De Pyle v Commonwealth of Australia

[2023] FCA 597

FEDERAL COURT OF AUSTRALIA

De Pyle v Commonwealth of Australia [2023] FCA 597   

File number(s):

QUD 375 of 2022

Judgment of:

SARAH C DERRINGTON J

Date of judgment:

9 June 2023

Catchwords:

PRACTICE AND PROCEDURE – interlocutory application for suppression order – whether suppression order necessary to prevent prejudice to national security – whether suppression order necessary to protect the safety of a person – whether information is in public domain

Legislation:

Australian Human Rights Commission Act 1986 (Cth)
s 3(1)

Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF, 37AG, 37AH

Sex Discrimination Act 1984 (Cth)

Federal Court Rules 2011 (Cth) r 2.32

Cases cited:

AB v CD [2019] HCA 6; 364 ALR 202

Abbey Laboratories Pty Ltd v Australian Pesticides and Veterinary Medicines Authority [2016] FCA 704; 245 FCR 6

Alister v The Queen (1984) 154 CLR 404

Attorney-General v Leveller Magazine Ltd [1979] AC 440

Church of Scientology v Woodward (1982) 154 CLR 25

Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

John Fairfax Group Pty Ltd (recs and mgrs apptd) v Local Court (NSW) (1991) 26 NSWLR 131

John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344

Lee v Deputy Commissioner of Taxation [2023] FCAFC 22

Lleyonhjelm v Hanson-Young [2021] FCAFC 22; 282 FCR 341

R v Khazaal [2006] NSWSC 1061

Reinhart v Welker [2011] NSWCA 403; 93 NSWLR 311

Richardson v Commissioner of Taxation [2006] FCA 1306

Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36

The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions(No 2) [2020] FCAFC 44; 275 FCR 377

The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) [2006] FCA 1394; 155 FCR 216

Division:

General Division

Registry:

Queensland

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

51

Date of last submission/s:

27 April 2023

Date of hearing:

16 February 2023

Counsel for the Applicant:

Mr P McCafferty KC

Solicitor for the Applicant:

Bartley Cohen

Counsel for the Respondent:

Mr A Berger KC with Ms F Rogers

Solicitor for the Respondent:

Australian Government Solicitor

Counsel for the Intervener:

Mr D Sibtain SC

Solicitor for the Intervener:

ABC Legal

ORDERS

QUD 375 of 2022

BETWEEN:

DAMIEN DE PYLE

Applicant

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

AUSTRALIAN BROADCASTING CORPORATION

Interested Party

ORDER MADE BY:	SARAH C DERRINGTON J
DATE OF ORDER:	9 JUNE 2023

THE COURT ORDERS THAT:

1.The Commonwealth and the Australian Broadcasting Corporation prepare a joint draft short minute of order giving effect to these reasons by 26 June 2023.

2.The matter be listed for a case management hearing on 28 June 2023 at 9.30am.

3.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

Introduction

1. These proceedings were commenced on 21 October 2022 by a former member (Applicant) of the Australian Defence Force (ADF) who claims to have been subject to unlawful discrimination, within the meaning of Part II of the Sex Discrimination Act 1984 (Cth) and
   s 3(1) of the Australian Human Rights Commission Act 1986 (Cth), by the Commonwealth during Conduct After Capture (CAC) training in which the Applicant participated in March 2019.

   Background

2. On 7 February 2023, at the instigation of the Commonwealth, I directed the Registry to suppress the Originating Application, Concise Statement and Response pending an urgent application that had been foreshadowed by the Commonwealth.

3. By interlocutory application filed on 15 February 2023, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the Commonwealth seeks suppression and related orders over certain information relating to the ADF CAC training contained in documents filed in these proceedings. The Commonwealth contends, pursuant to
   ss 37AG(1)(b) and 37AG(1)(c) of the FCA Act, that the orders for suppression sought by its interlocutory application are necessary to prevent prejudice to national security and to protect the safety of a person.

4. On the hearing of the application on 16 February 2023, the Australian Broadcasting Corporation (ABC) intervened pursuant to s 37AH(2)(d) of the FCA Act. Following oral submissions, the application was adjourned to permit the ABC time to file and serve any further submissions and affidavit evidence within 7 days. The parties sought to extend the timetable for the provision of submissions and further affidavit evidence on four occasions. The parties agreed no further oral hearing was required.

5. The ABC filed further submissions on 8 March 2023 to supplement the oral submissions made at the hearing. The ABC relied on an affidavit of Mr Phillip Thomas Beattie affirmed 7 March 2023 (Beattie Affidavit). It also relies on Exhibit 1, which was tendered at the hearing, and which comprises a collection of media articles.

