FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia & Anor v Lyon & Ors [2003] FCA 1155

PRACTICE & PROCEDURE – jurisdiction – original jurisdiction of the Federal Court of Australia – whether jurisdiction exists because of Commonwealth “right” to claim public interest immunity – whether the asserted right gives rise to a justiciable controversy – where the Commonwealth seeks declaratory relief – what is comprehended by a “matter” – the effect of par 39B(1A)(c) on the operation of par 39B(1A)(a) of the Judiciary Act 1903 (Cth) – where the Commonwealth can seek to prevent disclosure of documents or information which attract public interest immunity – where information would otherwise be required or revealed or compellable in curial or extra-curial proceedings – circumstances where public interest immunity arises – whether public interest immunity destroyed by disclosure

WORDS & PHRASES – “matter”

Judiciary Act 1903 (Cth), pars 39B(1A)(a) and (c)

Law and Justice Legislation Amendment Act 1999 (Cth), s 3

R v Blakeley; ex parte Association of Architects of Australia (1950) 82 CLR 54 referred to

Stevensonv Barham (1977) 136 CLR 190 followed

Bray v F. Hoffman - La Roche Ltd (2003) 200 ALR 607 referred to

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 considered

Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 considered

Abebe v The Commonwealth (1999) 197 CLR 510 considered

Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 cited

Sankey v Whitlam (1978) 142 CLR 1 cited

Foran v Derrick (1892) 18 VLR 408 referred to

O’Flaherty v McBride (1920) 28 CLR 283 referred to

Conway v Rimmer [1968] AC 910 referred to

Gain v Gain [1962] 1 All ER 63 referred to

Young v Quin (1985) 4 FCR 483 referred to

Marconi’s Wireless Telegraph Co Ltd v Commonwealth (No 2) (1913) 16 CLR 178 referred to

Alister v The Queen  (1984) 154 CLR 404 referred to

Commissioner of the Australian Federal Police v Poompiriyapinte (unreported, Supreme Court of New South Wales, Badgery-Parker J, 28 August 1999) referred to

Re Smith (1996) 86 A Crim R 308 considered

Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 referred to

Zarro v Australian Securities Commission (1992) 36 FCR 40 referred to

Cain v Glass (No 2) (1985) 3 NSWLR 230 referred to

Nye v State of New South Wales [2002] NSWSC 1266 referred to

Atlas v Director of Public Prosecutions (2001) 3 VR 211 referred to

XZ v R (2000) 116 A Crim R 308 referred to

R v Mason (2000) 74 SASR 105 referred to

Egan v Willis (1998) 195 CLR 424 cited

Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 referred to

R v Wallis; Ex parte Employers Association of Wool Selling Brokers & H V McKay Massey Harris Pty Ltd (1949) 78 CLR 529 referred to

Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 referred to

Phong v Attorney-General of the Commonwealth (2001) 114 FCR 75 referred to

Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582 cited

D v National Society for the Prevention of Cruelty to Children [1978] AC 171 cited

R v Rankine [1986] 2 All ER 566 referred to

R v Johnson [1988] 1 WLR 1377 referred to

SB McNicol, Law of Privilege, Law Book Co, Sydney, 1992

COMMONWEALTH OF AUSTRALIA & COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v PAUL LYON & FRANK PATRICK BARBARO & ARTHUR JOSEPH LOVEDAY & JOSEPH ALEXANDER CASSAR & FRANK VELARDI & PETER PANGELLO & ROBERT IBRAHIM & AUSTRALIAN BROADCASTING CORPORATION & SEVEN NETWORK PTY LTD & NINE NETWORK PTY LTD & JOHN FAIRFAX PUBLICATIONS PTY LTD & NEWS LIMITED

N 1447 of 2003

MOORE J

SYDNEY

22 OCTOBER 2003

THE COURT ORDERS THAT:

1. The application be dismissed for want of jurisdiction.
2. The applicants pay the respondents’ costs.
3. Subject to future order, order 1 take effect in 7 days.
4. Liberty to apply within 7 days on 24 hours notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an application by the Commonwealth and the Commissioner of the Australian Federal Police (“the Commonwealth interests”) for orders relating to information in a document tendered in committal proceedings being conducted by a Magistrate under Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW).  The Commonwealth interests seek to invoke the Court’s jurisdiction under par 39B(1A)(a) of the Judiciary Act 1903 (Cth).  The first respondent is the Magistrate, the second to seventh respondents are the accused the subject of the committal proceedings and the eighth to twelfth respondents are media interests who have either appeared before the Magistrate or otherwise have an interest in these proceedings.  This judgment concerns the jurisdiction of this Court to hear and determine the application and grant the relief sought by the Commonwealth interests.

