Smethurst & Anor v Commissioner of Police & Anor

[2019] HCATrans 169

[2019] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S196 of 2019

B e t w e e n -

ANNIKA SMETHURST

First Plaintiff

NATIONWIDE NEWS PTY LTD

Second Plaintiff

and

COMMISSIONER OF POLICE

First Defendant

JAMES LAWTON

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 30 AUGUST 2019, AT 9.30 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC:   May it please the Court, I appear with MR P.D. HERZFELD for the plaintiffs.  (instructed by Ashurst Australia)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MS S. ZELEZNIKOW for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes.

MR LLOYD:   Has your Honour received the submissions of both parties?

HER HONOUR:   Mr Lloyd, I have.  Can I take up one matter with you?  I understand your concern that at this stage you do not know quite how the Commonwealth proposes to deploy the information relating to the documents bearing on national security.  It did seem to me in one respect the Commonwealth makes clear that the reasons for the summary, as it were, contained in paragraphs 49 and 53 of the draft special case serve to identify for the Court the words that appear in the subject article.  I wondered if there was really any controversy in relation to those security classifications.

MR LLOYD:   Perhaps if I say this.  There may not be in relation to that.  What I was going to say, your Honour, is that what the special case has is that if you put aside everything which is underlined that has, I think, all the agreed facts which both parties would say were needed, plus all of the documents which the Commonwealth wants to rely upon for whatever purposes it wants to rely upon them for, which we do not yet fully understand. 

Then what the underlining has – and different bits of it may be – I mean, we have perhaps not accurately referred to it as summaries because different things might be seen as doing – some are summaries, some are perhaps not summaries or some are summaries but do not appear to be summaries.  So if I can just make that good and show the kind of concern we have.  If your Honour goes to paragraph 38 – this is the first piece of underlined text that says:

The Information Security Core Policy sets out seven overarching mandatory requirements.

Now, if your Honour were to look at that document you would see it says there are seven overarching mandatory requirements.  We do not dispute that it says that but, of course, the Commonwealth can just say that in their submissions if that is what it means but they are wanting us to agree in this way to it being an overarching mandatory requirement which then begs what “mandatory” means and begs what “requirements” means.

HER HONOUR:   I understand that.  The one matter I was raising with you related to whether it is in controversy that there are four classifications.

MR LLOYD:   I think it is probably not in dispute ‑ ‑ ‑

HER HONOUR:   They are as set out in paragraph 49 and that has some plain materiality having regard to the contents of the article, as I understand it.

MR LLOYD:   I think it is not in dispute that the INFOSEC Management Guidelines do provide, in essence, what is said at 49.1 to 49.4 so I think that that is not controversial.  Insofar as 53 says “INFOSEC Management Guidelines provided things” that might also not be controversial.  In that sense they are truly summaries.

HER HONOUR:   Yes.

MR LLOYD:   Other bits – to give your Honour another example, in paragraph 42 it says:

The ISMP (at [48]) required agency heads –

Now, it might be accepted as a fact that the ISMP stated at paragraph 48 that agency heads are required to do those things.  So that is something that could well be a summary but it is not quite posed as a summary.  It is posed as a kind of position.  Then the next sentence is “As a result”, so that is more of an inference from what one might draw from it.  Then the next sentence is maybe again back to being sort of a summary as to what was said in the document.

Part of our concern is all of this in the context of paragraph 1 of the document – the special case.  So paragraph 1 presumably is put there to comfort us but it does not comfort us a great deal – is this idea that:

The explanations of those documents contained in the Special Case are for ease of reference only and in no way limit or affect the meaning and effect of those documents.

Our concern is we will end up having arguments as to well we were not actually agreeing that was the fact.  We were just ‑ ‑ ‑

HER HONOUR:   Yes, I understand.

MR LLOYD:   So it may well be that there are matters like paragraphs 49 and 53 that would be convenient to just have in there to identify that.  Our

basic position is we think the Commonwealth could put – everything which is underlined could be just put in their submissions and then it may well be – I could be wrong about this, but it may well be that none of that is any way controversial and our answer to it is at a wholly different level and we might say even if that is all true it does not go anywhere, in which case we will not spend any time on it at all. 

On the other hand, because we do not really know how it is being deployed, it might be central and then we might have to have some arguments about what the documents mean and then we are troubled, if we have agreed something, albeit subject to paragraph 1, so that is our concern for it.

