National Archives of Australia v Fernandes
[2014] FCA 1051
•29 September 2014
FEDERAL COURT OF AUSTRALIA
National Archives of Australia v Fernandes [2014] FCA 1051
Citation: National Archives of Australia v Fernandes [2014] FCA 1051 Appeal from: Fernandes v National Archives of Australia [2014] AATA 180 Parties: NATIONAL ARCHIVES OF AUSTRALIA v CLINTON FERNANDES File number(s): ACD 28 of 2014 Judge(s): FOSTER J Date of judgment: 29 September 2014 Catchwords: PRACTICE AND PROCEDURE – whether confidentiality and protective orders should be made in respect of documents and information covered by or concerning material covered by a public interest certificate issued by the Attorney-General of the Commonwealth pursuant to s 36(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) preventing disclosure of that material because disclosure would prejudice the security, defence or international relations of the Commonwealth Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 36, 36B, 39, 42A, 44, 46
Archives Act 1983 (Cth) ss 31, 33, 36
Crimes Act 1914 (Cth) s 85B
Criminal Code Act 1995 (Cth) s 93.2
Federal Court of Australia Act 1976 (Cth) s 18N , Pt VAA
Federal Court Rules 2011 r 2.32(3)Cases cited: Minister of State for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273
Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74Date of hearing: 3 July 2014 Date of last submissions: 1 July 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 46 Counsel for the Applicant: Mr T Howe QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr I Latham Solicitor for the Respondent: Beston Macken McManis
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 28 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: NATIONAL ARCHIVES OF AUSTRALIA
ApplicantAND: CLINTON FERNANDES
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
29 SEPTEMBER 2014
WHERE MADE:
SYDNEY
THE COURT NOTES THAT:
1.Order 3 made on 6 June 2014 presently continues in full force and effect until further order of the Court.
2.Orders 4, 5, 12-46 and 51-54 made on 6 June 2014 remain in place and continue to be of full force and effect.
THE COURT ORDERS THAT:
3.There be no orders as to the costs of the applicant’s application for confidentiality and protective orders determined by Reasons for Judgment published this day.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 28 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: NATIONAL ARCHIVES OF AUSTRALIA
ApplicantAND: CLINTON FERNANDES
Respondent
JUDGE:
FOSTER J
DATE:
29 SEPTEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This proceeding is an appeal on nine questions of law pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the President of the Administrative Appeals Tribunal (Tribunal) given on 2 April 2014. By that decision, the Tribunal granted to the public and thus to the respondent in this proceeding, Dr Clinton Fernandes, access to the first line of the handwritten text which appears on Folio 130 of part of a record (viz. the part more particularly described as A1838, 3038/2/1, Part 21) (Part 21) held by National Archives of Australia (Archives), the applicant in this proceeding, and also granted access to the public and thus to Dr Fernandes to the whole of the first paragraph which appears on Folio 133 of Part 21. I shall refer to these two fragments of Part 21 together as “the disputed extracts”. The Tribunal granted access to the disputed extracts because it came to the conclusion that those extracts were not exempt from disclosure under s 33(1)(a) of the Archives Act 1983 (Cth) (the Act).
The Tribunal otherwise affirmed the decision under review and thereby confirmed that the remaining documents to which Dr Fernandes had continued to seek access were exempt from disclosure.
Dr Fernandes did not appeal from the Tribunal’s decision. Therefore, the only matter engaging this Court’s jurisdiction in this proceeding is Archives’ appeal from that decision. That appeal relates only to the disputed extracts. Archives contends that the Tribunal ought not to have granted public access to the disputed extracts.
Although an appeal under s 44(1) engages the original jurisdiction of this Court, not its appellate jurisdiction, the present appeal must be heard by a Full Court because the relevant decision-maker was the President of the Tribunal who is also a judge of this Court (s 44(3)(c) of the AAT Act).
The appeal is fixed for hearing before a Full Court on 17 November 2014.
When the appeal was first returned before the Court on 6 June 2014, I made appropriate programming and pre-hearing orders. I also made interim confidentiality and protective orders designed to keep secret certain information pending a contested hearing as to whether such orders should be permitted to continue at least until the hearing of the appeal.
I have attached as Attachment “A” to these Reasons for Judgment a copy of the orders which I made on 6 June 2014. Although the interim confidentiality and protective orders were made “until further order”, the parties agreed that, at the contested hearing, the onus was on Archives to persuade the Court that those orders should remain in place at least until the determination of Archives’ appeal.
On 3 July 2014, I heard Archives’ application that the interim orders which I made on 6 June 2014 should remain in place until the determination of the appeal or until further order of the Court. By these Reasons for Judgment, I determine that application.
