Ms Mendes Da Costa, when would you be in a position to come back to the Court?  I mean, strictly speaking, it ought to have been available now, but when would you be in a position to come back to the Court with your indication of the exact material that you wish to have blacked out in the record of the Court, so that the rest of the material can be available to the public for inspection in the ordinary way? 

MS MENDES DA COSTA:   This afternoon, your Honour, depending, of course, on the Court’s convenience, if I might – if it is convenient, your Honour, may I suggest later in the afternoon.  I will have my instructor prepare the revised confidential supplementary materials, which will be available at that stage, as well as the schedule of particular items and material. 

HIS HONOUR:   Would it be appropriate at 3 o’clock this afternoon?  Is that convenient? 

MS MENDES DA COSTA:   Yes, your Honour. 

HIS HONOUR:   Very well.  Is there any other material, except the confidential supplementary materials and the affidavit which has been filed in support of this summons that has the potential to identify the names or other identifiers of the police operatives concerned? 

MS MENDES DA COSTA:   Not that I am aware of, your Honour.  I am instructed ‑ ‑ ‑

HIS HONOUR:   So that if the Court makes orders which address both the content of the supplementary materials and the content of the affidavit in support of the application before me now, that will cover entirely the concerns insofar as they relate to the file of this Court? 

MS MENDES DA COSTA:   Yes, your Honour. 

HIS HONOUR:   The Internet publication of the argument in Adelaide, I gather, is imminent.  There is nothing in that transcript of the proceedings before the High Court in Adelaide that identified the operatives, from my recollection, but is that your understanding? 

MS MENDES DA COSTA:   That is my understanding, your Honour. 

HIS HONOUR:   You might have that checked as well. 

MS MENDES DA COSTA:   I will have that checked. 

HIS HONOUR:   So that you can say this afternoon whether there is any aspect of that.  I think care was taken, in accordance with the precedent in the Leveller Case, to take precautions not to identify the names or other identifiers of the operatives during the argument in Adelaide, but just in case there is anything there that is of concern, that might be identified at 3 o’clock this afternoon. 

MS MENDES DA COSTA:   I will have those checks made, your Honour. 

HIS HONOUR:   Very well.  I will adjourn this application until 3 o’clock this afternoon and in the meantime I will keep all of the files of the High Court of Australia in my close possession. 

MS MENDES DA COSTA:   Thank you, your Honour.  I understand Ms Byrne has another matter to raise, your Honour. 

MS BYRNE:   Sorry, your Honour, just one point to make is that in the confidential material is the Court of Appeal judgment and we should just make clear that we would object to anything in the Court of Appeal judgment being sealed up.  I believe that there is nothing in there which would tend to identify any of the undercover police operatives and, indeed, the Court of Appeal took care as well, just as the High Court has done in relation to the transcript of the recent hearing, to make sure that is the case. 

HIS HONOUR:   Yes.  Is the Court of Appeal judgment now on the Internet? 

MS BYRNE:   Not that I am aware of yet.  I checked last night. 

HIS HONOUR:   That could perhaps be checked, because I thought – and I may be wrong – the High Court said in Adelaide that there was no reason why that should not be publicly available.  Indeed, I think I expressed the view that it ought to be, given that that was the subject which was the source of the jurisdiction and power of the High Court in dealing with the matter which was before it when it heard the case in Adelaide. 

MS BYRNE:   Yes, your Honour.  We checked with the Court of Appeal registry, who confirmed that after 4.00 pm yesterday they would be taking steps to place the judgment in the library and on the Internet. 

HIS HONOUR:   Very well.  That ought to be done, subject to the Chief Commissioner making a last check that there is nothing in that that has a risk of identifying the police operatives or undercover operatives concerned. 

MS BYRNE:   Yes, your Honour. 

HIS HONOUR:   If there is any question about that, it is not for this Court to interfere in the procedures of the Court of Appeal of the Supreme Court of Victoria, but if there is any concern about it, insofar as it is in our confidential supplementary materials, then I can deal with that at 3 o’clock. 

MS BYRNE:   Yes, your Honour, thank you. 

HIS HONOUR:   Thank you very much.  The Court will adjourn now until 3 o’clock. 

AT 10.27 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 3.05 PM:

HIS HONOUR:   Yes, Ms Mendes Da Costa, you are there I understand?

MS MENDES DA COSTA:   Yes, I am, your Honour.

HIS HONOUR:   Is there anybody present for the intervener?

MS MENDES DA COSTA:   There is a gentleman present from the offices of Minter Ellison, but I am not sure whether he is instructed to appear, your Honour.  I think he is here ‑ ‑ ‑

HIS HONOUR:   Are they the solicitors for the intervener, for The Age newspaper?

