MJ v the Australian Criminal Intelligence Commission
[2022] FedCFamC2G 671
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
MJ v the Australian Criminal Intelligence Commission [2022] FedCFamC2G 671
File number(s): CAG 54 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 17 August 2022 Catchwords: PRACTICE AND PROCEDURE – application for suppression order – whether suppression order is necessary to prevent prejudice to the proper administration of justice - issues of national and international security interests and protection of certain employees of the Respondent – open justice versus protection of proper administration of justice – existence of the possibility of harm sufficient to satisfy relevant criterion – suppression order necessary and made by the Court. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss.229 – 231
Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth)
Cases cited: AB (a pseudonym) v CD (a pseudonym) (2019) 93 ALJR 321; (2019) 364 ALR 202
Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No.2) (2020) 275 FCR 377
Hogan v Australian Crime Commission (2010) 240 CLR 651
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 25 July 2022 Place: Canberra Lawyer for Applicant: Mr J on his own behalf Counsel for Respondent: Ms P Bindon Lawyer for Respondent: Clayton Utz, Canberra ORDERS
CAG 54 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MJ
ApplicantAND:
THE AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
17 AUGUST 2022
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The identities of persons employed by the Respondent, other than those employed at SES level, or information from which those identities can be reasonably inferred, is not to be published or disclosed (including in any decision of the Court), other than to:
(a)the Court and its essential staff;
(b)the parties and their legal representatives or support person (if any);
(c)the witnesses in the proceeding;
(d)the persons employed by the Respondent who are engaged in preparing its response in the proceeding;
(e)the transcriber(s) of any hearings in the proceeding;
(f)the translator(s) providing assistance at any hearings in the proceeding.
2.Evidence and material lodged in the proceeding, including oral evidence given during any hearing in the proceeding, concerning the Respondent's systems and processes are not to be disclosed other than to those persons listed in Order 1.
3.Any hearings in the proceeding will be conducted in private, but those persons listed in Order 1 are not excluded from attending such hearings.
4.In respect of any material on the Court's file in the proceeding that is not covered by Orders 1 and 2, there be no public access without:
(a)prior notice to the Commonwealth; and
(b)an opportunity for the Commonwealth to make submissions on whether or how such access should be granted.
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 W J NEVILLE
Introduction
The Applicant (who is self-represented) was employed by the Respondent. He is no longer retained by that organisation. Arising from the cessation of his employment, by an Application filed on 18th November 2021 (“the principal Application”), he seeks relief against the Respondent under the Fair Work Act 2009 (Cth) (“the FW Act”). The principal Application was redacted and re-filed on 17th May 2022 pursuant to Interim Orders, dated 13th April 2022.
On 13th April 2022, the Respondent filed in Court an Application in a Proceeding by which the Australian Criminal Intelligence Commission (“the Commission”) seeks certain suppression Orders regarding the identification of certain of its staff pursuant to s.230 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).[1] The suppression Orders sought do not apply to employees or officers of the Commission in the Senior Executive Service. The Applicant in the principal proceeding opposes any suppression Order.
[1] The Application in a Proceeding was not filed on the Commonwealth Courts Portal until 3rd May 2022.
On 13th April 2022, certain interlocutory suppression Orders were made as sought by the Commission.
For the reasons that follow, those interlocutory Orders, as set out in the Application in a Proceeding, shall continue, subject to, and pending, the final determination of the Applicant’s principal Application under the FW Act.
The Commission’s Orders sought - Application in a Proceeding
As already noted, the Respondent Commission in the substantive proceedings (Applicant in this interlocutory hearing) filed an Application in a Proceeding in Court on 13th April 2022. The Commission’s Orders sought were as follows:
1.The initiating application, accompanying Form 2 claim, Defence, Response and title of this proceeding to be amended, so that the Applicant, and Third Respondent are recorded as MJ, and AM respectively.