BACKGROUND
In 2007 and again in 2011, Dr Fernandes sought access to several parts of a “record” kept by Archives pursuant to s 31(1A) and (1) of the Act. Under s 31 of the Act, if the relevant record being a Commonwealth record is in the open access period (as defined in the Act), is in the care of Archives and is not an exempt record, the record must be made available to the public for inspection and photocopying (see, in particular, s 36(1) and (2)).
The record, parts of which were the subject of Dr Fernandes’ access requests, comprises documents which relate to events which occurred in 1975 and subsequent years involving Indonesia and East Timor and its people.
The particular parts of the relevant record to which Dr Fernandes sought access were A1838, 3038/2/1, Part 20 (Part 20); Part 21 and A1838, 3034/2/9, Part 10 (Part 10).
By three separate decisions made in October 2012, Archives refused access to certain parts of each of Part 10, Part 20 and Part 21, in each case, for the reason that those parts were exempt records under s 33(1)(a) of the Act. Under that subsection, a Commonwealth record is an exempt record if it contains information or matter the disclosure of which under the Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth. In addition, in the case of some documents withheld from Part 21, Archives stated that it was withholding those documents pending agency examination and advice.
Dr Fernandes sought internal reconsideration by Archives of all three decisions. On
6 November 2012, the Assistant Director of Archives affirmed each of those decisions.
On 8 January 2013, Dr Fernandes applied to the Tribunal for review of the decision made by the Assistant Director of Archives on 6 November 2012.
In June 2013, Dr Fernandes and Archives reached a settlement of part of Dr Fernandes’ application for review. On 5 July 2013, pursuant to that settlement, a Senior Member of the Tribunal varied the decision under review by releasing in full certain additional folios in each of Part 10, Part 20 and Part 21 and releasing portions of other folios in each of those parts.
On 11 June 2013, Dr Fernandes lodged written notification with the Tribunal that his application for review in respect of Part 10 otherwise be withdrawn pursuant to s 42A(1A) of the AAT Act. Under s 42A(1B) of the AAT Act, the effect of that notification was that the Tribunal was taken to have dismissed the remaining part of Dr Fernandes’ application which concerned Part 10 without proceeding to review the decision. By letter dated 12 June 2013, the Tribunal informed Dr Fernandes that his application in respect of Part 10 had been finalised by being dismissed on 12 June 2013. Thereafter, only the residue of his application in respect of Parts 20 and 21 remained for review by the Tribunal. Part 20 covers the period from 4 August 1981 to 30 October 1981. Part 21 covers the period from 13 October 1981 to 11 January 1982.
On 19 July 2013, by consent, the Tribunal again varied the decision under review by granting full access to two further folios in Part 21.
When the hearing of the balance of Dr Fernandes’ review application took place before the Tribunal in January and February 2014, 103 folios in Part 20 and 33 folios in Part 21 remained in dispute.
In Open Reasons for Decision published on 2 April 2014, the Tribunal varied the decision under review by granting public access to the disputed extracts but otherwise affirmed the decision under review.
THE PROTECTION SOUGHT
Although the review in the Tribunal took place in the Tribunal’s General Administrative Division, the Tribunal took various steps to protect the confidentiality of certain information and documents. Some of these steps were required to be taken and others were taken as a result of the exercise of the Tribunal’s discretion. The following particular matters should be noted:
(a)The Attorney-General of the Commonwealth issued a public interest certificate (which remains in force) dated 23 January 2014 pursuant to s 36(1) of the AAT Act in respect of certain documents specified in the confidential schedule to that certificate; in respect of certain affidavits, exhibits and submissions to be deployed at the hearing before the Tribunal; in respect of certain evidence given at the hearing before the Tribunal; and in respect of the closed decision given by the Tribunal on
2 April 2014 in respect of Dr Fernandes’ application for review (as to which see Order 3(a) of the orders made by me on 6 June 2014). The basis for that certificate was the Attorney-General’s opinion that disclosure of the information protected by that certificate would prejudice the security, defence or international relations of Australia (as to which, see s 36(1)(a) of the AAT Act).
(b)On 3 February 2014, the Tribunal made an order pursuant to s 35(2) of the AAT Act that publication of the evidence given by the Inspector-General of Intelligence and Security in the closed session, and the contents of Exhibit 9, be prohibited except to Archives and its legal representatives, to the Inspector-General and to the other witnesses who gave evidence in the closed session conducted by the Tribunal on
3 February 2014.
(c)In addition, Dr Fernandes and his legal representatives were excluded from portions of the hearing before the Tribunal when certain submissions were made relating to the confidential evidence led on 3 February 2014 concerning matters relating to the security, defence and international relations of the Commonwealth.
