FEDERAL COURT OF AUSTRALIA

RJCG v Director-General of Security [2013] FCA 269

THE COURT ORDERS THAT:

1.    The use of the acronym “RJCG” to identify the applicant in this proceeding cease.

2.    As and from 27 March 2013, the correct name of the applicant, Yeon Kim, be used in all documents filed herein.

3.    Orders 3 and 4 made on 31 October 2012 be vacated.

4.    Up to and including 22 April 2013, the documents comprising the Administrative Appeals Tribunal’s open file not be published or disclosed to any person other than the parties to this proceeding, the legal representatives of the parties, the Court and its staff.

5.    Up to and including 22 April 2013, information identifying the foreign country, the foreign intelligence service and the foreign intelligence officers referred to in the Administrative Appeals Tribunal’s open file not be published or disclosed to any person other than the parties to the proceedings, the legal representatives of the parties, the Court and its staff.

6.    The Director-General of Security pay the applicant’s costs of and incidental to the Interlocutory Application filed by the Director-General of Security on 26 October 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The use of the acronym “RJCG” to identify the applicant in this proceeding cease.

2.    As and from 27 March 2013, the correct name of the applicant, Yeon Kim, be used in all documents filed herein.

3.    Order 3 made on 31 October 2012 and Order 1 made on 8 February 2013 be vacated.

4.    Up to and including 22 April 2013, the contents of Exhibit 1 and Exhibit JCMR-6 to the affidavit of James Charles McNair Ronald sworn on 26 September 2012; the contents of Exhibit IMS-18 and Exhibit IMS-19 to the affidavit of Irene Maria Sekler affirmed on 31 January 2013; and the contents of the applicant’s Outline of Submissions filed on 30 November 2012, not be published or disclosed to any person other than the parties to this proceeding, the legal representatives of the parties, the Court and its staff.

5.    The Attorney-General of the Commonwealth pay the applicant’s costs of and incidental to the Interlocutory Application filed by the Attorney-General on 26 October 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

OPEN REASONS FOR JUDGMENT

1    The applicant is a Commonwealth public servant employed in a senior capacity by a research organisation within a Commonwealth Department of State.

2    Between 2001 and 2011, the applicant held a security clearance for access to classified information up to and including “SECRET”. Without such a security clearance, the applicant’s career as a senior public servant in his specialist field will end.

3    On 15 September 2011, an adverse security assessment of the applicant was made by the Director-General of Security (DGS) of the Australian Security Intelligence Organisation (ASIO). The DGS has control of ASIO under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) (see s 7 and s 8 of the ASIO Act).

4    The adverse security assessment of the applicant was based upon allegations that the applicant had unreported contact with officers of the intelligence service of a country which is generally friendly to Australia, which I shall, for the time being, call “country X”. It was alleged that the applicant had provided information to an intelligence officer working for the intelligence service of country X in connection with government to government negotiations between Australia and country X concerning an important bilateral trade agreement. It was said that this conduct on the part of the applicant constituted “… acts of foreign interference …” within the meaning of that expression as defined in s 4 of the ASIO Act.

5    The applicant sought a review of the adverse security assessment in the Administrative Appeals Tribunal (AAT) pursuant to s 54 of the ASIO Act. That review must be conducted in accordance with s 39A and s 39B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

6    Section 39A(5) provides that the review proceedings are to be held in private in the Security Appeals Division of the AAT and, subject to s 39A, the AAT is to determine who may be present at the hearing at any time.

7    Subsections (6)–(11) of s 39A are in the following terms:

Right of parties etc. to be present

(6)    Subject to subsection (9), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director General of Security or the Commonwealth agency to which the assessment was given.

(7)    The Director General of Security or a person representing the Director General, and a person representing the Commonwealth agency to which the assessment was given, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.

Security/defence certificate

(8)    The Minister administering the Australian Security Intelligence Organisation Act 1979 (the responsible Minister) may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director General of Security or the Commonwealth agency to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia.

(9)    If such a certificate is given:

(a)    the applicant must not be present when the evidence is adduced or the submissions are made; and

(b)    a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the responsible Minister consents.

(10)    If a person representing the applicant is present when evidence to which a certificate given under subsection (8) relates is adduced or submissions to which such a certificate relates are made, the representative must not disclose any such evidence or submission to the applicant or to any other person.

Penalty:    Imprisonment for 2 years.