2.The identities of persons employed by the First Respondent, other than those employed at SES level, or information from which those identities can be reasonably inferred, is not to be published or disclosed (including in any decision of the Court), other than to:
a. the Court and its essential staff;
b. the parties and their legal representatives or support person (if any);
c. the witnesses in the proceeding;
d. the persons employed by the First Respondent who are engaged in preparing its response in the proceeding;
e. the transcriber(s) of any hearings in the proceeding;
f. the translator(s) providing assistance at any hearings in the proceeding.
3.Evidence and material lodged in the proceeding, including oral evidence given during any hearing in the proceeding, concerning the First Respondent's systems and processes are not to be disclosed other than to those persons listed in Order 2.
4.Any hearings in the proceeding will be conducted in private, but those persons listed in Order 2 are not excluded from attending such hearings.
5.In respect of any material on the Court's file in the proceeding that is not covered by Orders 2 and 3, there be no public access without:
a. prior notice to the Commonwealth; and
b. an opportunity for the Commonwealth to make submissions on whether or how such access should be granted.
The Applicant’s (MJ) Orders sought – Response to Application in a Proceeding
The MJ’s Orders sought in relation to the Application in a Proceeding were contained in his Response filed 17th May 2022. These were as follows:
1.The Applicant opposes making all of the orders sought by the Respondents in the Defence.
2.The Applicant does not consent to make any of the orders sought in the Response by the Respondents.
Grounds of Opposition
1.The connections between employees or former employees of the First Respondent and their employment with the First Respondent are apparent in the Labour Market and disclosed to the prospective employers and recruiting agencies. The resumes and cover letters reveal the identity of employees, referees, projects, products, services and other challenges the employees overcome during their employment.
2.Professional social media such as Linked In publish the connections between the First Respondent and people to the general public over the internet. A list of over 200 people having connections with the First Respondent can be viewed on social media, as shown in Annexure MJ1.
3.The applicant denies that disclosing the responsible officers’ names in this matter will increase the prevailing risk(s) referred to in the Affidavit filed by Ms Nicole Mayo as First Respondent.
4.Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (AAT) set aside the reviewable decision dated 26 August 2020 [No: 2020/5257 ] and, in substitution, decided that:
4.1. The Applicant (MJ) suffered an ‘aggravation of generalised anxiety disorder’, being an ailment that was significantly contributed to by his employment, with the date of injury deemed to be 20 September 2018 (Injury).
4.2. The Respondent is liable to pay compensation to the Applicant under section 14 of the Safety,
5.The Fair Work Commission matter [2020] FWC 2572 noted that the Third Respondent apologised for several of her actions.
6.The First Respondent refused to disclose the information sought via the Freedom of Information Act. [OAIC Reference MR20/00627].
7.The management of the ACIC came under scrutiny. The Australia National Audit Office, in its report, revealed significant failures in the management and delivery of the project by the ACIC, which became known to the public only through articles published in the media, listed below:
7.1. Australian National Audit Office (anao.gov.au):
The Australian Criminal Intelligence Commission’s Administration of the Biometric Identification Services Project
7.2. The Guardian:
Australian Criminal Intelligence Commission case sparks fears convictions could be overturned | Australian security and counter-terrorism
7.3. The Canberra Times | Canberra, ACT:
'Deficient in almost every significant respect': audit blasts ACIC
8.The contract management by the authorised officers of the Respondents was not effective, resulting in a loss of public money.
9.While the Applicant was employed with the First Respondent, a bulk of emails spanning over three months were missing from his Outlook [email] folders. The Applicant raised an incident [WREQ0079756] with the First Respondent’s Service Desk to restore from the backup files without success.
10.The Applicant requests not to permit the Respondents to continue acting imperiously.
11.The Applicant requests that unredacted documents are produced for the proceedings.
12.The applicant objects to suppressing the name of the responsible officers.
Relevant statutory provisions
The terms of ss.229 – 231 of the FCFCA Act are as follows:
229 Safeguarding public interest in open justice
In deciding whether to make a suppression order or non‑publication order, the Federal Circuit and Family Court of Australia (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
230 Power to make orders
(1)The Federal Circuit and Family Court of Australia (Division 2) may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b)information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence; or
(ii)information obtained by the process of discovery; or
(iii)information produced under a subpoena; or
(iv)information lodged with or filed in the Court.
