Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs (No 3)
[2024] FCA 463
•3 May 2024
FEDERAL COURT OF AUSTRALIA
Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs (No 3) [2024] FCA 463
File number: NSD 120 of 2024 Judgment of: KENNETT J Date of judgment: 3 May 2024 Catchwords: PRACTICE AND PROCEDURE – suppression and non-publication orders – where respondent claims orders are necessary to prevent prejudice to Commonwealth’s interests in national security – where respondent claims orders are necessary to protect the safety of persons – where information relates to the safety and security of air travel Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG, 37AI, 37AJ
Aviation Transport Security Act 2005 (Cth) s 44B
Aviation Transport Security Regulations 2005 (Cth) regs 4.41JA, 4.46
Cases cited: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52
Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs [2024] FCA 427
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of last submission/s: 8 April 2024 Date of hearing: Determined on the papers Solicitor for the applicant: Norton White Counsel for the respondent: M Rennie Solicitor for the respondent: Australian Government Solicitor ORDERS
NSD 120 of 2024 BETWEEN: WISEWAY LOGISTICS PTY LTD
Applicant
AND: SECRETARY, DEPARTMENT OF HOME AFFAIRS
Respondent
ORDER MADE BY:
KENNETT J
DATE OF ORDER:
3 MAY 2024
THE COURT ORDERS THAT:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), and on the grounds identified in s 37AG(1)(b) and (c) of that Act, there be no publication of the material redacted in the document annexed to this order and entitled “Further Revised Annexure A” (being a document that identifies certain material in the Court Book) for 20 years from the date of this order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KENNETT J:
The factual and legal background to this matter is set out in my reasons for judgment: Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs [2024] FCA 427. These reasons will use the same acronyms and defined terms.
At the hearing, the respondent sought suppression and non-publication orders under Part VAA of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) in relation to some of the material contained in documents that, having been before the Administrative Appeals Tribunal, were contained in the material before the Court. I made interim orders under s 37AI of the Federal Court Act prohibiting the disclosure of the material pending the determination of the respondent’s application for ongoing orders.
The respondent subsequently filed written submissions in support of her application together with an affidavit affirmed by Mr Michael Minns, a senior officer in her Department. Accompanying the submissions was a revised version of the annexure to my earlier orders (which listed the documents to which those orders applied), indicating that the application was no longer pressed in relation to some of the documents. The applicant took a neutral position on the proposed orders. The respondent was content for the application to be dealt with on the papers.
Sections 37AF and 37AI of the Federal Court Act provide express powers to make orders prohibiting or restricting the publication or other disclosure of (inter alia) information that comprises evidence (or information about evidence) and information lodged with or filed in the Court. They operate subject to s 37AE, which provides that, in deciding whether to make such orders, the Court must take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”. Consistently with the importance of that principle, the grounds for making an order, which are set out in s 37AG, are framed in terms of the order being “necessary” for one or more of the purposes there identified. For this reason, even though the making of the proposed orders was not contested, it is desirable that some short reasons be given.
The documents in relation to which orders are sought comprise:
(a)documents comprising the applicant’s “RACA Security Program” issued to it under reg 4.46 of the Aviation Transport Security Regulations 2005 (Cth) (the Regulations); and
(b)various Air Cargo Examination Notices issued to the applicant under reg 4.41JA(2) of the Regulations and s 44B(2)(b)(i) of the Aviation Transport Security Act 2005 (Cth) (the Act).
Ongoing orders under s 37AF of the Federal Court Act, preventing the publication of this material, are sought. The respondent relies on the grounds set out in s 37AG(1)(b) and (c), which are as follows.
(b) the order is necessary to prevent prejudice to the interests of the Commonwealth … in relation to national or international security;
(c) the order is necessary to protect the safety of any person.
While “necessary” is “a strong word” (see Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 at [28]), it is not to be given an unduly narrow operation. Orders can be properly seen as “necessary” if the failure to make them will lead to a particular consequence and that consequence is unacceptable (see eg Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52 at [8] (Bathurst CJ) and the cases there cited). Further, the consequence to be guarded against under s 37AG(1)(b) and (c) is not specified physical injury or damage; it is damage to the “interests” of the Commonwealth in relation to “national or international security”, or impairment of the “safety” of a person. Consequently, an appreciation that unacceptable risks would arise from disclosure may be sufficient to establish the relevant necessity in these contexts.
The affidavit of Mr Minns affirms that aviation is a high value target for terrorism activities and it is therefore possible that aircraft will be targeted by violent extremist actors. A variety of security measures and cargo screening methods are therefore required to be implemented by RACAs under the Act and the Regulations. These procedures are the primary means by which the Commonwealth seeks to ensure that cargo loaded on to aircraft in Australia does not pose a risk to those aircraft and the individuals who travel on them. Mr Minns also explains how individual items of information which are not significant in themselves can, in combination with other information, be used to build a coherent picture of a sensitive matter. Thus, the information that has been identified as sensitive in the present case is capable of being put to use (along with information from other sources) by persons interested in causing or threatening harm to domestic and international civil aviation. The probability of physical harm being caused to aircraft, airports or individuals as a result of disclosure of the information may well be low, but the potential consequences are clearly very significant.
For these reasons, I am satisfied that the proposed orders should be made.
The orders are required to operate for a specified time (s 37AJ). I will specify a period of 20 years. However, I will not take up the suggestion of listing this matter for directions prior to the expiry of the orders. That would require the Court to keep the file open for 20 years after the proceeding has come to an end, and make the Court responsible for ensuring that a relevant reminder is generated at the end of that time. The respondent and her successors ought to have responsibility for taking action if a need is perceived to seek an extension of the orders.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett. Associate:
Dated: 3 May 2024
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