History of the proceedings

2                     The application was initially an ex parte application by the Commonwealth interests for urgent interlocutory relief which was granted: see [2003] FCA 995.  At that time the focus of the application by the Commonwealth interests was on the conduct of the Magistrate and an apprehension that the deponent to an affidavit furnished to the Magistrate was required for, and would be, cross-examined.  The affidavit was advanced in support of a claim of public interest immunity (though the claim was, at times, also advanced by reference to provisions in the Witness Protection Act 1994 (Cth)).  However, as the proceedings have advanced in this Court, the focus of the Commonwealth interests (and the basis upon which relief is sought) has shifted from the conduct of the Magistrate and the committal proceedings themselves, to what is said to be an enforceable right of the Commonwealth which can be vindicated in proceedings in this Court quite apart from what the Magistrate had done and what had occurred in the committal proceedings.

3                     It is desirable to set out an edited version of the orders ultimately sought by the Commonwealth interests.  Contentious details are not repeated.  The orders sought are:

A declaration that disclosure of any of the following, namely,

a)         The name [a doctor’s name];

b)         The address [an address];

c)         The number [a number which may be a telephone number] and any number with the additional digits [two digits which might be added to the earlier number creating a telephone number]; in relation to the proceedings R v Barbaro and Ors in the Local Court of NSW, or in relation to the National Witness Protection Program, is contrary to the public interest.

Pursuant to s 50 of the Federal Court Act, the court orders, that there be no publication in relation to these proceedings of:

d)         The name [a doctor’s name];

e)         The address [an address];

f)          The number [a number which may be a telephone number] and any number with the additional digits [two digits which might be added to the earlier number creating a telephone number]

An Order that the non-publication order itself not be published.

An order that no person including a party have access to the court file without an order of the judge.

I should add that it is not entirely clear whether the number sought to be suppressed is a telephone number or a medical practitioner’s provider number (or both).  However, for present purposes, it does not matter. 

4                     It is unnecessary to descend into great detail about the events leading to the commencement of these proceedings to deal with jurisdictional issues.  However, some of the background should be noted.  The following is drawn from both the evidence and statements by counsel in these proceedings, which I apprehend are uncontentious.  The second to seventh respondents have been charged with drug offences under New South Wales laws.  The Office of the Director of Public Prosecutions New South Wales (“the DPP”) has carriage of the committal proceedings for the Crown.  One witness whose statement is to be relied on by the DPP in the committal proceedings (“the central witness”), is to be cross-examined by at least counsel for the second respondent and counsel for the fourth respondent.  This was as a result of an agreement with the DPP under s 48E of the Justices Act 1902 (NSW).  The central witness is a protected witness under the Witness Protection Act.

5                     An issue arose in the committal proceedings about whether the central witness was able to undergo cross-examination because of his health.  The committal proceedings were scheduled to commence on Monday 15 September 2003.  On Friday 12 September 2003 the DPP sought an adjournment of the committal proceedings.  In support of this application a medical certificate was furnished concerning the health of the central witness.  The certificate contained the name of the doctor who had created the certificate and an address, ostensibly the address of a doctor’s practice, as well as a telephone number.  These are the details to which the orders sought (set out at [3] above) relate.  The certificate was ultimately tendered in the committal proceedings (on 15 September 2003) by counsel for the fourth respondent.

6                     It emerged in the committal proceedings that the doctor may not have examined the central witness and the address may not have been an address at which the doctor practised.  It also emerged that the doctor was a member of the Australian Federal Police and that the central witness was a protected witness.  That the DPP had sought to rely on a medical certificate of this kind became a controversial issue in the committal proceedings.  The proceedings continued on Monday 15 and Wednesday 17 September 2003 in which issues relating to the medical certificate were ventilated.  On the evening of Wednesday 17 September 2003 the Magistrate was asked by the Commonwealth interests to make an order suppressing certain details of the certificate.  This application was made ex parte.

7                     The Magistrate made an interim suppression order and the following day commenced to hear submissions about whether the contentious details on the certificate could be published or should be suppressed.  In the context of this debate, the Commonwealth interests sought to read a confidential affidavit (sworn probably on 18 September 2003) from the Acting Deputy Commissioner of the Australian Federal Police in support of a claim for public interest immunity in relation to the medical certificate or at least certain information in it.  However, as earlier noted, the Witness Protection Act was also called in aid by the Commonwealth interests.  Two other affidavits of the Acting Deputy Commissioner were used in the committal proceedings.  One was relied on during the hearing on Wednesday 17 September 2003 and the other was an open affidavit of 18 September 2003 in support of the claim of public interest immunity.

