FEDERAL COURT OF AUSTRALIA

ZX v Commonwealth of Australia [2016] FCA 1013

ORDERS

THE COURT ORDERS THAT:

1.    Subject to the order made on 17 May 2016, the applicant’s interlocutory application dated 21 March 2016 be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

1    In this proceeding, the applicant seeks relief under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). On 4 September 2013, the Board of the Australian Crime Commission made a determination under s 7C of the Australian Crime Commission Act 2002 (Cth) (“the Act”) titled “Australian Crime Commission Special Operation Authorisation and Determination (Outlaw Motor Cycle Gangs) 2013” (“the Determination”). Under s 24A of the Act, an examiner may conduct an examination for the purposes of a special ACC operation/investigation. Under s 28 of the Act, an examiner may summons a person to appear before an examiner at an examination to give evidence or produce any documents or other things referred to in the summons. The applicant was summonsed to appear before an examiner by a summons which was issued on 2 October 2015. The applicant seeks an injunction restraining the examiner from examining him pursuant to the summons and declarations that the summons and the Determination are invalid.

2    Under s 28 of the Act, the examiner’s power to summons a person is conditioned on the examiner being satisfied that issuing the summons is reasonable in all the circumstances. The examiner must record in writing the reasons for the issue of the summons and the record is to be made before the issue of the summons or at the same time as the issue of the summons (s 28(1A)). As far as the applicant’s challenges to the validity of the summons are concerned, a number of them are linked to challenges to the Determination. Others are free-standing, such as a claim that the summons should, but does not, specify whether it is a pre-charge examination or a pre-confiscation application examination. There are also claims that the summons does not comply with s 28(1), s 28(2) or s 28(3) of the Act.

3    By amendments to s 7(1A) of the Act effected by the Australian Crime Commission Amendment (National Policing Information) Act 2016 (Cth) and which came into force on 1 July 2016, the Australian Crime Commission may also be known as the Australian Criminal Intelligence Commission (see reg 3A to the Australian Crime Commission Regulations 2002 (Cth)). The agency may still be referred to as the ACC, although its preference is to adopt the acronym ACIC.

4    As I understand it, in the usual course a number of documents are prepared before a summons is issued. There is an application for the issue of a summons which includes a Part A: Statement of Facts and Circumstances, and a Part B: Legal Submissions. I will refer to Part A as the Statement of Facts and Circumstances document. There is also a summons in draft form. In this case, a Mr Mario Armiento prepared the Statement of Facts and Circumstances document and it is dated 1 October 2015.

5    Mr Armiento has worked in the field of Commonwealth law enforcement since 1989 and he has held positions at the Australian Federal Police, the National Crime Authority and the ACIC. In December 2013, he was appointed the ACIC’s Head of Determination for the Determination and a second determination called the Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Criminal Targets No 2) 2013. Section 46A of the Act provides that the CEO must determine in writing the head of an operational investigation authorised by the Board and Mr Armiento has been appointed the head of the special operation authorised by the Board in the Determination. The examiner who issued the summons to the applicant is Mr G E Sage and his reasons are dated 2 October 2015.

6    On 21 March 2016, the applicant issued an interlocutory application in this proceeding seeking a number of orders. The following orders are of present relevance:

3.    That the Respondent make discovery by filing and serving a list of the following documents in its custody, possession or power by Friday 8 March 2016:

3.1    All documents upon which the Examiner relied in issuing the summons dated 2 October 2015 to the Applicant and all documents recording that decision and all documents directly relevant to that decision;

3.2    All documents including electronic records in respect of PROMIS Case number 2487;

3.3    …

4.    The Respondent produce the documents so discovered for inspection and copying by the Applicant.

It is not necessary to set out the terms of paragraph 3.3 because the order identified in that paragraph is no longer sought.

7    On 17 May 2016, I made the following orders which are relevant to the present application:

1.    The respondent make discovery by filing and serving a list of documents in its custody, possession or power by 4:00 pm on Tuesday, 24 May 2016 being all documents upon which the Examiner relied in issuing the summons dated 2 October 2015 to the applicant and all documents recording that decision and all documents directly relevant to that decision.