Archives seeks orders restricting the disclosure of security classified documents (as defined in Orders 3 and 4 made on 6 June 2014) and for the secure storage, handling and transport of security classified documents filed in this proceeding. In doing so, Archives relies upon:
(a)Sections 36 and 46(2) of the AAT Act;
(b)Other statutory and statute-based provisions being:
(i)Part VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act);
(ii)Rule 2.32(3) of the Federal Court Rules 2011 (FCR);
(iii)Section 85B of the Crimes Act 1914 (Cth) (Crimes Act); and
(iv)Section 93.2 of the Criminal Code Act 1995 (Cth) (Criminal Code),
and
(c) The Court’s inherent powers.
The material which Archives seeks to keep secret pending the determination of the appeal or until further order may be briefly described as follows:
(a)The Attorney-General’s public interest certificate and the attached confidential schedule.
(b)The disputed extracts themselves.
(c)The closed and confidential affidavit evidence and oral evidence led before the Tribunal.
(d)The closed and confidential submissions advanced to the Tribunal on behalf of Archives in closed session and recorded in security classified transcripts.
(e)Other security classified documents filed with the Tribunal.
(f)The closed and security classified Reasons for Decisions of the Tribunal given on
2 April 2014.
(g)Other documents filed and to be filed for the purposes of the hearing of the present proceeding which will inevitably canvass the material described in subpars
(a) to (f) above.
ARCHIVES’ ARGUMENTS
Archives filed a Written Submission on 27 June 2014 in support of its claim that the existing confidentiality orders should be continued. Senior Counsel for Archives also addressed the Court orally.
In its submissions, Archives submitted that:
(a)The effect of the interim confidentiality orders which it seeks is to ensure that the documents which the Tribunal confirmed were exempt from disclosure under s 33(1)(a) of the Act are not disclosed during the course of the present appeal;
(b)The orders will ensure that pending the determination of the appeal, the disputed extracts will not be disclosed. Those extracts are the very subject matter of the appeal; and
(c)The orders will not preclude the Court from giving full consideration to the issues raised in the appeal because the Court will have available to it all relevant material including secret and confidential material.
Archives made further submissions to which I now turn.
The public interest certificate issued by the Commonwealth Attorney-General on
23 January 2014 stated that disclosure of the documents specified therein and in the confidential schedule thereto would be contrary to the public interest because the disclosure of those documents would prejudice the security, defence or international relations of Australia. Given the terms of that certificate, subsection (2) of s 36 of the AAT Act applies (s 36(1)(a) of the AAT Act). Subsections (3), (3A) and (4) are not presently relevant. Section 36(2) requires the Tribunal to do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding in the Tribunal.
Section 46(1)(a) of the AAT Act requires that, where an appeal pursuant to s 44(1) of that Act is instituted in this Court, the Tribunal cause to be sent to this Court all documents that were before the Tribunal in connection with the proceeding to which the appeal relates.
Section 46(2) provides:
If there is in force in respect of any of the documents [which were before the Tribunal] a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia or the Federal Circuit Court of Australia shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding. However, this subsection does not prevent the Federal Court of Australia from causing the document to be sent to the Federal Circuit Court as mentioned in subparagraph (1)(c)(i).
Section 46(4) is in the following terms:
Nothing in this section prevents the disclosure of information or of matter contained in a document to an officer of the court in the course of the performance of his or her duties as an officer of the court.
Paragraph 3 of the Attorney-General’s public interest certificate addresses disclosure of:
…any evidence adduced or submissions made by or on behalf of [Archives] concerning the matters contained in the confidential affidavits of [Jim Hagan affirmed on 23 October 2013 and another person described in the confidential schedule to the certificate].
The word “concerning” as used in paragraph 3 of the public interest certificate should be given a broad meaning, namely: “regarding; touching; in reference or in relation to; about” (see Minister of State for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 at 289 for Mason CJ and Deane J).
In the present case, any evidence adduced or submissions made by or on behalf of Archives which canvass or refer to the material covered by the Attorney-General’s public interest certificate will almost certainly “concern” that material and thus be protected from disclosure by s 46(2) of the AAT Act. The interim orders give effect to this proposition but go no further than is necessary.
At paragraphs 23 to 46 of its Written Submissions, Archives directed detailed submissions to other sources of power which would underpin the orders sought and to the principles which guide the Court’s discretion in considering whether to exercise those powers and, if so, on what terms. I have referred to these other sources of power at [21] above.
