Director of Public Prosecutions (Cth) v Brady
[2015] VSC 246
•16 June 2015
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013: 0173, 0174, 0175, 0215
S CR 2014: 0047, 0048, 0049, 0058, 0079, 0080
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BARRY THOMAS BRADY & OTHERS |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 December 2014 |
DATE OF RULING: | 16 June 2015 |
MEDIUM NEUTRAL CITATION: | [2015] VSC 246 |
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COURTS AND JUDGES – Proceeding suppression order – Breach of suppression order – Subsequent widespread publication of terms of order – Whether suppression order should be confirmed or revoked – Open Courts Act 2013 ss 4, 10, 11, 14, 15, 17, 18 and 19
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Armstrong | Commonwealth Director of Public Prosecutions |
| For the Commonwealth of Australia (instructed by the Department of Foreign Affairs and Trade) | Dr S Donaghue QC and Mr J Forsaith | Australian Government Solicitor |
| For Fairfax Media Limited, Nationwide News Ltd and Newslife Media Pty Ltd | Mr H Hassan | Minter Ellison Lawyers |
HER HONOUR:
Introduction
In mid June 2014, the Department of Foreign Affairs and Trade, acting on behalf of the Commonwealth of Australia, obtained a suppression order in these proceedings. The DFAT order was structured in such a way that some of the terms of the order could not be published without disclosing the suppressed information.
In late July 2014, WikiLeaks published the suppression order, in a clear and deliberate breach of the law. The police are investigating the conduct of both WikiLeaks and whoever supplied the DFAT order to WikiLeaks.
After the WikiLeaks publication, many Australian and foreign media organisations and individuals republished the DFAT order, or directly or indirectly disclosed its contents.
The question for the court to consider now is whether the DFAT order should be maintained, given the events that have occurred since the WikiLeaks publication.
The context in which the DFAT order was made
Note Printing Australia Limited is a wholly-owned subsidiary of the Reserve Bank of Australia. Note Printing prints banknotes for the RBA and other central banks, using polymer substrate supplied by a partially-owned RBA subsidiary, Securency International Pty Ltd.
Note Printing, Securency, and a number of their former employees or agents, have been charged with various offences, including conspiring to bribe foreign officials, contrary to ss 11.5(1) and 70.2(1) of the Criminal Code 1995 (Cth). Some of them have also been charged with false accounting, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic), in relation to payments made in connection with foreign agents. The offences are alleged to have occurred in order to secure banknote printing contracts with central banks in Malaysia, Indonesia, Vietnam and Nepal, at various dates between late 1999 and early 2004.
The current proceedings in this court were commenced by the filing of indictments by the Commonwealth Director of Public Prosecutions in late 2013 and the first half of 2014. In some cases, the accused had been committed to stand trial for the relevant charges; in other cases, the CDPP exercised his power to directly indict, after the accused had been discharged by the magistrate at committal.
The committal proceedings ran for 112 sitting days, over a period of more than 2 years. The length of the committals reflected the enormous amount of evidence, particularly documentary evidence, which these cases involve. The AFP disclosure material contains more than 80 million documents. The prosecution briefs for the committal hearings comprised more than 80 lever arch folders of documents, which had been extracted from the AFP disclosure material. The cases are being run electronically in this court, on account of the vast amount of documentary material.
The AFP obtained those documents from a large number of government, corporate and private sources, from within Australia and overseas. There are many different persons who have an interest in the documents.
Since the current proceedings were commenced, I have spent several months hearing and determining various preliminary applications that need to be resolved before any trial can occur. Those preliminary matters include claims by various persons that some or all of the contents of certain documents should not be disclosed to the accused, and/or should not be published outside of the court, because of legal privilege, public interest immunity, or under the Open Courts Act 2013 (Vic). Many of the persons seeking non-disclosure or non-publication orders are persons other than the CDPP or the accused, and are therefore not parties to the proceedings.
