Haj-Ismail v Madigan
[1982] FCA 240
•12 NOVEMBER 1982
And: DOROTHY HONORA MADIGAN, JOHN MENADUE and THE MINISTER FOR IMMIGRATION AND
ETHNIC AFFAIRS (1982) 64 FLR 112
No. G 151 of 1982
Practice and Procedure - Administrative Law - Practice - Immigration and
Aliens
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)
Practice and Procedure - subpoena for production of documents concerning questions of national security - ASIO - Australian Federal Police - balancing of public interests.
Administrative Decisions (Judicial Review) Act 1977 s. 5
Australian Security Intelligence Organisation Act 1979 ss. 8, 17
Administrative Law - Decision to refuse permanent resident status to three applicants - Deportation orders not signed by Minister - Application for order of review of decision and deportation order - Whether deportation order was invalid - Whether rules of natural justice had been breached - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5.
Practice - Subpoenas to A.S.I.O. and Australian Federal Police for production of documents concerning matters of national security - Conflicting aspects of public interest - Inspection of documents by court - Whether production of documents contrary to public interest - Whether documents produced should be inspected by applicants - Whether court should exercise its power to inspect documents - Australian Security Intelligence Organization Act 1979 (Cth), ss. 8, 17.
Immigration and Aliens - Deportation orders not signed by Minister - Application for order of review of decision to refuse permanent resident status and of decision to issue deportation order - Whether deportation order was invalid - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5.
The three applicants applied, pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977, for an order of review of (a) the decision of the respondent Madigan refusing the grant of permanent resident status in Australia to the applicants and of (b) deportation orders signed by the respondent Menadue for the deportation of the first and second applicants who were husband and wife. The third applicant was their daughter. The applicants contended, inter alia, that in making her decision the respondent Madigan (i) failed to give them an opportunity to put material concerning their character to the first respondent; (ii) failed to inform the applicants of criteria to be applied concerning the determination of character; (iii) took into account irrelevant considerations; and (iv) failed to take into account a relevant consideration.
The applicants further contended that the deportation orders were invalid because they were not made by the Minister of State for Immigration and Ethnic Affairs (the Minister) but by the respondent Menadue who, they alleged, lacked the requisite power.
At the request of the applicants, the Director-General of the Australian Security Intelligence Organization (A.S.I.O) and the Assistant Commissioner (Crime) of the Australian Federal Police (the Police Commissioner) were subpoenaed to produce certain specified documents to the court. The Director-General of A.S.I.O. swore an affidavit in which he objected to producing documents to the court on the ground that they contained intelligence relevant to security within the meaning of that expression in the Australian Security Intelligence Organization Act 1979 (the 1979 Act). The Director-General contended that production of such documents would be contrary to the requirements of security, and hence contrary to the public interest. The Director-General asserted that the court had no power to compel the production of the documents or to inspect such documents or to order production of the documents for inspection by the parties. The Acting Attorney-General, who was the Minister responsible for A.S.I.O., swore an affidavit in which he objected to the disclosure of information which would be prejudicial to the national security. The Attorney objected to the production of documents because disclosure would be contrary to the public interest as it could endanger the safety of persons and property. The Minister for Foreign Affairs swore an affidavit objecting to the production of portions of the documents as disclosure would prejudice the conduct of Australia's foreign affairs and hence would be contrary to the public interest. The Police Commissioner swore an affidavit in which he objected to production of portions of the documents because disclosure would be contrary to the public interest as disclosure of the identity of police informers could seriously prejudice the prevention of crime and the protection of persons and property.
The Police Commissioner produced the requested documents to the court for inspection to determine whether they should be produced for inspection by the applicants.
Held: (1) The court would order that the documents produced to the court by the Commissioner of the Australian Federal Police would be released to him on condition that he returned copies of such documents or such parts of such documents which the court had stated might be inspected by the applicants, on or before a specified date.
(2) The proceeding would be adjourned to a specified date to deal further with the application by the applicants for inspection of the documents produced to the court by the Police Commissioner, and with the application by the applicants for production and inspection of the documents subpoenaed from the Director-General of A.S.I.O.
(3) The final decision concerning the production of documents by the Director-General of A.S.I.O. rested with the court, not with the Executive.