Given that Dr Fernandes conceded that the Court had power to make the orders sought and confined himself to one argument based on s 46(4) of the Act and to various discretionary considerations, it is not necessary to address these additional submissions in detail.
DR FERNANDES’ ARGUMENTS
Dr Fernandes filed a Written Submission on 2 July 2014. Counsel for Dr Fernandes accepted that this Court has a number of express and implied powers which would enable it to make the interim confidentiality orders now sought to be continued by Archives.
It was contended on behalf of Dr Fernandes that, because his solicitor and Counsel were both “officers of the Court” in the sense in which that expression is generally understood in respect of lawyers who have been admitted to practice by a Court and whose right to practise is ultimately controlled by the admitting Court, his lawyers fell within the definition of “officer of the Court” in s 46(4) of the AAT Act and were thus in the classes of persons who were not prevented from having access to the documents which were protected by the Attorney-General’s public interest certificate.
Counsel for Dr Fernandes also submitted that the relevant materials could be provided to Dr Fernandes’ legal representatives “in secret” or on a confidential basis after those representatives had given appropriate undertakings.
Dr Fernandes also argued that the course proposed by Archives was contrary to s 39 of the AAT Act which provides that a party must be given a reasonable opportunity to present his or her case. He went on to say that if the orders remain in place, he will inevitably be denied procedural fairness in the conduct of his appeal.
It was also submitted on behalf of Dr Fernandes that the scope of the orders was too broad and allowed Archives to withhold from Dr Fernandes and his legal representatives documents that are in the public domain.
Counsel also suggested that another way of accommodating Dr Fernandes’ concerns would be for the Court to order Archives to provide Dr Fernandes with a summary of the arguments with which he has to deal. Reference was made to Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74 at 94-95 [99]-[100] which, it was said, supported such an approach.
DECISION
Given the terms of the Attorney-General’s public interest certificate dated 23 January 2014 and the basis upon which that certificate was issued, by reason of s 46(2) of the AAT Act, this Court is obliged to do all things necessary to ensure that the material protected by the public interest certificate is not disclosed to any person other than a member of the Full Court as constituted for the purpose of hearing and determining the present appeal. That obligation is qualified in two respects, namely:
(a)In the case of an appeal that is transferred to the Federal Circuit Court of Australia, s 46(2) does not operate so as to prevent this Court from causing the Tribunal’s documents to be sent to the Circuit Court; and
(b)Nothing in s 46(2) prevents the disclosure of information or of matter to an officer of the Court in the course of the performance of his or her duties as an officer of the Court.
It is a matter for this Court to determine the means by which it discharges its obligations under s 46(2) of the AAT Act in any given case. As a matter of principle, it should not restrict access to documents and information which has been or will be deployed to any greater extent than is necessary.
I am persuaded that, at this stage of the proceeding, the orders which I initially put in place on 6 June 2014 ought to be continued. I think that, at the moment, they are justified as being necessary in order for this Court to meet its statutory obligations under s 46(2) of the AAT Act. I agree with Archives’ submissions which I have summarised at [24]-[32] above. For these reasons, it is not necessary for me to consider whether the present orders ought to be continued upon the basis that any one or more of Part VAA of the FCA Act, r 2.32(3) of the FCR, s 85B of the Crimes Act or s 93.2 of the Criminal Code has been engaged in the circumstances of the present case.
It follows from what I have said at [43] above that I do not accept any of the submissions made on behalf of Dr Fernandes. My reasons may be shortly stated as follows:
(a)As a matter of statutory interpretation, paying due regard to the objects and purposes of s 36 and s 46 of the AAT Act, I do not think that the expression “officer of the Court” in s 46(2) means or includes any legal practitioner admitted to practice by an appropriate Court in Australia. Both the context in which the expression is used and the phrase which qualifies the expression (“…in the course of the performance of his or her duties as an officer of the court”) make clear, in my judgment, that the expression “officer of the Court” is meant to refer to public servants employed in the Court to assist the judges in the performance of their judicial function. The access to protected information which such persons enjoy must have both a logical and temporal connection with the performance of their duties as Court functionaries. Some indication of the true meaning of the expression is given by the terms of s 18N of the FCA Act which identifies a number of persons holding specific positions within the Court as “officers of the Court”. To include any lawyers who are performing functions which have some connection with some litigation in this Court within the class of persons who might have access to material protected by a public interest certificate in the terms of the relevant certificate in this case would be an absurd outcome and as a matter of statutory interpretation ought to be avoided.