6. The Commonwealth filed further submissions in support of the suppression orders on 24 March 2023. Except where expressly stated otherwise, the Commonwealth continued to rely on its previous submissions dated 15 February 2023. It also relied on the affidavit of Brigadier Glenn James Ryan sworn on 15 February 2023 that was read at the hearing (Confidential Affidavit).

7. The Applicant neither consented nor opposed the orders sought by the Commonwealth but nevertheless filed submissions for the assistance of the Court on 16 February 2023.

8. Consequent upon the further submissions, the scope of the orders now sought by the Commonwealth has narrowed. The Commonwealth continues to seek a suppression order over:

   (a)certain highlighted passages in:

   (i)the Originating Application filed on 21 October 2022;

   (ii)the Applicant’s Concise Statement filed on 10 January 2023;

   (iii)the Commonwealth’s Response to the Applicant’s Concise Statement filed on 7 February 2023;

   (b)paragraph [6](a) of the Applicant’s submissions of 16 February 2023;

   (c)parts of paragraphs [21] and [23] of the Commonwealth’s submissions dated 15 February 2023; and

   (d)the information highlighted in the body and Annexure 2 of the Confidential Affidavit.

   Legislative provisions

9. Part VAA of the FCA Act gives the Court power to make suppression and non-publication orders. Section 37AA of the FCA Act defines these types of orders as follows:

   non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

   suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

10. On its face, the Commonwealth’s application seeks orders that meet either of these definitions. It is however plain that what is in fact sought is a suppression order.

11. Section 37AE of the FCA Act provides as follows:

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

12. Section 37AF of the FCA Act further provides as follows:

    (1) The Court 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:

    …

    (b)       information that relates to a proceeding before the Court and is:

    …

    (iv)      information lodged with or filed in the Court.

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

13. Finally, s 37AG of the FCA Act provides as follows:

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

    …

    (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;

    …

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

    Relevant principles

14. The parties are ad idem as to the relevant principles applicable to the making of suppression or non-publication orders under s 37AF of the FCA Act. Neither party disagrees that the principle of open justice is a fundamental principle of the Australian justice system: Reinhart v Welker [2011] NSWCA 403; 93 NSWLR 311 and John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344 at [18]. It is accepted that the principle is not an end in itself, but is adopted to ensure public confidence in the administration of justice: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [20]; John FairfaxGroup Pty Ltd (recs and mgrs apptd) v Local Court (NSW) (1991) 26 NSWLR 131 at 163-164; Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 at [16]-[17].

15. The Full Court summarised the position in The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions(No 2) [2020] FCAFC 44; 275 FCR 377 at [7]-[9]:

    The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the FCA Act are fairly well settled.

    Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSW LR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest of open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

    The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) NSWLR 52; [2012] NSWCCA 125 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [21].

16. Similarly, the ABC does not cavil with the authorities on which the Commonwealth relies to emphasise the special importance that attaches to the protection of Australia’s national security interests: Alister v The Queen (1984) 154 CLR 404 at 436; Church of Scientology v Woodward (1982) 154 CLR 25 at 59; R v Khazaal [2006] NSWSC 1061 at [32].

17. Nor did the parties disagree as to the meaning of the phrase “necessary to protect the safety of any person”. As was said by Nettle J in AB v CD [2019] HCA 6; 364 ALR 202 at [15]:

    The criterion is not one of necessity to prevent harm to a person of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence.

18. The meaning of “necessary”, albeit in the context of the Court Suppression and Non-Publication Orders Act 2010 (NSW), was explained by Mahoney JA in John Fairfax at 161:

    The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be – or at least will be assumed to be – that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders to the courts and deal with them.

    (Emphasis added.)

19. The essential point of difference between the ABC and the Commonwealth concerns whether any order made now will fail the necessity test because the matters sought to be protected are already in the public domain. As such, the ABC submits that any order would be futile: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52 at [76]. As was said by Thawley J in Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719 at [21] in concluding that the information sought to be suppressed was publicly available:

    The Court may have been inclined to order non-publication of the identification numbers, if a proper basis had been shown, were it not for the fact that the information is publicly available and evidently considered by the relevant Hong Kong authorities as appropriate for publication to any member of the public in accordance with the Hong Kong Companies Ordinance.

20. More recently, in Lee v Deputy Commissioner of Taxation [2023] FCAFC 22 at [98], the Full Court concluded there was no proper basis for the primary judge to conclude that the entirety of the evidence should be the subject of a suppression order in circumstances where

    No specific material was identified which would cause any harm. The existence of the freezing orders had been published in the media. All of the harm identified by the appellants was caused by the freezing orders and the media articles.

21. The Full Court held, therefore, that there was no proper basis to conclude that such an order was necessary to prevent prejudice to the proper administration of justice.  

    Is the material already in the public domain?