HER HONOUR:   I understand.  Perhaps I might hear from the Solicitor‑General.

MR DONAGHUE:   Your Honour, in our submission, paragraph 1 gives our friends all the comfort that they need because it would not be open to us to try to confine them by reference to a description or a pointer in circumstances where they wanted to draw something different or they said well, the document does not go any – the agreed fact pointing to parts of the document goes no higher than the document itself.  So we are not confining them to some agreement as to the legal character or something described as a mandatory requirement.

But that language – and your Honour may not, because we have not given you all the underlined documents this may not be clear to your Honour but the documents themselves draw distinctions within their terms based on whether or not something is called “mandatory” versus otherwise so that the fact of the descriptor is of significance because people have to do certain things for mandatory requirements which they do not have to do for other things.  So it is a factually relevant descriptor and that is why we have included it.

We respectfully agree with your Honour’s question and I think Mr Lloyd’s agreement that there are some differences within the documents.  In our submission, 49 and 53 are good examples of facts that just help the Court to understand what the markings on the documents in question meant. 

Can I ask your Honour to look at 66 and 67 which are a slightly different category of fact, perhaps not accurately called a summary.  But here, in our submission, there is a very valuable efficiency purpose served by the inclusion of the facts because it is true, as Mr Lloyd says, that we could say in our submissions effectively what your Honour sees at 66 and 67.

HER HONOUR:   Yes.

MR DONAGHUE:   But if we did that we would have to have a footnote to show the Court how to get there and that footnote would be a footnote that would take the Court to a whole series of different tables in the document and the tables have multiple rows and multiple columns so we would have to say “Go to table 2, column 5, row 7 and cross‑reference that with another table and another table and then a paragraph”.  So if the fact that one gets at the end of that journey is not controversial it seems to us we should just agree it between the parties and then we can go straight there.

HER HONOUR:   Mr Solicitor, I see the evident sense of that.  The difficulty is that the plaintiffs’ concern is they do not know exactly how the material might be deployed and so we just run in inevitably to a timing problem.  I understand that the Commonwealth is willing to accommodate some further time to the plaintiffs to allow them to review the documents more closely, but we will always have that difficulty because any timetable is going to be posited on the special case having been agreed upon and the subject of a referral.

Frankly, Mr Solicitor, I do not see a way around it and I see the force of the plaintiffs’ concern not to agree to selective summaries of the 360‑page document in circumstances in which it is not completely clear to them how the Commonwealth will seek to rely on that material.  I just do not see a way round it.

MR DONAGHUE:   Well, save, your Honour, for the fact that the summary does not prejudice them because the whole document is there and if there is anything in it that they want to refer to or they say that we have not accurately summarised once they have seen our submissions they can say well, in this particular respect, your Honours need to be careful about paragraph 66 because you should look at document X or Y.  But unless there is a problem of that kind the Court will have the benefit of not needing to go trawling through the documents for propositions which we think are not controversial.

HER HONOUR:   But if there is a problem of that kind, one runs into the difficulty of a special case where the Court cannot rely on it as the agreed basis upon which it is to draw inferences.  It remains possible, as Mr Lloyd raises, not in terrorem but with the problem of it being suggested that parts of the special case cannot be relied on and issues as between you and Mr Lloyd concerning whether or not a matter is the subject of agreement.  I mean, I just do not see that, at the end of the day, we are necessarily going to get the efficiency that you seek.  I understand ‑ ‑ ‑

MR DONAGHUE:   Your Honour, we posited it because we thought it might spare everybody some pain at the hearing and afterwards.

HER HONOUR:   Yes.

MR DONAGHUE:   If your Honour does not think it will assist then our agreement is not conditional on including it.  We would seek to re‑engage about some of the paragraphs – 49 and 53 in particular, maybe a few others with our friends.  But if the Court’s guidance is you do not think it will help then we are in your Honour’s hands.

HER HONOUR:   The Court’s guidance is absent agreement it will not assist.  I do understand, Mr Solicitor, the evident charm of not requiring the Court to work through, from your submissions, detailed footnotes to get to the finding and it would be of assistance if the parties can agree at least on some of the material and it seemed to me perhaps 49 and 53 were good instances of that.  But in the absence of agreement it seems to me that the special case has to be slimmed down and we have to go through the process of you referring in your submissions to what you say are the inferences to be drawn from the material annexed to the special case.

