FEDERAL COURT OF AUSTRALIA

Clement v Comcare [2011] FCA 404

THE COURT ORDERS THAT:

1.    The appeal proceedings not be adjourned pursuant to s 38D(5) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (‘the Act’).

2.    A national security information hearing not be convened under s 38A of the Act.

THE COURT DECLARES THAT:

1.    The Act has no application to the appeal proceedings unless the Attorney-General notifies the parties and the Court pursuant to s 6A(1) of the Act.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Ms Clement (‘the appellant’) filed a notice of appeal on 20 May 2010 under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) with respect to the decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 23 April 2010 (see Clement and Comcare [2010] AATA 296). By such decision, the Tribunal upheld 11 decisions of Comcare (‘the respondent’) made under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) during the period between 1 September 1994 and 24 October 2009, each decision relating to the appellant.

2    Ms Clement’s appeal has not yet been heard but on 15 June 2010, in anticipation of such hearing, the appellant filed a notice of motion (‘first motion’) seeking that the Federal Court of Australia (‘the Court’) stay the proceedings pursuant to s 38D(5) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (‘the Act’). The relevant portion of s 38D(5) of the Act is set out in [8] hereunder.

3    The appellant also attempted to file a further notice of motion (‘second motion’) seeking an order that a hearing be convened pursuant to s 38A(1) of the Act to discuss the conduct of alleged national security information which Ms Clement claims will arise in the appeal proceedings. However, the second motion was not supported by an affidavit as required by O 19 r 1 of the Federal Court Rules (Cth) (‘the Rules’). The appellant was informed of such requirement by the Registry but according to the evidence before the Court the appellant did not provide the necessary affidavit and accordingly the second motion was never filed.

4    Notwithstanding the appellant’s failure to comply with the Rules, both the first motion and the second motion have been considered below.

FIRST MOTION

Submissions

5    The appellant submits that she issued a notice to the Attorney-General pursuant to s 38D(1) of the Act (‘the s 38D notice’) on 31 May 2010. On the same day the appellant advised the relevant parties and the Court under s 38D(4) of the Act that such notice had been provided to the Attorney-General. The Court notes that the respondent does not submit that the purported notice was otherwise than in the form as prescribed by s 38D(3) of the Act.

6    Section 38D(1) of the Act provides:

38D Notification of expected disclosure of national security information

(1)    If a party, or the legal representative of a party, to a civil proceeding knows or believes that:

(a)    he or she will disclose national security information in the proceeding; or

(b)    a person whom he or she intends to call as a witness in the proceeding will disclose national security information in giving evidence or by the person’s mere presence; or

(c)    on his or her application, the court has issued a subpoena to, or made another order in relation to, another person who, because of that subpoena or order, is required (other than as a witness) to disclose national security information in the proceeding;

then he or she must, as soon as practicable, give the Attorney-General notice in writing of that knowledge or belief.

7    The appellant submits that upon receiving the s 38D notice the Court must adjourn the proceedings under s 38D(5) of the Act until the Attorney-General responds to the s 38D notice in accordance with the Act.

8    Section 38D(5) of the Act sets out the procedure which the Attorney-General must follow in such circumstances. Section 38D(5) provides:

(5)     On receiving the advice, the court must adjourn so much of the proceeding as is necessary to ensure that the information is not disclosed. The court must continue the adjournment until the Attorney-General:

(a)    gives a copy of a certificate to the court under subsection 38F(5) or 38H(4); or

(b)    gives advice to the court under subsection 38F(7) or 38H(9) (which applies if a decision is made not to give a certificate).

9    It is not clear from the evidence whether the Attorney-General actually received the s 38D notice. However the Court notes that the requirements of neither s 38D(5)(a) nor (b) have been complied with by the Attorney-General.

10    The respondent submits that the adjournment the appellant seeks under s 38D(5) of the Act is not necessary as the Act does not apply to the appeal proceedings. The respondent submits that the Act only applies to civil proceedings where the operation of the Act has been ‘triggered’ under s 6A.

