Holloway v Commonwealth of Australia
[2016] VSC 317
•8 JUNE 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2014 02832
| GREGORY MARTIN HOLLOWAY | Plaintiff |
| v | |
| COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | JOHN DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 MARCH 2016, (further material received 2 May 2016) | |
DATE OF JUDGMENT: | 8 JUNE 2016 | |
CASE MAY BE CITED AS: | HOLLOWAY v COMMONWEALTH OF AUSTRALIA | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 317 | First Revision: 1 August 2016 |
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DISCOVERY – Discovery of documents – Objection to inspection – Public interest immunity – ‘Contents’ claim – Whether balancing exercise called for –Whether legitimate forensic purpose demonstrated by plaintiff – Whether basis for secrecy or confidentiality demonstrated – Documents concerning screening of incoming passengers at airports by Australian Border Force – Completed incoming passenger cards, training materials, policy statements, identification of ABF officers and CCTV footage – Documents inspected by the Court – Production of majority of documents ordered – Evidence Act 2008 (Vic), ss 130, 131A.
EVIDENCE – Discovery of documents – Objection to inspection – Public interest immunity – ‘Contents’ claim – Whether balancing exercise called for – Whether legitimate forensic purpose demonstrated by plaintiff – Whether basis for secrecy or confidentiality demonstrated – Documents concerning screening of incoming passengers at airports by Australian Border Force – Completed incoming passenger cards, training materials, policy statements, identification of ABF officers and CCTV footage – Documents inspected by the Court – Production of majority of documents ordered – Evidence Act 2008 (Vic), ss 130, 131A.
EVIDENCE — Public interest immunity — Cross-examination of deponent of affidavit in support of claim to public interest immunity — When permissible.
PRACTICE and PROCEDURE – Further and better particulars of defence – Pleadings problematic – Need for both parties to refine identification of issues – Efficient use of court resources – Parties directed to re-plead – Civil Procedure Act 2010 (Vic), ss 8, 9.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr Gideon Boas | Madgwicks Lawyers |
| For the Defendant | Mr Peter Hanks QC with Mr Richard Knowles | Moray & Agnew Lawyers |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Background.................................................................................................................................... 1
Plaintiff’s summons...................................................................................................................... 3
Issues............................................................................................................................................... 4
Claim to public interest immunity.................................................................................................. 5
The evidence on the application................................................................................................. 8
Principles relating to public interest immunity....................................................................... 9
Review of relevant documents................................................................................................. 14
The threshold tests...................................................................................................................... 16
The first threshold - Relevance and admissibility in the proceeding....................... 16
The second threshold - State’s confidentiality interest................................................ 22
The balancing exercise............................................................................................................... 31
The incoming passenger cards........................................................................................ 31
Training materials............................................................................................................. 35
Identification of individual ABF Officers...................................................................... 41
CCTV footage..................................................................................................................... 45
Other documents (Passenger movement records, Protected information report).. 46
Redaction of the Commonwealth’s affidavits......................................................................... 47
Cross examination of the Commonwealth’s witnesses......................................................... 49
Provision of further discovery by the Commonwealth............................................................ 52
Further Particulars............................................................................................................................ 55
Conclusion......................................................................................................................................... 58
Introduction
On 17 December 2015, the plaintiff applied for orders for inspection of discovery, further discovery and a better response to his request for further and better particulars of the Commonwealth’s defence. The parties were unable to agree an appropriate regime under which the plaintiff could inspect, in an unredacted form, certain documents identified in two affidavits of discovery sworn on behalf of the Commonwealth, due to its assertion that either legal professional privilege, or public interest immunity, prevented the disclosure of the documents or part of their content.
Background
The plaintiff claims that since 8 June 2011, customs officers in the employ of the Commonwealth have detained him on more than 30 separate occasions at international arrival areas in airports at Melbourne, Sydney and Brisbane, variously for interrogation, questioning, searching, x-raying, and testing the plaintiff’s luggage. On each of these occasions the plaintiff has been released from questioning without charge, investigation or any subsequent action being taken. As a result of the alleged conduct, the plaintiff claims that the Commonwealth has caused him loss or damage including loss of liberty for extended periods, fear, anxiety and panic attacks, and loss of income and opportunity relating to his business interests. The plaintiff seeks both aggravated and exemplary damages.
The plaintiff claims that the actions of customs officers were on each occasion an unlawful exercise of authority under s 186(1) or s 195(1) of the Customs Act 1901 (Cth), and constituted false imprisonment of himself or trespass to his property and, on some occasions, both torts. Unlawfulness is alleged because the officers ‘exceeded the statutory power authorised by’ the relevant legislation. The Commonwealth denies the plaintiff’s allegations. In particular, it denies that it unlawfully detained the plaintiff and says that any questioning of the plaintiff and examination of his person or luggage was lawful and authorised by the Customs Act, and in particular ss 186, 195 and 196C.
Those sections relevantly provide as follows:
186 General powers of examination of goods subject to customs control
(1)Any officer may, subject to subsections (2) and (3), examine any goods subject to customs control, and the expense of the examination including the cost of removal to the place of examination shall be borne by the owner.
195 Power to question passengers etc.
(1) An officer of Customs may question:
(a)any person who is on board a ship or an aircraft or an installation of the kind referred to in paragraph 187(b), (c), (d) or (e); or
(b) any person who has, or who the officer has reason to believe has, got off a ship or out of an aircraft; or
(c)any person who the officer has reason to believe is about to board a ship or an aircraft;
as to whether that person or any child or other person accompanying him or her has on his or her person, in his or her baggage or otherwise with him or her any:
(d) dutiable goods; or
(e) excisable goods; or
(f) prohibited goods.
196C Power to question persons claiming packages
(1)Before an officer of Customs decides whether or not to authorise the delivery into home consumption of goods referred to in section 71, the officer may:
(a)request the person to state his or her full name and residential address; and
(b)ask the person whether he or she is the owner of the goods; and
(c)where the person states that he or she is not the owner of the goods, request the person to state the full name and residential address of the owner of the goods; and
(d)request the person to produce evidence of the correctness of the information given by him or her in compliance with a request made of him or her in pursuance of paragraph (a) or (c).
The pleaded allegations raise disputed issues of fact about the circumstances of the plaintiff’s dealings with the Commonwealth’s officers from the time of his disembarking from an arriving aircraft, completion of an incoming passenger card (“IPC”), and processing through immigration and customs controls until his departure from the airport. The various declarations made by the plaintiff on his incoming passenger cards and the responses of customs officers to those declarations are central issues informing the principal elements of the plaintiff’s claims. At trial, examination of the procedures adopted on each occasion is likely, particularly in relation to the IPCs and the exercise of statutory powers to question and to search. The conduct of the parties, including conversations between the plaintiff and customs officers in the secondary examination areas, is also likely to be exposed to close analysis.
On 1 July 2015, the functions of the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service were integrated into a new department. The Australian Border Force (‘ABF’) was established as the new operational agency within that Department.[1] For present purposes, the ABF’s establishment is of no significance and for convenience, I will refer to the persons with whom the plaintiff dealt as ABF officers irrespective of the date of the encounter.
[1]See generally Australian Border Force Act2015 (Cth).
Plaintiff’s summons
The plaintiff sought orders that:
(a) The defendant make available for inspection by the plaintiff, and in an unredacted form, all documents contained within Part 2 of Schedule 1 of the Affidavit of Documents of Mr Ian David Beasant sworn on 20 July 2015 and Part 2 of Schedule 1 of the Supplementary Affidavit of Documents of Mr Beasant sworn 4 December 2015, over which immunity is asserted by the Commonwealth;
(b) The defendant provide a further affidavit of documents within a time ordered by the court that is fully compliant with its obligations under Order 29 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’); and
(c) The defendant provide answers to all requests by the plaintiff for further and better particulars that are responsive to, and compliant with, its obligations under Rule 13.10 of the Rules.
The plaintiff sought this relief to properly ascertain the basis for the Commonwealth’s defence to his pleaded claim. The plaintiff contended that the Commonwealth has in the past, and continues to, fail to fulfil, or fulfil adequately, its obligations with respect to discovery and to properly particularise its defence.
Both parties have been guilty of delays in compliance with the discovery timetable.[2] The affidavit of the plaintiff’s solicitor exhibited correspondence setting out the history of communications between the parties in this regard. Prior to the application being made, counsel for the parties could not agree a proposed confidentiality regime that would provide an acceptable basis for the plaintiff to view particular documents in an unredacted form.[3]
[2]Affidavit of Grant Walker, 17 December 2015, [4]-[18].
[3]Ibid [19]-[23].
The plaintiff submitted that the Commonwealth has not only failed to comply with its obligations with respect to discovery and the provision of further and better particulars in a manner compliant with the Rules, but has acted inconsistently with its duties as a model litigant, duties that include not causing unnecessary delay in the proceedings, endeavouring to narrow issues in dispute, and avoiding reliance on technical defences.
The Commonwealth contended, in summary, that its claims of public interest immunity and its objections to disclosure of unredacted versions of redacted documents should be upheld, additional documents which the plaintiff seeks to be discovered either do not exist or are not available, and it ought not be required to give any further and better particulars of its defence.
Issues
The issues on the application were, in summary, the following:
(a) Is the Commonwealth entitled to refuse to produce the documents in issue, whether at all or in an unredacted form on the ground of public interest immunity;
(b) Should cross-examination of the deponents of the affidavits relied on by the Commonwealth be permitted in respect of the immunity issue;
(c) Has the Commonwealth complied with its discovery obligations, specifically are there additional documents which need to be disclosed by a further affidavit of discovery on behalf of the Commonwealth; and
(d) Is the plaintiff entitled to the further and better particulars of the Commonwealth’s defence.
Claim to public interest immunity
On 16 December 2014, the court made orders for discovery and inspection of discovered documents ‘for which privilege from production was not claimed’. The order for inspection was subject to the following order, made by consent:
Until further order, inspection of any unredacted version of documents discovered in redacted form by the defendant due to claims of public interest immunity be restricted to the plaintiff’s legal representatives, and only after provision to the defendant of a signed confidentiality undertaking in a form to be agreed by the defendant.
The Commonwealth subsequently discovered documents by:
(a) the affidavit of documents of Mr Beasant sworn on 20 July 2015; and
(b) the supplementary affidavit of documents of Mr Beasant, sworn on 4 December 2015.
As the parties legal representatives had not agreed an acceptable form of confidentiality undertaking, the plaintiff has not inspected any unredacted version of the Commonwealth’s discovery.
