FEDERAL COURT OF AUSTRALIA

Australian Broadcasting Corporation v Kane [2019] FCA 1716

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the costs of the second and third respondents as agreed or assessed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is an application for leave to appeal from interlocutory orders made by a judge of this Court on 20 August 2019, by which her Honour:

(1)    refused to allow certain amendments to an originating application challenging the issue and execution of a search warrant;

(2)    set aside a notice to produce seeking the production of the material by which the search warrant was obtained (search warrant application); and

(3)    refused an application for an order for discovery of the search warrant application and other related documents.

2    The primary judge allowed certain other amendments to the originating application by consent and other amendments are sought. The substantive proceeding is listed for final hearing before her Honour on 28 to 30 October 2019.

3    The applicant in the substantive proceeding, and applicant for leave to appeal, is the Australian Broadcasting Corporation (ABC). The respondents are:

(1)    Mr Martin Kane, a registrar of the Local Court of New South Wales at Queanbeyan, who issued the search warrant;

(2)    the Commissioner of the Australian Federal Police (AFP) – the AFP are conducting the investigation for which the search warrant was obtained; and

(3)    Mr Ian Brumby, an officer of the AFP and the executing officer for the search warrant to whom that warrant is addressed.

4    As Mr Kane has filed the usual submitting appearance (save as to costs), it is convenient to refer to him by name and to only the Commissioner and Mr Brumby as the respondents.

Background

5    The following background to the search warrant challenge brought by the ABC is drawn from the primary judge’s reasons and from evidence that was before her Honour and relied upon in this application for leave to appeal.

6    On 11 July 2017, the ABC published on its website a number of articles by two journalists, Mr Daniel Oakes and Mr Sam Clark, concerning the conduct of Australian soldiers in Afghanistan under the title “The Afghan Files” (Afghan Files publications). The information published apparently included the contents of security classified documents which are alleged to be the product of a leak from the Department of Defence. This leak apparently came from Mr David William McBride, a former member of the Defence Force. I qualify these observations as being no more than “apparently” because there is no established fact before me that either is necessarily so, and it is not presently necessary to reach any concluded view about those issues in any event.

7    On 19 July 2017, the AFP commenced an investigation in connection with the Afghan Files publications. On 5 September 2018, Mr McBride was charged with theft of Commonwealth property contrary to s 131.1(1) of the Criminal Code (Cth). He pleaded not guilty to that charge on 30 October 2018.

8    On 13 September 2018, the AFP wrote to Mr Oakes and Mr Clark, advising them that they were suspects in relation to receiving prescribed information contrary to s 79(6) of the Crimes Act 1914 (Cth) and in relation to unlawfully obtaining military information contrary to s 73A(2) of the Defence Act 1903 (Cth).

9    On 7 March 2019, Mr McBride was further charged with unlawfully giving military information other than in the course of official duty, contrary to s 73A(1) of the Defence Act, and unlawfully disclosing a Commonwealth document, contrary to s 70(1) of the Crimes Act. On the same day, an article was published by the Canberra Times newspaper about the prosecution of Mr McBride which referred to him admitting to handing over documents to journalists, but defending what he had done on legal grounds. As a general proposition, the rules of evidence would not permit media reporting of an asserted fact to constitute admissible evidence of that fact, let alone be a satisfactory means of determining the metes or bounds of any such admission or its capacity to prove any element of a criminal charge.

10    On 1 April 2019, the AFP wrote to Mr Oakes and Mr Clark seeking their consent to a forensic procedure by way of copying finger prints and palm prints. This was stated to be for the purpose of comparison with forensic material that had been recovered from other, unspecified, documents.

11    On 30 May 2019, Mr McBride pleaded not guilty to the additional offences laid on 7 March 2019, maintained his plea of not guilty to the earlier charge, and was committed to stand trial in the Supreme Court of the Australian Capital Territory on all charges. I was informed by senior counsel for the respondents that those charges will next be before that Court on 11 November 2019 and again on 9 December 2019 for pre-trial directions, and have no reason to doubt that is so. I readily infer that Mr McBride’s trial is presently likely to take place sometime in 2020, as indicated in the affidavit evidence for the respondents that was before the primary judge.

12    On 31 May 2019, a further article was published by the Canberra Times newspaper about the prosecution of Mr McBride which again referred to him admitting to handing over documents to journalists, but defending what he had done on legal grounds. Again, that would not ordinarily be admissible evidence of the facts as reported.