(2)The Federal Circuit and Family Court of Australia (Division 2) may make such orders as it thinks appropriate to give effect to an order under subsection (1).
231 Grounds for making an order
(1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non‑publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non‑publication order must specify the ground or grounds on which the order is made.
The Commission’s evidence
The Commission’s evidence was provided by two Affidavit from Ms Nicole Mayo, filed 3rd May 2022 and 17th June 2022. Ms Mayo is the Chief Operating Officer and Chief Counsel of the Commission.
In necessarily quite general terms, Ms Mayo deposed that the majority of staff employed by the Commission, who will likely be identified in the course of these proceedings, work in the IT and human resources sections of the Commission, and as such, they are not thereby (or usually) operational staff. Ms Mayo further outlined, again necessarily in somewhat general terms, her concerns about the safety risks to those staff (and their families) who will be identified in the course of this litigation.
Ms Mayo outlined the current focus of some of the operations of the Commission. Some strategic considerations were also noted.
Ms Mayo further outlined, in some detail, the Commission’s unique role in Australia and overseas and the impact of its role and operations on the security of its staff. In this regard, she gave a series of examples where staff security had been impacted by the Commission’s activities, and the Commission’s measures undertaken to protect its staff, including Commission policy and risk mitigation practices.
She deposed that, in her view, and for reasons given in her Affidavit, in addition to the potential risks to staff, there were certain risks to the Commission’s operational capabilities should the suppression Orders sought not be continued.
In her second Affidavit, Ms Mayo sought to respond to material, and certain claims made by MJ in his Response to the Application in a Proceeding. In my view, I need not canvass it for the purposes of the current Application, save to note that it strongly disputes MJ’s contention that the identities of employees of the Commission are publically available online in any event and are, thereby, already “revealed” which would make any suppression Order superfluous.
Because of the nature of the Application and the evidence, in my view, it would not be appropriate to question Ms Mayo’s evidence. Amongst other things, she knows the operational requirements and the myriad of sensitivities which lay behind the reasons for the current Application. In my view, the evidence that she has provided is more than sufficient to justify and to warrant the Orders sought by the Commission being made.
MJ’s Evidence
The Applicant, MJ’s, evidence came via two Affidavits that were misleadingly or mistakenly styled “Affidavits of Service.” They were filed on 5th and 19th July 2022. Somehow the wrong form was used in the filing of his material. This is not a criticism of him. His Affidavits relate to his primary claims under the FW Act. Unfortunately, they are not relevant to the current Application.
The substance of his limited “evidence”, which was set out in his submissions (which are set out below) was that (a) some employment records regarding the Commission’s staff are [currently] available on various labour market sites, and to recruitment agencies and prospective employers, and (b) similar information is publicly available on other professional social media sites, such as “LinkedIn”.
Other contentions outlined in his submissions, as already noted, relate more to his substantive claims under the FW Act and are therefore not immediately relevant to the current Application.
The Commission’s written submissions
The Commission’s written submissions were contained in an Outline of Submissions, filed 18th July 2022, and were as follows (emphasis in original; footnotes omitted):
1.In the Application in Proceeding dated 12 April 2022 (Application) the Respondent seeks suppression and non-publication orders pursuant to s 230 of the Federal Circuit and Family Court of Australia Act 2021 (Act).
2.In support of the Application, the Respondent relies on the affidavit of Nicole Lisa Mayo affirmed 11 April 2022 (First Mayo Affidavit) and the affidavit of Nicole Lisa Mayo affirmed 16 June 2022 (Second Mayo Affidavit).
Relevant principles
3.The grounds on which the Court may make a suppression or non-publication order are set out in s 231(1). If the Court makes such an order or orders, s 231(2) requires the Court to specify the ground or grounds on which the order is made.
4.In deciding whether to make a suppression or non-publication order, s 229 requires the Court take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
5.The Full Court of the Federal Court recently summarised the essential principles applicable to this task under the Federal Court of Australia Act 1976 (Cth) as follows (citations omitted):
Suppression or non-publication orders should only be made in exceptional circumstances. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle.
