R v Benbrika & Ors

[2007] VSC 141

IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN

v

ABDUL NACER BENBRIKA, IZZYDEEN ATIK, AMER HADDARA, AIMEN JOUD, SHANE KENT, ABDULLAH MERHI, AHMED RAAD, EZZIT RAAD, FADAL SAYADI, HANY TAHA, SHOUE HAMMOUD, MAJED RAAD and BASSAM RAAD

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2007
DATE OF RULING:	21 March 2007
CASE MAY BE CITED AS:	R v Benbrika & Ors (Ruling 1)
MEDIUM NEUTRAL CITATION:	[2007] VSC 141

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COURTS – Protective orders – National Security – Criminal trial – Principles of open
justice – Closed court – Suppression of publication – Crimes Act 1914 (Cth), Criminal Code Act 1995 (Cth), National Security Information ( Criminal and Civil Proceedings) Act 2004.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Maidment SC with Mr N. Robinson, Mr D. Lane and Ms L. Taylor	Commonwealth DPP
For the Commonwealth Attorney General	Dr S. Donaghue	Australian  Government Solicitor
For the accused Messrs Haddara, Kent, Merhi, Taha, Sayadi, Ahmed Raad, Ezzit Raad, Majed Raad, Bassam Raad	Mr R. Merkel QC	Robert Stary & Associates
For the accused Mr Benbrika	Mr R. Van de Wiel QC with Mr A. Halpen	Doogue & O’Brien
For the accused Mr Atik	Mr M.G. O’Connell	Galbally & O’Bryan
For the accused Mr Hammoud	Mr D. Brustman	VLA
For the accused Mr Joud	Mr T.E. Wraight	Lethbridge & Associates
For media interests ( The Age Company Ltd, The Herald & Weekly Times Ltd, Nationwide News Ltd and Australian Broadcasting Corporation)	Mr P. Morrissey	Minter Ellison lawyers

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HIS HONOUR:

1. Abdul Nacer Benbrika, Izzydeen Atik, Amer Haddara, Aimen Joud, Shane Kent, Abdullah Merhi, Ahmed Raad, Ezzit Raad, Fadal Sayadi, Hany Taha, Shoue Hammoud, Majed Raad and Bassam Raad have been indicted by the Commonwealth Director of Public Prosecutions before this Court on a number of counts alleging offences contrary to the Commonwealth Criminal Code. All of the alleged offences concern terrorism as that term is generally understood.  All of the accused have pleaded not guilty to all counts.  At present one trial of all the accused is contemplated.

1. As might be expected, some of the evidence to be addressed on the trial of this proceeding may consist of documents in respect of which security agencies of the Commonwealth, Australian Federal Police,  Victoria Police, the federal Attorney-General and others entertain concerns as to national security.  Those documents will need to be handled by counsel and solicitors for the accused and perhaps by the accused themselves. Also, there may be oral evidence given by officers of the Commonwealth or other agencies which itself raises concerns as to security and there may be circumstances where the identity of witnesses may raise other security issues.

1. To address these issues and others which may arise by virtue of the National Security Information (Criminal and Civil Proceedings) Act2004 (“NSI Act”) of the Commonwealth, the federal Attorney-General has proffered a series of orders which he submits ought to be made by the Court to ensure that the national interest is adequately protected with respect to the matters referred to.

1. The orders now submitted are a final draft of earlier versions which had their genesis in orders made by the magistrate upon the accused's committal proceeding at the Melbourne Magistrates' Court.  The earlier versions, although consented to by all of the accused, were regarded by the Court as unsatisfactory in a number of respects which need not now be canvassed.  They are no longer relevant.

1. The draft orders now under consideration are also consented to by all of the accused except as to one minor matter.  They are also consented to by the Director of Public Prosecutions.  They are however contested by counsel who, by leave, appeared for all the major press organisations in this State and beyond.

