Federal Court of Australia

LAZ24 v Purcell (Examiner) [2025] FCAFC 132

ORDERS

THE COURT ORDERS THAT:

1.    The appellant is granted leave to rely on an amended notice of appeal dated 21 August 2025.

2.    Leave to appeal against the primary judge's order that the appellant pay the respondent's costs is refused.

3.    The appeal is dismissed.

4.    Subject to order 8, the appellant is to pay the respondent's costs of the appeal.

5.    Pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), and on the ground in s 37AG(1)(a):

(a)    disclosure of any information tending to reveal the identity of the appellant as a party to these proceedings is prohibited; and

(b)    disclosure of any documents filed in these proceedings is prohibited.

6.    Order 5:

(a)    operates for the period from 19 September 2025 to 31 January 2028; and

(b)    does not prevent disclosure to and between the following persons:

(i)    judges of this Court;

(ii)    necessary Court staff (including transcription service providers);

(iii)    the parties;

(iv)    legal representatives of the parties instructed in the proceeding;

(v)    any medical practitioner and/or psychologist retained by a party for the purpose of providing an expert opinion/report with respect to the appellant in the proceeding;

(vi)    Commonwealth Ministers;

(vii)    the CEO of the Australian Criminal Intelligence Commission (ACIC), examiners and the members of the staff of the ACIC;

(viii)    judicial officers and necessary staff of any court hearing an appeal from any decision made in the course of this proceeding;

(ix)    any person retained by a party specifically on the issue of costs;

(x)    any person appointed by the Court for the purpose of the assessment of costs; and

(xi)    officers and necessary staff of Corrections NSW and police officers for the purpose of effecting any warrant of imprisonment or administering any sentence imposed as a result of the proceedings.

7.    Pursuant to s 37AF(1)(a) of the Federal Court Act, and on the ground in s 37AG(1)(c), disclosure of any information tending to reveal the identity of:

(a)    counsel who assisted the respondent during the examinations of the appellant;

(b)    the ACIC employee who made a statutory declaration recording service on the appellant of the summons to appear before an examiner issued under s 28 of the Australian Crime Commission Act 2002 (Cth);

(c)    the ACIC employee who witnessed the making of the statutory declaration referred to in order 7(b); and

(d)    the ACIC employee who witnessed the affidavit of counsel assisting the respondent, which was affirmed on 28 October 2024,

is prohibited.

8.    The respondent is to pay the appellant's costs of the interlocutory application filed on 26 August 2025.

9.    The parties have liberty to apply generally for suppression orders or non-publication orders under s 37AF of the Federal Court Act.

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

REASONS FOR JUDGMENT

THE COURT:

1    In early 2024, the appellant attended at an examination that was to be conducted by an examiner of the Australian Criminal Intelligence Commission (ACIC), under the Australian Crime Commission Act 2002 (Cth) (ACC Act). When the appellant appeared at the examination, he refused to answer several questions that the examiner required him to answer. Pursuant to s 34A(a)(ii) of the ACC Act, a person will be in contempt of the ACIC if they refuse or fail to answer a question that they are required to answer, when appearing as a witness at an examination.

2    The examiner formed the opinion that the appellant was in contempt of the ACIC. Consequently, the examiner applied to this Court, pursuant to s 34B(1)(a) of the ACC Act, for the appellant to be dealt with in relation to the contempt.

3    When he appeared before the primary judge, the appellant admitted that he had been in contempt of the ACIC. He was then sentenced to 9 months imprisonment. The primary judge also made an order that there be liberty to apply, in the event the appellant purged his contempt before 12 December 2025, as well as a further order that the appellant pay the respondent's costs.

4    Suppression orders were made at an earlier stage in the proceedings, pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), on the grounds in paragraphs (a) and (c) of s 37AG(1). Further suppression orders were made by the primary judge, and his reasons were then published in a redacted form.

5    The appellant appeals against several of the primary judge's orders. In his notice of appeal, the appellant contends that the sentence of 9 months imprisonment was manifestly excessive (ground 3). He also argues that the sentencing process miscarried because the primary judge failed to attribute appropriate weight to psychiatric evidence upon which the appellant relied (ground 2(a)), and because counsel for the examiner made submissions about the 'available range' of sentences, contrary to the principles expressed by the plurality in Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 (ground 2(b)). Finally, the appellant complains that the primary judge should have made an order that there be general liberty to apply (ground 1), and that the primary judge erred in making an order that the appellant pay the respondent's costs (ground 4).

6    One day before the hearing of the appeal, the appellant sought leave to rely on an amended notice of appeal. In his proposed amended notice of appeal, the appellant sought to further elucidate the basis on which he contended that the primary judge erred in making an order that he pay the respondent's costs of the application before the primary judge. The appellant also sought to rely on a new ground of appeal to argue that the primary judge failed 'to make any or [any] appropriate allowance for the early plea of guilty' (proposed ground 2(c)).

7    While we would grant leave to rely on the amended notice of appeal, we would refuse to grant leave to appeal against the primary judge's order that the appellant pay the respondent's costs, and we would dismiss the appeal. We would also make an order that the appellant pay the respondent's costs of the appeal.

8    Before the hearing of the appeal, the Court made interim suppression orders pursuant to s 37AI of the Federal Court Act, including orders that the appellant was to be identified by a pseudonym during the hearing and in any documents filed in the appeal. Those orders were to expire at the conclusion of the hearing of the appeal. Further orders were made in advance of the hearing which required any party who sought suppression or pseudonym orders to be in effect after the conclusion of the hearing, to file and serve an interlocutory application, any supporting evidence and brief submissions before the hearing of the appeal. However, no application was filed until after the hearing, when the respondent sought suppression orders pursuant to s 37AF(1) of the Federal Court Act as well as a 'confidentiality' order, pursuant to r 2.32 of the Federal Court Rules 2011 (Cth).

9    While we would make a suppression order, we would not make orders in the terms sought by the respondent. Further, we would make an order that the respondent pay the appellant's costs of the interlocutory application for suppression orders.

10    Before explaining why we have reached those conclusions, it is necessary to say something about the legislative context in which this appeal falls to be considered, and about the principles that are applied when sentencing for contempts of the ACIC. We will then summarise the primary judge's reasons, before then dealing with the grounds of appeal.

Legislative context

11    The ACIC is established by s 7 of the ACC Act. The ACIC is also known as the 'Australian Criminal Intelligence Commission', the 'Australian Crime Commission', or the 'ACC': s 7(1A) of the ACC Act and reg 8 of the Australian Crime Commission Regulations 2018 (Cth). One of the ACIC's functions is to undertake 'special ACC operations': s 7A(b) of the ACC Act. A 'special ACC operation' is an intelligence operation that is authorised under s 7C(2) of the ACC Act, which is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to, relevantly, certain 'serious and organised crime', but which may also involve undertaking investigations relating to such activity: see the definitions of 'special ACC operation' and 'intelligence operation' in s 4(1) of the ACC Act.

12    The phrase 'serious and organised crime' is defined in s 4(1) of the ACC Act to mean, relevantly, certain offences that:

(a)    involve two or more offenders and substantial planning and organisation;

(b)    involve, or are of a kind that ordinarily involve, the use of sophisticated methods and techniques; and

(c)    are committed, or are of a kind that are ordinarily committed, in conjunction with other offences of a like kind.

13    The ACIC consists of, amongst other people, examiners: s 7(2)(b). An examiner may conduct an 'examination' under s 24A(1) of the ACC Act for the purposes of a special ACC operation. A witness may be summoned to appear at an examination to either or both give evidence and produce any documents or things: s 28(1). An examiner may, at an examination, take evidence on oath or affirmation, and for that purpose the examiner may require a person to either take an oath or make an affirmation in a form approved by the examiner: s 28(5).

14    An examination must be held in private, and an examiner may give directions as to the people who may be present during the examination: s 25A(3). Further, an examiner may give directions prohibiting or limiting the use or disclosure of 'examination material' and, relevantly, must do so if the failure to give such a direction might prejudice a person's safety: ss 25A(9) and 25A(9A)(a).

15    Pursuant to s 29A, an examiner issuing a summons to a witness to attend at an examination may be required to include a notation in the summons that disclosure of information about the summons, or any official matter connected with it, is prohibited. A person who is served with a summons that contains such a notation is prohibited from disclosing the existence of the summons or any information about it, except in certain circumstances, and a contravention of a notation constitutes an offence: s 29B.

16    Pursuant to s 34A(a)(ii), a person is in contempt of the ACIC if, when appearing as a witness at an examination before an examiner, they refuse or fail to answer a question that they are required to answer by the examiner.

17    In accordance with s 34B(1)(a), if an examiner is of the opinion that a person is in contempt of the ACIC during an examination, the examiner may apply to the Federal Court for the person to be dealt with in relation to the contempt. If, on such an application, the person is found to have been in contempt of the ACIC, they may be dealt with as if the acts or omissions involved constituted a contempt of the Federal Court: s 34B(5).

Relevant sentencing principles

18    There are no minimum or maximum penalties, and no mandatory types of sentences, prescribed for a contempt of the ACIC. However, various penalty types have been recognised as being available to punish for contempt, including:

(a)    committing a contemnor to prison for an indefinite or a finite period of time;

(b)    imposing a fine for a wilful breach of an order or undertaking;

(c)    imposing a daily fine;

(d)    ordering the sequestration of the assets of a contemnor; and

(e)    suspending, on condition, any sentence of imprisonment that might otherwise have been imposed.

19    In this respect, see Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 at [138], which was referred to with approval in Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277 at [55].

20    The power to conduct an examination is an important tool that is available to the ACIC for it to obtain information necessary for the proper discharge of its functions: Sage v AYI23 [2023] FCA 1336 at [9]. Examinations under the ACC Act enable the ACIC to compel people to provide information that is in their possession, and which is relevant to the ACIC's functions. It is obvious that the effectiveness of the ACIC is likely to be frustrated if witnesses properly summoned to give evidence at examinations, some of whom are most unlikely to volunteer information, refuse to cooperate. It is for this reason that a contempt of the ACIC constituted by a refusal to be sworn or a refusal to answer questions will usually be regarded as a serious contempt: see Anderson v XLVII [2015] FCA 19 at [49].