13    On 3 June 2019, the search warrant was issued to Mr Brumby. The search warrant was in the three-condition format approved by a five-member bench of the Full Court in Dunesky v Elder [1994] FCA 1020; 54 FCR 540, by which the necessary threshold of the dual suspicions referred to in s 3E(1) of the Crimes Act, as to the presence of evidence at the premises sought to be searched having the capacity to prove the commission of an offence, are sought to be established by referring to:

(1)    things proposed to be searched for;

(2)    persons, entities or topics that those things relate to; and

(3)    offences that such things will afford evidence of.

14    The offences under investigation were described in the third condition as follows:

Between 14 April 2016 and 1 October 2016, David William McBride gave Daniel Michael Oakes military information, contrary to section 73A(1) of the Defence Act 1903 (Cth).

Between 14 April 2016 and 1 October 2016, Daniel Michael Oakes unlawfully obtained military information, contrary to section 73A(2) of the Defence Act 1903 (Cth).

Between 1 March 2013 and 20 December 2014, David William McBride stole property belonging to the Commonwealth, contrary to section 131.1(1) of the Criminal Code Act 1995 (Cth).

About Between [sic] 14 April 2016 and 1 October 2016, Daniel Michael Oakes dishonestly received stolen property from David William McBride, knowing or believing that the property was stolen, contrary to section 132.1 of the Criminal Code Act 1995 (Cth).

About 1 May 2016, David William McBride unlawfully disclosed a fact or document which came into his knowledge by virtue of him being a Commonwealth officer, contrary to section 70(1) of the Crimes Act 1914 (Cth).

15    The references above to sections of the Criminal Code Act 1995 (Cth) should instead be references to sections of the Criminal Code, which is contained in a Schedule to the Criminal Code Act and has effect as a law of the Commonwealth per s 3(1) of that Act.

16    On 5 June 2019, the search warrant was executed by the AFP at the ABC’s premises in Ultimo by prior arrangement and documents in both paper and electronic form seized. That material has not been accessed by the AFP by reason of an interim undertaking given not to do so pending the outcome of the substantive search warrant challenge.

17    On the afternoon of 6 June 2019, soon after 2.00 pm, the then Acting Commissioner of the AFP participated in a half-hour media conference, with a transcript of what was said being in evidence before the primary judge, marked with counter numbers presumably taken from the sound recording equipment. The ABC contends that the issues raised by the search warrant challenge are coloured by what was said by the Acting Commissioner, as detailed further below. The respondents criticised the ABC’s characterisation of what was said as being selective and taken out of context, a stance that the primary judge agreed with.

18    On 13 June 2019, an article was published online about the criminal proceedings against Mr McBride in June by news publisher The Guardian.

19    On 24 June 2019, the ABC filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), commencing the search warrant challenge proceeding to which this application for leave to appeal relates. That application seeks:

(1)    declarations that the search warrant is invalid, that the search pursuant to that warrant was unlawful, and that Mr Brumby and other AFP federal agents are not entitled to examine the material seized;

(2)    an order that the material seized be returned; and

(3)    an injunction in effect restraining anyone at the AFP from dealing with the material seized in any way (with parallel interlocutory relief not being necessary by reason of the interim undertaking given).

20    After a narrative of events, the originating application lists, at [19] to [24], seven grounds of review challenging various aspects of the validity of the warrant on its face, the decision to issue the warrant based on asserted defects on its face, and the decisions to apply for and execute the warrant. Importantly, contrary to the applicant’s argument before the primary judge, no ground was advanced as to the issue of the warrant based on any insufficiency of the material before Mr Kane, nor as to any issue to do with the matters required to be taken into account by him under s 3E(1) of the Crimes Act (being the provision governing the decision to issue a search warrant).

21    On 15 July 2019, the ABC served a notice to produce, seeking the production of a copy of the search warrant application. On 22 July 2019, the Commissioner filed an interlocutory application to set aside the notice to produce, serving it on the ABC the next day. After an exchange of submissions, that application was heard by the primary judge on 2 August 2019, with her Honour reserving the decision.

22    On 9 August 2019, before judgment could be delivered on the respondents’ application to set aside the notice to produce, the ABC filed a further interlocutory application, with accompanying submissions, seeking leave to amend its originating application in a form that was not ultimately opposed (initial proposed amended originating application); and seeking an order for discovery. The discovery sought was the search warrant application, any document recording the decision to apply for the search warrant and any document recording or evidencing consideration by the respondents, in connection with the decision to apply for the search warrant, of what may be described for present purposes as the implied freedom of political communication under the Constitution, the protection of journalists’ sources, the public interest in investigative journalism and, somewhat cryptically, “the subjects to which the evidentiary materials sought under the warrant related”, which may be a reference to the second condition in the search warrant.