11    Section 6A(1) of the Act relevantly provides:

6A Application of the Act to civil proceedings

Application to civil proceedings – Attorney-General not a party to the proceedings

(1)    If:

(a)    the Attorney-General is not a party to a civil proceeding, whether begun before, on or after the day on which this section commences; and

(b)    the Attorney-General gives notice in writing to the parties to the proceeding, the legal representatives of the parties to the proceeding and the court that this Act applies to the proceeding;

then, subject to subsection (5), this Act applies to the proceeding.

12    The respondent submits that s 6A(1)(b) of the Act provides that the Act only applies to civil proceedings in which the Attorney-General gives the notice prescribed by such subsection to the parties and to the Court. The respondent admits that s 6A(1) does not explicitly state that the Act will not apply where such notice is not given, but submits that if the respondent’s construction of s 6A(1) is incorrect then such subsection would be otiose.

13    The respondent further submits that its construction of s 6A(1) of the Act is supported by s 6A(5) which states that where the Attorney-General gives notice to the parties after the proceeding has begun, ‘…this Act only applies to the parts of the proceeding that occur after the notice is given…’. The respondent submits that this subsection emphasises that the Act will not apply until notice is given by the Attorney-General to the parties and to the Court.

14    The respondent by analogy also relies upon s 6 of the Act which governs the applicability of this Act to federal criminal proceedings. Pursuant to s 6, the Act applies to federal criminal proceedings if the prosecutor gives written notice to the defendant and to the relevant court that the Act will apply.

15    In response to the respondent’s submissions regarding the activation or ‘triggering’ function of s 6A of the Act, the appellant submits that the mandatory adjournment prescribed by s 38D(5) is brought into operation whenever a s 38D notice is issued. The appellant further submits that s 38D is not triggered by s 6A of the Act. Rather its application is independent of s 6A(1) of the Act and has ‘the force of an enactment’ pursuant to s 12 of the Acts Interpretation Act 1901 (Cth) (‘the Interpretation Act’). Such section states: ‘Every section of an Act shall have effect as a substantive enactment without introductory words’.

16    The appellant submits that s 38F(4) of the Act supports her interpretation as it makes provision for the Attorney-General to issue a certificate to the Court under s 38F ‘at the same time’ as the Attorney-General notifies the parties under s 6A(1) of the Act. The appellant submits that such subsection demonstrates that s 6A(1) was not intended to be the only way to trigger the operation of the Act nor was s 6A(1) intended to oust the application of s 38D of the Act.

17    However in reply, the respondent submits that its construction of the Act and specifically its interpretation of the relationship between ss 6A and 38D of the Act is supported by an analysis of the relevant extrinsic materials.

Extrinsic Materials

18    The Explanatory Memorandum for the National Security Information Legislation Amendment Bill 2005 (Cth) (‘the NSI bill’), which introduced the provisions of the Act relating to civil proceedings, relevantly provides:

Triggering the operation of the Act

The Act applies once the Attorney-General has issued a notice to the parties and to the court. Such a notice can be given at any time during the proceeding. If for some reason the matter proceeded without the trigger, normal public interest immunity would have to be relied upon.

19    The Second Reading speech to the NSI bill relevantly states that ‘…the bill will only apply when notice is given to the parties to a proceeding’.

20    However, the appellant submits in response to the respondent’s construction of the Act:

…extrinsic materials may not be used to generate a construction of the NSI Act that undermines the object of the Act and would threaten national security.

21    The appellant tendered the ‘Practitioners’ Guide’ to the Act (‘the Guide’) issued by the Attorney-General in June 2008 and such Guide was admitted into evidence. The appellant relies upon page 33 of the Guide which relevantly provides:

Upon receiving advice of such notification [i.e. a notice given under s 38D(1) of the Act], the court must adjourn the proceeding until the Attorney-General either issues a civil non-disclosure certificate under subsection 38F(5) or gives advice in writing to the court under subsection 38F(7) that he or she will not give a certificate.

