FAN19 v Australian Criminal Intelligence Commission (No 2)
[2021] FCA 127
•15 February 2021
FEDERAL COURT OF AUSTRALIA
FAN19 v Australian Criminal Intelligence Commission (No 2) [2021] FCA 127
File number: WAD 619 of 2019 Judgment of: BANKS-SMITH J Date of judgment: 15 February 2021 Date of publication of reasons: 22 February 2021 Catchwords: PRACTICE AND PROCEDURE - where evidence given at examination conducted under s 25A of the Australian Crime Commission Act 2002 (Cth) - where orders made providing opportunity for redaction of reasons for judgment - where suppression orders necessary to prevent prejudice to the proper administration of justice Legislation: Australian Crime Commission Act 2002 (Cth) s 25A
Federal Court of Australia Act 1976 (Cth) ss 37AG, 37AJ
Cases cited: FAN19 v Australian Criminal Intelligence Commission [2021] FCA 100
LHRC v Deputy Commissioner of Taxation (No 4) [2015] FCA 70
Division: General Division Registry: Western Australia National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 12 Date of hearing: 15 February 2021 Counsel for the Applicant: Mr F Merenda Solicitor for the Applicant: Mr David Manera Counsel for the Respondents: Mr A Willinge Solicitor for the Respondents: Australian Government Solicitor ORDERS
WAD 619 of 2019 BETWEEN: FAN19
Applicant
AND: AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION
First Respondent
DAVID LUSTY
Second Respondent
ORDER MADE BY:
BANKS-SMITH J
DATE OF ORDER:
15 FEBRUARY 2021
THE COURT ORDERS THAT:
1.Subject to these orders, and to any further orders of the Court pursuant to s 37AJ of the Federal Court of Australia Act 1976 (Cth), orders 1 and 2 of the suppression orders made 17 December 2019 will remain in force until 15 February 2041.
2.Orders 1 and 2 of the orders made 17 December 2019 do not apply to references which are made to evidence, submissions or transcript in the reasons for judgment in this proceeding.
3.Pending further order, the reasons for judgment provided by the Court to the solicitors for the parties on the Court record on 15 February 2021 are not to be distributed other than to the parties and their legal representatives, and a copy of these orders is to be provided to any person to whom a copy of the reasons is distributed.
4.On or before 4.00 pm on 17 February 2021 the parties are to file and serve any submissions in support of any requested further redactions of the reasons for judgment delivered on 15 February 2021, having regard to principles of open justice and s 37AG of the Federal Court of Australia Act.
5.Publication of the reasons for judgment (save in accordance with order 3 of these orders) is deferred pending consideration by the Court of such submissions and its determination of the scope of any further redactions.
6.On publication of the reasons for judgment, all parties are to destroy in a secure manner all electronic and printed copies of the reasons for judgment delivered on 15 February 2021.
7.Liberty to apply.
THE COURT NOTES:
8.Pursuant to s 37AG of the Federal Court of Australia Act, the ground on which these orders and the orders of 17 December 2019 are made is that they are necessary to prevent prejudice to the proper administration of justice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
On 15 February 2021 I made certain suppression orders in this matter. These are the reasons that such a course was undertaken.
In December 2019 I made orders suppressing the publication of information in this matter, including the applicant's identity. Those orders were made on the basis that I considered they were necessary to prevent prejudice to the proper administration of justice, having regard to criminal charges that were brought against the applicant.
Those December 2019 orders have remained in place throughout the proceedings.
On 15 February 2021 I made orders dismissing the applicant's application for relief. On the same day, I provided a copy of the reasons to the parties for the purpose of providing to them the opportunity to make any submissions as to the continued operation of the suppression orders, and to make any submissions as to the redaction of any part of the reasons prior to general publication. I also made the orders the subject of these reasons on that date (second suppression orders).
Pursuant to the second suppression orders, a small number of redactions were requested. There was no issue between the parties that such redactions should be made, subject to the determination of the Court. I received confidential evidence supporting the making of the redactions. I considered it was appropriate to make all the redactions that were requested.
The reasons for judgment were published in redacted form on 19 February 2021: FAN19 v Australian Criminal Intelligence Commission [2021] FCA 100. As is apparent from those reasons, the applicant was examined under s 25A of the Australian Crime Commission Act 2002 (Cth), and his application in this Court concerned the circumstances of his examination.
During a hearing on 15 February 2021, the parties agreed that it was appropriate that the second suppression orders be made. In matters involving criminal charges and coercive examinations, there is a risk that the publication of information may cause safety concerns with respect to any person examined and also other persons who may be involved. There is also a risk that future examinees may resist compliance with the coercive examination regime if answers they give or information they provide may become public.
I am required by s 37AG(2) of the Federal Court of Australia Act 1976 (Cth) to specify the ground or grounds upon which the order is made. The threshold is high, having regard to principles of open justice. I must be satisfied that it is 'necessary' to make a suppression or non-publication order. Further, by s 37AJ(1), I am required to state the period for which the suppression orders operate. The Court is to ensure that a suppression order operates for no longer than is reasonably necessary to achieve the purpose for which it is made: see generally LHRC v Deputy Commissioner of Taxation (No 4) [2015] FCA 70 at [11] (Perry J).
In this case, having regard to the subject matter of the examination, I remained satisfied that it was necessary that the second suppression orders be made to prevent prejudice to the proper administration of justice.
The applicant suggested that the orders stay in place for a period of 20 years, referring to the time period of the suppression orders made by Perry J in LHRC (No 4) at [26]. The respondents did not wish to be heard as to the time period of the orders.
In all the circumstances, and whilst not suggesting that there is any tariff period of 20 years, I agreed to the period suggested by the applicant. I did so because it seems to me that against the backdrop of serious drug charges that potentially involve other parties, 20 years is a reasonable period over which the risk of prejudice from disclosure might reduce. Further, as indicated in the main reasons, a confidentiality direction made by the examiner is in place preventing disclosure of material with respect to the examination, and that extends to the transcript of the examination. It would undermine the efficacy of the confidentiality direction to facilitate disclosure.
However, there remains liberty to apply for further orders, which the parties may rely upon should there be any relevant change of circumstances.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. Associate:
Dated: 22 February 2021
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