21    The purposes of punishment for a contempt constituted by a refusal to answer a question in the ACIC are retribution for the contempt, coercion, and general deterrence of others: DTO21 v Australian Crime Commission [2022] FCAFC 190; (2022) 295 FCR 194 (DTO21 FC) at [31] (Bromwich and Abraham JJ), quoting Anderson v XLVII at [49], which in turn referred to Wood v Galea (1995) 79 A Crim R 567 at 571, Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 118 (King CJ, Zelling and Wells JJ agreeing), and Hannaford (an examiner under the Australian Crime Commission Act 2002) v HH [2010] FCA 1214; (2010) 205 A Crim R 366 at [39].

22    In Forsyth v The Queen [2015] WASCA 36 at [52], in dealing with an appeal against sentences imposed for offences of knowingly giving false or misleading evidence in an examination conducted by the ACIC (then known only as the ACC), contrary to s 33(1) of the ACC Act, Newnes and Mazza JJA noted that general deterrence is important:

Private examinations under the [ACC] Act are an important tool to the intelligence gathering exercise necessary for the proper fulfilment of the ACC's role. It is important that those who refuse to answer questions or who falsely answer questions during an examination are adequately punished to reinforce the importance of compliance with the requirement to truthfully answer questions during such examinations. Not to do so would undermine the power of the Commission and would result in the relevant powers becoming 'a toothless paper tiger'.

(citations omitted)

23    Further, as Dodds-Streeton J observed in Hannaford at [59], a primary objective of the legislation enabling this Court to deal with contempts of the ACIC was 'the introduction of a compelling incentive for an unco-operative witness to co-operate in a timely way, by providing the information sought while it remains useful for the [ACIC's] purposes'. However, where a person has purged their contempt, or where it is no longer necessary for the ACIC to conduct any further examination of the contemnor, coercion will be inappropriate: see AYI23 and the authorities referred to at [23].

24    In sentencing for contempt of the ACIC, it is common to do so by taking into account the various factors identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183. Those factors include:

(a)    the seriousness of the contempt;

(b)    whether the contemnor was aware of the consequence to themselves of being found to be in contempt;

(c)    the actual consequences of the contempt on the relevant trial or inquiry;

(d)    whether the contempt was committed in the context of serious crime;

(e)    the reason for the contempt;

(f)    whether the contemnor has received any benefit by indicating an intention to give evidence;

(g)    whether there has been any apology or public expression of contrition;

(h)    the character and antecedents of the contemnor;

(i)    the need for general and personal deterrence; and

(j)    the need for denunciation of the contempt.

See also AYI23 and the authorities referred to at [24].

25    While those matters are generally considered to be a useful guide to the exercise of the sentencing discretion to punish for contempt, they are not an exhaustive list of relevant factors, nor are they a set of considerations that have statutory force. In that regard, each case must be decided having regard to its own facts and circumstances. For example, and as Wigney J observed in DTO21 FC at [11]-[12], the factors do not include coercion. They also do not include whether the contemnor admitted or pleaded guilty to the contempt and, if so, how long it took for the admission to be forthcoming.

26    Against this background, we will now summarise the primary judge's reasons, commencing with a summary of his Honour's findings of fact.

The primary judge's findings of fact

27    The respondent issued a summons to the appellant, under s 28 of the ACC Act, to appear before an examiner to give evidence for the purposes of a special ACC operation authorised by the Special Australian Criminal Intelligence Commission Operation Determination (Serious Financial Crime) 2022 (Determination). The Determination, which is due to expire on 12 December 2025, authorises the ACIC to conduct an 'intelligence operation' in relation to 'specified financial offences' that may have been, may be being, or may in future be, committed. The 'specified financial offences' include certain offences relating to fraudulent conduct, money laundering, and financial information offences.

28    According to the terms of the summons, the appellant was to be questioned about dealing with proceeds or instruments of crime, especially in relation to importations into Australia and trafficking in Australia of border-controlled drugs, the use of encrypted communication devices and messaging applications to facilitate such activities, as well as the identities of other persons and entities involved in those activities and the nature and extent of their involvement.

29    The appellant attended at an examination at the ACIC. He was represented by a lawyer. The examiner told the appellant that the examination would be conducted in private, and that his evidence would be kept confidential. The examiner said that he believed that the appellant could provide information that was relevant to a special operation being undertaken by the ACIC, especially about the activities of other people.

30    When the appellant raised concerns about answering questions, saying that he feared for his and his family's safety, the examiner briefly adjourned the examination to allow the appellant the opportunity to get legal advice. When the examination resumed it became apparent that it could not be finished that day. The examiner told the appellant that he would be brought back on a later date, and that he should speak to his lawyer in the meantime. The examiner made a direction under s 25A(9) of the ACC Act, restricting the persons to whom examination material could be disclosed and the purposes for which it could be used, and then adjourned the examination.

31    The appellant attended a second examination at the ACIC, where he was represented by the same lawyer. At the commencement of the examination the appellant's lawyer asked that the examination be adjourned because the appellant was not 'feeling mentally right'. However, the application was refused. This is because there was no evidence that the appellant had sought any medical assistance and because the application to adjourn had been made without notice.

32    When the examination commenced the appellant again raised concerns about answering questions. The examiner adjourned briefly, to allow the appellant to once again obtain legal advice about his obligation to answer questions under the ACC Act. When the examination resumed, the appellant answered some questions but then refused to answer the six questions that are the subject of the charge.

33    The first question the appellant refused to answer was about whether the appellant knew anyone who had an encrypted device. In that regard, the primary judge referred to the following exchange that took place at the examination:

COUNSEL ASSISTING: … I am interested in instances where you think someone might have had an encrypted device?

THE APPELLANT: No, I can't answer that question.

COUNSEL ASSISTING: Why?

THE APPELLANT: I refuse to answer for my safety and - for my safety. And as I said, I can't answer it because I don't - why should I - I can't tell you something that I'm going to lie about, and I can't tell you something I don't know about.

COUNSEL ASSISTING: I appreciate that. And if you don't know then that's something different. But not wanting to answer for fear of your safety, that's a separate issue though.

THE APPELLANT: Well, that's how I - well, as I said at the start, I do fear for my safety in a bad way, and I will not answer that question for fear of my safety and my family's safety.

COUNSEL ASSISTING: And just to be clear, the question was whether there is anyone that you think may have had an encrypted device before?

THE APPELLANT: Yes, I know that you asked me that question, and that is my answer to you, what I've just told you.

COUNSEL ASSISTING: And that is?

THE APPELLANT: That I fear for my life and my safety, and the safety of my family.

34    The appellant was then warned that failing or refusing to answer questions was a criminal offence, punishable by imprisonment for up to five years, or a contempt, which was punishable for a potentially indefinite period. The examiner told the appellant that the ACIC believed that he could provide information that was highly relevant to the special operation it was conducting, and that his refusal to answer questions would prejudice that operation.

35    The primary judge then noted that the following exchange occurred:

EXAMINER PURCELL: You said you refused to answer that question [about encrypted devices] on the grounds that you fear for your life and your safety?

THE APPELLANT: Yes, that's right.

EXAMINER PURCELL: Now, I consider that question to be highly relevant to the Australian Crime Commission special operation, so I require you to answer it.

THE APPELLANT: Okay.

EXAMINER PURCELL: If you don't answer that question you will be in contempt of the Commission. So I'm telling you now that I require you to answer that question, please?

THE APPELLANT: Well, I will not answer any questions, as I said. I know I'm here for a purpose, for your purposes.

…

THE APPELLANT: And there's no disrespect to you and you, Your Honour, or you, Madam, I just understand my point of view and where I'm coming from. And I hope we just --

EXAMINER PURCELL: So are you formally telling me that you refuse to answer that question?

THE APPELLANT: Yes.

36    The primary judge found that the examination then continued for some time, until the appellant was asked whether he had an encrypted device. The appellant then refused to answer a series of questions, which are the second to sixth questions set out in the statement of charge, namely: whether the appellant had an encrypted device when he was on parole (the second question); whether the appellant had any knowledge of a code of silence (the third question); whether his family had connections with a criminal organisation (the fourth question); whether anyone had pressured the appellant to use an encrypted device (the fifth question); and whether his family had any involvement with money laundering activities (the sixth question).

37    The examiner then told the appellant that he had formed the opinion that the appellant was in contempt of the ACIC, and that an application would be made to the Federal Court under s 34B of the ACC Act for him to be dealt with in relation to that contempt. The examiner told the appellant that if he changed his mind and decided that he was willing to truthfully answer questions, the appellant should contact the examiner as soon as possible. The examiner also varied a confidentiality direction he had previously made, so that information could be disclosed to the parties who were to be involved in any contempt proceedings, and to allow disclosure to any psychologist that the appellant may wish to engage.

The primary judge's reasons

38    The primary judge structured his reasons so as to address each of the factors identified in Wood v Staunton.

39    His Honour found that the appellant's contempt was deliberate and pre-planned, and that the appellant must have been aware of the consequences of his contempt. In that regard, he noted that the appellant refused to answer questions at both the first and second examination, despite being warned about the consequences, and despite having also been given opportunities to obtain legal advice. The primary judge also noted that the appellant had been told that a failure to answer questions was a criminal offence, and that he could be punished for contempt. The primary judge also observed that the contempt was committed in the context of an investigation into serious criminal offences.

40    The primary judge rejected arguments that the seriousness of the contempt was reduced by the fact that the appellant took an oath and did answer some questions at the second examination. The primary judge also did not accept that the seriousness of the contempt was tempered by the broad nature of some of the questions, or that the appellant had been denied procedural fairness because of the way some of the questions were asked. The primary judge also refused to accept that the appellant had actually provided an answer to some of the questions that were the subject of the charge, by stating he did not know.

41    In relation to the consequences of the appellant's contempt, the primary judge found that the appellant's refusal to answer questions had a detrimental effect on the special ACC operation. His Honour also accepted that the answers sought from the appellant at the examination continued to be relevant to the special ACC operation, although his evidence was of reduced value.

42    As is clear from the above extracts taken from the examination, the appellant told the examiner that he would not answer questions because he feared for his own life and safety, and for the safety of his family. The primary judge acknowledged that it is well-established that a fear of retribution will rarely be given mitigatory weight, because the ACIC's compulsory powers used to facilitate investigations would be significantly impeded if mitigatory weight were to be given to an assertion of fear of retribution as a reason for refusing to provide information. The primary judge appeared to give little, if any, mitigatory weight to the appellant's contention that he refused to answer questions because he feared for his life, and for the lives of his family members. In that regard, the primary judge accepted a submission made by the respondent that the appellant had not established anything more than a subjective generalised fear.