The 20 July and 4 December 2015 affidavits of documents variously assert client legal privilege and public interest immunity over particular documents in their entirety, or over parts of documents that the Commonwealth will produce for inspection with redactions. The documents in issue are enumerated in Part 2 of Schedule 1 in each of Mr Beasant’s affidavits. Mr Beasant states that the documents are either immune from inspection or tender in evidence as pertaining to matters of state on several different bases which are identified or, in the case of his 20 July 2015 affidavit, in accordance with either ss 118 or 119 of the Evidence Act 2008 (Vic). However, the July 2015 affidavit does not develop any basis which might substantiate a claim of client legal privilege and the Commonwealth put no submission on the application that documents were privileged from production on that basis. I have not considered any claim to resist inspection on the basis of client legal privilege and the issue on the application was only that of public interest immunity.
The documents over which public interest immunity is claimed are grouped in both affidavits according to a brief description of the basis of the immunity claim. Specifically:
(a) Markings made by ABF officers on the plaintiff’s IPCs have been redacted from the cards produced for inspection ‘as they are part of a structured confidential system for processing passengers’ and such markings are subject to the immunity;[4]
[4]Item 1 of Part 2 of Schedule 1 of Mr Beasant’s 20 July 2015 affidavit of documents. It is noted that while Mr Beasant’s affidavit may make it appear that the claim to immunity is in respect of the cards in their entirety, the claim is actually limited to certain markings made on the cards by Border Protection Officers.
(b) Inspection of training materials, instructions and guidelines provided to ABF officers is refused as it is material ‘that is not in the public domain and which [if revealed,] may reduce the effectiveness of risk profiling assessments undertaken of passengers’ and is subject to the immunity;[5]
[5]Items 2 to 11 of Part 2 of Schedule 1 of Mr Beasant’s 20 July 2015 affidavit of documents; Items 11.1 to 11.3 of Mr Beasant’s 4 December 2015 affidavit of documents.
(c) Various documents which reveal the names or identification or the unique ID reference of individual ABF officers have been produced for inspection with that information redacted. Immunity is claimed in respect of the redacted material ‘for reasons of safety, confidentiality, security and personal security given the work undertaken by these Officers’;[6]
(d) CCTV footage disks which reveal the names or identification of individual ABF officers ‘for reasons of safety, confidentiality, security and personal security given the work they do as well as knowledge of methodology used and the operational resource in place in a Department of Immigration and Border Protection controlled area’;[7] and
(e) Other documents and reports containing information ‘that is not in the public domain and which might impact the work undertaken by Border Protection Officers in their operational activities’.[8]
[6]Items 12 to 51 of Part Part 2 of Schedule 1 of Mr Beasant’s 20 July 2015 affidavit of documents; Items 51.1 to 51.6 of Mr Beasant’s 4 December 2015 affidavit of documents.
[7]Items 52 to 55 of Part 2 of Schedule 1 of Mr Beasant’s 20 July 2015 affidavit of documents; Items 55.1 to 55.3 of Mr Beasant’s 4 December 2015 affidavit of documents.
[8]Item 56 of Part 2 of Schedule 1 of Mr Beasant’s 20 July 2015 affidavit of documents; Item 56.1 of Mr Beasant’s 4 December 2015 affidavit of documents.
Mr Beasant, who swore both affidavits of documents on behalf of the Commonwealth, is employed by the Department of Immigration and Border Protection. He has been performing duties at Melbourne Airport for 10 years and was an acting assessment and response supervisor between 2011 and 2013. Since that time, he has been seconded to the Australian Federal Police Joint Counter Terrorism Team.
Commonly, an immunity claim is supported by an affidavit by the relevant Minister or the permanent head of the Department or a person having official responsibilities, after giving consideration to each and every document that is the subject of the immunity claim.[9] Although it is highly desirable that the deponent advancing the immunity claim has seen the documents in question, Mr Beasant does not distinctly state that he has reviewed all of the documents and it is not clear from the content of his affidavits that he has done so in respect of some documents. Neither Mr Beasant’s authority to depose to the relevant circumstances nor the apparent extent of his analysis of the documents was challenged.
[9]Sankey v Whitlam (1978) 142 CLR 1, 43-44.
The authorities suggest that it is appropriate to give proper respect to assertions made by a Minister or a departmental head that production would be contrary to the public interest. Particularly in the context of a ‘contents’ claim, the force of that suggestion where the Minister or a departmental head has examined the documents is clear. A proper assessment of the impact of disclosure upon the public interest in the relevant sense is unlikely to be within the province of the judge. However, there is no general rule about the extent to which the court should be influenced by the oath of the deponent asserting the basis for entitlement to immunity and the evidence in each case must be carefully evaluated.[10] In the present case, I have required the production of all documents that are the subject of the claim and examined them for myself.
[10]See Sankey v Whitlam (1978) 142 CLR 1, 43-44; Alister v R (1983) 154 CLR 404, 435; Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2) [2001] VSC 249 [7]; De Bruyn v Minister for Justice and Customs [2006] FCA 232 [35]; and Young v Quin (1984) 4 FCR 483, 484-486 and 488-489.
The evidence on the application
Mr Beasant has sworn an additional four affidavits in support of the immunity claims made in the two affidavits of documents. These affidavits are dated 10 December 2014, 6 January 2016, 17 March 2016 and 13 April 2016. The Commonwealth also read a short affidavit of Mr Rodney Winchester, an Australian Border Force Superintendent working at Melbourne International Airport, sworn on 20 January 2016.
Each of these affidavits was served with redactions, but provided to the court in a form in which the redacted text was visible. The methodology employed in the redaction process was not explained and did not fully emerge from reading the affidavits. It is plain enough that in some cases the purpose of the redacted material was to justify the public interest in preserving secrecy or confidentiality and that such purpose would be defeated by disclosure. On the other hand, disclosure to the court was necessary to justify the asserted basis for the claim of immunity. Because it is necessary that I disclose a transparent path of reasoning for my decision, I have not accepted the basis for redaction in all instances. Further, where no sensible basis for a redaction is discernible I have not maintained the confidentiality intended by the Commonwealth when serving the affidavits. I will later return to issues regarding the redaction of the affidavit material.
Principles relating to public interest immunity
The rule at common law is that the court will not compel or permit the disclosure in evidence to a court of information where to do so would be injurious to the public interest.[11] The principle on which public interest immunity in Australia is based is found in Sankey v Whitlam.[12] As Gibbs ACJ said:
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer, as follows:
“There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done”.
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. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.
[11]Sankey v Whitlam (1978) 142 CLR 1, 38, 48.
[12]Ibid, 38-39 (citations omitted).
The common law test for public interest immunity was stated by Gibbs CJ in Alister v The Queen:[13]
Sankey v Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process — the balancing exercise — can only be taken when it appears that both aspects of the public interest do require consideration — i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.
[13](1983) 154 CLR 404, 412 (citations omitted).
Section 130(1) of the Evidence Act 2008 (Vic), which was designed generally to preserve the common law with respect to public interest immunity claims,[14] relevantly provides:
If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
[14]Australian Law Reform Commission, Evidence, Report No 26, (1985) vol 1, 490-491 [864]-[866]. See also Eastman v R (1997) 76 FCR 9, 63; and Ryan v State of Victoria [2015] VSCA 353 [58]-[67].
Section 130(4) sets out a non-exhaustive list of circumstances in which the information or document will be taken to relate to ‘matters of state’ for the purposes of s 130(1):
Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
Section 130(5) sets out a non-exhaustive list of factors to be taken into account by the court when undertaking the balancing exercise required by s 130(1):
Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding— whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding….
The task that the court must undertake is to balance two competing interests of the State. The proper administration of justice, which is of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in the courts.[15] The party seeking access to the documents must demonstrate a legitimate forensic purpose in disclosure.[16]
[15]Sankey v Whitlam (1978) 142 CLR 1, 38, 49.
[16]Burmah Oil Co Ltd v Bank of England [1980] AC 1090, 1113–4, 1129; Alister v The Queen (1984) 154 CLR 404, 412, 414, 438; Ryan v State of Victoria [2015] VSCA 353 [55].
Another matter of public interest is that harm should not be done to the nation or the public service, by disclosure of sensitive matters of state which ought be protected by the preservation of secrecy or the confidentiality of information or documents. A party asserting a claim of public interest immunity to protect documents from disclosure is required to identify with precision the ‘character of the particular information in issue and the nature of the particular litigation’ in which the public interest issue arises.[17] The categories of public interest are not closed,[18] and include national security and police investigations.[19] Here, the onus rests with the Commonwealth to establish that disclosure of the relevant documents would damage the public interest of the State. The Commonwealth bears a ‘heavy burden’ to ‘establish a “real” rather than merely “some” or “any” detriment to the public interest from disclosure’.[20]
[17]Victoria v Brazel (2008) 19 VR 553, 568 [47].
[18]Sankey v Whitlam (1978) 142 CLR 1, 60; D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 230.
[19]Ryan v State of Victoria [2015] VSCA 353 [56].
[20]Somerville v ASC (1995) 60 FCR 319, 354.
The balancing exercise to be undertaken requires the Court to have regard to and weigh up these public interest considerations.[21] The first consideration will largely depend on the nature of the proceeding and the relevance of the documents and the information in them to the issues in the proceeding.[22] The second consideration will largely depend on the nature of the documents and the information they convey and the effect of the disclosure of those documents and that information.[23] Tate JA observed in Ryan v State of Victoria that:[24]
In undertaking the balancing exercise, the court will generally have regard to a number of considerations. These include whether non-disclosure would impede the accused’s right to a fair trial, the evidentiary value and importance of the documents to the issues, whether ordering disclosure would cause sources of information to ‘dry up’, whether preserving candour would facilitate the public function in issue, and whether the material is already in the public domain or has current sensitivity. The court is also to accord weight to an assertion by an authorised representative of government that the public interest would be at risk in the event of disclosure.
[21]Sankey v Whitlam (1978) 142 CLR 1, 43; Alister v R (1983) 154 CLR 40, 412, 434-435; Commonwealth v Northern Land Council (1992) 176 CLR 604, 618, 620. See, also, s 131A of the Evidence Act 2008 (Vic).
[22]Evidence Act 2008 (Vic) s 130(5).
[23]Evidence Act 2008 (Vic) s 130(4).
[24][2015] VSCA 353 [57] (with Santamaria and Ferguson JJA agreeing); (citations omitted).
The plaintiff submitted that when determining whether evidence is to be admitted under s 130, the court’s starting point is that all relevant and admissible documents should be produced for inspection in order for him to achieve justice in his proceeding.[25] The limits of the immunity must be applied strictly, by reason of the fetter it places on the proper administration of justice.[26]
[25]Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975, [37]; A3 v Australian Crime Commission [2006] FCA 894, [19]; Sankey v Whitlam (1978) 142 CLR 1, 49 (Stephen J) and 95 (Mason J).
[26] Royal Women’s Hospital v Medical Board of Victoria (2006) 15 VR 22, 34 [42] (Maxwell P).
