Commonwealth of Australia v Toohey

[1988] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl9 of 1988

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Plaintiff

and

BRIAN TOOHEY

Defendant

DEANE J

(In Chambers)

Toohey

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 NOVEMBER 1988, AT 9.31 AM

Copyright in the High Court of Australia

C3Tl/l/RB 1 22/11/88

MR M.E.J. BLACK, QC:  May it please Your Honour, I appear

with my learned friend, MR C.M. MAXWELL, to inform

the Court further about matters that have been

raised by statements of Mr Peter Hamill. (instructed

by the Australian Government Solicitor.

HIS HONOUR:  Thank you, Mr Black. Mr Black, I note that

the solicitors for Mr Toohey have written to

my associate stating that since the matter does

not appear to be one that affects their client's

interests, he will not be represented.

MR BLACK:	May it please Your Honour.
HIS HONOUR:	Mr Black, if you could just sit down for

one moment, I propose to read on to the record

a brief statement of the circumstances that have

led to the matter being listed for mention before

me this morning.

On Tuesday, 8 November last, shortly after

8 pm, I heard an urgent application by the Government

for an ex parte injunction restraining the

publication of information relating to the Australian

Secret Intelligence Service. The application

was heard in public chambers; that is to say,

in a public sitting of the Court.

Before sitting, I gave specific directions

that there be access to the public and that a notice

be publicly displayed- indicating that the

matter was being heard. In the ~ourse of the

hearing, a request was made on behalf of the

plaintiff that I close the Court and sit in camera.

I did not accede to that request.

At no time was it suggested to me that I should require any members of the public who

were present to explain the reason for their

presence or to identify themselves to representatives

of the Australian Secret Intelligence Service

or any other Government agency. I do not think

that there is any possibility that, if such a

suggestion had been made, I would have agreed

to it.

(Continued on page 3)

C3Tl/2/SDL	2	22/11/88
Toohey

HIS HONOUR (continuing):  On Wednesday 16 November, the

Chief Justice advised me that he had been

informed that shortly before I sat on the

night of 8 Novembe½ a government officer involved

in the case had questioned persons in the public

gallery of the Court and indicated to them that

they were required to provide him with their

names. On the following day, the Chief Justice's

associate, at my request and with the concurrence of the Chief Justice, obtained written statements from those members of the Court staff who had

been present at the time. Having read those

statements, I requested my associate to provide copies,under covering letters,of the statements to the solicitors for the parties and to the

person who was named as the government officer

concerned. I also directed that the matter be listed

before me this morning so that I could be further

informed about what had taken place.

Unless there is some objection, I propose

to place copies of my associate's letters and
the orieinals of the three statements upon the

Court's public file in relation to the matter.

I presume you have no objection to that course?

MR BLACK:  There is no objection, Your Honour.

HIS HONOUR: Yes, Mr Black.

MR BLACK:  If Your Honour pleases, I would desire to

further inform the Court about this matter by

means of a further statement and that is a

statement prepared by Dr Gary Rumble, one of the solicitors engaged in this matter on the evening in question, and the person primarily

referred to in the statements. Your Honour,

I should add that Dr Rumble is in Court, as

indeed is Mr Sherman, the senior officer under

the Secretary of the Attorney-General's

Department and responsible for the Australian

Government Solicitor's work.
Your Honour, it is a matter, if I may
say so with respect, for Your Honour.	I am
very happy to read the statement.

HIS HONOUR:  I think if you hand it to me, I will read it, Hr Black.

MR BLACK:  May it please Your Honour. Your Honour will

see attached to the statement an original list

of persons with, I think, eight names on it,

some of whom Your Honour will recognize.

C3T2/l/JM	22/11/88
Toohey

HIS HONOUR: Please sit down, Mr Black.

MR BLACK: May it please Your Honour. Might I say,

Your Honour, although the statement does, in our

respectful submission,put a somewhat different

complexion on some aspects of the matter, I do,

at an appropriate stage and with Your Honour's

leave, desire to offer apologies to the Court and

to make further submissions in relation to the

matter - - -

HIS HONOUR:	Thank you, Mr Black.
MR BLACK:	- - - and Dr Rumble, Your Honour, also, as

Your Honour will see, offers his apologies.

HIS HONOUR:	You just sit down, Mr Black.
MR BLACK:	May it please Your Honour.
HIS HONOUR:	Mr Black, I propose to place this statement

on the public file of the Cour~ subject to one

thing, and that is if you and those instructing

you - I -would propose to take from it the 1 is t of

names of those persons who were in Court and give

it to my associate to be destroyed and I would

like an assurance, not from him personally, through

you, from Mr Sherman,that steps will be taken to

ensure that the list is not reproduced, or if there

are any other copies of it that they are destroyed.

MR BLACK:  Yes, Your Honour. I will take those instructions

immediately - I have those instructions, Your Honour.

HIS HONOUR:  The statement will be placed on the Court's

file. The list of names, Mr Associate, will be taken

and will be destroyed at the end of the sitting.

But, Mr Black, I can really see no point in

investigating discrepancies as to precisely what

was said; whether it is a demand or a request by

a government officer for the names of people attendin~

a sitting of my Court seems to me to be really

a matter of not great significance.