43    At sentencing, the appellant relied on a psychiatric report by a qualified and experienced psychiatrist. As the appellant specifically complains about the weight that the primary judge gave to that report in the context of ground 2(a), we will summarise this aspect of his Honour's reasons in more detail when we come to deal with that ground.

44    The primary judge did not make any finding that the appellant had apologised or made any public expression of contrition. Given the appellant has not purged his contempt, that is hardly surprising.

45    Under a heading, '[The appellant's] character and antecedents', the primary judge said that he accepted that '[the appellant] indicated an intention to [plead] guilty at an early stage, and that this is properly taken into account'. The primary judge also referred to the appellant's previous convictions. Two of those convictions were for serious offences, each of them committed years apart. The other convictions were more minor in nature.

46    In relation to deterrence, the primary judge said that he gave 'significant weight' to general deterrence and to denunciation, noting that matters personal are to be given less weight when sentencing for contempt. His Honour also said that he did not attach any great weight to the need to personally deter the appellant from any future offending.

47    The primary judge then turned to deal with the issue of coercion, noting that the appellant had been given opportunities to purge his contempt and that he had not done so. In this context, his Honour said that a significant factor was that the Determination will expire on 12 December 2025. There was evidence before the primary judge that the ACIC was of the view that the appellant could still provide evidence relevant to the special operation before that date. On that basis, his Honour concluded that any sentence should have the effect of encouraging the appellant to purge his contempt before 12 December 2025. In this context, the primary judge said the following at [63]:

To be clear, I accept the [respondent's] submission that the Court may lawfully impose a fixed term that extends beyond the expiry date of the relevant ACIC determination ... That is because the purposes of the sentence are not limited to coercing a person into answering questions, but include retribution and deterrence.

48    His Honour also said at [64] that he accepted the respondent's submission that the parties should be at liberty to apply, in the event that the appellant purges his contempt before 12 December 2025, and referred to the fact that similar orders were made in Lusty (Examiner) v ITT24 [2025] FCA 141.

49    The primary judge then took into account other considerations, by reference to the various factors set out in s 16A(2) of the Crimes Act 1914 (Cth). His Honour accepted that s 16A(2) of the Crimes Act lists factors that must be taken into account when sentencing for a 'federal offence', and indicated that he did not think that it was necessary to determine whether contempt of the ACIC under s 34B of the ACC Act (which is punishable as a contempt of this Court) is such an offence. However, he observed that the factors in s 16A(2) largely coincide with the list of matters identified in Wood v Staunton, and that the Court is entitled to consider any other relevant matter in the exercise of its discretion. Although there is every reason to think that s 16A of the Crimes Act does not apply when sentencing for contempt of the ACIC, no issue was taken with the primary judge's approach in this respect.

50    His Honour considered that the most significant 's 16A(2) factor' was the probable effect, that any order would have, on the appellant's family or dependants. In that context, the primary judge said that he took into account the distress and hardship to the appellant's family, and the impact on the appellant's business, that would be occasioned by a term of imprisonment.

51    The primary judge ultimately made a declaration that the appellant is guilty of contempt of the ACIC in that, when appearing as a witness at an examination before the respondent, the appellant refused to answer six questions that he was required to answer by the respondent, contrary to s 34A(a)(ii) of the ACC Act. His Honour made other orders, including that:

(a)    the appellant be sentenced to a term of imprisonment of 9 months;

(b)    there be liberty to apply, in the event that the appellant purges his contempt before 12 December 2025; and

(c)    the appellant is to pay the respondent's costs of the application to be agreed or assessed.

52    Having summarised the primary judge's reasons, it is now necessary to deal with the grounds of appeal on which the appellant relies.

Ground 1 - The primary judge erred by not making an order that there be general liberty to apply

53    As we have said, the primary judge made an order that there be liberty to apply in the event the appellant purges his contempt before 12 December 2025. The appellant complains about that order and submits that the primary judge should, instead, have ordered that there be general liberty to apply.

54    The appellant submits that it is important that the Court retain oversight of its order that he be imprisoned by allowing for general liberty to apply because the sentence is in respect of 'prospective criminality'. The appellant argues that at the time sentence is passed it is impossible for the Court to evaluate what the prevailing circumstances relevant to sentence are going to be at any point in the future. In relation to a contempt of the ACIC, in particular, it is said that the circumstances that might change include the termination of the relevant determination, or the information sought from the contemnor may be sourced from elsewhere or it may diminish in value. The appellant relies on these arguments even though he said nothing in opposition to the respondent's submission to the primary judge that the parties be given liberty to apply in the event the appellant purged his contempt before the expiration of the Determination (respondent's written submissions on penalty, at paras 62, 73).

55    In any event, the appellant does not identify why it is said that the primary judge made an error in making an order that there be liberty to apply in the event the appellant purges his contempt. This is fatal to this ground of appeal, and it must be dismissed on that basis alone. A bare contention that a different order should have been made falls well short of establishing that the primary judge fell into appellable error.

56    In any event, s 34C(2) of the ACC Act provides that an application to the Federal Court for a person to be dealt with in relation to a contempt of the ACIC is, relevantly, to be instituted, carried on, heard and determined in accordance with the Federal Court Rules. Importantly, r 42.22 of the Federal Court Rules provides that if a person charged with contempt is committed to prison for a term, the person may apply to the Court for an order for the person's discharge before the end of the term. Accordingly, r 42.22 confers liberty on the appellant to apply generally for an order for his discharge before the expiry of his sentence, irrespective of the primary judge's order. This means that even if the appellant established that the primary judge erred, the ground has no practical utility.

57    Therefore, we would dismiss ground 1.

Ground 2(a) - The primary judge failed to attribute weight to unchallenged psychiatric evidence

58    The appellant asserts that the primary judge erred by 'failing to attribute weight to the unchallenged psychiatric material'. However, at the hearing of the appeal senior counsel confirmed that this ground of appeal is concerned with a contention that the primary judge erred in the exercise of his sentencing discretion by failing to take into account a mandatory relevant consideration, namely 'unchallenged psychiatric evidence'.

59    To properly understand the ground of appeal it is necessary to say something further about the proceedings before the primary judge and also about his Honour's reasons.

60    At sentencing, the appellant relied on a report prepared by a psychiatrist. The respondent did not object to the report being used as evidence for the purposes of sentence, and did not require the psychiatrist to be made available for cross-examination. In fact, counsel for the respondent who appeared at sentencing told the primary judge that the psychiatrist was an 'experienced and, in fact, impressive forensic psychiatrist, well known by the courts, [whose] evidence would typically be expected to be accepted'.

61    As his Honour observed, the psychiatric report set out the appellant's history, including the appellant's psychiatric and medical history, as well as a document review. The report also includes a mental state examination, together with a psychiatric diagnosis and opinions. In that regard, the psychiatrist diagnosed the appellant with an adjustment disorder, anxiety and depression.

62    The primary judge noted that according to the psychiatrist, adjustment disorder is a clinically significant response to an adverse life event. The psychiatrist opined that in the appellant's case, the relevant adverse life event was being required by the ACIC to answer questions, 'and his perception that he could not answer the questions put to him because of a genuine fear for his own safety'. The psychiatrist said that the appellant's report of panic was part of the syndrome of adjustment disorder.

63    The primary judge noted that the psychiatrist's opinions included the following:

(a)    The appellant's cognitive function and judgment at the time he was to be examined by the ACIC 'is likely to have been affected by his level of anxiety, and also the tranquilising effect of diazepam. However, [the appellant] maintained that he made a conscious decision not to answer questions because of the genuine belief that he and members of his family would be placed in danger if he did so'.

(b)    The appellant has some previous experience of prison, and so the main burden of imprisonment would fall on his immediate family and a relative, for whom he is a carer, and that it would also effectively mean that his business would have to close.

(c)    The natural history of adjustment disorder is to recover over time once the cause of the symptoms has been resolved or faded into the past. Supportive counselling has not been available to the appellant because of the secret nature of the ACIC examination.

64    The primary judge then said as follows, at [49]-[51]:

As the [respondent] points out, psychiatric evidence can be relevant to sentencing, if the person's mental health: (1) contributed to the commission of the offence, so as to reduce moral culpability; (2) makes the person a less suitable vehicle for general deterrence or reduces the significance of specific deterrence; (3) means that a custodial sentence may weigh more heavily on the person; or (4) conversely, means the person presents more of a danger to the community: Director of Public Prosecutions (Cth) v de la Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177] (McClellan CJ at CL). I find that [the psychiatrist's] evidence does not establish any of the mitigating circumstances in points (1) to (3) just set out, at least not to any significant extent. For completeness, the report does not suggest that [the appellant] poses any greater danger to the community either (point (4) above).

[The psychiatrist] does state that [the appellant's] cognitive function and judgment at the ACIC examinations is likely to have been affected by his anxiety (and diazepam), but he does not state the extent of this impairment. Significantly, [the psychiatrist] reports that [the appellant] made a conscious decision not to answer questions. Accordingly, I would not find that [the appellant's] mental state reduced his moral culpability to any material extent (point (1) from de la Rosa set out above).

[The appellant] submits that, in circumstances where [the psychiatrist] was not cross-examined, this Court is bound to accept his opinion that [the appellant's] cognitive function and judgment were affected at the examination by anxiety, and that [the appellant's] response to being summonsed to an ACIC examination was clinically significant. [The appellant] relied for these purposes on the approach taken to medical evidence in Lloyd v The Queen [2022] NSWCCA 18 at [40]- [47] (McCallum JA) and in Isaac v The King [2024] NSWCCA 2; (2024) 384 FLR 431 at [59]-[62] (Davies J) (although it was said that the result in Isaac could be distinguished on its facts). However, those cases do not suggest that a court may not consider carefully both the scope of findings of an expert report, and the findings that are not made. I accept that I should apply [the psychiatrist's] report fairly and according to its terms (given [the psychiatrist] was not cross-examined), but that does not prevent the Court from assessing the extent to which the diagnosis actually given reduces moral culpability.

