FEDERAL COURT OF AUSTRALIA

Parkin v O’Sullivan [2007] FCA 1647

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

VID 1594 OF 2005

MOHAMMAD YUSSEF SAGAR and MUHAMMAD FAISAL v PAUL O’SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY

VID 188 OF 2006

SUNDBERG J

2 NOVEMBER 2007

MELBOURNE

THE COURT ORDERS THAT:

(a)           In matter VID 1594 of 2005 the respondent, on or before 29 November 2007, make discovery of the following documents or categories of documents:

(i)             the adverse security assessment relating to the applicant;

(ii)           the respondent’s classified determination referred to in pars 34 and 35 of exhibit JG3 to the affidavit of Joe Giacco sworn 3 April 2006;

(iii)          any record of the telephone call made by ASIO to the applicant in early September 2005;

(iv)         any record of the respondent’s recommendation made for the purposes of s 116 of the Migration Act 1958;

(v)           any other document relied upon by the respondent in making the adverse security assessment of the applicant; and

(vi)         any other document the respondent intends to rely on at trial.

(b)          In matter VID 188 of 2006 the respondent, on or before 29 November 2007, make discovery of the following documents or categories of documents:

(i)             the adverse security assessment relating to each applicant;

(ii)           the respondent’s classified determination referred to in pars 34 and 35 of exhibit JG3 to the affidavit of Joe Giacco sworn 3 April 2006 in matter VID 1594 of 2005;

(iii)          any record of the respondent’s recommendation made for the purposes of s 116 of the Migration Act 1958;

(iv)         any other document relied upon by the respondent in making the adverse security assessment of each applicant; and

(v)           any other document the respondent intends to rely on at trial.

(c)           In matter VID 1594 of 2005 the respondent pay the applicant’s costs of the remittal hearing of 21 September 2007.

(d)          In matter VID 188 of 2006 the respondent pay the applicants’ costs of the remittal hearing of 21 September 2007.

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

REASONS FOR JUDGMENT

1                     At the conclusion of my reasons given on 3 November 2006 I said:

“Taking into account the above considerations, it is appropriate that I exercise my discretion to allow discovery. The applicants say that they have good reason for bringing their claims. They are entitled to call on the aid of the Court to assist them in determining if they are right and, if so, the detail of those claims. They should not be shut out just because their claim involves the denial of a state of affairs they cannot explain, as opposed to a positive averment. No sufficient reason has been advanced why discovery should not be ordered.”

I then said that the parties should confer as to the appropriate orders for discovery. If they were unable to agree by a certain date, they were to file written submissions as to the orders that they contended should be made.

2                     The parties were unable to agree, but they did not file written submissions. Instead the respondent, after obtaining leave to appeal, purported to appeal  to the Full Court. That Court remitted the matter to me for the making of orders, in the absence of which there was nothing to appeal from. That is what is now before me.

3                     The parties have reached a measure of agreement as to the categories of documents that should be discovered. In both matters they are:

(a)           the adverse security assessment relating to each applicant;

(b)          any other document relied on by the respondent in making the adverse security assessment of an applicant; and

(c)           any other document that the respondent intends to rely on at trial.

4                     In the Parkin matter, it is also agreed that discovery should be made of a record of the telephone call made by ASIO to the applicant in early September 2005.

5                     The documents in dispute in both matters are:

(a)           the Director‑General’s classified determination referred to in pars 34 and 35 of exhibit JG3 to the affidavit of Joe Giacco sworn 3 April 2006 in the Parkin matter, and

(b)          any record of the respondent’s recommendation made for the purposes of s 116 of the Migration Act 1958.

6                     In the Sagar and Faisal matter an additional category is in dispute, namely the records of ASIO’s interviews of the applicants.

7                     I deal first with the document in [5a]. In par 8 of Mr Giacco’s affidavit he says:

“On 29 November 2005 the Inspector‑General issued an unclassified report … titled ‘IGIS Inquiry Into ASIO’s Treatment of Mr Scott Parkin’ …. The IGIS report is and has been available to the public (and to the applicant) at all relevant times.”

He produces the document, the relevant parts of which are:

“34.     Section 37(4) of the ASIO Act requires, in relation to security assessments, that the Director‑General of Security determine matters that are to be taken into account, the manner in which these matters are to be taken into account, and the matters that are not to be taken into account, in the making of assessments or assessments of a particular class.

35.       The extant determination under this provision was issued on 27 February 1990 and is a classified document. It was applied by ASIO in making the assessment in respect of Mr Parkin.”

8                     The respondent contends that there is no link between the classified document and the pleadings in either matter, and accordingly it is not a relevant document. As appears from [7], the document establishes or contains the criteria against which the facts of a particular case are to be considered. The link between the document and the pleadings lies in the allegation that the respondent acted beyond his jurisdiction because (taking the Parkin case as the example)

“(a)     no facts existed which would justify an adverse assessment of the Applicant;

(b)        he took account of irrelevant matters, namely supposed facts which were not facts;

(c)        he failed to take account of relevant matters, namely the true facts of and concerning the Applicant’s activities following his entry into Australia.”

The respondent correctly says that the applicants do not plead that the criteria in the document were misapplied by him. However, without knowing what the criteria are, they could hardly do this. In my view the document is discoverable.

9                     I turn to the category in [5(b)]. All applicants plead that the respondent provided an adverse security assessment to the Immigration Department. The defence in each case denies this allegation, and says that on specified dates the Department was notified that ASIO had made adverse security assessments in relation to the applicants. In the particulars it is said:

“The notification was in writing. It is a national security classified document. An unclassified redacted copy is available for inspection.”

In those circumstances the respondent submits that the document is covered by Order 15 r 10 of the Rules, and there is no warrant for any discovery order. That would be so if the whole document had been produced. But parts of it have been covered up. The proper course is for the whole document to be discovered, because it is plainly relevant, as is shown by it being made available in redacted form. If the respondent wishes to have parts of it covered up, the proper course is to seek the Court’s leave, and not to do so of his own motion.

10                  The remaining category in the Sagar and Faisal matter involves the records of their interviews by ASIO. The respondent’s grounds for resisting discovery are expressed in his counsel’s written submissions as follows:

“This category … seeks irrelevant material and material that would clearly be the subject of extensive public interest immunity claims.”

The ambiguity in this sentence is resolved by what appears later:

“Simply as a matter of logic, it is clearly possible that ASIO’s interviews with the Applicants covered subjects upon which ASIO did not ultimately rely in making the adverse security assessments.”

This makes it clear that the records contain at least some relevant material. If there are parts of the records that the respondent considers irrelevant, he can in due course apply for leave to cover up those parts. I refer to what I have said at [9] about unilateral redaction. But his belief in partial irrelevance is not a reason for not discovering the records which he concedes contain some relevant material.

11                  The public interest reason given for not making discovery is not viable. Public interest goes to whether a discovered document is protected from inspection. It does not excuse a party from discovering the document.

Associate:

Dated:         2 November 2007