Regina v Lodhi - [2006] NSWSC 571

Reported Decision:
163 A Crim R 448

New South Wales

Supreme Court

CITATION: Regina v Lodhi [2006] NSWSC 571

HEARING DATE(S): 12/12/05, 13/12/05, 15/12/05, 31/01/06, 01/02/06,

JUDGMENT DATE :
7 February 2006

JUDGMENT OF: Whealy J at 1

DECISION: Notice of Motion dismissed

CATCHWORDS: National Security Information (Criminal & Civil Proceedings) Act 2004 - Constitutional validity - implied freedom of speech in political discussion

LEGISLATION CITED: National Security Information (Criminal and Civil Proceedings) Act 2004
Judiciary Act 1903
National Security Information Regulations 2005
Requirements for the Protection of National Security Information
Evidence Act 1995
Crimes Act 1914
Criminal Code 1995

CASES CITED: Coleman v Power [2004] 220 CLR 1 per Gleeson CJ at para 26; McHugh J at paras 74, 92 and 95; Gummow and Hayne JJ at para 196; Callinan J at paras 288-289
Russell v Russell (1976) 134 CLR 495 at 520, 533
APLA Limited v Legal Services Commission of NSW [2005] 79 ALJR 1620 at (451) per Callinan J
Nationwide News Pty Limited v District Court of NSW (1996) 40 NSWLR 486
John Fairfax Publications Pty Limited v Ryde Local Court [2005] 62 NSWLR 512 at (29), (31), (32) and (47)
Lemesurier v Connor (1929) 42 CLR 481 at 495
R v Murray & Cormie; Ex Parte the Commonwealth (1916) 22 CLR 4337 at 452
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
Nicholas v The Queen (1998) 193 CLR 173 at 232
Dietrich (1992) 177 CLR 299
R v Lappas & Dowling (2001) ACTSC Gray J
Alister v The Queen (1984) 154 CLR 404 at 435
Lange v ABC (1997) 1996 CLR 520
Levy v Victoria (1997) 189 CLR 579 at 622
John Fairfax Group Pty Ltd (Receivers & Managers appointed) v Local Court of NSW per Kirby J (1991) 26 NSWLR 131 at 141

PARTIES:
Regina v Faheem Khalid LODHI
John Fairfax Publications Pty Limited and other Media outlets (Applicants)
The Attorney-General for the Commonwealth (Intervening Respondent)

FILE NUMBER(S): SC 2005/1094

COUNSEL: Mr Blackburn SC; Ms K. Richardson - Applicant
Mr P. Boulten SC; Mr P Lange - Accused
Mr H Burmester QC; Mr T. Howe - Cth Attorney General (By Leave)
Mr R. Maidment QC; Mr G. Bellew - Crown

SOLICITORS: Mallesons - Applicant
Michael Doughty Solicitor - Accused
AGS Solicitors - Cth Attorney-General
Commonwealth DPP - Crown

`IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

TUESDAY 7 February 2006

2005/1094 – REGINA v Faheem Khalid LODHI

In the matter of a Notice of Motion filed with leave by JOHN FAIRFAX PUBLICATIONS PTY LIMITED, NATIONWIDE NEWS PTY LIMITED, SEVEN NETWORK (OPERATIONS) LIMITED, NINE NETWORK AUSTRALIA PTY LIMITED and SPECIAL BROADCASTING SERVICE CORPORATION (Applicants). THE ATTORNEY-GENERAL FOR THE COMMONWEALTH (Intervening Respondent).

JUDGMENT - Motion for Declaration that Part 3 of the National Security Information (Criminal and Civil Proceedings) Act 2004 is invalid.

1 HIS HONOUR: These proceedings concern the constitutional validity of Part 3 of the National Security Information (Criminal and Civil Proceedings) Act 2004. The issues before the Court are first, whether Part 3 of the Act offends the principles controlling the conferral of federal judicial power, and secondly, whether Part 3 is or is not consistent with the implied freedom of speech in relation to the discussion of political matters which arises under the Constitution.

The Proceedings

2 The proceedings arise in the course of pre-trial hearings in relation to the trial of Faheem Khalid Lodhi (the accused). A jury is to be empanelled to determine the guilt or innocence of the accused. It is contemplated that the empanelment will take place on 20 February 2006, although the recent enlargement of potential pre-trial applications may render this a dubious starting time. It may be convenient to assist in the understanding of the arguments that have been presented in relation to the current Notice of Motion if I say something about the nature and content of the charges against the accused.

3 The accused has pleaded not guilty to an indictment alleging the commission, inter alia, of the following offences: -

(i) Collecting a document connected to the preparation of a terrorist act (Count 1);

(ii) Making a document connected to the preparation of a terrorist act (count 2);

(iii) Doing an act in preparation for a terrorist act (Counts 3 and 4)”.

4 These charges arise under the relevant sections of the Criminal Code dealing with terrorism offences. The charges I have identified are contained in ss 101.5 and 101.6 of the Code.

The background to the offences

5 As I understand the Crown case, there will be a considerable body of circumstantial evidence providing a substantial background to the evidence relating to the accused’s alleged collection and making of documents and the doing of acts, which are said to be in preparation for a terrorist act. In setting out some of this material for the purposes of this decision it will be necessary for me to refer to the Crown case statement. At this stage, as I have said, a jury has not been empanelled and there is no evidence before the Court in a formal sense.

6 The Crown case is that the accused is a Pakistani born Australian citizen who holds a Degree in Architecture from the University of Sydney as well as a Certificate of Project Management from the Sydney Institute of Technology. The Crown alleges that between May and October 2003 there was an association between the accused and one Willy Brigitte (“Brigitte”). The nub of the Crown case is that it will argue that it is to be inferred that the relationship between the accused and Brigitte, and their common association with the telephone service of one “Sajid” in Pakistan, were connected with the preparation for one of a number of possible terrorist acts in Australia. The Crown will rely on the evidence of the accused’s association with Brigitte, and further evidence regarding Brigitte himself, to support each of the four counts in the indictment to which I have made reference.

7 It will be alleged that Brigitte in about October 2001 had undertaken training at Paramilitary camps in Pakistan occupied Kashmir operated by the terrorist organisation, Lashkar-e-Taiba (“LeT”).

8 The Crown will endeavour to prove that LeT is and was in October 2001 a terrorist organisation with a primary focus upon the removal of Indian security forces from India controlled Kashmir. It has been listed by the Commonwealth Government as a proscribed terrorist organisation since November 2003. The Crown case will endeavour to establish that LeT provided Jihad education and military training to fundamentalists Muslim groups, as well as to individual foreigners, who would be expected, at the conclusion of their training, to return to their own countries and apply their training to fight against the oppression of Muslim communities and to establish a Muslim State in their countries through Jihad.

9 Brigitte arrived in Australia on a three-month tourist visa on 16 May 2003. He was subsequently apprehended on 9 October 2003 ands deported to France on 17 October 2003.

10 The Crown case is that the accused provided Brigitte with a pre-paid mobile telephone service in a false name. This service had been obtained by the accused on 6 May 2003. The Crown alleges that the accused assisted Brigitte after his arrival in Sydney, particular with accommodation. There will be evidence of handwritten notes by the accused. These were recovered by investigators from his home. These, according to the Crown case, suggest that, during his visit to Australia, Brigitte had informed the accused of his intention to get married and sought his assistance in that regard. Brigitte had also shown the accused a map of Australian Nuclear sites (which the accused borrowed for a period of time) and which was subsequently found in Brigitte’s possession.

11 There will also be evidence of material found at Brigitte’s premises after his arrest, which demonstrated not only an interest in nuclear sites but also other material relating to military and intelligence issues.

12 I have not endeavoured to set out all the background material relating to the association alleged between the accused and Brigitte. The above summary represents a brief outline of the majority of the background matters mentioned in the Crown case statement.

Evidence against the accused

13 On 3 October 2003, a male person purchased two maps of the Australian Electricity Network, along with other associated literature, from the Electricity Supply Association of Australia Limited. Access to such information is restricted to those with a legitimate reason to do so. The person who purchased the material gave the name “M Rasul” of the firm “Rasul Electrical” along with a false address and telephone number. The order form, the receipt and some of the literature purchased were later found during the course of a search of the accused’s workstation at his place of employment. The Crown case is that this material was not related to any legitimate purpose connected with the accused’s employment. In addition, files were downloaded from the accused’s desktop computer, which showed that he had conducted a search on the Internet using the words “Electricity Australia”. There was also a partial image of one of the maps purchased found on a computer seized from the accused’s home at the time of his arrest.