(emphasis added)

65    Senior counsel's submissions at the hearing of the appeal focussed on the second paragraph of the above passage taken from the primary judge's sentencing remarks. It was submitted that the primary judge was required to determine whether the appellant's moral culpability for the contempt was reduced because his mental health contributed to the commission of the contempt in a material way. In that regard, the appellant relied on what was said by McClellan CJ at CL in Director of Public Prosecutions (Cth) v de la Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]:

Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

(citations omitted, emphasis added)

66    The appellant says, in effect, that the primary judge accepted the psychiatrist's evidence that it was likely that the appellant's cognitive function and judgment at the ACIC examinations had been affected by his anxiety. However, the appellant contends that his Honour then reasoned directly from the psychiatrist's other observation that the appellant had maintained that he made a conscious decision not to answer questions, to a conclusion that there was no resulting material reduction in moral culpability. The appellant says that in reasoning in this way, the primary judge conflated the question of whether the appellant's mental health condition 'contributed' to his refusal to answer questions at the examination, with the question of whether it 'caused' him to so refuse. This conflation, the appellant argues, has meant that the primary judge's sentencing discretion miscarried as he failed to take into account a relevant consideration.

67    In our view, the primary judge did not conflate the question of whether the appellant's mental health condition 'contributed' to his refusal to answer questions at the examination, with the question of whether it 'caused' him to so refuse. The primary judge also did not thereby fail to take into account, as a relevant consideration, the appellant's mental health in assessing his moral culpability.

68    The relevant passage in the psychiatric report that is the focus of this ground of appeal is in the following terms:

[The appellant's] cognitive function and judgement at the time of the [ACIC] interviews is likely to have been affected by his level of anxiety, and also the tranquillising effect of diazepam. However, he maintained that he made a conscious decision not to answer questions because of the genuine belief that he and members of his family would be placed in danger if he did so.

69    In this passage, the psychiatrist expressed an opinion about the effect the appellant's level of anxiety had on his cognition and judgment during the examinations. On the assumption that this level of anxiety was the product of some mental health issue, which is not clear, it was evidence that the appellant's anxiety contributed to the contempt, at least to some extent. However, because the appellant relied on the psychiatric report to establish a mitigating circumstance, it was for the appellant to prove on the balance of probabilities that the state of his mental health contributed to the contempt in a material way, such that his moral culpability was reduced: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). In this context it is important to appreciate, as the primary judge clearly did, that the psychiatric report did not say anything about the extent to which the appellant's cognitive function and judgment at the relevant times were likely to have been impaired by his mental health. The psychiatrist may well have been unable to make any assessment of the degree to which the appellant's anxiety had affected his cognition and judgment at least because the appellant was also affected by 'the tranquillising effect of diazepam' at the relevant times.

70    It should also be noted that after opining about the likely effect the appellant's anxiety and use of diazepam had on his cognition and judgment, the psychiatrist then immediately referred to the fact that the appellant maintained that he had made a conscious decision not to answer questions because he held a genuine belief that he would place himself and members of his family in danger if he were to answer the questions. Although the psychiatrist was not asked to explain why he referred to the appellant having made such a conscious decision, it may be inferred that he did so to qualify his opinion about the likely effect of the appellant's anxiety, and that this is the way in which it was understood by the primary judge.

71    When the psychiatric evidence is understood in this way, it may be seen that the primary judge's conclusion that the appellant's mental state did not reduce his moral culpability to any material extent did not involve any conflation of contribution with cause. Instead, it demonstrates that the primary judge appropriately weighed the psychiatric evidence and found, in effect, that although the appellant had mental health issues, he was still capable of making a rational choice about whether to answer questions, with the result that the appellant's mental health issue did not reduce his moral culpability for refusing to answer the questions 'to any material extent'.

72    In any event, the extent to which a mental illness affects an offender's moral culpability, or moral blameworthiness, depends on the nature, effect and severity of the mental illness at the time the offence was committed: Austin v The State of Western Australia [2023] WASCA 191 at [133] (Vandongen JA). The evidence before the primary judge established that the appellant was essentially suffering from anxiety, while experiencing the concurrent tranquillising effect of diazepam, but was someone who was still able to make a conscious decision to refuse to answer questions. In those circumstances it is difficult to see how the primary judge could have reached a conclusion other than that the appellant's mental health did not reduce his moral culpability to any material extent.

73    Further, the extent to which any reduction in an offender's moral culpability will translate into a reduction in the sentence imposed on the offender depends upon the part it plays in considering the weight to be attached to the various sentencing factors, such as general and specific deterrence, protection of the community, retribution and promotion of rehabilitation, and in the process of undertaking instinctive synthesis: Austin at [133] (Vandongen JA). It could not sensibly be concluded that the appellant's mental health rendered him less suitable as a vehicle for general deterrence, retribution or coercion, which were the predominant sentencing factors in his case.

74    The appellant also argues that the primary judge failed to take into account his mental health as a factor that made a term of imprisonment more onerous for the appellant than it would be in the ordinary case.

75    It may be accepted that ill health, including mental ill health, may be a mitigating factor where it cannot be treated effectively in prison or where it is of a nature that imprisonment will be more onerous for an offender than in the ordinary case: see, for example, Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 at [36] (Steytler P); Liu v The King [2023] NSWCCA 30; (2023) 306 A Crim R 105 at [39] (Campbell J, Adamson JA and McNaughton J agreeing); and Talbot v The Queen (No 2) [2019] SASCFC 113; (2019) 135 SASR 47 at [69] (Parker J, Kelly J and David AJ agreeing). However, there must be evidence to justify such a conclusion, on the balance of probabilities.

76    In this case there was no evidence that the appellant's mental health would render imprisonment a greater burden when compared to other prisoners, at least to any significant extent. The psychiatrist did not say anything in his report to that effect, nor does his report provide a basis from which that could properly be inferred. In fact, the psychiatrist noted that the appellant 'has some experience of prison from his previous sentence' and expressed the view that the 'main burden of imprisonment' would fall on the appellant's family members and his business. Further, the psychiatrist said:

The natural history of adjustment disorder is to recover over time once the cause of the symptoms has been resolved, or faded into the past. Recovery can be assisted by supportive counselling, although this has not been available to [the appellant] because of the very secret nature of the proceedings. He has not even been able to discuss them with [a close member of his family].

77    The primary judge said that there was nothing in the psychiatric report that allowed him to conclude that imprisonment will be a greater burden on the appellant in comparison with other prisoners, at least not to any significant extent. His Honour was, with respect, correct. Far from failing to take the appellant's mental health into account as a factor that made a term of imprisonment more onerous for the appellant, the primary judge was right to conclude that there was no evidence to justify a finding of that nature.

78    We would dismiss ground 2(a).

Ground 2(b) - The primary judge failed 'to acknowledge impermissible submissions on range'

79    In Barbaro, the plurality (French CJ, Hayne, Kiefel and Bell JJ) said at [23] that a practice of counsel for the prosecution providing a submission to a sentencing court about the bounds of an available range of sentences was wrong in principle, and that it should not occur. In that regard, it was said at [29] that:

The practice … assumes that the prosecution's proffering a statement of the bounds of the available range of sentences will assist the sentencing judge to come to a fair and proper result. That assumption depends upon the prosecution determining the supposed range dispassionately. It depends upon the prosecution acting not only fairly (as it must) but in the role … as that of 'a surrogate judge'. That is not the role of the prosecution.

80    The plurality went on to say at [33]:

The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution's view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.

81    The appellant contends that counsel who appeared for the respondent at sentencing did make submissions about the bounds of the range of available sentences in respect of the contempt committed by the appellant, contrary to what was said in Barbaro. In support of that contention, the appellant refers to a relatively lengthy passage from the transcript, which records an exchange that took place between the primary judge and counsel for the respondent at the sentencing hearing.

82    To understand the appellant's contention, and why we have reached the conclusion that it is without merit, it is necessary to reproduce the entire passage, emphasising those parts upon which the appellant places particular reliance.

RESPONDENT'S COUNSEL: And your Honour will see this is not a matter where the [respondent] submits that an indeterminate sentence is appropriate.

HIS HONOUR: No.

RESPONDENT'S COUNSEL: It is a matter for a fixed sentence, and with the usual opportunity for the [appellant] to apply to relist the matter, should he wish to purge his contempt. But nor is it the case that your Honour should be restricted by the end date of the determination, which is 12 December 2025, if your Honour were of the view that the appropriate degree of punishment for this kind of conduct in - required a sentence that went beyond that date. So your Honour is not confined by that date, but nor is it a matter where your Honour should impose an indeterminate sentence. But there - inasmuch as there is a purpose with respect to these sentences in coercion, in persuasion to purge contempt, the sentence should certainly take into account the period during which the determination is on foot.

HIS HONOUR: Now, what would you say about that? So what we have is just this matter of simple chronology that here we are, in April.

RESPONDENT'S COUNSEL: Yes.

HIS HONOUR: The determination finishes in December.

RESPONDENT'S COUNSEL: Yes.

HIS HONOUR: ACIC[']s evidence is that it would still like to talk to the [appellant].

RESPONDENT'S COUNSEL: That is so.

HIS HONOUR: And so do you say, from those facts alone, I can say coercion has some role to play?

RESPONDENT'S COUNSEL: Yes, that's the factual basis for coercion here.

HIS HONOUR: Now, I don't know whether [counsel for the appellant] is going to make this submission that the evidence shows that there is no prospect of the [appellant] purging his contempt.

RESPONDENT'S COUNSEL: There is some basis to suppose that it seems unlikely, but nor should your Honour ever totally put that out of mind, because you've also been asked to have regard to the fact - via [the forensic psychiatrist] - that this is going to hurt the loved ones of the [appellant], and that, notwithstanding that he has been in custody before, your Honour might find that he may respond to it in a way that is presently unexpected.

HIS HONOUR: Yes.

RESPONDENT'S COUNSEL: If it is the case that your Honour makes some finding that it's perhaps less probable, or less probable than not that he won't assist, then you need to emphasise more the punitive aspects of the purpose of sentencing. But your Honour would, in my submission, still leave open that possibility. I'm just trying to locate the relevant passage. I deal, at paragraphs 57 and following of the primary submissions, with this question of coercion as an incentive to purge, and at paragraph 57, in particular, there's these two choices. Justify sentencing a contemnor to imprisonment for either the indefinite period, or a fixed period under conditions designed to incentivise the contemnor to purge. Now, those are the ones where the point is that it's - you could structure it by keeping it open for the period of the determination or longer, if the combined effect of coercion and punishment warranted it. You will note that there have been requests to purge his contempt - - -

HIS HONOUR: I think that's relevant, yes.

RESPONDENT'S COUNSEL: - - - and there has been no communication in response.

HIS HONOUR: I think that's relevant, yes. I just didn't see, in those paragraphs, if you had said anything about whether the evidence allows an inference that whether purging is - certainly, it's still possible, and I think I've understood your submission to say - I think your submission is, as long as it's still possible, and given the other chronology, then it's a relevant matter for me to consider.

