Clement v Comcare

REASONS FOR JUDGMENT 1 I have before me two notices of motion which were filed by the applicant, Ms Clement, on 28 April 2011 and 23 May 2011 respectively. The earlier of the two notices of motion seeks leave to appeal from a decision of Cowdroy J given on 21 April 2011, concerning the application and operation of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act): Clement v Comcare [2011] FCA 404. The later of the two notices of motion seeks a writ of mandamus under s 39B(1) of the Judiciary Act 1903 (Cth) to compel the Commonwealth Attorney-General to "comply with sub-section 38D(5) of the NSI Act". 2 These notices of motion are brought in the context of the principal proceeding, which involves an application filed under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) on 20 May 2010. The applicant, Kristine Clement contends that the NSI Act applies to the principal proceeding. On 31 May 2010 she served on the Attorney-General a notice that purported to be a notice under s 38D of the NSI Act. The notice was copied to Comcare and to the Court. Section 38D provides: (1) If a party, or the legal representative of a party, to a civil proceeding knows or believes that: (a) he or she will disclose national security information in the proceeding; or (b) a person whom he or she intends to call as a witness in the proceeding will disclose national security information in giving evidence or by the person's mere presence; or (c) on his or her application, the court has issued a subpoena to, or made another order in relation to, another person who, because of that subpoena or order, is required (other than as a witness) to disclose national security information in the proceeding; then he or she must, as soon as practicable, give the Attorney-General notice in writing of that knowledge or belief. 3 Before Cowdroy J Ms Clement sought a stay of the proceeding under s 38D(5) of the NSI Act pending the Attorney-General's response to the notice. His Honour held that the NSI Act does not apply to a civil proceeding unless the Attorney-General notifies the parties to that effect under s 6A(1) of the Act. Section 6A(1) provides that if: (a) the Attorney-General is not a party to a civil proceeding …; and (b) the Attorney-General gives notice in writing to the parties to the proceeding, the legal representatives of the parties to the proceeding and the court that this Act applies to that proceeding; then subject to subsection (5), this Act applies to the proceeding. 4 In the present case the Attorney-General has given no notice under s 6A(1) and, accordingly, his Honour held that there was no requirement for the proceeding to be stayed under s 38D of the NSI Act. Justice Cowdroy gave careful consideration to Ms Clement's submissions and explained his conclusion in some detail. It is not necessary to set out his Honour's reasons in any detail but is sufficient to note that his Honour took into account a range of extrinsic material to assist him in resolving "a degree of ambiguity in the Act" concerning "the relationship between and the operation of ss 6A, 38D, and 15A of the Act". His Honour concluded, at [37]-[39]: When the Act is viewed in conjunction with such extrinsic materials it becomes clear that the function of s 6A is to 'trigger' the operation of the Act, and the remainder of the Act (including s 38D) only becomes applicable once the procedure prescribed by s 6A is activated. Upon this interpretation, the Act does not apply to civil proceedings until the Attorney-General issues a notice pursuant to s 6A of the Act. Accordingly, as such notice has not been provided by the Attorney-General, s 6A(1) of the Act has not been 'triggered' and the Act is not applicable to these proceedings. As a result, the appellant's notice purportedly issued under s 38D(1) of the Act is a nullity and there is no need for the Attorney-General to respond to such notice nor any need for the Court to stay the proceedings pursuant to s 38D(5) of the Act.