I have already ruled on non-disclosure or non-publication claims in relation to thousands of pages of documents. Some of those claims have been upheld, some rejected. Copies of all suppression orders have been provided to the media. Given the extraordinary size of the current documentary management task, I expect that further rulings of that type will be required prior to any trial in these proceedings.
It is likely there would be a separate trial in relation to each foreign country. Each trial would be likely to run for many months; some would involve multiple accused. It is not possible to be more specific about duration at this stage, given the nature and number of preliminary matters that still need to be resolved prior to any trial.
I have been determining such claims well in advance of any trial for the following reasons:
(a) In order to prepare their cases, the parties will need to know what material they are going to be able to rely upon at trial, and what, if any, restrictions there will be on the use or publication of documents or other evidence;
(b) If the parties or any other interested person wish to bring an interlocutory appeal against any privilege or immunity ruling, they have an opportunity to do so before trial;
(c) If the media or any other interested person wish to challenge any order that would limit the publication of evidence to be led at trial, they have an opportunity to do so before trial;
(d) Any jury trial of the likely duration and complexity of these cases would be practically unworkable, if the trial judge had to keep interrupting the evidence to hear argument and give multiple rulings about the disclosure and publication of documents and information – particularly in respect of claims made by non-parties like DFAT, who would not be present in court throughout the trial; and
(e) The fair and accurate reporting of such complex trials would be enhanced if all arguments about what can and cannot be reported have been resolved well in advance of the start of any trial.
The DFAT order is one of a number of orders made on that basis. The DFAT order relates to evidence that may be called at a future trial. It has no immediate effect, in terms of withholding from the public any evidence currently before the court.
The DFAT application and order
Since the end of 2013, any person wishing to apply for a suppression order in Victoria under the Open Courts Act has been required to give notice to the court and the parties to the proceeding (s 10). Upon receipt of such a notice, the court is required to inform relevant news media organisations of the application (s 11).
News media organisations have the right to appear and be heard in respect of all suppression order applications (s 19(2)(e)). Irrespective of whether it appeared at the time of the initial application, a news media organisation may apply at any later time to have the order reviewed (s 15(1)(b)(v)). On a review, the court may confirm, vary or revoke the suppression order (s 15(3)(a)).
On 13 June 2014, DFAT gave notice to the court and the parties that it intended to apply for a proceeding suppression order under the Open Courts Act, preventing publication of information that suggested or alleged that particular persons had engaged in certain bribery-related activities. The notice said that the names of those particular persons “will be available to media organisations once the order is made.” The DFAT notice said that the purpose of the proposed order was “to prevent damage to Australia’s international relations that may be caused by the publication of material that may damage the reputation of specified individuals who are not the subject of charges in these proceedings.” The notice said that DFAT would be relying upon a supporting affidavit, parts of which may be confidential.
That same day, the court emailed a copy of the DFAT notice to 90 separate email addresses of news media organisations that had registered with the court that they would like to receive such notices; they included representatives of the major Australian electronic and print news media.[1]
[1]The media organisations that received the notice included the ABC, SBS, Networks 7, 9 and 10, and the publishers of newspapers including The Age, The Australian, the Herald Sun, Australian Financial Review, Leader newspapers, and various Victorian regional papers.
The DFAT application came on for hearing before me on 19 June 2014, being the date specified in the notice. DFAT, the CDPP and the accused were represented by counsel. The media did not attend, either by their lawyers or journalists.
In support of the application, DFAT relied upon an affidavit of Gillian Bird, dated 12 June 2014. Ms Bird was the Deputy Secretary who was responsible for various Asian divisions of DFAT. The affidavit contained three types of information:
(a) Non-confidential text (38 paragraphs);
(b) Confidential text which had been redacted and highlighted in yellow (35 paragraphs, or parts thereof). DFAT did not object to the parties and their lawyers looking at the yellow text, provided that they did so upon undertakings as to confidentiality. Some of the parties chose to have their lawyers inspect the yellow text on this basis, some did not; and
(c) Confidential text which had been redacted and highlighted in green (8 paragraphs or parts thereof). DFAT objected to anybody other than the court viewing the green text, on account of its extremely sensitive nature. None of the parties objected to that course.