8                     The ex parte application made by the Commonwealth interests in these proceedings came before me as duty judge on the evening of 18 September 2003.  The ex parte application was again before the Court the following morning when the orders were made.  The application was then made returnable on Tuesday 23 September 2003.  Later in the morning of 19 September 2003, the matter was listed for Monday 22 September 2003 on the application of the fourth respondent.  Even later that day counsel representing the eighth to twelfth respondents appeared to argue, unsuccessfully, that the application should be dealt with that day.  On Monday 22 September 2003 the application was listed for hearing on Monday 29 September 2003.  The hearing did not proceed that day, and was fixed for hearing on 10 and 13 October 2003.  On 10 October 2003 the parties commenced to address the question of whether the Court had jurisdiction to hear and determine the application.  Submissions on that issue continued on the morning of Monday 13 October 2003.  Though the parties commenced to address the question of whether, assuming jurisdiction existed, the orders sought by the Commonwealth interests should be made, it was ultimately accepted by all parties that the appropriate course was for me to determine the issue of jurisdiction before proceeding further.  I then reserved to do so.  That is an orthodox approach: see R v Blakeley; ex parte Association of Architects of Australia (1950) 82 CLR 54 at 91 and Stevensonv Barham (1977) 136 CLR 190 at 202 and Bray v F. Hoffman - La Roche Ltd (2003) 200 ALR 607 especially at [239].

9                     The Commonwealth interests identified the final form of orders sought (set out at [3] above) after lunch on Monday 13 October 2003.  At all times, the Commonwealth interests have contended that the Court has jurisdiction to hear and determine the application because the right they seek to vindicate is founded on a public interest immunity attaching to the information to which the orders relate.

The jurisdictional issues

10                  The Commonwealth interests submitted that jurisdiction is conferred on the Court to hear and determine the application by par 39B(1A)(a) of the Judiciary Act.  Subsections (1) and (1A) provide (in their present form):

(1)       Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A)     The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)       in which the Commonwealth is seeking an injunction or a declaration; or

(b)       arising under the Constitution, or involving its interpretation; or

(c)        arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

11                  Subsection (1A) was added to s 39B by Act No 34 of 1997, the Law and Justice Legislation Amendment Act 1997 (Cth).  The subsection added was in the following terms:

(1A)     The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)       in which the Commonwealth is seeking an injunction or a declaration; or

(b)       arising under the Constitution, or involving its interpretation; or

(c)        arising under any laws made by the Parliament.

The words “other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter” were added to par (c) by Act No 125 of 1999, the Law and Justice Legislation Amendment Act 1999 (Cth) (“the 1999 Amending Act”).  That Act took what is now a conventional form, namely a section (s 3) enlivening Schedules which contained amendments to particular Acts.  Schedule 10 contained amendments to the Judiciary Act.  Items 1, 2 and 3 of that schedule provided:

Schedule 10 – Amendment to the Judiciary Act 1903

1.         At the end of paragraph 39B(1A)(c)

Add “, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”.

2.         Subsection 55B(10) (definition of federal-type jurisdiction)

Omit all the words from and including “include:”, substitute “include jurisdiction conferred on the court under an Act providing for the acceptance, administration or government of that Territory.”.

3.         Subsection 68(3)

After “except by”, insert “a Judge,”.

One contention of the respondents was that the words added by item 1 and now physically located at the conclusion of par (c) in the official reprint of the Judiciary Act, were intended to qualify the whole of subs (1A).  I return briefly to this question later.  However, an issue raised in this application which logically arises first is whether there is a matter attracting subs (1A) at all.  The Commonwealth interests submitted there was, the respondents submitted there was not.

12                  A convenient starting point in considering this issue is the judgment of the High Court in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559.  One issue the Court determined was whether this Court had jurisdiction under par 39B(1A)(a) of the Judiciary Act in proceedings brought by the Australian Securities and Investments Commission (“ASIC”).  ASIC established in proceedings before the primary judge in this Court that four corporations had acquired an interest in a fifth corporation in contravention of a provision of the Corporations Law.  This was reflected in declarations made by the primary judge sought by ASIC.  Additionally, his Honour made an order requiring one of the four corporations to pay ASIC $28.5 million to be distributed to the shareholders of the fifth corporation.