The Commonwealth disputed the plaintiff’s asserted ‘starting point’, submitting that the balancing exercise does not necessarily begin with evenly balanced scales as there are many kinds of documents where the scales begin tilted in favour of non-disclosure. I accept this submission. A ‘rough but accepted’ distinction is drawn between ‘class claims’ and ‘contents claims’; that is, between public interest immunity claims the subject of which is a document falling within a specific ‘class’ irrespective of its content and a document attracting the immunity because of the sensitive nature of its ‘content’.[27]
[27]Ahmet v Chief Commissioner of Police [2014] VSCA 265 [20]-[22].
However, this case does not concern consideration of a particular class of documents which ought be protected in the national interest. The Commonwealth’s immunity claims do not fall within any of the specific categories or ‘classes’ of documents which can be ordinarily said to attract the immunity, such as, for example, cabinet documents, in which case the balancing exercise necessarily would begin pre-weighted against disclosure. Because the claim is not a ‘class claim’, the scales are not tilted in favour of non-disclosure and the Commonwealth must clearly articulate the claim for immunity having regard to the content of each document or part of a document over which immunity is claimed:[28]
…[w]ith rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.
The outcome with respect of each document will necessarily depend on an assessment of the competing interests affecting that document in the circumstances of the case.
[28]State of Victoria v Brazel (2008) 19 VR 533, 574-575.
In my view the proper starting point is to determine whether the documents are relevant and admissible in the proceeding,[29] as the first consideration raised by the statutory test is an enquiry into the public interest in admitting into evidence information or documents that relate to matters of state. This requires analysis of the issues raised on the pleadings,[30] and is a matter on which the plaintiff bears the onus of persuasion as to the weight that such public interest deserves in the balancing exercise. The considerations set out in s 130(5) will be apposite. If there is no public interest in the use of information or a document in the administration of justice it will be unnecessary to consider the public interest in preserving secrecy or confidentiality in relation to that information or document.
[29]Evidence Act2008 (Vic) ss 55, 56.
[30]Ryan v State of Victoria [2015] VSCA 353 [124]-[147].
The next consideration raised by the statutory test is an enquiry into the public interest in preserving secrecy or confidentiality in relation to the information or document. This is a matter on which, in this case, the Commonwealth bears the onus of persuasion as to the weight that this public interest deserves in the balancing exercise. The considerations set out in s 130(4) will be apposite. If there is no public interest in preserving secrecy or confidentiality, the claim to immunity plainly fails. If that public interest is demonstrated, before embarking on the balancing exercise, the court must assess the strength of the arguments for disclosure and non-disclosure respectively.
If both preliminary thresholds of public interest have been met, the final consideration is the balancing exercise to determine whether the information or document cannot be adduced as evidence by reason of the immunity.
Review of relevant documents
At the hearing of the application the Commonwealth proposed, and, subject to some concerns, the plaintiff agreed, that the court be provided with a representative sample of the disputed documents. This kind of review is expressly contemplated in s 133 of the Evidence Act which provides that:
If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.
At common law, the court’s power to inspect documents was to be exercised sparingly and only as absolutely necessary.[31] In Ahmet v Chief Commissioner of Police,[32] however, the Court of Appeal held that in order for ‘proper weighing of the merits of the competing claim’ to be undertaken, the court needed to have ‘a good appreciation of the substance of the information that [it is contended] is “sensitive” in the public interest and the potential damage that would like result if it were disclosed in the context of the litigation.’ The Court opined that ‘where a claim for immunity is a “contents” claim, that exercise will normally require the judge to inspect the documents for the purpose of making a decision on whether or not the claim is made out’.[33]
[31]For example, it has been said that a court should inspect the documents if it: has decided on balance that a document(s) should probably be produced (Sankey v Whitlam (1978) 142 CLR 1 (Gibbs ACJ); Conway v Rimmer [1968] AC 910); is unable to decide where the balance of public interest lies (Burmah Oil Co Ltd v Governor and Company of the Bank of England [1980] AC 1090; D v National Society for the Prevention of Cruelty to Children (1978) AC 171); or is not persuaded that the claim to immunity can otherwise be properly advanced (Howe v The State of South Australia & Belperio (1998) 196 LSJS 182).
[32][2014] VSCA 265, [28].
[33][2014] VSCA 265 [32].
After I reserved my decision, the court received a further affidavit sworn by Mr Beasant on 13 April 2016. This affidavit, like its predecessors, was served with substantial redactions but filed in unredacted form. This affidavit provided further evidence in support of the Commonwealth’s public interest immunity claim over the categories of documents identified above, in particular with regard to the IPCs and exhibited a number of the contentious documents over which immunity was sought. The documents exhibited were:
(a) the ‘Passenger Clearance Course – Learner Guide’ (item 5 of Schedule 1, Part 2, of the affidavit of documents sworn on 20 July 2015) over which immunity was claimed in its entirety;
(b) eight of the plaintiff’s completed IPCs (item 1 of Schedule 1, Part 2, of the affidavit of documents sworn on 20 July 2015, and items 17 and 20 in Schedule 1, Part 1 of the supplementary affidavit of documents sworn on 4 December 2015) which were partially redacted, along with a further two IPCs which were produced in their entirety; and
(c) A copy of a ‘Compliance Information Sheet’ provided in answer to a question asked during argument about the statutory obligations affecting ABF officers in discharging their duties.
This further affidavit raised two concerns. My first concern was to afford the plaintiff an opportunity to make any submission about that further affidavit. I invited the plaintiff to make any further written submissions in response, which he did on 21 April 2016, stating that Mr Beasant’s final affidavit was so heavily redacted in parts that the plaintiff’s ability to make observations about matters contained in it was quite limited. My second concern was that the sample of documents subject to the immunity claim appeared inadequate to enable a proper assessment of the claim and I directed that the Commonwealth provide the court with all documents that it asserted were subject to public interest immunity.
The threshold tests
As stated above, before a balancing exercise can be undertaken the documents in question must meet the two preliminary public interest threshold tests – firstly, that the information or document is relevant and admissible evidence in the proceeding and, secondly, that there is a real and not negligible interest in preserving secrecy and confidentiality in relation to the information or document. In the circumstances of this application, the plaintiff bears the onus of establishing the former, and the Commonwealth bears the onus on the latter.
I have inspected each of the documents in question for the purpose of determining their relevance to the proposed claims and the weight to be attributed to the public interest in the due administration of justice; and whether the material over which indemnity was claimed sufficiently warranted protection and, if so, the weight to be attributed to the public interest in maintaining the secrecy and confidentiality of matters of state. As outlined below, for some of the categories over which immunity was claimed the material did not meet the threshold of requiring immunity from inspection so as to protect a genuine public interest.
The first threshold - Relevance and admissibility in the proceeding
As a preliminary consideration, the documents or information in question must be sufficiently relevant and admissible in the proceeding under ss 55 and 56 of the EvidenceAct 2008.
Relevantly, by reference to s 130(5) (a), (c), (d) and (e) of the Evidence Act, the principal considerations for evaluating this public interest are the importance of the information or the documents in the proceeding, the issues raised by the pleadings in the nature of the subject matter of the claim, the likely effect of adducing evidence of the information or documents including the means available to limit publication, and whether the substance of the information has already been published.
The plaintiff submitted that the information over which immunity was claimed was important and relevant in order that he be allowed to establish his case. The material allegations raised by his pleading may be summarised as follows:
(a) Each of the detentions pleaded by the plaintiff in his statement of claim (amounting to over 30 occasions) were unlawful in that the ABF officers exceeded the statutory power authorised by s 195(1) of the Customs Act which allows officers to question a person who has disembarked from an aircraft in order to ascertain whether they have in their baggage or on their person any dutiable, excisable, or prohibited goods. The claim states that this statutory power must be exercised reasonably, and that in the circumstances the ABF officers had no reasonable belief that the plaintiff was in possession of dutiable, excisable or prohibited goods on each occasion;
(b) Each of the detentions pleaded by the plaintiff in his statement of claim were unlawful in that the ABF officers exceeded the statutory power authorised by s 186(1) of the Customs Act which empowers a customs officer to examine a passenger’s bag. The plaintiff claims that the examinations of his baggage on each occasion were unlawful as there was not reasonable basis upon which to examine his goods, including specifically for prohibited substances;
(c) On each pleaded occasion, the plaintiff’s detention constituted false imprisonment as the officers directly and intentionally restrained his freedom of movement without lawful justification. It is claimed that as the detentions occurred in an ‘airside’ area of the airports, the plaintiff was on each occasion ‘totally restrained from leaving the relevant airport’; and
(d) On each pleaded occasion, the examination of the plaintiff’s luggage constituted a trespass to his property, as the Commonwealth, by its servants or agents, directly and intentionally disturbed the plaintiff’s possession of his goods, without lawful justification. It is claimed that on each occasion the examinations were performed without a reasonable basis, and in a way so disproportionate to the risk posed by the plaintiff that they fell outside the scope of the relevant power.
I regard the plaintiff’s claims relating to multiple interactions with ABF officers as factually complex. The factual context to these claims is identified in the catalogue of occasions on which the plaintiff was detained for further searching, questioning and/or examination that are set out in paragraph 8 of his amended statement of claim. It is clear that in order to make out his claim, the plaintiff will rely on evidence of what occurred on each occasion on which he was detained. I am satisfied that the particular details of each of these incidents, both separately, and ultimately as the plaintiff will put it, as a sequence of conduct and events, will be critical to establishing his claim.
The Commonwealth submitted that the documents and information in question were of limited, if any, relevance or importance to the issues in this proceeding. Any purported relevance was described in the Commonwealth’s submissions as ‘at best peripheral’, with ‘any interest in disclosure of the information in the documents … not significant’.
The plaintiff’s claims of unlawful detention and unlawful examination of his luggage are said to rest on the proposition that the conduct of ABF officers was not authorised by an Act or was otherwise impermissible. Subject to any consideration of the proper construction of the enabling Act, that assessment will depend on the circumstances of each incident. The Commonwealth accepted this proposition but submitted that information contained in confidential markings by ABF officers on IPCs and in training materials is not relevant to what actually occurred on each relevant occasion and whether what occurred exceeded the authority conferred by legislation or was otherwise impermissible. Any explanation for, or justification of, ABF officers’ conduct will also depend on the circumstances, in particular, the plaintiff’s conduct, including the way in which he completed IPCs. Hence, the plaintiff’s markings on the IPCs are visible in the copies served upon him, but those of ABF officers had been redacted.
The Commonwealth contended that the reasons for questioning the plaintiff and examination of his luggage were apparent from his own conduct. Paragraph 8 of the Commonwealth’s amended defence sets out, among other things, the questions on the IPCs answered ‘yes’ by the plaintiff that resulted in him being subsequently questioned or searched. Thus, information communicated by confidential markings on IPCs or in training materials was said to be of limited, if any, relevance. For example, it was submitted that compliance with a training manual could not affect the legality of an ABF officers’ conduct in the circumstances.