    The Originating Application

22. The Commonwealth seeks to suppress approximately 25 lines of the Applicant’s explanation of what gave rise to his complaint to the Australian Human Rights Commission, which is Annexure A to the Originating Application. The Originating Application, along with Annexure A filed on 21 October 2022, was not redacted.

23. The first case management hearing in the proceeding was held on 22 November 2022. The Commonwealth was represented. Orders were made by consent for the filing of the Concise Statement and Response, and for the matter to be referred to mediation. No application was made for the suppression of any part of the Originating Application at the case management hearing.

24. Consequently, the full content of the Originating Application was in the public domain from at least 21 October 2022. The recent amendment to r 2.32(2)(a) of the Federal Court Rules 2011 (Cth) which delayed the date from which a person who is not a party may inspect an originating application until after the first directions hearing, had not yet come into force: r 2(1), Sch 1 r 4 Federal Court Legislation Amendment Rules 2022 (commenced 13 January 2023,). In those circumstances, “the cat is out of the bag” and cannot be put back: The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) [2006] FCA 1394; 155 FCR 216 at [38]-[39]; Richardson v Commissioner of Taxation [2006] FCA 1306 at [3].

25. Further, as reported in “Jurist” on 27 September 2022, it appears that the Applicant “shared a letter from the Australian Human Rights Commission declining to investigate” the Applicant’s complaint: Exhibit 1. It can be inferred that the letter referred to is the same as that which is attached to the Originating Application and which included a copy of the Applicant’s complaint at Attachment B.

26. The approximately 25 lines now sought to be suppressed by the Commonwealth have in fact been in the public domain since 27 September 2022. In those circumstances, I decline to make an order suppressing any portion of the Originating Application.

    The Applicant’s Concise Statement

27. The Commonwealth seeks to suppress the following sections of the Applicant’s Concise Statement:

    (a)certain advice given to the applicant about the CAC Course, at [4];

    (b)certain risks that were outlined during the CAC activity brief, at [5];

    (c)certain details of the Hostage Survival module of the CAC Course, including;

    (i)initial events and clothing requirements, at [7];

    (ii)details of occurrences in a small room, at [8] and [9];

    (iii)a restriction placed on the Applicant during the Hostage Survival module, at [10];

    (d)certain details of the Foreign Government Detention module of the CAC Course, including:

    (i)occurrences after the Hostage Survival module, at [11]-[12];

    (ii)advice as to next steps after the conclusion of that module, at [13];

    (e)certain details of the Foreign Military Exploitation module of the CAC Course, including:

    (i)details of his preparation for what came next and certain details of what occurred, at [14];

    (ii)an allegation of what caused the Applicant to suffer various symptoms, at [15];

    (iii)details of activities done in the module, at [16]-[21]

    (iv) details of one particular piece of information, at [22], and what transpired thereafter, at [23].

28. The Concise Statement was filed on 10 January 2023. As the ABC submitted, no formal application to suppress any part of the Concise Statement was filed until 15 February 2023.

29. For the same reason as I have given in relation to the Originating Application, I decline to suppress any part of the Concise Statement. Its contents had been in the public domain for almost one month before the application was foreshadowed and it must be reasonably supposed that any confidentiality has been lost once and for all: Abbey Laboratories Pty Ltd v Australian Pesticides and Veterinary Medicines Authority [2016] FCA 704; 245 FCR 6 at [64] per Rares J citing cf Attorney-General v Leveller Magazine Ltd [1979] AC 440; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 480C-D per McHugh JA.

    The Response to the Applicant’s Concise Statement

30. The Commonwealth seeks to suppress the following sections of its Response:

    (a)its plea to certain allegations that are made in [20] and [22] of the Applicant’s Concise Statement, at [4];

    (b)three specific matters that were components of the CAC Level B theoretical training conducted on 8 March 2019, at [10];

    (c)four specific matters that were included in the Level C activity brief, at [12].

1. The Commonwealth’s Response was filed on 7 February 2023, the same day that it foreshadowed its interlocutory application for a suppression order.

2. Once the confidentiality of the content of [20] and [22] of the Applicant’s Concise Statement has been lost, there is no necessity, nor utility, in protecting the Commonwealth’s plea in response.

3. The matters referred to in [10.2], [10.3], [10.4], [12.1], [12.4], [12.5], and [12.6] as described at [29](b) and [29](c) above concern specific details of what is included in the CAC Level B training and in the Level C activity brief. In respect of these particular matters, I am unable to discern anything in the Beattie Affidavit or in Exhibit 1 which indicates that they are in the public domain. I accept the Commonwealth’s submission and the evidence in support thereof contained in the Confidential Affidavit, that publication of these details would pose a risk to the safety of persons within the meaning of s 37AG(1)(c) of the FCA Act. I also accept that it is contrary to the protection of Australia’s national security interests, within the meaning of

   
   

   s 37AG(1)(b) of the FCA Act, for such details to be made public.