14 In relation to the first count in the indictment, it is the Crown case that the accused was responsible for the collection of the maps and that in doing so, there existed a connection (of which he was aware) between the maps, and the preparation of a terrorist act namely, the bombing of part of the electricity system. There is a specific body of evidence identified in the Crown statement which, it is said. will amount to a powerful circumstantial case demonstrating the connection between the maps and the preparation for an alleged terrorist act. This includes material found at the accused’s workstation relating, inter alia, to the making of explosives. There will also be evidence alleging that, in circumstances of false identification, the accused made enquiries regarding chemicals, which were capable of being used as ingredients for explosives. Finally the Crown will lead evidence that at the time of the search of the accused’s residential premises police found more than 100 rolls of toilet paper. There will be evidence that the toilet paper, together with some of the chemicals mentioned above, can be used for the production of nitrocellulose, a low level explosive commonly used in propellants.

15 In relation to count 2 investigators retrieved certain material, which had been in the possession of the accused. This material contained a total of 37 aerial photographs downloaded from the Internet on 24 October 2003. The photographs depicted Holsworthy Army Barracks, HMAS Penguin at Balmoral and Victoria Barracks. It is the Crown case that the accused made these photographs in connection with the preparation of a terrorist act, namely the bombing of “one or more of the establishments” depicted in the photographs and that he was aware of that connection. In relation to this count, the Crown will rely on the general body of evidence, which I have earlier identified.

16 Count 3 in the indictment is in the following terms: -

“In the month of October 2003 at Sydney in the State of New South Wales (the accused) did an act, namely obtaining information concerning the formula for, and availability of, material for explosives and incendiary devices in preparation for a terrorist act, namely the bombing of an Australian Defence establishment or part of the Australian Electrical Supply system.”

17 The Crown intends to rely on the general body of evidence and the particular matters which I have set out above: that is, the Crown intends to rely upon the same material as is said to support counts 1 and 2.

18 Count 4 of the indictment is in the following terms: -

“Between 5 July 2002 and 22 April 2004 at Sydney in the State of New South Wales, did an act, namely, acquire a large quantity of toilet paper capable of producing nitrocellulose, in preparation for a terrorist act, namely the bombing of an Australian Defence establishment or part of the Australian Electrical Supply system.”

19 Once again, the Crown intends to rely upon the general and particular evidence said to support counts 1 and 2.

20 I should add for completeness that in an earlier decision given on 23 December 2005 I made rulings that, with one exception, the counts in the indictment were not bad for duplicity. It is my understanding, however, that the Crown Prosecutor has prepared a fresh amended indictment which is likely to be the subject of further submissions. I have not as yet seen this document.

The involvement of media interests

21 During the course of an earlier preliminary hearing on 12 December 2005 I gave leave to counsel to appear for a number of media interest groups. They (with the exception of the Australian Broadcasting Corporation which has dropped out of the proceedings) are the applicants in a Notice of Motion which was subsequently filed with leave in the Court. I shall refer to those applicants as “the media interests”. On 12 December 2005 I also gave leave to counsel to appear on behalf of the Attorney-General of the Commonwealth in the proceedings.

22 The Notice of Motion which is dated 1 February 2006 has been principally argued between the media interests and the Attorney-General. I should add that Mr Boulten SC, who appears for the accused, made some brief submissions in support of the arguments advanced on behalf of the media interests. Mr Maidment SC, who is to be Crown Prosecutor in the trial, indicated his support for the submissions of the Attorney-General but made no additional submissions on his own behalf.

23 The Notice of Motion seeks a declaration that Part 3 of the National Security Information (Criminal and Civil Proceedings) Act 2004 is invalid.

Principal arguments

24 The principal arguments raised by the media interests were these: -

(1) Part 3 of the Act has the effect of altering the character or nature of the Supreme Court of New South Wales, in that its effect is to obliterate an essential attribute of the Supreme Court of New South Wales namely its power to discharge, without interference, its fundamental object of determining guilt or innocence.

(I should add that during oral submissions this argument was put slightly differently although to similar effect: the media interests argued that the effect of Part 3 of the Act was to strip the Supreme Court of its powers to pursue a fundamental attribute or character of the Court namely the power to enable a criminal trial to be brought to an orderly conclusion).

(2) Part 3 of the Act in general, and s 31 in particular, purports to confer on the Supreme Court of New South Wales, in the exercise of the judicial power of the Commonwealth, a discretion which is incompatible with the exercise of that power.

(3) Part 3 of the Act is inconsistent with the implied freedom of speech in relation to the discussion of political matters, which arises under the Constitution.

The legislation – a general outline

25 As I have indicated, the legislation under attack is Part 3 of the National Security Information (Criminal and Civil Proceedings) Act 2004. I have been working from a compilation document, which I understand is the same as that used by counsel throughout the proceedings. This compilation was prepared on 3 August 2005 and takes into account amendments up to Act No 89 of 2005. As the name of the legislation implies, it deals with aspects of national security information in both criminal and civil proceedings. The concerns of this Court are with the parts of the legislation dealing with criminal proceedings.

26 In general, it may be said that the legislation seeks to protect information from disclosure during a proceeding for a Commonwealth offence where the disclosure is likely to prejudice Australia’s national security. Specifically, the Bill seeks to protect information the disclosure of which would be likely to prejudice Australia’s defence, security, international relations or law enforcement interests. These expressions are given very broad meanings in the definition sections 8, 9, 10 and 11 of the Act. For example, “international relations, means political, military and economic relations with foreign governments and international organisations”. (s 10).

27 It appears to have been the concern of Parliament that the existing rules of evidence and procedure may not provide adequate protection for information that relates to, or the disclosure of which may affect, national security, where that information may be adduced or otherwise disclosed during the course of a federal criminal proceeding (Explanatory Memorandum 2004).

28 The operation of the Act, will ordinarily be “triggered” when the prosecutor contemplates the brief of evidence necessary for the trial. The prosecutor may notify the Court and the parties that a particular case falls within the provisions of the legislation. In fact, however, such notice can be given at any time during the proceedings. (As I understand it, a notification under s 6 was given at an early stage by the prosecutor in this matter).

29 At the commencement of Part 3 the Act contemplates that either the prosecutor or the defendant may apply to the Court for the Court to hold a conference of the parties to consider issues relating to any disclosure in the trial of information that relates to national security or may effect national security. This conference may include consideration as to whether the prosecutor or defendant is likely to be required to give notice under s 24; and whether the parties wish to enter into an arrangement of the kind mentioned in s 22 (s 21(1)(a) and (b). At any time during a federal criminal proceeding, the prosecutor and the defendant may agree to an arrangement about any disclosure in the proceeding of information that relates to national security or that may effect national security (s 22(1)). The Court may make such order (if any) as it considers appropriate to give effect to the arrangement (s 22(2)).

30 Relevantly, the central aspect of the operation of the Bill is the requirement that a party must notify the Attorney-General at any stage of a criminal proceeding where that party expects to introduce information that relates to, or the disclosure of which may affect, national security. This information includes information that may be introduced through a document or a witness’s answer to a question, as well as information disclosed by the mere presence of a witness (s 24(1) (2) and (3)). On receiving the advice that the Attorney General has been so notified, the Court must order that the proceedings be adjourned until the Attorney-General gives a copy of a certificate to the Court under sub-s 26(4) or gives advice to the Court under sub-26(7) (which applies if a decision is made not to give a certificate).

31 In a similar fashion, the prosecutor or defendant must advise the Court if he or she knows or believes that a witness may give an answer to a question in a federal court criminal proceeding that will disclose information relating to national security or may affect national security. In those circumstances the Court must adjourn the proceeding and hold a closed court hearing in which the witness provides a written answer to the question. This answer must be shown to the prosecutor. The obligation then falls on the prosecutor, in stipulated circumstances, to advise the Court that he has formed a knowledge or belief that the question relates to or may affect national security. In those circumstances the prosecutor must give the Attorney-General notice in writing of that knowledge or belief. Again, the obligation on the court is to adjourn the proceedings until a certificate is given or not as the case may be. (s 25).

32 Upon notification, the Attorney-General considers the information and determines whether disclosure of the information is likely to prejudice national security (s 26(1)).

33 If the information would be disclosed in a document (the source document), the Attorney-General may give each potential discloser of the information in the proceeding any of the following: -

(i) A copy of the document with the information deleted;

(ii) A copy of the document with the information deleted and a summary attached;

(iii) A copy of the document with the information deleted and a statement of facts that the information would or would be likely to prove attached.

The material is to be accompanied by a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise) but may disclose the copy or the copy and the statement or summary. (s 26(2)(a))

34 The certificate however may describe the information and state that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise) (s 26(2)(b).