The Bird affidavit was filed well in advance of the hearing, so I had an opportunity to scrutinise it closely beforehand.
When a person makes a claim that documents or information should be protected from disclosure or publication, there are various procedures the court can adopt to assess the validity of the claim. Sometimes a supporting affidavit is sufficient to establish the claim; a supporting affidavit may be open, or wholly or partially confidential. Sometimes the judge inspects the disputed documents. Depending on the asserted sensitivity or confidentiality of the information, it is not uncommon for the judge to be the only person who inspects the documents, or considers any affidavit, in order to determine the validity of the claim. Sometimes an opposing party or their lawyer is permitted to inspect an affidavit or document only after giving appropriate confidentiality undertakings. Sometimes a claim for protection is upheld over part of a document only, with that part being sealed up or redacted.[2] Such practices are well-recognised by case-law,[3] and are appropriate in considering whether to make a suppression order under the Open Courts Act. What happened in relation to the handling of the sensitive parts of the Bird affidavit was in accordance with usual court practices.
[2]In the context of public interest immunity, see, eg, the High Court decision in Sankey v Whitlam (1978) 142 CLR 1, approving the practice of partial disclosure discussed by the House of Lords in Conway v Rimmer [1968] AC 10.
[3]See for example the cases discussed in Sue McNicol, Law of Privilege (The Law Book Company Limited, 1992) at pp 392-6.
The DFAT order listed 14 specific individuals, being persons who were highly influential in the governments of Malaysia, Indonesia and Vietnam, or their close relatives, and three political offices (“the named persons”). None of the named persons is a person whom the accused are alleged to have conspired to bribe; the prosecution case against the current accused is that they conspired to bribe foreign bank officials, not foreign politicians. Nor have any of the named persons been charged, in Australia or overseas, in relation to any of the allegations made in these proceedings. In so far as any of the named persons is mentioned in these cases in the context of any bribery allegation, the truth or falsity of those allegations will not be tested in these proceedings.
DFAT’s concern was that the publication of the suppressed information, in relation to the named persons, would offend or embarrass them in circumstances that may have adverse consequences for Australia. Those adverse consequences include putting at risk co-operation between the Australian government and the governments of Malaysia, Indonesia and Vietnam, in areas of defence, security, counter-terrorism, transnational crime, and law enforcement (including extradition and mutual assistance requests).
The redacted parts of the Bird affidavit gave specific examples of Australia’s interests having been harmed in the past, when bilateral relations had been damaged. The affidavit also contained details of some specific current situations in which the interests of the Australian government and its citizens could be harmed, if the named persons withdrew co-operation because the Australian government had not done enough to protect them from highly critical, yet untested, allegations that may be made in an Australian court. I was satisfied on the evidence before me that the risks of harm identified in the Bird affidavit were real and substantial.
None of the parties opposed the making of the DFAT order. Having regard to the Bird affidavit and the relevant authorities, I was satisfied that it was appropriate to make the DFAT order, on the grounds that it was necessary:
(a) To avoid a real and substantial risk of prejudice to the proper administration of justice that could not be prevented by other reasonably available means; and
(b) To prevent prejudice to the interests of the Commonwealth in relation to national security.
Those are both specifically recognised as valid grounds for making a suppression order under the Open Courts Act (s 18 (1)(a) and (b)).
During the hearing, DFAT requested that the court hand back the Bird affidavit, on account of its sensitivity. I declined that request, and determined that the affidavit should be retained in a sealed envelope on the court file, in case the media or any other interested party later sought review of the DFAT order.
On the same day as the DFAT order was made, the court emailed a copy of it to the same 90 media representatives who had received advance notice of the application.
Immediately after receiving a copy of the DFAT order, Minter Ellison, lawyers acting on behalf of Fairfax Media Limited, contacted the court and requested a copy of the transcript from the hearing; that was provided to them a few days later. No other news media representative contacted the court in relation to the DFAT order.