Haj-Ismail v. Minister for Immigration and Ethnic Affairs (1981) 56 FLR 67; Sankey v. Whitlam (1978) 142 CLR 1; United States v. Nixon (1974) 418 US 683; Conway v. Rimmer (1968) AC 910; Australian National Airlines Commission v. Commonwealth (1975) 132 CLR 582; Lanyon Pty. Ltd. v. Commonwealth (1974) 129 CLR 650; Re Grosvenor Hotel London (No. 2) (1965) Ch 1210; Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England (1980) AC 1090, referred to.
Per Lockhart J. - Two aspects of the public interest may conflict, namely, the public interest that injury should not be done to the national interest by disclosure of certain documents, and the public interest that the ends of justice should not be defeated by the withholding of relevant evidence. In evaluating the respective public interests, the court would give considerable weight to the opinion of the responsible Minister that the documents would not be produced, but the court was entitled to inspect the documents privately and reach its own conclusion on the question of whether or not the public interest was properly served by the production of the documents.
Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England (1980) AC 1090; Environmental Defence Society Inc. v. South Pacific Aluminium Ltd. (No. 2) (1981) NZLR 153; Sankey v. Whitlam (1978) 142 CLR 1, referred to.
(4) The court's power to inspect documents should be exercised only if, after considering the affidavits or certificates of the Acting Attorney-General or the Director-General of A.S.I.O., the issues in the case and the relevance of the documents, the court was in doubt whether they would be likely to contain material helpful to the case of the applicants as the parties seeking production of the documents.
Sankey v. Whitlam (1978) 142 CLR 1, referred to.
(5) Having inspected the documents the court was satisfied that the interests of justice did not require the disclosure to the applicants of the documents or parts of documents where objection was taken to their being inspected by the applicants, and the applicants would suffer no injustice by non-disclosure.
R. v. Debic unreported (New South Wales Court of Appeal, 27th May, 1982), referred to.
(6) As neither the Acting Attorney-General nor the Director-General of A.S.I.O. swore that he had personally examined the documents which he objected to producing, nor were the documents identified with any precision, the Acting Attorney-General and the Director-General should be afforded an opportunity to reconsider the matter of the production of the documents, including the swearing of further affidavits. Further consideration might then be given to the inspection of the documents by the court and submissions may be made by the parties and the Director-General of A.S.I.O.
Sydney, 1982, October 27; November 12. #DATE 12:11:1982
APPLICATION.
The applicants applied pursuant to the provisions of s. 5 of the Administrative Decisions (Judicial Review) Act 1977 for an order of review of (a) a decision refusing the grant of permanent resident status to the applicants and (b) an order for deportation of the applicants.
The facts appear in the judgment.
M. J. Neil, for the applicants.
R. J. Burbridge Q.C. and L. Katz, for the respondent Minister.
Cur. adv. vult.
Solicitors for the applicants: Horowitz & Bilinsky.
Solicitor for the respondent Minister: B.J. O'Donovan, Commonwealth Crown Solicitor.
J. D. WHITEHEAD
THE COURT ORDERS THAT:1. The documents produced to the Court by the Commissioner of the Australian Federal Police be released to the Commissioner on condition that he returns to the Court on or before 3 December 1982 copies of such of those documents or parts thereof as I have said may be inspected by the applicants erasing from them the parts highlighted in yellow or green.
2. The proceeding be adjourned to 3 December 1982 to deal further with the application by the applicants for inspection of the documents mentioned in 1. above and with the application by the applicants for production and inspection of the documents subpoenaed from the Director-General of ASIO.
The Director-General of the Australian Security Intelligence Organisation ("ASIO") and the Commissioner of the Australian Federal Police have been subpoenaed at the request of the applicants to produce documents to the Court in connection with this proceeding commenced by the applicants under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act").The Director-General objects to producing the documents to the Court on the ground that it would be contrary to the public interest to do so as the documents concern questions of national security. He asserts that the Court has no power to compel him to produce the documents, no power to inspect the documents itself and no power to order production for inspection by the parties.
The Commissioner of the Australian Federal Police objects to production of the documents mentioned in the subpoena directed to him on the ground that it would be contrary to the public interest to produce them in that they would disclose or tend to disclose the identity of persons who have provided information to the Australian Federal Police. It is said by the Commissioner that disclosure of the identity of such persons could seriously prejudice the effective detection and prevention of crime and the protection of persons from injury or death and property from damage.