1. The draft orders submitted by the Commonwealth Attorney-General cover a number of different topics.  They deal with the confidentiality, access to copying, storage, transportation, destruction and declassification of security classified documents.  They then deal with the procedure for the protection of information that relates to or may affect national security in the context of the National Security Information Act. Some of the orders are concerned with the security of sensitive information in the course of the trial itself by providing for closed court hearings where considered necessary by the Court to achieve the purpose for which the orders are made, namely the protection of national security. This part of the orders also provides for the security of transcript generated as a consequence of hearings in camera about which I shall say more in a moment.  Finally, the orders deal with the protection and return of Commonwealth property, such as computer equipment, provided to defence lawyers to enable them to access information stored electronically.

1. Most importantly all of these proposed orders are subject to variation, including revocation, at any time by the Court. Thus, the whole  process remains under the control of the Court at all times.  This is probably the most important aspect of these orders as it makes clear that the Court can vary or even revoke the orders if they lead to unintended consequences which have an unacceptable effect on principles of a fair trial or open justice.

1. In support of the orders the Attorney-General relied upon an affidavit of Robert Cornall, the Secretary of his Department who deposed, in general terms, to the nature of the material which may be expected to be adduced in evidence upon this trial.  He explained the operation of the Australian Government Protective Security Manual and the marking of documents in accordance with it.  He expressed concern as to the harm to national security which could be caused by the disclosure in a public court hearing of information contained in security classified documents.  He also offered opinions as to the benefit to the Court and the accused should the orders be made, in terms of a smooth running of the trial.

1. Although Mr Merkel of Queen's Counsel for most of the accused had opposed the making of an earlier version of these orders, by the time the matter returned to court he and Dr Donaghue for the Attorney‑General had agreed that the version of the orders dated 1 March 2007 might be made by consent, subject only to an unresolved question concerning access to transcript of closed court hearings.

1. The draft orders concerned with this topic, that is orders 34 and 35, prescribe a regime for dissemination of transcript to the lawyers for each of the accused which involves the Commonwealth Director of Public Prosecutions rather than the transcript provider directly.  Mr Merkel submitted that this procedure had the capacity to create the perception that the DPP could control the transcript and its distribution, which perception would be undesirable.

1. Unfortunately the Victorian Government Reporting Service, the transcript provider, was not represented at the hearing on 1 March so that the resource implications of any alternative to the Attorney-General's proposal could not be explored.  Since 1 March, however, the Court has had a communication from VGRS which suggests an alternative to Orders 34 and 35.  That alternative has not been considered by any of the parties yet although it appears to me that it might provide a convenient solution to Mr Merkel's objection.  Accordingly I propose to delete Orders 34 and 35 from the orders I will make, replacing each with the word "Reserved". A memorandum from VGRS dated 5 March 2007 to the Chief Executive Officer of this Court will be distributed with a view to the Attorney-General and the parties considering the proposal contained in it and reaching agreement as to substitute orders for those currently numbered 34 and 35.

1. I turn to the submission of the Press.  Mr Morrissey of Senior Counsel sought leave, which was granted, to represent the major press organisations of this city to put submissions as to these proposed orders.  This he did. 

1. Mr Morrissey’s principal submission was that the National Security Information Act did not authorise the Court to make in camera and non-publication orders.  The NSI Act deals with disclosure not with publication, his submission went.  He expanded this submission both in his well presented and logically expositive written outline and orally.  It was part of his argument to concede that the Court had power to make these orders under other legislation and if it was to make them it should do so under that legislation and not under the NSI Act.

1. In R v Lodhi,[1] the Court of Criminal Appeal of New South Wales considered orders made by Whealy J at trial in similar form to those under consideration here. His Honour was there concerned with offences not dissimilar to those with which the accused in this case are arraigned and was no doubt faced with similar arguments from the Federal Attorney-General as I must now deal with. In upholding Whealy J's orders, the Court of Criminal Appeal extensively reviewed the concept of open justice and a fair trial, their centrality to the operation of the criminal justice system and the need to guard against their erosion. The Court was not concerned, however, with an argument as to whether s 22 of the NSI Act could be invoked to justify such orders. Whealy J had grounded them in s 85B of the Crimes Act1914 (Cth) and/or s 93.2 of the Criminal Code Act1995 (Cth). The Court of Criminal Appeal confirmed the jurisdiction to make what it termed "protective orders" conferred by these provisions.