   Paragraph 6(a) of the Applicant’s submissions of 16 February 2023

4. The Commonwealth seeks to suppress this sub-paragraph for the reason that it reveals its plea in response to the allegations made in [20] and [22] of the Concise Statement (as referred to at [22](a) above).

5. For the reason given in relation to [4] of the Commonwealth’s Response, any confidentiality that may have attached to [20] and [22] of the Concise Statement has been lost and, consequently, there is nothing in [6](a) of the Applicant’s submissions to be protected.

   Paragraphs 21 and 23 of the Commonwealth’s submissions of 15 February 2023

6. In its further submissions of 24 March 2023, the Commonwealth maintained its position expressed in the submissions of 15 February, in relation to the suppression of these paragraphs on the basis that they refer to certain paragraphs of the Confidential Affidavit that speak to matters of national security and safety.

7. The further submissions, however, reduced the scope of the paragraphs in the Confidential Affidavit which were of concern to the Commonwealth. The relevant paragraphs are part of [7], and [16]-[17].

8. For the reasons given below in relation to those paragraphs of the Confidential Affidavit, it is appropriate for [21] and [23] of the Commonwealth’s submissions of 15 February 2023  remain confidential.

   Highlighted parts of the Confidential Affidavit

9. The Commonwealth seeks to suppress those paragraphs of the Confidential Affidavit referred to in the previous paragraph and three others, being part of [15], [18], and the name of an officer referred to in [19].

10. The substantive content of [16] is in the public domain: Beattie Affidavit, Annexures PTB-6 and PTB-7.

11. The first sentence of [17] is in the public domain: Beattie Affidavit, Annexure atPTB-6.

12. Subject to those two matters, I accept the Commonwealth’s submission and the evidence in support thereof contained in the Confidential Affidavit, that publication of these details would pose a risk to the safety of persons within the meaning of s 37AG(1)(c) of the FCA Act. I also accept that it is contrary to the protection of Australia’s national security interests, within the meaning of s 37AG(1)(b) of the FCA Act, for such details to be made public.

    Highlighted parts of Annexure 2 to the Confidential Affidavit

13. The Commonwealth seeks to suppress the names and contact details of officers referred to in the “ADMINISTRATIVE INSTRUCTION – CONDUCT AFTER CAPTURE LEVEL C ACTIVITY (SESSION #0048) – CANUNGRA 02-08 MAR 19”.

14. These details are not in the public domain. As the Commonwealth submitted, they should remain suppressed both to protect the safety of the named officers and so as not to prejudice Australia’s national security interests.

15. It also seeks to suppress certain details contained in the “DFSI CAC LEVEL C ACTIVITY HEALTH SUPPORT PLAN”, including:

    (a)certain elements of the type of training, at [2];

    (b)certain health threats, at [3];

    (c)certain aspects of administration and logistics of training, at [19];

    (d)the names and contact details of officers involved in the activity, at [22].

16. The elements of the type of training referred to at [2] is in the public domain: Beattie Affidavit Annexure PTB-1. Annexure PTB-1 is an extract from Hansard. Neither the ABC nor the Commonwealth sought to rely on the extracts for any reasons contrary to s 16(3) of the Parliamentary Privileges Act 1987 (Cth). Rather, it was adduced simply as evidence of what had been said in Parliament and of what was therefore on the public record. Parliamentary privilege does not prevent evidence being tendered to prove, as a fact (but not the truth thereof) of what was said in the course of Parliament: Lleyonhjelm v Hanson-Young [2021] FCAFC 22; 282 FCR 341 at [364]. It should not be the subject of a suppression order.

17. The highlighted matters in [3] and [19] are specific details relating to the CAC training which are not in the public domain. They should remain confidential.

18. Similarly, the names and contact details of officers involved in the Activity are not in the public name and their safety could be put at risk were they to be disclosed. They should remain suppressed.

    Disposition

19. Accordingly, pursuant to s 37AG(1)(b) and s 37AG(1)(c) of the FCA Act, orders will be made pursuant to s 37AF(1)(b)(iv) of the FCA Act to prohibit, until further order, the disclosure or publication throughout the Commonwealth of any of the information contained in the Confidential Affidavit, which has been identified in these reasons, should be suppressed. Despite those orders, disclosure or publication to the presiding judge, essential court staff, the Applicant, the Commonwealth, and their legal representatives is expressly permitted.

20. Appropriately, the Commonwealth did not seek a costs order. Neither did the ABC. Both the Commonwealth and the ABC have had some success. It is appropriate that there be no order as to costs.

21. The Commonwealth and the ABC are to prepare a joint minute of order giving effect to these reasons.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.

Associate:

Dated:       9 June 2023