Finally the Commonwealth submitted that the names and other identifying information of individual ABF officers were not relevant to the issues in the proceeding.
After careful consideration of the Commonwealths’ submissions, and on my review of the unredacted documents and the other material, I reject the contentions that the proper administration of justice in this proceeding does not require that the plaintiff have free access to the disputed material and that the plaintiff cannot demonstrate a legitimate forensic purpose in disclosure of it to him.
I am persuaded that the plaintiff has properly identified a legitimate forensic purpose for each of the categories of documents and, mostly, for the information that has been concealed by redaction.
In particular, I accept the plaintiff’s submissions that:
(a) It will be relevant and probative for the plaintiff to prove in respect of the conduct alleged against ABF officers whether there is in fact a system for selecting certain passengers for particular treatment, what the system is, how it operates, and whether it was complied with on the pleaded occasions. Regarding the coding system used to mark IPCs, passenger movement records and other documents, the existence of and content of a system for one ABF officer to identify matters about a passenger to another officer, to the extent that it relates to the plaintiff, is likely to be of considerable importance to the case, in particular in terms of how it is that the officers identified the plaintiff as someone who should be so consistently stopped on transit through customs. Knowledge of the code used and the meaning attributed to it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. The plaintiff submitted, and I agree, that as the code on each IPC appeared to determine the manner in which the plaintiff was to be dealt with (at least initially), an understanding of the meaning of that code combined with the circumstances in which it was written is directly relevant to the plaintiff’s pleaded case. In particular, why the plaintiff was selected for certain treatment at that time; whether and if so how the code and specific treatment on one date differed from another, and why there were variations between the different incidents described in the plaintiff’s claim, and the conduct of personnel in relation to these matters, is required to enable a critical understanding of the process involved, whether it was complied with and whether particular interactions were within the officers’ lawful authority.
(b) An understanding of the training provided to ABF officers, its adequacy, its compliance or otherwise with the legislative framework, and how they were trained to behave in the circumstances pleaded is relevant to the plaintiff’s claim. Knowing whether officers are conducting themselves in conformity with their training is relevant to the Commonwealth’s liability for the alleged intentional torts and may be relevant to the claim for aggravated and exemplary damages.
(c) There has been a substantial disclosure about the methodology and practices employed in processing persons arriving in Australia in a recent Commonwealth Ombudsman’s report.[34] Further, much of the conduct occurs in areas of the airport accessed by members of the public, albeit at the direction of ABF officers. It is evident from the CCTV footage that members of the public are present and able to observe events in which the plaintiff participated.
(d) The information identifying individual ABF officers is relevant to the plaintiff’s case, and I accept the plaintiff’s contention that he ought to know the individual officers who undertook certain tasks, particularly where they spoke to him, detained him, conducted or authorised an external (strip) search on him, made notebook entries about him, and so forth. It is inevitable that (at least some) of these officers will be called to give evidence to explain alleged conduct, because the Commonwealth either wishes to assert a fact or to avoid a Jones v Dunkel inference. Their knowledge of the plaintiff before and after contact, conduct during interaction with the plaintiff, belief about the bases for their actions, understanding and compliance with training, guidelines and protocols as well as legislation, are all matters that can be directly relevant to the plaintiff’s case. Their identity may also be relevant to targeted additional discovery requests or subpoenas.
[34]Commonwealth Ombudsman, Australian Customs and Border Protection Service Administration of Coercive Powers in Passenger Processing, Report No 15 (2010), accessible at < (‘Ombudsman’s Report’).
I am persuaded that particular information, or complete documents in each of the categories of documents identified above at [17] will be necessary evidence for the plaintiff that should be freely available to him. The plaintiff has a legitimate forensic interest in seeking disclosure of these documents in an unredacted form and the documents or parts of them are likely to be used by him in evidence at trial. It is in the public interest in the administration of justice that such documents in unredacted form be freely available to the plaintiff for use in the litigation.
However, there appears to be an exception. Parts of documents have been redacted to preserve the confidentiality of irrelevant material. In such cases, the redaction may not actually be based on a claim to immunity but on a claim that the information is irrelevant or confidential. The basis for each redaction was not made clear by Mr Beasant in his affidavits or on the redacted copies, although it is apparent that some documents have redactions of entries in respect of irrelevant incidents. The plaintiff does not challenge redaction of irrelevant material that may also be confidential. I should not be taken to be approving of Mr Beasant’s failure to distinguish between redaction to preserve the confidentiality of irrelevant material and redactions to claim immunity. That distinction should have been made clear, either in the affidavits of documents or on the face of the redacted documents.
In obvious cases, I will rule in favour of maintaining the redactions made only on the grounds of relevance. Otherwise, this is a matter that can be the subject of consultation between the parties. I will provide a couple of examples. First, the footage from CCTV masks the faces of other passengers transiting through the screening process. Their identity is irrelevant and the use of such masking appears to be justified. The plaintiff did not suggest otherwise. A second example is document 46 in Part 2 of Schedule 1 of the July 2015 affidavit of documents. The schedule describes the redactions as ‘partial redactions of names of ABF officers and incidents not relevant to the litigation’. When the original document is examined, operational detail has also been redacted although the basis for that redaction, presumably relevance, has not been sworn to by Mr Beasant. A section of the document, which is the duty manager’s shift report for Melbourne airport on 25 July 2012, provides information about staff attendance, numbers rostered, absent and so forth. Such material may well be irrelevant, but is not indicated as such. Another section of the form reports in one column - ‘A/C Off Sched. Peaks Problems Information Incidents, Suggestions Messages Operations’ and in the other column – ‘Follow up action required’. On this particular form an incident involving the plaintiff is reported with redactions that appear to be of identifying acronyms for ABF officers. The remaining entries appear to refer to irrelevant incidents, non-disclosure of which could not prejudice a public interest in the proper administration of justice. It is not clear why the parties could not have agreed on a protocol for review of the redactions on this document and instead required that it be reviewed by the court.
The second threshold - State’s confidentiality interest
The second threshold issue that must be determined before embarking on the balancing exercise is consideration of whether there is a public interest in preserving secrecy or confidentiality in relation to information or a document, and if so, the sufficiency of that interest, such that it is capable of grounding a claim of public interest immunity. If there is no relevant public interest identified, the second threshold is not met and the claim for immunity plainly fails.
The plaintiff submitted that the bases for the claims of a public interest in preserving secrecy or confidentiality in this case were too broad and vague, and that if the standard asserted by the Commonwealth in its affidavits were to be applied it would protect the Australian Border Force from virtually any meaningful examination of its processes and actions. I do not accept this submission. At times, the Commonwealth adopted convenient summary statements that are not helpful in the sense to which the plaintiff alludes. However, particularly in the redacted parts of the affidavits relied on, the Commonwealth has provided specific detail about the public interest in secrecy or confidentiality of its processes and actions. I have reviewed the claims specifically as contents claims in relation to each document in a manner that avoids reliance on broad and vague descriptions of the relevant public interests.
The Commonwealth submitted, referring to s 130(4)(a), (c), (d) and (f) of the Evidence Act that, having regard to the nature of the documents and information the subject of its public interest immunity claims, the disclosure of the documents, for which immunity is claimed, would prejudice one or more of:
(a) The security of Australia, including but not limited to Australia’s biosecurity;
(b) The prevention, investigation or prosecution of an offence;
(c) The prevention or investigation of other contraventions of the law; and
(d) The proper functioning of the government of the Commonwealth.
The ABF is responsible, in partnership with a range of intelligence, law enforcement and other agencies, for the protection of Australia’s border. The ABF’s statutory responsibilities include, among other things, ensuring the lawful passage of people and goods into and out of Australia, and investigations and enforcement relating to illicit goods and immigration. In acting as the effective ‘gatekeepers’ of the Australian border, ABF officers operate pursuant to powers conferred by a number of legislative instruments that provide them with investigative and enforcement powers, including powers to question persons and to search them, their baggage and goods.[35] In particular, when exercising power under the Customs Act, ABF officers have powers to ask questions of a person at the border to determine whether or not the person has dutiable, excisable or prohibited goods and to search the person and their belongings. Prohibited goods include illegal firearms and illicit drugs. The Act confers other powers on officers to question, search and detain persons. Those powers include a power of arrest without warrant in defined circumstances and the power to detain and search persons for the purposes of law enforcement, including the detection of suspected criminal offences, and the prevention of threats to national security and the security of foreign countries.
[35]Legislation conferring powers on ABF officers includes the Customs Act 1901 (Cth), the Migration Act 1958 (Cth), the Anti Money Laundering and Counter Terrorism Financing Act 2006 (Cth), and the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Other examples include the Aviation Transport Security Act 2004 (Cth), the Environment Protection (Sea Dumping) Act1981 (Cth), the Fisheries Management Act 1991 (Cth), the Hazardous Waste (Regulation of Exports and Imports) Act1989 (Cth), the Maritime Powers Act2013 (Cth), the Navigation Act 2012 (Cth), the Quarantine Act1908 (Cth), and the Weapons of Mass Destruction (Prevention of Proliferation) Act1995 (Cth).
The Commonwealth submitted, and I agree, that the relevant powers and functions of ABF officers are closely concerned with matters of state, such as the security and biosecurity of Australia, and the prevention, detection and investigation of offences and other contraventions of the law. In particular, the Commonwealth submitted, on the basis of the affidavits of Mr Beasant and Mr Winchester, that the confidentiality of applicable law enforcement methodology is vital to ensure the effective exercise of those powers and the proper discharge of those functions. If information about that methodology were to be publically known, the effective exercise of those powers and the proper discharge of those functions would be compromised and prejudiced. The Commonwealth submitted that there is therefore a very strong public interest in preserving the confidentiality of that information.[36] ABF officers operate in an environment in which there is a high risk of illegal activity, such as importation of illegal drugs, unauthorised entry of people into Australia, importation of threats to biosecurity, and entry of persons who pose a threat to Australia’s security. The consequences of evasion of ABF policing processes could be extremely serious for Australia’s interests. In abstract, the submission is unexceptional, but in a contents claim much depends on the surrounding context and circumstances and the strength of the interest in preserving confidentiality is in fact variable.
[36]Citing, as an example, Yufeng Mao v Commonwealth of Australia [2012] NSWSC 370 [15]-[20].
The affidavits of Mr Beasant and Mr Winchester attest to the potential effect of disclosure of various of the documents and redacted information that would be otherwise discoverable, including among other things, operational activities undertaken by ABF officers. In broad terms, this evidence is that disclosure of the documents and redacted information would enable those who sought to defeat the objectives of border security to gain an understanding of the secret and confidential methods and systems used by ABF officers, including but not limited to risk profile assessments of incoming passengers. An understanding of those methods and systems would permit persons entering Australia to alter their conduct in order to avoid proper scrutiny or investigation by ABF officers; and avoidance of such scrutiny or investigation could compromise the ability of ABF officers to prevent entry into Australia of, for instance, prohibited goods.
