Igbinoba v Commonwealth of Australia (No 3)
[2025] FedCFamC2G 63
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Igbinoba v Commonwealth of Australia (No 3) [2025] FedCFamC2G 63
File number: SYG 2321 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 23 January 2025 Catchwords: HUMAN RIGHTS – Public interest immunity claim – Risk of inadvertent disclosure – Possibility of harm to the public interest - Claim upheld. Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Racial Discrimination Act 1975 (Cth) s 9
Cases cited: Igbinoba v Commonwealth of Australia (No 2) [2024] FedCFamC2G 1352
Hu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 86
Division: Division 2 General Federal Law Number of paragraphs: 59 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) 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, NSW POLICE FORCE
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.The First Respondent’s claim for public interest immunity (PII), as identified in the confidential schedule of the First Respondent’s PII claims (MFI-1) (Categories 1 – 6) in respect of documents to be tendered in evidence, produced pursuant to the Notices to Produce issued by the Applicant on 26 March 2023 and 26 August 2023 (Notices to Produce) and discovered pursuant to the orders made on 1 March 2024 (Discovery Orders), is upheld.
2.The information identified in MFI-1 (Categories 7 and 8) in respect of documents to be tendered in evidence, produced pursuant to the Notices to Produce and discovered pursuant to the Discovery Orders is subject to the statutory prohibitions on disclosure claimed by the First Respondent and is not to be disclosed.
3.Pursuant to s 230 of the Federal Circuit and Family Court of Australia Act 2010 (Cth), until 11:59 pm on 23 January 2032 or further order, information concerning cyber risk as identified in MFI-1 (Category 9) in respect of documents to be tendered in evidence by the First Respondent is not to be disclosed (whether by publication or otherwise) other than to the Applicant and his legal representatives in these proceedings, necessary staff of the Federal Circuit and Family Court of Australia and transcription service providers for the purposes of this proceeding.
4.There shall be no inspection of the documents produced pursuant to the Notices to Produce or discovered pursuant to the Discovery Orders that are contained in:
(a)Confidential Exhibit JC2 to the Confidential Closed Affidavit of Jeffrey John Carige sworn on 1 August 2024, and reproduced as Confidential Exhibit KL-1 to the Affidavit of Kathryn Lockery sworn 2 December 2024,
(b)Confidential Exhibit JC4 to the Supplementary Confidential Closed Affidavit of Jeffrey John Carige sworn on 21 November 2024,
(c)Confidential Exhibit KM2 to the Confidential Closed Affidavit of Kenneth McKern affirmed on 31 July 2024,
(d)Confidential Exhibit BC-2 to the Confidential Closed Affidavit of Belinda Conn affirmed on 2 August 2024, or
(e)Confidential Exhibit KF-1 to the Confidential Closed Affidavit of Kate Louise Ferry affirmed on 29 November 2024,
except in a redacted form as indicated in Confidential Exhibit JC2 (reproduced in Confidential Exhibit KL-1), Confidential Exhibit JC4, Confidential Exhibit KM2, Confidential Exhibit BC-2 and Confidential Exhibit KF-1.
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
This judgement concerns public interest immunity (PII) claims made by the Commonwealth in respect of documentation subject to subpoena by the applicant Mr Igbinoba. A separate judgement has been delivered in relation to claims for PII as to documents subject to subpoena from NSW Police; (see: Igbinoba v Commonwealth of Australia(No 2) [2024] FedCFamC2G 1352).
BACKGROUND
The applicant 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, was the subject of a pat down search on occasions, 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 further examination. On each occasion he claims he was detained for a minimum of two hours and up to, on occasions four hours, prior to being cleared to leave the airport.
The applicant alleges he has been subjected to unlawful discrimination by the first respondent and the ABF 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 first 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 first 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 first respondent denied him the freedom to leave the airport within a reasonable timeframe.
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 CURRENT PROCEEDINGS BEFORE THE COURT
As part of the preparation for trial, the applicant has issued a number of subpoenas directed to the first respondent. A claim of PII has been raised by the first respondent in relation to a significant number of parts of the documents subject to subpoena. There are some 219 separate PII claims. The categories of claims are as follows:
(a)Sensitive methodology; material containing sensitive methodology used by ABF and law enforcement agencies to prevent, detect and investigate potential offences and the manner in which agencies communicate and coordinate with each other to achieve these purposes. This category also includes material containing information which demonstrates the Department's knowledge of the methodology employed by organised criminal groups to circumvent border controls.