35 If the information would be disclosed other than in a document, the Attorney-General may give each potential discloser of the information in the proceeding:

(a) Either:

(i) a written summary of the information; or

(ii) a written statement of facts that the information would or would be likely to prove;

Together with a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise) but may disclose the summary or statement;

Alternatively, the Attorney-General may give a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise). The Attorney-General must give the Court a copy of the certificate and the documents mentioned in this sub-section. (s 26(3) and (4)).

36 Where the Attorney-General has given a potential discloser a certificate under 26, the Court must in any case where the certificate is given to the Court before the trial begins, hold a hearing to decide whether to make an order under s 31 in relation to the disclosure of the information (s 27(3a)).

37 Where the certificate has been given to the Court after the trial begins, the Court must continue the adjournment formerly granted to hold a hearing to decide whether to make an order under s 31 in relation to the disclosure of the information (s 27(3)).

38 Where the Attorney-General forms the opinion after notification that a person whom the prosecutor or defendant intends to call as a witness in a federal criminal proceeding will disclose information by his or her mere presence and the Attorney-General considers that the disclosure is likely to prejudice national security, the Attorney-General may give a certificate to the prosecutor or defendant that states that the prosecutor or defendant must not call the person as a witness in the federal criminal proceeding (s 28(2)). The Attorney-General must give a copy of the certificate to the Court (s 28(3)). Again the giving of this certificate to the Court triggers the need for the Court to hold a hearing to decide whether to make an order under s 31 in relation to calling of the witness (s 28(5)). If the Attorney-General decides not to give such a certificate, the Attorney-General must, in writing, advise the prosecutor or defendant, as the case requires, and the court of his or her decision (s 28(10)).

39 Any certificates that have been issued must be considered at a closed hearing of the trial or pre-trial court (ss 27(5) and 28(7)). The Attorney-General may intervene in the proceedings to take part in the closed hearing. If the Attorney-General does intervene in the hearing, he or she is treated as if he or she is a party to the hearing (s 30 sub-ss (1) and (2)).

40 While the Court has a discretion to exclude the defendant, non security cleared legal representatives of the defendant or non security cleared court officials from the closed hearing, the defendant and his or her legal representative must be given the opportunity to make submissions to the court on arguments relating to the disclosure of information or the calling of witnesses (s 29(2) (3) and (4)). The discretion to exclude only arise where the Court considers that the information would be disclosed to the defendant, the legal representative or the court officials and determines that the disclosure would be likely to prejudice national security.

41 After holding a hearing required under sub-s 27(3) in relation to the disclosure of information in a federal criminal proceeding, the court must make an order under one of sub-ss (2), (4) and (5) of s 31. In general the court may -

(a) Agree with the Attorney-General that the information not be disclosed at all or be disclosed other than in the particular form; or

(b) Disagree with the Attorney-General and order the disclosure of the information either generally or in a particular form. (s 31(1), (2), (4) and (5)).

42 The information or document is only admissible in evidence in the proceeding if, apart from the order made under s 31, it is in fact admissible (s 31(3) and (5)).

43 After holding a hearing required under s 28(5) the Court must order that:

(a) The prosecutor or defendant must not call the person as a witness in the federal criminal proceeding; or

(b) The prosecutor or defendant may call the person as a witness in the federal criminal proceeding. (s 31(6)).

44 In deciding what order to make under s 31, the Court must consider the following matters (s 31(7) and (8)):

“7(a) Whether, having regard to the Attorney-General’s certificate there would be a risk of prejudice to national security if:

(i) Where the certificate was given under sub-s 26(2) or (3) – the information were disclosed in contravention of the certificate; or

(ii) Where the certificate was given under sub-s 28(2) – the witness were called.

(b) Whether any such order would have a substantial adverse affect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence;

45 In making its decision, the Court must give greatest weight to the matter mentioned in s 31(7)(a) (s31 (8)).

46 The Court must make and keep a record of the hearing under s 31 of the Act. It must make the record available to the Court that hears an appeal from its decision or reviews its decision; it must make the record available to the prosecutor and, if the Attorney-General has intervened, the Attorney-General and its legal representative. The Court must also allow access to the record to any legal representative of the defendant who has been given a security clearance at the appropriate level. Otherwise the Court must not make the record available or allow it to be accessed by anyone else (s 29(5)). There is also provision to give a copy of the proposed record to the prosecutor and to the Attorney-General to enable those persons to consider whether making the final record available to the prosecutor, the Attorney-General and the appeal court, and allowing access to it to the defence, will disclose information and that the disclosure is likely to prejudice national security. In such a situation the record recipient may request that the Court vary the proposed record so that the national security information will not be disclosed (s 29(5), (6) and (7). There is also a provision made for the record recipient to request the Court from delaying making the record to allow time for the record recipient to decide whether to appeal against the Court’s decision in relation to the form of the record and, if the recipient decides to do so, make the appeal. The Court must grant the request (s 29A).

47 Where an order or orders has been made under s 31, the Court is required to give reasons. It must give a written statement of its reasons for making an order to the prosecutor, the defendant, any legal representative of the defendant and the Attorney-General where intervention has occurred (s 32(1)). Indeed, the Court must give a copy of the proposed statement of reasons to the prosecutor and the Attorney-General to enable those persons to consider whether the statement of reasons may involve the disclosure of national security information and whether the disclosure might be likely to prejudice national security. The statement recipient may request the Court to vary the proposed statement so that national security information will not be disclosed.

48 The Court must make a decision in relation to such a request and where this is done, the statement recipient may request the Court to delay giving its statement of reasons to allow time to decide whether to appeal against the Court’s decision and to make the appeal (s 32(2), (3) and (4); s 33(1) and (2)).

49 An order made by the Court under s 31 does not come into force until the order ceases to subject to appeal; and remains in force until it is revoked by the Court (s 34).

50 Where the Court has made an order under s 31, the prosecutor may apply to the Court for an adjournment of the federal criminal proceeding to allow time for the prosecutor to decide whether to appeal against the Court order or to withdraw the proceeding. If the prosecutor decides to do either of these things, the adjournment is to allow time for the prosecutor to make the appeal or withdrawal. (s 36(1)).

51 Similarly where an order has been made under s 31, the defendant may apply to the Court for an adjournment of the federal criminal proceeding to allow time for the defendant to decide whether to appeal against the Court order; and if he or she decides to do so – to make the appeal. The Court must in either case grant the adjournment (s 36(1), (2) and (3)).

52 The Attorney-General also has a right of an appeal as an intervener in relation to orders under s 31. These appeal are to the Court of Criminal Appeal (ss 36A, 37 and 38).

53 Section 19 deals with the general powers of a court in a federal criminal proceeding. It provides: -

“19(1) The power of a court to control the conduct of a federal criminal proceeding, in particular in respect to abuse of process, is not affected by this Act, except so far as this Act expressly or impliedly provides otherwise.

(2) An order under s 31 does not prevent the Court from later ordering the federal criminal proceeding be stayed on a ground involving the same matter, including that an order made under s 31 would have a substantial adverse affect on a defendant’s right to receive a fair hearing.”

54 This completes a general outline of some of the main features of the legislation. There were, of course, other matters mentioned in more detail in argument and I shall, where necessary, provide that detail either in mentioning the arguments advanced on behalf of the parties to the motion or in giving my reasons in this decision.

Arguments on behalf of the media interests

55 I have earlier set out the three bases on which the legislation has been challenged by the applicants. Detailed written and oral submissions were made on behalf of the media interests by Mr Blackburn SC. In relation to the first two matters argued, senior counsel, as a matter of convenience, dealt with these matters under the one general heading. This was so because of the interlocking and interrelated nature of the arguments going to the alleged infringement of the judicial power of the Commonwealth and the asserted alteration by the legislation of the character or nature of the Supreme Court of New South Wales.

56 Mr Blackburn SC argued first that the construction of the legislation resulted in a situation where the Supreme Court was effectively deprived of its powers to retain appropriate control of criminal proceedings so as to bring a trial by jury to an orderly conclusion. Secondly, senior counsel argued that a combination of various matters arising under the legislation, when considered together, had the effect of transforming the court exercising federal jurisdiction into a completely different character. In particular he referred to the scheme of the Act which includes a series of mandatory adjournments; interference with the Court’s personnel or officers in that they were required to have security clearances for certain purposes under the legislation; the fact that the prosecutor and the defence counsel may commit criminal offences unless prompt notifications are made to the Attorney-General of the disclosure of information related to national security; the fact that the Attorney-General may intervene in the closed court hearing (referred to for convenience in the arguments as a s 31 hearing); and that the s 31 hearing is to take place in closed court with the exclusion of other than specified persons.