23    The hearing of the ABC’s interlocutory application was fixed for hearing on Monday, 19 August 2019. On Wednesday, 14 August 2019, the respondents filed submissions by which consent was advised as to the amendments sought in the initial proposed amended originating application, but opposing discovery upon the basis that the documents sought were not relevant to the issues raised by the ABC’s originating application, even with the amendments consented to. In particular, the respondents’ submissions noted that no ground of review was advanced that the search permitted by the search warrant exceeded what was justified by the material before Mr Kane, and no ground had been raised based on a failure to take into account purported mandatory considerations.

24    Late on the afternoon of Friday, 16 August 2019, without prior notice to the respondents or the leave of the primary judge, the ABC served reply submissions with a further proposed amended originating application which, if allowed, would have added the following additional proposed paragraphs:

[20A]    The search permitted by the search warrant exceeded what was justified by the material before Kane.

[23A]    Kane’s decision to issue the search warrant was affected by jurisdictional error, in that Kane failed to take into account the following relevant considerations:

a.    the very significant intrusion of privacy that the search warrant purported to authorise;

b.    the importance of the protection of sources, including for the reasons set out in [2] above;

c.    section 126K of the Evidence Act 1995 (Cth);

d.    the public interest in investigative journalism, including for the reasons set out in [3] above;

e.    the implied Constitutional freedom for the reasonable discussion of government and political matters which arises under sections 7, 24 and 128 of the Constitution; and

f.    the public interest in reporting on matters such as the content of the Afghan Files reports referred to in [15] above and the Subjects referred to in [16] above.

[24A]    Brumby’s and the Commissioner’s decisions to seek the search warrant were affected by jurisdictional error, in that Brumby and the Commissioner failed to take into account the following relevant considerations:

   a.    the very significant intrusion of privacy that the search warrant purported to authorise;

   b.    the importance of the protection of sources, including for the reasons set out in [2] above;

   c.    section 126K of the Evidence Act 1995 (Cth);

   d.    the public interest in investigative journalism, including for the reasons set out in [3] above;

   e.    the implied Constitutional freedom for the reasonable discussion of government and political matters which arises under sections 7, 24 and 128 of the Constitution; and

f.    the public interest in reporting on matters such as the content of the Afghan Files reports referred to in [15] above and the Subjects referred to in [16] above.

25    By further submissions in response, dated 18 August 2019, the Sunday before the 19 August 2019 hearing, the respondents characterised the further proposed amendments as “an eleventh-hour attempt to reverse-engineer an application that would entitle the [ABC] to the documents it wants”, rather than being, as the ABC contended in its reply submissions, merely to clarify the existing pleading or otherwise being of a formal nature. The respondents submitted that her Honour should readily draw the inference that the further proposed amendments were “being advanced solely for the impermissible purpose of bolstering the [ABC]’s discovery application”. The respondents also submitted that the primary judge should not regard the application to amend so as to incorporate the further proposed amendments as being genuine when, quoting from Mulley v Manifold (1959) 103 CLR 341 at 349, it was “really directed to meeting the difficulty of obtaining discovery of documents that the plaintiff may wish to see but which are not material to the case”.

Interlocutory decision of the primary judge

26    The primary judge did not accept the ABC’s characterisation of the further proposed amendments as going no further than clarifying the existing pleading or only being formal. Her Honour in substance found that the further proposed amendments sought to enlarge the ABC’s case so that it would meet the respondents’ objection to the discovery sought. Given that an entirely new challenge was sought to be advanced based upon the sufficiency of the search warrant application to justify the issue of the search warrant, and the asserted failure to have regard to what was said to be (inferred) mandatory relevant considerations, her Honour’s conclusion in this regard is unassailably correct.

27    Upon the basis of reasons published on 20 August 2019, the primary judge made orders:

(1)    allowing the amendments to the originating application sought in the ABC’s 9 August 2019 interlocutory application (as consented to by the respondents);

(2)    not allowing the further proposed amendments;

(3)    setting aside the ABC’s notice to produce; and

(4)    refusing the application for discovery.

28    The primary judge’s principal reasons for refusing to allow the further proposed amendments are sufficiently concise to warrant reproducing the main paragraphs challenged, and their immediately surrounding paragraphs, in full:

[56]    This application is in a context where there has already been argument in relation to the Notice to Produce, heard on 2 August 2019, during which the respondents raised some of these issues which the applicant now seeks to address by the new grounds. Plainly, careful consideration was given by the applicant to the terms of the originating application, and the first amended application. Given the timing of the second amended application and terms of the proposed new grounds [20A], [23A] and [24A], the compelling inference is that the amendments are being sought in order to address the clear issues, and problems for the applicant, raised by the respondents. In those circumstances the amendments sought “are really directed to meeting the difficulty of obtaining discovery of documents that the plaintiff may wish to see but which are not material to the case. In this sense, I do not regard the application to amend as a genuine application”: Mulley at 349 per Menzies J.