(b)The general requirement laid down in s 39 of the AAT Act to the effect that the Tribunal would ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to prevent his or her case is, in terms, expressed to be subject to ss 35, 36 and 36B of the AAT Act. Each of those sections provides that certain material must not be disclosed. In some cases, (for example, if the Attorney-General has certified that disclosure would prejudice the security, defence or international relations of the Commonwealth), documents and information must be withheld even from a party to the Tribunal proceeding and from that party’s lawyers. That consequence is expressly contemplated by the AAT Act. Section 39 contains a general requirement which must give way to the specific exigencies specified in ss 35, 36 and 36B.
(c)There was no evidence before me that supported the notion that some of the material which is protected by the orders currently in place is in the public domain. Indeed, Archives led evidence which established that none of the material is in the public domain.
(d)Although the effect of the current orders is that the Court will have before it and will be entitled to take into account material about which Dr Fernandes and his legal team know nothing, this is the inevitable consequence of the operation s 46(2) of the AAT Act in the circumstances of this case. That section necessarily impinges upon and dilutes the ordinary rules as to procedural fairness. In some cases, it may go so far as to negate the effect of those rules altogether.
(e)I do not think that the scope of the current orders is too wide. As I have already held (at [43] above), I consider that the orders go no further than is necessary to give effect to s 46(2) in the circumstances of this case. Of course, should the Full Court take the view in due course, when more is known, that the orders are too broad, steps can be taken to recraft them in order to meet the Full Court’s better understanding of the facts and the confidentiality requirements dictated by s 46(2) of the AAT Act. Should such reconsideration become necessary or appropriate, other bases for making confidentiality and protection orders may come into play.
(f)Because s 46(2) is the principal source of the Court’s power now being exercised, there is no room in this case for a summary of the kind advocated by Dr Fernandes’ Counsel to be given to Dr Fernandes’ lawyers. Section 46(2) constitutes an absolute prohibition on disclosure subject to the two exceptions to which I have referred at [41] above.
CONCLUSION
For all of the above reasons, I propose to continue the present confidentiality and protective regime until further order of the Court. In this way, should it be appropriate to do so, the desirability of having that regime in place at any given point in time can be reviewed and reconsidered by the Full Court at its discretion.
Archives has agreed not to seek its costs of the appeal from Dr Fernandes. In those circumstances, it is appropriate that I make no order as to the costs of the application determined by these reasons.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 29 September 2014
ORDER
JUDGE:
Justice Foster DATE OF ORDER:
6 June 2014 WHERE MADE:
Sydney THE COURT ORDERS THAT:
Orders regarding the hearing
1.The appeal be listed for hearing before a Full Court in Canberra on a date to be fixed during the Full Court and Appellate Sitting period between 3 November 2014 and 28 November 2014.
2.The hearing be listed for an estimate of one (1) day.
Orders regarding confidentiality
3.Pursuant to rr 1.31 to 1.42 and rule 2.32(1)(b) of the Federal Court Rules 2011 (the Rules) the following documents are confidential (collectively referred to as ‘Security Classified Documents’) and, pending further order, shall not be published, disclosed, inspected or revealed by any person other than the persons named in Order 5 below and to the extent that such disclosure is necessary for the conduct of these proceedings and takes place in accordance with these orders:
(a)All documents and information which fall within the scope of the certificate (Public Interest Certificate) issued by the Attorney-General of the Commonwealth of Australia on 23 January 2014 pursuant to subs 36(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) including:
(i)The confidential schedule attached to the Public Interest Certificate;
(ii)The confidential affidavit affirmed in Tribunal Proceedings No 0407 and 0408 of 2013 (the Tribunal Proceedings) by Mr Jim Hagan, Deputy Director-General of the Office of National Assessments, dated 23 October 2013;
(iii)The confidential affidavit affirmed in the Tribunal Proceedings by a person referred to in the Notice of Appeal filed with this Court on 30 April 2014 as “X”, as referred to in the confidential schedule attached to the Public Interest Certificate, including annexures;
(iv)“Exhibit 9” tendered on behalf of the applicant on a confidential basis on 3 February 2014 in the Tribunal Proceedings;
(v)Any evidence adduced or submissions made by or on behalf of the applicant concerning the matters contained in the confidential affidavits mentioned in Orders 3(a)(ii) and 3(a)(iii) above, set out in the transcripts of the ‘closed session’ hearings of the Tribunal Proceedings at: pages 6–9; 43–74; 75–117 (N.B that there are two pages numbered 117); 156–161; 165–213; and 217–238.