57 In the context of these arguments Mr Blackburn SC made special attack on the discretions to be exercised under s 31(7) and (8). In this regard he argued that the hearing under s 31 entails considerations, which relate to policy and are not true discretionary considerations. He referred particularly to that aspect of the definition of national security dealing with economic relationships between the government and other countries. Additionally, he argued that the discretion to be exercised under s 31 in determining whether the Court should make orders or not was, as he put it, a “sham” discretion. It was, he submitted, “window dressing” because the real effect of sub-s (8) of 31, both in theory and in practice, is that the interests of the accused in securing a fair trial were to be disregarded. Moreover, Mr Blackburn SC argued that the real purpose of s 31 was to keep secret and out of the public domain a vast range of information. It was, he said, a statutory regime, which, in truth, sought the exclusion of relevant evidence from the trial and was designed to keep it out of the public domain generally.

58 Senior counsel argued that the nature of the discretion exercised by the Court under s 31 was very different from that exercised when public interest immunity claims were made during a criminal trial.

59 In relation to the third argument, Mr Blackburn SC argued that Part 3 of the Legislation infringed the freedom of communication granted by the Constitution. First, he submitted that the law effectively burdened freedom of communication about government or political matters either in its terms, operation or effect. Secondly, he maintained that, if the legislation effectively burdened that freedom, it was one which was not reasonably appropriate and adapted to serve a legitimate end in a manner which was compatible with the maintenance of the constitutionally prescribed system of representative and responsible government (Coleman v Power [2004] 220 CLR 1 per Gleeson CJ at para 26; McHugh J at paras 74, 92 and 95; Gummow and Hayne JJ at para 196; Callinan J at paras 288 – 289).

60 Mr Blackburn SC argued that, having regard to the definition of “national security” in s 8, 9 10 and 11 of the Act, much of the information which is likely to be the subject of the Attorney’s certificates, and which will be the subject of hearings under s 31, will directly relate to the activities of the executive government and would therefore be a proper subject for discussion by electors. Secondly, he argued that, information about “international relations” as defined, is also matter relevant to the choices of electors. Similarly with material relating to “security” as defined in s 9.

61 In these circumstances, senior counsel argued that since no one may be present at the s 31 hearing other than those persons set out in s 29 (the judicial officer, court officials, prosecutor, the defendant, the defendant’s legal representatives, permitted witnesses and the Attorney-General or his or her representative) s 29 was plainly a provision that effectively burdened freedom of communication on matters of government and politics in its operation and effect. Mr Blackburn SC argued that legislation that denied the Court any discretion to hear from other persons who, in a particular case might have a legitimate interest in being heard on the subject and whose input might be valuable to the Court in the determination of the discretion confided to it, was not reasonably appropriate and adapted to serve the “legitimate end” that the legislation was intended to serve. Senior counsel pointed out that in Coleman, McHugh J at (92) emphasised that the manner of achieving the “legitimate end” was as important as the end itself. It was submitted that a legislative provision such as s 29, which rigidly excludes third parties from applying to be heard and making submissions (if permitted by the Court), places a significant burden on the implied freedom; and in denying the Court the power to hear from interested parties, or perhaps from relatively disinterested parties, is inappropriate. Particular emphasis was laid upon the fact that the legislation excludes the public and the media from the hearing process in every case in which a s 31 hearing is held and, in this respect, the legislation went far beyond what was appropriate and adapted to serve the end in question.

62 As I indicated earlier, Mr Boulten SC supported the arguments of senior counsel for the media interests. He made some brief submissions but there is no need for me to make separate reference to these in this outline of argument.

63 The arguments for the Attorney-General were presented by Mr Burmester QC. It is fair to observe that senior counsel for the Attorney did not put in issue any of the legal principles outlined by Mr Blackburn SC in relation to his arguments regarding the alleged infringement of the judicial power of the Commonwealth and the asserted alteration of the character or nature of the Supreme Court of New South Wales. Mr Burmester QC accepted that if, on the proper construction of the legislation, the character or nature of the Supreme Court had been substantially altered so as to change that character this may bring about a situation where Part 3 of the legislation would be invalid.

64 Mr Burmester QC however argued that a proper appreciation of the scheme of the Act led inevitably to a completely different conclusion than that contended for by the media interests. In particular, although he accepted that the system of mandated adjournments might, in some cases, lead to greater disruption than might be usual in a criminal trial, this was not such as to amount to an impermissible change to the nature of the Court entrusted with the judicial power. Senior counsel referred in particular to s 22. This section enables practical arrangements to be made between the prosecutor and the defendant which may obviate the need for any closed hearing under the Act. Secondly, he referred to the fact that the Act is structured so as to enable many, if not all, of the potentially delaying situations to be dealt with pre-trial, provided there is a reasonable modicum of cooperation between the prosecution and defence. Thirdly, while Mr Burmester QC accepted that adjournment and delay may be undesirable in a criminal trial, these situations frequently did arise in criminal proceedings and the Court here would retain its power to prevent an abuse of process to deal with it. Fourthly, the Court would be able (by virtue of consequential legislation) to deal with applications in the nature of mandamus, for example, should it become necessary to goad the Attorney into prompt action. Fifthly, and critically it was submitted, the Court retains all of its powers to stay proceedings or declare a mistrial in circumstances where delay warranted such action. In fact, Mr Burmester QC argued that the Court had lost none of its inherent powers to secure a fair trial (S 19 of the legislation).

65 In relation to Mr Blackburn’s second point, Mr Burmester QC argued that the s 31 hearing was essentially concerned with the disclosure of information or a decision as to whether a witness would be called. He argued that in performing the function required by s 31(7) and (8) the Court was obliged, pursuant to s 3(2) to have regard to the object of the Act as stipulated in s 3. This is: -

“The object of this Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.”

66 Additionally, senior counsel argued that the effect of the direction in s 31(8), read with s 3, did not go beyond what was a reasonable direction as to the weight to give one factor over another. Importantly, while “greatest weight” must be given to the risk of prejudice to national security, the Court is not directed to have regard to that matter alone. Nor was it precluded from determining, even after giving that matter “greatest weight”, that the defendant’s right to receive a fair trial required the making of orders which had the effect of overriding a certificate. Again, he referred to the Court’s ultimate right to stay a prosecution on the basis of abuse of process (s 19(1)); and the Court’s right to order a subsequent stay under s 19(2). This section, it will be recalled, is in the following terms; -

“An order under s 31 does not prevent the Court from later ordering that the federal criminal proceeding be stayed on a ground involving the same matter, including that an order made under s 31 would have a substantial adverse effect on a defendant’s right to receive a fair hearing.”

67 In relation to the “secrecy” arguments advanced by the applicants, Mr Burmester QC said this: -

“First while the s 31 hearing takes place with only limited persons present (s 29) it is not correct that any orders under s 31 or reasons for those orders remain secret. As to the latter, once a proposed statement has been provided to the prosecution and if necessary the Attorney-General (s 32(3)) and then to other relevant persons, and a statement recipient has had an opportunity to consider the decision and to appeal (ss 32 and 33), there is nothing in the Act to require the reasons not to be publicly available. Publicity at all times and for all aspects of proceedings is not required to make them judicial.”

68 Secondly, Mr Burmester SC argued that the Court’s independence and impartiality is not undermined if some proceedings or some aspect of the proceedings are required to be held “in camera”. (Russell v Russell (1976 134 CLR 495 at 520, 533). The requirements in s 29 for a closed hearing for s 31 purposes relates to two matters only: First, whether to allow a witness to be called; secondly, whether information potentially prejudicial to national security may be disclosed and, if so, in what form. Closure for these limited purposes does not mean judicial power is not being exercised. Further, decisions as to the use of the information as evidence in the proceedings remains to be determined in the customary manner by the trial judge in the jury process. Questions of the making of orders such as the use of pseudonyms, suppression orders and the like do not form part, intrinsically, of the s 31 hearing but remain to be determined in the normal way during the trial.

69 In relation to the third ground of challenge, senior counsel for the Commonwealth again did not take issue with the statements of principle outlined by Mr Blackburn SC on behalf of the media interests. Mr Burmester QC however did argue first that the Act did not effectively burden communications about government or political matters. Senior counsel accepted that much of the information the subject of the Attorney’s certificate might directly relate to the activities of the executive government and would therefore be the proper subject of discussion by electors. He maintained however that the communication that is the subject of the closed hearing requirements was legal argument as to whether the information the subject of the Attorney’s certificate should be permitted to be disclosed in the subsequent proceedings and as to the balancing exercise the Court is required to engage in under s 31(7). The information itself was not necessarily disclosed (ie communicated) in the s 31 hearing, except to the extent required by s 29(3). Consequently, it was argued that the only communication that was directly burdened by s 29 was the argument concerning disclosure in the proceedings, not the disclosure itself. The Attorney-General submitted that the argument was not, relevantly, political communication.