Notwithstanding the media’s right to seek the review of any suppression order at any time, nobody sought to review the DFAT order until after the WikiLeaks publication.
The WikiLeaks publication
On 29 July 2014, WikiLeaks published the DFAT orders on their website, in breach of the court’s orders. It was published together with a press release headed “Australia bans reporting of multi-nation corruption case involving Malaysia, Indonesia and Vietnam”. The press release was full of sensational, inaccurate allegations about the DFAT order, which will be discussed shortly.
Following the WikiLeaks publication, the DFAT order was published on a number of overseas websites. Many media organisations and bloggers, in Australia and overseas, repeated some of the more sensational allegations in the WikiLeaks press release, apparently without actually checking the accuracy of WikiLeaks’ assertions. The nature and extent of further publication will be considered later in these reasons.
The media application
In late August 2014, four news media organisations (Fairfax Media Limited, Herald & Weekly Times Limited, Nationwide News Pty Ltd and Newslife Media Pty Ltd) informed the court that they wished to have access to the Bird affidavit, in order to determine whether or not they would seek to have the DFAT order reviewed.
DFAT opposed those media organisations being provided with the redacted parts of the Bird affidavit.
On 25 August 2014, I ordered that:
(a) Those media organisations be provided with the unredacted parts of the Bird affidavit;
(b) By 1 September 2014, DFAT file and serve any further affidavit upon which it wished to rely; and
(c) The matter be adjourned to 9 September 2014, for further argument about how much of the Bird affidavit the media applicants could inspect.
On 29 August 2014, DFAT filed a further affidavit of Ms Bird. The further affidavit dealt with some developments that had occurred since the WikiLeaks publication. It was filed in support of submissions that not only should the DFAT order be maintained, but that additional orders should be made to enable it to achieve its purpose. The further Bird affidavit was provided to the lawyers for the media applicants, on the basis that its contents not be published without further order.
After hearing argument on 9 September 2014, I ordered that the legal representatives of the now three media applicants[4] be provided with the yellow text from the initial Bird affidavit, upon giving appropriate undertakings as to confidentiality. That access was granted to enable the media applicants to decide whether they would apply to have the DFAT order reviewed.
[4]Herald & Weekly Times Limited had ceased to appear by this stage.
Later that month, the media applicants gave notice that they did want to make such an application. Accordingly, on 25 September 2014, a timetable was agreed for the provision of further affidavits and written submissions by the media applicants and DFAT, and a hearing date in early December was fixed for oral argument.
The media application came on for hearing on 5 December 2014. At the end of the hearing, I gave the parties an opportunity to file further written submissions, addressing some matters that had arisen during the course of the hearing. Those supplementary submissions were filed with the court later in December.
Before considering the arguments advanced by the parties, the following preliminary observations should be made:
(a) The media applicants’ lawyers have inspected the identified parts of the two Bird affidavits, and the media applicants do not argue that the contents of those affidavits should be made public;
(b) This is not an appeal against the correctness of the original decision to make the DFAT order on 19 June 2014; and
(c) The question is whether the DFAT order should be continued, in light of what has occurred since it was made. In particular, has the order been rendered ineffective or futile by subsequent events?
Publication relating to the DFAT order
An affidavit of Peter Bartlett, the solicitor for Fairfax, contains evidence of the nature and extent of publication concerning the DFAT order. Attached to the Bartlett affidavit are four lever arch folders of articles, tweets and blogs, which refer in some way to the DFAT order. Those publications cover the period from 29 July 2014 (the date of the initial WikiLeaks publication) to 8 October 2014 (the date of the Bartlett affidavit).
Since the initial WikiLeaks publication, the DFAT order itself has been re-published online in articles and online posts. Although most of those were published in Asia, many of them are available for download in Australia.