(Continued on page 5)

C3T3/l/AC	4	22/11/88
Toohey

MR BIACK (continuing): Your Honour, if I may say so,

with respect,·the course which I would desire

to adopt proceeds upon the same basis, the vice

being - one of the vices being - an appearance, the

possibility of misunderstanding and, Your Honour,

anything that could lead or has even a reasonable

possibility of leading to a misunderstanding,but
perhaps it is higher than that, is greatly to be

regretted and, Your Honour, I do not desire to make

any point about the discrepancies but I do desire

to give certain assurances to the Court and to give

certain apologies to the Court.

HIS HONOUR:	You proceed, Mr Black.
MR BLACK:	May it please Your Honour. Your Honour, I am
instructed to say that the Corrrrnonwealth, the

Australian Government Solicitor and Dr Rumble
very greatly regret the matters about which the

Court has been informed. They assure the Court and, in particular, this is Dr Rumble's assurance,

that there was no intention to interfere with the
course of justice in any way. Nevertheless, the
right of all persons to be present in a court,
unless the court in its discretion otherwise

orders, is recognized as absolutely fundamental

and it is recognized that nothing should be done

that would interfere with that right or could be

construed as possibly interfering with or diminishing

that right.

Your Honour, I, indeed, have spoken to Mr Brazil,

the Secretary of the Attorney-General's Department

and he tells me that a legal service instruction will shortly be circulated to all lawyers in the

service of the Australian Government Solicitor

throughout this country to draw attention to the

need for extreme care in matters of this nature

and, by that I mean not just security matters but

any matter affecting the right of the public, the

absolute right of the public to remain in court

Your Honour, the matter is also one of very

unless otherwise ordered.

deep regret for the reason that the Australian

Government Solicitor holds the view that it should

set an exemplary standard of behaviour in all matters

pertaining to business of the courts and that is because

it is the solicitor for the government of this country.

Your Honour, may I again assure the Court that

there was no intention to interfere with the course

of justice but, more importantly, Your Honour, may I	expiess~ on instructions, our regrets, or rather the
regrets of the Corrrrnonwealth, the Australian Government
Solicitor and the officer concerned for what has happened
and may I, Your Honour, offer on behalf of those
persons a deep apology to the Court for the events

C3T4/l/SH	22/11/88
Toohey	5

that have occurred, together with an assurance
that all reasonable steps will be taken so that

nothing of the kind would happen again.

Your Honour, I am instructed by all those

persons and, in particular, by Dr Rumble to offer

such an apology to the members of the Court's

staff concerned. Your Honour, I am not able to

take the matter any further. It is deeply regretted.

HIS HONOUR:  Thank you, Mr Black.

(Continued on page 7 )

C3T4/2/SH

22/11/88

Toohey

6

HIS HONOUR: 

The CONSTITUTION establishes this Court as the

ultimate repository of national judicial power.
As a general rule the Court's exercise of that

judicial power is in public sittings to which

members of the public are admitted as of course and, subject to the directions of the Court, as

of right. One reason for that approach to the
exercise of judicial power is that the open and
public administration of justice by the country's

final Court is a safeguard of judicial independence

and conducive to public trust.  To subject members

of the public exercising the right to be present at
a public sitting of the Court to questioning about
their identity or the reasons for their presence

would represent a qualification of that right and

could be seen as a discouragement of its exercise.

As a general rule no government officer is

entitled, without the authority of the Court, to
subject persons in the public gallery of the Court
awaiting a public sitting of the Court to questioning

about their identity or about their reasons for being

present. The fact that the Government or a government

agency is itself involved as a party in a case about

to be heard can only serve to underline the importance

of ensuring that the right of members of the public to

attend the public sittings of the Court be not

compromised and that the independence of the Court

from the control of the Executive Government in the

exercise of judicial power be vigilantly safeguarded

l5	and publicly proclaimed.
What happened in this courtroom before I commenced sitting on the night of 8 November 1988
seems to me to be a cause for serious concern. I
am, however, persuaded that it is unnecessary that
I take any further action in relation to it. I am
led to that view by a number of considerations. I
shall mention the more important of them.
has been proffered, there has been no attempt to

First, while an explanation of what occurred

justify it. Second, the government officer involved

has sincerely apologized to the Court for his actions

and the Commonwealth Government and the Australian

Government Solicitor have proffered appropriate

assurances. Third, the circumstances were most unusual:

a night sitting of the Court; what was thought to be

great urgency; and the matter to which Dr Rumble has

specifically drawn attention, namely, a perceived

threat to the safety of an Australian serving in a foreign country. Fourth, the persons subjected to

the questioning have not, so far as I am aware,

lodged any complaint. It is certainly not at their

T6 request that the matter is now before me. Fifth, I
accept the assurances that any copies of the relevant

C3T7/l/RB

Toohey 7 22/11/88

list of names will be destroyed and that no further

copies of that list will be produced. The original

of the list will be destroyed by my associate
immediately after this sitting. Sixth, I consider
that in the light of the abovementioned considerations
the entitlement of the public to be present at the
public sittings of the Court and the independence of

the Court are sufficiently vindicated by this morning's

proceedings.

Consequently, it is in the particular circumstance

of this matter unnecessary that any further action or
proceedings be taken or instituted. I regard the

incident as fully and finally dealt with and closed.

Mr Black, I thank you for your assistance.

MR BLACK:  May it please Your Honour.

AT 9.49 AM THE MATTER WAS ADJOURNED SINE DIE

C3T7/2/RB	8	22/11/88
Toohey