[57]    As is apparent from the reasoning below in relation to the Notice to Produce and the application for discovery, focus on the grounds pleaded is necessary to determine those issues. In the argument already on the Notice to Produce, it was apparent that the parties accepted this to be the case. As such, the issue is not one of confusion as to the meaning of the grounds as the applicant implies in its reply submission. Whether, as the applicant submits, its arguments are within the terms of the first amended application such as to entitle it to the information and documents sought, is addressed below. If the grounds are speculative, their inclusion to obtain discovery to determine if there is a basis for the grounds, is impermissible.

[58]    A consideration of the terms of the proposed grounds also reflects that they could not be genuine in the sense referred to in Mulley. For example, framing the proposed grounds [23A] and [24A] as a failure by the respondents to take into account at all, each of the public policy considerations which it considers are relevant considerations (including, for example, something as basic as the intrusion to privacy of a warrant), has no foundation other than the fact that the warrant was sought and issued. I note that the applicant’s written submission before this ground was added was that the respondents failed to take into account, or if they did, they failed to properly take into account those considerations. In any event, that the applicant might want to argue that none of the policy considerations were taken into account based on the fact that the warrant was sought and issued, does not provide a basis that would entitle the applicant to the documents sought by discovery. Nor, for reasons given below, does the applicant’s reliance on answers given in a media interview (see paragraphs [123] and [150]). Adding these grounds does not alter that. As the respondents submitted, this amounts to no more than a fishing expedition.

[59]    As explained in more detail below, paragraph [20A] is nothing more than a bare allegation, with no particulars identifying the basis for the allegation. If it is to be argued on the same basis as in ground 3, it is an argument premised on the submission that the warrant is vague, conclusionary and uncertain. As explained below, the argument in support of ground 3 as articulated, is an argument made on the face of the warrant.

[60]    I observe that when the Notice to Produce, which related to the information on oath and the sufficiency of that information, was argued, the applicant did not rely on ground 3 (in paragraph [20]) as the basis of the entitlement. Rather, only grounds 6 and 7, paragraphs [23] and [24], were relied on.

[61]    In Austal Ships at [10] McKerracher J observed:

In circumstances where a party makes allegations in a pleading based on suspicion, it is not entitled to interrogate on those suspicions, for to do so is the clearest example of fishing by making a case where none exists: WA Pines Pty Ltd v Bannerman [1980] FCA 2: (1980) 41 FLR 169 at 173-174 per Toohey J; WA Pines [1980] FCA 79; 41 FLR 175 at 181-182 per Brennan J; and 190-191 per Lockhart J. More recently see Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327 at [28]-[36]).

[62]    The applicant’s argument on these proposed grounds would be “nothing more than bootstrap reasoning, effectively presuming inadequacy in order to infer its existence”: SMEC at [28] per Bromwich J.

ABC’s draft grounds of appeal

29    The draft grounds of appeal that were pressed on the application for leave to appeal were as follows:

Leave to amend

 [1]    [not pressed]

[2]    The primary judge erred in concluding that proposed paragraph 20A of the AOA was ‘nothing more than a bare allegation’ [FCA, [59], [127]] whose ‘addition would not assist the applicant’ [FCA, [127]], because she failed to have regard to and rule upon the matters raised in paragraphs 20 and 28–33 of the appellant’s written submissions dated 9 August 2019 and the corresponding oral submissions put to the primary judge on 19 August 2019, which submissions ought to have caused the primary judge to allow the proposed amendment.

[3]    The primary judge erred in refusing the appellant leave to amend the OA to add proposed paragraphs 23A and 24A of the AOA, by:

(a)    wrongly characterising proposed paragraphs 23A and 24A as having no foundation other than the fact that the warrant was sought and issued [FCA, [58], [123], [151]], because she failed to have regard to and rule upon the matters raised in paragraphs 34.6 and 37 of the appellant’s written submissions dated 9 August 2019 and the corresponding oral submissions put to the primary judge on 19 August 2019, which ought to have caused the primary judge to allow the proposed amendments; and

(b)    wrongly concluded that the public comments made by the Acting Commissioner of the Australian Federal Police could not support proposed paragraphs 23A and 24A [FCA, [123], [150]], when that was properly an issue for trial.