Amongst hundreds of online media breaches of the DFAT order which were found by a simple Google search are the following examples:
(a) The Guardian UK quoted from the order, as well as providing a hyperlink to the WikiLeaks page;
(b) MSN Malaysia News named the Australian companies, foreign countries and broad titles of foreign politicians involved, plus other details;
(c) The Malay Mail Online stated the number of persons covered by the order, as well as naming specific individuals;
(d) The Malaysian Insider named specific individuals;
(e) Malaysia Kini and Malaysia Chronicle named the Malaysian individuals in the order;
(f) The Sun Daily from Malaysia outlined the order, the number of named persons covered by the order, and some of their titles;
(g) Radio Suara Rakyat FM in Malaysia named specific individuals;
(h) The Jakarta Post and The Jakarta Globe both stated the number of individuals covered by the order, as well as naming specific individuals or titles;
(i) Today Online in Singapore named specific individuals covered by the order;
(j) The Times of India stated the number of individuals covered by the order, as well as naming specific individuals.
The Twitter account @wikileaks breached the DFAT order at least 37 times, in tweets to its 2.3 million followers.
Many online bloggers in Australia and overseas reproduced the DFAT order, or hyperlinked to a copy of it.
Publications by news media organisations in Australia did not directly breach the DFAT order, by setting out its actual terms. Instead, most of the local media spoke in terms of WikiLeaks having exposed or revealed the existence of what they erroneously described in colourful terms, such as a “super-injunction”, a “super gag order”, a “blanket ban” or “blanket censorship order”.
In fact, WikiLeaks did not expose or reveal the existence of the order. The court had already informed the Australian media of the DFAT order, more than five weeks before, in the circumstances described earlier in these reasons. Apart from Fairfax, none of the Australian media had even contacted the court to find out why the order had been made, far less sought to exercise their right to challenge it.
Commentators seem to have used labels like “super-injunction” and “blanket ban” because they relied, uncritically, on the false assertions by WikiLeaks that the DFAT order was a “blanket censorship order”, one which “forbids any disclosures, by publication or otherwise, of any information relating to the court case by anyone, including the Australian media, ensuring complete secrecy around the largest corruption case in Australia.” The DFAT order does no such thing.
The DFAT order does not prevent the publication of “any information relating to the court case”, nor does it ensure “compete secrecy” around the case. It is not a “blanket” suppression order. The DFAT order does not prohibit publication of the existence of the order. Nor does it prevent publication of the terms of the DFAT order, except in so far as those terms would reveal the suppressed information.
The label “super-injunction” is not a legal term of art, and was unknown in the UK or Australia until around 2010. It is not a term that has been used with precision by the media or legal commentators. However, in its 2011 report,[5] the UK Committee on Super-Injunctions undertook a detailed examination of the relevant cases, before concluding that the single feature that makes an injunction a super-injunction is “a prohibition on the disclosure or communication of the existence of the order and the proceedings.”[6] The DFAT order is not a super-injunction; it does not prohibit publication of the existence of the order, nor of the foreign bribery proceedings.
[5]Committee on Super-Injunctions, Super-Injunctions, Anonymised Injunctions and Open Justice (20 May 2011).
[6]Ibid at [2.13].
There has already been considerable reporting about the foreign bribery allegations involving the RBA subsidiaries – prior to, during, and since, the committal proceedings. The DFAT order does not prevent the media from reporting on the existence or nature of the current proceedings in this court. The overwhelming majority of the evidence which may be given at any future trial of these proceedings would be able to be reported freely. In particular, the evidence against the current accused (which is at the core of what would be tested in these cases) would be able to be reported without restriction. The Australian public would be able to be fully informed during the course of any trial as to what it is that the RBA subsidiaries, and their former officers and employees, are alleged to have done. The DFAT order does not inhibit (or attempt to inhibit) any of that reporting.
What the DFAT order seeks to limit is publication of certain allegations relating to the named persons, the veracity of which will not be tested in these proceedings.
Courts can draft suppression orders in general or specific terms. Examples of general suppression orders would be orders that prohibited the publication of “any evidence given in this proceeding”, or “of any evidence given by [named witness]”. Ordinarily, orders which are drafted in general or broad terms can themselves be published, because they do not disclose the specific information which is sought to be protected. However, general suppression orders can prevent the publication of far more information than may legitimately require protection, and therefore impose a much greater restraint on media freedom than specific orders.