(vi)The ‘SECRET’ closed Reasons for Decision of the Administrative Appeals Tribunal dated 2 April 2014 in the matter of Clinton Fernandes v National Archives of Australia [2014] AATA 180;
(b)The Draft Confidential Appeal Book Indexes and the complete Confidential Appeal Books (including complete Parts A, B and C) filed by the applicant for the purposes of this appeal;
(c)Any confidential submissions (including confidential submissions in reply), filed for the purposes of this appeal;
(d)Any other confidential document or confidential affidavit filed, tendered or read by or on behalf of the applicant for the purposes of this appeal;
(e)The transcript of proceedings of the Court in any closed session hearing in this appeal; and
(f)Any other document which:
(i)Bears a security classification; or
(ii)Refers to security classified material.
4.The applicant has leave to apply on short notice to have documents which are not specified in Order 3 above included as a Security Classified Document subject to Order 3 above.
Access to Security Classified Documents
5.Access to the Security Classified Documents shall be restricted to the following, known in these orders as ‘the Relevant Persons’:
(a)Members of the Court as constituted for the purposes of these proceedings;
(b)Officers of the Court in the course of the performance of their duties as officers of the Court and then only if they hold a security clearance of SECRET or above;
(c)The applicant;
(d)The applicant’s legal representatives (including Counsel);
(e)“X” and representatives of “X”;
(f)Any such persons as may be agreed in writing between the parties or with the prior leave of the Court (which shall only be given after the applicant has been heard on the question of whether such leave should be given) and upon terms agreed to by the parties or as ordered by the Court.
Orders regarding preparation of the ‘open’ appeal books and submissions
6.By 6 June 2014, the applicant submit to the Registrar:
(a)A draft index to Part A of the Appeal Book, so far as it relates to material that is not a Security Classified Document; and
(b)Part B of the Appeal Book, so far as it relates to material that is not a Security Classified Document,
(the ‘Draft Open Appeal Book Indexes’).
7.Not later than 4.00 pm, five (5) business days before the hearing of the application for continuation of these interim orders, the applicant file and serve on the respondent:
(a)A complete Part A of the Open Appeal Book; and
(b)A copy of Part B of the Open Appeal Book.
8.In accordance with Practice Note APP2, not later than 4.00 pm twenty (20) business days before the hearing of the appeal, the applicant file and serve on the respondent an Outline of Opening Submissions.
9.In accordance with Practice Note APP2, not later than 4.00 pm fifteen (15) business days before the hearing of the appeal, the respondent file and serve on the applicant an Outline of Submissions together with a list of materials required to be included in Part C of the Open Appeal Book.
10.In accordance with Practice Note APP2, not later than 4.00 pm ten (10) business days before the hearing of the appeal, the applicant file and serve on the respondent any Opening Submissions in Reply.
11.In accordance with Practice Note APP2, not later than 4.00 pm five (5) business days before the hearing of the appeal, the applicant:
(a)File four copies; and
(b)Serve on the respondent an appropriate number of copies,
of Part C of the Open Appeal Book.
Orders regarding the preparation of the 'closed' appeal books and submissions
12.By 13 June 2014, the applicant submit to Mr Tom Morgan (Deputy District Registrar) by safe hand:
(a) A confidential draft of a supplementary index to Part A of the Appeal Book referring only to the Security Classified Documents so far as this is required by the Rules; and
(b) A confidential draft of a supplementary Part B of the Appeal Book referring only to the Security Classified Documents so far as is required by the Rules,
(the ‘Draft Confidential Appeal Book Indexes’).
13.Upon notification by the Deputy District Registrar that the Draft Confidential Appeal Book Indexes are approved pursuant to r 33.24(3) of the Rules, the Deputy District Registrar shall, on the terms set out at Order 21 below, return the Draft Confidential Appeal Book Indexes to a person nominated by the Australian Government Solicitor.
14.Not later than 4.00 pm five (5) business days before the hearing of the application for continuation of these interim orders, the applicant provide to the Deputy District Registrar by safe hand, but not serve, the complete Part A and Part B of the Confidential Appeal Book.
15.Not later than 4.00 pm five (5) business days before the hearing of the appeal, the applicant provide to the Deputy District Registrar by safe hand, but not serve, Part C of the Confidential Appeal Book.
16.The applicant is not required to serve any part of the Confidential Appeal Book (complete Parts A, B and C) or any confidential submissions on the respondent or on any other person.
17.No person other than the Relevant Persons outlined in Order 5 above shall have access to the complete Confidential Appeal Book (complete Parts A, B and C) or to any confidential submissions.