6.The threshold is therefore a high one, as underscored by the centrality of the term ‘necessary’ in s 231(1). Mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice. However, an applicant for such orders is not required to prove that the harm which he or she fears would be an inevitable consequence in the absence of such an order.
7.Further, once the Court is satisfied that an order is necessary, it would be an error not to make it. There is no residual exercise of discretion or balancing exercise involved.
Grounds for making the orders
8.The Respondent submits that the grounds for the suppression and non-publication orders are that:
(a)they are necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security (s 231(1)(b)); and
(b)they are necessary to protect the safety of persons (s 231(1)(c)).
9.Necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security: The Respondent is a national criminal intelligence agency. It has legislative functions which include working with state and territory, national and international liaison partners on investigations to combat serious and organised crime, cybercrime and national security threats. The Respondent directly targets serious criminal activity at the highest levels and is focused on intelligence collection to discover, understand and respond to current and emerging crime. A current focus of the Respondent is serious drug offences and money laundering activities of serious and organised crime syndicates.
10.The suppression and non-publication orders are necessary to prevent prejudice to national and international security for two reasons:
(a) The evidence in this proceeding may disclose information about the Respondent’s methodologies, systems and processes. If that information becomes publicly available and therefore accessible to serious and organised criminals, it prejudices the future efficacy of those methodologies, systems and processes. Put simply, if the targets of actual or potential surveillance and investigation become aware of the Respondent’s methodologies, systems and processes, they have the means to avoid or undermine them.
(b) The success and efficacy of the Respondent’s functions is dependent upon its staff being able to conduct their work without being impeded by the fear of harm or other repercussions that may result if their identities became known to serious and organised criminals. In this way, the safety of the Respondent’s employees is a necessary part of protecting the Commonwealth’s interests in relation to national or international security via the proper performance of the Respondent’s functions, as well as being a ground for the orders in its own right (as discussed below).
11.Necessary to protect the safety of persons: Employees or former employees of the Respondent are at risk of being targeted by serious and organised crime networks if their identity becomes publicly known. Staff of the Respondent have been identified as being at risk of surveillance or violence from sources including serious and organised crime groups, terrorist groups and foreign intelligence services. Staff, or their affiliates, have previously been targeted as a result of their employment with the Respondent. For these reasons, the Respondent has a range of measures in place to reduce the likelihood of employees’ identities (as connected to the Respondent) from becoming publicly known.
12.The suppression and non-publication orders are necessary for the same reasons described above. This is because the evidence in this proceeding will demonstrate the connection between employees or former employees of the Respondent.
13.Contrary to what the Applicant has suggested, the fact that some employees of the Respondent may have contravened a particular measure does not reduce the risks to them or other staff as detailed in the First Mayo Affidavit.
14.The Respondent has successfully sought similar suppression and non-publication orders to those sought in this Application in relation to other litigation brought by the Applicant. The Respondent notes that the Applicant refers at [1] of Part G of his Form 2 claim to the decision of the Fair Work Commission in MJ [2020] FWC 2572. While that decision is a publicly available decision, it does not disclose the names of employees of the Respondent other than SES employees as orders were made precluding such disclosure or publication. Moreover, to the extent that the decision contains descriptions of evidence, they are of a generalised nature and relate to the interactions between the Applicant and his manager, including the manager’s style and the Applicant’s response to performance feedback. They do not disclose the Respondent’s methodologies, systems or processes.
Applicant MJ’s written submissions
MJ’s written submissions were filed on 18th July 2022; they were as follows (emphasis in original):
Issues in Dispute
1.The Applicant opposes making all of the orders sought by the Respondents in part D of the Application in a Proceeding filed on 13 May 2022.
2.The Applicant does not consent to make any of the orders sought in the Response by the Respondents.
Outline of Contentions
Grounds of Opposition:
1.The Applicant denies that "disclosing the responsible officers' names in this matter will increase the overall risk(s)" referred to in the Affidavit filed by Ms Nicole Mayo dated 11 April 2022.