Notice to produce and discovery

[4]    The primary judge erred in setting aside the notice to produce and refusing the application for discovery, by wrongly concluding that the allegations in proposed paragraphs 20A, 23A and 24A of the AOA were ‘speculative at best’ and ‘bare allegations’ [FCA, [123]–[127]], because she failed to have regard to and rule upon the matters raised in paragraphs 20, 28–33, 34.6 and 37 of the appellant’s written submissions dated 9 August 2019 and the corresponding oral submissions put to the primary judge on 19 August 2019, which ought to have caused the primary judge to refuse to set aside the notice to produce and allow the application for discovery.

[5]    The primary judge wrongly concluded that the information on oath sought by the notice to produce and by way of discovery ‘could not assist’ with the resolution of the arguments in paragraphs 23 and 24 of the OA and proposed paragraphs 20A, 23A and 24A of the AOA [FCA, [97]–[98], [126], [127]].

[6]    The primary judge erred in setting aside the notice to produce and refusing the application for discovery, by asking the wrong question [FCA [91]–[94], [99]–[109], [146]], because she asked whether it was possible to put the arguments in paragraphs 23 and 24 of the OA without the information on oath or the discovery sought, and not whether there was a real issue the proof of which would be aided by the information on oath or by the discovery sought.

Relevant principles

30    It was common ground that the following principles govern this application for leave to appeal:

(1)    this Court must exercise the power to grant leave to appeal in a way that best promotes the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), being to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [2]; Bellamy’s Australia Limited v Basil [2019] FCAFC 147 at [6];

(2)    the decision sought to be appealed from must be attended by sufficient doubt to warrant its reconsideration and, supposing the decision to be wrong, refusal of leave must be shown to be likely to result in substantial injustice, with these two factors being both cumulative and bearing upon one another: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Rush at [3]; and Bellamy’s v Basil at [7]; and

(3)    it must be taken into account that at an appeal it will not be enough to show that the exercise of discretion under challenge could have been different, such that for the grant of leave to appeal, reasonably arguable error must be established in accordance with House v The King (1936) 55 CLR 499 at 504-5; see also King v Lintrose Nominees Pty Ltd [2001] VSCA 140; 4 VR 619 at [22]; and Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [3].

31    A cautionary consideration also highlighted by the respondents is the longstanding conservative approach to be taken to challenges to practice and procedure decisions of trial judges. In the Full Court of the Supreme Court of New South Wales case of In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318, Jordan CJ said (with the agreement of Maxwell J and Nicholas CJ in Eq) at 323, citing prior authority:

… there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges at first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion from a Judge in Chambers [these days, usually in open court] to a Court of Appeal.

The substance of that reasoning was endorsed in Bellamy’s v Basil at [5] and in Rush at [4].

Submissions and consideration

32    As the passages from the primary judge’s reasons reproduced above at [28] make clear, the central reason why her Honour refused to allow the further proposed amendments was that she accepted the respondents’ characterisation of them as not being genuinely sought, but also found that even if those amendments had been allowed, her Honour would not have given discovery or, it would necessarily follow, have allowed the notice to produce to stand. In the course of argument on this application, the ABC apparently accepted that the grant of leave to appeal against her Honour’s orders setting aside the notice to produce and refusing discovery depends upon success in first obtaining leave to appeal in relation to the refusal to allow the further amendments. But even if that is not in fact accepted by the ABC, I find that to be so. Without the further proposed amendments, the material sought by the notice to produce and by discovery could not properly advance any of the other grounds of review in the substantive proceeding.

33    An important component of the primary judge finding that seeking the further proposed amendments were not genuine was an antecedent finding that they were speculative in nature and designed to obtain the search warrant application and related material without any proper basis being established in accordance with long-standing and more recent authority. The ABC seeks to undermine the finding that the further proposed amendments were not genuine by challenging the conclusion that they were speculative. This is sought to be advanced by referring to the factual detail and arguments in the ABC’s written and oral submissions that were not replicated, in terms, in her Honour’s reasons.

Paragraph 20A

34    The ABC submits that the allegation in proposed paragraph 20A was that Mr Kane did not have a proper basis to have concluded (as required by s 3E(1) of the Crimes Act) that there were reasonable grounds for suspecting that there was at the ABC’s premises (or would be within 72 hours) the “full scope of evidential material described in the warrant”. The ABC submits that such an assertion could properly be made upon the basis of the objective circumstances that Mr McBride had been charged and committed for trial, that he had made public statements to the effect that he had given information to journalists, that forensic material by way of finger prints and hand prints had been sought by the AFP and what was said during parts of the media conference by the Acting Commissioner.