13                  A majority determined that ASIC could be treated as the Commonwealth for the purposes of both s 75(iii) of the Constitution and par 39B(1A)(a).  That conclusion raised for consideration whether there was a matter in which the Commonwealth was seeking an injunction or a declaration.  As to what is comprehended by matter in subs (1A) and whether the proceeding brought by the Commission concerned a matter, Gleeson CJ, Gaudron and Gummow JJ said at [50]:

What was the content of that matter?  The observations by Toohey, McHugh and Gummow JJ in Re McJannet; Ex parte Minister for Employment, Training and Industrial  Relations (Q) (adjusted to refer to s 75(iii) rather than s 76(ii)) are pertinent.  Their Honours said:

“The matters mentioned in ss 75 and 76 identify federal jurisdiction by such characteristics as identity of parties (s 75(iii), (iv)), remedy sought (s 75(v) itself), content (interpretation of the Constitution – s 76(i)), and source of the rights and liabilities which are in contention (ss 75(i), 76(ii)).  (The constitutional term ‘matter’ also extends to include accrued and pendent claims and pendent parties, but for immediate purposes nothing turns on this.)  For this litigation, the particular jurisdiction of the Federal Court invoked by the applicants had been defined by the Parliament with respect to matters arising under laws made by it (s 76(ii)).  The question then becomes one of identifying the metes and bounds of any matter said so to arise.”

In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd, Gaudron J observed that:

“‘matters’ is a word of such generality that it necessarily takes its content from the categories of matter which fall within federal jurisdiction and from the concept of ‘judicial power’”.

and later (at [54]-[55]):

In the proceeding commenced here by ASIC, the Federal Court was seised of federal jurisdiction by reason of the identity of the moving party and the nature of the relief sought by that party.  The “matter” was a justiciable controversy identifiable independently of the proceeding brought for its determination.  The focus of attention is that indicated by the joint judgment of five members of this Court in Crouch v Commissioner for Railways (Q), namely “upon the substance of the dispute” and “the substantial subject matter of the controversy”.

The controversy was to be determined, in the words of Deane and Gaudron JJ, “in accordance with the independently existing substantive law”.  That body of law will supply the measure of the rights and liabilities which are at stake.  It will include the common law of Australia (which incorporates choice of law rules expounded in John Pfeiffer Pty Ltd v Rogerson) as modified by federal law or any applicable State law and, common law apart, the rights and liabilities created by applicable statute law.  The resolution of the controversy by the Federal Court in the proceeding instituted by ASIC, as was pointed out in the joint judgment in John Pfeiffer Pty Ltd v Rogerson, strictly did not “involve any choice between laws of competing jurisdictions”; this is because the jurisdiction of the Federal Court is clearly Australia wide.

Hayne and Callinan JJ agreed with these reasons (at [213] and [215]).

14                  What is a matter again arose for consideration by the High Court a little over a year later in Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372.  It is unnecessary to detail the circumstances in which the proceedings arose in the Court other than to note that applications were made (by parties who had not been parties to proceedings in this Court and by the Commonwealth Attorney-General) for a writ of certiorari to quash a decision of this Court on the grounds that there was a non-jurisdictional error of law on the face of the record.  A majority concluded that neither application gave rise to a matter.  As to that question, Gaudron and Gummow JJ said (at [61] and following):

That questions of federal jurisdiction, which are bound up with the meaning of “matter”, and of “the judicial power of the Commonwealth” identified in s 71 of the Constitution, may overlap is illustrated by the following passage from the judgment of Gaudron J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd:

“Although the constitutional meaning of ‘matter’ is to be derived, in significant part, from the concept of ‘judicial power’, it is not necessary in this case to attempt any exhaustive exposition of that concept.  It is sufficient to describe judicial power as that power exercised by courts in making final and binding adjudications as to rights, duties or obligations put in issue by the parties.  Similarly, it is sufficient to note that the constitutional meaning of ‘matter’ involves the existence of a controversy as to ‘some immediate right, duty or liability to be established by the determination of the Court’.”

These statements suggest that the task of identification of the “matter” said to be the subject of the present litigation is to be approached as a tripartite inquiry:  first, the identification of the subject matter for determination in each of C22 and C6; secondly, the identification of the right, duty or liability to be established in each proceeding; thirdly, the identification of the controversy between the parties to C22 and C6 for the quelling of which the judicial power of the Commonwealth is invoked.  Whilst each of these inquiries may be pursued separately, all are related aspects of the basal question, “is there a ‘matter’ in the sense required by Ch III of the Constitution?”

…

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd is authority that the means available to the Parliament under s 76(ii) of the Constitution to enforce by new remedies compliance with legislative norms of conduct are not limited by a requirement for reciprocity or mutuality of right and liability between plaintiff and defendant.

