Igbinoba v Commonwealth of Australia (No 2)
[2024] FedCFamC2G 1352
•10 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Igbinoba v Commonwealth of Australia (No 2) [2024] FedCFamC2G 1352
File number: SYG 2321 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 10 December 2024 Catchwords: HUMAN RIGHTS – Public interest immunity claim over material produced – Disclosure of confidential information – Claim upheld. Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO.
Racial Discrimination Act 1975 (Cth) s 9.
Cases cited: Attorney General v Smith (1996) 86 Crim R 308
Hu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 86
R v Lewes Justices; Ex parte Secretary of State for the Hone Department [1973] AC 388
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 2 December 2024 Place: Parramatta Counsel for the Applicant: Mr Parkin Solicitor for the Applicant: Ms Orlic (Blackbay Lawyers) Counsel for the First Respondent: Mr Tran and Mr Hall Solicitor for the First Respondent: Ms Lockery (Australian Government Solicitor) Counsel for the Second Respondent: Mr Singleton Solicitor for the Second Respondent: Ms Lewis (Crown Solicitor’s Office)
Table of Corrections 22 January 2025 The year of the file number has been corrected to 2020. It formerly stated ‘2024’. ORDERS
SYG 2321 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OKUNGBOWA HUBERT IGBINOBA
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First Respondent
COMMISSIONER OF POLICE FOR NEW SOUTH WALES
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
10 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Commissioner of Police for New South Wales is joined as the Second Respondent to these proceedings.
2.The claim for public interest immunity in respect of documents produced by the NSW Police is upheld.
3.There shall be no inspection of the following documents that have been discovered pursuant to the orders made on 1 March 2024:
(a)the document headed 'Information Report 15856804' (a copy of which is marked 'A' and is annexed to the confidential affidavit of Sonya Tabor APM dated 11 September 2024 and filed in Court on 2 December 2024),
(b)the document headed 'Information Report Summary' and numbered I 59710076' (a copy of which is marked 'B' and is annexed to the said confidential affidavit), or
(c)the document headed 'Information Report 20065406' (a copy of which is marked 'C' and is annexed to the said confidential affidavit),
except in a form redacted as indicated by the said Annexures A, B and C.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant, Mr Igbinoba, has commenced proceedings in the Court alleging unlawful discrimination under s 46PO of the Australian Human Rights Commission Act 1986 (Cth).
The applicant was born in May 1973 in Nigeria and is of Central African/ Nigerian ethnicity. Between February 1998 and September 2004, the applicant was an immigrant and the holder of valid Australian visas. He became an Australian citizen in 2004.
The applicant has worked in the freight, shipping and cargo industry for the past 14 years and has travelled internationally frequently during the period 1998 to 2020. The applicant claims that on 32 occasions during the period February 1998 to January 2020, upon seeking re-entry into Australia, he was temporarily detained by Australian Border Force (“ABF”) officials, had his luggage emptied, searched and inspected at the ABF search area, was further questioned and interrogated, on occasions was the subject of a pat down search, had his laptop and mobile phone confiscated from him, inspected and searched, on one occasion had his body searched, swabbed and patted down, including being asked to sign a consent form to be transferred to St George Hospital for further examination. On each occasion he was detained for a minimum of two hours and up to, on occasion four hours, prior to being cleared to leave the airport.
The applicant seeks orders restraining the Commonwealth from continuing to subject the applicant to racial discrimination within the meaning of s 9 of the Racial Discrimination Act 1975 (Cth) together with compensation and costs.
The applicant alleges that he has been subjected to unlawful discrimination by the respondent and the Australian Border Force for a period exceeding 20 years. This discrimination is in relation to his race/colour, and his ethnicity and origin. The applicant alleges that since 1998 the respondent has consistently engaged in a pattern of conduct towards the applicant whereby on each and every re-entry of the applicant into Australia, he has been systemically targeted at the arrival gates of the airport.
He claims he has been stopped and detained for lengthy periods of time, including on occasions for several hours, repeatedly asked questions together with searches of the applicant and his possessions. He alleges the respondent has behaved in a manner that has caused him significant embarrassment, hurt and distress together with nuisance and delay. He alleges he has been treated in a manner materially distinct to and adversely from the way other travellers and citizens are treated who re-enter Australia. Mr Igbinoba alleges the actions of the respondent denied him the freedom to leave the airport within a reasonable timeframe.
The Current Proceedings before the Court
As part of the preparation for trial, the applicant has issued a number of subpoenas directed to the respondent and the New South Wales Police Force (“NSW Police”). A claim of Public Interest Immunity (“PII”) has been raised by the respondent and NSW Police in relation to parts of the documents subject to subpoena.
This judgment only deals with the issue of a claim of PII in relation to documents produced by NSW Police. A separate judgement will be issued in relation to the PII claims sought by the Commonwealth.
Evidence before the Court
The evidence in relation to three documents upon which PII is claimed by NSW Police consists first of an open Affidavit of Acting Assistant Commissioner Sonya Tabor APM together with a second, closed Affidavit from Acting Assistant Commissioner Tabor which attaches the relevant documents in unredacted form.
