Federal Court of Australia

Purcell (Examiner) v LAZ24 (No 2) [2025] FCA 498

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s interlocutory application dated 6 May 2025 be dismissed.

2.    The Respondent is to pay the Applicant’s costs of the application (constituted by a “notice of motion” dated 6 May 2025) to be agreed or assessed.

3.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(a) and (c):

(a)    These unredacted reasons for judgment not be published and not be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of the Court for a period of seven days.

(b)    Within seven days the parties inform the Associate to Hill J of whether the parties consider that any redactions to this judgment are required and, if so, provide a proposed redacted version of the reasons for judgment which the parties consider is appropriate for publication, and indicate whether it is sought to extend the operation of the order in paragraph (a) above.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    The Court has sentenced the Respondent (LAZ24) for the offence of contempt of the Australian Criminal Intelligence Commission (ACIC), constituted by his failure to answer questions during a compulsory examination conducted under the Australian Crime Commission Act 2002 (Cth) (ACC Act): Purcell (Examiner) v LAZ24 [2025] FCA 413 (LAZ24 (No 1)). At the handing down of that judgment, LAZ24 sought to make an oral application that the orders made in this proceeding which prevent disclosure of his identity be lifted. Pursuant to orders made at the hearing, LAZ24 has now filed a notice of motion seeking that the orders restricting the publication of LAZ24’s name be revoked. The parties have each filed written submissions, and the matter has been determined on the papers.

2    For the following reasons, the application is dismissed. There is no reason to depart from the usual position as to costs. I will make similar provision as before for the parties to confer on whether any redactions should be made to this judgment before it is published.

Consideration

3    Suppression orders (Dec 2024): On 18 December 2024, Thawley J made consent orders, which included the following orders made under the Federal Court of Australia Act 1976 (Cth) to prevent the disclosure of certain information:

    Order 1 ordered pursuant to s 37AF(1)(a) of the Act, on the grounds in s 37AG(1)(a) and (c), that until 5 December 2034 the disclosure (by publication or otherwise) of specified categories of information is prohibited. One category is the name, address and any other information that directly or indirectly identifies LAZ24 (Order 1(a)).

    Order 2 provided that disclosure to and between specified persons was not prohibited by Order 1; for example, disclosure to and between the parties and judges of the Court.

    Order 3 ordered that LAZ24 is to be identified by a pseudonym during the course of the proceeding and in any documents filed in the proceeding.

    Order 4 ordered pursuant to s 37AF(1) of the Act and r 2.32 of the Federal Court Rules 2011 (Cth) that all documents filed with the Court in the course of this proceeding are to be treated as confidential to the parties and marked as such on the Court’s electronic file.

    Order 5 ordered pursuant to s 17(4) of the Act, on the grounds that the order is necessary in the interests of justice, that persons other than the parties, their legal representatives and members of staff of the ACIC be excluded from any hearing held in the proceeding. At the sentencing hearing, I varied this order to permit a number of persons (described to me as LAZ24’s family) to attend that hearing: see further [14] below.

4    In a document titled “notice of motion” dated 6 May 2025 apparently under the Uniform Civil Procedure Rules 2005 (NSW), LAZ24 seeks to have the orders made by Thawley J in relation to suppression of his name vacated, replacing the pseudonym “LAZ24” with his name. In effect, he seeks to have Orders 1(a) and 3 revoked. The Court has focused on the substance of this document, not its deficient form. The critical order for these purposes is Order 1(a): the operation of Order 3 (which governed how LAZ24 was to be identified during the course of the proceeding and in documents filed in the proceeding) is spent.

5    Suppression or non-publication orders – general principles: The power to make Orders 1 and 3 derives from ss 37AF and 37AG of the Act.

    By s 37AF(1)(a), the Court may, by making a suppression order or non-publication order on grounds permitted by Pt VAA of the Act, prohibit or restrict the publication or other disclosure of information tending to reveal the identity of or otherwise concerning any party to a proceeding before the Court.

    By s 37AG(1), the Court may make a suppression order or non-publication order on one or more of the grounds set out, which include:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

…

(c)    the order is necessary to protect the safety of any person;

…

6    In Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377, the Full Court set out the following principles in relation to the making of suppression or non-publication orders under s 37AF of the Act:

[8]    Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

[9]    The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [21].