In Truth About Motorways, Gaudron J said:

“Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court’s determination.  Similarly, if there is no available remedy, there is no administration of the relevant law.  Thus, as Gleeson CJ and McHugh J pointed out in Abebe v The Commonwealth, ‘[i]f there is no legal remedy for a “wrong”, there can be no “matter”’.”

However, it would be to invert the reasoning in Truth About Motorways to say that, if there is no “wrong”, nevertheless there is a “matter” so long as there is an available remedy.

More broadly, there is no general proposition respecting Ch III that the “immediate right, duty or liability to be established by the determination of the Court”, spoken of in In re Judiciary and Navigation Acts, must be a right, duty or liability in which the opposing parties have correlative interests.  Thus, the prosecutor of an offence against a law of the Commonwealth and the defendant do not have correlative interests.  Nevertheless, the proceeding seeks to vindicate and enforce the duty or liability of the defendant to observe the criminal law of the Commonwealth.

To similar effect were the observations of Hayne J (at [242]-[245]) who agreed with Gaudron and Gummow JJ (at [249]).  The Chief Justice also concluded there was no matter but noted (at [4]) that the controversy constituting a matter need not always be between parties.

15                  In Abebe v The Commonwealth (1999) 197 CLR 510 the High Court considered the constitutional validity of provisions in the Migration Act 1958 (Cth) conferring jurisdiction on this Court in relation to only part of a controversy which, in its wider manifestation, could be viewed as an entire matter.  The majority comprising Gleeson CJ and McHugh J (who gave a joint judgment) and Kirby and Callinan JJ concluded the provisions were valid.  Gleeson CJ and McHugh J observed (at [25]) the determination of rights, duties and liabilities by reference to legal rules, principles or standards in curial proceedings is at the heart of the notion of a matter for constitutional purposes.  They also noted (at [26]) that a matter is concerned with the rights, duties and liabilities of particular parties in concrete situations.

16                  The way the issue of whether this application concerned a matter was approached by the parties in submissions was to ask whether this application involved the vindication of a right enforceable at the instance of the Commonwealth or at least the assertion of a right about which there is legal controversy to be quelled by the exercise of the judicial power of the Commonwealth.  There can be no doubt that the Commonwealth can seek to prevent the disclosure of documents or information which attract public interest immunity: see, for example, Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 at [20].  Indeed it is an immunity that courts have a duty to preserve even if it requires a judge to act of his or her own motion: see Sankey v Whitlam (1978) 142 CLR 1 particularly per Gibbs ACJ at 44 and Stephen J at 58-59.

17                  The field of operation of the immunity is usually where documents or information are required to be produced with the attendant prospect of disclosure.  The immunity has been described as a rule by which relevant evidence must be excluded from a court or other body having the power to coerce the giving of evidence if its disclosure would be prejudicial or injurious to public or state interest: see SB McNicol, Law of Privilege, Law Book Co, Sydney, 1992 at 375.  The immunity can arise (as it often does) when documents are required to be produced on a subpoena duces tecum: Sankey v Whitlam, but it also can arise when secondary evidence is to be given about the contents of a document, when its admission would defeat the purpose for which the duty to suppress or exclude the original document is imposed: Foran v Derrick (1892) 18 VLR 408; O’Flaherty v McBride (1920) 28 CLR 283 at 288; Conway v Rimmer [1968] AC 910 at 950; when a document is to the used to refresh memory: Gain v Gain [1962] 1 All ER 63; when interrogatories are to be administered or oral evidence given: Young v Quin (1985) 4 FCR 483; when it is proposed there be inspection of objects or places: Marconi’s Wireless Telegraph Co Ltd v Commonwealth (No 2) (1913) 16 CLR 178 at 185; and also when there might be a disclosure whether documents exist or not: Alister v The Queen  (1984) 154 CLR 404 at 435.  In addition, the field of operation is not limited to curial proceedings: see McNicol, Law of Privilege at 378 and following.

18                  If public interest immunity is treated as a basis for resisting the disclosure of documents or information in circumstances where the disclosure can otherwise be compelled, a claim raising the immunity can be viewed as the assertion of a right of the Commonwealth (if it is the manifestation of the Crown making the claim) to withhold production made against both the party seeking production and the Court or body otherwise requiring production.  This is the way such a claim was characterised by Gibbs ACJ in Sankey v Whitlam at 25 (see also Commissioner of the Australian Federal Police v Poompiriyapinte (unreported, Supreme Court of New South Wales, Badgery-Parker J, 28 August 1999) at [37]).  While this characterisation arose in the context of considering whether a power to make a “declaration of right” conferred by statute could be exercised in relation to pending committal proceedings, it may nonetheless possibly provide a basis for saying, in an appropriate case, that the controversy arising from the assertion of that right by the Commonwealth is a matter.