RESPONDENT'S COUNSEL: Yes.

HIS HONOUR: So I think I understand that submission.

RESPONDENT'S COUNSEL: And your Honour would not take an approach - and this is following Wood v Galea cited at 64 [of the respondent's written submissions on penalty] - - -

HIS HONOUR: Yes.

RESPONDENT'S COUNSEL: - - - that the sentence should be confined to the period during which purging could take place. That was one where there was - - -

APPELLANT'S COUNSEL: I've let this roll quite far. It's not very appropriate for the Crown to submit on the appropriate range, your Honour, only the options.

HIS HONOUR: I think I may have led [the respondent's counsel] astray. What I was hoping to get assistance from - and clearly, I'm going to be asking you this. I was kind of anticipating what I thought your submissions might be - is what are the relevant aspects of sentence that are relevant? Because you would know that the purposes are general deterrence particularly, denunciation and coercion. They seem to be the three things that matter in cases of this sort. And what I was seeking to explore with [the respondent's counsel] was whether coercion was a relevant purpose. So for example, there's cases where a person has being [sic] sentenced, and the determination has already expired, in which case coercion is not even a relevant component of the sentence.

APPELLANT'S COUNSEL: Yes, your Honour.

HIS HONOUR: So that's all I wanted to explore - was whether - - -

APPELLANT'S COUNSEL: I'm only noting that that should not be done in relation to any time period. That's improper.

HIS HONOUR: All right. Well, I understand your submission, and your submission is understood. Thank you. So, [the respondent's counsel] - - -

RESPONDENT'S COUNSEL: Your Honour, I'm endeavouring, with great care, to not offend the Principal in Barbaro - - -

HIS HONOUR: Yes.

RESPONDENT'S COUNSEL: - - - which says the Crown Prosecutor should not address it. I don't ask you to impose a sentence of any particular length, but your Honour is obliged, for instance, as a general proposition, where there is a maximum and also where - if it were a matter where there were an applicable statutory minimum sentence, to treat those as yardsticks. And functionally, in this area of law, there is authority that talks about coercion with respect to events. And Wood v Galea is exactly what I'm talking about, referred to at 64 [of the respondent's written submissions on penalty], about how one might structure the offence with respect to futility, coercion at some point - and in that case, they were talking about the Wood Royal Commission ceasing, though strictly, it never ceased; it now exists as the New South Wales Law Enforcement Conduct Commission, and after that, the Police Integrity Commission immediately after it. I'm not asking your Honour to impose a sentence of any particular duration. I'm merely identifying key dates that allow you to identify how the sentence should be imposed with respect to particular factors, and I'm aware of the authority of Barbaro, and certainly, I don't want to be misunderstood as suggesting that it should be a sentence that finishes at any particular time. Your Honour could arrive at a number of courses taking into account the matters I've raised with you.

HIS HONOUR: Thank you.

(emphasis added)

83    It is unnecessary to identify the basis on which an appeal against a sentence might conceivably be allowed where a prosecutor has made a submission to a sentencing court about the bounds of an 'available range' of sentences, contrary to Barbaro. This is because, contrary to the appellant's contention, counsel's submissions were not impermissibly concerned with the bounds of the range of sentences that were available to the primary judge. In any event, as the above passage itself demonstrates, the primary judge clearly understood the submission that was forthrightly made by the appellant's counsel that the respondent's counsel should not be making submissions 'in relation to any time period'. Further, as the New South Wales Court of Criminal Appeal held in Anderson v The Queen [2022] NSWCCA 187; (2022) 109 NSWLR 272 at [50]:

Barbaro v The Queen does not stand for a proposition that if Crown counsel should purport to nominate an available range of sentence, contrary to the High Court's disapproval, the sentencing process would thereby miscarry rendering the imposed penalty liable to be set aside. No subsequent decision has extrapolated the reasoning in Barbaro v The Queen to any such proposition. An extension to that effect would be unsupportable.

84    In our view, the relatively simple point counsel for the respondent was endeavouring to make was that, as a general proposition, when sentencing for contempt of the ACIC, the length of any sentence need not be fixed by reference to the remaining period of the relevant ACC determination. This is made abundantly clear when counsel's oral submissions are read in conjunction with his written submissions, both of which referred to the case of Wood v Galea (1997) 92 A Crim R 287, in which Hunt CJ said at 288-289:

[I]f the appropriate period for which the person in contempt should be kept in custody as punishment in the usual sense is longer than the life of the proceedings in relation to which the contempt was committed, the fact that he can no longer be coerced does not mean that he should not be kept in custody for that appropriate period.

(footnotes omitted)

85    Accordingly, counsel was not submitting, contrary to Barbaro, that the primary judge would fall into error if he were to impose a sentence that expired before the termination of the Determination, or that the 'available range' of sentences consisted only of sentences that were of a length that extended beyond the end of the Determination. In fact, counsel expressly submitted that the length of the sentence that should be imposed was a matter for the primary judge to determine. That this is so can be seen from one of the passages taken from the above exchange on which the appellant relies:

But nor is it the case that your Honour should be restricted by the end date of the determination, which is 12 December 2025, if your Honour were of the view that the appropriate degree of punishment for this kind of conduct in - required a sentence that went beyond that date.

(emphasis added)

86    The following extract taken from the transcript of the sentencing proceedings also clearly demonstrates that the respondent's counsel was at pains to make it clear that he was not asking the primary judge to impose a sentence of any particular length:

I don't ask you to impose a sentence of any particular length … I'm not asking your Honour to impose a sentence of any particular duration. I'm merely identifying key dates that allow you to identify how the sentence should be imposed with respect to particular factors, and I'm aware of the authority of Barbaro, and certainly, I don't want to be misunderstood as suggesting that it should be a sentence that finishes at any particular time. Your Honour could arrive at a number of courses taking into account the matters I've raised with you.

(emphasis added)

87    In any event, it is readily apparent that the primary judge was not led into imposing a sentence, erroneously influenced by submissions that ran contrary to what was said in Barbaro. In that regard, the primary judge said at [63]:

In these circumstances, the purpose of any sentence imposed on [the appellant] includes the purpose of encouraging him to purge his contempt before 12 December 2025. That is unlike cases such as AYI23, when the determination had already expired at the time of sentencing. To be clear, I accept the [respondent's] submission that the Court may lawfully impose a fixed term that extends beyond the expiry date of the relevant ACIC determination (as in CVA22, where the respondent was sentenced in February 2023 to 7 months imprisonment and the ACIC determination was to expire in July 2023). That is because the purposes of the sentence are not limited to coercing a person into answering questions, but include retribution and deterrence.

(emphasis added)

88    We would dismiss ground 2(b).

Ground 2(c) - The primary judge failed 'to make any or appropriate allowance for the early plea of guilty'

89    To the extent that this ground of appeal asserts that the primary judge failed to make 'any' allowance for the appellant's early guilty plea, it must be rejected. The primary judge expressly accepted that the appellant had indicated an intention to plead guilty at an early stage and said further that this was something that 'is properly taken into account'.

90    However, the appellant makes an alternative assertion. He says that the primary judge failed to make any 'appropriate allowance' for his early guilty plea. As senior counsel for the appellant explained at the hearing of the appeal, it is contended that the primary judge failed to give any credit for the utilitarian value of the plea. The appellant submits, in effect, that the Court should infer that the primary judge did not take the utilitarian value of the guilty plea into account. In support of that submission the appellant points to the fact the primary judge did not expressly refer to the utilitarian value of the plea in his sentencing remarks, and to the fact the plea was only taken into account as part of the appellant's 'character and antecedents'.

91    As the primary judge was exercising federal jurisdiction, the utilitarian value of the appellant's admission may not have been a relevant consideration. That is because by taking it into account, a court exercising federal jurisdiction in sentencing for a contempt of the ACIC might thereby impermissibly discriminate between persons convicted on pleas of guilty and persons convicted after pleas of not guilty: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 at [12]-[15] (Gaudron, Gummow and Callinan JJ), [44] (McHugh J). However, as that issue was not the subject of any considered submissions, we will proceed on the assumption that any utilitarian value that may flow from an admission that a person is in contempt of the ACIC is a relevant sentencing consideration.

92    We are not persuaded that the primary judge failed to take into account the utilitarian value of the appellant's guilty plea. Accordingly, we would dismiss this ground of appeal.

93    It may be accepted that when he imposed the sentence on the appellant, the primary judge did not expressly refer to the utilitarian value of the appellant's plea. Further, to the extent the primary judge did refer to the plea, it was only in the context of the appellant's character and antecedents. Viewed in isolation, that might suggest that weight was only given to any subjective factors associated with the guilty plea, such as remorse and acceptance of responsibility. However, there are two reasons why we are of the view that his Honour was alive to the relevance of the utilitarian value of the appellant's plea and that he did not fail to take that factor into consideration.

94    Firstly, the transcript of the sentencing hearing reveals that the primary judge was alive to the relevance of the utilitarian value of the appellant's plea. Having received written submissions from the appellant's counsel in advance of the sentencing hearing, which referred to the utilitarian value of the admission of guilt, the primary judge also made reference to that same factor during the sentencing hearing. Specifically, the primary judge invited the appellant's counsel to make oral submissions about whether, apart from its utilitarian benefit, the guilty plea also indicated that the appellant was remorseful and willing to facilitate the course of justice: ts at 75-76.

95    Secondly, and more importantly, when the primary judge said in his sentencing remarks that he accepted that the appellant had indicated that he intended to plead guilty at an early stage, and that this was a matter that was properly to be taken into account, his Honour referred to AYI23 at [35] and to Australian Crime Commission v DTO21 [2022] FCA 288 (DTO21) at [63].

96    In AYI23, Abraham J made the following observations about the admission of guilt in that case at [35]:

This is his first time in custody. He indicated a plea of guilty at a relatively early stage, which I take into account at the very least for its utilitarian value. That said, it says little as to the subjective aspects of his case. The evidence before me establishing the contempt reflects that a plea was inevitable.

97    Further, in DTO21, Thawley J said at [63], relevantly:

The respondent also relied on his early plea of guilty. The guilty plea was little more than a recognition of the inevitable outcome. In the context of this particular case, it produced little significant saving of time or cost and is unlikely to have alleviated any inconvenience to witnesses, it being unlikely that any witness would have been called. Nevertheless, even if a conviction was as good as inevitable, a guilty plea has some value. I have taken the respondent's guilty plea into account, as well as the fact that it was made at the first opportunity.