22    However, Appendix 3 attached to the Guide, entitled ‘Procedures applicable in civil proceedings’ purports to set out the correct procedure to be followed in civil proceedings under the Act. Importantly, the first step in the flow chart relevantly provides:

Does the NSI Act apply? (s 6A)

1.    Is this a civil proceeding for the purpose of s 15A? AND

2.    Has the AG given notice to the parties and the court that this Act applies to the proceeding?

Consideration

23    The integral question to be answered is whether the Act applies to the present proceedings. When viewed in isolation, the appellant’s interpretation of the procedure instituted by s 38D of the Act appears to have merit. In fact, the respondent does not take issue with the appellant’s interpretation of that section. The respondent simply submits that the Act does not apply due to s 6A(1) and accordingly the appellant’s interpretation of s 38D of the Act has no application.

24    Section 38D of the Act commences with the following text: ‘If a party, or the legal representative of a party, to a civil proceeding…’. While the present proceedings would ordinarily fall within the ambit of a ‘civil proceeding’, such phrase is specifically defined for the purposes of the Act under s 7 of the Act.

25    Section 7 of the Act relevantly provides that a ‘civil proceeding has the meaning given by section 15A’.

26    Section 15A(1) of the Act relevantly provides:

15A Meaning of civil proceeding

(1)    In this Act, civil proceeding means any proceeding in a court of the Commonwealth, a State or Territory, other than a criminal proceeding.

27    Importantly, this broad definition of ‘civil proceeding’ is only limited by the note that accompanies s 15A(1) of the Act which states:

Note:     The Act only applies to a civil proceeding in respect of which a notice has been given under section 6A.

28    Section 13(3) of the Interpretation Act relevantly provides that:

No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.

29    As considered by Pearce and Geddes in ‘Statutory Interpretation in Australia’ (6th edition) (‘Pearce’) at [4.48] there is historic authority which denies courts the right to take notes into account when interpreting legislation: see for example Re Baldwin (1891) 12 LR (NSW) 128; Sanderson v Fotheringham (1885) 11 VLR 190; Frauenfelder v Reid (1963) 109 CLR 42 at 50; Chandler v Director of Public Prosecutions [1964] AC 763 at 789-790 per Lord Reid.

30    However, Pearce states (at [4.48]) that there is a line of authority which suggests that reference can be made to notes where the meaning of a section is in doubt. In Joyce v Paton (1941) 58 WN (NSW) 88, Street J quoted at 90 the approach of Collins MR in Bushell v Hammond [1904] 2 KB 563 that a marginal note could assist in the interpretation of the statute as it ‘showed the drift of the section’. The Court notes that the [1904] 2 KB 563 report does not contain Collins MR’s phrase. Rather, it is found in Bushell v Hammond [1904] 73 LJ KB 1005 where Collins MR states relevantly at 1007:

…The side-note, also, although it forms no part of the section, is of some assistance, inasmuch as it shews the drift of the section…

31    Further, Lord Reid in R v Schildkamp [1971] AC 1 observed at 10:

But it may be more realistic to accept the Act as printed as being the product of the whole legislative process, and to give due weight to everything found in the printed Act. I say more realistic because in very many cases the provision before the court was never even mentioned in debate in either House, and it may be that its wording was never closely scrutinised by any member of either House. In such a case it is not very meaningful to say that the words of the Act represent the intention of Parliament but that punctuation, cross-headings and sidenotes do not.

32    Pearce concludes (at [4.48]) that the approach taken by Lord Reid in Schildkamp and that of Street CJ in The Ombudsman v Moroney [1983] 1 NSWLR 317 is preferable. Street CJ stated at 325B:

The oft-repeated authoritative statements that marginal notes are inadmissible guides to construction are generalities based upon the danger of taking them on face value. If this danger is wholly removed by authenticating the marginal note, then the reason underlying the inadmissibility principle is displaced and that principle ceases to apply to the marginal note in question.