19                  However, the Commonwealth interests are not, in this application, asserting a right in proceedings to resist the production or disclosure of documents or information in those proceedings in circumstances where the production or disclosure would otherwise be required or compelled.  What the Commonwealth interests are seeking to do is prevent (to the extent that a declaratory order will have that effect) in proceedings in this Court, the publication of information already disclosed in other proceedings in another court, namely committal proceedings.

20                  The Commonwealth interests contended that there is nonetheless a matter concerning public interest immunity which can be the subject of adjudication by this Court.  They rely on the judgment of the Court of Criminal Appeal (and Court of Appeal) of New South Wales in Re Smith (1996) 86 A Crim R 308.  The Court determined an appeal brought under s 5F of the Criminal Appeals Act 1912 (NSW) by the Attorney-General of New South Wales, from a decision of a Magistrate in committal proceedings (though the matter had also been dealt with by a single judge who considered that he did not have jurisdiction to hear the appeal).  A witness was being cross-examined in those committal proceedings and was asked to, and did, disclose the names of two people who had facilitated the witness speaking to a police officer.  This occurred in the open court with journalists and others present.  It also occurred without warning to the two individuals who, through counsel, promptly applied for orders concealing their true identity and the publication of the evidence.  The Magistrate ultimately refused to make the orders on a final basis.  It was against this decision that the appeal was brought.

21                  The Attorney-General supported the suppression orders, both before the Magistrate and on appeal, on the basis that the information as to the identities of the two individuals was covered by public interest immunity as the individuals were, relevantly, police informers.  On the question of whether the disclosure defeated the claim of public interest immunity, the Court said (at 313):

If one accepts, as a matter of principle, that the magistrate had the power, in advance, to do in relation to [the two individuals], what she had already done in the case of [the witness], and conceal their identities by permitting or directing the use of pseudonyms, then it cannot be the case that she was deprived of that power simply because, without any conscious decision on her part, their names were mentioned in open court.  If it were otherwise, the operation of the public interest immunity could be frustrated by an accident, or by the malice of a witness who blurted out the name of an informer in open court before he or she could be stopped. 

However, what this authority establishes, in my opinion, is that the power to exclude evidence on the grounds of public interest immunity (which can, in practical effect, be achieved in relation to a police informer by preventing the disclosure of the real name by the adoption of a pseudonym) can be exercised in the proceedings in which the evidence was given (or by an appellate court exercising that power) even after it has, in fact, been given.  It does not establish that there is a right in the Crown to seek an order prohibiting the publication of information outside a context in which the information would otherwise be required to be revealed in curial or extra-curial proceedings.  This authority would support a submission, if made to the Magistrate in the present matter, that a suppression order can be made in relation to information in circumstances where, at the time the information was first disclosed, its significance and the possible prejudicial effect of disclosure on the public interest may not have been apparent because other information was not then in the public domain.  Such an order may well be able to be made notwithstanding the principle that a claim for public interest immunity can been destroyed by disclosure: see Sankey v Whitlam at 45-6, 64-6 and 101 and see also Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475.

22                  In further support of their contention that this application concerns a matter, the Commonwealth interests referred to the authorities indicating a claim for public interest immunity does not arise as an element in the lis between the parties: see Zarro v Australian Securities Commission (1992) 36 FCR 40 at 61.  However, this characterisation of the context in which a claim is made serves only to establish that the evidence called in support of the claim is called for a particular purpose and is not evidence in the lis and cannot, on that basis, be the subject of wide ranging cross-examination.