(citations omitted)

98    It may be seen that in both of those passages, the dominant, if not the only, focus was on the utilitarian value of a plea of guilty. Accordingly, having cited those passages in support of his conclusion that the appellant's early plea of guilty was to be 'properly taken into account', it is not reasonable to suggest that the primary judge completely overlooked the utilitarian value of the plea.

99    We would not infer that the primary judge failed to make an appropriate allowance for the appellant's plea of guilty simply because he dealt with the appellant's guilty plea in the context of considering his character and antecedents. The primary judge took the view that it was convenient for him to fix a sentence by taking into account each of the factors referred to in Wood v Staunton. However, none of those factors refer to a guilty plea. Accordingly, it is tolerably clear that when seeking to bring the appellant's plea of guilty into account as a mitigating factor, the primary judge merely formed the view that the 'best fit' for recording that he had given weight to that factor was in his consideration of the appellant's character and antecedents, which is referred to in Wood v Staunton. While this may highlight the dangers associated with too rigidly using the factors drawn from Wood v Staunton when sentencing for contempt, it does not establish that the primary judge failed to have regard to the utilitarian value of the appellant's guilty plea.

100    The appellant also relies on Xiao v The Queen [2018] NSWCCA 4; (2018) 96 NSWLR 1, in support of his argument that the primary judge failed to have regard to the utilitarian value of his guilty plea. However, that case is of no assistance to the appellant. Xiao was not concerned with sentencing for contempt of the ACIC. The appellant in Xiao was sentenced for an offence which required the sentencing court to take into account the matters listed in s 16A(2) of the Crimes Act, including the fact that there had been a plea of guilty (s 16A(2)(g)). When considering that matter, the sentencing judge in Xiao expressly said that the utilitarian discount that is afforded for a guilty plea by sentencing courts in New South Wales, in accordance with the guideline judgment of R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383, did not apply to sentencing for federal offences. However, the New South Wales Court of Criminal Appeal concluded in Xiao that when taking into account the fact that a person pleaded guilty, for the purposes of s 16A(2)(g) of the Crimes Act, a sentencing judge is entitled to take into account the utilitarian value of the plea, and that the sentencing judge erred in failing to take that matter into account.

101    While the primary judge in this case did not expressly refer to the utilitarian value of the appellant's plea, unlike in Xiao, his Honour never said that he would not take that factor into account in sentencing the appellant.

102    We would dismiss ground 2(c).

Ground 3 - The sentence is manifestly excessive

103    Ultra Tune Australia Pty Ltd v Australian Competition and Consumer Commission [2025] FCAFC 1; (2025) 307 FCR 13 concerned an appeal against orders made at first instance that the appellant pay fines following its conviction on four charges of contempt. The Full Court (Markovic and Abraham JJ, Lee J agreeing) reiterated at [103]-[104] that the approach to be taken when considering whether a penalty is manifestly excessive is set out in Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2016) 256 FCR 90 at [107]-[111] (Besanko, Wigney and Bromwich JJ):

As Gleeson CJ and Hayne J observed in Dinsdale v The Queen (2000) 202 CLR 321 at [6]:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

The ground of manifest excess …, especially when considered without any finding of specific error, requires this Court exercising appellate jurisdiction to approach the purely discretionary aspect of penalty imposed with some caution. House v The King (1936) 55 CLR 499 (House v The King) was a case about discretionary decision-making in the analogous context of criminal sentencing. [The Full Court then repeated the well-known principles that appear at pages 504-505 of that case].

In [Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25] at [51]-[53], the following observations were made as to the types of error identified in House v The King and discussed in subsequent recent authority:

Error may be specific, in the sense of apparent on the face of the reasons given, such as by application of a wrong principle in reaching the result (which may be evident by the primary judge addressing the wrong question), reaching the result by taking into account something that should not have been considered or by failing to take into account something that should have been considered, or by making a determinative error on the facts in the sense that the factual finding was not properly available to be taken into account in a way that affected the outcome.

Alternatively, error may be inferred from a result that cannot have been arrived at without some kind of operative error. The influence of the reasons given for the result arrived at on this process will vary. Reasons are not to be ignored, but nor do they necessarily confine in a rigid or inflexible way the scope of the appellate inquiry. It may be legitimate to have regard to what was said and not said in order to identify how the asserted erroneous result was reached. But for error to be inferred from the result, the result must be one which was not open on the evidence or facts found or agreed.

In all cases of specific error, the error must have either caused or materially contributed to the result. An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result.

The concept of unreasonable or plainly unjust as a basis for finding or inferring error has a flavour akin to Wednesbury unreasonableness insofar as it focuses the mind on an asserted inherently wrong outcome. It is a significant conclusion to reach if it only arises for consideration in the absence of any identified or established overt error.

It follows that manifest excess (or inadequacy) can be very difficult to establish without attendant overt error in some respect, except in very clear cases, as the next topic demonstrates. The High Court has made it clear that manifest excess (or inadequacy) is not to be determined as a matter of intuition, but rather is to be revealed by consideration of all the matters relevant to fixing the sentence: Hili v The Queen (2010) 242 CLR 520 … at [60].

104    In Kazal, a case which also, relevantly, concerned an appeal against sentences imposed for contempt, the Full Court noted at [111] that whether a sentence imposed for contempt is manifestly excessive may be evident when due regard is had to the nature of the contempt and, if available, closely comparable cases. In The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 at [57], McLure P (with whom Mazza JA agreed), said that in determining whether an implied error has been made in the context of an appeal against a sentence imposed for a criminal offence, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender. In Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600, in which it was asserted that the Court of Appeal had failed to apply the principles that attend the disposition of a State appeal brought on the basis of alleged manifest inadequacy, the High Court said at [33] that there was nothing unorthodox in the approach that McLure P had taken.

105    As we have already observed, there is no maximum penalty for a contempt of the ACIC. Accordingly, there is no legislated sentencing 'yardstick': Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [30]-[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

106    The primary judge was of the view that the contempt committed by the appellant was serious. As his Honour observed, when a person lawfully summoned to appear at an examination refuses to answer questions, it undermines the effectiveness of the ACIC and the statutory regime under which it operates. Indeed, the primary judge found that the appellant's refusal to answer questions at the examination had a detrimental effect on the ACC special operation. His Honour also appeared to accept that the ACIC considered that the appellant was a 'highly significant witness who can provide invaluable information', that his refusal to answer questions 'adversely affected the ability of the ACIC to collect relevant information on persons the appellant is known to be connected with', and that the ACIC believes that the appellant could provide it with 'intelligence insights' that remain unanswered: Purcell (Examiner) v LAZ24 [2025] FCA 413 at [39].

107    The primary judge found that the contempt committed by the appellant was deliberate and pre-planned. In that regard, his Honour noted that when the appellant appeared at the examination on the first occasion, he said that he would not be answering questions. The appellant then refused to answer questions when he appeared at the examination some weeks later, even though he was specifically warned about the consequences, and even though he was given several opportunities to obtain legal advice.

108    The primary judge appeared to accept that the appellant decided not to answer the questions because he feared for his own life and safety, and for the safety of his family. However, his Honour did not give this factor any mitigatory weight. This is because he concluded, by reference to authority, that it is well-established that fear of retribution will rarely be given mitigatory weight, and because he accepted that the appellant had expressed no more than a generalised fear.

109    As has already been seen, the primary judge did not attribute any significant weight to the appellant's mental health issues, concluding that his moral culpability was not reduced to any material extent, and that prison would not bear on him to any significantly greater extent, because of those issues. The primary judge did, however, take into account the fact that the appellant indicated that he would plead guilty at an early stage. Although the appellant has challenged those findings in the context of grounds 2(a) and 2(c), respectively, a complaint that error should be inferred from the resulting sentence necessarily proceeds on the basis of the primary judge's findings.

110    Insofar as the appellant's personal circumstances are concerned, the primary judge noted that he had a criminal history, which included two serious offences. His Honour did not, however, refer in detail to any of the appellant's other personal circumstances. The appellant makes no specific complaint about this aspect of the primary judge's sentencing remarks. In any event, as the primary judge noted, matters personal to a person who has committed a contempt of the ACIC are given less weight because of the importance of general deterrence.

111    The primary judge did, however, take into account the probable effect that a term of imprisonment would have on the appellant's family and dependants. He also accepted that a term of imprisonment would cause damage to his business.

112    Before turning to consider the standards of sentencing customarily imposed for contempts of the ACIC, it is necessary to emphasise that the primary judge also decided that one of the purposes of the sentence he imposed was to encourage the appellant to purge his contempt before 12 December 2025, quite apart from other purposes, including retribution and deterrence. Accordingly, some care must be taken when dealing with this ground by reference to whether the sentence imposed was 'manifestly excessive'. In cases in which a sentence has been imposed to, at least in part, provide a coercive effect on a contemnor to purge their contempt, it may be better to focus on whether the sentence imposed was 'unreasonable or plainly unjust'.

113    In R v Pham [2015] HCA 39; (2015) 256 CLR 550 at [28], French CJ, Keane and Nettle JJ emphasised the following in relation to the way in which the assessment of sentences imposed in other cases is to be approached:

(1)    Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.

(2)    The consistency that is sought is consistency in the application of the relevant legal principles.

(3)    Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.

(4)    Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.

(5)    For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.

(6)    When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.

(7)    Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.

(footnotes omitted)

114    Further, the High Court said at [29] that while a previous sentence imposed in another case is not itself a binding precedent, intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as 'yardsticks' that may illustrate, but not define, the possible range of available sentences. However, the cases cited in support of that proposition, namely, Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54], and Barbaro at [41], suggest that it is also permissible for appellate courts to have regard to a history of sentencing that can establish a range of sentences that have in fact been imposed.

115    The appellant has referred to several cases in which sentences were imposed by judges exercising this Court's original jurisdiction, namely Sage v CFS22 [2022] FCA 1023; Anderson v BYF19 [2019] FCA 1959; AYI23; Lusty v CVA22 [2023] FCA 130; (2023) 306 A Crim R 43; Lusty v CRA20 [2020] FCA 1737; Sage v CFT22 [2022] FCA 1028; Sage v CFT22 (No 2) [2023] FCA 594; Lusty (Examiner) v DEZ22 [2022] FCA 1581; and Lusty (Examiner) v DEZ22 (No 2) [2023] FCA 858. However, the Court was not referred to any decision of a court exercising appellate jurisdiction that might be said to be broadly comparable.