   [1](2006) 65 NSWLR 573.

1. The exercise of the power conferred by s 85B and s 93.2 compels a court to decide whether the relevant interest of the security of the Commonwealth is present and, after considering the principle of open justice and the object of a fair trial for the accused, determine whether, balancing all of these matters, protective orders ought to be made. This decision is, in the circumstances, effectively binding on this court.[2]  

   [2]See R v Parsons (1983) 2 VR 499, R v Abbrederis [1981] 1 NSWLR 530, Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485.

1. Even if it were not, as the judgment of McLellan CJ at CL so comprehensively expounds the legal principles applicable to the situation of a court faced with the situation this Court now faces, it compels a like result.  Accordingly, there is no need for this Court definitively to rule upon Mr Morrissey's interesting submission.  The orders sought can be made relying upon the same legislative provisions as Whealy J did in Lodhi and/or upon the inherent jurisdiction of this Court to ensure that the principles expounded by McLellan CJ at CL are faithfully adhered to.[3]

   [3]See also the judgment of Brooking J in Re a former officer of theAustralian Security Intelligence Organisation (1987) VR 875.

1. The balancing exercise referred to by the Court of Criminal Appeal requires this Court to consider the evidence of Mr Cornall and weigh the importance of the matters to which he deposes against the principle of open justice.  On the information available to the Court at this time that exercise favours the making of the orders.

1. A perusal of the material likely to be adduced in evidence suggests that the occasion for invoking these orders will probably be rare, at least in their more extreme forms.  The Court will maintain its vigilance to ensure they are never unreasonably or unnecessarily applied and of course the press interests can always seek to be heard on any occasion on which they are sought to be invoked.

1. The Court will make orders in the form submitted by the Attorney-General save for orders 34 and 35 which will be reserved.  The parties including the Attorney-General will have leave to submit consent orders in substitution for orders 34 and 35 as and when they may be advised. The orders made now are as follows: -

Publication, storage, access and handling of Security Classified Documents

1.Notwithstanding these Orders, any party may apply to the Court on notice at any time for such further or additional orders, including orders varying these Orders, as the Court deems appropriate.

Confidentiality of Security Classified Documents

2.Subject to these Orders, a Relevant Person, being any person who:

(a)is aware of these Orders; and

(b)in the course of these proceedings:

(i)receives a document that has a current security classification marked on it (‘Restricted’, ‘Confidential’, ‘Secret’ or ‘Top Secret’);

(ii)makes or receives a document which by these Orders must be treated as a Security Classified Document;

must not publish, disclose or otherwise reveal any part of the content of such a document (hereafter referred to as a ‘Security Classified Document’) to any other person, unless such disclosure is made in the course of the proceedings or is authorised in writing by the Australian Government Solicitor (hereafter referred to as ‘AGS’).

3.Subject to Order 0, if AGS advises a Relevant Person in writing that a document contains information that justifies its being classified as ‘Restricted’, ‘Confidential’, ‘Secret’ or ‘Top Secret’, the Relevant Person must thereafter treat that document as a Security Classified Document for the purpose of these Orders, whether AGS provides that advice before or after the person first received the document.

4.      Notwithstanding anything contained in these Orders:

(a)a Relevant Person may, after giving notice to the Commonwealth Attorney-General, apply to the Court for an order that a Security Classified Document should no longer be classified as a Security Classified Document for the purposes of these Orders; and

(b)the Court may order that the document no longer be required to be treated as a Security Classified Document from the date specified in the order.

Access to Security Classified Documents

5.Subject to these Orders, a Relevant Person may disclose Security Classified Documents to the following persons (Defence Representatives):

(a)Senior Counsel for the defendants (if any);

(b)Junior Counsel for the defendants;

(c)instructing solicitor or solicitors for the defendants; and

(d)any other person whom such counsel or solicitors believes ought to have access to Security Classified Documents for the purposes of these proceedings, and who has been approved under Orders 0 or 9 to have access to Security Classified Documents.