The documents are as follows:
(a)Information Report 1586804 (“First Commonwealth Intelligence Report”);
(b)NSW Police Force Information Report Summary Ref I 59718073 (“NSW Intelligence Report”); and
(c)Information report 20065406 (“Second Commonwealth Intelligence Report”).
In her open Affidavit, Acting Assistant Commissioner Tabor states that the NSW Intelligence Report records information provided to NSW Police by a member of the public via Crime Stoppers. The Second Commonwealth Intelligence Report records substantially the same information as contained in the NSW Intelligence report.
Crime Stoppers is promoted to the public as a confidential means of reporting information in relation to crime. It is asserted that members of the public are expressly assured that the information they provide will be treated in the strictest of confidence. The community is further told that people can report to Crime Stoppers on an anonymous basis and that their personal details will be only passed on to police if they want police to contact them or if they agree to speak to police.
It is asserted that the disclosure of personal details of persons who have provided information would be a breach of public trust and could do serious and irreparable damage to the integrity and trustworthiness of Crime Stoppers. The willingness of people to provide information would be impacted by the exposure of the identity of those who contact Crime Stoppers. Further, the identification of people who provide information to police could result in such persons being placed at risk. It is asserted that the security, safety and protection of confidential sources of information is accordingly a paramount concern to the NSW Police Force.
The Court has read both the open and closed Affidavits of Acting Assistant Commissioner Tabor and has perused the relevant areas of the documents over which PII is claimed.
On behalf of the applicant, an extract from information contained on the Crime Stoppers website was tendered. That extract notes that in relation to disclosure, any part of the confidential details provided to Crime Stoppers may be disclosed under a process of law to a Court, Tribunal, governmental or regulatory authority which is entitled to require disclosure of such information.
The Law in relation to Public Interest Immunity
In Hu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 86, at [22] – [31], I set out the relevant law in relation to claims for PII as follows:
[22] The respondent opposes any material to which the public interest immunity is claimed, including the confidential affidavits of Mr Quinn being made available to the applicants even on a restricted basis to their legal representatives. It was submitted in determining whether or not to allow a claim of public interest immunity, a Court must balance the public interest in withholding the disclosure of information or the production of a document as against the public interest in ensuring that the Courts perform the functions of justice should have access to the relevant evidence, Sankey v Whitlam 1978] HCA 43 at 44, approved of in MacAlister v The Queen [1990] HCA 15 at 412. In Attorney General of New South Wales v Stuart at 675 and 676, Hunt CJ at Common Law, as he was then, stated:
It is necessary for a party seeking to overcome a claim of public interest immunity to demonstrate if legitimate forensic purpose for seeking the documents before the judge proceeds to the balancing process.
[23] A three stage process is to be followed: first, determining whether the evidence sought to be obtained is material in the sense that there are concrete grounds to believe the disclosure of the documents or information would materially assist in the nature of the issues in the proceeds; second, whether or not there is a sound basis for the claim of immunity; and third, the balancing exercise. As to the first of these steps, as was said in New South Wales Commissioner of Police v Attorney General at New South Wales [2022] NSWSC 595 ("Commissioner") at paragraph 59:
The essential enquiry is the extent to which the documents and information will, or are likely to, materially assist the identified issue in the proceedings, not merely potential or conceivable relevance assessed with or without reference to the issues in the proceedings.
[24] The issues must be identified with some degree of particularity having regard to the nature of the proceedings in question, see Commissioner at paragraph 60. If the documents are not material in the sense described, the Court will not proceed to conduct the balancing exercise. As to the second step, consideration should be given as to whether the harm to the public interest could arise from the disclosure depends upon there being "a real possibility as opposed to a probability of harm" and "incurring the identified risk (of harm) is of itself injurious to the public interest", Commissioner at [58]. If a claim for public interest immunity is upheld, the documents or information need not be produced to the Court and the documents or information are not available to be and cannot be adduced in evidence or relied upon by the Court, (see; Assistant Commissioner Condon v Pompano Pty Limited [2013] 252 CLR 38 at 41.
[25] Now, it is right to say that effective law enforcement is a proper basis for the claiming of public interest immunity. This includes material which might disclose law enforcement or intelligence gathering methodologies as well as preventing prejudice to the prosecution of offences both current and into the future. The Court was taken to a significant number of cases and, in particular, the ones that the Court has regard to are El Ossman v Minister for Immigration and Border Protection [2017] 636 FCA at paragraph 30, Jaffarie v Director-General of Security [2014] FCAFC 102 at paragraphs 25 to 27, and particularly Parkin v O'Sullivan [2009] FCA 1096 at paragraphs 23 to 30.
[26] I have regard particularly in Parkin v O'Sullivan which is a judgment of Sundberg J of the Federal Court in Melbourne on 30 September 2009. He sets out at paragraphs 23 and onwards the appropriate course to be followed by reference to a significant number of cases including Regina v Bebic (NSWCA, Samuels JA, Nagle CJ and Cantor J, 27 May 1982) and Haj-Ismail v Minister for Immigration Multicultural and Ethnic Affairs (No 2) (1982) ALR 45. At paragraph 29, Sundberg J said:
In some cases considered above, reference has been made to disclosure of confidential information to legal advisers subject to appropriate undertakings. Such undertakings were offered in the present case.
