FEDERAL COURT OF AUSTRALIA

O’Sullivan v Parkin [2006] FCA 1654

PRACTICE AND PROCEDURE – application for leave to appeal interlocutory discovery decision – documents related to adverse security assessments – visas refused because of security assessment

Held – leave to appeal granted – matter of national security  

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Parkin v O'Sullivan [2006] FCA 1413 cited

Church of Scientology Inc v Woodward (1982) 154 CLR 25 considered

Lloyd and Costigan (1983) 82 FLR 104 at 113-114 considered

WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181 considered

Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 at [30] considered

Jilani v Wilhelm (2005) 148 FCR 255 at 273-274 considered

PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY) v THOMAS PARKIN & ORS

VID 1258 OF 2006

HEEREY J

27 NOVEMBER 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  Leave to appeal is granted;

2.                  The costs of the application to be costs in the appeal.

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

REASONS FOR JUDGMENT

1                     The applicant Director-General of Security seeks leave to appeal from a decision of Sundberg J: Parkin v O'Sullivan [2006] FCA 1413.  His Honour directed that the parties confer as to the appropriate orders for discovery and if they were unable to agree that they should file written submissions as to the orders that should be made.  In substance, there was an order directing discovery and it is that order against which the Director-General of Security seeks leave to appeal. 

2                     Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), I have to exercise a discretion as to the grant of leave.

3                     There are two proceedings: Parkin v O'Sullivan (VID 1594 of 2005), and Sagar and Faisal v O'Sullivan (VID 188 of 2006), the discovery applications in which were heard together because they raised similar questions of law.  The respondent Mr Parkin is a citizen of the United States of America who entered Australia in June 2005 with a tourist visa valid for six months.  According to a public report by the Inspector-General of Intelligence and Security dated 29 November 2005, Mr Parkin describes himself as “a proponent of non-violent direct action and peaceful civil disobedience against the war in Iraq”.

4                     His visa was cancelled in September 2005 because of an adverse security assessment issued by the Director-General appointed pursuant to s 7 Australian Security Intelligence Organisation Act 1979 (Cth).  He was then detained.  Some days later, at his own request, he was removed from Australia. 

5                     In his statement of claim he alleges in par 6 that from time to time, after he entered Australia pursuant to his visa, he “exercised his right to engage in lawful advocacy, protest or dissent within the meaning of s 17A of the ASIO Act”.

6                     In par 14 of his statement of claim Mr Parkin alleges that the adverse security assessment was not validly made because:

“(a) it was not based on facts which would justify an adverse assessment of the applicant;

(b)  it was not based on reasoning from which it could properly be inferred that the applicant represented a risk to Australia's national security interests, or a risk to Australia in any other way;

(c)   it was not based on facts or reasoning which justified the making of an adverse security assessment of the applicant;

(d)  it contravened his rights under section 17A of the ASIO Act; and

(e)   it was not authorised by law.”

7                     Mr Sagar and Mr Faisal are citizens of Iraq.  Each claimed to be a refugee.  Their claims were accepted by the Immigration Department.  However, their applications for a protection visa have been refused by the Minister for Immigration because of adverse security assessments issued by the Director-General.  They were taken to Nauru in September 2002 and have been held in immigration detention since then. 

8                     The claims by Mr Parkin and Messrs Sagar and Faisal are made under s 39B of the Judiciary Act 1903 (Cth) which invests the Federal Court with jurisdiction with respect to any matter in which a writ of mandamus or prohibition or injunction is sought against an officer or officers of the Commonwealth.  They claim orders quashing the decision of the Director-General to issue the adverse security assessments against them and declarations that the assessments were made contrary to law, relying on s 20 of the ASIO Act which they allege requires the Director-General to ensure that only “lawful security assessments” are made. 

9                     Before his Honour the respondents, who were represented by senior and junior counsel, formally acknowledged that they “do not shy away from the fact that they have no idea how ASIO could have reached the conclusions it did in the security assessments it provided”.

10                  The ASIO legislation and his Honour's reasons are set out in full in his judgment, and it is not necessary for me to repeat them.  I propose to grant leave to appeal for essentially four reasons. 

11                  First, there is an arguable case that his Honour did not correctly apply authorities binding on him which say that the bare assertion of a claim without any factual foundation will not justify an order for discovery: Church of Scientology v Woodward (1982) 154 CLR 25, Lloyd and Costigan (1983) 82 FLR 104 at 113-114, WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, Minister for Immigration v Wong [2002] FCAFC 327 at [30] and Jilani v Wilhelm (2005) 148 FCR 255 at 273-274.  The last mentioned authority, senior counsel for the Director-General submits, was relied on before his Honour, but not mentioned in the judgment.  Moreover, this approach is the more justified in cases where questions of national security are involved; see the Church of Scientology case. 

12                  Secondly, it is arguable that in stressing the distinction between discovery, which merely requires the identification of documents, and production, which requires documents to be made available and for inspection, his Honour did not give sufficient weight to the risk that identification of documents in itself may give rise to national security problems. 

13                  Thirdly, in an affidavit in support of the present application Mr Michael John Brereton, a solicitor with the Office of the Australian Government Solicitor, deposed:

“I am instructed that irreparable harm may be caused if leave to appeal is not granted, in that the Director-General will be required to swear and file an affidavit of documents which of itself, and separately and distinct from the question of production of documents, may reveal matters the disclosure of which could be prejudicial to national security.”

14                  This affidavit, or material to the same effect, was apparently not before his Honour, but I see no reason why I should not take it into account in exercising my discretion on the question of leave to appeal. 

15                  Fourthly, the balance to be struck between the exercise of normal litigation processes and the interests of national security raise issues of great public importance.  In itself that is a reason which argues in favour of having judicial consideration at an appellate level. 

16                  In the present case each of the parties point to the precedential significance of the present decision of his Honour.  The Director-General says that if his Honour's order is not set aside discovery will always be given.  The respondents say they if it is set aside discovery will never be given.  These matters should be, as I say, considered at a Full Court level. 

17                  I will grant leave to appeal.  The costs of this application will be costs in the appeal.

Associate:

Dated:         30 November 2006