Federal Court of Australia

Booth v Brookman (No 2) [2022] FCA 30

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 104.11A of the Criminal Code (Cth), the interim control order entered in relation to the respondent on 6 July 2021 is varied so as to include in Annexure A to those orders a paragraph in the following terms:

24.    Variation of controls while in custody

24.1    Controls 1 – 23 do not apply during any period in which you are held by or on behalf of an officer in a prison or remand centre of the Commonwealth, a State or a territory.

24.2    Controls 1 – 23 resume their application at the conclusion of any period referred to in Control 24.1.

2.    There is to be no disclosure, by publication or otherwise, of the statement of the Witness dated 22 September 2016 and filed with the Court in this proceeding on 18 October 2021 and its Annexures.

3.    Order 2 is made under s 37AF of the Federal Court of Australia Act 1976 (on the grounds set out in s 37AG(1)(a) and (b) of that Act) together with s 93.2 of the Criminal Code Act 1995 (Cth).

4.    Order 2 operates until further order.

5.    Order 2 does not prevent disclosure of information to and between the following people for the purposes of these proceedings:

5.1.    the presiding judge and necessary staff of this Court;

5.2.     persons referred to in s 6(1) of the Australian Federal Police Act 1979 (Cth) and legal representatives of the Australian Federal Police instructed in these proceedings;

5.3.    the Respondent and his legal representatives;

5.4.    Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth))

5.5.    officers of the foreign agencies identified in the Confidential Second Affidavit of Sandra Booth sworn on 28 June 2021.

6.    The Respondent and the Respondent’s representatives shall at the conclusion of these proceedings, including any appeals:

6.1.    delete any electronic copies, and return to the Commissioner of the Australian Federal Police any hard copies, of the document referred to in order 2 which are in their possession; and

6.2.    notify the Commissioner of the Australian Federal Police that they have done so.

7.    Each party bear its own costs of the Applicant’s interlocutory application dated 20 January 2022.

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

REASONS FOR JUDGMENT

SNADEN J:

1    On 6 July 2021, the court made an interim control order pursuant to division 104 of the Criminal Code (being the schedule known as such to the Criminal Code Act 1995 (Cth)—hereafter, “the Code”): Booth v Brookman [2021] FCA 767 (Snaden J). The order bound the respondent and the matter has since been scheduled for a confirmation hearing under s 104.14 of the Code, which will begin on Monday, 31 January 2022.

2    By an interlocutory application dated 20 January 2022, the applicant sought orders to amend the interim control order pursuant to s 104.11A of the Code, as well as other, related relief. That application was supported by an affidavit affirmed by the applicant’s solicitor, and was the subject of correspondence between the parties and my chambers in the days following its filing. By that correspondence, it emerged that the proposed amendments (to which I shall shortly advert) were consented to, as was the application being determined in chambers.

3    On Monday, 24 January 2022, I resolved to grant in chambers relief in the form that was sought. I undertook to provide brief reasons for doing so, which are set out below.

4    The amendments proposed to be made to the interim control order are short in compass and simple in application. On 5 November 2021, the respondent was arrested and remanded into custody. An application for bail was made but later withdrawn, and the respondent remains in custody presently. The interlocutory application now in focus proposes that the interim control order to which he is subject should be amended so as to suspend, for so long as the respondent remains in custody, the application of the controls for which it provides.

5    Section 104.11(2) of the Criminal Code confers upon the court a power to amend interim control orders:

104.11A Varying an interim control order

(1)    An application to vary an interim control order may be made to the issuing court by:

(a)    the person in relation to whom the order is made; or

(b)    a senior AFP member.

(2)    The issuing court may vary the interim control order, but only if the court is satisfied that:

(a)    written consent to the variation has been given by:

(i)    if the application is made by the person in relation to whom the order is made—a senior AFP member; or

(ii)    if the application is made by a senior AFP member—the person in relation to whom the order is made; and

(b)    the variation does not involve adding any obligations, prohibitions or restrictions to the order; and

(c)    the variation is appropriate in the circumstances.

(3)    A variation begins to be in force when the order for the variation is made, or at a later time ordered by the issuing court.

6    None of the three criteria that condition amendments to interim control orders is here in issue. The first two are matters of record that permit of no relevant doubt. The third involves an assessment of relevant facts. It is apparent that the amendments are proposed primarily (if not entirely) for the respondent’s benefit: namely, so as not to unduly burden him, or otherwise involve him in unavoidable or technical breaches of the existing interim control order (as it presently stands), for so long as he remains in custody. I am satisfied that all three of the criteria recorded in s 104.11A(2) of the Code are, in the present circumstances, met.

7    The remaining orders sought by the interlocutory application (to which the respondent also consents) are designed to protect from disclosure information contained within what is quite plainly a sensitive witness statement. The statement in question is substantially identical to a document filed earlier in the history of this matter. That document was, in turn, the subject of orders equivalent to those that are sought now. Just as those orders were appropriate then, so too are the equivalent orders that are sought now. They will be made.

Associate:

Dated:    25 January 2022