MS MENDES DA COSTA:   Yes, they are, your Honour.

HIS HONOUR:   Well, let him stand up and announce his name so that we have it on the record.

MS MENDES DA COSTA:   If your Honour pleases.

MR T.G. SEDAL:   Tristan Sedal, your Honour.

HIS HONOUR:   And you are from the solicitors for the intervener?

MR SEDAL:  I am, your Honour.

HIS HONOUR:   And you do not have anything to say at this stage in relation to the matter?

MR SEDAL:   No.  From what we understand, we have no objections to what is being proposed.

HIS HONOUR:   Yes, thank you very much.  That is what Ms Byrne told us this morning.  Thank you for coming along.

MR SEDAL:   Thank you, your Honour.

HIS HONOUR:   It is a courtesy to the Court, thank you.  Now, Ms Mendes Da Costa, I have faxed to the Registrar a schedule which asks that two classes of documents in the public records of the High Court of Australia be the subject of restriction.  One of them is the reference throughout the confidential supplementary materials that were before the Court of the restriction on the access to the names of the two undercover police operatives.

MS MENDES DA COSTA:   Yes, your Honour.

HIS HONOUR:   The other relates to certain pages, which I will have a look at now.  As to the first one, you will remember this morning I suggested that what would probably be the appropriate course in order to ensure that the public record of this Court was, so far as possible, in the normal state and available for anybody who cared to examine it, that what we would seek to do would be to have a new compilation of the confidential supplementary materials with a black line through the names of the operatives so as to make their names undetectable in the record.  Now, is that something that your solicitors or officers of the Victoria Police have already done or will do?

MS MENDES DA COSTA:   Have done, your Honour, in respect of both the joint appeal, joint application book and also the confidential supplementary materials.  I have both of those materials, your Honour, with the appropriate markings in black on them.

HIS HONOUR:   Now, could that be faxed up to the Court or couriered to the Registry of the Court overnight so that it was available tomorrow morning?

MS MENDES DA COSTA:   Yes, your Honour.  I am able to give them to the Registrar now.

HIS HONOUR:   Well, if you give them to the Registrar in time, they can be put on the courier that comes to the Court and be available overnight to us for placement in the files of the Court here in Canberra.  We have, as I understand it, the only set of the files in possession of the High Court of Australia.  Is that your understanding?

MS MENDES DA COSTA:   Yes, that is my understanding, your Honour.

HIS HONOUR:   Yes, that is what the Registrar confirms.  Therefore, if we have a new compilation which deletes the names, then that can be substituted for the joint application book and the confidential supplementary materials book in relation to those several proceedings that are before the Court.  The Registry will, of course, make a spot check to make sure that the only matters which are being blacked out in that respect are the names of the operatives, but so long as that is satisfied to the satisfaction of the Registry here that will then be substituted for the documents which are presently in the file and those documents will be placed in a safe place, as I will later order.

Now, let us look to the pages that you have asked to be deleted in respect of the lines which are mentioned.  Page 156, that was a section that you referred to this morning, I think, and it relates to one of the two undercover operatives.  Your submission is, as I recollect it, that that section identified as page 156, lines 8 to 30 might identify the police operative concerned.

MS MENDES DA COSTA:   Yes, your Honour, it refers to his experience and then his involvement in relation to the Tofilau matter.

HIS HONOUR:   Yes, I see all that.  Well, on the basis of that submission, I would be content that that section should be masked on page 156 from lines 8 to 21 as potentially identifying the police operative concerned.  Now, page 157, what is the point on that page?  This is lines 4 to 6.

MS MENDES DA COSTA:   Yes, in those lines the deponent to the affidavit identifies himself as the person who ‑ ‑ ‑

HIS HONOUR:   Has been involved in an earlier matter.

MS MENDES DA COSTA:   ‑ ‑ ‑ performed in the Mr Big role.  In my submission, there is the potential to identify him in those circumstances.

HIS HONOUR:   Very well.  I would accept that submission.  Now, what about page 158, lines 2 to 3?

MS MENDES DA COSTA:   In fact, in my submission, your Honour, there is an error there.  It should be lines 1 to 3 because in the first line the question identifies the deponent as the person who gave evidence in the voir dire.

HIS HONOUR:   Yes, I see that.  Well, I would accept that lines 1 to 3 on page 158 should also be masked.  The documentation which you are to courier up through the Melbourne Registry will contain a masking of those three sections, is that correct?

MS MENDES DA COSTA:   Yes, your Honour, it is correct.