Mr Beasant also stated that, provided its disclosure does not reveal, among other things, the identity of ABF officials and baggage search processes, the Commonwealth does not object to limited disclosure of discovered CCTV footage.[37] He suggested that disclosure of personal information identifying ABF officers will affect security.
[37]Paragraphs 38 to 44 of Mr Beasant’s 6 January 2016 affidavit.
The Commonwealth submitted that the evidence of deponents such as Mr Beasant and Mr Winchester should ordinarily be given considerable weight.[38] This submission requires careful treatment. Neither Mr Beasant nor Mr Winchester appear to be senior departmental officers of the kind referred to in the cases. As noted above, the deponents have not described the detail of their experience, or set out facts or the process undertaken to establish the opinions expressed, which might permit a court to defer to their knowledge of, and opinions about, the relevant public interest. It can be accepted that the court might defer to the opinion of the responsible senior administrator who speaks with sufficient knowledge of the facts going to the risk and who has read and properly analysed each of the documents on a topic about which a judge may have little or no knowledge or experience. That is the context in which considerable weight has been afforded to such opinions.
[38]Sankey v Whitlam (1978) 142 CLR 1, 45-46; Alister v R (1983) 154 CLR 404, 435; Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2) [2001] VSC 249 [7]; De Bruyn v Minister for Justice and Customs [2006] FCA 232 [35]. See also Young v Quin (1984) 4 FCR 483, 484-486, 488-489.
The relevant statements in the affidavits combine generic statements of high level policy, some factual observations about the ABF workforce, and the opinions of the deponent about the ‘concerns’ and the ‘actions’ of government.
The authorities that have considered public interest immunity in the context of protection of police methods or procedures, the identity of informers, and police internal guidelines were recently reviewed by Tate JA in Ryan v State of Victoria.[39] In that case, the plaintiff appealed a ruling of a County Court judge made in civil proceedings against the State and a police officer for intentional torts. The primary judge excluded evidence of police strategies and methodologies on two grounds: that the evidence was not relevant, and that the evidence attracted public interest immunity. The plaintiff was seeking damages for injuries he allegedly sustained by reason of a police officer’s control of her horse, when he was participating in a demonstration outside the Maribyrnong Immigration Detention Centre.
[39][2015] VSCA 353 [68]-[89].
The State claimed public interest immunity over various redacted parts of a number of discovered documents and over other discovered documents completely. The documents included the Mounted Branch’s Defence Tactics Manual 2012, Crowd Control of Movements Manual, PowerPoint slide presentations on various Mounted Branch operational tactics; and PowerPoint slide presentations summarising police tactics and strategies to be utilised during the protest at Maribyrnong on 29 May 2011.
Tate JA concluded:[40]
It follows, from the reasons I have given, that I consider that here the judge was not in error in concluding that the police are engaged in an important governmental function. I consider that she was correct in identifying para (f) of s 130(4) as the appropriate ‘matter of state’ and I agree that the documents in dispute bear a relevant relationship to that matter of state in that adducing those documents in evidence would prejudice the proper functioning of the government of the State. This is so because the release of the documents may inhibit or frustrate effective policing to the general detriment of the public and the public interest associated with the maintenance of social peace and order in the specific context of public gatherings, including gatherings for lawful protest.
[40]Ibid.
I accept that ABF officers are engaged in an important government function which is broadly (perhaps too broadly), described as protecting the integrity of Australia’s border. I have already set out the breadth and nature of the functions with which the ABF is empowered for a variety of purposes that relate to maintenance of border controls. To the extent that the release of documents may inhibit or frustrate the effective discharge of the functions entrusted to the ABF, the public interest associated with the protection of Australia’s border would be prejudiced. However for the balancing exercise it remains necessary to determine the extent of inhibition or frustration of the public interest that may result from the contemplated disclosure. This exercise is best undertaken by reference to the specific classes of the documents identified by the Commonwealth, as set out below.
I accept as a general proposition that border security is a particular area over which national security concerns may clearly be enlivened. I also accept that the concept of national security to which s 130(4)(a) refers is not limited to protection of citizens from physical threat, as may be the case with terrorism, the movement of criminals or aliens, or broadly the defence of the country’s integrity as regards its citizens and territory. The concept of national security clearly includes biosecurity and quarantine.
However, I cannot accept a blanket approach with regard to applying the security concerns raised by the Commonwealth to all of the material over which immunity is asserted. Public interest immunity will not be lightly conferred and it should not be lightly claimed.[41] The use of phrases such as ‘high risk’ and ‘extremely sensitive’ do little to assist the Court in determining where the balance must lie in the disclosure argument, particularly with regard to a ‘contents’ claim. A claim for immunity must be articulated with rigour and precision, and be supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for maintaining secrecy.[42]
[41]State of Victoria v Brazel 19 VR 553, 574-575, [68] (Maxwell P, Buchanan and Vincent JJA).
[42]19 VR 553, 574-575, [68].
The grounds articulated in respect of some of the information to be protected were simply too broad to support a claim of public interest immunity. For example, the fact that ABF officers are involved in conducting ‘risk assessments’ of passengers as they pass through an airport terminal cannot be subject of an immunity claim. This is obvious to anyone who has passed through border control and an ABF officer’s role in that process is neither secret nor confidential. Despite all attempts made to redact this information, the plaintiff in submissions frequently referred to and accepted ‘risk assessments’ as a known fact. In any case, as I outline further below, the Commonwealth’s redactions of its affidavits was inconsistent and this fact had been revealed. To try and claim immunity over that information now is futile.
The plaintiff asserted that vague and general statements about insight into the way that ABF officers perform their duties is unsatisfactory to ground a claim in public interest immunity. I agree with the submission that reference to general statements such as ‘security classification’ and ‘appropriate level of security clearance’ are too vague and say nothing about the basis for the immunity sought. The plaintiff submitted that the Commonwealth’s reasoning on this point contained a circular logic: ostensibly that because the information was not known to the public it should not be made public.
Some categorisation of the documents assists in the following analysis. One category is documents that form part of the structured and confidential system of processing incoming passengers in order to achieve statutory objectives and it includes the IPCs, and other documents and reports including BAGS reports, duty manager shift reports, and passenger movement records. A second category is the CCTV footage of operations in the arrival hall at airports. A third category is personal incident records such as notes made by individual ABF officers and internal correspondence (emails and minutes) about incidents concerning the plaintiff and his complaints to the ABF about such incidents. The fourth category is training materials, operational manuals and guideline documents.
With respect to the first category, I accept that there is a real public interest and a prospect of detriment to the public interest that may be avoided by maintaining confidentiality in such documents and information. Disclosure may detrimentally affect the security, including biosecurity, of Australia, prejudice the prevention of offending against laws administered or enforced at the border by the ABF, and prejudice the proper functioning of government in the sense of inhibiting or frustrating effective policing of Australia’s border. This competing public interest exists in respect of documents that form part of the structured and confidential system of processing incoming passengers in order to achieve statutory objectives, as well as training materials, operational manuals and guideline documents.
In respect of the second and third categories, the Commonwealth’s submissions were based on identity issues. In support of claims for confidentiality of the identifying information about ABF officers, Mr Beasant stated:
Privilege is claimed over the names or identification or the unique ID reference of individual ABF officers for reasons of safety, confidentiality, security and personal security given the work undertaken by ABF officers.
These reasons do not appear to be focused on the consideration of matters of state that are relevant in conferring the immunity, other than a reference to ‘security’ that was not developed. Mr Beasant explained that ABF officers work in controlled areas at airports and that their personal safety and security is an issue of concern to the Commonwealth. Officers are discouraged from identifying the nature of their employment outside of controlled areas for their personal safety. In addition, it is said that identification of persons as ABF officers could prospectively expose them to recruitment for involvement in illegal behaviour. For example, public dissemination of the unique identification ID assigned to an ABF officer could potentially enable infiltration of the ABF by a crime syndicate.
For these reasons, the Commonwealth has redacted the names and other identification information from documents including BAGS records, emails, duty manager shift reports, and AFB officer notebooks to avoid identification of individual officers.
I do not consider these justifications to be relevant to my inquiry, without meaning to suggest that they are not important considerations for the Commonwealth in other contexts. Each argument might be thought to equally apply to police, both State and Federal. Leaving aside the well understood exception in respect of undercover work, no authority was cited, and I know of none, that protects from disclosure the identity of persons openly exercising the coercive policing powers of the State.[43] There are important public policy considerations, of a different kind to those involved in the balancing exercise that I must undertake, called into play when it is suggested that the identity of persons exercising statutory powers to detain, search and question in a public place such as an airport arrivals hall should be kept secret. The common law has never regarded disclosure of the identity of police officers, both name and number, as inimical to effective policing, maintenance of community security or discouragement of corrupt behaviour. The fact that the personal safety and security of an employee is of concern to Mr Beasant is no more than proper recognition of the non-delegable duty of care owed by an employer to an employee and is not to be confused with matters of State. In my view, the prospect of corrupt behaviour by an ABF officer is remote from any disclosure that might occur for the purposes of the trial of this proceeding and is not a risk to be ameliorated by asserting that the identity of ABF officers must be protected in the interests of the proper functioning of government.
[43]No relevant specific statutory exceptions were suggested.
I am satisfied that immunity from disclosure of any document or redaction of any part of any document on the ground that the identity of an ABF officer who dealt in some way with an issue or particular incident raised by the plaintiff’s case is not warranted under s 130 of the Evidence Act. Were it to transpire that this conclusion cannot be sustained, I nonetheless consider for the reasons to be later set out that, to the extent that such a public interest can be identified, taken at its highest, it is outweighed by the public interest in the proper administration of justice.
The balancing exercise
As a preliminary point, the plaintiff was somewhat hamstrung on his application when challenging the immunity claim by a lack of information. An explanation of why particular information is sensitive and must be protected often necessarily involved some revelation of the content of that information itself. The affidavits in support of the Commonwealth’s claim were heavily, and in many cases quite unnecessarily, redacted. Although the basis for or principles used to determine redaction have not always been explained or are not apparent, which is unsatisfactory for the plaintiff and in that sense, for the court, I have had the benefit of reviewing unredacted affidavits and the opportunity to inspect the documents in unredacted form. It is my review of this material that has informed the analysis below.
The incoming passenger cards
The basis for redaction is stated in the July 2015 discovery affidavit as ‘privilege … claimed over the passenger cards as they are part of a structured confidential system for processing passengers’. There are two issues to be considered. The first issue is whether the plaintiff is entitled to inspect the IPCs in unredacted form. The second issue is whether the plaintiff is entitled to understand the code that lies behind the redacted markings.