Before turning to these claims it is necessary that I say something about the application brought by the applicants under the Judicial Review Act. The application is to review (a) the decision of Dorothy Honora Madigan, the first respondent, made on 17 August 1982 refusing applications by the three applicants for the grant of permanent resident status in Australia and (b) deportation orders made in relation to the first and second applicants signed by the second respondent, John Menadue, who is the permanent head of the Department of Immigration and Ethnic Affairs ("the Department") on 6 September 1982.
The three applicants are husband, wife and daughter respectively. The male applicant first entered Australia in November 1972 then aged about 40. He was then married to the second applicant and they had a daughter, the third applicant; but the wife and daughter did not arrive in this country until some later date. The applicants have been in Australia since their respective dates of arrival.
Questions relating to the deportation of the applicants have been considered by this Court before: see Haj-Ismail v. The Minister for Immigration and Ethnic Affairs (1981) 36 A.L.R. 516 and The Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 A.L.R. 341.
I will not trouble to set out in detail the various bases on which the applicants frame their case. I will merely summarise their claims.
The applicants assert:-
(a) That the first respondent, in refusing the applications for the grant of permanent resident status, made decisions which are susceptible to review under para. 5 (1) (a) of the Judicial Review Act in that no opportunity was given _ so it is said _ for the applicants to put material to the first respondent on the question of their character. It is said that the first respondent failed to inform the applicants of the criteria to be applied with respect to the determination of character. The first respondent is alleged to have failed to specify the respects in which the applicants fell short of the relevant character requirements, whatever they may happen to be. It is said also that there was some failure by the first respondent to give reasons for her decision, though it seems that this point is not being pressed strongly.
(b) That the decision of the first respondent is liable to review under para. 5 (1) (e) of the Judicial Review Act which in turn incorporates paras. 5 (2) (a) and (b). Irrelevant considerations are said to have been taken into account by the first respondent namely, consideration of a Federal Police report of 19 January 1981 and a report of ASIO of 3 June 1981.
(c) Alternatively to (b) that the first respondent failed to take into account a relevant consideration namely, that she could have obtained updated reports from the Federal Police and ASIO: para 5 (2) (b).
(d) That the deportation orders are invalid because they were made, not by the Minister himself, but by the second respondent. It is asserted that the second respondent had no power to make the deportation orders.
I will turn first to the subpoena to the Director-General of ASIO. It has been treated by the parties and the Court as requiring the production of:-
(a) copies of all reports and information given by ASIO to the Department relating to the applicants;
(b) all matters (sic) relied upon to prepare such reports;
(c) copies of all correspondence between ASIO and the Department relating to the applicants;
(d) all reports, summaries, advices, assessments and annexures thereto made by ASIO to the Department when the first applicant originally obtained an entry permit as a student or when his status as a student was confirmed by the Department and, in relation to the second and third applicants, when they were given permission to enter Australia;
(e) all files relating to entry into a property at Gladstone Street, Kilburn since 1 August 1982.
The Acting Attorney-General of Australia is the Minister responsible for ASIO. He swore an affidavit in which he says:-
'4. The functions of the Organization, which are prescribed in sub-section 17 (1) of the Act are:
(a) to obtain, correlate and evaluate intelligence relevant to security;
(b) for purposes relevant to security and not otherwise, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes; and
(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.
5. I am informed by the Director-General of Security and verily believe that the Organization, in the performance of its functions...has provided reports and information to officers of the Department of Immigration and Ethnic Affairs for their assistance and that of the Minister for Immigration and Ethnic Affairs and his delegates in considering matters relating to the applicants, or one or some of them. I am informed by the Director-General of Security and verily believe that the security assessment referred to in paragraph 4 (d) of the Statement of Reasons by Dorothy Honora Madigan dated 31 August 1982, in relation to her decision refusing an application by Mr Haj-Ismail and his family for the grant of resident status in Australia, is a document so provided.