HIS HONOUR:   And subject to the masking of the identity of the names of the undercover operatives which are referred to in paragraph 1 to the schedule and to the masking of the sections of the confidential supplementary materials noted in paragraphs 2, 3 and 4 of the schedule, that satisfies the concerns of the Chief Commissioner that the joint application book in the High Court and the confidential supplementary materials book in the High Court remove all identifiers of the two police officers undercover operatives concerned?

MS MENDES DA COSTA:   Yes, it does satisfy the applicant, your Honour.

HIS HONOUR:    Yes, very well.  Well, I am content to make all of those orders.  Now, what about the question of the duration of the orders?

MS MENDES DA COSTA:   I recall this morning your Honour considered it may be appropriate to adjourn this matter until a period after the reasons for judgment have been delivered by this Court and, as I recall, your Honour suggested a period of two weeks following the delivery of the reasons.

HIS HONOUR:   I did that and it is a question of whether the matter should be kept alive and determined before a member of the Court or whether it would simply be sufficient to make the orders operate indefinitely but after two weeks following the delivery of the reasons of the Court to permit the Chief Commissioner or the intervener or any other party with an interest to make application to the Court for variation of the orders now made.

MS MENDES DA COSTA:   Certainly from my client’s perspective, your Honour, there will be ongoing concerns about the safety of the two undercover operatives beyond the delivery of the reasons by this Court, and certainly my client seeks orders of an indefinite nature.  If your Honour is, with respect, not minded to make an indefinite order, I would certainly seek to keep the matter alive so that my client may come back before the Court following the delivery of the reasons.

HIS HONOUR:   What has been done by the judges of the Supreme Court of Victoria in respect of the protection of the identity of the police officers, the undercover agents, concerned?

MS MENDES DA COSTA:   His Honour Mr Justice Teague and one other judge have made orders which will operate until 31 December 2005.  His Honour Mr Justice Cummins has made an indefinite suppression order. 

HIS HONOUR:   My own inclination is to make an indefinite order, because this order is simply relating to the identity of the officers concerned and every other aspect of their part in the proceedings is available, but to give leave to either the Chief Commissioner or the intervener or any other person with an interest to make application for the variation of that order after the delivery of the reasons of this Court.  Then that would just follow its course as an application made in the usual way. 

MS MENDES DA COSTA:   Yes, your Honour.  I would not seek to dissuade your Honour from that course of action.  In my submission, that would be appropriate. 

HIS HONOUR:   Yes, very well.  Thank you for your assistance today, Ms Mendes Da Costa, and thank you also to the representatives of The Age Newspaper Limited.

MS MENDES DA COSTA:   Your Honour, if I might just mention one matter, I am reminded by my instructor.  In respect of page 156 of the confidential supplementary materials, the applicant seeks to have masked lines 8 to 30.  Your Honour, my instructor reminds me, mentioned lines 8 to 21.  Lines 8 to 30 actually appears at item No 2 of the schedule. 

HIS HONOUR:   Yes, that is correct. 

MS MENDES DA COSTA:   In my submission, your Honour, those additional lines do also refer to the role of the deponent in these matters. 

HIS HONOUR:   Very well, I will make reference to that.  Thank you.

MS MENDES DA COSTA:   Thank you, your Honour. 

HIS HONOUR:   I am dealing with a summons which was filed by the Chief Commissioner of Victoria Police (“the Chief Commissioner”).  The Chief Commissioner was the applicant in earlier applications for special leave to appeal which were referred into a Full Court and the appellant against orders made by the Supreme Court of Victoria (Court of Appeal).  Those proceedings were heard in Adelaide in August 2004.  Orders were made by this Court dismissing the applications for special leave and the appeals.  The reasons for those orders were reserved.  The matters still stand for the publication of reasons. 

Meantime, this summons was issued seeking orders from this Court that access to certain documents in the possession of the Registry of the High Court of Australia should be restricted.  The purpose of that summons was described as being to protect the identity of two police undercover operatives who gave evidence, and otherwise took part or are referred to in the proceedings, that were the subject of the applications and appeals respectively to this Court.

It is conventional in legal proceedings, at least for a certain time, for courts to protect the identity of police undercover operatives and informers.  Normally this is done by adopting what is commonly called “the Leveller” expedient or some variation of it:  Attorney‑General v Leveller Magazine [1979] AC 440 at 471; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 56. The fundamental reason for that approach is public policy which is designed to ensure that the sources of information that are available to police in the prosecution of their duties do not dry up; nor are the lives of persons who give such evidence or take such actions endangered by the public disclosure of their identities.