(b)Sensitive capability; material containing sensitive border and law enforcement capabilities and intelligent activities as well as material containing assessments of the capabilities and vulnerabilities by the Department of organised criminal groups.
(c)Ongoing investigations or future proceedings.
(d)Intelligence holdings; material containing information which would identify entities, including their associates and behaviours, that are the subject of intelligence holdings in connection with the applicant and other border actors with potential connections to previous criminal activity at the border and serious organised crime.
(e)International relations; Information that might prejudice Australia's international relations and the sharing of intelligence and other information between Australian and overseas law enforcement bodies.
(f)Restricted AUSTRAC Information; information which is prohibited from disclosure due to the operation of the Anti-Money Laundering and Counter-Terrorism Financing 2006 Act (Cth).
(g)Restricted Telecommunications data; information which is prohibited from disclosure due to the operations of the Telecommunications (Interception and Access) Act 1979 (Cth).
(h)Cyber risk; information comprising unique user details, or information about the construct or operations of classified systems which would give rise to an increased cyber risk due to sensitive Commonwealth computer networks and systems if released (note this category is subject to a suppression application only).
(i)Confidential sources; material containing information which may identify persons who provide confidential information or assistance to law enforcement and regulatory agencies.
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.
THE EVIDENCE
The Court has been provided with both the open and closed affidavits of a number of Commonwealth officials. The Court has also been provided with a Court Book that contains a hard copy of the relevant documents over which PII is sought. An Aide memoir has been provided that sets out the relevant part of each document upon which PII is claimed as well as the basis upon which PII is claimed. Given the number of claims, the only option for the Court is to deal with each of the witnesses’ affidavits sequentially, referring only to the material within the open affidavit in this judgement, consider the additional material within the closed affidavit of the witness and, if necessary, perusing the unredacted document the subject of the PII claim. The Court will then consider whether the claim for PII can be made out as to each part of the documents upon which the claim is made.
Open and Closed Affidavits of Jeffrey Carige sworn 1 August 2024
Mr Carige is currently employed as Assistant Secretary of the Support to Operations Branch in the Department of Home Affairs (“the Department”). In this role, he is responsible for managing the delivery of direct intelligence support to operations led by the ABF and law enforcement partners. This support draws on a wide range of sources of intelligence reporting, from open source to classified. The branch is also the Department’s lead for intelligence enablers, such as collection management and intelligence support planning.
The documents the subject of PII claims by Mr Carige comprise documents which are information reports saved on the National Intelligence System and intelligence assessments saved in the Intelligence Production Library. Each of the documents is classified under the government’s Protective Security Policy Framework as ‘Protected’, which is above the classification of ‘Official: Sensitive” and below the classification of “Secret”. A protected classification is used if disclosure of the information will be expected to cause high business impact and damage to the national interest, organisations or individuals. The very fact that the documents are classified as ‘Protected’ is of itself an indication that the documents are assessed by the Department as being of a nature that would mitigate against disclosure.
Annexed to Mr Carige’s affidavit is a schedule of 200 documents upon which a PII claim is made based on one of the following categories: sensitive methodology, sensitive capabilities, prejudice to intelligence holdings, confidential sources, restricted AUSTRAC data, restricted telecommunications data, or cyber risk. I am satisfied that any material to which the claim of PII relating to restricted AUSTRAC or telecommunications data is made must succeed on the basis of the provisions within the relevant legislation.
I have carefully read the closed affidavit of Mr Carige, which contains a detained explanation of the type of material over which PII is sought and the reasons why such an order is sought. and the unredacted documents. I give his evidence, based on his senior position within the Department of Home Affairs and the experience he has detailed, considerable weight as to the risks associated with disclosure of the material the subject of the claim for PII. I have also considered the claim for a suppression order in relation to certain data which might pose a cyber risk should it become public knowledge, such as individual User ID’s or URL addresses used by the ABF.
First, I am satisfied, that the entirety of the material upon which PII is claimed, evidenced upon within Mr Carige’s Affidavit, is material which would assist in the proceedings. It is material which might explain the reasonable basis upon which the applicant was subjected to temporary detention upon his multiple arrivals into Australia, noting his frequent trips abroad, questioning, baggage search, pat down body search and his electronic devices being inspected.
Second, I am satisfied that all the material is subject to valid PII claims for the reasons set out in the Annexure to Mr Carige’s open and closed Affidavits, or in the case of cyber risk is subject to a valid suppression order request. I am satisfied that if the material were disclosed there is a real possibility of harm to the public interest.