Specific suppression orders identify in the order the precise information which cannot be published. In doing so, they only prevent publication of the information that actually requires protection, and do not impede reporting of the rest of the case. But one of the consequences of specifying the precise information in the order is that the terms of the order themselves ordinarily cannot be published; that is so irrespective of whether the order expressly says that its terms cannot be published.
Section 13(1) of the Open Courts Act encourages specific drafting, by requiring courts to state the information to which the order applies with sufficient particularity to ensure that:
(a) the order is limited to achieving the purpose for which the order is made; and
(b) the order does not apply to any more information than is necessary to achieve the purpose for which the order is made; and
(c) it is readily apparent from the terms of the order what information is subject to the order.
The DFAT order is a very specific suppression order, which was drafted to comply with s 13 of the Act. Even if paragraph 1 of the DFAT order had not said that “the terms of these orders” (in so far as they disclosed the suppressed information) cannot be published, the relevant terms could not in fact have been published without breaching the order. The words in quotation marks were not necessary to achieve that legal effect; they were only included out of an abundance of caution.
Should the DFAT order be revoked now?
The starting point for any application for a suppression order is s 4 of the Open Courts Act, which creates a presumption in favour of the disclosure of information. This expressly reflects the importance of the principles of open justice, which are long-standing and well-established.
Section 18 of the Act lists a number of grounds on which a court may make a “proceeding suppression order”. A proceeding suppression order is one that prohibits or restricts the disclosure, by publication or otherwise, of a report of the whole or any part of a proceeding, or any information derived from a proceeding (s 17). The DFAT order is a proceeding suppression order, which relates only to a small part of the current proceedings.
In each case, the court may only make (or confirm) a proceeding suppression order if it is satisfied that the order is “necessary” to achieve one or more of the stated purposes set out in s 18. The word “necessary” imposes a high standard of satisfaction. The onus is on the applicant for a suppression order to persuade the court that the order is necessary.
The court must be satisfied that the suppression order is necessary, based either on admissible evidence or “sufficient[ly] credible information that is satisfactory to the court” (s 14(1)). “Sufficient credible information” can include inferences which may be drawn from available evidence, and from judicial knowledge and experience. This statutory provision, which enables the court to act on something less than admissible evidence, reflects the common law position that existed before the introduction of the Open Courts Act.[7]
[7]As to the common law position, see, eg, R v Pomeroy [2002] VSC 178; The Age Company Ltd v Magistrates’ Court of Victoria [2004] VSC 10 at [13]; ABC v D1 & Ors [2007] VSC 480 at [71].
The law has long recognised that the mere fact that a Minister or other high government official has sworn an affidavit, to the effect that production should be withheld, is not sufficient to grant automatic protection from the disclosure of information. The court is always required to undertake its own assessment.
These are the first prosecutions in Australia for foreign bribery offences, since those offences were created in December 1999. They involve subsidiaries of the RBA, Australia’s central bank. There is clearly a strong public interest in understanding what did or did not happen in these cases. That is a very important public interest; but it is not the sole public interest that the court is required to take into account, in considering whether to make or confirm any suppression orders in these proceedings.
In the case of the DFAT order, the countervailing public interest considerations are specified in s 18(1)(a) and (b) of the Open Courts Act. The grounds on which the DFAT order was made (protecting the administration of justice, and protecting Australia’s national security) are expressly recognised as valid grounds for making a suppression order, under the Open Courts Act. Furthermore, prior to the introduction of the Open Courts Act, suppression or non-publication orders could be made on those grounds, either under the Supreme Court Act 1986 (Vic) (ss 18 and 19(a) and (b)), or the court’s inherent jurisdiction.