6. In my opinion, the disclosure, otherwise than in accordance with the Act, of any report or information provided by or to the Organization in or for the purpose of the performance of its functions as hereinbefore set out would be prejudicial to the national security upon the following grounds:
(a) it is in the public interest to maintain an organization with the functions set out in paragraph 4 of this my affidavit;
(b) the disclosure, otherwise than in accordance with the Act, of reports and information prepared or correlated by, or provided to, the Organization in or for the purpose of the performance of such functions would gravely prejudice the effective operation of the Organization in that it would be a crucial breach of the secrecy that is a necessary prerequisite to obtaining intelligence relevant to security;
(c) the disclosure of the identity of a present or former officer, employee or agent of the Organization, or of a person who has provided information to the Organization for the purpose of the performance by it of its functions, which could follow from the disclosure of such reports or information, would not only constitute a crucial breach of the secrecy that is a necessary prerequisite to obtaining intelligence relevant to security but may, in addition, place that person, his family and his property in danger; and
(d) the functions of the Organization can be effectively performed only if disclosure of information and production of documents can be refused.
7. I therefore object, on the grounds of prejudice to the national security:
(a) to the disclosure of any reports or information provided by or to the Organization in or for the purpose of the performance of its functions;
(b) to the giving of any evidence or information to the Court by the Director-General of Security, any officer, employee or agent of the Organization, or any other person, relating to the question of what records or documents, other than those referred to in paragraph 5 of this my affidavit, the Organization has of the kind referred to in the abovementioned subpoena; and
(c) in so far as they may exist, to the production of any records or documents of the kind referred to in the subpoena.'
The Director-General of ASIO swore an affidavit in which he says:-
'3. The documentation in my possession which relates to, regards, or refers in any way to, any one or more of the applicants contains intelligence relevant to security within the meaning of that expression in the Act.
4. The production of documentation referred to in paragraph 3 of this my affidavit would in my opinion be contrary to the public interest in that it would be contrary to the requirements of security. I therefore object to the production of such documentation.'
ASIO was established pursuant to a directive given by the Prime Minister of Australia on 16 March 1949. The Australian Security Intelligence Organization Act 1956 ("the 1956 Act") continued ASIO in existence. That Act was repealed as from 1 June 1980 by The Australian Security Intelligence Organisation Act 1979 ("the 1979 Act") which again continued ASIO in existence and provides for its operation.
ASIO is under the control of the Director-General (sub-s. 8 (1)). In the performance of his functions under the 1979 Act the Director-General is subject to the general directions of the Minister, but sub-s. 8 (2) provides that the Minister is not empowered to override the opinion of the Director-General-
'(a)on the question whether the collection of intelligence by the Organization concerning a particular individual would, or would not, be justified by reason of its relevance to security;
(b) on the question whether a communication of intelligence concerning a particular individual would be for a purpose relevant to security; or
(c) concerning the nature of the advice that should be given by the Organization to a Minister, Department or authority of the Commonwealth.'
Sub-section 17 (1) provides that the functions of ASIO are:-
(a) to obtain, correlate and evaluate intelligence relevant to security;
(b) for purposes relevant to security and not otherwise, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes; and
(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities".
I need not refer to other provisions of the 1979 Act as they were set out and examined by Wilson J. in Church of Scientology v. Woodward (1980) 31 A.L.R. 609, whose judgment was said by counsel for the Director-General to give strong support to his argument that the Director-General is immune from the Court's jurisdiction to compel the attendance of witnesses to give evidence and produce documents.
In my opinion the Scientology Case does not support this proposition at all. The plaintiffs sued the Director-General, the Attorney-General and the Commonwealth of Australia in the original jurisdiction of the High Court alleging that the Director-General had caused ASIO to obtain, correlate and evaluate intelligence concerning the plaintiffs, to characterize them as security risks, and to communicate the intelligence and the characterization to others. They asserted that these activities were unlawful unless the plaintiffs were in truth security risks; that initial intelligence should have revealed that the plaintiffs were not security risks; and therefore all further action by ASIO in collecting, assessing and communicating intelligence about the plaintiffs had no justification in law. They sought declaratory and injunctive relief against the defendants. The defendants applied to strike out the statement of claim.
Wilson J. held that upon their proper construction each of the relevant Acts namely, the 1956 and the 1979 Act, evinced a clear legislative intent to shield the conduct of ASIO from judicial review. His Honour said that when s. 17 is read in the light of s. 8 it is clear that ASIO's pursuit of its functions is surrounded at every point by the controlling opinion of the Director-General, notwithstanding that sub-s. 17 (1) is not expressed to be conditioned on his opinion. His Honour said that the kind of decisions by which the performance of ASIO's functions is directed and controlled are necessarily matters of opinion and judgment and this is emphasised by s. 8 which places the opinions of the Director-General relating to the collection and communication of intelligence by ASIO beyond ministerial control. The 1979 Act recognises that the Director-General may make errors of judgment in controlling the course of an investigation or the communication of information. But it is only when the communication comes within the concept of an adverse or qualified security assessment that the subject matter is open to any kind of judicial review and then only by the Security Appeals Tribunal under the most stringent procedural constraints.