I now turn to the balancing aspect of the three-step process. Category 1 material contains methodology used by Border Force to prevent, detect and investigate potential offences. It also includes the Department’s knowledge of the methodology used by organised criminal groups to circumvent border controls and evade detection. I am satisfied that it is demonstrably in the public interest that this material is not disclosed to the applicant.
Category two material relates to sensitive information that might reveal the capabilities of Department and law enforcement agencies and as to the capabilities and vulnerabilities of organised criminal groups. This includes specific capabilities that might involve financial information and analysis derived from AUSTRAC and intelligence gleaned from previous investigations. I am satisfied it is not in the public interest that such information be made available to the applicant. Making such information available would jeopardise current and future law enforcement activities.
Category four relates to prejudice to intelligence holdings. Disclosure of this information would enable possible identification of persons, organisations and other actors related to previous criminal activity. I am satisfied that it is not in the public interest for such information to be disclosed to the applicant, even though it may be historical in nature, due to the longitudinal nature of criminal activity and those who engage in such activity.
Category five relates to material gained from confidential sources. This is an area where it is well established it is not, except in certain limited cases involving a criminal trial and information that may show a defendant is not guilty of an offence, in the public interest for such information to be disclosed. This is particularly in the case where such a disclosure may either directly or indirectly identify the source of the information. It is not in the public interest for this information to be disclosed to the applicant.
Categories seven and eight relate to information from AUSTRAC or restricted telecommunications data. This is stature barred from disclosure.
The last category relates to an application for a suppression order over information comprising unique user details, department URL’s or information about the operations of classified computer systems which would give rise to an increased cyber risk from both state based actors and non-state based organised criminal groups who seek to exploit vulnerabilities in Australian government computer systems. I do not consider this is material that is relevant to the case. I am further satisfied that it is appropriate that a suppression order be granted in relation to such information.
In my view, the risk to the public interest in each case is such that none of the material sought should be disclosed to the applicant. I have also considered and reject the alternative that at least some of the material could be made available to the applicant’s legal representatives on the basis it is not disclosed to the applicant. It would be virtually impossible to discuss with the applicant in any meaningful manner the material without disclosing even inadvertently its contents.
Open and Closed Affidavits of Jeffrey Carige sworn 21 November 2024
In his open Affidavit, Mr Carige deposes that since 26 August 2024, his position has changed to that of Assistant Secretary of the Immigration Compliance Intelligence Branch. In this role, he is responsible for delivering intelligence capability that supports the operations of the immigration compliance program including border watch. Mr Carige deposes that he has reviewed a number of documents which are detailed within an open annexure attached to his Affidavit which relate to legal requests from the applicant, a minute paper of 27 October 2019 and an annexure to a worker notebook entry dated 13 October 2019.
PII is claimed on the basis of either Category one, sensitive methodology or Category nine, cyber risk. In relation to two documents PII is claimed on both bases. I have read the closed Affidavit of Mr Carige and perused the unredacted versions of the documents attached to his closed Affidavit. I give his evidence, based on his position within the Department and his experience, considerable weight. I have read his closed Affidavit and perused the unredacted documents.
First, I am satisfied that the material is relevant to the case. Second, I am satisfied that a claim for PII can be made out in relation to each of the documents sought. I am satisfied that if the material were disclosed there is a real possibility of harm to the public interest.
In terms of the balancing exercise, I am satisfied it is not in the public interest for this information to be disclosed to the applicant. I am satisfied such a disclosure would involve revealing what might be of specific interest in baggage examination at the airport and might reveal knowledge of criminal group methodology.
Again, for the reasons set out above, I am not satisfied it is feasible for this material to be provided to the applicant’s legal representatives on a confidential basis.
For the same reasons as set out above I am satisfied that a suppression order should be made on any material that might expose the department to increased cyber risk. This risk is real and growing, with both state and non-state actors seeking to exploit vulnerabilities within information technology systems for both monetary gain (in the case of cyber ransom) or for intelligence gathering reasons.
Open and Closed Affidavits of Kenneth McKern sworn 31 July 2024
Mr McKern currently occupies a position of Commander of Compliance Operations and Delivery Branch in Customs Compliance, Enforcement and Targeting Division. He has held this position since 10 April 2024. Within this branch is the illicit tobacco task force (ITTF) which works with various Commonwealth agencies to identify organised criminal syndicates and combat illicit tobacco trade. The Court is aware this is an area of increased criminal activity due to the high profit margin in illegal tobacco products that are not subject to high taxes.