Note:    Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

Protection of identity of person giving evidence

(11)    If the Director General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director General of Security is not revealed.

8    Section 39B provides that the Attorney-General of the Commonwealth may issue a public interest certificate the effect of which is to deny access to information or material specified in the certificate which is adduced in proceedings to which s 39A applies. Such a denial of access would extend to the review applicant and to his or her legal representatives.

9    On 17 August 2012, the AAT, in its Security Appeals Division, published an open Decision and Reasons for Decision (the open decision) by which it affirmed the adverse security assessment made by the DGS in respect of the applicant. I understand that, on the same day, the AAT published a closed decision dealing with secret classified information (the closed decision). I have not looked at the closed decision.

10    The applicant was dissatisfied with the open decision and, by a proceeding commenced in this Court on 14 September 2012 (No ACD 72 of 2012), appealed to this Court pursuant to s 44 of the AAT Act on five questions of law, from the open decision. In the event that the applicant presses that appeal, it will be heard by a Full Court. The applicant’s s 44 appeal has not yet been fixed for hearing.

11    For the purposes of and in connection with the applicant’s review application in the AAT, two certificates were issued in the name of the Attorney-General. Those certificates were dated 24 January 2012 and 7 March 2012 respectively. Those certificates had the effect of denying access to the applicant and his legal representatives to certain material tendered before the Tribunal during the hearing of his review application. The Attorney-General and the acting Attorney-General relied upon ss 36(1)(a), 39A(8) and 39B(2)(a) of the AAT Act as the statutory foundation for the issue of these two certificates.

12    The hearing of proceeding No ACD 74 of 2012 is fixed to commence today (27 March 2013).

13    I have made a number of orders in the period since the two sets of proceedings were first returned before the Court (ie since 12 October 2012), the effect of which was to prohibit the publication of certain material which was before the AAT for the purposes of the applicant’s review application in the AAT and also to prohibit the publication of other material subsequently created (including parts of the open decision and some evidentiary material filed in this Court).

14    In particular, on 31 October 2012, I made the following orders on an interim basis:

    In proceeding No ACD 72 of 2012:

THE COURT ORDERS THAT:

…

2.    Until further order, the contents of the Secret Confidential affidavit of David Taylor Irvine sworn on 26 October 2012 not be disclosed to any person and that the said affidavit be stored in a Class B safe.

3.    Until further order, the documents comprising the AAT’s open file not be published or disclosed to any person other than the parties to these proceedings, the legal representatives of the parties, the Court and its staff.

4.    Until further order, information identifying the foreign country, the foreign intelligence service and the foreign intelligence officers referred to in the AAT’s open file not be published or disclosed to any person other than the parties to these proceedings, the legal representatives of the parties, the Court and its staff.

    In proceeding No ACD 74 of 2012:

THE COURT:

…

2.    ORDERS that, until further order, the contents of the Secret Confidential affidavit of David Taylor Irvine sworn on 26 October 2012 not be disclosed to any person and that the said affidavit be stored in a Class B safe.

3.    ORDERS that, until further order, the contents of Exhibits 1 and JCMR6 to the affidavit of James Charles McNair Ronald sworn on 26 September 2012 not be published or disclosed to any person other than the parties to these proceedings, the legal representatives of the parties, the Court and its staff.

15    Also, on 8 February 2013, I made the following order in proceeding No ACD 74 of 2012:

BY CONSENT, THE COURT ORDERS THAT:

1.    Until further order, the contents of:

(a)    IMS18 and IMS19 to the affidavit of Irene Maria Sekler affirmed on 31 January 2013; and

(b)    The applicant’s Outline of Submissions (headed “Respondent’s Outline of Submissions”) filed on 30 November 2012

not be published or disclosed to any person other than the parties to these proceedings, the legal representatives of the parties, the Court and its staff.

16    I had earlier made a non-publication order in proceeding No ACD 72 of 2012 which is not presently relevant. That order was made on 12 October 2012 and is in the following terms:

THE COURT:

1.    ORDERS that the content of the classified Administrative Appeals Tribunal (AAT) file and the documents covered by non-publication orders made by the AAT pursuant to s 35AAA of the Administrative Appeals Tribunal Act 1975 (Cth), delivered to the Court by the AAT, are to be stored in a Class B safe and that no access be granted to that file and those documents (including access by the applicant or his legal representatives) without an order of the Court and without prior notice to Commonwealth which is to be given an opportunity to be heard in relation to the grant of any access order.