I note that they have been offered in this particular case as well:
There are many cases in which access has been denied to legal advisers who have offered undertakings on the ground that the risk to national security flowing from inadvertent disclosure is simply too high. There is an elaborate discussion of risk in Regina v Khazaal [2006] NSWSC at 31 to 39, and Traljesic v The Attorney-General Commonwealth [2006] 150 FCR 199 at paragraphs 22 to 23.
[27] His Honour goes on to say at paragraph 30:
Having carefully studied the redacted parts of the respondent’s Affidavit I have concluded that they should not be made available to the applicants’ legal advisers, even on the giving of appropriate undertakings. There are many cases that establish that courts should attach a very considerable weight to the view of what national security requires as is expressed by the responsible officer.
[28] In this particular case the material has been provided to me and I have studied it with some closeness. I have also been taken to the case of SDCV v The Director-General of Security ("SDVC") which was a decision of the High Court of Australia reported at [2022] HCA 32. I have considered first of all in terms of the material that is in the Affidavit itself is simply incapable, that being the second Affidavit of Mr Quinn which is the confidential Affidavit, it is simply unable to be redacted or otherwise altered in such a way as would not allow the disclosure of further information which would compromise the actual information contained within the redacted documents which I have seen in unredacted form.
[29] At SDVC at [287] and [302] a number of courses were set out. They include the disclosure of the gist of the material. In my view, having read the material itself, even to disclose the gist of the material would be likely to compromise the Commonwealth's intelligence gathering opportunities or methodologies and/or gaps in intelligence gathering as well as it would provide information which would alert the applicants in relation to any ongoing inquiries that may or may not be applicable to them. The second course was the appointment of a special advocate. I have not been asked to do that and in light of what I have said above, I am not satisfied that the appointment of a special advocate would in any way assist in relation to the disposition of these issues one way or the other.
[30] The third issue would be the disclosure to the applicants' legal representatives of Mr Quinn's Affidavit on the basis of confidentiality. I have considered this course very carefully as to whether or not it could be disclosed to the applicants' legal representatives. I have studied the material of itself. It would seem to me that there would be grave danger if that course was adopted that there could well be inadvertent disclosure, and in saying that I make no aspersion against the applicants' legal representatives. It is simply a case that the material itself and the nature of it is such that it would be almost impossible to discuss that information without being in a position with the applicants without actually disclosing the nature of it. In my view, whilst that is a course that might well be available in some cases, it is inappropriate in this particular matter.
[31] There is also the fourth and final option which would be to reject the confidential evidence at all. I have had regard to what I consider to be the overriding requirements for open justice and procedural fairness.
Does Public Interest Immunity apply to the Documents produced by NSW Police?
First, the Court is satisfied that the material contained within the three documents is material to the proceedings in that it would provide a legitimate basis for why the applicant may have been detained on multiple occasions, subject to the search of his belongings and questioned by ABF officials when entering Australia.
Second, the Court is satisfied that there is a sound basis for the claim of PII. Any material which might disclose the identity of an informer to police should be protected. As submitted by Counsel for NSW Police:
The law places an exceptional importance on preventing the disclosure of informers identities. The rule protecting police informants is “unique”, “exalted”, “paramount” and “absolute”. Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246g, 247b, 247c and 248b. ……[T]he rule… is relaxed only “whereupon the trial of the defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence” Cain v Glass (No 2) (1985) 3 NSWLR 230 at 247c,and 248b.
It was further submitted that where balancing is required, the government nonetheless “is entitled to rely upon the high importance to which this aspect of the law of public interest immunity attaches to the protection of the identities of police informants and the generally accepted reason for that importance; (see: Attorney General v Smith (1996) 86 Crim R 308 at 312).
In the Court’s view, the balancing exercise must favour the protection of the confidential source of information and this extends to the disclosure of any material that might inaccurately or faintly point to whether a person is or is not an informer; (see: R v Lewes Justices; Ex parte Secretary of State for the Hone Department [1973] AC 388 at 400).
The Court has further considered whether or not the material could be made available to Counsel acting for the applicant, but is not satisfied that there would not be the risk of inadvertent disclosure. In saying that, the Court makes no aspersion against the applicant’s legal representatives. It is simply a case of the material of itself and the nature of it might make it almost impossible to discuss that information without being in a position where the identity of the person disclosing information, or material which might disclose the identity of that person might not be revealed.
In these circumstances, the Court is satisfied that the question must be resolved in the favour of the NSW Police. The Court upholds the application for public interest immunity in relation to the material attached to Assistant Commissioner Tabor’s closed Affidavit, to the extent that material subject to redaction should not be disclosed. The Court notes the willingness of NSW Police to disclose the information sought but in a redacted form. The orders of the Court will give effect to this concession.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 10 December 2024
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