The concept of “the proper administration of justice” in s 18(1)(a) is not limited to the administration of justice in the particular case then before the court. It is a very broad concept that may extend to future investigations or cases.[8] But, before a court can make an order under s 18(1)(a), it must be satisfied that the order is necessary to prevent a “real and substantial risk” of prejudice to the proper administration of justice, which could not be avoided “by other reasonably available means”.
[8]See, eg, John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NWLR 344; Moevao v Department of Labour [1980] 1 NZLR 464; Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465.
The suppressed information is more than just the names or titles of the named persons; it includes their identification in the context of certain bribery-related allegations. But, as discussed earlier, the DFAT order does not prevent reporting of the fact that the order has been made, or its general effect. Nor does the DFAT order prevent publication of any bribery allegation that may be made during a trial, as long as the named persons are not identified in connection with any such allegation.
Accordingly, even if the DFAT order remained in place, the media would not be prevented from reporting that a bribery-related allegation had been made at trial concerning “a foreign politician who we cannot name,” or the detail of that allegation (provided it did not thereby disclose the identity of the named person). If that occurred, since the WikiLeaks publication it would be relatively easy for somebody to search online, find the DFAT order on one of the overseas websites, and speculate as to who the foreign politician might be. That would be likely to lead to rumour and innuendo, particularly in the overseas media. Some or all of the named persons may find themselves having to deal with or respond to such speculation, irrespective of whether they were in fact the relevant person. All of that may be more harmful to Australia’s interests than disclosing the actual name in the context of the relevant allegation.
In a press release following the WikiLeaks publication, the Australian government said that it had sought the DFAT order to protect senior political figures from “the risk of unwarranted innuendo”, specifically noting that “the naming of such figures in the orders does not imply wrongdoing on their part.” According to the further Bird affidavit, DFAT has also taken steps to repair any damage done to Australia’s international relationships by the WikiLeaks and subsequent publications.
DFAT argues that revocation of the DFAT order would allow new damage to be done to Australia’s international relations. Unfortunately, whether or not the DFAT order is revoked, there is the potential for further harm to be done to Australia’s international relations, due to the fact that the DFAT order will continue to be available on websites that are outside the control of the Australian courts.
DFAT points out that publications concerning the DFAT order peaked within the first few weeks after the WikiLeaks publication, and dropped off steeply thereafter. However, I do not accept that that indicates a waning of interest in the subject matter of the order. I presume that the lack of recent media reporting concerning these proceedings is due to the fact that the various preliminary applications presently before the court are subject to sub judice principles, and there is nothing newsworthy to report. I have no doubt that, whether or not the DFAT order remains in place, there would be renewed interest in, and speculation or discussion about, its contents during any trial.
Whatever may have been their attitude prior to the WikiLeaks publication, some foreign politicians, or their government spokespersons, have since been reported as saying that they oppose the DFAT order. For example, a number of Vietnamese-based websites have reported that the Vietnam Ministry of Foreign Affairs opposes the DFAT order. A former Indonesian President has been widely quoted as saying that he wants transparency, as the maintenance of the DFAT order could trigger suspicions and accusations.
The court is not aware of the attitude of each of the named persons to the continuation of the DFAT order; I proceed for present purposes on the basis that some may wish to have the DFAT order continued, others may wish to have it revoked. I accept DFAT’s submission that to revoke the DFAT order in relation to some, but not all, of the named persons, would be likely to create a damaging and potentially misleading dichotomy.
The further Bird affidavit describes the damage which DFAT says has already been caused to Australia’s foreign relations, the government’s attempts to mitigate that damage, and further damage which it is said may be suffered if the DFAT order is revoked. Much of what is said in the further Bird affidavit is unsourced or second-hand hearsay, or conclusions or opinions that are not established by the material which has been disclosed to the court. I do not doubt that Ms Bird genuinely holds those opinions, and believes that the maintenance of the DFAT order is necessary; but it is the court that must be persuaded. Although s 14 of the Open Courts Act permits the court to act on something less than admissible evidence, there must still be “sufficient credible information satisfactory to the court”, before the DFAT order can be continued. Unfortunately, most of the further Bird affidavit is drafted at an unsatisfactorily high level of vagueness or generality.