Prior to joining the Australian Border Force, Mr McKern held a number of senior positions within the Australian Federal Police and deposes to having 28 years of operational investigative experience in investigating serious and organised crime. He claims to have a depth of experience in understanding how criminal syndicates operate, across borders and across commodities.
I have read his open and closed affidavits as well as perusing the unredacted documents. In terms of the matters considered by him in his assessment of the harm in publishing information which is the subject of the PII claims. In his open Affidavit, Mr McKern notes that there can be harm related to the difference between unofficial speculation and comment on the one hand and official confirmation as to the existence or nonexistence of a particular matter on the other. Official confirmation or endorsement, or positive denial, of matters that have previously been the subject of speculation or guesswork only, may of itself be harmful.
Further, Mr McKern refers to the issue of “mosaic analysis” by which often seemingly innocuous pieces of information from multiple sources can be collated and considered collectively in a way that reveals a complete picture of the matter. Mosaic analysis is used by the ABF to build and maintain an understanding of border threat environment and to identify border movements that may cause harm to the community. It can be difficult, if not impossible to quantify the likelihood that disclosure of the specific piece of information will contribute to a successful and harmful application of mosaic analysis. This is because it is not possible to know precisely what other information may be available to the person or entity conducting that analysis.
Accordingly, it is necessary to consider whether information is capable of meaningfully contributing to an understanding of how and when sensitive capabilities and methodologies are deployed, how they can be undermined, avoided or exploited. Further, consideration needs to be given as to whether disclosure would prejudice ongoing investigations and intelligence holdings.
Mr McKern goes on to detail, at some length, the impact of the illegal tobacco trade, including the size of seizures and the value of those seizures estimated in the 2022 – 23 financial year at $3.46 billion. Mr McKern deposes that PII is claimed over material containing information which would reveal the ABF’s methodologies for detecting and disrupting the illegal importing via sea cargo of loose tobacco, cigarettes, vapes, e-cigarettes and illegal drugs, including cannabis and cocaine.
Mr McKern claims that the disclosure of material sought by the applicant would reveal sensitive law enforcement capabilities, may prejudice ongoing investigations or future proceedings, would prejudice current intelligence holdings or cause prejudice to international relations whereby the ABF has cultivated an offshore network of partner agencies that directly provide information to Australia in relation to serious and organised crime.
Having carefully read Mr McKern’s closed affidavit, together with the material annexed thereto which includes unredacted copies of the information subject to subpoena, given his position within the ABF, together with his experience as outlined in his open affidavit, I give his evidence considerable weight.
Each of the documents sought is classified as ‘Protected’ as disclosure would be expected to have a high business impact and cause damage to national interest, organisations or individuals. The information sought is required to be stored in an approved Class C security related container and is stored within Zone 3 office accommodation. Zone 3 is a ‘security zone’ within premises which has met a number of requirements. It is not open to the public and falls mid-way in a Zone 1-5 security zone classification system.
First, I am satisfied that the material is relevant to the case. Second, I am satisfied that a claim for PII can be made out in relation to each of the documents sought. I am satisfied that if the material were disclosed there is a real possibility of harm to the public interest.
In terms of the balancing exercise, I am satisfied it is not in the public interest for this information to be disclosed to the applicant. I am satisfied such a disclosure would involve revealing what might be of specific interest in relation to illicit tobacco investigations, both current and into the future and might reveal knowledge of criminal group methodology.
Finally, I am not satisfied that provision of the information on a confidential basis to the applicant’s legal representatives is a viable course of action due to the risk of inadvertent disclosure.
Open and Closed Affidavits of Belina Conn sworn 2 August 2024
Ms Conn is currently the Commander within the Border Systems and Program Management branch. In her current role, she is responsible for the guiding and supporting of management development and enhancement of operational capacity to meet ABF’s needs. This includes managing and enhancing information communications and technology (ICT) responsible for the facilitation of a regulation of trade and travellers across the border. This includes oversight of the Alerts management Team which is responsible for the policies and ICT systems relating to the Passenger Analysis Clearance and Evacuation system (PACE), real-time risk assessment and examinations of electronic devices. Given her position and experience, I give Ms Conn’s evidence considerable weight.
I have read her open and closed affidavits together with perusing the unredacted copies of the material to which access is sought.
She claims public interest immunity in respect of 11 documents, which are historical departmental procedural instructions, guidelines and policy documents. Each of the procedural documents was created by ABF for use by the Department and departmental officers in carrying out the duties and functions. None of the procedural documents was created for or used for public consumption.