33    Street CJ also said relevantly at 325D:

Whilst asserting, as I do, the permissibility of turning to an authenticated marginal note to assist in resolving the interpretation of a doubtful or ambiguous section, I fully recognise that, not being part of the Act, it cannot control the meaning of the section…

34    Section 15AB of the Interpretation Act provides that notes, explanatory memoranda, second reading speeches and other relevant extrinsic materials can be used to determine the meaning of a provision where its meaning is ‘ambiguous or obscure’. Such section clearly encompasses the note contained in s 15A(1) of the Act and the other relevant extrinsic materials in the proceedings now before this Court.

Findings

35    Upon careful consideration there appears to be a degree of ambiguity in the Act as a result of unclear drafting. Such ambiguity exists with respect to the relationship between and the operation of ss 6A, 38D and 15A of the Act. The sole direct link between ss 6A and 38D of the Act is the note accompanying s 15A.

36    The ambiguity or doubt as to the meaning of the relevant provisions can be resolved by reference to the extrinsic materials referred to by the respondent under s 15AB of the Interpretation Act. Such extrinsic materials include the note accompanying s 15A, the explanatory memorandum to the NSI bill and the second reading to the NSI bill and the Guide.

37    When the Act is viewed in conjunction with such extrinsic materials it becomes clear that the function of s 6A is to ‘trigger’ the operation of the Act, and the remainder of the Act (including s 38D) only becomes applicable once the procedure prescribed by s 6A is activated. Upon this interpretation, the Act does not apply to civil proceedings until the Attorney-General issues a notice pursuant to s 6A of the Act.

38    Accordingly, as such notice has not been provided by the Attorney-General, s 6A(1) of the Act has not been ‘triggered’ and the Act is not applicable to these proceedings.

39    As a result, the appellant’s notice purportedly issued under s 38D(1) of the Act is a nullity and there is no need for the Attorney-General to respond to such notice nor any need for the Court to stay the proceedings pursuant to s 38D(5) of the Act.

40    Accordingly, as a result of the inapplicability of the Act to these proceedings, the appellant will not be held liable for any offences set out in ss 46A-46G of the Act if she does disclose any information pertaining to national security.

SECOND MOTION

Submissions

41    The appellant’s second motion (which was not filed as it did not conform with the Rules), sought an order under s 38A of the Act that the Court convene a national security information hearing (the ‘s 38A hearing’) to:

…consider issues relating to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information…

42    In the appellant’s submissions filed on 31 January 2011, the appellant submits that a s 38A hearing would be an adequate alternative to the Attorney-General responding to the appellant’s s 38D notice since s 38A(2) of the Act requires that the Attorney-General be informed of the hearing.

43    In such submissions the appellant also states that it is in the ‘public interest and in the interests of justice’ that such a hearing be ‘held as soon as possible’. The appellant further submits that such course is consistent with the object of the Act. The object of the Act is contained in s 3 which provides:

3    Object of this Act

(1)    The object of this Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.

(2)    In exercising powers or performing functions under this Act, a court must have regard to the object of this Act.

44    The appellant also claims that her issuance of the s 38D notice does not preclude the s 38A hearing from being ordered.

45    The respondent’s submissions in relation to the second motion are the same as above, namely that neither the s 38A hearing nor the s 38D notice are relevant considerations for the Court as the Act does not apply to the present proceedings.

Findings

46    For the reasons outlined above with respect to the appellant’s first motion and the correct construction of the Act, the Act does not apply to these proceedings and as such the Court has no power to order the s 38A hearing as sought by the appellant in her second motion.

ORDERS

47    Upon a proper construction of the Act with reference to the relevant extrinsic materials, the Court is satisfied that the Act does not apply to the present proceedings.

48    As a result the Court will not order the adjournment of the proceedings pursuant to s 38D(5) of the Act nor will it order that a s 38A hearing be convened as sought by the appellant.

49    Further, the Court declares that the Act has no application to these proceedings, unless the Attorney-General notifies the parties and the Court pursuant to s 6A(1) of the Act.

Associate:

Dated:    21 April 2011