2.The connections between the current or former employees of the ACIC and their employment records are disclosed to the labour market and an extended network of third-party contractors and affiliations. The resumes and the job application cover letters reveal the identity of employees and referees to recruitment agencies and prospective employers.
3.Professional social media such as Linked In publish the connections between the ACIC and the professionals in the public domain over the internet. A list of over 200 people with links to the ACIC is available on social media today.
4.The Applicant denies that serious risks referred to in paragraphs [38] and [39] from the crime groups and foreign intelligence services to the personal safety and well-being of current and former Staff are aggravated if their names and/or their contact details are disclosed, considering that such identity if required, can be obtained from various sources apart from the material on the Court's file solely.
5.The Respondent seeks orders to suppress the identity of officers other than those employed at the SES level. The security risks and external threats, if any, apply to all individuals irrespective of their level and type of employment with the ACIC.
6.The Applicant raised concerns to the team manager, Ms JK, about the toxic work environment on 18 February 2019. They were followed by a formal complaint to the National Manager, People Service Team, ACIC and supporting medical evidence. The ACIC did not take remedial measures to alleviate the employee's health risks.
7.On 21 February 2022, the Administrative Appeals Tribunal (AAT), pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, decided that:
7.1.The Applicant (MJ) suffered an 'aggravation of generalised anxiety disorder', being an ailment that was significantly contributed to by his employment, with the date of injury deemed to be 20 September 2018 (Injury).
7.2.The Respondent is liable to pay compensation to the Applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of the injury.
8.The Australia National Audit Office, in its report, revealed significant failures in the management and delivery of the project by the ACIC. The Contract Management was ineffective, resulting in a loss of public money. Following articles published in the media :
8.1. The Canberra Times | Canberra, ACT:
'Deficient in almost every significant respect': audit blasts ACIC
8.2. Australian National Audit Office (anao.gov.au):
The Australian Criminal Intelligence Commission’s Administration of the Biometric Identification Services Project | Australian National Audit Office (anao.gov.au)
9.The ACIC refused to disclose information sought via the Freedom of Information Act on procuring software products using tax-payers money [OAIC Reference MR20/00627].
10.The Respondent terminated the employment of the Applicant on 10 September 2021.
11.The Respondent wishes to protect the interests of selective managers of the ACIC during the proceedings, who were responsible for the unreasonable actions mentioned in the initiating Application.
12.The ACIC has coercive powers. The Applicant requests the Court not to permit such management of the ACIC to allow it to continue acting imperiously.
13.The Applicant objects to suppressing the name of the responsible officers.
Minute of orders sought
1.The identities of persons employed by the ACIC should be disclosed and published.
2.Evidence and material lodged in the proceeding concerning the ACIC systems and processes should be disclosed.
3. Any hearings in the proceeding will be conducted in public.
Outline of principle
Although the Commission relied formally upon a range of authorities, I need only note the following for the purposes of the following outline of principle.
First, in Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No.2), in considering but refusing an Application for a suppression Order under relevant sections of the Federal Court of Australia Act 1976 (Cth), which are similar to those under consideration in the present Application before this Court, the Full Court of the Federal Court of Australia set out the following basal principles, which it said, at [7], “are fairly well settled.”[2] At [8] – [9], the Full Court stated:
[8] Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311 at [27]; Rinehart v Rinehart (2014) 320 ALR 195 at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].
[9] The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA at [21].
[2] Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No.2) (2020) 275 FCR 377; [2020] FCAFC 44 at [7].
Secondly, in dealing with an Application for suppression Orders under the Judiciary Act 1903 (Cth), in AB (a pseudonym) v CD (a pseudonym) (“AB”), Nettle J said, at [14] and [15] (internal citations omitted; emphasis added):[3]
[14] This application is made on the basis that the orders sought are necessary to protect the safety of HI and JK. As this Court has observed, "necessary" is a word which denotes more than what is merely convenient, reasonable or sensible. As a constituent of the collocation "necessary to protect the safety of any person", "necessary" connotes that the Parliament is not concerned with trivialities. It has been suggested that "necessary" in this context permits of two possible constructions: either that it must be established on the balance of probabilities that, absent the order sought, the person would suffer harm; or alternatively, satisfaction on the balance of probabilities that the order is necessary to protect the person's safety, the latter being a conclusion informed by the nature, imminence and degree of likelihood of apprehended harm. As it appears to me, the latter construction is to be preferred.