23                  In my opinion, this application by the Commonwealth interests in this Court does not concern a matter.  A declaratory order is sought on the basis that certain information attracts public interest immunity.  However, even accepting that it is apt to say that the Commonwealth interests have a right to claim or assert that immunity, it is not a right that exists or arises and is vindicated or enforced in a procedural vacuum.  It is not a right which exists apart from the proceedings in which it is asserted.  It is a right to resist the disclosure of a document or information in circumstances where disclosure would otherwise probably follow and would follow for a legitimate forensic purpose.  The determination of the legal controversy resulting from the assertion of that right involves the court (or tribunal) engaging in a balancing exercise.  On one hand the court must consider and assess whether damage would be done to the public interest by disclosure and on the other, whether the administration of justice would be frustrated or impaired if the information were withheld and then decide which of those aspects predominates: see Alister v The Queen (1984) 154 CLR 404 at 412 per Gibbs CJ.  The balancing of these two elements must be undertaken in relation to the closest analogue to the present situation, the identity of police informers, at least in criminal cases: see Cain v Glass (No 2) (1985) 3 NSWLR 230.  For recent cases dealing with this balancing exercise in that context see: Nye v State of New South Wales [2002] NSWSC 1266; Atlas v Director of Public Prosecutions (2001) 3 VR 211; XZ v R (2000) 116 A Crim R 308; and R v Mason (2000) 74 SASR 105.  It is neither possible nor appropriate to divorce one element in the balancing exercise from the other.  They are each an inseparable part of the legal rule or principal (to adopt the language of Gleeson CJ and McHugh J in Abebe v The Commonwealth)by reference to which the existence of the right of the Commonwealth interests is adjudged and the right vindicated and enforced.  The second element is a matter peculiarly and singularly the province of the judicial officer who must evaluate the effect of non-disclosure on the parties and in the proceedings in which the claim is made.  The second element cannot in any real or concrete sense arise in any adjudication undertaken in this Court.  This Court is not seised of aspects of the legal rule or principle called in aid by the Commonwealth interests to adjudicate on the controversy concerning their right and, as a consequence, this Court cannot apply that rule or principle.

24                  Declaratory relief, as sought here, is relief directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts: Egan v Willis (1998) 195 CLR 424 at 439 per Gaudron, Gummow and Hayne JJ.  The asserted right of the Commonwealth interests does not give rise to a justiciable controversy other than in the court in which the claim of public interest immunity arises.  It does not give rise to a justiciable controversy in this Court.  In my opinion, this Court does not have jurisdiction to adjudicate on the issues sought to be raised by the Commonwealth interests in its application.

25                  Given this conclusion, is unnecessary to determine the other basis on which the respondents submitted the Court does not have jurisdiction.  However, it is probably desirable I set out the argument advanced by the respondents and briefly comment on it.  The gravamen of the argument was that the claim of public interest immunity is comprehended by the exclusionary clause at the end of par (c) of subs 39B(1A) and the exclusion was intended to apply not only to that paragraph but to the entire subsection.  The argument was put two ways though ultimately they turn on what Parliament intended.  The first way draws on the legislative history leading to the amendment made by the 1999 Amending Act.  In effect, the direction found in item 1 of Schedule 10 (set out at [11] above) was intended, it was submitted, to result in a qualifying clause appearing at the conclusion of subs (1A) and qualifying all the paragraphs in the subsection.  The second way relies on the principle that Parliament ordinarily does not intend that the repository of various powers can exercise an unconditional general power to achieve that which is prevented or prohibited by a condition placed on a particular power: see Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 per Gavan Duffy CJ and Dixon J; R v Wallis; Ex parte Employers Association of Wool Selling Brokers & H V McKay Massey Harris Pty Ltd (1949) 78 CLR 529 per Dixon J at 550; Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41, per Spigelman CJ at [12]-[16] and, in relation to subs 39B(1A), see Phong v Attorney-General of the Commonwealth (2001) 114 FCR 75 particularly at [44].

26                  The original Bill which led to the 1999 Amending Act proposed that the word “civil” be inserted before the word matter in the prefatory words in subs 39B(1A).  Had this amendment been enacted then the limitation on the Court’s jurisdiction that was intended would have plainly arisen if jurisdiction would otherwise have been conferred by the subsection.  That is, jurisdiction conferred by each paragraph would have extended only to adjudication of a civil matter.  During the second reading speech the Attorney-General said:

The bill will make a number of amendments to the Judiciary Act 1903.  One of the amendments will expressly exclude the conferral of criminal jurisdiction on the Federal Court, except where that jurisdiction is conferred upon the Court by some other Commonwealth statute.  This will prevent a litigant from seeking to use the provision to bring a private prosecution before the Federal Court or to include a criminal matter as an element of a civil case in which the Federal Court has jurisdiction.

27                  During the passage of the Bill through the House of Representatives, it was referred to the Main Committee of the House.  When in Committee, the government moved an amendment (in substitution for the amendment introducing the word “civil”) which was in the same terms as the amendment ultimately made by, and reflected in, the 1999 Amending Act.  In a supplementary explanatory memorandum, it was said that the original amendment:

…(was) to exclude the conferral of criminal jurisdiction on the Federal Court except where it is expressly conferred by other Commonwealth legislation.

and that the substituted amendment:

…(was) to avoid any ambiguity by defining the Federal Court’s jurisdiction in terms which expressly excludes criminal matters, rather than by including civil matters.