2.    …

3.    The application in paragraph 3.2 of the applicant’s interlocutory application dated 21 March 2016 be adjourned to a date to be fixed.

The time referred to in paragraph 1 was subsequently extended to a date on or before 26 May 2016.

8    On 25 May 2016, the respondent filed a List of Documents. The list was verified by an affidavit of Ms Judith Sharon Jefferson who is a principal legal officer employed by the ACIC. Part 2 of the list contains documents in the control of the respondent for which privilege from production is claimed. There are six such documents, but only two are of present relevance. The first is the Statement of Facts and Circumstances document prepared by Mr Armiento and the second is Mr Sage’s reasons for the issue of a summons. In relation to both of these documents, the respondent claims public interest immunity in relation to substantial redactions to the documents. The documents with the redactions have been produced to the applicant.

9    The Statement of Facts and Circumstances document refers to PROMIS Case Number 2487 and identifies a number of general matters from paragraphs 1 to 7. Paragraph 7 states that the ACC, in collaboration with the Morpheus National Taskforce and working through its Australian Gangs Intelligence Coordination Centre (AGICC) undertakes authorised activities under (the rest of this paragraph is redacted). Other evidence in the case indicates that the National Taskforce known as Morpheus was established in September 2014 and was said to be current until 31 December 2015. The Statement of Facts and Circumstances document is heavily redacted from paragraph 8 onwards. The following statement appears in paragraph 26:

Does the examinee have any outstanding charges? If yes, provide details of the charges.

26.    Yes, for a minor traffic matter (redaction) is scheduled to appear before (redaction) Magistrates Court on (redaction) in relation to a charge of (redaction).

10    Mr Sage’s reasons for the issuing of the summons state that he had regard to the Determination, the Statement of Facts and Circumstances document, legal submissions dated 1 October 2015, and the summons in draft form together with proposed annexures. Mr Sage states that the detail of the project and relevant background information was contained in paragraphs 6 – 17 of the Statement of Facts and Circumstances, and that he had considered those matters in making his decision to issue the summons. Mr Sage’s reasons for the issue of the summons state that the examination will be a pre-charge and pre-confiscation examination and referred to the minor traffic matter identified in the Statement of Facts and Circumstances document. Like the Statement of Facts and Circumstances document, the document containing Mr Sage’s reasons for the issue of the summons is heavily redacted.

11    There are two issues before me. First, the applicant challenges the respondent’s claim for public interest immunity in relation to the two documents which I have identified. On 24 June 2016, I gave the applicant leave to amend paragraph 4 of the interlocutory application dated 21 March 2016 which dealt with production to add the following:

including full copies of those documents identified in part 2 of the list of documents made by the respondent on 25 May 2016.

Secondly, the applicant seeks what it identified as the source documents from which the Statement of Facts and Circumstances document was compiled. The applicant submits that the source documents are directly relevant to Mr Sage’s decision. The applicant’s contention is that if the Statement of Facts and Circumstances document which was put before the examiner does not accurately record the source material, then there is an error which can form the basis of relief in an application for judicial review.

Public Interest Immunity

12    I do not understand it to be in dispute that when the issue is whether an order for pre-trial production of documents should be made in circumstances where there is a claim for public interest immunity, the relevant principles are the common law principles and not the provisions of s 130 of the Evidence Act 1995 (Cth): Woodroffe and Another v National Crime Authority and Others [1999] FCA 1689; (1999) 168 ALR 585 (“Woodroffe v National Crime Authority”) at [10]. Having said that, this Court has said that s 130 “closely reflects the common law position” in relation to public interest immunity: Eastman v The Queen (1997) 76 FCR 9 at 63 (see also Woodroffe v National Crime Authority at [11]).

13    In Alister and Others v The Queen (1983) 154 CLR 404, Gibbs CJ said (at 412):

Sankey v Whitlam establishes that when one party to litigation seeks the production of documents, an objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process – the balancing exercise – can only be taken when it appears that both aspects of the public interest do require consideration – i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.

14    The Court’s power to examine the relevant documents privately is not in doubt: Sankey v Whitlam (1978) 142 CLR 1 at 46 per Gibbs ACJ.