17    The interim orders which I made on 31 October 2012 and on 8 February 2013 which I have set out at [14] and [15] above were made in order to keep the subject matter of those orders confidential while I considered applications for a more permanent confidentiality regime made by the DGS and the Attorney-General.

18    Those applications were made by Interlocutory Application filed in each proceeding on 26 October 2012. Those applications were heard by me on a contested basis on 31 October 2012. At the conclusion of argument on that day, I reserved my decision in respect of both applications.

19    These Reasons for Judgment determine those Interlocutory Applications.

20    In proceeding No ACD 72 of 2012, the DGS seeks the following relief:

1.    The documents comprising the AAT’s open file shall not be disclosed or published to anyone other than the parties, their legal representatives, the Court or its staff.

2.    The Director-General of Security be given until 5 November 2012 to file and serve copies of the documents on the AAT’s open file which mask information identifying the names of the foreign country, the foreign intelligence service and the foreign intelligence officers referred to in the AAT’s open file.

3.     Information identifying the foreign country, the foreign intelligence service and the foreign intelligence officers referred to in the AAT’s open file shall not be published or disclosed to anyone other than the parties to these proceedings, the parties’ legal representatives, the Court or its staff.

21    In proceeding No ACD 74 of 2012, the Attorney-General seeks the following relief:

1.     The following information shall not be disclosed or published to anyone other than the parties to these proceedings, the parties’ legal representatives, the Court or its staff:

a)     exhibits 1 and JCMR6 to the Affidavit of James Charles McNair Ronald dated 26 September 2012 (filed in ACD 74 of 2012); and

b)     the redacted/highlighted information in Annexures ‘DTI 1’ of the Open and Confidential Affidavits sworn by David Taylor Irvine on 26 October 20 12.

For convenience, I will hereafter refer to the proponent for this relief as “the DGS”.

22    Exhibit 1 to the affidavit of Mr Ronald sworn on 26 September 2012 is the whole of the transcript of the hearing of the applicant’s review application in the AAT with the exception of that part of that hearing covered by the two certificates issued in the name of the Attorney-General.

23    Exhibit JCMR-6 to Mr Ronald’s affidavit is a copy of the open decision.

24    The redacted/highlighted portions in Annexure DT-1 to each of the open and confidential affidavits sworn by the DGS on 26 October 2012 comprise the material which the DGS seeks to mask in the open decision.

25    The DGS is concerned to keep from the public any information in the AAT file and in the open decision which might reveal or disclose the name of country X, the name of the intelligence service of country X or the names of the intelligence officers working for that intelligence service whose activities are relevant to both sets of proceedings in this Court. The question now before the Court is whether the Court will accommodate that concern by making appropriate non-publication orders. I note that none of the information sought to be kept confidential from the public is to be kept from the applicant. He has already had access to that material. I also note that the open decision does not contain any of the material which is protected from disclosure by the two certificates issued in the name of the Attorney-General to which I have referred at [11] above.

26    The applications with which I am presently dealing do not concern classified material. For this reason, neither party is seeking any variation to Order 1 made on 12 October 2012 in proceeding No ACD 72 of 2012, the terms of which I have extracted at [16] above.

27    As a separate matter, the applicant has applied for an order in both proceedings that his name no longer be suppressed. The DGS and the Attorney-General neither consent to nor oppose the making of such an order. In those circumstances, I propose to make an order lifting the suppression of the applicant’s name I will also make appropriate consequential orders.

The Relevant Sources of the Court’s Suppression Powers

28    The DGS relied upon former s 50 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), s 93.2 of the Criminal Code 1995 (Cth) (the Criminal Code) and s 85B of the Crimes Act 1914 (Cth) (the Crimes Act) (which is in similar terms to s 93.2 of the Criminal Code). The DGS also relied upon the inherent jurisdiction of the Court.

29    Former s 50 of the Federal Court Act was repealed by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) (No 186 of 2012) (the Access Act) which came into force on 12 December 2012. The Access Act came into effect after I heard argument in relation to the Interlocutory Applications filed by the DGS. Clause 5 of Sch 2 to the Access Act has the effect of repealing former s 50 of the Federal Court Act. Clause 4 of that Schedule inserted into the Federal Court Act Pt VAA – Suppression and Non-Publication Orders (ss 37AA–37AL). Part VAA now deals in a more prescriptive way with the question of suppression and non-publication orders in this Court.