His Honour rejected the argument of the plaintiffs that ASIO is controlled by criteria which are capable of objective determination and are therefore susceptible to review by the courts.
His Honour said at pp.622 and 623:-
'One may put aside the question whether the communication by ASIO of intelligence for purposes which are not relevant to security is unlawful because even if, for the purposes of the argument, Mr. Castan's point in this regard is conceded, there remains what to my mind is an insuperable objection extending to all the issues I have mentioned. It is the notion that the court can examine the intelligence in question and receive evidence, presumably in the presence of the plaintiffs if not in open court, concerning the Director-General's reasons for believing the communication to be for 'purposes relevant to security and not otherwise', and then decide for itself the purpose of the communication and the truth of its subject matter. The likelihood is that a hearing on such issues would be aborted at the outset by reason of problems of privilege and secrecy, but in any event I cannot discern any legislative intent to have questions of security ventilated in a court proceeding surrounded with none of the safeguards that are provided for the review of adverse security assessments. I find the inference in favour of the defendant's submission on justiciability to be irresistible.'
Wilson J.'s finding that the conduct of ASIO is not subject to judicial review is not determinative of the question whether the Director-General is bound to comply with subpoenas issued by the courts of this country. Indeed, in my opinion his Honour's finding does not touch this question at all.
Nor can I discern from the 1979 Act any intention by Parliament to oust the jurisdiction of the courts to compel the production of documents except where specific provision is made in this respect (for example sub-s. 81 (2) ), but none of those exceptions are relevant to the present case. If Parliament did purport to oust this jurisdiction of the courts a serious question would arise as to its power to do so, a question considered by Ellicott J. in Haj-Ismail v. Minister for Immigration and Ethnic Affairs (supra). His Honour said (at. p. 527):-
'The powers of the courts in exercising federal jurisdiction to determine what documents shall be available for inspection and admission in evidence before them is, in my opinion, part of the judicial power of the Commonwealth vested in these courts. It is not open to Parliament to limit this power. It may regulate its exercise provided such regulation does not impair the power. It cannot usurp the power. For instance it is not open to Parliament, in my view, to make the inspection and admission of documents before the courts exercising federal jurisdiction dependent solely on the discretion of the Attorney-General. I make this point only to stress the importance to the executive as well as to the parties of giving the courts as much assistance as is practicable in the resolution of what can often be a very difficult matter.'
The question raised in this case is whether the final decision as to the production of documents by the Director-General rests with the Courts or the Executive. It is firmly established that it rests with the Courts.
In Sankey v. Whitlam (1978) 142 C.L.R. 1, Gibbs A.C.J. said (at pp. 38 and 39):-
'It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence.':
There are two aspects of public interest which may conflict: the public interest that injury should not be done to the national interest by disclosure of certain documents and the public interest that the ends of justice are not defeated by the withholding of relevant evidence.
The Supreme Court of the United States of America said in United States v. Nixon 418 U.S. 683 (at p. 709):-
'The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.'
Certain documents by their nature are within a class which in the public interest is generally not susceptible of orders for production and disclosure. The class includes Cabinet papers and minutes, minutes of discussion between heads of departments, dispatches from Ambassadors abroad and documents relating to the framing of Government Policy at a high level: Conway v. Rimmer (1968) A.C. 910; Sankey v. Whitlam (supra); Australian National Airlines Commission v. The Commonwealth Of Australia (1975) 132 C.L.R. 582; Lanyon Pty. Limited v. The Commonwealth Of Australia (1974) 129 C.L.R. 650; In Re Grosvenor Hotel, London (No. 2) (1965) Ch. Div. 1210; Burmah Oil Co. Limited v. Governor and Company of the Bank of England (1980) A.C. 1090. But even these documents fall squarely within the rule that it is for the court to determine whether they should be produced or not produced: Sankey v. Whitlam per Mason J. (at p. 96).