I consider that, at least at this time, it would be conformable with this well-established practice of the courts to provide protection to the identity of the undercover operatives who are referred to in this Court’s documentation.  The Age Company Ltd, which was an intervener before the Court in the hearing of the applications and appeals, appeared before the Court today.  On behalf of the intervener it was indicated that there was no objection to the course of action that was sought by the Chief Commissioner.  No other person has intervened, or appeared, to express a contrary view.  Of course, it remains for the Court to protect the public interest in the open administration of justice and the availability to public inspection of the materials upon which the cases have been argued and decided.  A certain difficulty arises from the fact that the reasons of this Court are not yet available to elucidate the foundation for the orders that were made.  Those reasons may or may not cast light on the subject matter of this summons.  The reasons will be published in due course.

When those reasons are published, it may be appropriate for the Chief Commissioner or The Age Company Ltd or any other person with an interest to approach the Court to vary the orders that I will now make.  Indeed, other supervening circumstances may lead to such an application. 

For the time being, however, I am satisfied that orders providing for the masking of material in the documentation held in the Registry of the High Court of Australia should be made in terms of the schedule which has been provided to the Court by counsel for the Chief Commissioner.  This will leave the overwhelming majority of the materials that were before this Court in the applications and appeals open to inspection in the ordinary way so that an inquirer would be able to understand the proceedings and issues in this Court from the file.

The orders that I make are:

1.        That the public documents in the files of the High Court of Australia Registry, being the joint appeal and joint application book and the confidential supplementary materials book that were before this Court in the hearing of the applications and appeals Nos M102 of 2004, M103 of 2004, M49 of 2004, M50 of 2004, M34 of 2004 and M35 of 2004 and the affidavit in support of this summons, be substituted by documents which mask the names and identity of the two police operatives referred to in such documents;

2.        That the masking referred to in 1 cover the names of the two undercover operatives presently identified in those records wherever they appear and cover lines 8 to 30 of page 156 of the confidential supplementary materials book, lines 4 to 6 of page 157 of that book and lines 1 to 3 of page 158 of that book;

3.        That the foregoing orders remain in force until any later or other order of a Justice of this Court or of the Court;

4.        I grant liberty to the Chief Commissioner of Police of the Victoria Police, to the intervener, The Age Company Limited, or any other person claiming an interest to apply for a variation of the foregoing orders on and after the date following the delivery by this Court of its reasons in the foregoing matters; and

5.        I certify for the appearance of counsel in Chambers.

Is it necessary for me to make an order as to costs, Ms Mendes Da Costa, or not?

MS MENDES DA COSTA:   No, your Honour.

HIS HONOUR:   As it is a proceeding ex parte, I do not assume that it is.

MS MENDES DA COSTA:   No.  In my submission, it is not necessary.  There is one matter, again, that my instructor reminds me of, your Honour.  There are some duplicates, as I understand, of the documents in the joint appeal book, joint application book and the confidential supplementary materials which are on the Court’s file.  They are the same documents but appear in bound form and unbound form, your Honour, in terms of the Court’s file and, in my submission ‑ ‑ ‑

HIS HONOUR:   I would direct that all copies of duplicates of the unedited joint appeal and joint application book, the confidential supplementary materials book and the affidavit in support of this summons, which have not been masked in accordance with my order, be placed in a secure place in the Registry of this Court not to be accessed by any person other than a Justice of the Court without the leave of a Justice of the Court first had and obtained.

MS MENDES DA COSTA:   Thank you, your Honour.

HIS HONOUR:   That will leave, of course, copies of the documents that you have referred to, the joint application book and the confidential supplementary materials, in the possession of each of the Justices of the Court who are still considering the reasons which will be given by the Court for the orders that are made.  I do not propose to make any orders in relation to those books because they are in a safe place in the Justices’ Chambers.

MS MENDES DA COSTA:   I would certainly not seek an order in respect of those matters, your Honour.

HIS HONOUR:   A copy of these reasons would, in the ordinary course, be circulated to the Justices.  They will become aware of the orders that have been made.  Those orders are, after all, simply orders that reflect the protection of the identities of the police operatives, which was uncontested at the hearing before the Court in Adelaide and which the Court by its procedures during the hearing then took pains to protect.

MS MENDES DA COSTA:   Yes, your Honour.  I certainly would not seek any further order in that respect.

HIS HONOUR:   Yes, thank you very much.  Is there anything else?

MS MENDES DA COSTA:   No, your Honour.

HIS HONOUR:   Well, they then are the orders of the Court.  You will arrange for the documents with masking that you have to be sent by courier tonight to the Court in Canberra where the records are kept. 

MS MENDES DA COSTA:   I will make those arrangements following the completion of this hearing, your Honour. 

HIS HONOUR:   Thank you very much, Ms Mendes Da Costa.  The Court will now adjourn until 10.15 tomorrow morning.

AT 3.28 PM THE MATTER WAS CONCLUDED