R v Collaery
[2019] ACTSC 278
•9 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Collaery |
Citation: | [2019] ACTSC 278 |
Hearing Date: | 2 and 9 October 2019 |
DecisionDate: | 9 October 2019 |
Before: | Mossop J |
Decision: | See [16] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Dealing with sensitive national security information – request for orders by consent – orders by consent intrusive on autonomy of the court – request for court staff to enter into arrangements with Australian Secret Intelligence Service under Pt 6 of the Intelligence Services Act 2001 (Cth) – orders to be made ahead of s 27 hearing under National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) |
Legislation Cited: | Intelligence Services Act 2001 (Cth), Pts 2, 6 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 22, 26, 27, 29 National Security Information (Criminal and Civil Proceedings) Regulation 2015 (Cth) |
Parties: | The Queen (Crown) Bernard Collaery (Accused) |
Representation: | Counsel C Tran (Crown) C Ward SC (2 October 2019) with K Archer (2 and 9 October 2019) (Accused) T Begbie (Attorney-General (Cth)) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Gilbert + Tobin (Accused) Australian Government Solicitor (Attorney-General (Cth)) | |
File Number: | SCC 195 of 2019 |
MOSSOP J:
These proceedings were before me on 2 October 2019. On that occasion I raised a number of issues in relation to the orders that had been agreed between the parties for the purposes of s 22 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act). Counsel for the Attorney-General addressed me on a number of the issues that I had raised and subsequently provided revised orders.
The orders proposed address how national security information is to be handled pending the hearing required under s 27 of the NSI Act and the making of orders by the court that govern how such information is to be handled during the course of the prosecution. Whilst a timetable for the preparation of the s 27 hearing was in place, of central importance was the filing and service of affidavits by the Attorney-General. That has been delayed by reason of the need to have in place a regime which governs the non‑disclosure of that material.
The orders proposed by the Attorney-General fell into two categories. There were those aspects of the orders which regulated disclosure of the material in a way that affected only the parties. Second there were aspects of the orders which would have an effect upon the court insofar as they made disclosure of material to court officers and staff conditional upon various requirements being satisfied.
So far as the first category of order, those really only affected the parties, as I explained on the previous occasion, what the parties are able to live with is primarily a matter for them. The starting point for consideration was that they had agreed to the orders and in those circumstances it would generally be appropriate for the court to give effect to them by order under s 22(2) of the NSI Act.
So far as the second category of order was concerned, there were different issues as the orders purported, via limitations on disclosure, to impose requirements upon officers or staff of the court.
In order to minimise the ongoing delay to the preparation for the s 27 hearing, I endeavoured to make those aspects of the orders that were uncontroversial, but no consent position as to a subset of orders to be made was able to be reached prior to today.
I have heard further submissions this morning, in particular relating to some further minor revisions to the proposed orders and as to a change to the proposed orders in relation to the transcription arrangements for the purpose of the s 27 hearing.
It is unnecessary for present purposes to survey in any detail the intricacies of the NSI Act and National Security Information (Criminal and Civil Proceedings) Regulation 2015 (Cth) (NSI Regulation) or the current certificate under s 26. In relation to the period prior to the s 27 hearing, the NSI Act gives control over the regulation of national security information to the Attorney-General and the parties to the proceeding if the general and potentially onerous regime in the NSI Regulation is not to apply. The power of the court is, generally speaking, a power to make orders to give effect to the agreement of the parties. Although whether or not to make orders is discretionary (s 22(2) “The court may…”), that discretion is to make or not make orders rather than to decide the terms of the orders.
The amended orders proposed by the Attorney‑General addressed or gave rise to three issues related to the extent to which the orders were intrusive upon the autonomy of court officers and staff.
First, the earlier orders had included a requirement that if the parties were to make disclosure of the two relevant affidavits to either of my two associates then the associate would be required to have entered into an agreement with the Australian Secret Intelligence Service (ASIS) under Pt 6 of the Intelligence Services Act 2001 (Cth) (IS Act). This requirement was removed and some specific orders put in place as to how affidavits might be handled by my associates. This removed any requirement for my associates to enter an agreement with ASIS and hence expose themselves to criminal penalties going beyond those identified in the NSI Act. It allowed for the exclusion of the operation of Pt 2 of the NSI Regulation, which in the previous version of the orders was not clearly excluded and which had left the potential for uncertainly and confusion as to what regime would apply to the documents.
Second, the revised orders maintained the requirement that the Registrar (and Principal Registrar) enter into an arrangement with ASIS for the purpose of Pt 6 of the IS Act. The consequence of this is that the penalty for breach of the terms of the orders would increase from two years (under s 45 NSI Act) to 10 years (under s 39 IS Act). In my view, any doubts about the effectiveness of s 45 or the court’s powers to punish for contempt is unlikely to justify a requirement that the Registrar of the court enter into an unspecified agreement that would expose her to this increased criminal penalty as a condition of doing what would otherwise be her job.