70 If, contrary to this argument, political communication was involved, Mr Burmester QC argued that the Act did not effectively burden that communication or, put another way, the burden on that communication was not of real significance to the election of parliamentarians or the maintenance of responsible and representative government or the conduct of a referendum pursuant to s 128 of the Constitution (APLA Limited v Legal Services Commission of New South Wales (2005) 79 ALJR 1620 at (451) per Callinan J). It was submitted that the issues as to whether orders should be made under s 31 related to issues peculiarly of interest to the Court and the parties and not third parties. The parties to the prosecution were entitled to be present (subject to s 29(3)) and must be given an opportunity to be heard (s 29(2) and (4)).

71 In relation to the second issue the Attorney further argued that the object of the Act was compatible with representative and responsible government. The object of the Act was to protect Australia’s national security and thus to protect the system of representative and responsible government established by the Constitution. Moreover, the Attorney submitted that the Act was reasonably appropriate and adapted to serving a legitimate end and the manner in which it achieves that end was not itself incompatible with representative and responsible government. In particular, Mr Burmester QC argued that s 31 was not a regime relating to the suppression of evidence to be adduced in the trial but was concerned with issues of disclosure preliminary to those issues. Moreover, any question of suppression and the like would be dealt with at a later stage by the Court in the ordinary way, unfettered by s 31(7) and (8). Moreover, the matters specifically considered in a s 31 hearing are not matters directly relevant to the broader interests of political communication. They are matters going to issues that arose directly between the prosecutor and the defendant. In relation to such matters, political communication is not unduly burdened if a particular witness is not called or particular information is not admitted (or admitted only in a particular form).

72 Mr Burmester QC acknowledged that the media interests claim that since they and other persons may be excluded from the s 31 hearing this demonstrates that the burden is not reasonably appropriate and adapted to a legitimate end. However, he pointed out that media interests do not have a “right” to be heard in relation to such matters (Nationwide News Pty Limited v District Court of New South Wales (1996) 40 NSWLR 486; John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512 at (29), (31), (32) and (47)). Senior counsel repeated his submission that, to the extent that a court, following a s 31 hearing, considers broader issues such as closure of the court during the trial, or suppression of the names of the witnesses, the court is not precluded from receiving representations separately in a public hearing from media or other interests concerning the appropriateness of such restrictions. Section 31, he argued, does not mandate a closed hearing for that purpose.

Principles of law applicable to the resolution of the issues

73 As I have said earlier, there is no dispute between the parties as to the nature of the principles that are applicable to the resolution of the present issues. In essence, the National Security Information legislation must be examined and construed to determine whether Part 3 of the Act requires the exercise of the judicial power of the Commonwealth essentially in a manner that is inconsistent with the traditional character of the Supreme Court of New South Wales; and whether it represents an invalid incursion into the nature of Commonwealth judicial power.

74 Section 77(iii) of the Constitution empowers the Commonwealth Parliament to make laws, “investing any court of a state with federal jurisdiction”. Early in the history of the commonwealth it was decided by the parliament to use the state courts for the purpose of prosecuting offences against the laws of the commonwealth. This was achieved by including relevant provisions in the Judiciary Act 1903. There is common agreement that, in the trial of the accused, the Supreme Court of New South Wales will be exercising federal jurisdiction.

75 It was made clear in Lemesurier v Connor (1929) 42 CLR 481 at 495 that the courts of the state are the judicial organs of another government. They are created by state law: their existence depends upon state law and that law, primarily at least, determines the constitution of the court itself and the organisation through which its powers and jurisdiction are exercised.

76 The majority of the court (at page 495) cited the statement of Isaacs J in R v Murray & Cormie; Ex Parte the Commonwealth (1916) 22 CLR 437 at 452 in which his Honour stated: -

“The Constitution, by Ch. iii, draws the clearest distinction between Federal courts and State courts and while enabling the Commonwealth Parliament to utilise the judicial services of State courts recognises in the most pronounced and unequivocal way that they remain ‘State courts’.”

77 The two concepts involved in the first two challenges to the legislation by the media interests in this case focus upon the content of Commonwealth judicial power and the traditional nature and character of the Supreme Court of New South Wales.

78 As to the first matter the principle is this: -

The legislative power of the Commonwealth Parliament does not extend to the making of a law which requires or authorise courts in which judicial power of the Commonwealth is vested to exercise that power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power ( Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1).

Chu Kheng Lim

“It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power, which the Constitution, including Ch. iii itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power with Ch. iii vests exclusively in the courts which it designates”.

79 In Nicholas v The Queen (1998) 193 CLR 173 at 232, Gummow J, in examining the legislation under attack in that case said: -

“The essential question concerns the limitation imposed by s 15X upon the discretion which the trial court otherwise would enjoy to exclude evidence that the heroin in question was imported into Australia in contravention of the Customs Act. Is this such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth?”

80 As to the second matter, the parties have agreed that I may adopt as principle the following statement by Gibbs J in Russell v Russell at 517:-

“The statement that the Parliament must take the State court as it finds it is obviously too wide if intended to refer to the limits of the court’s jurisdiction as defined by the State law, because the power to invest the court with federal jurisdiction necessarily enables the Parliament to enlarge or alter its jurisdiction. Such a statement is, however, in my opinion correct if it is understood to mean that the court itself must be taken as it is found. In Adams v Chas. Watson Pty Limited (1938) 60 CLR at page 555 Latham CJ spoke of ‘the distinction between structure and function’; he went on to say: ‘the Commonwealth Parliament cannot change the structure of a State court, but it may confer new functions upon such a court’. Clearly that statement is correct – the exercise of invested federal jurisdiction may entail a performance of new functions. However, it does not follow, and in my opinion Latham CJ did not mean, that any interference with the functions of a court invested with federal jurisdiction is necessarily within the power of the Parliament. Such a statement would be far too wide and would ignore the principles by which the validity of the legislation is to be decided. The question in my opinion is whether the Parliament has done more than to invest the court with federal jurisdiction and to make such investiture effective.”

Resolution of the issues - Grounds 1 and 2

81 The question to be resolved is whether Part 3, and s 31 in particular of the National Security Information (Criminal and Civil Proceedings) Act 2004 is incompatible with the exercise of the judicial power of the Commonwealth? Secondly, whether Part 3 of the legislation impermissibly alters the character or nature of the New South Wales Supreme Court in its conduct of a criminal trial. In my opinion the answer to each of these questions is “No”.

82 The starting point is the nature of the function performed by the Court when it conducts a hearing and makes orders under s 31 of the Act in federal criminal proceedings. Strictly speaking, these are hearings required under sub-s 27(3) and 28(5) of the Act but I shall, for convenience, refer to them as “s 31 hearings”. In my opinion, the function is a very limited one and is concerned only with the disclosure of information. That this is so emerges from a consideration of the language in s 31 and the language in s 27(3)(a). The purpose of the hearing is either “in relation to the disclosure of the information” or, under s 28(5), “in relation to the calling of the witness”. Section 28(6) makes clear that the calling of a witness in the proceeding may, of itself, “disclose information by his or her mere presence” and be likely to prejudice national security. It is quite clear that a s 31 hearing is concerned essentially with disclosure as between the parties.

83 The obvious purpose of the hearing (s 3 of the Act) is to prevent the disclosure of information in federal criminal proceedings where the disclosure is likely to prejudice natural national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice. The s 31 function is a preliminary to the later calling of evidence in the trial. Far from being a function whose purpose is to exclude evidence, it is a function to limit disclosure as between the parties where issues of national security may be involved. It is clear, both as a matter of theory and logic, that the withholding of documentary material from disclosure and the prevention of the calling of a witness may affect both the prosecution and the defence. But, in a real sense, the function performed by s 31 is no more than a preliminary to the calling of evidence, the cross-examination of witnesses and the general conduct of the trial by judge and jury.

84 Secondly, it is apparent that the issues relating to the identification of material that relate to or affect national security can be dealt with almost entirely by way of pre-trial hearings. Indeed, issues relating to the disclosure of such material can be dealt with by agreement between the parties and the arrangements may be sanctioned by the Court (s 22). Those issues, in the absence of agreement, can and must be dealt with by notification to the Attorney-General, the issue of certificates and a determination by the Court in the s 31 hearing as to whether disclosure should be made and, in the case of documents in what form. In the case of witnesses, the Court must decide whether the witness should be called or not.