30    Notwithstanding the repeal of former s 50 of the Federal Court Act, that section continues to have some ongoing significance. Clause 12 of Sch 2 to the Access Act specifies certain savings. Subclauses (1) and (2) of cl 12 provide as follows:

(1)    Despite the amendment made by item 5, section 50 of the Federal Court of Australia Act 1976, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to a proceeding heard by the Court before that commencement.

(2)    Despite the amendment made by item 5, the Federal Court of Australia Act 1976, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to an order made under section 50 of that Act before, on or after that commencement.

31    Discerning the meaning of the savings provisions which I have extracted at [30] above is not an easy task. For example, there is no definition of proceeding in Sch 2 to the Access Act. However, there is a definition of proceeding in s 4 of the Federal Court Act. That definition provides that:

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.

Example: Discovery is an example of an incidental proceeding.

32    The definition of proceeding in s 4 would encompass the Interlocutory Applications with which I am currently dealing. Clause 12(1) probably applies with the consequence that former s 50 applies to the applications with which I am dealing.

33    The interim orders which I have made so far were made pursuant to former s 50 of the Federal Court Act and the inherent jurisdiction of the Court. It seems to me that, for that reason, subclause (2) of Item 12 of Sch 2 to the Access Act requires that the Federal Court Act (including former s 50) would continue to apply in relation to any continuation of the interim orders which I have already made.

34    For the above reasons, I think that former s 50 remains the appropriate source of power within the Federal Court Act for the orders which the DGS seeks. I will therefore continue to consider his applications against the requirements of that section.

35    This conclusion is in line with a similar conclusion reached by Perram J in Australian Competition and Consumer Commission v Air New Zealand Limited (No 4) [2012] FCA 1439 at [3].

36    Immediately before its repeal on 12 December 2012, former s 50 of the Federal Court was in the following terms:

50     Prohibition of publication of evidence etc.

(1)    The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

(2)    This section does not limit section 23HC.

37    At [4] of Australian Competition and Consumer Commission v Air New Zealand Limited (No 4), Perram J said:

Former s 50 is concerned with evidence, not with the production of material at a stage anterior to its tender: cf. Cyclopet Pty Ltd v Australian Nuclear Science and Technology Organisation [2012] FCA 1326 at [25] per Jacobson J. The principles governing its exercise are clear and were comprehensively explained in Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30]-[33] per curiam. The provision is enlivened either because it is necessary to avoid prejudice to the security of the Commonwealth or to the administration of justice. ‘Necessary’ is a strong word and the reference in former s 50 to the security of the Commonwealth shows that the provision is not concerned with trivialities: Hogan at [30], citing Australian Broadcasting Commission v Parish (1980) 43 FLR 129; [1980] FCA 33 at 133 (FLR) per Bowen CJ. Once the necessity appears, there is no balancing exercise to be engaged in; the order is simply to be made. This is because the word ‘may’ in former s 50 does not disclose the presence of a discretion: Hogan at [31]-[32]. So too, the standard required by former s 50 before the power is enlivened is that of ‘necessity’ and this is to be contrasted with, and distinguished from, less demanding standards, such as whether the order sought would be ‘convenient, reasonable or sensible’: Hogan at [31].

38    With the exception perhaps of the proposition stated in the first sentence of the above extract, I agree with his Honour’s summary of the relevant principles. I intend to apply those principles in the present case.

39    The material sought to be protected at the instigation of the DGS is material which is in evidence before me on the present Applications and for the purpose of determining the claims for relief made by the DGS.

40    Section 93.2 of the Criminal Code provides:

93.2     Hearing in camera etc.

(1)    This section applies to a hearing of an application or other proceedings before a federal court, a court exercising federal jurisdiction or a court of a Territory, whether under this Act or otherwise.

(2)    At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interest of the security or defence of the Commonwealth:

(a)    order that some or all of the members of the public be excluded during the whole or a part of the hearing; or

(b)    order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or

(c)    make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.

(3)    A person commits an offence if the person contravenes an order made or direction given under this section.

Penalty:    Imprisonment for 5 years.

41    Section 93.2 requires the Court to conduct a balancing exercise between the need for open justice and the right of the accused to a fair trial (Lodhi v The Queen (2006) 199 FLR 288).

42    The applicant does not accept that s 93.2 of the Criminal Code or s 85B of the Crimes Act have any application in the present circumstances.