[15] The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of "necessary to protect the safety of any person" that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.
[3] AB (a pseudonym) v CD (a pseudonym) (2019) 93 ALJR 321; (2019) 364 ALR 202.
Thirdly, in Hogan v Australian Crime Commission, a matter that considered suppression or non-publication Orders under the Federal Court of Australia Act 1976 (Cth), the High Court said, at [30] and [33] (internal citations omitted; emphasis added):[4]
[30] As it appears in s.50, "necessary" is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth "suggests Parliament was not dealing with trivialities". Further, as indicated earlier in these reasons: (a) s.50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s.17(1); and (b) "the administration of justice" spoken of in s.50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.
…
[33] It may tend to distract attention from the particular terms of s.50 to describe the Federal Court as embarking upon the exercise of a "discretion" when entertaining an application under s.50. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s.50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order…
[4] Hogan v Australian Crime Commission (2010) 240 CLR 651.
Consideration & disposition
Stated shortly, the Commission’s concerns are twofold: (a) the personal protection and safety of its officers, and (b) the potential risks to its responsibilities on behalf of the Commonwealth regarding national and international security. Regarding the second aspect, the concern of the Commission is the risk of evidence or knowledge concerning the Commission’s methodologies, systems and processes becoming known, available or otherwise accessible most especially by groups or individuals who are currently, or who are likely to be, the subject of investigation. Concerning the former, the personal protection of employees arises from the risk of them being, as it were, potentially targeted, for example, by organised criminals. As earlier noted, these and related risks are set out in Ms Mayo’s Affidavits.
Ms Mayo also noted the central role the Commission plays in liaising with international agencies, from whom the Commission often seeks information and assistance, and provides same to these international agencies. Among her concerns is the reliability and mutual security of the Commissions’ relationship with similar agencies overseas and any concerns they might have if the most appropriate levels of security and protection, as sought in the current Application, were potentially compromised. For my part, arguments arising from, or relating to, international security operations are, almost by themselves, sufficient for the Orders sought to be made.
The Applicant (MJ) in the principal proceedings simply says that the identities of the employees in question are readily available on various social media and other platforms, therefore it is unnecessary to make such Orders. He also said, candidly, that he wanted relevant employees who were involved in various matters when he was employed by the Commission to be accountable, which would only occur of they were “named” and could not hide behind Orders of the kind that are now sought. There was a certain level of “pay-back” discernible in MJ’s understandable concern about how he was treated (in his view) by the Commission when he was employed by it. Those matters are properly the subject of the substantive proceeding.
For my part, the Orders sought should be made. I am satisfied that they are necessary for the reasons given by Ms Mayo, which relevantly satisfy the criteria in the sections of the FCFCA Act referred to. They also satisfy the criteria or principles set out in the authorities to which I have referred.
Moreover, Ms Mayo is best and uniquely placed to make the assessments of potential risk regarding the operations of the Commission as well as the potential risks to its staff, which she set out in detail in her two Affidavits. Respectfully, the former IT employee of the Commission is not.
In particular, I recall that in AB, Nettle J referred to the “possibility” of relevant risk. He did not (nor has any other Court) refer to issues of “efficacy”, or perhaps that some of the information, and or the identity of certain employees, may be partially “in the market place”, so to speak. It is the possibility of risk, and conformity with the relevant statutory provisions, which gives rise to the satisfaction here.
I am also satisfied that the circumstances here are properly “exceptional” as required by the authorities referred to. In this regard, I am conscious of the national and international security matters referred to by Ms Mayo, including co-operation with similar agencies overseas.
Finally, once so satisfied, as I am here, in accordance with the High Court’s comments in Hogan at [33], there is no residual discretion whether or not to make the Orders sought.
Otherwise, and in addition to my own reasons, I accept the submissions on behalf of the Commission.
For the reasons given, the Orders sought should be made, pending any other Order.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 17 August 2022
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