Prior to the s 27 hearing, it is difficult to assess the merits of the Attorney-General’s claim that such measures are necessary. It is undesirable, if at all possible, to attempt to do so at this stage because the whole point of the interim regime proposed in the orders is to get to a s 27 hearing at which point the court has greater freedom to assess the significance of the national security issues and to make appropriate orders. I am not presently persuaded that such a measure which interferes with the operation of the court and exposes court officers to criminal penalties not imposed by the NSI Act itself would be appropriate. One of the reasons for that is that it does not appear to me that the involvement of the Registrar is essential to the efficient management of the documents prior to the s 27 hearing. That is because the volume of material necessary for the hearing is unlikely to be great. Rather, the material may be dealt with in a manner that limits it to the presiding judge and, if necessary, the presiding judge’s associates.
In those circumstances it is possible to deal with the protection of national security information by making orders which, up until the s 27 hearing, avoid the need to resolve the issue of principle concerning the extent to which officers of the court should be compelled to enter into agreements with ASIS and hence expose themselves to criminal penalties greater than provided by the NSI Act. It is therefore unnecessary to determine whether the sensitivity of the material to be disclosed warrants such a restriction or whether it would ever be appropriate to compel the Registrar or Principal Registrar of the Court exercising jurisdiction at the instigation of the Commonwealth Crown to subject himself or herself to such restrictions where they are not compelled to do so by legislation.
The third issue relates to the extension of the requirement for an agreement with ASIS to any other court officials apart from my associates, the Registrar or Principal Registrar. The only other officials who are likely to be involved are sheriff’s officers who will be present at the hearing. Section 29 of the NSI Act provides powers to control who may be present at the hearing and provides, in s 29(3), a particular threshold for exclusion of the defendant, the defendant’s legal representatives or court officials. In light of the legislative regime in that section I do not consider it appropriate at this stage to make an order which would suggest that such officers must enter into agreements with ASIS.
In dealing with it that way I am conscious of the need to avoid any further delay in getting to the point where the court is in a position to consider how national security information is to be managed in the proceedings. The orders that I make should not, therefore, necessarily be seen as an appropriate model in any future case.
Orders
The orders of the Court are:
The COURT NOTES THAT the parties acknowledge that these orders do not constitute a ‘contract’, ‘agreement’ or ‘arrangement’ under section 39(1)(b)(ii) of the Intelligence Services Act 2001 (Cth).
BY CONSENT THE COURT MAKES THE FOLLOWING ORDERS PURSUANT TO s 22 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), which orders shall operate until further order.
Preliminary
In these orders:
1.ASIS means the Australian Secret Intelligence Service.
2.Defendant means Mr Bernard Collaery.
3.Defendant’s Representative means a person notified by Gilbert + Tobin in written notice to a Commonwealth Representative as being a Defendant Legal Representative for the purposes of these Orders, and confirmed as such by a Commonwealth Representative by written notice to Gilbert + Tobin.
4.The information to which these orders apply means:
4.1.The information in the:
4.1.1.Confidential affidavit of Paul Bruce Symon, sworn on 23 September 2019, including any annexure; and
4.1.2.Confidential affidavit of Richard Alaric Maude, affirmed on 23 September 2019, including any annexure.
4.2.any information which might directly or indirectly reveal the information in subparagraph 4.1 above;
except that where information is subject to the operation of a certificate issued by the Attorney-General and in force in the proceeding, it is not additionally subject to these orders.
5. Parties means:
5.1.the Prosecution;
5.2.the Defendant; and
5.3.the Defendant’s Representatives.
6.Prosecution means the Commonwealth Director of Public Prosecutions (CDPP), officers of the CDPP and counsel briefed by the CDPP, who have entered into an arrangement with ASIS for the purposes of Part 6 of the IS Act.
Disclosure and non-publication of information
7.The information to which these orders apply may only be published, disclosed, communicated, revealed or made available to the following people, and only for the purpose of the conduct of a hearing under section 27 of the NSI Act in this proceeding:
7.1.the presiding judge;
7.2.the associates to the presiding judge;
7.3.the Parties;
7.4.the Commonwealth Attorney-General and lawyers or Commonwealth officials representing the Commonwealth’s interests in relation to the NSI Act in the proceedings;
7.5.members of the Australian Federal Police acting as, or assisting, the informant, who have entered into an arrangement with ASIS for the purposes of Part 6 of the IS Act;
7.7.Court transcribers or Commonwealth officials performing recording and transcription functions for these proceedings, who have entered into an arrangement with ASIS for the purposes of Part 6 of the IS Act; and
7.8.Persons approved by the Commonwealth to receive information for all or part of these proceedings, who have entered into an arrangement with ASIS for the purposes of Part 6 of the IS Act.