35    The fact that Mr McBride had been charged and committed for trial, his public statements, the forensic material sought, and parts of what was said by the Acting Commissioner, together with the face of the search warrant, is relied upon by the ABC to support the following inferences:

(1)    that the same documents or information that were the subject of the charges against Mr McBride were also the subject of the investigation into the journalists, including that the AFP had in its possession documents that it believed the two journalists may have touched;

(2)    that by April 2019, the AFP had identified the documents or information that Mr McBride is alleged to have given to the journalists; and

(3)    that the search warrant application identified the documents or information that Mr McBride is alleged to have given to the journalists.

36    The ABC submits that because the primary judge’s reasons do not expressly disclose consideration of this evidence and those arguments, her Honour plainly fell into error. Implicitly at least, this submission seems to suggest that the AFP was compelled to go no further in its investigation once the leaked documents had been identified and perhaps obtained. However in considering this argument, I do not accept the ABC’s premise that her Honour was not fully cognisant of the contents of its oral and written submissions on this topic, especially in light of express reference to them by counsel and her Honour and reliance upon them during the course of the hearing before her Honour on 19 August 2019, nor that a letter and verse reproduction of those submissions was necessary to resist this conclusion. This was an interlocutory pleading point, and her Honour’s reasons amply demonstrate comprehension of the substance of what was being argued.

37    In asserting arguable error, the ABC sought to draw a sharp distinction between what could be raised as a pleading issue and what might or might not succeed at trial. However, that pays insufficient heed to the legal analysis required to be applied in considering an application for leave to appeal, which unlike a mere prima facie case, requires an assessment as to whether a proposed ground of appeal is reasonably arguable. It is not the case that leave to appeal must be considered upon the basis that all substantive pleading points to be made, no matter how weak or tenuous, should be left to be determined at the substantive trial and that her Honour necessarily erred in not adopting that low-threshold approach: each further proposed pleading that was not permitted to proceed must be shown to have had some reasonable degree of cogency to meaningfully contribute to the conclusion that the correctness of the primary judge’s decision is attended by sufficient doubt. Given that this was a discretionary decision, the mere possibility that the primary judge could have reached an alternative outcome will not suffice to demonstrate reasonably arguable error in failing to do so.

38    Before turning to the respondents’ arguments, I note that each of the circumstances relied upon by the ABC do not have the significance that the ABC seeks to attribute to them.

39    It is not apparent why the fact of Mr McBride being charged and committed for trial precludes further investigations being carried out, including by the execution of a search warrant to obtain further or better evidence. That is a very common incident of criminal investigations and prosecutions. This is such an obvious point that it did not require separate mention by the primary judge.

40    As to the reported admissions by Mr McBride, they are not necessarily or even likely to be admissible evidence of anything, let alone admissions that address all the elements of the offences that he is alleged to have committed. This too is so obvious that it did not require separate mention by the primary judge.

41    As to the request for forensic material, even if the documents upon which finger prints or palm prints have been found have already been obtained were copies of the documents alleged to have been leaked, which is not at all clear, again that does not address all of the elements of the offences under investigation. The primary judge did not need to labour in reproducing the detail of such arguments.

42    The primary judge did not find the ABC’s arguments based upon aspects of what the Acting Commissioner said compelling. The arguments were based upon the following question put to the Acting Commissioner and the answer he gave:

Q:    Given Mr McBride has sort of openly admits [sic] that he has handed documents to the ABC journalists named on the warrant yesterday, why did the AFP feel it necessary to go into the ABC and do that? What sort of link are you establishing there, where the accused person who has been committed to trial says yep, there is a link, it was me?

A:    I think in relation to that one, we still have to follow the evidence trail. We still need to ensure that just because someone says they did something, doesn’t mean they actually did, so there’s still a fair way –

43    The ABC characterises the answer given as indicating that a purpose of seeking and executing the search warrant was to confirm Mr McBride’s reported, but very limited, admission as to giving documents to journalists. As already observed, the media reporting of what Mr McBride had said about leaking documents was ordinarily not admissible evidence to prove that fact. The Acting Commissioner’s answer, as far as it went, is nothing more than an acknowledgment of that reality, noting that the Acting Commissioner was not able to finish his answer and might well have intended to also refer to the other elements of the alleged offences being investigated. Even if that was not so, the very limited nature of what Mr McBride was reported as saying, and his express reference to reliance on legal arguments to defend the charges he was facing, meant that the AFP were not required to rely solely on such comments in their investigation of the alleged offences.

