A3 v Australian Crime Commission

REASONS FOR ORDERS 1 On 21 July 2006, I published to the parties my interim conclusions on the question of whether certain documents were prima facie subject to legal professional privilege. I directed that the reasons were not to be published until counsel had the opportunity of considering whether they wished to seek orders that the reasons not be published or not be published except in a redacted form. The order was made pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) ('the Act'). 2 Since the publication of my reasons to the parties, the Australian Financial Review has made a request for access to the reasons. I am persuaded that it would not be in the interests of justice for the reasons to be published openly in the form in which they were made available to the parties. However, in the interests of open justice, I consider that it is desirable for general reasons for the interim conclusions that I have reached to be published and I have now made publicly available, in an abbreviated form, my reasons for the conclusions that I reached. 3 Section 50 of the Act provides that the Court may, at any time during or after the hearing of a proceeding, make such order forbidding or restricting the publication of particular evidence or the name of the party or witness as appears to the Court to be necessary in order to prevent prejudice to the administration of justice. In deciding whether to make an order under s 50, the Court must consider the competing and public interests of open justice, on the one hand, and preventing prejudice to the administration of justice, on the other. Open justice can result in prejudice where the publication of particular information might tend to frustrate or impede the administration of justice. 4 At the commencement of the proceeding, I made orders waiving the requirement of the Federal Court Rules that the name and address of parties be specified in pleadings filed with the Court. I directed, however, that the name and address of the applicants be recorded on a document that has been placed in a sealed envelope to be kept with the papers and not to be opened except by order of the Court. I made that order at the request of both parties, without full argument. The reason for making the orders is that another Judge of the Court had made similar orders in relation to another proceeding in which at least one of the present applicants was involved. There is a connection between that proceeding and this proceeding. For the reasons given by Allsop J in C v Australian Crime Commission [2005] FCA 1736, I consider that it is appropriate to continue the regime under which the names of the present applicants are not to be disclosed without further order of the Court. 5 I am mindful of the important consideration that the administration of justice must be conducted openly. However, I am persuaded that publication of the identity of the applicants in this proceeding and the identity of other persons named in the disputed documents could enable persons who have appeared and given evidence at secret examinations conducted by the Australian Crime Commission ('the Commission') to identify other persons who have given evidence at secret examinations. That could possibly lead to communication between prospective witnesses and tainted evidence as a consequence. 6 The legislative framework of the Australian Crime Commission Act 2002 (Cth) assumes that the successful prosecution of complex and serious white collar crimes may depend upon the Commission's coercive and investigative powers under that Act being exercised in secret. I am persuaded that the public's interest in open justice is in the present case outweighed by the public interest in preserving the secrecy and integrity of the Commission's investigation. For that reason, I propose to maintain the current regime at least until the resolution of the current special investigation. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.