85 None of this impinges in any fundamental way upon the ordinary process of the establishment of guilt or innocence by judge and jury. The onus of proof does not alter. The rules of evidence are not changed. The discretions as to the exclusion of evidence in the trial remain untouched. The traditional protections given to an accused person are not put aside by the legislation.

86 Of course, it is quite apparent that issues as to the disclosure of information relating to or that may affect national security could arise during the trial itself rather than pre-trial. It might arise completely inadvertently even in circumstances where there has been a full pre-trial hearing. It might arise in circumstances where there has been an arrangement between the parties sanctioned by the Court’s order. It is equally true that the legislation, in such circumstances, has a potential for delay. The mandatory adjournment required for the purposes of submitting the matter to the Attorney-General so that he may consider issuing a certificate clearly could entail a delay. But there is no reason to suppose, if such a situation were to arise, that the Attorney would not do otherwise than move promptly and consider the material and decide equally promptly whether to issue a certificate or not. Indeed, in the present pre-trial hearings I am conducting, this has happened on at least three occasions and, although a delay has occurred, the matter on each occasion has been attended to reasonably promptly.

87 The other adjournments, which might be required under the legislation, are also capable of producing delay. But in the case of those matters, there is no certainty they would be required to come into operation. Sensible arrangements as to the form of the reasons and the nature of the record to be kept would, in most instances, keep at bay the mandatory adjournments contemplated under ss 29, 29A and 33.

88 But even if the worst possible scenario were to develop and there were appeals under these sections as well as a merit appeal under s 37, there is no reason to suppose that these matters could not be dealt with expeditiously. In a worst case scenario, again, the Court would retain the right to bring the trial to an end either by discharge or, in the case of vexation or abuse of process by way of a stay.

89 Delays are not uncommon during a criminal trial. Experienced judges are generally able to explain the situation; to explain the reasons for the delay and to ask for the jury’s indulgence if delay occurs. It is also the function of the judge in such a situation to make it clear to the jury, if it is appropriate, that the delays are not the fault of the accused nor of the prosecution. The experience of the Court is that juries are understanding of such delays and do not allow properly explained interruptions to the trial process to divert them from their important task.

90 The critical point, however, is that the Court, even in the worst case situation I have outlined, would still retain control over the trial so as to be able to ensure that the accused was not tried unfairly (Dietrich (1992) 177 CLR 299). I am unable to accept the suggested dichotomy inherent in the submission for the media interests that the so called right to bring a trial to an orderly conclusion is frustrated and not met, for example, where a stay order is made. In this regard, the presence of s 19 in the legislation is very important both in its general application and in particular its application to orders made during a s 31 hearing. The core function of a court in criminal trials is to establish guilt or innocence but the public interest may be met in an extreme case by a stay order.

91 In my view, adopting the test stated by Gummow J in Nicholas v The Queen at (145) the system of mandatory adjournments contemplated by the Act does not amount to such an interference with the governance of the trial, nor a distortion of its predominant characteristics, so as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth. There is plainly a potential for a degree of disruption. The discretion of the Court has been displaced to the extent that adjournments must be granted in the stipulated circumstances, should they arise, but overall, in my opinion, the level of disruption is not so great as to render the legislation unconstitutional.

92 Mr Blackburn SC argued that the result for which he contended arose not only because of the mandatory adjournments but because of a combination of other factors revealed in the legislation. Mr Blackburn, however, made it clear that none of these other matters, viewed individually, would lead to constitutional invalidity. Rather it was their cumulative effect when the legislation was assessed as a whole.

93 I am not satisfied however that the other features of Part 3, either collectively or individually, represent an incursion into the Commonwealth judicial power so as to bring about invalidity. Nor do they, in my opinion, change the essential nature and character of the Supreme Court conducting a criminal trial. I will, however, make a brief comment about each of the matters mentioned during the course of arguments.

94 The first was the fact that legal counsel were rendered liable to criminal prosecution under the legislation by failing to give notice to the Attorney-General of his or her knowledge or belief that he or she will disclose in a federal criminal proceeding information that relates to effects national security (s 42). This is undoubtedly a novel section and, in some respects, a startling one. It does not, however, in my view directly impinge on the considerations relating to the function of the Court. Secondly, there is a need for court staff and personnel to have security clearances at the appropriate level. (s 23, s 29(3), National Security Information Regulations 2005 and Requirements for the Protection of National Security Information). Again, this is novel and undoubtedly intrusive so far as court officers and personnel are concerned. It does not, however, directly impinge on the functional characteristics of the Court in conducting a criminal trial. To the extent that it may have an indirect effect, it is not an effect of the kind or character that would yield invalidity. A third matter relates to the exclusion of persons under the closed court hearing which I have described as a s 31 hearing. Two points may be made: first, the discretion to exclude persons who do not have security clearances only arises if disclosure is threatened and that disclosure would be likely to prejudice national security (s 29(3)). The definition of “likely to prejudice national security”, is: -

“A disclosure of National Security Information is likely to prejudice national security if there is a real, and not merely a remote possibility that the disclosure will prejudice national security”.

95 It would not be the usual situation that there would be any threatened disclosure of material likely to prejudice national security to the defendant or to his or her legal representative during a s 31 hearing. The normal situation would be that the documents or part of the documents would not be disclosed to those persons. Secondly, s 29(4) is in the following terms:

“(4) If, at the hearing, the prosecutor or any person mentioned in paragraph (2)(f) argues that any information not be disclosed or that the witness should not be called to give evidence, in the proceedings, the defendant and any legal representative of the defendant must be given the opportunity to make submissions to the Court about the argument that the information should not be disclosed or the witness should not be called.”

96 Thus it will be seen that, in the stipulated circumstances, the defendant and his representative must be heard. Neither of these factors I have identified misaligns the statutory procedures to such an extent as to make the procedure materially different from the situation that arises traditionally where a public interest immunity claim is made. Admittedly, there is a closed court for this hearing but it is important to note that the hearing is not concerned essentially with the admission or exclusion of evidence. It is concerned only with disclosure and the identification of material that may be later adduced in the trial. Questions as to the admissibility of the evidence and the manner of giving the evidence remain for the determination of the trial judge in the ordinary way. These procedures would normally be carried out in open court and bring about a situation where the only evidence properly placed before the jury is evidence that is properly admissible and not otherwise subject to exclusion.

The discretion under s 31(7) and (8)

97 One important matter relied on by Mr Blackburn SC in relation to his argument as to the cumulative effect of the legislation was the nature of the discretion under s 31(7) and (8). Mr Blackburn also relied on this analysis to support his second major argument.

98 For convenience, I will repeat here the terminology of ss 31(7) and (8):

(7)(a) Whether, having regard to the Attorney-General’s certificate there would be a risk of prejudice to national security if:

(i) Where the certificate was given under sub-s 26(2) or (3) – the information were disclosed in contravention of the certificate; or

(ii) Where the certificate was given under sub-s 28(2) – the witness were called.

(b) Whether any such order would have a substantial adverse affect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence;

(8) In making its decision, the Court must give greatest weight to the matter mentioned in paragraph (7)(a).

99 As to the factor mentioned in 7(a), it is clear that the Court must first have regard to the Attorney-General’s certificate. In doing so the Court must consider whether there would be a risk of prejudice to national security if the information were disclosed in contravention of the certificate; or if the witness were called.

100 The first point to observe is that it is not simply a matter of determining whether there would be a risk of prejudice to national security if disclosure were allowed as opposed to non disclosure. The certificate, for example, may be conditioned in a number of the ways contemplated by either s 26(2) or 26(3). This will require the Court to consider a number of options contrary, perhaps, to the one selected in the certificate. The situation, however, is more stark in relation to the calling of witnesses. In this case, the position would appear to be that either the witness is to be called or not.

101 The second matter to be observed is that the Court is considering a factor, which involves an assessment as to whether “there would be a risk of prejudice to national security”. This, it is to be observed, is at a lower level than the definition of “likely to prejudice national security” in s 17.

102 The next factor to be considered is that provided for in s 31(7)(b):

(b) Whether any such order would have a substantial adverse affect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence;

103 The third factor mentioned in s 31(7) includes “any other matter the Court considers relevant”. It was not suggested in argument what these other relevant matters might be. It is of course difficult to view the situation that might arise in a s 31 hearing purely in the abstract. The content of a certificate issued by the Attorney-General would no doubt enliven consideration of the possibility of other factors or matters that the Court might consider relevant.

104 It seems to be quite clear that one likely aspect of a s 31 hearing is that evidence will be called. More likely than not, the evidence would be from a government official although there is no suggestion in the legislation that the right to call evidence in the s 31 hearing is taken away from either party or for that matter from the Attorney-General.