116    It is unnecessary to refer to the cases to which the appellant has referred in any detail. Unsurprisingly, there are differences in the factual and personal circumstances that were in play in those cases, when compared to the circumstances present in this case. For example, in CVA22, where a sentence of 8 months imprisonment was imposed for a contempt committed by refusing to answer seven questions, the primary judge was satisfied that the contemnor had a mental illness that contributed to the contempt, and that the contemnor refused to answer the questions because he had genuine and rational fears. In AYI23, a sentence of 7 months imprisonment was imposed on a person for refusing to answer a total of 10 questions. As in this case, the contempt was serious and there was no explanation for the contempt other than some generalised fear. The contemnor was, however, on remand awaiting sentence for several other offences. In CRA20, a sentence of 8 months imprisonment was imposed on a person who refused to answer 14 questions. The contempt was found to have been serious, it frustrated and impeded the examination and the progress of the investigation, and the only reason given for refusing to answer was that the contemnor held some generalised fear. The sentence was imposed, in part, to encourage the contemnor to purge his contempt, and the sentencing judge indicated that were he to do so, she would be minded to suspend the balance of the sentence.

117    In our view, none of the cases relied on by the appellant support a conclusion that the sentence of 9 months imprisonment that was imposed on the appellant is unreasonable or plainly unjust. Bearing in mind that one of the purposes of that sentence was to encourage the appellant to purge his contempt before the expiration of the Determination on 12 December 2025, a sentence of 9 months imprisonment was well within the range of available sentences for the serious contempt that was committed.

118    We would dismiss ground 3.

Ground 4 - The primary judge 'erred in failing to exercise the discretion in relation to costs according to law'

119    By this ground, the appellant challenges the primary judge's order that the appellant pay the respondent's costs. As that order was an interlocutory order, the appellant requires a grant of leave: Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; (2023) 299 FCR 224 at [13]-[14]; and Crawford v State of Western Australia (No 2) [2025] FCAFC 48. In order to obtain leave to appeal, the appellant must demonstrate that the primary judge's costs order is attended with sufficient doubt to warrant it being reconsidered and that substantial injustice would result if leave were refused, supposing the decision to be wrong: Harvard Nominees at [14], citing Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398.

120    The appellant did not file an application for leave to appeal and the appellant's submissions did not address the question of leave. On this basis alone, this ground must be dismissed. However, even if the appellant had sought leave to appeal, we would have refused to grant leave in any event.

121    As senior counsel for the appellant explained at the hearing of the appeal, the appellant's submission is that the primary judge did not exercise any discretion but merely followed what he perceived to be the practice of this Court to award costs in matters of this nature. Further, counsel submitted that the appellant's 'primary position' was that if there was an award of costs then it should be restricted to the costs of the originating application and the statement of charge, recognising that the proceedings are essentially criminal in character.

122    We are not persuaded that the primary judge's costs order is attended with sufficient doubt, or that a substantial injustice would result if leave to appeal that order was refused. The submission that the primary judge in effect fettered his discretion to award costs by blindly following what he perceived to be a practice of this Court does not bear scrutiny. The transcript of the proceedings before the primary judge records that a submission was made on behalf of the appellant that was to the effect that a costs order would not have been made had the respondent chosen to bring proceedings in the New South Wales Supreme Court. The respondent submitted, in response, that it was free to choose the jurisdiction in which to bring the proceedings. It was in that context that the primary judge said (ts at 4):

I am inclined to make the costs order sought by the [respondent]. The practice of this court is to award costs in matters of this kind. I won't speculate on whether there will be a different practice in the Supreme Court.

123    Contrary to the appellant's submission, the primary judge's reference to the practice of this Court does not demonstrate that he inflexibly applied his discretion to award costs but rather reflects the fact that he considered, and rejected, the submissions made on behalf of the appellant.

124    The appellant's submission that the award of costs should have been restricted to the costs of the originating application and the statement of charge amounts to a mere conclusion. No attempt was made to identify how the primary judge erred in the exercise of his discretion, by reference to the types of error referred to in House v The King (1936) 55 CLR 499. In our view, the appellant has fallen well short of establishing that the primary judge's costs order is attended by sufficient doubt or that substantial injustice would result if leave were refused.

125    We would dismiss ground 4.

Conclusion

126    As we have already stated, we would dismiss all of the grounds of appeal on which the appellant relies. Therefore, we would also dismiss the appeal. We would also make an order that the appellant pay the respondent's costs of the appeal.

127    It is now necessary to deal with the respondent's application for suppression and confidentiality orders.

The respondent's interlocutory application for suppression and 'confidentiality' orders

128    Prior to the hearing of the appeal, the Court made orders that any party wishing to apply for suppression orders pursuant to s 37AF of the Federal Court Act was required to file an interlocutory application, together with supporting materials, in advance of the hearing. However, no such application was made until after the hearing was completed, when the respondent eventually filed an application seeking various suppression orders pursuant to s 37AF(1) of the Federal Court Act, as well as a 'confidentiality' order pursuant to r 2.32 of the Federal Court Rules.

129    The respondent's application is supported by an affidavit affirmed by a solicitor employed at the Australian Government Solicitor. However, that affidavit seeks only to explain why the respondent did not file the application before the hearing of the appeal. At para 4 of the respondent's reply to the appellant's written submissions relating to the application, it is said that the respondent relies on 'the matters before the Court with respect [to] the Appeal and the primary judgment' to justify the making of the orders sought.

130    There are three categories of orders sought.

131    The first category of orders concerns the appellant. The respondent seeks orders that prohibit the disclosure of the appellant's name, address and any other information that directly or indirectly identifies the appellant. The respondent also seeks an order that the appellant be identified by a pseudonym.

132    In the second category of orders the respondent seeks are orders that prohibit the disclosure of the name of counsel assisting the respondent at the examinations that were conducted with the appellant, as well as the names of various other ACIC employees.

133    The third category of orders concerns the documents filed in the appeal. In that respect, the respondent seeks an order that those documents are to be treated as confidential and marked as such on the Court file.

134    The respondent seeks orders in respect of each of those categories on the ground that they are necessary to prevent prejudice to the proper administration of justice, and to protect the safety of any person, pursuant to paragraphs (a) and (c) of s 37AG(1) of the Federal Court Act, respectively. In particular, the respondent submits that the orders are necessary to:

(a)    maintain the integrity of the compulsory examination process as an important investigative tool bestowed upon the ACIC;

(b)    ensure consistency with the statutory prohibitions and restrictions on the use and disclosure of ACIC examination material, which includes the fact that the appellant attended an ACIC examination, the content of the examination, and any information that might enable the appellant to be identified as a person who has given evidence before an examiner at an examination; and

(c)    protect the safety of the appellant, particularly in circumstances where he may yet decide to purge his contempt.

135    The appellant opposes the making of any of the orders sought by the respondent.

136    Before explaining why we would make suppression orders, although not in the terms sought by the respondent, it is necessary to summarise the principles that must be applied.

Applicable principles

137    The power to make a suppression order or a non-publication order is found in s 37AF of the Federal Court Act. A 'suppression order' is an order that prohibits or restricts the disclosure of information, by publication or otherwise: s 37AA of the Federal Court Act. A 'non-publication order' is an order that prohibits or restricts the publication of information, but that does not otherwise prohibit or restrict the disclosure of information: s 37AA.

138    The Court has the power to make a suppression order or a non-publication order in relation to, relevantly, information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding, or any person who is related to or otherwise associated with such person: s 37AF(1)(a). The power may also be exercised in relation to information that relates to a proceeding before the Court and comprises evidence or information about evidence: s 37AF(1)(b)(i).

139    The power to make an order under s 37AF is circumscribed by the need for it to be made on one of the grounds set out in s 37AG(1). Relevantly, those grounds include that:

(a)    the order is necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a); or

(b)    the order is necessary to protect the safety of any person: s 37AG(1)(c).

140    The principles to be applied when considering whether to make an order on the ground provided for in s 37AG(1)(a) were referred to in The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 at [8]‑[9]:

Suppression or non-publication orders should only be made in exceptional circumstances. That is both because the operative word in s 37AG(1)(a) is 'necessary' and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle.

The critical question is whether the making of a suppression or non-publication order is 'necessary to prevent prejudice to the proper administration of justice'. The word 'necessary' in that context is a 'strong word'. It is nevertheless not to be given an unduly narrow construction. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it. There is no exercise of discretion or balancing exercise involved.

(citations omitted)

141    It is not enough that the making of a suppression order or non‑publication order may be convenient, reasonable, or sensible, or that it would serve some notion of the public interest, or that as a result of some balancing exercise an order of that sort appears to have one or more of those characteristics: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [31]. Further, the onus on an applicant to persuade a court to make an order under s 37AF has been described as 'a very heavy one': Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438 at [16]; and Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8].

142    In relation to the ground in s 37AG(1)(c), there must at least be a demonstrable or real risk to the safety of an applicant for a suppression order, or another person, if the order is not made: C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 at [16].

143    The statutory language used in s 37AG(1)(a) means that it is necessary to identify the contended prejudice to the proper administration of justice that would result if the order were not made: Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; (2023) 296 FCR 272 at [90]. This means that it is 'critical that a connection be made between the asserted necessity, and the prevention of prejudice to the proper administration of justice': Lee at [93], [95].

144    It must also be noted that s 37AE provides that in deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. As the Full Court observed in Lee at [84]:

Open justice facilitates public scrutiny of the way in which courts decide cases and enables the public to understand how the justice system works and why decisions are taken.

145    Further, s 37AJ provides that a suppression order or non-publication order operates for the period decided by the Court and specified in the order, and that in deciding the period for which an order is to operate, the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

146    The ACC Act contains various provisions that are designed to preserve the confidentiality of 'examination material', which includes evidence given, or documents or things produced, at an examination, information that might enable a person who has given evidence before an examiner to be identified, and the fact that a person has given or may be about to give evidence at an examination: paragraphs (9) to (11) of s 25A, read with s 4B of the ACC Act. Directions may be made by an examiner under s 25A(9) of the ACC Act that, relevantly, examination material is not to be used or disclosed. Pursuant to s 25A(9A) of the ACC Act, directions must be made under s 25A(9) if the failure to do so might prejudice a person's safety or would reasonably be expected to prejudice an examinee's fair trial.