8.Nothing in order 7 prevents or restricts the publication, disclosure, communication, revealing or making available of information to which these orders apply by officers of the Commonwealth acting in the course of their duties.
9.During any part of a hearing under section 27 of the NSI Act in this proceeding, being a proceeding to which the closed court requirements of s 29 apply, no person is permitted to bring into the courtroom any mobile phones or any other electronic device capable of transmitting or recording information except where using a device specifically approved or provided by the Commonwealth for that purpose.
Storage and handling of documents and equipment
10.Any document or equipment containing any information to which these orders apply:
10.1.must not be stored by the Defendant personally (but may be stored by a Defendant’s Representative on behalf of the Defendant);
10.2.must only be stored and handled by the Defendant’s Representatives at:
10.2.1.the specific locations at Gilbert + Tobin’s premises in Sydney approved by the Commonwealth for storage and handling (respectively) of documents in the proceedings; and
10.2.2.any other areas which the Commonwealth approves in writing for the storage and/or handling of the information to which these orders apply;
10.3.may also be handled by the Parties in Closed Court;
10.4.must not be handled or carried by the Defendant personally unless he does so in the presence of a Defendant’s Representative
10.5.must not be provided to, or held by, the Registry;
10.6.is to be filed with the Court by hand-delivery to the presiding judge or the presiding judge’s associate and is to be stored in an envelope marked ‘Court document in proceeding no SCC/195/19: To be opened only by the presiding judge; and
10.7.a document filed in accordance with order 10.6, or otherwise provided to the Court, is to be securely stored:
10.7.1.in a Commonwealth approved safe in the chambers of the presiding judge; or
10.7.3.where directed by the presiding judge, by the Commonwealth on behalf of the Court, on condition that the envelope not be opened or interfered with and that it be delivered to the presiding judge as directed from time to time.
Reproduction of the documents
11.The Commonwealth will serve on a representative of the Defendant 4 hard copies, and on the Prosecution 2 hard copies, of each affidavit referred to in order 4.1.
12.The Parties may only create or prepare documents which include information to which these orders apply in an electronic form on equipment that has been provided by the Commonwealth for use in the proceedings, subject to order 15 below.
13.Any such documents must only be prepared or created by the Defendant’s Representatives in:
13.1.the specific locations at Gilbert + Tobin’s premises in Sydney approved by the Commonwealth for storage and handling (respectively) of documents in the proceedings; and
13.2.any other areas which the Commonwealth approves in writing for the storage and/or handling of the information to which these orders apply.
14.The Parties may also create or prepare such documents in Closed Court.
15.The Parties may create hard copies of the final versions of any affidavits or submissions to be filed and served by them for or during the s 27 closed hearing.
Further orders for protection of information by court personnel
16.In addition to the requirements of Orders 7, 9, 10.6 and 10.7 above, the persons referred to in order 7.2 above (hereafter Court Personnel) must protect information to which these orders apply in the following ways and circumstances:
16.1.When recording, reproducing or copying such information using electronic equipment, it is only to be done using equipment provided by the Commonwealth for that purpose, and the pages are to be marked, at the top and bottom of each page, ‘TOP SECRET’.
16.2.When recording, reproducing or copying such information without the use of electronic equipment, it is to be done on pages which are marked, at the top and bottom of each page, ‘TOP SECRET’.
16.3.Such information is only to be destroyed using equipment provided by the Commonwealth for that purpose, or destroyed by the Commonwealth as requested and supervised by the court.
16.4.Electronic equipment and hard copy records referred to in orders 16.1 and 16.2 are to be:
16.4.1.used only in the chambers of the presiding judge or Closed Court or such other areas as are agreed by the Commonwealth for that purpose;
16.4.2.carried in 2 tamper-evident bags and locked containers provided by the Commonwealth for that purpose, and in the custody and control of the Court Personnel or another person as approved by the Commonwealth; and
16.4.3.when not in use, stored in the manner described in order 10.7 above.
17.Court Personnel may also handle information to which these orders apply in such further ways and circumstances as is conducive to their functions in accordance with written advice from the Commonwealth as to those matters.
18.The Commonwealth will provide assistance, copies, materials and equipment to the Court as requested for the purposes of Orders 16 and 17.
19.The Court will return the Commonwealth equipment at the conclusion of the proceedings in accordance with arrangements made between the Court and the Commonwealth.
Application of Part 2 of the NSI Regulation
20.Save to the extent modified by these orders, the Parties must protect information to which these orders apply in accordance with the requirements of Part 2 of the National Security Information (Criminal and Civil Proceedings) Regulation 2015 (the Part 2 requirements), or any variation to those requirements agreed in writing with the Commonwealth.
21.For Court Personnel, these orders provide for all matters relating to the protection of the information to which these orders apply, such that the Part 2 Requirements do not apply to those persons.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 18 October 2019 |
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