7    To establish that an order under s 37AF is “necessary to prevent prejudice to the proper administration of justice” within the meaning of s 37AG(1)(a), the party seeking that order must “identify the contended prejudice to the proper administration of justice that would result if the order is not made”, and identify the link “between the contended harm and s 37AG(1)(a)”: Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; (2023) 296 FCR 272 at [90], [93], [95] (the Court). The necessary link between the contended harm to the administration of justice and s 37AG(1)(a) may be established by evidence or made through argument: Lee at [95].

8    This last point is important, because LAZ24’s arguments appear to assume that the current orders must fail for a lack of evidence. However, Lee establishes that, while there must be a proper basis for concluding that a suppression order is “necessary”, that proper basis may sometimes be established by argument (here, derived from the scheme of the ACC Act).

9    In this case, I would place no significance on the fact that the application for the suppression orders made by Thawley J was described as an “interlocutory” application. Those orders on their face were intended to have a much broader operation than for the duration of the hearing.

10    Suppression orders and ACIC examinations: Here, an important factor relevant to the making of suppression orders is the scheme in the ACC Act to preserve the strict confidentiality of compulsory examinations under that Act. That is not to say that the ACC Act dictates the answer under ss 37AF and 37AG of the Act. However, the provisions of the ACC Act, and their application to the facts of this case, is a relevant matter in deciding whether a suppression order is necessary to prevent prejudice to the proper administration of justice: see Lee at [99].

11    In LHRC v Deputy Commissioner of Taxation (No 4) [2015] FCA 70; (2015) 326 ALR 150, a person who had been the subject of a compulsory examination under the ACC Act sought suppression orders preventing the disclosure of certain information (which included the transcript of the compulsory examination), and a pseudonym order. After hearing argument on the point, Perry J made orders that are substantially similar to those made by consent by Thawley J in this case.

12    Perry J concluded that orders (relevantly) protecting the identity of the examinee should be made, because of the potential prejudice otherwise to the administration of justice and the “chilling effect” that publication of the examinee’s identity may have on the processes of the ACIC: LHRC (No 4) at [19]. Her Honour then stated (at [20]):

Here, the abrogation of the privilege against self-incrimination in ACC examinations reflects the priority afforded by the Parliament to the public interest in the ACC being armed with full and effective investigatory powers into serious and organised crime over the rights of individuals. By way of partial redress for the loss of that privilege, among other things examinations are held in private and s 25A(9) and (11) of the ACC Act require non-publication directions to protect an examinee against the potential impact that disclosure of his or her identity and of the content of an examination might have on his or her safety or reputation, as well as on the capacity to hold a fair trial. To permit this information therefore to be released publicly, that is without restriction, would cut across that scheme and would not be a step lightly taken. This is particularly so given:

(a)    the nature of the conduct which was the subject of the examination;

(b)    the fact that non-publication directions are in place (albeit not binding on the Court) which otherwise continue to protect the identity of the first applicant, as well as the content of his evidence and the fact that the examination was held …; and

(c)    the evidence (which, while hearsay, was unchallenged) as to the first applicant’s understandable concern about damage to his reputation if the fact that he attended an ACC examination is made public, or prejudice to a fair trial if he is charged at some later time.

13    In addition to s 25A(9) and (11) of the ACC Act (referred to by Perry J), it might also be noted that the ACC Act would usually restrict an examinee from disclosing the fact that he or she has been summonsed to an examination (see ss 29A and 29B). In this case, the summons issued to LAZ24 contained a notation that he was prohibited from disclosing the fact of examination except in the circumstances set out in the summons (such as for the purposes of obtaining legal advice relating to the summons).

14    It is true that some of the factors identified by Perry J in LHRC (No 4) do not apply here. Based on the evidence before the Court, this is not a case where an examinee under the ACC Act is also potentially a criminal defendant who may be charged with offences relevant to the subject-matter of the special ACC operation. In that situation, it is necessary to keep the identity of the examinee secret, to prevent prejudice to the fairness of any later criminal trial. Further, it would appear from the making of this application that LAZ24 does not subjectively fear harm (at least not now) from being identified in a judgment as a person who was summonsed to a compulsory examination under the ACC Act.

15    Even so, there is a clear potential for prejudice to the administration of justice if LAZ24 were to be identified now. Apart from anything else, one purpose of the sentence imposed on LAZ24 is to provide an incentive for him to purge his contempt: LAZ24 (No 1) at [63], [69]-[70]. It would directly contradict that purpose to identify LAZ24 now, because that would create the obvious risk that LAZ24 could be subjected to pressure (either through a threat to him in prison or a threat to his family) to maintain his current silence. I am satisfied that the risk of prejudice to the administration of justice would range above the level that can reasonably be regarded as acceptable: cf AB v CD [2019] HCA 6; (2019) 364 ALR 202 at [15] (Nettle J) (considering the risk of harm to a person). That said, this prejudice would not justify suppression orders that operate until 2034 (as provided by the Order 1), but it does provide a complete reason not to make the orders sought by LAZ24, which is simply to revoke Orders 1(a) and 3.