147    In this case, the respondent made various directions under s 25A(9) of the ACC Act. Therefore, it would be an offence to use or disclose examination material, where to do so would contravene a direction under s 25A(9), and where such use or disclosure is not otherwise permitted: s 25A(14A)(b). However, none of this alters the fact that before an order can be made under s 37AF of the Federal Court Act, one of the grounds in s 37AG(1) of that Act must be established. The existence of the statutory regime in the ACC Act and the fact that directions have been made under s 25A(9) of that Act may be relevant in considering whether a suppression order is 'necessary'. Nevertheless, the mere existence of that regime and any directions made under s 25A(9) will not dictate the outcome of an application for orders made pursuant to s 37AF of the Federal Court Act: Lee at [99]. It must be remembered that the ground in s 37AG(1)(a) is concerned with the question of whether an order is necessary to prevent prejudice to the proper administration of justice. The ACIC does not administer justice. Its functions are, in the main, concerned with collecting, correlating, analysing and disseminating information and intelligence about certain criminal activity, and undertaking intelligence operations and investigations: s 7A of the ACC Act.

148    None of this should be taken to indicate that a suppression order or a non-publication order will never be made in relation to information concerning the ACIC's activities, including information relating to examinations conducted under the ACC Act. However, where a suppression order is sought on the ground in s 37AG(1)(a), in relation to information concerning the activities of the ACIC, the applicant must demonstrate that disclosure or publication of the particular information in question will result in prejudice to the proper administration of justice such that a suppression order or a non-publication order under s 37AF is 'necessary' to prevent that prejudice from materialising.

149    Without intending to be exhaustive, and only for the purposes of illustrating how prejudice to the proper administration of justice might be demonstrated in relation to information concerning the ACIC's activities, it is useful to have regard to the decision of the High Court in R v Rogerson (1992) 174 CLR 268. That case concerned an appeal brought by the Crown against a decision of the New South Wales Court of Criminal Appeal to quash convictions for an offence of conspiring to pervert the course of justice. It was alleged that three men had formed an agreement to fabricate evidence, which agreement had as its object the frustration or diversion of a police investigation into the possible commission of a crime.

150    The question in Rogerson was whether 'the course of justice', and the synonymous expression, 'the administration of justice', include police investigations carried out before curial proceedings are on foot. Rogerson establishes that police do not administer justice. However, the case also established that the offence of attempting or conspiring to pervert the course of justice can be committed before curial proceedings have been commenced if the relevant acts constituting the offence are intended to, and have the tendency to, deflect or frustrate the institution of such proceedings. As Deane J said at 293-294, '[i]t is necessary, in a case involving alleged conduct to divert or frustrate police inquiries, to identify some actual or potential relationship between the alleged conduct and some pending, probable or possible curial proceedings whose course the accused intended to pervert'.

Should the orders sought by the respondent be made?

151    Before explaining why we are of the view that suppression orders should be made, it is convenient to first refer to the submissions that were made on behalf of the respondent.

152    The respondent submitted that the orders should be made because this Court has made suppression orders in similar terms to the orders being sought in these proceedings, where an examiner has applied for a person to be dealt with for contempt of the ACIC. The premise of that submission may be accepted. However, it is singularly unhelpful. This is because the respondent is required to establish that a suppression order should be made having regard to the circumstances of this particular case, as established by the evidence.

153    The respondent also submitted that 'in the circumstances of this case', it is necessary to make the orders sought to secure the appellant's physical safety and to prevent the release of information that could jeopardise an ongoing special ACC operation, including by disclosing to the appellant's 'associates' that the ACIC has had, and continues to have, an interest in him. However, the respondent has not referred the Court to any evidence to support the contention that a suppression order is necessary to protect the appellant's safety. The appellant himself says, in effect, that he is not in any current danger and that he would not be imperilled if there were no suppression orders. That is unsurprising as the appellant had no choice about whether to appear at the ACIC examinations, and he stubbornly refused to answer the examiner's questions when he did appear.

154    In these circumstances, it is difficult to see how the Court could properly conclude, on the basis of the materials before it, that suppression orders are 'necessary' to protect the appellant's safety.

155    The respondent makes a further submission that suppression orders are necessary to prevent prejudice to the proper administration of justice. In that respect, the respondent says that if suppression orders are not made then it would 'cut across the scheme of the ACC Act', and that past and future examinees might think that the assurances of secrecy given to them during examinations hold no weight. However, the fundamental difficulty with that submission is that it fails to recognise that prejudice to the proper administration of the ACIC does not automatically result in prejudice to the proper administration of justice. It is not for this Court to divine the necessary connection between the matters relied on by the respondent and any prejudicial effect they would have on the proper administration of justice.

156    Finally, the respondent submits that the coercive effect of the sentence imposed by the primary judge would be undermined if the appellant's identity was to be disclosed in these proceedings. The respondent says that this is because if his identity was disclosed, the appellant almost certainly would not purge his contempt during the balance of his sentence. For reasons that we will shortly explain, this submission should be accepted.

157    We will now deal with each category of orders sought by the respondent, in turn. In deciding whether to make a suppression order or non‑publication order, we have taken into account the fact that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 37AE of the Federal Court Act.

Information that identifies the appellant's personal details and that he be identified by a pseudonym

158    In our view, a suppression order should be made, which prohibits the disclosure of information that tends to reveal the identity of the appellant as a party to these proceedings. In that regard, we agree with what the primary judge said in Purcell (Examiner) v LAZ24 (No 2) [2025] FCA 498 at [15] when dealing with the appellant's application to revoke orders made by another judge of this Court in December 2024, which prevented the disclosure of the appellant's identity:

[T]here is a clear potential for prejudice to the administration of justice if [the appellant] were to be identified now. Apart from anything else, one purpose of the sentence imposed on [the appellant] is to provide an incentive for him to purge his contempt. It would directly contradict that purpose to identify [the appellant] now, because that would create the obvious risk that [the appellant] could be subjected to pressure (either through a threat to him in prison or a threat to his family) to maintain his current silence.

(citations omitted)

159    We would add to the primary judge's observations that apart from the risk of direct pressure being brought to bear on the appellant to maintain his silence, any prospect that the appellant might voluntarily purge his contempt is very likely to evaporate if his identity as a party to these proceedings were to be disclosed. The appellant would have little incentive to purge his contempt if that would then reveal at any resentencing that he had voluntarily cooperated with the ACIC by attending at an examination and answering all questions asked of him.

160    It is important to appreciate that what this means is that disclosure of the appellant's identity would undermine one of the purposes of the primary judge's order that the appellant serve a term of imprisonment. It is on this basis that we are satisfied that an order prohibiting the disclosure of information tending to reveal the appellant's identity as a party to these proceedings is necessary to prevent prejudice to the proper administration of justice. To facilitate that order, we would also order that the appellant is to be identified by a pseudonym in, and in any documents filed in, these proceedings.

161    However, and consistently with the reason why such an order should be made, those orders should be of limited duration and should only operate until a time proximate to the expiry of the appellant's term of imprisonment. This Court is required to ensure that a suppression order operates for no longer than is reasonably necessary to achieve the purpose for which it is made: s 37AJ of the Federal Court Act.

The name of counsel assisting the respondent at the examinations, as well as the names of various other ACIC employees

162    The respondent has not made any submissions or adduced any evidence in support of this category of suppression order. However, we infer that these orders are sought on the ground in s 37AG(1)(c) that they are necessary to protect the safety of counsel assisting the respondent at the examinations, and the safety of certain other ACIC employees.

163    Pursuant to s 37AF(1)(a) of the Federal Court Act, a suppression order may be made prohibiting the disclosure of information tending to reveal the identity of 'any person who is … otherwise associated with any party … in a proceeding before the Court'. That would appear to be sufficiently broad to extend to counsel assisting the respondent and other ACIC employees, as persons 'associated' with the respondent.

164    There is no evidence of what risk there is to the safety of the persons who are the subject of these proposed orders. Nevertheless, given the nature of the ACIC's functions, and its focus on gathering and disseminating information and intelligence about, and carrying out investigations into, amongst other things, 'serious and organised crime', it is a relatively short step to take to reach a conclusion that it is necessary in this case to prohibit the disclosure of information that tends to reveal the identity of counsel assisting and persons employed by the ACIC. Accordingly, we would make the orders sought by the respondent.

The documents filed in the appeal

165    The respondent seeks an order in the following terms:

Pursuant to s 37AF(1) and r 2.32 of the Federal Court Rules 2011 (Cth), all documents filed with the Court in the course of this proceeding, including Appeal Books, Appeal Book indexes, affidavits, medical reports, submissions, chronologies, transcripts and material relied upon by the respondent to this application … are to be treated as confidential to the parties and marked as such on the Court's electronic file.

166    The respondent's submissions in support of this order are pitched at a very high level of generality, referring to a purported need to maintain the integrity of the ACIC's compulsory examination process, and to ensure consistency with the statutory prohibitions and restrictions on the use and disclosure of the ACIC examination material. The respondent has also not explained, by reference to any evidence, or to the documents themselves, why it is necessary on either of the grounds in paragraphs (a) or (c) of s 37AG(1) to make a suppression order in such broad terms. Having regard to the direction in s 37AE to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice, and the fact that suppression orders are concerned with 'information' and not documents, the order sought by the respondent cannot be justified on the evidence before the Court.

167    We are, however, satisfied that a suppression order of limited duration should be made in respect of all documents filed with the Court, on the ground in s 37AG(1)(a) that it is necessary to prevent prejudice to the proper administration of justice. In our view, such an order should be made for the reasons we have already given for making an order that prohibits the disclosure of information that tends to reveal the appellant's identity as a party to these proceedings.

168    Before moving on to deal with the question of the costs of the respondent's application for suppression orders, and for the avoidance of doubt, nothing we have said in these reasons should be taken to preclude either party from making a further application for orders pursuant to s 37AF before the expiry of the appellant's term of imprisonment. To that end, we would also make an order that there be general liberty to apply.

Who should pay the costs of the respondent's application for suppression orders?

169    The discretion to award costs is generally exercised in favour of a successful party: Moli v Minister for Immigration and Multicultural Affairs (No 2) [2025] FCA 1112 at [2], citing Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25]; and Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25]. Accordingly, it might be expected that having obtained suppression orders, the respondent would be entitled to an order that the appellant pay its costs.

170    However, we accept the submissions made on behalf of the appellant that had the respondent complied with the Court's directions of 15 August 2025, this application would have been dealt with at the hearing of the appeal. Had that occurred, the appellant would not have been put to the expense of having to prepare written submissions after the hearing of the appeal. In those circumstances, we would not follow the 'general rule' as to costs. Instead, we would make an order that the respondent is to pay the appellant's costs of the interlocutory application.

Associate:

Dated:    19 September 2025