In evaluating the respective public interests the court will give considerable weight to the opinion of the responsible Minister that the documents should not be produced, but the court is entitled to inspect the documents and reach its own conclusion on the question whether the public interest is properly served by production or non-production.
The power of the court to inspect documents privately should not be exercised lightly or as a matter of course. The occasions for its exercise are for the court itself to determine, but they include the case where there are reasons to doubt the accuracy or completeness of the Minister's certificate or affidavit or the adequacy of his reasons: Burmah Oil Co. Limited v. Bank of England (supra) per Lord Wilberforce (at p. 1117), Lord Edmund-Davies (at p. 1129), Lord Keith of Kinkel (at p. 1134-1135) and Lord Scarman (at p. 1145); Environmental Defence Society Inc. v. South Pacific Aluminium Ltd. (No. 2) 1981 N.Z.L.R. 153.
In Sankey v. Whitlam Mason J. said (at p. 96), when balancing the public interests to which I referred earlier:-
'...the court, though it will give weight to the Minister's opinion that the documents should not be produced, is entitled to inspect the documents and form its own conclusion upon the question whether the public interest will be better served by production or non-production'.
In the present case the Acting Attorney-General has given detailed reasons in his affidavit supporting his opinion that the production of the documents referred to in the subpoena directed to the Director-General would be inimical to national security. The Director-General himself swears in his affidavit that any relevant documents in his possession contain intelligence relevant to security.
There is no doubt that this Court has power to order the Director-General to produce the documents in question to it and, if necessary, inspect them in private and later make them available for inspection by the applicants. If Cabinet papers, dispatches from Ambassadors and documents at the highest level of Government Policy are not immune from the Court's powers of compulsorily requiring the attendance of witnesses and the production of documents, documents relating to national security likewise are not immune from production.
As the documents in question are said to relate to national security it does not follow that this Court will automatically inspect them if produced by the Director-General. Indeed, the Court's power to inspect such documents should be exercised only if the Court is in doubt, after considering the affidavits or certificates of the Acting Attorney-General or the Director-General, the issues in the case and the relevance of the documents, whether they are likely to contain material helpful to the case of the applicants as the parties seeking production. If the Court decides that it is an appropriate case to itself inspect the documents then, following inspection by the Court, it may allow the applicants to inspect them or some of them or parts of them if the interests of justice require this disclosure. But if such disclosure would be prejudicial to national security it is inconceivable that it would be allowed.
In Sankey v. Whitlam Gibbs C. J. said (at p. 44):-
'Although an affidavit sworn by a Minister or departmental head is no longer conclusive, it appears to me to be still highly desirable that the person who swears the affidavit should himself have seen the documents in question. Where the claim is that it would be contrary to the public interest to publish the contents of a particular document, it is obviously essential that the person asserting the claim should himself have seen the documents in question. Even where the claim is that the document belongs to a class which should be withheld, the court is still required to give proper respect to the assertion by the Minister or departmental head that production would be contrary to the public interest, and the weight that would be given to an affidavit making an assertion of this kind would necessarily be reduced if the person swearing it had not himself seen the document.'
The question now arises as to the course I should follow concerning the documents subpoenaed from the Director-General. The approach of the Acting Attorney-General and the Director-General, reflected in their affidavits, is based on the assumption that the courts cannot compel production of ASIO's documents. As I have concluded that this assumption is not well founded it does not follow that I would now require the documents to be handed to the Court for inspection by it. Neither the Acting Attorney-General nor the Director-General swore that he had personally examined the documents to the production of which objection was taken. Nor have the documents been identified with any precision. The Acting Attorney-General describes them only in general terms as reports or information provided by or to ASIO except for one document which is identified.
In these circumstances, in my view, an opportunity should be afforded to both the Acting Attorney-General and the Director-General to reconsider the matter including the swearing of further affidavits. In the light of any additional material which they may see fit to put before the Court, further consideration may then be given to the inspection of the documents by the Court, and submissions may be made by the parties and the Director-General.
I turn now to the subpoena to the Commissioner of the Australian Federal Police, It has been treated by the parties and the Court as requiring the production of:-
(1) all information relating to the applicants relied upon by Detective Superintendent R. J. Dillon to make his report of 19 January 1981;
(2) copies of all correspondence between the Federal Police and the respondents from 1 January 1972 to the present day relating to the applicants;
(3) all advices, reports or instructions given by the Federal Police to the respondents since 19 January 1981 relating to the applicants; and
(4) all files relating to an entry into the property at Gladstone Street, Kilburn, since 1 August 1982.