16    However, I am also satisfied that to disclose LAZ24’s identity would prejudice the administration of justice more broadly, because of the chilling effect that this publication may have on the processes of the ACIC. I accept the Applicant’s submission that there is an unacceptable risk that to disclose LAZ24’s identity would cause current and future examinees to question whether the ACIC can really protect their identities from becoming known. It is true that the examinee in this case has sought to have the anonymising order lifted, but the administration of justice is concerned with systemic and communal interests, not solely the subjective wishes of an individual. There is an obvious and unacceptable risk that future examinees could be less cooperative in complying with their statutory obligations at ACIC examinations.

17    And as the Applicant points out, confidentiality orders similar to those made by Thawley J have been made by this Court in cases including but not limited to the proceedings that resulted in Anderson v BYF19 [2019] FCA 1959; Australian Crime Commission v DTO21 [2022] FCA 288; Sage v CFT22 [2022] FCA 1028; Lusty v DER22 [2023] FCA 255; Lusty v DEZ22 [2022] FCA 1581; and Sage v AYI23 [2023] FCA 1336. Those cases do not relieve me of the need to consider whether there is a proper basis for making the orders in the light of the individual circumstances of this case, but this consistent practice is notable.

18    Orders have utility: LAZ24 also submits that there is no continuing utility to the orders suppressing his identity. In large part, these arguments as to utility proceed on too narrow a view of the interests protected by those orders, and fail to take account of the matters referred to above. LAZ24 also refers to the fact that a number of his family were permitted to attend the sentencing hearing, on the request of LAZ24 made through his lawyers as judgment was about to be handed down. LAZ24’s submissions state there said to be “an estimate of twenty to thirty persons … including children” present. My own observation is that nothing like that number were present. Further, I informed those permitted to attend of the existing confidentiality orders, and the pressing need for them not to talk about the proceedings. Whatever the precise number, this limited disclosure of LAZ24’s identity was not so widespread as to make it futile to seek to keep his identity secret now: cf Ogawa v President of the Australian Human Rights Commission [2022] FCAFC 160; (2022) 294 FCR 221 at [39], where on the facts the use of a pseudonym was “wholly ineffective” in anonymising Dr Ogawa’s identity.

19    Costs follow the event: LAZ24 submits that no order should be made as to costs, citing R v Martinez (No 7) [2020] NSWSC 361 at [33]. However, the reason that no costs order was made in that case was because Johnson J was exercising criminal jurisdiction, and relevant State law did not allow for costs in those proceedings: Martinez (No 7) at [31]-[44]. But proceedings under s 34B of the ACC Act are not criminal proceedings for these purposes.

    By s 34B(5), the Court “may deal with the person as if the acts and omissions involved constituted a contempt of that Court”. Accordingly, these proceedings have the same character as proceedings for contempt of this Court. That conclusion is not altered by s 34B(6), which applies the general principles of criminal responsibility in the Commonwealth Criminal Code (contained in the Criminal Code Act 1995 (Cth)) in determining whether a person has committed contempt: that merely reflects that contempt proceedings have some features in common with criminal proceedings, such as the standard of proof.

    It is well established that costs may be awarded in contempt proceedings. In Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 89, the High Court held that contempt proceedings “proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event”. That reasoning applies to this Court: see Microsoft Corporation v Marks [1996] FCA 709; (1996) 69 FCR 117 at 129 (Beaumont J, with Lindgren and Lehane JJ agreeing). Indeed, costs are often awarded on an indemnity basis in contempt proceedings, if a litigant has had to take further proceedings to enforce an order that has been breached by contempt: Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 at [192]-[198] (the Court). That is not this case, and costs should only be awarded on a party-party basis.

CONCLUSION

20    I am satisfied for the purposes of ss 37AF(1) and 37AG(1)(a) of the Act that Order 1(a) made by Thawley J is necessary to prevent prejudice to the proper administration of justice, and that Order 3 was necessary for those purposes and its operation is now spent. Accordingly, those orders should not be revoked, and the Respondent’s application must be dismissed with costs.

Associate:

Dated:    16 May 2025