For the avoidance of doubt, Defence Representatives are ‘Relevant Persons’ for the purpose of these Orders.

6.A Defence Representative who wishes to obtain access to any Security Classified Document must first, either directly or through his or her instructing solicitors:

(a)advise AGS of the following details:

(i)full name;

(ii)date and place of birth; and

(iii)in relation to the persons referred to in Order 0(d), their position and the reason why it is appropriate for that person to have access to the Security Classified Document or documents as the case may be; and

(b)provide AGS with a signed document in which the Defence Representative acknowledges the existence of these Orders and that he or she is bound to observe them.

7.An officer of the AGS may use the information provided pursuant to Order 6 only for the purposes of Order 0 and such information, and any information provided to AGS pursuant to Order 0 below, is not to be disclosed by any officers of the AGS to the Commonwealth Director of Public Prosecutions or its officers or to any other government agency or its officers other than the Australian Security Intelligence Organisation, whose officers are not to disclose the information save and except in response to any enquiry by the AGS.

8.The AGS must use reasonable endeavours to respond to a request for access to Security Classified Documents in relation to a person referred to in Order 0(d) within two working days of receipt of the request, provided that the request includes the information and documents specified in Order 0.

9.In the event that the AGS does not respond to a request within five working days, or does not approve the request, a Defence Representative may apply to the Court for the approval of the Court to disclose a Security Classified Document to the person the subject of the request.

10.Subject to any order of the Court, notice of an application under Order 9 need only be given to AGS.

Access to Security Classified Documents by defendants

11.The provisions of Orders 0 and 0, and not Orders 0 to 0, apply in respect of Security Classified Documents that are to be provided by a Defence Representative to a defendant.

12.A Defence Representative may allow a defendant for whom that person acts to inspect a Security Classified Document if, and only if:

(a)the Defence Representative believes that it is appropriate to allow the defendant to inspect the Security Classified Document for the purpose of the conduct of the proceeding;

(b)the Defence Representative is present at all times during which the defendant inspects the Security Classified Document; and

(c)prior to the Defence Representative allowing a defendant to inspect any Security Classified Document, a solicitor acting for that defendant has signed a document acknowledging that the solicitor has explained the content and effect of the Orders to the relevant defendant, and that signed document has been provided to AGS.

13.A Defence Representative must recover any Security Classified Document that is inspected by a defendant as soon as is practicable, and in any event prior to the Defence Representative leaving the presence of the defendant.

14.Any prison officer given access to Security Classified Documents for the purposes of conveying such documents to a defendant under these Orders shall convey such documents without reading their content.

Copying Security Classified Documents

15.With the exception of documents of the kind described in Order 0 below, a Defence Representative must not copy any Security Classified Document. 

16.     Subject to Orders 0 and 0:

(a)If a Defence Representative requires a copy of a Security Classified Document referred to in Order 0(a) or (b):

(i)the Defence Representative must give written notice to the Commonwealth Director of Public Prosecutions (CDPP) specifying the number of copies that are required and at the same time advise AGS of the full names of the persons to whom such copies are to be provided; and

(ii)the CDPP 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 Defence Representatives who gave the notice.

(b)If a Defence Representative requires a copy of a Security Classified Document referred to in Order 0(c):

(i)the Defence Representative must give written notice to AGS specifying the number of copies that are required, and the full names of all persons to whom such copies are to be provided; and

(ii)AGS 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.

Storage and Transportation of Security Classified Documents

17.     Relevant Persons must:

(a)store all Security Classified Documents (including any copies thereof) that are in their possession, custody or control in a safe rated ‘class B’ or higher; and

(b)lock the safe whenever the Relevant Person is not present, and lock the room in which the safe is located whenever that room is unoccupied..

18.A Relevant Person who prepares, makes, creates or copies (whether in hard copy or electronic form) any submissions, notes or other documents that record or reveal any part of the contents of a Security Classified Document must mark the submissions, notes or other documents with the same classification as the most highly classified Security Classified Document to which the submissions, notes or documents relate, and must thereafter treat those submissions, notes or other documents as being a Security Classified Document.