The Evidence of the DGS

43    The DGS read and relied upon two affidavits sworn by him on 26 October 2012. One affidavit is an open affidavit. The other one is a confidential affidavit which has been protected by Order 2 made on 31 October 2012 in proceeding No ACD 72 of 2012 and by Order 2 made on 31 October 2012 in proceeding No ACD 74 of 2012.

44    The open affidavit reveals very little of the true reasons for the position adopted by the DGS. The confidential affidavit provides some explanation for that position.

45    In the confidential affidavit, the DGS sets out his reasons for seeking orders masking certain portions of the open decision. He does not address the transcript of the hearing before the AAT or other material because, as he made clear in his open affidavit, he had not had a fair opportunity to consider the entire transcript with a view to identifying with precision those portions of the transcript which, consistently with his attitude, should be masked nor had he reviewed the other material which is susceptible to protection should he succeed in principle with his claims for protection.

46    In his confidential affidavit, the DGS identified those portions of the open decision which he seeks to keep from the public. Those portions may be satisfactorily identified in the following way:

    The applicant’s country of birth

    The title of the applicant’s thesis and other papers written by him which might be used to identify him

    The name of country X

    The name of the intelligence service of country X

    The specification of the particular transaction to which the alleged espionage was directed

    The dates and places of negotiations referable to that transaction

    The names of staff with whom the applicant had contact at the Embassy of country X

    The dates of such contact

47    In his confidential affidavit, the DGS said that country X was generally well disposed towards Australia although its interests did not always coincide with those of Australia. He said that this lack of alignment was particularly so when the economic interests of both countries were at stake. He said that the interests of Australia and of country X very much coincided on a number of matters relating to Australia’s security. He said that, for over 30 years, the two countries had an ongoing relationship and otherwise co-operated to the mutual benefit of both countries. He identified one particular set of circumstances by way of illustration of that general observation.

48    The DGS went on to say that ASIO had become aware that the intelligence service of country X had, through agents located in Australia, taken steps to cultivate Australian officials and public servants to obtain sensitive information relevant to government to government negotiations concerning matters of trade.

49    The DGS went on to say that ASIO had addressed its concerns about these matters with the relevant intelligence service and believed that the inappropriate activities of that service within Australia had ceased. In the course of those discussions, the representatives of country X had requested ASIO to do all in its power to prevent any public disclosure of the fact that the intelligence service of country X had been acting within Australia in the way in which I have outlined at [48] above. The DGS said that disclosure of the activities of the intelligence service of country X in Australia would have a detrimental impact on the ongoing relationship between the two countries. He said it would have an impact on the level of co-operation received from that country. In addition, he said that revealing the names of the relevant intelligence officers of the intelligence service of country X would effectively prevent them from ever acting in such a capacity in the future.

The Submissions of the DGS

50    The DGS relied upon former s 50 of the Federal Court Act, s 93.2 of the Criminal Code, s 85B of the Crimes Act and the inherent jurisdiction of the Court. Counsel for the DGS submitted that significant weight should be given to the views of the DGS in the same way as such weight is given when information is sought to be kept confidential on account of public interest immunity. Counsel submitted that, although the context in which the alleged breaches by the applicant occurred concerned commercial matters and did not relate directly to matters of national security, nonetheless matters of national security were involved because they would be affected in the future should the intelligence service of country X and other representatives of country X react to the disclosure of their activities by declining to co-operate with the intelligence services of Australia in the future in relation to matters which are clearly of national security significance. Counsel submitted that the withholding of the information the subject of the Applications made by the DGS would not prejudice the applicant in any way because that information had already been made available to him. He also submitted that the information to be withheld was relatively small in compass and would not prevent a reader of the relevant information from understanding the issues now before the Court.

The Applicant’s Submissions

51    The applicant submitted that neither s 93.2 of the Criminal Code nor s 85B of the Crimes Act had any application in the circumstances of the present case. The applicant submitted that those provisions only apply to proceedings in which an offence is being prosecuted.

52    Furthermore, the applicant relied upon Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30]–[33] in support of the submission that, for the purposes of former s 50 of the Federal Court Act, the “necessity” that must be demonstrated to the satisfaction of the Court must be established by evidence showing that:

(a)    The absence of any order would actually result in non-trivial prejudice to the “security of the Commonwealth”; and

(b)    An order of a specific kind permitted under former s 50 would prevent the anticipated prejudice.