44    The respondents also counter the ABC’s arguments by submitting that the primary judge was correct in charactering proposed paragraph 20A as a bare allegation, noting the undeniable fact that no particulars are in the draft pleading sought to be relied upon. It was not for the respondents to request such particulars, but for the ABC to make its case on what it chose to advance by way of a proposed additional pleading. The respondents submit that the ABC’s submissions are based upon an underlying false premise that the AFP was limited to searching for evidence that relates to the existing charges brought against Mr McBride and the documents to which they relate, implicitly constrained in some way by the concessions reported to have been made by him to journalists, which it has already been noted were not, without more, ordinarily admissible as evidence of anything. The respondents also submit that selectively quoted answers by the Acting Commissioner to journalists’ questions at the media conference after the warrant had been issued and executed did not establish that the reasons for the search were limited in this way.

45    The respondents’ submission must be accepted, especially when regard is had to the offences being investigated as set out in the third condition to the search warrant, reproduced at [14] above. It is plain that the search at least ostensibly authorised by the search warrant was directed to obtaining both further evidence in support of the existing charges against Mr McBride and also evidence in support of possible charges against Mr Oakes. The elements of those suspected offences travel well beyond the limited and almost certainly inadmissible media reported concessions by Mr McBride as to leaking the documents and beyond the leaked documents being ascertained and even having been obtained. It needs to be remembered that identifying the documents in question, and even obtaining a copy of them, does not address the question of what happened to them and when, including where else they, or a copy of them, might have ended up (and when and from whom).

46    It follows that the primary judge’s characterisation of proposed paragraph 20A as being speculative was an evaluative conclusion that was fairly open to her Honour in all the circumstances, supporting the ultimate conclusion that the further amendment application was not genuine. The ABC has therefore failed to identify any reasonable basis for asserting that the decision sought to be appealed is attended by sufficient doubt to justify the grant of leave to appeal in relation to declining to allow an amendment to include proposed paragraph 20A.

Paragraphs 23A and 24A

47    The arguments advanced by the ABC in relation to proposed paragraphs 23A and 24A are to the effect that the primary judge erred at [56] (reproduced above at [14]) and also at [58], [123] and [151], in concluding that those paragraphs were speculative because her Honour is said to have wrongly characterised those paragraphs as having no foundation other than the fact that the search warrant was sought and issued, without having regard to and ruling upon submissions based upon what was said by the Acting Commissioner at the media conference and by concluding that those comments could not support those paragraphs to raise this as an issue at trial. As noted above, the primary judge did consider submissions made about the Acting Commissioner’s comments and found the ABC’s argument about the weight that they could bear, and the conclusions they were said to support, unconvincing.

48    The ABC relies upon the following part of what the Acting Commissioner said:

Q:    What’s the alleged harm to national security in these cases and why doesn’t the Australian public have a right to know about plans to increase spying or alleged unlawful killing?

A:    What we’re investigating is the fact that code worded and top secret and secret information was disclosed to the Australian community. The substance of that is to our investigation process is somewhat irrelevant. The issue of whether or not the public has a right to know is really not an issue that comes into our investigation process. We’re given a complaint in these instances by secretaries of other departments, we look at the criminality and then we investigate that. Now, we’re not going to make a judgment and nor should we make a judgment, and indeed nor can we make a judgment in relation to whether a referral is a good referral or a bad referral. But in this particular instance, it was deemed that a likelihood of an offence being committed had been done so. And therefore we commenced an investigation.

49    The ABC submits that the matters listed as particulars to proposed paragraphs 23A and 24A were mandatory relevant considerations, and therefore the above passage is relied upon as evidence to demonstrate that it cannot be said to be speculative that, in deciding to seek and obtain the search warrant (and presumably also to execute it), Mr Kane and the respondents failed to consider as said to be required by law the public interest in the protection of confidential sources, the public interest in investigative journalism and the implied Constitutional freedom of political communication. In particular, the ABC replies upon the second sentence of the answer reproduced above, viz, “The substance of that … to our investigation is somewhat irrelevant. The issue of whether or not the public has a right to know is really not an issue that comes into our investigation process”.

50    The problem with this argument is twofold. First, it has not been explained how general comments by the Acting Commissioner are capable of establishing what the state of mind was of those who actually applied for the search warrant, let alone that of Mr Kane. Secondly, as the respondents point out, the Acting Commissioner also said other things that cast serious doubt upon the meaning that the ABC sought to attribute to the passages relied upon, including the following:

(1)    at counter 2:09:

The collection of evidence and investigation process undertaken by my staff and police more broadly in the AFP and indeed across the state and territory jurisdictions, when conducting investigations, must be done in accordance with the law. Throughout the execution of the search warrants, in collaboration with the people affected, the AFP in these particular matters took additional care to protect the confidentiality of other personal or professional information that was not subjected to the warrant. Both of these investigations relate to national security information, how it was handled, and who had access to it. The material subject to these investigations and search warrants relates to documents classified as both top secret and secret. The compromise of such material could cause exceptionally grave damage or serious damage to the national interest, organisations, or indeed, individuals.

