MJ v the Australian Criminal Intelligence Commission

Link copied
Case Copied 25 min read

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
Applicant

AND:

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other than those employed at SES level, or information from which those identities can be reasonably inferred, is not to be published or disclosed (including in any decision of the Court), other than to: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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read MJ v the Australian Criminal Intelligence Commission and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FedCFamC2G 671
Decision Date

CaseChat Overview and Summary

The Australian Criminal Intelligence Commission (ACIC) sought suppression and non-publication orders in relation to proceedings brought by MJ. MJ’s claims related to his employment but were not directly relevant to the current application for suppression and non-publication orders. The ACIC sought these orders to protect its methodologies, systems and processes and the safety of its employees, particularly from organised criminal and terrorist groups. The Court accepted that the evidence provided by the ACIC’s witness was sufficient to justify the orders being made.

The legal issues in this case related to whether the suppression and non-publication orders should be made. In particular, whether they were necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security and to protect the safety of persons. The Court found that they were necessary on both grounds. The Court noted the essential principles applicable to suppression and non-publication orders, including that they should only be made in exceptional circumstances and that the threshold is high. However, once the Court is satisfied that an order is necessary, it is an error not to make it.

The Court accepted the ACIC’s arguments that the suppression and non-publication orders were necessary to prevent prejudice to national and international security and to protect the safety of persons. The Court found that the evidence in the proceeding may disclose information about the ACIC’s methodologies, systems and processes and that if this information became publicly available, it would prejudice the future efficacy of those methodologies, systems and processes. The Court also found that employees or former employees of the ACIC were at risk of being targeted by serious and organised crime networks if their identity became publicly known. The Court noted that contrary to what MJ had suggested, the fact that some employees of the ACIC may have contravened a particular measure did not reduce the risks to them or other staff. The Court found that the suppression and non-publication orders were necessary for the reasons outlined by the ACIC.

The Court made the suppression and non-publication orders sought by the ACIC.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 principles3.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 orders8.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

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.