As a preliminary point, I note that the fact that these markings are ascribed some meaning by the ABF officers who make them, and refer to them, divulges nothing that meets the threshold to engage public interest immunity. Mr Beasant’s affidavits were redacted in a manner that tried to (inconsistently) assert such immunity. Any claim for immunity over the fact that the markings made on these cards constituted a coding system, or that such coding takes place cannot be subject to the immunity. In numerous places in the Commonwealth’s affidavits in support of this application such information had been marked for redaction (e.g. the redaction of the words ‘code’, ‘coding’, ‘unique marking’ etc.). Aside from the fact that the system in place operated as a coding system where particular markings were ascribed particular meanings, the plaintiff’s submissions referred to this expressly, for that is obviously what it is.
The passenger cards are clearly part of a structured system for processing incoming passengers. The notion of confidentiality in the circumstances of their use requires analysis. It is well established that confidentiality alone, being the fact that the information is not presently in the public domain, will not be sufficient ground for objecting to the inspection of relevant documents, but I do not consider that the IPCs can properly be characterised as confidential. That the ABF has a methodology to assess risk in relation to their border security objectives is trite. That methodology includes the completion by an incoming passenger of an arrival card. Neither the IPC nor the information that is added to it by the incoming passenger or an ABF officer is confidential.
I accept that the ABF officer’s coded marking on the IPC made during the process of screening of incoming passengers reflects an assessment of risk, but that is not the only purpose of the marking system. The fact that ABF officers make markings on the IPC as a passenger transits through the arrivals hall is readily apparent to any incoming passenger. Such markings can be observed by any passenger because the passenger retains possession of the IPC until the latter stages of processing. The card itself in its unredacted form cannot be the subject of an immunity claim and I direct that the Commonwealth produce each of the discovered IPCs unredacted for inspection.
The second issue is whether the Commonwealth is entitled to immunity in respect of information that explains the operation of the coding system. I consider that it is only necessary to undertake the balancing exercise with regard to that information that would reveal the meaning of the specific markings made on the plaintiff’s IPCs. There is no sufficient public interest in aid of the administration of justice in revealing the complete details of the coding system.
Mr Beasant asserts that insight into the methodology behind the coding system used by ABF officers to assess risk when processing IPCs would compromise operational security. Accepting this possibility, I reject the Commonwealth’s submission that prejudice to the State’s confidentiality interest from disclosure of the meaning of the particular codes that have been used on IPCs completed by the plaintiff will outweigh the public interest in permitting such information into evidence. The claim for immunity from inspection over the redacted information contained on the IPCs in item 1 cannot be maintained. The plaintiff submitted that the codes applied to his IPCs are relevant and probative information to his case, in order for him to know what the system in place is, how it operates and whether it was complied with in respect of the incidents pleaded. Evidence regarding what exactly each marking made on the various IPCs that will be in evidence was intended to indicate, and the consequences that necessarily flowed from that meaning with regard to the plaintiff, will be relevant and probative to the plaintiff’s claims. I note that such markings have been referred to and explained in evidence in other cases involving the prosecution of persons bringing illegal goods into the country.[44]
[44]An example is The Queen v Vrabcenjak [2008] VSCA 143, [57].
I am satisfied that this information meets the threshold of relevance to the plaintiff’s case.[45] The reasons for selecting the plaintiff for questioning, and for sending him for further questioning and/or baggage examination, are pertinent to ascertaining whether the ABF officers acted within the statutory constraints on the exercise of their powers and whether in the circumstances any failure to do so constituted false imprisonment and/or trespass to goods as alleged by the plaintiff.
[45]See paragraph [53](a) above.
Mr Beasant’s affidavits of 10 December 2014, 6 January 2016 and 17 March 2016, and Mr Winchester’s affidavit of 20 January 2016 all address, at some length, the manner in which it is said that exposure of the meaning of the markings or symbols made on the card may impact on Australia’s national security, such as to found a claim of public interest immunity. Following the hearing Mr Beasant swore a further affidavit of 13 April 2016 in which he set out in even greater detail the manner in which the various markings on the plaintiff’s IPCs were to be interpreted, and provided further information regarding the manner in which coding is used by ABF officers in the arrivals hall. In this affidavit, Mr Beasant also explained the purposes and overall operation of the coding system. This affidavit was served heavily redacted.
As set out above, I am persuaded that the forensic interests of the plaintiff in this information are legitimate and the claim of the Commonwealth to secrecy or confidentiality in respect of identification information if not non-existent, is weak. As such, the public interest in preserving secrecy in identification information is incapable of outweighing the public interest in the due administration of justice.
Accordingly, the claim to public interest immunity in respect of the redactions to documents 12–26 is refused. Apart from addresses and telephone numbers, the claim to public interest immunity in respect of the redactions to documents 27–43 is also refused. I have referred above to the duty manager shift reports, in which some of the redacted material appears likely to be irrelevant. That can be the subject of negotiation between the parties. Subject to the question of relevance, the claim to public interest immunity in respect of the redactions to documents 44–47 is similarly refused. The claim to redact the identities of ABF officers from notes and minutes in documents 48–51 is also refused.
Some documents over which immunity is claimed only ‘over the names or identification or the unique ID reference of individual officers’ appear to contain redactions of material going beyond that purpose. For example, documents numbered, 51, 51.2 and 51.4–51.6 have been redacted beyond the basis claimed in the affidavit of documents. Mr Beasant has provided some further explanation for these redactions. Document 51 is a ‘Minute, Director, Airport Operations Sydney concerning correspondence from the Plaintiff regarding an incident at Sydney International Airport on 21 June 2012’. Mr Beasant explained that in addition to redacting the names of individual ABF officers, the Commonwealth has redacted the reason that Mr Holloway was selected for baggage examination. It is said that travellers are not aware of how a decision is made for the relevant examination to occur. The basis asserted for this additional claim for immunity is stated as follows:
The selection category and selection type has been redacted for operational reasons. In addition to identifying whether an ABF Officer has identified a person to proceed to the Secondary Examination Area or by reason of the way a traveller has completed the IPC they are directed to the Secondary Examination Area, the [redacted] record might indicate that a traveller was selected for a search because they were on [redacted]. That information is not in the public domain.
I do not accept that the need for secrecy to protect legitimate State interests, as defined by the Evidence Act and the common law, outweighs, in the circumstances of this litigation, the public interest in the due administration of justice. As I have stated, the reason that Mr Holloway was selected for baggage examination is a central issue in dispute, while for reasons already discussed the prospect of prejudice to effective policing of Australia’s borders is overstated.
The claim to redact documents 51–51.6 in the manner sought by the Commonwealth is also refused.
CCTV footage
Mr Beasant’s evidence is that, provided that its disclosure does not reveal, among other things, the identity of individual ABF officers and baggage search processes, the Commonwealth does not object to limited disclosure of discovered CCTV footage. I have reviewed the CCTV footage in question and have noted that it is mostly drawn from CCTV surveillance of public areas of the arrivals hall and the secondary examination area, also a public place.
For the reasons that I have already given the Commonwealth cannot maintain immunity in respect of the identity of individual ABF officers. The faces of other passengers have been (inconsistently) disguised in the discovered footage and I do not understand the plaintiff to be objecting to that redaction from the videos.
With regard to the ‘baggage search processes’ which may be identified on the CCTV footage I consider that this category of immunity claimed is too broad to ground a proper claim for public interest immunity. The categories of information which is sought to be protected must be identified with precision. This has not occurred here. The Commonwealth cannot seek refuge behind amorphous statements about confidentiality and operational reasons. The processes of baggage searches occurring in a public space are not confidential when viewed on a recording of events. What is shown in the CCTV footage is no different to what any incoming passenger may observe if subject to baggage examination.
There was also CCTV footage of an interview of the plaintiff by ABF officers on 16 April 2015 in a private interview room at Sydney Airport after having his luggage searched in the public area. ABF officers also conducted an external strip search of the plaintiff on that occasion. While this footage was taken in a private environment removed from the public areas of the airport, I do not consider that this distinction leads to a different result. The tape is the record of a formal interview, similar to video of police interviews that are routinely played in open court with officers identified.
I will order that the CCTV footage discovered be produced to the plaintiff for inspection.
Other documents (Passenger movement records, Protected information report)
The final category to be considered are other miscellaneous documents, constituting passenger movement records, and protected information report, which are partially redacted. Immunity is asserted over ‘information that is not in the public domain and which might impact the work undertaken by Border Protection Officers in their operational activities’.[55]
[55]Mr Beasant’s affidavits of documents of 20 July and 4 December 2015.
55AAs the court was about to publish its reasons, the defendant applied for a short stay of a couple of hours to consider whether any matter revealed in the reasons had the capacity to detrimentally affect the claim to public interest immunity and thus the fruit of any appeal against this ruling should it be advised to prosecute an appeal. That opportunity was granted. The defendant then submitted that some of the matters stated in paragraphs [126] and [127] have that capacity. Without ruling on whether that submission has merit, I confined the proposed redactions to what presently appears redacted in paragraphs [126] and [127]. These reasons are presently published with redactions solely to provide interim protection of the defendant’s position pending any appeal and on the basis that in doing so, the transparency of the court’s reasoning is not compromised. The redacted information is not subject to public interest immunity. If the time permitted for an appeal expires without any appeal being filed, this judgment will be revised to remove the redactions. If an appeal is filed, once the issues on the appeal have been identified, the plaintiff has liberty to apply, if so advised, to reinstate the redacted material.
Regarding the passenger movement records, Mr Beasant stated, disallowing senseless redactions to his affidavit:55A
[A] redaction is sought over [a column heading] … This information is not in the public domain. The alert system is highly sensitive to the Commonwealth. DIBP does not want travellers to know about the existence of the alert system nor the database which generates a passenger alert nor that a person may or may not be ‘on alert’ at a point in time.
I am not persuaded by this explanation. I am satisfied that this document is relevant and probative to the plaintiff’s pleaded claims and to the extent that Mr Beasant has identified a public interest in maintaining secrecy or confidentiality in respect of that column heading, it does not outweigh the public interest in the proper administration of justice. There is an additional redaction that does not appear to be explained. This document identifies 123 occasions on which the plaintiff was registered on the passenger alert system, between 27 September 2010 and 10 June 2014. The Commonwealth seeks to redact the entries between 27 September 2010 and 24 May 2011. I could infer that the reason for this redaction is that the incidents of detention alleged by the plaintiff commence on 8 June 2011, but the Commonwealth in its defence alleges three occasions of baggage examination prior to 27 September 2010. Whatever be the explanation for this redaction, I am not persuaded that it can be justified on the basis of the immunity and it is refused. Document 56 should be produced unredacted.
Document 56.1 is partially redacted on the basis that it contains information that is not in the public domain and which might impact the work undertaken in operational activities. There is no further, or other, explanation for the redactions. I will permit the redaction of the URL for the document appearing at the foot of each page but otherwise, I reject the claim for immunity in respect of the remaining redactions in this document.