The media applicants referred to a number of cases in which courts refused to grant suppression orders that had been sought to protect a party or witness from personal embarrassment or reputational damage.[9] Those cases are distinguishable from the present case, for several reasons. For a start, the named persons are not parties to or witnesses in these proceedings; they have not chosen to be involved in any way in these proceedings, with the consequential risk of damage to reputation that any participation in litigation involves. Furthermore, as non-parties and non-witnesses, there is no opportunity for the named persons to defend themselves before the court. Finally, DFAT did not seek the DFAT order in order to prevent embarrassment per se; rather, it was to prevent damage to Australia’s international relations, which would in turn prejudice the administration of justice and national security.
[9]John Fairfax Group Pty Ltd v Local Court of NSW & Ors (1991) 26 NSWLR 131; Herald & Weekly Times Ltd v Magistrates’ Court [1999] VSC 232; Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267; Reinhart v Welker [2011] NSWCA 403.
That basis for DFAT’s claim is not novel. In considering a public interest immunity claim in Commonwealth of Australia v John Fairfax & Sons Ltd,[10] Mason J noted that the disclosure or publication of embarrassing information would be restrained if “it appears that disclosure will be inimical to the public interest because national security, [or] relations with foreign countries … will be prejudiced.”[11]
[10](1980) 147 CLR 39.
[11]Ibid at 52. On the facts of that case, the degree of embarrassment to Australia’s foreign relations which would flow from disclosure was not sufficient to justify protection; at 54.
The widespread on-line dissemination that has already occurred cannot now be undone. Whilst the court has power to make orders which have effect within Australia (including orders requiring the removal of material already published in this country), it cannot make orders controlling publication of the DFAT order outside Australia. And, unlike the case with most suppression orders, it is the publication overseas that has the capacity to cause the greatest harm.
In the course of argument, I was taken to a number of cases in which courts had considered whether or not to continue suppression orders, on the basis that they were or had become futile or unnecessary.[12] There is no rule that automatically prevents suppression orders from being made or continued, in respect of information that has already been published. However, the court’s ability to enforce its order, and protect against the threatened harm, are likely to be highly relevant.
[12]Including: News Digital Media Pty Ltd v Mokbel [2010] VSCA 51; D1 v P1 [2012] NSWCA 314; Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; Ryan Joseph Giggs (previously known as “CTB”) v News Group Newspapers Ltd [2012] EWHC 431 (QB).
DFAT points out that the terms of the DFAT order have not yet been published in Australia by the mainstream media. In some suppression order cases, that would be a very strong reason for maintaining the order – especially in a case where the purpose of the order was to ensure a fair trial. However, in this case, it is the overseas publications that have the greatest potential to cause future harm to Australia’s interests. The existing overseas publication is widespread, and cannot be undone by this court (through the continuation of the DFAT order, or otherwise). Nor would the continuation of the DFAT order prevent persons overseas from engaging in further damaging speculation and innuendo at any future trial.
In all the circumstances, I am not persuaded that the continuation of the DFAT order is necessary or desirable.
What criminal sanctions should be imposed upon WikiLeaks, and whoever leaked the DFAT order to WikiLeaks, are questions for another court to decide on some other occasion.
This decision does not stand as authority for the proposition that if somebody deliberately breaches a suppression order, and circumvents the proper legal procedures for reviewing the order, it necessarily will be appropriate to lift the suppression order on review. To come to such a conclusion would be to encourage illegal activity. Each case needs to be determined on its own facts. In some cases, it would still be possible to protect the underlying public interest by maintaining the suppression order, notwithstanding the breach. However, I have come to the conclusion that this is not such a case.
Accordingly, I propose to revoke those parts of the DFAT order which prevent the publication of the identities of the named persons.
The orders which preserve the confidentiality of the identified parts of the two Bird affidavits are not challenged, and will be continued.
I will hear from the parties as to the precise form of orders. Until the necessary formal orders have been made, after discussion with the parties, the DFAT order remains in place.
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