The Acting Attorney-General swore an affidavit in which he says:-
'2. I refer to 4 folders of documents marked respectively 'AFP 1', 'AFP 2', 'AFP 3' and' AFP 4', the covers of which folders are signed by me. I have personally examined the documents in those folders.
3. I object to production of the documents contained in the folder marked 'AFP 1', and to those portions highlighted yellow of the documents in the folders marked 'AFP 2' and 'AFP 3', on grounds the disclosure of which would itself be contrary to the public interest in that such disclosure would defeat the public interest for which privilege is claimed. Those grounds are set out in a document which I have headed 'Statement of Reasons" and signed.
4. In my opinion, disclosure of the document contained in the folder marked 'AFP 4' would be contrary to the public interest in that it would endanger the safety of persons and property. I therefore also object to production of that document.
5. I further object, on the grounds set out above and in the said Statement of Reasons, to the giving by any person of any evidence disclosing the subject matter or substance of the abovementioned documents, or highlighted portions of documents, as the case may be."
The Minister for Foreign Affairs swore an affidavit relating to the subpoena directed to the Commissioner of the Australian Federal Police in which he says:-
'3. I refer to a folder marked 'FA 1', the cover of which is signed by me. I have personally examined the document in the folder.
4. I object to production of those portions of the said document as are highlighted green on the ground that disclosure of those portions would be contrary to the public interest in that it would prejudice the conduct of Australia's foreign relations by disclosing information which could adversely affect the security of diplomatic communications codes used and shared with other countries.'
The Assistant Commissioner (Crime) of the Australian Federal Police swore an affidavit in which he says:-
'6. I refer to a folder marked 'RF", the cover of which is signed by me. I have personally examined the documents in the folder.
7. I object to production of those portions of the said documents as are highlighted blue on the ground that disclosure of those portions would be contrary to the public interest in that they would disclose, or tend to disclose, the identity of a person or persons who have provided information to the Australian Federal Police for the purposes of the performance by the Police of their functions or who have provided information which has subsequently been provided to the Australian Federal Police for such purpose. From my experience I am able to say that disclosure of the identity of such a person could seriously prejudice the effective detection and prevention of crime and the protection of persons from injury or death, and property from damage.'
Counsel for the Commissioner produced documents in response to the subpoena and said that no objection would be taken to the Court inspecting them to determine whether they should be produced for inspection by the applicants. I have inspected the documents. In my opinion the objections to the inspection of them by the applicants sworn to by the Acting Attorney-General, the Minister for Foreign Affairs and the Commissioner are soundly based. The only documents or parts of documents which should be available for inspection by the applicants are those to which no objection has been taken. Thus the only documents or parts of documents which may be inspected by the applicants are as follows:-
(a) the documents in folders marked 'AFP 2' and 'AFP 3' excluding the parts thereof highlighted in yellow;
(b) the documents in folder marked 'FA 1' excluding the parts thereof highlighted in green.
Having inspected the documents I am satisfied that the interests of justice do not require the disclosure to the applicants of the documents or parts of documents where objection was taken to their being inspected by them. The applicants will suffer no injustice by non-disclosure.
I propose to release the documents produced by the Commissioner into his custody on condition that he returns to the Court copies of those documents which I have said may be inspected erasing parts highlighted in yellow or green. Those copies may then be inspected by the applicants.
In paragraph 3 of the affidavit of the Acting Attorney-General he swore that disclosure of the grounds supporting his objection to the production of the documents included in the subpoena to the Commissioner would defeat the public interest for which privilege is claimed. The Acting Attorney-General therefore set out the grounds in the document headed 'Statement of Reasons' and signed by him. I have read that document and I see no reason to disagree with the Acting Attorney-General's view. Initially I had some doubt about the propriety of restricting the disclosure of the very grounds themselves in the way proposed by the Acting Attorney-General; but it is really only another facet of the established practice whereby the courts may themselves inspect documents where objection is taken to their production: R. v. Debic an unreported judgment of the Court of Appeal of New South Wales, 27 May 1982.
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