Orders regarding 'open' and 'closed' submissions and list of authorities
18.Outlines of submissions must not exceed ten (10) pages in length, including any annexures, be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures, italics may be used for occasional emphasis.
19.Each party file and serve its list of authorities and legislation in accordance with Practice Note CM 2.
Storage and handling of the Security Classified Documents
20.The Relevant Persons shall handle the Security Classified Documents (or any part thereof) and any documents produced by any of the Relevant Persons that record or reveal the content of the Security Classified Documents, as follows:
(a) The Security Classified Documents (or any part thereof) shall be stored in a ‘B’ Class security container as defined in the Australian Government “Protective Security Policy Framework” when not in use for the purposes of the proceedings;
(b) The ‘B’ Class security container must be locked and kept in a room that is locked whenever the Relevant Person who has access to the Security Classified Documents is not present; and
(c) The Relevant Persons shall not disclose the contents of the Security Classified Documents (or any part thereof) to any person other than a person who is, by virtue of Order 5 above, permitted to see the document.
Transportation of the Security Classified Documents
21.When any Security Classified Documents (or part thereof) are transported (whether in hard copy or electronic form), they must be transported in a locked secure briefcase consistent with the Protective Security Policy Framework. During the course of the transportation, the secure briefcase is to remain at all times with a Relevant Person.
Use of the Security Classified Documents
22.The Relevant Persons shall not make any use of the Security Classified Documents (or any part thereof) or their contents other than for the purpose of these proceedings.
23.Any discussions about the contents of any of the Security Classified Documents (or any part thereof) shall be in person and in private. The Relevant Persons will not have any such discussions over any telecommunications device or by any electronic means and they shall ensure that any such discussions are not observed or overheard by any other person.
24.The Relevant Persons will not make any copies of the Security Classified Documents (or part thereof).
25.Subject to any order of the Court, if copies of the Security Classified Documents (or any part thereof) are required:
(a) Written notice must be given to the Australian Government Solicitor specifying the number of copies that are required, and the full names of all persons to whom such copies are to be provided; and
(b) The Australian Government Solicitor must comply with any reasonable request for copies, and must provide the requested copies (each of which must be numbered) within a reasonable time of the receipt of the request, to the persons specified in the notice, subject to those persons being a Relevant Person for the purposes of Order 5 above.
Record of the content of the Security Classified Documents ~
26.The Relevant Persons will not record (in hard copy, electronic or any other form) any information contained in the Security Classified Documents other than for the purposes of these proceedings.
27.Any record of the information contained in the Security Classified Documents made by the Relevant Persons:
(a) Must be marked with a SECRET classification;
(b) Must not be made in any electronic device other than the laptops and computers referred to in Order 29 below; and
(c) Must be stored in a ‘B’ Class security container at all times when they are not in use (meaning that, if such notes are made on a computer or laptop, the computer or laptop, or the hard-drive of the computer, must be stored in the safe when it is not in use).
28.When any record of the information that is contained in the Security Classified Documents is transported (whether in hard copy or electronic or other form, including for the avoidance of doubt when contained on a laptop computer), they must be transported in accordance with Order 21 above.
Computers and electronic devices
29.Only those laptops, computers and other electronic devices which are approved by the Australian Signals Directorate for use with security classified material may be used by the Relevant Persons to record the information that is contained in the Security Classified Documents and then only for the purposes of these proceedings.
Closed court hearings
30.Any person who intends to make any reference to the content of the Security Classified Documents in Court must inform the Court before any such use or reference is made so as to enable the Court to be held in closed session, and must not make any reference to the content of that document until the Court is in closed session.
31.Only the following persons may be present in Court when the Court hears the appeal in closed session:
(a) Those persons identified in Order 5 above;
(b) Those persons who have a security clearance of SECRET or above and have the consent of the legal representatives of the applicant; and
(c) A transcription official with a security clearance of SECRET or above.
32.Subject to further order, there shall be no publication of:
(a) Any evidence given or any submissions made, when the Court is in closed session;
(b) The content of any documents tendered or referred to when the Court is in closed session; or
(c) The transcript of the proceedings of the appeal when the Court is in closed session (other than publication of such transcript to the Court and the Australian Government Solicitor), subject to compliance with Orders 34–38 inclusive below.
33.All notes taken by any person, including for the avoidance of doubt any court official or transcription official, during any period in which the Court is in closed session (whether handwritten or electronic or any other form) must:
(a) Be marked and treated as classified SECRET;
(b) Be stored in a ‘B’ Class security container at all times when they are not in use; and
(c) Otherwise treated as a Security Classified Document in accordance with the terms of these Orders.