19.     Defence Representatives:

(a)must not make a Security Classified Document on, or load or copy a Security Classified Document onto, any computer hard drive or electronic storage device (other than an item of Commonwealth Property referred to in Order 0 below) unless that Relevant Person has first provided the AGS with their written consent for the computer hard drive or electronic storage device to be destroyed in accordance with Order 0 below;

(b)must not make a Security Classified Document on, or load or copy a Security Classified Document onto, any computer that is connected to, or that can be connected to (whether by physical or wireless means), the internet or any local area network; and

(c)must store in accordance with Order 0 any Security Classified Document that is made on, or loaded onto a computer at all times when it is not in use (meaning that, if submissions, notes or other documents that record or reveal any part of the contents of a Security Classified Document are made on a computer, that computer, or the hard-drive of the computer, must be stored in the safe when the computer is not in use).

20.     A Relevant Person who wishes to move:

(a)any Security Classified Document (including any copies thereof); or

(b)the portions of any submissions, notes, transcripts or other documents that are required by these orders to be treated as Security Classified Document;

from one place to another must transport the document or documents in a locked secure brief case of the type provided by the Commonwealth pursuant to Order 0 that must remain in the physical possession of the Relevant Person at all times (except during any relevant security screening processes).

The destruction of Security Classified Documents

21.A Defence Representative who has in his or her possession, custody or control:

(a)Security Classified Documents (including 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 Security Classified Documents); or

(b)transcripts of closed court hearings (other than transcripts publicly released by the Court) or notes taken during any closed court hearing; or

(c)computer hard drives or electronic storage devices that have at any stage contained Security Classified Documents (regardless of whether the Security Classified Documents have since been deleted);

must provide those documents, hard drives or electronic storage devices to AGS so that AGS can arrange for the destruction of the documents, hard drives or electronic storage devices (which, if the person who provides the documents, hard drives or electronic storage devices so desires, can take place at a time and place arranged between that person and AGS so that the person can witness their immediate destruction), within 28 days of the earlier of:

(i)the conclusion of the criminal proceedings (including any or all appeals); or

(ii)the person ceasing to act in the proceeding (unless the documents, hard drives or electronic storage devices are provided to another lawyer who has commenced to act in the proceeding and who has complied with Order 0.

The declassification of Security Classified Documents

22.Subject to later notification under Order 0, a Relevant Person who is notified in writing by AGS or by an agency that created a document or group of documents that:

(a)the classification with which a document or group of documents is marked no longer applies to the document or group of documents; and

(b)none of the other classifications referred to in Order 2 apply to the document or group of documents;

may, from the date of that notification, use and store the document or group of documents without any requirement to comply with any of the above Orders.

Register of Security Classified Documents

23.Without limiting any other Order, AGS must use reasonable endeavours to provide the solicitors for each defendant with a list that identifies all of the Security Classified Documents that, to the knowledge of AGS, are in the possession of the legal representatives of that defendant.  That list, which AGS must reasonably endeavour to provide within 14 days of any provision of a Security Classified Document to the legal representatives of a defendant, must record:

(a)the name of the person who is responsible for each Security Classified Document (being the person to whom the document was provided, or to whom responsibility for the document has been transferred in accordance with these Orders); and

(b)the date on which the Security Classified Document was provided.

24.A Defence Representative must, on request of CDPP, AGS or the Australian Federal Police, sign a document that records the provision to him or her of a Security Classified Document.

25.A Defence Representative who is responsible for a Security Classified Document must not transfer responsibility for that document to any other person, unless the document is transferred to another Defence Representative in circumstances where:

(a)the Defence Representative to whom responsibility for the document is transferred is a person who is entitled to access Security Classified Documents in accordance with Orders 0 and 0; and

(b)within 7 days of any transfer of responsibility for a document, the Defence Representative to whom the document is transferred provides AGS with a form, recording the transfer, signed by that Defence Representative;

The AGS must then provide the solicitors for the relevant defendant with an updated list of the Security Classified Documents in the possession of the legal representatives of that defendant.