53    Counsel for the applicant went on to submit that, once the “necessity” for the order has been demonstrated, there is no residual discretion remaining in the Court. Once a necessity is demonstrated, the order must be made.

54    It was also submitted on behalf of the applicant that:

(a)    There is nothing in the redacted material which might disclose methods of intelligence gathering or any other aspects of ASIO’s operations;

(b)    The essential purpose of the present Applications is political or diplomatic. The orders are being sought to avoid public embarrassment that might be caused to the Government by the public or the press becoming aware that it is alleged that agents of a nation friendly to Australia have engaged in an act of foreign interference within the meaning of s 4 of the ASIO Act by cultivating a senior Australian public servant to disclose confidential information;

(c)    It is plain that the making of the orders would not prevent country X from becoming aware of the allegations made about its agents. Clearly, on the evidence, country X is already well aware of the activities of its agents; and

(d)    There is a reasonable prospect that, even in its redacted form, the open decision would reveal the name of country X.

55    At [17]–[19] of his Written Submissions, the applicant submitted that:

17.     The Court will appreciate that it is inherent in the two proceedings commenced by the Applicant that he contends that there has been an excess of secrecy applied to his case which has resulted in his being unable to defend himself adequately in proceedings which will potentially lead to the destruction of his career, and resulted also in his being still in the dark about precisely what it is he is alleged to have done that amounts to an “act of foreign interference”. There is a serious issue in this application about whether another layer of unnecessary secrecy is to be added to the case.

18.     If the motivation for the orders sought by the Respondents is in fact to avoid some kind of political or diplomatic embarrassment, then it is reasonable for the Court to consider carefully why and how the avoidance of such embarrassment is necessary for the “security” of the Commonwealth. A reasonable observer might well take the view that it is a matter of legitimate interest to citizens of Australia to know if agents of friendly nations have engaged in activities inconsistent with diplomatic cover involving an attempt to cultivate a senior public servant in Australia, and it is difficult to see why publication of the information would result in Australia’s “security” being adversely affected.

19.     Finally, it is relevant for the Court to know that the Applicant does not propose to pursue an application for an order under s.50 seeking that his real name be suppressed. The publication of his real name would, of course, leave very little doubt about which foreign country was involved.

Consideration

56    Section 43AAA of the AAT Act deals with the way in which the findings of the AAT in proceedings in its Security Appeals Division are to be handled. That section provides:

43AAA     Findings of Tribunal in certain proceedings before Security Appeals Division

Scope

(1)    This section applies to a review conducted by the Security Appeals Division.

Findings

(2)    Upon the conclusion of a review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment.

(3)    The Tribunal must not make findings in relation to an assessment that would, under section 61 of the Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under subsection 37(2) of that Act, taken to be part of the assessment unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.

Copies of findings to be given to parties etc.

(4)    Subject to subsection (5), the Tribunal must cause copies of its findings to be given to the applicant, the Director General of Security, the Commonwealth agency to which the assessment was given and the Attorney General.

(5)    The Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to the applicant, is not to be given to the applicant or is not to be given to the Commonwealth agency to which the assessment was given.

Applicant may publish findings

(6)    Subject to any direction by the Tribunal, the applicant is entitled to publish, in any manner that he or she thinks fit, the findings of the Tribunal so far as they have been given to him or her.

Tribunal may attach comments to findings

(7)    The Tribunal may attach to a copy of findings to be given to the Director General under this section, any comments the Tribunal wishes to make on matters relating to procedures or practices of the Australian Security Intelligence Organisation that have come to the Tribunal’s attention as a result of a review.

(8)    The Tribunal must give the Minister a copy of any comments attached as mentioned in subsection (7).

57    In the present case, the AAT did not make any direction pursuant to s 43AAA(5). Nor did the DGS ask it to do so. As is made clear by s 43AAA(6), in those circumstances, at all times between 17 August 2012 and the date when I made the interim orders (31 October 2012), subject to any arrangements reached among the parties, the applicant was entitled to publish, in any manner that he thought fit, the findings of the AAT so far as they had been given to him. In simple terms, the applicant has been in a position to publish to any person the entire contents of the open decision in the 10½ week period between the date when the open decision was published and the making of the interim protection orders on 31 October 2012.

58    Notwithstanding the terms of s 43AAA of the AAT Act, there is apparently a practice within the AAT not to make available to members of the public Reasons for Decision handed down by the AAT in its Security Appeals Division. There is no foundation in the AAT Act for that practice.