Closed Court Transcript
34.Transcript of proceedings when the Court is in closed session in accordance with these Orders must be marked by the transcription service providers as classified SECRET, handled as a Security Classified Document pursuant to the terms of these Orders and be available for collection by the legal representatives of the applicant and the Court from the transcription service in hard copy form.
35.Any Relevant Person who has access to the closed Court transcript, electronically or otherwise, must not send by electronic means the closed Court transcript to any person or any internet site.
36.Within seven (7) business days of a day in which the Court is in closed session, or such further time as the Court allows, the applicant's legal representative will notify the Court of any redactions to the transcript that it considers necessary to enable the transcript to be kept on the Court file.
37.Within fourteen (14) days, the Court will:
(a) Determine that the redactions ought to be made and, if so, make the transcript publicly available in its edited form; or
(b) Determine that the redactions ought not be made and, if so, set a time at which it will hear arguments concerning the appropriateness of the proposed redactions;
(c) Release the transcript to the Court file within seven (7) business days of ruling upon the above arguments at Order 37(b) above.
38.The Court will store the transcript of proceeding when the Court is in closed session (other than a transcript in the form on the Court file) in accordance with these Orders.
Confidential affidavits and documents
39.No affidavit marked as a confidential affidavit that is provided to the Court shall be disclosed to any person other than the Relevant Persons.
40.Subject to any order of the Court, all confidential affidavits will be either:
(a) Stored in accordance with Order 20 above and otherwise treated as a Security Classified Document in accordance with the terms of these Orders;
(b) Returned to the deponent of the confidential affidavit at the conclusion of the hearing in which the affidavit is read; or
(c) Otherwise handled in accordance with the requirements specified in the affidavit.
41.Any person who tenders a document which discloses the content of the Security Classified Documents must tender that document as a confidential document. The Court will store all admitted confidential documents in accordance with the requirements of Order 20 above and otherwise treat the document as a Security Classified Document in accordance with the terms of these Orders.
Return and destruction of the Security Classified Documents and other records
42.Any person who has in their possession, custody or control:
(a) The Security Classified Documents (or parts thereof);
(b) Submissions, notes or other documents (whether in hard copy or electronic form), or copies thereof, which record or reveal any part of the content of the Security Classified Documents;
(c) Confidential affidavits read or confidential documents tendered during the hearing of the appeal;
(d) Notes taken during the closed Court hearing of this appeal;
(e) Any computer, laptop or hard drive on which any of the documents described in (a)–(d) above is or has been stored,
must provide those documents and computers and laptops (if any) to the Australian Government Solicitor so that it can arrange for its destruction or sanitation, within 28 days of notification by the Australian Government Solicitor.
Publishing of any open judgment
43.Prior to publishing any ‘open’ (not closed and confidential) judgment, the Court will, by safe hand and in accordance with the transportation requirements of Security Classified Documents as described in these Orders, provide an advance copy of the open judgment to a person nominated by the Australian Government Solicitor.
44.Within seven (7) business days thereafter, the applicant’s legal representatives will advise the Court whether any of the information disclosed in the open judgment reveals the content of the Security Classified Documents or other confidential matters referred to during the course of the hearing in closed session.
45.If the Court determines to reject the advice of the applicant’s legal representatives, the Court will set a time at which it will hear arguments concerning the information contained in the open judgment.
46.The Court will store any confidential judgment or parts thereof in accordance with the requirements of Order 20 above and otherwise treat the judgment as a Security Classified Document in accordance with the terms of these Orders.
Orders regarding the hearing of the application for continuation of these interim orders
47.By 20 June 2014, the applicant file and serve any additional affidavit evidence in support of continuation of these interim Orders.
48.By 27 June 2014, the applicant file and serve any submissions in support of continuation of these interim Orders.
49.By 5.00 pm on 1 July 2014, the respondent file and serve any submissions regarding the continuation of these interim Orders.
50.The application in support of continuation of these interim orders be listed for hearing for two hours at 9.30 am on 3 July 2014 before Foster J in Sydney.
Other orders
51.Any application made under r 2.32(4) of the Rules for leave to inspect a document on the Court file shall not be determined without notice to the applicant.
52.Any of the Responsible Persons who become aware of non-compliance with these Orders must bring such non-compliance to the attention of the Australian Government Solicitor and the Court.
53.For the avoidance of doubt, these Orders continue to apply, according to their terms, after the conclusion of the hearing of the appeal.
54.The parties have liberty to apply on three (3) days’ notice or on such shorter notice as a Judge might allow.
Date that entry is stamped:
Deputy District Registrar
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