105 Mr Blackburn SC argued that the discretion in s 31 was a “sham” or “mere window dressing”. I am unable to agree. It is clear, of course, that the Court must have regard to the Attorney-General’s certificate. But there is no suggestion, on the proper construction of s 31(7) and (8) that the certificate is conclusive or determinative of the issue. Subject to giving the matter raised in 7(a) the appropriate weight, the Court is free to form a view that is entirely contrary to the tenour of the certificate. It is true, of course, that of all the possible factors that are or might be considered, the matter in 7(a) is to be given the greatest weight.

106 For my part however I do not see that this transforms the discretionary exercise into a “sham” or “pretended” discretionary exercise. There are a number of reasons why this is so. I shall deal with them separately.

107 First, there is an absolute right for the defendant and his legal representative to be heard in the stipulated circumstances under s 29(4). Secondly, as I have said, the right to call evidence, the right to cross-examine and to make submissions is not curtailed in any way in relation to the closed court hearing. Thirdly, the Court is to give consideration to the factor whether an order made would have a substantial adverse affect on the defendant’s right to receive a fair hearing (as that expression is defined in s 7). There is no suggestion that this is anything other than a real and not an illusionary matter to be considered. Fourthly, the Court is to give consideration to any other matter that it considers relevant. Fifthly, in performing the function or exercising the power under s 31, the Court is specifically required to have regard to the object of the Act set out in s 3. (s 3(2)). This puts to the forefront in the discretionary exercise the possibility that, should the prevention of disclosure seriously interfere with the administration of justice, disclosure should be allowed. Sixthly, the Court specifically retains its general power to control the conduct of the criminal proceeding and in particular with respect to the abuse of process (s 19(1)). Moreover, an order under s 31 does not prevent the Court from later ordering that the federal criminal proceeding be stayed on a ground involving the same matter, including that an order made under s 31 would have a substantial adverse affect on a defendant’s right to receive a fair hearing. (See for example R v Lappas & Dowling (2001) ACTSC Gray J), where, in a different context, the Court refused to make a disclosure of material but then stayed the charge effected by the non disclosure).

108 The mere fact that the legislation states that more weight, that is the greater weight, is to be given to one factor over another does not mean that the other factor is to be disregarded. The use of the expression “greatest weight” appears to be grammatically correct since the legislation is contemplating three (or more) considerations. Nor do I consider that the discretion is an exercise that, as was argued, will almost inevitably lead to one result namely, prevention of disclosure. Mr Boulten SC described it as “filling in the dots”. I cannot agree with this description. Read fairly, it seems to me that the legislation does no more than to give the Court guidance as to the comparative weight it is to give one factor when considering it alongside a number of others. Yet the discretion remains intact and, particularly for the reasons I have outlined, it seems to me that there is no warrant for supposing other than that, in a proper case, the Court will order disclosure or a form of disclosure other than that preferred by the Attorney-General. The legislation does not intrude upon the customary vigilance of the trial judge in a criminal trial. One of the court’s tasks is to ensure that the accused is not dealt with unfairly. This has extended traditionally into the area of public interest immunity claims. I see no reason why the same degree of vigilance, perhaps even at a higher level, would not apply to the Court’s scrutiny of the Attorney’s certificate in a s 31 hearing.

109 Mr Burmester QC, in fact, argued that in one sense the situation is not really very different from that encountered when a court customarily considers ministerial claims to immunity in relation to the production of documents or information. It is true, as Mr Burmester argued, that cases such as (Alister v The Queen (1984) 154 CLR 404 at 435) emphasise that, in public interest immunity claims, very considerable weight is attached to the view of what national security requires as that is expressed by the responsible minister. Nevertheless, I do perceive there to be a difference between this regime and that customarily employed in the resolution of public interest immunity claimed. The difference resides in s 31(8). But the difference is not so great as to warrant the conclusion that the discretion has been taken away or eroded in an impermissible manner.

110 On the other hand, I do not accept Mr Blackburn’s assertion that the legislation is in truth a device “to lock up for all purposes” and for a considerable time vast amounts of government information. In my view the legislation serves a limited purpose, namely the purpose stated in the object clause in s 3 of the Act. The legislation is dealing with disclosure in and ancillary to the criminal trial. The section is not dealing with suppression orders or closure of a court in general session when the jury is present (see s23). Those powers remain and may be exercised by the court in the ordinary way. But they are not the concern of s 31.

111 The High Court has made it clear that the legislature does have considerable power to intervene and direct the court as to the procedure and practice to be followed in particular matters. These interventions will not result in constitutional invalidity. In Nicholas v The Queen at (20) Brennan CJ said: -

“A law that purports to direct the manner in which judicial power should be exercised is constitutional invalid. However, a law which merely prescribes a Court’s practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion.”

“It is for the Parliament to prescribe the law to be applied by a court and if the law is otherwise valid, the court’s opinion as to the justice proprietary or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests.”

“The section in its operation, if not necessarily on its face, deals not with proof but with a discretion to exclude evidence of facts. It operate to facilitate the proof by the prosecution of its case by the admission of evidence that otherwise was liable to exclusion. The case for the accused is made that much more difficult than it would have been if s 15X had not been enacted. However, the section does not deem any ultimate fact to exist, or to have been proved. It leaves untouched the elements of the crimes which the accused is to be tried. Nor does s 15X change the amount or degree of proof essential to convict from that required when the alleged offences were committed.”

“The facts that the discretion is a creature of common law and is concerned with the protection of the integrity of the court’s processes do not mean that the discretion cannot be effected by legislation. There are many rules which have been developed by the common law that have been changed or even by abolished by legislation and yet it is not suggested that such legislation intrudes upon the separation of judicial and legislative powers. Nor do the facts that the discretion is designed to protect the integrity of the courts and that the discretion is ‘an incident of the judicial powers invested in the courts take the discretion altogether beyond the reach of the legislature. Whether other considerations would arise if Parliament had attempted to abolish the discretion altogether is a question I need not, and do not address. The legislation now in question does not abolish the discretion – it affects only some kinds of prosecution and then only in the limited circumstances that are prescribed in the legislation”.

“Once it is accepted that the legislature may make or change the rules of evidence it is clear that it may make or change rules governing the discretionary exclusion of evidence. In particular it may make or change rules governing the factors, which a court is to take into account in exercising that discretion. In a case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusion on the judicial power by the legislature saying that, in some kinds of case, one consideration…is to be put to one side in favour of the consideration that persons committing a particular kind of crime should be convicted and punished”.

112 The final matter I need to consider may be dealt with briefly. Mr Blackburn SC had argued that because of the wide ranging definition of national security and its components in ss 8, 9, 10 and 11, the Court in exercising its functions in a s 31 hearing, would be deciding policy matters that fell outside of the proper arena of judicial consideration. In my opinion this submission is not correct. I see little difference, notwithstanding the width of the definition, between the present situation and that involved in public interest immunity claims. Such claims, for example, may arise during the course of the hearing pursuant to s 130 of the Evidence Act 1995. This section is headed “Exclusion of evidence of matters of state”. The width of the expression “matters of state” would be apt to embrace many, if not all, of the matters mentioned in ss 8, 9, 10 and 11 of the Act. Included in the Evidence Act as examples of “matters of state”, are prejudice to security of defence or international relations of Australia; damage to relation between the Commonwealth an a state; prejudice to the proper functioning of the Commonwealth (s 130(4) of the Evidence Act.

113 In summary then, for the reasons I have given, it is not in my opinion a situation where the subject legislation compromises in any real sense the fundamental characteristics of a criminal trial nor the fundamental characteristics of the Supreme Court in hearing a criminal trial. Part 3 of the legislation does not take away the character of the Court or the fact that the Court is exercising the judicial power of the Commonwealth. While it is true that certain discretions are replaced (mandatory adjournments) and that legislative guidance is given in the conduct of the s 31 hearing, the traditional procedures of a criminal trial are altered only for a very limited purpose, namely the issue of the disclosure of information to enable a determination as to what evidence is to be adduced in the trial or as to the witnesses to be called in the trial.

Freedom of political communication

114 As I have earlier indicated, the parties are in agreement as to the appropriate principles to be applied in relation to the question whether Part 3 of the Act is incompatible with the implied freedom of communication of government and political matters. Those principles are: -

1. Freedom of communication on matters of government and politics is an incident of the system of representative government created by the Constitution ( Lange v Australian Broadcasting Corporation (1997) 196 CLR 520).