Permitted disclosures

26.Subject to these Orders, the CDPP, the defendants, and the legal representatives of the CDPP and defendants, are not required to serve notices under s 24 of the NSI Act, or to advise the Court under s 25 of the NSI Act, in relation to any information that relates to or may affect national security that is:

(a)contained in the brief of evidence served on the defendants, or that arises directly from material in the brief;

(b)contained in any document that is produced to the defendants pursuant to any prosecutorial disclosure obligation [including the brief of evidence in relation to committal proceedings against the defendants K Cheikho, M Cheikho, Sharrouf, Mulahalilovic, Elomar, Baladjam, Hasan, Jamal and Touma];

(c)contained in any document that is required to be both produced to the Court pursuant to any witness summons or subpoena issued in this proceeding, and is then required to be disclosed to a party.

27.The CDPP, the defendants, and the legal representatives of the CDPP and defendants, are not required to serve notices under s 24 of the NSI Act, or to advise the Court under s 25 of the NSI Act, in relation to any information that relates to or may affect national security that is covered by a certificate or advice issued by the Commonwealth Attorney-General under s 26(7) of the NSI Act.

Closed court hearings relating to Security Classified Documents

28.Subject to further order (and after notice is given to the Commonwealth Attorney-General), a Relevant Person who intends to make any reference in Court to the content of a Security Classified Document when:

(a)asking any question of any witness (whether in examination or cross-examination); or

(b)making any submission;

must inform the Court before any such reference is made so that the Court can be closed.  A Relevant Person must not make any reference to the content of a Security Classified Document until the Court is closed, unless the Court has ordered that the matter proceed in open court.

29.     Subject to further order, only persons:

(a)listed in s 29(2) of the NSI Act; or

(b)who are employed as court security officers and who hold appropriate security clearances;

(c)who have a security clearance to the relevant level and who have the consent of a legal representative of the Commonwealth Attorney-General to be present (subject to the legal representative of the Commonwealth Attorney-General identifying to the Court the positions held by such persons within the Commonwealth Government);

may be present when the Court is closed pursuant to these Orders.

30.     (a)       A Relevant Person who tenders a Security Classified Document must in the first instance apply to tender that document as a confidential exhibit (being an exhibit that may be inspected only by the Court, the parties, the legal representatives of the parties, and the jury).

(b)If the Court agrees to receive a document as a confidential exhibit, the Associate to the trial judge must store the document in accordance with the requirements of Order 0 above.

(c)These Orders do not fetter the Court’s discretion to accept the tender, but not as a confidential exhibit, in which event the exhibit may be so tendered by a Relevant Person.

31.Subject to further order, a Relevant Person shall not publish to any person, other than another Relevant Person entitled by reason of these Orders to have access to the particular evidence, submission, Security Classified Documents or closed court transcript (as the case may be):

(a)any evidence given, or any submission made, when the Court is closed pursuant to these Orders;

(b)the content of any Security Classified Document; or

(c)transcript of the proceedings in the Court when it is closed pursuant to these Orders, unless the Court specifically orders that the transcript may be released in either its original or in an edited form.

32.Subject to further order (including orders relating to specific documents), a Relevant Person may tender documents (including Security Classified Documents) notwithstanding that those documents are copy documents parts of which have been redacted or obscured by the person or agency that provided the documents in order to give effect to:

(a)claims of public interest immunity;

(b)claims of legal professional privilege; or

(c)relevance objections.

33.A Relevant Person who takes any notes (whether handwritten or electronic) during any period in which the Court is closed pursuant to these Orders:

(a)must clearly mark the top of each page of the document in which those notes are contained with the word ‘Secret’;

(b)must treat those notes for all purposes as ‘Security Classified Documents’ for the purpose of these Orders;

(c)must not make the notes on, or load or copy the notes onto, any computer hard drive or electronic storage device (other than an item of Commonwealth Property referred to in Order 0 below) unless that Relevant Person has first provided the AGS with their written consent for the computer hard drive or electronic storage device to be destroyed in accordance with Order 0.