(2)    after counter 7:57:

… Public interest is something that we look at in relation to our investigations from the outset. …

(3)    at counter 27:35:

Q:    It strikes me that a story about the behaviour of our SAS troops abroad that might have involved the murder of innocents and a discussion of whether one of our agencies might be re-tasked to spy on Australian citizens are of prime public importance. Are you saying that the public interest would have been better served had those two pieces of journalism not appeared?

A:    No, I’ve never said. What I’m saying is we have investigated a criminal offence. And I said, I think I’ve said at the outset, and correct me if I didn’t, that we’re investigating the criminality. Now the issue of public interest is a matter that we do consider and I have said that. But we considered that at various phases through the investigation. I will also say that in relation to one of those matters in particular, there is also some very sensitive personal information that has found its way into the hands of people who probably shouldn’t have it. And I’m concerned about that, as are those individual members. We’ve got to take into consideration, as I said as well, individual privacy here is paramount as well.

51    The ABC has not demonstrated that the conclusions reached by the primary judge were not properly and fairly open to her Honour, let alone made a sufficient argument that the decision sought to be appealed is attended by sufficient doubt to justify the grant of leave to appeal in relation to declining to allow an amendment to include proposed paragraphs 23A and 24A.

52    It follows from the foregoing that I am not satisfied that the challenged orders made by the primary judge are attended by sufficient doubt to warrant granting leave to appeal. That conclusion is sufficient to dismiss the present application. I now turn to the issue of substantial injustice, which is both an independent and a cumulative consideration.

53    First, I am not satisfied that being prevented from extending a search warrant challenge to issues based upon weak and inconclusive inferences as to what was in the search warrant application, is capable of constituting any injustice at all, let alone substantial injustice. I am fortified in that conclusion because the major point advanced by the ABC as to the substantial injustice it says it will suffer concerns being “prevented at trial from advancing arguable grounds that raise questions of public importance about the limits on the power of the state to authorise significant intrusions into privacy by in camera exercises of executive power, in circumstances that put at risk the confidentiality of journalists’ sources, and impose a burden on communication about political and governmental matters”. Those very matters are directly raised by paragraph 18A of the amended originating application, which has been allowed to proceed by the primary judge, without objection by the respondents, and has most of the same particulars as proposed paragraphs 23A and 24A, albeit cast in terms of ultra vires rather than mandatory relevant considerations. The challenge to the issue of the search warrant by Mr Kane by reference to those very matters therefore forms part of the trial to commence on 28 October 2019. The ABC suffers no loss of opportunity to ventilate the substance of those issues and therefore no injustice at all, let alone substantial injustice. Further, paragraph 18A of the amended originating application also permits arguments to be advanced as to the effect of the comments made by the Acting Commissioner at the media conference after the execution of the search warrant.

54    Secondly, and conversely, the better view is that granting leave to appeal carries with it the real risk of substantial injustice in relation to the pending criminal proceedings against Mr McBride. This is not a matter of mere speculation as asserted by the ABC, but rather practical reality, informed by a sensible understanding of ordinary criminal trial listing procedures, including in the ACT.

55    Mr McBride is entitled to fully test and defend the charges brought against him, and to put the prosecution to proof of the case against him beyond reasonable doubt. The AFP, in aid of the Commonwealth Director of Public Prosecutions in conducting that prosecution, is also entitled to progress the obtaining of any further evidence in support of those charges in the event that the search warrant challenge does not succeed in preventing access to the material seized.

56    Despite some optimism being expressed by the parties that the existing trial of the search warrant challenge before the primary judge commencing on 28 October 2019 could still proceed if leave to appeal was granted, and the appeal was able to be heard, I am not satisfied that such optimism is realistic. Even if a Full Court could be assembled to hear such an appeal before then, it would be difficult to sensibly predict that a decision could be reached before then if, contrary to my primary view, there would be anything of substance to such an appeal. It follows that the more likely, if not inevitable, result of granting leave to appeal would be that either the existing trial would have to be vacated, or at least the final determination of the search warrant challenge would not be possible this year, or likely until well into 2020, especially if an appeal is pursued. If so, the opportunity to access and to use such evidence would never be reached or Mr McBride’s trial would be delayed, the latter being an outcome which is at odds with the proper administration of justice.

Conclusion

57    For the foregoing reasons, the application for leave to appeal must be dismissed with costs.

Associate:

Dated:    18 October 2019