59    Section 81 of the ASIO Act places restrictions upon members and officers of the AAT in respect of information acquired by reason of his or her office of employment under or for the purposes of the ASIO Act. Section 81 applies only to members or officers of the AAT and not to other persons. It does not assist in the resolution of the matters presently before the Court.

60    I am not persuaded that the open decision should be masked in order to conceal from a reader of that decision the matters which I have summarised at [46] above. Nor am I satisfied that the DGS should be given an opportunity to review the transcript of the hearing before the AAT and other material in order to mask information of the same character. I have reached these conclusions essentially for the reasons submitted by the applicant.

61    My decision not to protect the information which the DGS wishes to keep confidential is the same whether the matter is considered by reference to former s 50 of the Federal Court Act or by reference to s 93.2 of the Criminal Code and s 85B of the Crimes Act or in the inherent jurisdiction of the Court.

62    As far as former s 50 is concerned, the publication of the relevant material could not conceivably prejudice the administration of justice. Rather, it would enhance it. Further, I do not consider that keeping the information secret is necessary in order to prevent prejudice to the security of the Commonwealth. The evidence of the DGS directed to the likely impact that disclosure might have on future co-operation between country X and Australia in relation to intelligence gathering and matters of security is somewhat speculative. It is true that officers of the intelligence service of country X have requested ASIO to do what it could to prevent details of that intelligence service’s activities in Australia becoming public. However, ASIO’s desire to accommodate that request is not put as a matter of national security but rather as a desire to prevent embarrassment to the intelligence service of country X and to enhance co-operation in the future. It may be thought that not keeping these matters secret would better serve the security interests of the Commonwealth.

63    As to the proposition that revealing the names of the operatives who were engaged in the inappropriate activities in this country would prevent them from ever working as intelligence officers again, I do not think that that outcome, even if it comes to pass, is a matter which can sensibly be regarded as something that would justify keeping secret the material the subject of the present Applications. At best, it is something which may affect the interests of country X and may, to some extent, affect relations between ASIO and the intelligence service of country X for some time into the future but could not rationally be regarded as significant insofar as the security of the Commonwealth is concerned.

64    In the circumstances, I think that keeping the information secret cannot be justified under former s 50 of the Federal Court Act.

65    As far as the other statutory provisions are concerned, there is a requirement that the Court balance the interests of justice with the interests of the accused. While I am not entirely satisfied that those provisions are applicable, in any event, I do not think that the orders claimed by the DGS are justifiable upon the basis that it is in the interests of the security or defence of the Commonwealth that the information sought to be kept secret be kept from the public. In essence, the enquiry here is the same as that which is to be undertaken for the purposes of former s 50 although, because of the presence of the word necessary in former s 50, the subject matter of the Court’s satisfaction may be somewhat narrower under former s 50 than it is under the other statutory provisions.

66    I am not prepared to make the orders sought in the exercise of the inherent jurisdiction of the Court for the same reasons as I am not prepared to do so pursuant to the statutory provisions relied upon.

67    Finally, I should add that, in light of the fact that I propose to order that the suppression of the applicant’s name be lifted, the name of country X and most likely the circumstances in which the alleged espionage occurred would be apparent to any member of the public who, armed with the applicant’s name, read the open decision even in its redacted form. I should also add that the AAT placed no restrictions on the use to which the applicant might put the open decision with the consequence that the applicant could have given that decision to anyone and otherwise dealt with it as he saw fit. There is a degree of unreality in the Court being asked, after the event, to keep confidential material which was not kept confidential by the AAT and not subject of any application before the AAT by the DGS that it be kept confidential.

68    Finally, it may well be that the unnecessary imposition of secrecy on material ultimately works to the prejudice of the applicant in the two sets of proceedings which he has brought in this Court. The Court should do everything in its power to prevent such an outcome.

Conclusion

69    For all of the above reasons, I do not propose to accede to the Applications made by the DGS. However, in order to protect the position pending the expiration of any appeal period, I propose to continue the present interim regime up to and including 22 April 2013 so that no prejudice is caused to the DGS in the meantime should he wish to appeal from this decision.

70    The only other order which I will make is an order lifting the suppression order in respect of the name of the applicant.

71    In the circumstances, I think that costs should follow the event. I will therefore order that the DGS pay the applicant’s costs of and incidental to the Interlocutory Applications determined by these Reasons for Judgment.

72    There will be orders accordingly.

Associate:

Dated:    10 April 2013