(d)must not make the notes on, or load or copy the notes onto, any computer that is connected to, or that can be connected to (whether by physical or wireless means), the internet or any local area network; and

(e)must store the notes in a locked safe rated ‘class B’ or higher at all times when they are not in use (meaning that, if such notes are made on a computer, the computer, or the hard-drive of the computer, must be stored in the safe when the computer is not in use).

34.     Reserved.

35.     Reserved.

36.     Subject to further order:

(a)the Commonwealth and Victoria Police must notify the Court of any redactions to the closed court transcript that they consider necessary to enable the transcript to be produced in an unclassified form suitable for public release within 5 working days of receiving a copy of the transcript, or within such further time as the Court allows;

(b)the Court will, prior to any public release of that transcript, rule upon whether any redactions to the closed court transcript should be made;

and any restrictions on publishing or disclosing transcript in these Orders shall not apply to such parts of the closed court transcript as are released in accordance with this Order once the Court has ordered that those parts of the transcript be released to the public.

37.A Defence Representative who has access to closed court transcript must not:

(a)send the closed court transcript by electronic means to any person or any internet site; or

(b)load the closed court transcript onto any computer unless:

(i)the computer hard drive or electronic storage device is an item of Commonwealth Property referred to in Order 0 below, or the Relevant Person has first provided AGS with their written consent for the computer hard drive or electronic storage device to be destroyed in accordance with Order 0;

(ii)the computer cannot be connected to (whether by physical or wireless means), the internet or any local area network; and

(iii)the computer, or the hard-drive of the computer, is stored in a locked safe rated ‘class B’ or higher whenever it is not in use.

Orders in substitution for previous undertakings and orders

38.These Orders are in substitution for any written undertakings previously given in respect of any documents by any Defence Representative, and from the date these Orders are made those undertakings are discharged.

39.Subject to Order 0, Relevant Persons are required, from the date of these Orders, to use, store and handle all Security Classified Documents that have been provided to them pursuant to any earlier orders in accordance with these Orders, and not in accordance with any earlier orders.

40.From the date of these Orders the orders made during the committal proceeding in this matter pursuant to s 22 of the NSI Act are discharged, save that the following orders continue in force as orders of this Court unless and until they are varied or discharged by a further order of this Court (such order to be made only after notice has been given to the Commonwealth Attorney-General):

(a)Orders 8, 9, 14 and 15 of the Orders made by Magistrate Smith on 17 May 2006; and

(b)Order 11 of the Orders made by Magistrate Smith on 21 July 2006.

Commonwealth Property

41.The Commonwealth of Australia (through the Protective Security Coordination Centre of the Commonwealth Attorney-General’s Department) has provided the Defence Representatives with the computers, printers, safes and secure briefcases (Commonwealth Property) necessary to comply with these Orders.  Within 14 days of:

(a)a Defence Representative receiving any Commonwealth Property; or

(b)the date of these Orders (whichever is later);

AGS must provide the solicitors for the relevant defendant with a list of the Commonwealth Property in the possession of the legal representatives of that defendant.  The list must record:

(c)the name of the Defence Representative who is responsible for each item of Commonwealth Property;

(d)the date on which each item of Commonwealth Property was provided; and

(e)the serial numbers of any printers and computers.

42.A Defence Representative who is responsible for any item of Commonwealth Property must not give, loan or otherwise transfer that property to any other person without the prior written consent of AGS.

43.A Defence Representative must return all Commonwealth Property for which that person is responsible to the Commonwealth, or to AGS, within 28 days of the earlier of:

(a)the conclusion of the criminal proceedings (including any or all appeals); or

(b)the Defence Representative ceasing to act in the proceeding (unless, subject to Order 0, the Commonwealth Property is provided to a successor who, prior to receiving the Commonwealth Property, has commenced to act in the proceeding and who has complied with Order 0).

Orders Continue

44.For the avoidance of doubt, these Orders continue to apply, according to their terms, after the conclusion of the criminal proceedings.

45.Liberty to apply to all parties which, other than in a case of urgency, may be exercised only on 4 days written notice to AGS and any affected party.

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