15    The approach to be adopted was considered in detail by Debelle J in Adelaide Brighton Cement Ltd v State of South Australia and Another (1999) SASC 379; (1999) 75 SASR 209 and I have had regard to the matters which his Honour identifies.

16    Mr Armiento has sworn an affidavit on 7 July 2016 which has been provided to the applicant. In paragraph 18 of that affidavit he states the following:

With respect to those documents to which the PII claim is made, it is my belief that disclosure would, or would tend to:

18.1    divulge sensitive information pertaining to the particular investigation which is continuing for which the summons relates and the ACIC’s related objectives

18.2    disclose the state of the intelligence holdings of the ACIC

18.3    reveal intelligence held by other law enforcement agencies

18.4    reveal personal and contact details for employees of the ACIC

and therefore, such disclosure would be against the public interest.

The respondent does not rely on paragraph 18.4.

17    The applicant made a number of submissions in support of its contention that the above statements are not sufficient to make out a claim for public interest immunity. First, the applicant submits that Mr Armiento does not actually say in paragraph 18.1 that the disclosure of the sensitive information pertaining to the particular investigation would impair or impinge on the conduct of that investigation. Secondly, the applicant submits that the operation has come to an end. As I have said, the National Taskforce known as Morpheus came to an end on 31 December 2015 and the authorisation under the Determination was to undertake the intelligence operation relating to specified criminal activity until 30 June 2016. In addition to making that point on this application, the applicant told me that it would be seeking to raise in its pleadings a challenge to the summons on the ground that any examination would not take place pursuant to the Determination. That ground of challenge does not appear in its pleading at the present time. The respondent told me from the bar table that the Determination had, in fact, been extended and I accept that. The respondent submitted that it had not brought forward any evidence of the extension because it had not been raised in the applicant’s claim. It should file and serve a short affidavit annexing a copy of the extension. Thirdly, the applicant submitted that insofar as the Court may look to s 130(4) of the Evidence Act for guidance, the only paragraph potentially relevant was that relating to prejudice to the prevention, investigation or prosecution of an offence (i.e., s 130(4)(c)). The applicant submitted that the evidence in this case fell well short of establishing that matter. Finally, the applicant referred to the redactions in relation to the minor traffic matter. It submitted that not only should that material not have been redacted in its own right, but, furthermore, the fact that it was redacted was evidence of an overall misunderstanding on the part of the respondent as to the scope of public interest immunity. The applicant produced the complaint and summons which he had received and pointed out that the alleged offence related to failing to drive to the left of a dividing line contrary to the Australian Road Rules.

18    The ACIC investigates serious and organised crime. It may be readily inferred that it collects and has in its possession sensitive information and in some cases highly sensitive information. It may be inferred that disclosing this information would hamper its operations. Nevertheless, the matters raised by the applicant considered together raised in my mind a doubt such that I decided that I should examine Mr Armiento’s confidential affidavit and the documents. Having done that, I am satisfied that the balance is in favour of the respondent’s claim for public interest immunity.

Documents which form the basis of the Statement of Facts and Circumstances Document

19    I do not understand the applicant to press paragraph 3.2 of the interlocutory application. I would not make an order in terms of that paragraph in any event in light of Mr Armiento’s description of the PROMIS system. The application does, however, seek the documents used in preparing the Statement of Facts and Circumstances document. As I understand it, the applicant’s argument is that although the decision-maker in this case, the examiner, is entitled to rely on the Statement of Facts and Circumstances document, he may only do so where the Statement of Facts and Circumstances document accurately summarises any documents used in preparing it. The applicant referred to Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia and Others (1996) 67 FCR 40, 60-63, and Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, Thomson Reuters, 2013) p 342. I think there are two answers to the applicant’s submission. First, the underlying document in this case is the Statement of Facts and Circumstances document, not whatever documents were used to prepare that document. Secondly, it seems to me that on the evidence it is mere speculation to assert that there might be some error in the Statement of Facts and Circumstances document when compared with any documents used to prepare it.

Conclusion

20    The appropriate order is that, subject to the order made on 17 May 2016, the applicant’s interlocutory application dated 21 March 2016 be dismissed.

Associate:    

Dated:    23 August 2016