Redaction of the Commonwealth’s affidavits
As I have set out above, as part of the documents under consideration on this application were three partially redacted affidavits of Mr Beasant and a partially redacted affidavit of Mr Winchester. Although I did invite the Commonwealth to submit a further affidavit, Mr Beasant’s affidavit sworn 13 April 2016 went beyond what was contemplated by that invitation. The parties were invited to make any further written submission in respect of my request to examine every document the subject of the immunity claim and the plaintiff was invited to respond to the late affidavit following my indication that I would consider it. Because it was heavily redacted the plaintiff was not able to make a meaningful submission.
I had a number of concerns regarding some of the redacted content of the Commonwealth’s affidavits. Without constituting an exhaustive list, examples of such concerns include:
(a) Some of the material which has been redacted appears to already be in the public domain. For example, exhibit IDB-2 of the affidavit of Mr Beasant sworn 17 March 2016 consists of five job and position descriptions, that are listed in paragraph 6 of the affidavit itself, over which immunity is claimed in their entirety. The first two documents over which immunity is claimed (the position description – ABF recruit and the job description of a Counter Terrorism Unit Officer) are freely available online in their entirety. A truncated version of the third document, the job description of a Team Leader Airport Operations is also freely available. While at the time of writing copies of the documents referred to in paragraphs 6(d) and (e), being the position descriptions of Senior Counter Terrorism Officer and Supervisor Counter Terrorism Unit Officer, were not available online, equivalent job descriptions were freely available online via a search of Commonwealth job vacancies at and are also published in the government gazette from time to time. Based on the fact that the information contained in these documents either is, or has been, freely available online the claim for immunity over these parts of the affidavit of Mr Beasant cannot be maintained.
(b) The maintenance of the immunity claims over particular terms and concepts has not occurred consistently across the affidavits sworn on behalf of the Commonwealth. Particular words are marked for redaction in one affidavit, with the equivalent text left visible to the plaintiff in another. At times these inconsistencies are apparent within the same affidavit itself.[56]
[56]For example, the concept of ABF officers conducting ‘risk assessments’ as part of their assessment/response to passengers is marked for redaction in multiple places of several affidavits, but left legible in paragraph 9 of Mr Beasant’s March 2016 affidavit, then redacted at paragraphs 18 and 19 of the same, and is left visible in paragraph 3 of Mr Winchester’s affidavit, and so on. See also, by way of example, paragraph 11 of Mr Beasant’s December 2014 affidavit where immunity is claimed over text which is essentially the same as one of the categories of information set out in the discovery affidavits (‘The unique markings which an ACBPS Officer makes on an IPC is part of a structured confidential system and process’/’Privilege is claimed over the passenger cards as they are part of a structured confidential system for processing passengers’). Mr Beasant’s April 2016 affidavit is also replete with such inconsistencies in redacted material. For example, on page 2 the following is left unredacted: ‘The system has changed … As a result of the incident [where the IPC system was circumvented], another layer of security for the IPC system was then implemented’. The following generic statement is then redacted: ‘As soon as there was a vulnerability known, the system was changed’.
(c) Some of the information claimed as subject to immunity was capable of being logically derived from the open content of affidavits and basic reasoning. In such circumstances redacting that material is futile.[57] For example, the fact that the markings made by an ABF officer on an IPC have a meaning ascribed to them, and were marked for that purpose, is self-evident. The actual meaning of the markings is a separate issue as considered earlier. The description of this system as ‘unique’ similarly does not qualify it as subject to the immunity. On the assumption that the system used by ABF officers is not completely ‘generic’, it is unclear what this redaction was intended to protect. Similarly, the fact that ABF officers conduct ‘risk assessments’ of passengers as they pass through customs is clear to any person who has done just that. I have accepted that the actual methodology of such risk assessments, linking particular assessments to consequences, can fall into a different category.
[57]For example, Mr Beasant’s December 2014 affidavit where at paragraph 9 the heading is ‘Coding of the IPC’, followed by the statement in paragraph 10 that ‘the primary line ACBPS Officer will physically mark the IPC as a result of the individual risk assessment that has been performed …’. The following text is then redacted: ‘The unique markings which an ACBPS Officer makes on an IPC is part of a structured confidential system and process’. As I have stated, the fact that a code with some meaning is used is a logical consequence of the fact that ABF officers mark the document in some way. Markings should be presumed to have some meaning, otherwise the result would be absurd. See also, for example, in paragraph 42 of Mr Beasant’s 6 January 2016 affidavit, in which the concept of ‘surveillance’ is redacted – but the content of that paragraph makes abundantly clear that what is being referred to is passengers being watched/recorded/filmed in some way.
(d) A similar example is the system for flagging particular persons, upon arrival at the border, for additional scrutiny. The plaintiff submitted in this regard:
The existence of and content of a system for flagging certain people, to the extent that it relates to the Plaintiff, is of considerable importance to the case. It is readily apparent that such a system exists. It is referred to as a ‘watchlist’ in the Ombudsman’s Report [at 3.46].
In proceeding in the circumstances of an immunity claim on the basis of these redacted affidavits, I should not be taken as approving of the deponent’s failure to identify the principles that determined the redactions applied. Save for exceptional circumstances the reasons for redaction should be clearly stated to demonstrate that redaction was justified and appropriate. The process of identifying proper from improper redactions in order to direct service on the plaintiff of material that ought to have been disclosed is a waste of judicial resources and unnecessary in the circumstances.
Cross examination of the Commonwealth’s witnesses
The plaintiff sought to cross-examine Mr Beasant and Mr Winchester on their affidavits. The Commonwealth submitted that the Court should not permit such cross-examination.
The Commonwealth submitted that Sheppard J’s views stated in Young v Quin,[58] were applicable:
… I am firmly of the view, applying the practice which exists in relation to claims for immunity from production of documents, that only in exceptional circumstances should cross-examination be allowed. That is principally because it will be impossible for any cross-examination to take place without the matters in respect of which the claim is made becoming the subject of it and this being revealed. The fact that such a cross-examination could be conducted in camera provides no satisfactory solution to the problem.
In that case, the court held that such cross-examination would not be in the public interest, in part because answers might reveal police methods of operation, thereby prejudicing future police activities.[59]
[58](1984) 4 FCR 483, 484-486; see also Hilton v Wells (1985) 59 ALR 281, 288.
[59](1984) 4 FCR 483, 495.
In Woodroffe v National Crime Authority[60] the full Federal Court (Drummond, Sundberg and Marshall JJ) stated:
The learned primary judge recognised correctly that there was a discretion to permit cross-examination of a deponent in support of a claim to public interest immunity, observed that “those circumstances will be rare” in which cross-examination will be appropriate and said it will be a matter for the court in each instance to address the particular circumstances to see if cross-examination should be permitted.
[60](1999) 168 ALR 585, 589.
The Commonwealth submitted that the plaintiff had not identified a proper basis for the court to adopt the unusual course of permitting cross-examination in this instance. This is not one of the ‘rare’ cases in which cross-examination is warranted. In any case, and as Hunt CJ (with whom Smart and Studdert JJ agreed) said in Attorney-General (NSW) v Stuart:[61]
There is, of course, no right to cross-examine such a deponent upon his affidavit, and leave to permit such a cross-examination is granted only very rarely; more usually, the party claiming immunity will be requested by the judge instead to produce further evidence which overcomes any defect in the claim which may be apparent on the face of evidence already produced.
The Commonwealth submitted that, to the extent of any defect in the existing evidence about a particular issue, it could be remedied by the provision of further evidence on that issue.
[61](1994) 34 NSWLR 667, 681.
The plaintiff, while acknowledging that it is relatively unusual for a court to grant leave for a party to cross examine a deponent of an affidavit with respect to public interest immunity claims, submitted that leave should be granted, particularly in circumstances where, as here, the court should feel concerns about the reliability of the affidavit material, and the reliability of the immunity claim overall.
In particular, the plaintiff, if granted leave to do so, intended to cross-examine on the following issues, which he contended did not fall within the scope of ‘police methods of operation and the identity of police sources of information.’[62]
[62]Citing Young v Quin (1985) 4 FCR 483, 495.
(a) Assertions as to the basis for protection of the identity of ABF Officers at [24] to [37] of Mr Beasant’s January 2016 affidavit;
(b) Assertions as to the non-availability of CCTV footage at [46] to [49] of Mr Beasant’s January 2016 affidavit, and other categories of documents not produced and set out in some detail in the plaintiff’s submissions;[63]
[63]At [26], [27], [29] and [32.2].
(c) The asserted basis for suppression of the IPCs, the asserted coding system and the genuineness of concerns, arising from sources detailed in the plaintiff’s submissions,[64] and failure to produce IPCs;
[64]At [23].
(d) Assertions made about the bases for suppressing entire training materials and redacted parts of training materials;
(e) Failure to produce material; and
(f) Other miscellaneous redactions.
The plaintiff submitted that any concerns of the Commonwealth could be ameliorated by closing the court if necessary. Cross-examination would not be at large, but be limited to the foreshadowed topics.
In Australian Securities Commission v Zarro & Ors (No 2),[65] the trial judge allowed cross-examination of the deponent in support of the claim of immunity, stating that this ‘exceptional course’ was warranted:[66]
… because of concerns at what had emerged with respect to the way the Commission had gone about claiming immunity and because of concerns at the reliability of [the deponent’s] final claim to immunity for certain of the documents, in view of the change of ground, and in view of the contents of all three affidavits.
[65](1992) 34 FCR 427.
[66]Ibid, 431.
I accept the plaintiff’s submissions that, due to the vague and unsatisfactory nature of the affidavits in this proceeding, cross-examination may be warranted in the circumstances.
I concluded that the correct approach in the circumstances was firstly to examine the documents over which immunity was claimed; and secondly, to consider whether the affidavit evidence in support of a claim to immunity was adequate or should be supplemented. In this case, that evidence was supplemented by the further affidavit filed prior to the provision to the court of the impugned documents. Ultimately, I concluded that I would not be assisted by the cross-examination of the deponents on the topics counsel identified. Further, I do not characterise the Commonwealth’s affidavits as vague and unsatisfactory in their nature, except in respect of the excessive, and inconsistent, redaction. As I had the benefit of reading unredacted affidavits, that characteristic was not an impediment. This was not one of those rare applications in which it would have been appropriate to have permitted cross-examination of the deponents. The plaintiff’s application to cross-examine Mr Beasant and Mr Winchester is refused.