All, bar two of the documents, are classified as ‘Protected’. The remaining two documents were classified as either ‘Restricted’ or not classified at the time. Later versions of the documents are marked as ‘Protected’. Similar restrictions and protections are employed in relation to the protected documents as are set out above, including the use of security containers for the storage and the documents being housed within the security zone within office accommodation.
In relation to the superseded documents, PII still claimed on the basis that information in the superseded documents, if published, is stated to cause harm because the information itself remains current, and it would undermine other current or future PII claims in respect of the current policy and instruction documents.
Whilst some of the information, it is claimed, might appear innocuous it is not publicly available and could be used to undermine the effectiveness of law-enforcement methodology. This includes information relating to the alert management system information, which, it is stated, if published would allow persons to take steps to reduce their likelihood of their removal and alert or take other steps necessary to an alert to evade intervention action by the ABF. This material includes contact details for one specific team within the department which is potentially vulnerable to misuse if made available in the proceedings, including the possibility of “spoofing” the contact telephone number. Spoofing occurs where a caller can falsely impersonate the number from which they are calling. If the number were to be disclosed, it is stated that it would need to be changed.
The procedural documents sought are intended as operational instructions for ABF officers. They contained reference to covert methods of intelligence gathering and investigation used by the ABF. In relation to electronic examination of the airport environment, this includes information which specifies the investor to give steps and exposes potential vulnerabilities and evidence gathering that, if published, it is claimed would allow persons of interest to undermined ABF’s ability to investigate offences.
Real-time risk assessment and real-time risk indicators specify material used to inform risk assessment. If published it would allow persons of interest to regulate or modify their behaviour to avoid being identified for intervention action using a risk assessment. The publication of this information would frustrate investigative capacity and reduce the likelihood of detection of cross-border crimes. PII is claimed on each of the documents being sought on the basis that it would disclose methodology employed by the ABF which is not in the public interest to be disclosed, even though one document dates from 2004.
First, I am satisfied the documents sought are material to the issues for determination in this matter. Second, I am satisfied that a claim for PII can be made out in relation to each of the documents sought. I am satisfied that if the material were disclosed there is a real possibility of harm to the public interest.
In terms of the balancing exercise, I am satisfied it is not in the public interest for this information to be disclosed to the applicant. I am satisfied such a disclosure would involve revealing what might be of specific interest in relation to methodologies employed by the ABF when conducting risk assessments of persons arriving at Australia’s border, including identification of persons of interest. I am satisfied that disclosure of this information, even where the information is historical in nature and may not have been classified at the time of its creation, given it still contains information on risk assessment is not in the public interest.
Finally, I am not satisfied that provision of the information on a confidential basis to the applicant’s legal representatives is a viable course of action due to the risk of inadvertent disclosure.
Evidence of Kate Ferry sworn 29 November 2024
Ms Ferry is a commander within the Australian Federal Police. Her current position is commander investigations, Eastern command. In that role, she oversees the Australian Federal Police’s Eastern command investigations, with a remit that includes transnational serious and organised crime, victim-based crime, cybercrime, intelligence operations, money laundering and financial crime.
I have read Ms Ferry’s open and closed affidavits and have perused the one document to which public interest immunity is claimed, being an operational intelligence report. The claim for public interest immunity is made on the basis that it might disclose sensitive methodology, prejudice to intelligence holdings, and disclosure of confidential sources. Further, the document includes information captured by the use of restricted telecommunications data which is statute barred from disclosure.
While it is conceded some of the information within the document might appear to be innocuous or benign, the sensitivity of the information becomes apparent when regard is had to “mosaic analysis”. This includes information in relation to a specific operation, Operation Ballantyne, dating from 2010, where a Spanish female and two Nigerian males were arrested and charged with the importation of 3.7 kg of methamphetamine into Australia. The Spanish female and one of the Nigerian males were subsequently convicted.
First, I am satisfied that the material is relevant to the matters under consideration in this matter. Second, I am satisfied that a claim for PII can be made out in relation to the document sought. I am satisfied that if the material were disclosed there is a real possibility of harm to the public interest.
In terms of the balancing exercise, I am satisfied it is not in the public interest for this information to be disclosed to the applicant. I am satisfied such a disclosure would involve revealing what might be of specific interest in relation to methodologies employed by the ABF. I am satisfied that disclosure of this information, even where the information is historical in nature still contains information that is not in the public interest to disclose.
Finally, I am not satisfied that provision of the information on a confidential basis to the applicant’s legal representatives is a viable course of action due to the risk of inadvertent disclosure.
CONCLUSION
Each of the claims for PII is upheld. The documents may be provided to the applicant in a redacted form.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 23 January 2025
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