MR DONAGHUE:   I understand, your Honour.

HER HONOUR:   May I just ask this next?  I see there has been a little bit – in the draft minute of orders – of bracket creep in relation to the length of submissions.  It is not clear to me what the need for that is.

MR DONAGHUE:   I think the need for it just got stronger, your Honour, in part because the need to deal with this quite lengthy policy material was part of what was informing that request.

HER HONOUR:   When I look at the number of paragraphs that are the subject of contention in the draft special case I have difficulty seeing that one needs to exceed the standard length.  That is what, a couple of pages?

MR DONAGHUE:   Your Honour, so there are the factual issues about the policy which will not be agreed but we will need to work through.  There is then search warrant validity issues of a couple of different kinds, the 3LA order validity questions, the constitutional questions as to the validity of 79(3) and the question of what would follow in the event that the Commonwealth lost on all of the other points.  There is a question there. 

So there are at least a number of really quite discrete legal topics that we will have to address plus the factual issue, in our submission.  Obviously we will do it in whatever page limit the Court allows but particularly if we are stepping through the facts it might be of assistance if we can do it in a

little bit more detail rather than denser footnotes which will either mean we spend oral time taking the Court through it or that there is less assistance for the Court in understanding it.  But again we are in your Honour’s hands.

HER HONOUR:   Mr Solicitor, it is not uncommon in these cases for there to be a raft of legal issues.  I am not persuaded to depart from the provisions of Part 44 relating to the length of the written submissions.  It may be in relation to the plaintiffs I would be prepared, in light of the matter that Mr Lloyd foreshadows, to permit, as it were, a total of submissions including reply to 25 pages and that gives a little latitude if there are going to be issues of factual controversy that are not clear to the plaintiffs until they receive your submissions, but beyond that I would propose that the standard directions respecting the length of submissions apply.

MR DONAGHUE:   If the Court pleases.  We have no opposition to that totality.

HER HONOUR:   Thank you, Mr Solicitor.  Yes, very well.  Mr Lloyd?

MR LLOYD:   We have nothing further to say, your Honour.  So that order would then say in i. 20 pages for us and then 20 pages for the Commonwealth in iii.

HER HONOUR:   That is right.

MR LLOYD:   Then 25 in v.

HER HONOUR:   Yes, so i. and iii. will be amended – this is in the draft minute of orders – to read 20 pages and v. amended to read 25 pages.  I will make orders then in accordance with the draft minute as amended.

MR DONAGHUE:   Your Honour, that contemplates I think that if we file the agreed special case by next Friday we would submit consent orders for your Honour to refer the matter to the Full Court and that then everything will take effect.

HER HONOUR:   Yes, indeed.  Thank you, Mr Solicitor.

MR LLOYD:   Your Honour, there is then the question of – I do not know if your Honour wants to discuss this – the length of the hearing and when it might be heard.

HER HONOUR:   Yes.  As I understand it, the hearing could be heard in the second week of November.  What is the estimate as far as you are concerned, Mr Lloyd?

MR LLOYD:   Our view, which I think was probably slimmer than the Commonwealth’s view, we thought if – putting aside the possibility of interveners, we thought it could be done in a day.  I understand the Commonwealth’s view is it is a two‑day matter and I think they also think that – maybe they have some better intelligence than us that interveners are quite likely.

HER HONOUR:   Yes.

MR LLOYD:   I do not want to be heard to speak against the Commonwealth’s two‑day estimate.

HER HONOUR:   Yes, all right.  I think in light of that – I take it, Mr Solicitor, are you in a position to indicate the likelihood of intervention?

MR DONAGHUE:   Your Honour, we have no confirmed information as to interveners but at least a couple of States have informally indicated it is likely.

HER HONOUR:   I see.

MR DONAGHUE:   There has also been some talk, I am not sure how formal, that the ABC, who, as your Honour may be aware, are running a similar proceeding in the Federal Court, might seek leave to intervene in the High Court.  I do not know how likely that is but there seemed likely to be at least some interveners and perhaps another, so we do not think it could be done in a day in those circumstances.

HER HONOUR:   No, thank you.  We will work on the basis of two days in the second week of November.  Are there any other matters to attend to?

MR LLOYD:   No, your Honour.

MR DONAGHUE:   No, your Honour.

HER HONOUR:   Very well.  Adjourn the Court.

AT 9.50 AM THE MATTER WAS CONCLUDED