Provision of further discovery by the Commonwealth
The plaintiff also claims that the Commonwealth has failed to comply with its discovery obligations. The plaintiff’s written submissions identified, on the face of available material and information, documents and material which had been either simply not provided to him, or had been provided in an inadequate form. This material, which is sought by the plaintiff to be produced, is as follows:
(a) IPCs relating to dates of entry which have not been produced by the Commonwealth: 26 June 2013, 2 February 2014, 11 December 2014, and 1 July 2015;
(b) CCTV footage in relation to 27 of the 34 incidents pleaded to date which has not been produced. The plaintiff noted that none of the discovery affidavits sworn by Mr Beasant refer to such footage as ever having been in the Commonwealth’s possession, let alone when it parted with the footage and its belief as to what became of the footage, such further information being required to comply with the Rule;
(c) Attachments to document 11.1 produced under the July 2015 Discovery Affidavit (Attachments A–U) which have not been produced;
(d) Under ‘Related Policies and References’ at p 49 of 11.1, reference is made to ‘Baggage Examination’ and ‘Detection and Incident Reporting’, neither of which is referred to or produced;
(e) Guidelines relating to the placement of a person on a “watchlist” or related concept and any material relating to the plaintiff being placed on such a list. The Ombudsman’s Report refers explicitly to such guidelines,[67] but they are neither referred to nor produced.
[67]Ombudsman’s report, 3.46.
(f) Further notebook entries made by the relevant officers interacting with the plaintiff. The plaintiff notes that a total of six notebook entries have been discovered (three in the July 2015 tranche of discovery and three in the December 2015 tranche of discovery), while the email correspondence (e.g. documents 27–43 of the July 2015 discovery tranche) clearly indicates that notebook entries would have been made about more incidents;
(g) BAGS entries with respect to all 34 pleaded incidents (there have been a total of 14 BAGS entries produced to date – 13 under the July 2015 tranche of discovery and one under the December 2015 tranche);
(h) Documents pertaining to the ACBPS investigations/enquiries being made about the plaintiff which are referred to by the Duty Manager at Airport Operations Melbourne (document 37 of the July discovery tranche);
(i) Documents showing the re-certification of the relevant officers involved to conduct external searches (such re-certification being required every two years according to document 11, December 2015 discovery tranche, at p 6); and
(j) Documents relating to the Plaintiff being identified as a person in need of protection (PINOP), which is referred to in various discovered email exchanges and officers’ notes.
The Commonwealth responded that it was not able to produce any additional passenger cards or CCTV footage relating to incidents the subject of the plaintiff’s allegations in the proceeding as these materials are unable to be located. As it now accepts that, to the extent those materials were, but are no longer, in the Commonwealth’s possession, custody or power, they should be discovered, the Commonwealth has indicated that it will provide a further affidavit to remedy that omission. The omissions in the discovery as alleged by the Plaintiff were otherwise not specifically addressed by counsel during the course of written or oral submissions.
The plaintiff has objected to this explanation, submitting that the Commonwealth should be required to go into specific evidence, in detail, in relation to this matter, including cross-examination on matters including the chain of custody of such materials, how and where they are stored, what steps have been taken to locate them, and whether IPCs are or are not electronically stored, and so forth.
I will direct that the Commonwealth file a further affidavit complying with r 29.04 of the Rules. Any further issues can be dealt with by negotiation between the parties, or by interrogatories.
Further Particulars
On 6 March 2015, the plaintiff served a request on the Commonwealth to provide further and better particulars of its defence. There followed a chain of correspondence that is exhibited to the affidavit of Grant Walker sworn 17 December 2015. The plaintiff expressed significant concerns – both during the course of a directions hearing on 16 October 2015 and in correspondence by a letter sent to the Commonwealth’s solicitors on 13 November 2015 – about the Commonwealth’s response to its request, which was provided on 22 September 2015. The plaintiff contended that notwithstanding the significant additional time given to the Commonwealth to respond, its further and better particulars are deficient and fail to comply with the relevant provisions of the Rules. The plaintiff made a further request, on 5 February 2016, for further and better particulars of the amended defence, to which there has been no response. The plaintiff’s summons on this application only addressed the response to the plaintiff’s first request and I have confined my consideration to that request.
In his initial request, the plaintiff sought further particulars and details of, in respect of each alleged incident:
(a) The passenger card completed by him;
(b) Any direction of him to a secondary examination area;
(c) Any examination of his luggage; and
(d) Questions that were asked of him by ABF officers.
In its response, the Commonwealth objected to each and every one of the plaintiff’s requests. Their objections fell into three broad categories:
(a) The plaintiff’s request is not a proper request for particulars, but is a request for evidence; and/or
(b) The plaintiff’s request is unnecessary as such matters are properly matters of evidence; and/or
(c) The plaintiff’s request may compromise operational activity and the effectiveness of risk profile assessments that are undertaken by Department of Immigration and Border Protection officers.
The plaintiff contended that the Commonwealth’s response does not properly recognise the distinction between particulars and evidence. Particulars are designed to give more detailed information about an allegation of material fact, where such information is necessary to enable another party to understand the case to be met at trial.[68] Evidence on the other hand is material that tends to prove or disprove the existence of a fact in issue in the proceeding. The plaintiff submitted that his requests did not seek to elicit material that tends to prove or disprove the existence of a fact in issue, but rather, were asking for more detailed information about the material facts pleaded by the Commonwealth.
[68] Citing Bruce v Oldhams Press Ltd [1936] 1 KB 697, 711.
The Commonwealth’s submissions maintained that its defence adequately particularised the basis for its pleaded position, and it was entitled to refuse requests for its evidence in support of those particulars. The plaintiff responded that each of the matters put by the Commonwealth in the identified paragraphs of the amended defence were positive allegations by the Commonwealth. Where a defence makes positive allegations, those allegations must be particularised in the same way, and to the same extent, as allegations in the statement of claim.[69]
[69]Montclare v Metlife Insurance (2009) 29 VR 20.
In certain senses, each party has an arguable and possibly defensible position, but recognition of that fact does not assist the court to identify the real issues in dispute that it must resolve. The root causes of this debate and the genesis of the solution lie in the pleadings. The plaintiff’s statement of claim was likely pleaded when his instructions about the incidents was less well informed by discovery and other investigations. I expect he did not have access to the IPCs that he completed. It is likely that with the benefit of analysis of discovery, the statement of claim might be differently structured and would require a differently structured defence.
Paragraphs 6 and 7 of the statement of claim rollup multiple allegations of either a general negative assertion or of multiple general positive assertions in a manner that produces a bare denial from the Commonwealth. Mostly the allegations are conclusions rather than assertions of material facts. There are similar difficulties with the later pleading of causes of action where a template approach follows on long particulars of separate incidents pleaded in paragraph 8. This approach is evident in the pleading of unlawful exercise of authority, apparently based on an absence of reasonable belief on the part of ABF officers in each case that is said to be identifiable from the paragraph 8 allegations (a task left to the reader). The pleader has employed a similar structure with the causes of action of false imprisonment and trespass to property. All of these allegations have elicited bare denials. The parties have joined issue in respect of what occurred on each occasion that the plaintiff passed through the arrivals hall. The Commonwealth then in paragraphs 30–35 rolls up multiple allegations of either a general negative assertion or of multiple general positive assertions.
Although the parties have sought to clarify or perhaps narrow the real issues in dispute by particulars, I do not anticipate that such an approach is likely to achieve its purpose in a cost effective way that will assist the parties and the court at trial.
I consider that the just, efficient, timely and cost efficient resolution of the real issues in dispute will more effectively be achieved if the plaintiff reconsiders the structure of his statement of claim. That is not to say that I consider that the Commonwealth’s objections to providing further particulars are well founded. I do not say that. Rather, it is to give both parties the opportunity to refine the identification of the issues in the light of discovery. A re-pleaded statement of claim will also permit the Commonwealth to more precisely respond to the plaintiff’s allegations. I consider that re-pleading by both parties will likely identify the facts properly in issue and the elements of the pleaded causes of action that are in dispute far more effectively that requiring, or not requiring, particulars of the existing pleadings.
I will give directions for the plaintiff, after he has inspected discovery made pursuant to the orders I will pronounce, to serve a proposed amended statement of claim and for the Commonwealth to serve a proposed amended defence, each of which is to be fully and properly particularised. If there are extant pleading or particulars issues remaining after this exercise, I will deal with them before formally granting leave for such amended pleadings to be filed.
Bearing in mind the extent of refinement of the issues evident in submissions, and with the guidance of the observations of Gleeson CJ in Goldsmith v Sandilands:[70]
The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial". The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive.
[70](2002) 190 ALR 370 (citations omitted).
I expect that both parties can specifically target and articulate the facts in issue in the context of the causes of action that the plaintiff intends to assert and thus identify the real issues in dispute in this proceeding without the court needlessly spilling resources in an ineffectual debate about particulars and evidence.
Conclusion
The court will order as follows:
1. The defendant’s objection to production of discovered documents for inspection is refused, and the defendant shall produce to the plaintiff for inspection each document identified by item number from Part 2 of Schedule 1 of the Affidavit of Documents of Mr Ian David Beasant sworn on 20 July 2015, and Part 2 of Schedule 1 of the Affidavit of Documents of Mr Ian David Beasant sworn on 4 December 2015:
(iv) in its entirety in an unredacted form, items 1, 2, 3, 8, 9, 10, 11, 11.3, 12-51.6 (inclusive) and 56.
(v) subject to paragraph 2 of this order, items 4–7 (inclusive), 11.1, 11.2, 52–55.3 (inclusive), and 56.1.
2.The defendant’s objections to production for inspection of certain parts of the following documents are upheld.
(vi) The following parts (identified by reference to the contents page either as a part, a slide or an appendix) of Item 4 and the corresponding parts of item 5 may be redacted:
a) Part 4, slides 10, 11 and 14;
b) Part 5;
c) Parts 7–10 (inclusive); and
d) Appendices B and C.
(vii) The following parts (identified by reference to the contents page either as a part, a slide or an appendix) of item 6 and the corresponding parts of item 7 may be redacted:
a) Parts 6 and 7;
b) Parts 10 and 11; and
c) Appendices F and G.
(viii) Item 11.1:
a) the redactions in paragraph 1.11 on page 15 may be maintained;
b) paragraphs 1.12 and 1.13 on page 16 may be maintained; and
c) the whole of paragraph 1.14 commencing on page 16 may be redacted.
(ix) Item 11.2: redactions of telephone numbers and other material about which the plaintiff expressed no objection to redaction may be maintained. The redactions in paragraph 2.5 on pages 6 and 7 may be maintained.
(x) Items 52–55.3 may be blurred or obscured only to the extent that avoids identification of members of the public not relevant to the proceeding.
(xi) Item 56.1: The URL for the document appearing at the foot of each page of the document may be redacted.
(b) The defendant shall make, swear, and file a further affidavit of documents.
(c) The defendant shall permit inspection of its discovery, save for the information particularised in paragraph 2 of this order.
(d) The plaintiff shall serve on the defendant a proposed amended statement of claim that fully particularises its allegations.
(e) The defendant shall serve on the plaintiff a proposed further amended defence that fully particularises its allegations.
(f) The proceeding shall be adjourned to a date to be fixed for further directions.
I will hear counsel as to the precise form of the proposed directions and in respect of costs.
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