In moving the substituted amendment the Attorney-General said:

In respect of amendment 11, item 1 of schedule 11 of the bill amends subsection 39B(1A) of the Judiciary Act to exclude the conferral of a general criminal jurisdiction on the Federal Court.  Amendment 11 redrafts the amendment to avoid any ambiguity by expressly excluding criminal matters rather than by including civil matters.  Criminal jurisdiction will still be able to be expressly conferred on the Federal Court, where appropriate, by other Commonwealth legislation.

28                  A further explanatory memorandum, which addressed the substituted amendment said:

Schedule 10 – Amendment of the Judiciary Act 1903

Item 1 – Subsection 39B(1A)

82.                                       The amendment to subsection 39B(1A) expressly excludes the conferral of criminal jurisdiction on the Federal Court, except where that jurisdiction is conferred upon the Court by some other Commonwealth statute.

83.                                       The purpose of the amendment is to ensure that a litigant cannot seek to use section 39B(1A) to bring a private prosecution before the Federal Court, or to include a criminal matter as an element of a civil case in which the Federal Court has jurisdiction.

29                  The respondents submitted Item 1 of Schedule 10 of the 1999 Amending Act should be viewed as a direction to insert the qualifying words at the conclusion of, and after, par (c) and the comma first appearing in the passage in quotation marks in the item should be viewed as a punctuation mark at the end of the paragraph.  To the extent that the item might be viewed as bringing about the insertion of the qualifying clause at the end of par (c) but as part of the paragraph, it should be viewed as an error which the Court can and should rectify.

30                  The difficulty with the respondents’ analysis, which I do not accept, is that it gives pre-eminence to the legislative history and not the language used.  In terms, Parliament intended, in my opinion, to add the words of qualification at the end of, and as part of, par (c). While it may be accepted that the method originally proposed in the Bill would not have resulted in an amendment with such a limited operation, that method is not what Parliament adopted when ultimately making the amendment.  Moreover, while the purpose of the amendment, to the extent that it can be gleaned from the second reading speeches and explanatory memoranda, might have been to exclude any jurisdiction concerning or related to criminal proceedings, what is recorded in those speeches and memoranda is equally consistent with a narrower purpose of denying the Federal Court criminal jurisdiction (in the sense of hearing and determining criminal charges) in a matter in which the Court was invested with jurisdiction under a Commonwealth law.

31                  Given that extensive and wide ranging submissions were made by the parties concerning public interest immunity as it was said to arise in the circumstances of this case, it is probably appropriate that I conclude by making one observation.  The classes of documents (and information) to which public interest immunity attaches are not closed: see Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582 at 591 and there is authority that it is consistent with principle that the categories can be extended (at the very least) by analogy and legitimate extrapolation: see D v National Society for the Prevention of Cruelty to Children [1978] AC 171 particularly the judgment of Lord Hailsham at 226.  It has long been accepted that public interest immunity can be invoked to prevent the publication of the identities of police informers.  The immunity has applied, in an extended way, to prevent the publication of details of premises from where police investigations have been undertaken and the names of the owners of those premises: R v Rankine [1986] 2 All ER 566 and R v Johnson [1988] 1 WLR 1377.

32                  It is probably not a particularly large step to say that the type of protection afforded to police informers should, by analogy, be afforded to Crown or police witnesses (whether giving evidence in the proceedings in which the claim was made or otherwise) if the witness is participating in a witness protection scheme and is to give evidence in criminal proceedings.  There is a public interest in facilitating the giving of the evidence.  If so, it might be thought that public interest immunity might operate to prevent the publication of information that might frustrate that purpose of facilitating the giving of evidence and, perhaps, information that might subvert the operation of a scheme intended to provide more generally, protection to such witnesses.  Indeed, O’Keefe J recently observed in Nye v State of New South Wales [2002] NSWSC 1266 (at [14]):

Public interest immunity extends beyond the protection of the identity of an informer. It is apt to cover situations in which there is a real, present or apprehended danger to potential witnesses in matters other than the instant proceeding, including those current or likely in the future.

33                  That is not to say, of course, that the consideration of any claim of public interest immunity concerning the information the Commonwealth interests seek to have suppressed (if the immunity can apply to that type of information), will not require a balancing of the public interest in non-disclosure with the rights of the parties to the proceedings in which the evidence was to be given and the administration of justice more generally.  As discussed earlier, it will.

34                  The application of the Commonwealth interests should be dismissed for want of jurisdiction.  The Commonwealth interests should pay the respondents’ costs.  I have ordered that the proceedings be dismissed but that this order not take effect for seven days.  I have also provided for liberty to apply.  I have done so to enable any party (though I have the Commonwealth’s interests particularly in mind) to apply to the Court within seven days for any confidentiality orders concerning material produced during the hearing of this application.

Associate:

Dated:              22 October 2003