2. The source of the implied freedom is, principally, ss 7, 24, 64 and 128 of the Constitution ( Coleman v Power at (80); APLA v Legal Services Commission of New South Wales at 420). These provisions concern the requirements for free and direct elections to parliament, executive responsibility to parliament, and amendment of the Constitution. The provisions necessarily imply a freedom from legislative executive and common law interference for communications for electors relevant to the system of representative and responsible government: Levy v Victoria (1997) 189 CLR 579 at 622.

Lange

Coleman v Power

115 Accordingly, the Lange, test as modified in Coleman v Power, involves three steps:

(i) Determining whether the law effectively burdens communication about government or political matters (“political communication”)

(ii) Identifying the object of the law and determining whether it is incompatible with the system of government prescribed by the Constitution; and

(iii) Determining whether the manner in which the law achieves that object is incompatible with the system of government prescribed by the Constitution, in that the law is not reasonably appropriate and adapted to its end.

Resolution of the issues

116 The first step is, in a sense, the most difficult to resolve. This is because, first, it is difficult to construe the section in a vacuum. The presence of a certificate and a document to which the certificate relates would necessarily give content to the question to be resolved. Secondly, as the submissions by Mr Burmester QC correctly point out, in many instances where a public interest immunity claim is made, the Court may not find it necessary to inspect documents; and, even where such an inspection is made, the defendant may not be permitted to examine the documents. Moreover, in the present trial, it has been indicated that the accused will seek to make an application to use the services of a special counsel in relation to any s 31 hearing or during the hearing of any public interest immunity claim. Whether such an application will in fact be made and granted is impossible to say at this stage.

117 I am inclined to a general view, as argued by Mr Burmester QC, that the effective burden of the closed court requirements for a s 31 hearing falls in the main upon the legal argument as to whether disclosure should be made rather than the political communications contained in documents that are the subject of the disclosure hearing. Nevertheless, it may be possible, in some circumstances, that political communications will be effectively burdened by the legislation. This is so even though the number of occasions when it is likely to happen will be relatively small.

118 For this reason, I will assume without deciding that, for the purposes of this hearing, the media interests have been able to establish in their favour the first question. I do so because I have come to a firm conclusion that the second and third steps should be found in favour of the arguments advanced by the Attorney-General. This conclusion will have the effect of concluding the issue on this point in favour of the Attorney-General.

119 First, I accept that the object of the legislation in question is plainly compatible with the maintenance of representative and responsible government. The object of the Act, as was argued, is to protect Australia’s national security and thus to protect the system of representative and responsible government established by the Constitution. The real question is whether the manner in which the law achieves that object is or is not compatible with representative and responsible government.

120 At the outset, I should say that no authority has been placed before me to cast doubt on the proposition that the exercise of the ordinary powers of the Court under a provision such as s 85B of the Crimes Act 1914 or s 93.2 of the Criminal Code 1995 (restricting access to a court hearing or evidence adduced) infringes the constitutional freedom. It is a well established procedure for a Court to make appropriate orders, where authorised, and in so doing to balance competing interests in the administration of justice. This extends to the suppression of evidence during a court hearing (John Fairfax Group Pty Limited (Receivers & Managers appointed) v Local Court of New South Wales per Kirby P: (1991) 26 NSWLR 131 at 141). These observations were approved by Mahoney P in Nationwide News Pty Limited v District Court of New South Wales at 494G.

121 There is nothing in the language of s 31 that precludes a similar conclusion as to orders made pursuant to its reach. Any such orders made, after a s 31 hearing, however do not, as I have earlier said, relate to the suppression of evidence to be tendered in the trial. They are concerned with issues of disclosure that are ancillary and preliminary to the trial process. Should matters arise during the trial that require a s 31 hearing, essentially those matters remains preliminary and ancillary to the trial process. I accept that, following the s 31 hearing, there may be issues of a broader nature during the trial in relation to the tender of evidence which may require the Court to consider whether any suppression order should be made or, whether for example, the name of a witness should be suppressed and replaced with a pseudonym. There is nothing in the legislation that precludes the Court from considering and determining such matters in a subsequent public hearing. This means, in practical terms, that the media or other interests would have the opportunity to make submissions in relation to such matters if they so desired. Section 31 does not mandate a closed hearing for that purpose nor, for that matter, do the discretionary considerations of s 31(7) and (8) apply to such a hearing. That is to say that the court’s general discretion will apply in accordance with established authority and principle.

122 It may be that during a s 31 hearing some question will arise or touch upon issues as to whether there is the later possibility of a suppression order or other order being made during the trial process when the evidence is to be tendered or a witness is called. The mere fact that such issues might be touched upon in the s 31 hearing does not in any way preclude those issues being raised during the trial itself.

123 In my opinion, the fact that the s 31 hearing is to be a closed hearing does not place an undue burden given the legitimate aim of such a hearing and the subject matter with which it deals. It is a limited hearing dealing with a limited topic as I have indicated. The closure of the court and the limitations on those who may appear at the closed hearing is likely to engender a more candid and frank discussion about any national security issues; and at the same time re-enforce the safety of sensitive material from unnecessary disclosure at that preliminary point in the proceedings. In that respect, it is not far different from the method in which a public interest immunity claim is dealt with by a court dealing with sensitive material.

124 Nor do I consider the fact that the media interests have no right to make submissions in relation to such a hearing is itself an impermissible burden. Media interest do not have a “right” to be heard in relation to such matters (Nationwide News Pty Limited v District Court of New South Wales; John Fairfax Publications Pty Limited v Ryde Local Court at (29), (31), (32) and (47)). The position may well be different if the legislation purported to restrict the media from ever making submissions about documents that arguably raised political communications but that is not the situation here. As I have said a number of times, any decision to suppress details of information disclosed in court or related to witnesses that are to appear in the hearing is made separately and independently of the s 31 hearing and in accordance with the court’s usual practices.

125 For these reasons, I have come to the conclusion that this third challenge to the constitutional validity of Part 3 of the National Security Information (Criminal and Civil Proceedings) Act 2004 should fail.

126 I propose to order that the Notice of Motion be dismissed.

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CITATION:	Regina v Lodhi [2006] NSWSC 571
HEARING DATE(S):	12/12/05, 13/12/05, 15/12/05, 31/01/06, 01/02/06,
JUDGMENT DATE :	7 February 2006
JUDGMENT OF:	Whealy J at 1
DECISION:	Notice of Motion dismissed
CATCHWORDS:	National Security Information (Criminal & Civil Proceedings) Act 2004 - Constitutional validity - implied freedom of speech in political discussion
LEGISLATION CITED:	National Security Information (Criminal and Civil Proceedings) Act 2004 Judiciary Act 1903 National Security Information Regulations 2005 Requirements for the Protection of National Security Information Evidence Act 1995 Crimes Act 1914 Criminal Code 1995
CASES CITED:	Coleman v Power [2004] 220 CLR 1 per Gleeson CJ at para 26; McHugh J at paras 74, 92 and 95; Gummow and Hayne JJ at para 196; Callinan J at paras 288-289 Russell v Russell (1976) 134 CLR 495 at 520, 533 APLA Limited v Legal Services Commission of NSW [2005] 79 ALJR 1620 at (451) per Callinan J Nationwide News Pty Limited v District Court of NSW (1996) 40 NSWLR 486 John Fairfax Publications Pty Limited v Ryde Local Court [2005] 62 NSWLR 512 at (29), (31), (32) and (47) Lemesurier v Connor (1929) 42 CLR 481 at 495 R v Murray & Cormie; Ex Parte the Commonwealth (1916) 22 CLR 4337 at 452 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 Nicholas v The Queen (1998) 193 CLR 173 at 232 Dietrich (1992) 177 CLR 299 R v Lappas & Dowling (2001) ACTSC Gray J Alister v The Queen (1984) 154 CLR 404 at 435 Lange v ABC (1997) 1996 CLR 520 Levy v Victoria (1997) 189 CLR 579 at 622 John Fairfax Group Pty Ltd (Receivers & Managers appointed) v Local Court of NSW per Kirby J (1991) 26 NSWLR 131 at 141
PARTIES:	Regina v Faheem Khalid LODHI John Fairfax Publications Pty Limited and other Media outlets (Applicants) The Attorney-General for the Commonwealth (Intervening Respondent)
FILE NUMBER(S):	SC 2005/1094
COUNSEL:	Mr Blackburn SC; Ms K. Richardson - Applicant Mr P. Boulten SC; Mr P Lange - Accused Mr H Burmester QC; Mr T. Howe - Cth Attorney General (By Leave) Mr R. Maidment QC; Mr G. Bellew - Crown
SOLICITORS:	Mallesons - Applicant Michael Doughty Solicitor - Accused AGS Solicitors - Cth Attorney-General Commonwealth DPP - Crown