Paragraph 39B(1A)(a) of the Judiciary Act
21 The application in this proceeding was made by the Commonwealth as the first applicant and the Commissioner of the Australian Federal Police as the second applicant. It seems likely, although we did not hear argument on the issue, that the Commissioner of the Australian Federal Police is the Commonwealth within the meaning of par 39B(1A)(a) of the Judiciary Act (Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219 at 232). Crucially, however, no challenge was made to the standing of the Commonwealth to institute the proceeding as the first applicant or to the bona fides of the naming of the Commonwealth as the first applicant.
22 It is clear that the Court has power to grant declaratory relief. The power to do so at the suit of the Commonwealth may be identified by necessary implication from par 39B(1A)(a) itself. Additionally, s 21 of the Federal Court Actprovides:
'(1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A suit is not open to objection on the ground that a declaratory order only is sought.'
23 Subject to the contention discussed below which relies upon the closing words of par 39B(1A)(c), this proceeding is thus a proceeding 'in which the Commonwealth is seeking … a declaration' within the meaning of par 39B(1A)(a) of the Judiciary Act. It is therefore necessary to consider whether the primary judge erred in concluding that there is no 'matter' within the meaning of s 39B(1A) in which the Commonwealth is seeking a declaration.
24 The term 'matter' is used in s 39B(1A) with the same meaning that it has in s 75, s 76 and s 77 of the Constitution (Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559 at [50]-[51]). In Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22 at 37 Mason, Wilson, Brennan, Deane and Dawson JJ said:
'When the word "matter" is used in Ch III of the Constitution in its ordinary prima facie sense of the subject matter for determination in a legal proceeding rather than the legal proceeding itself, it focuses attention upon the substance of the dispute. As so used, the word is a word of wide connotation: it is, and was in 1900, "the widest term to denote controversies which might come before a Court of Justice".' (citation omitted)
25 ASIC v Edensor is itself a case in which the High Court found that the Federal Court was seized of federal jurisdiction by reason of the identity of the moving party and the nature of the relief sought by that party. Gleeson CJ, Gaudron and Gummow JJ at [54] observed:
'The "matter" was a justiciable controversy identifiable independently of the proceeding brought for its determination. The focus of attention is that indicated by the joint judgment of five members of this Court in Crouch v Commissioner for Railways (Qld), namely "upon the substance of the dispute" and "the substantial subject matter of the controversy".'
26 In the present proceeding the Commonwealth asserts a common law right to protect the confidentiality of the contentious material. It seeks an order of this Court to achieve that end. The Commonwealth contends that the contentious material is material of a character that attracts public interest immunity under the common law of Australia. Reliance is placed on Jacobsen v Rogers (1995) 182 CLR 572 at 589 where Mason CJ, Deane, Dawson, Toohey and Gaudron JJ relevantly observed:
'Public interest immunity reflects public policy…although it has never been thought to be confined to judicial and quasi-judicial proceedings'.
27 The Commonwealth further contends that the earlier inadvertent and limited publication of the contentious material during the course of the committal proceedings has not destroyed its character as material that attracts public interest immunity.
28 At least the second, the fourth and the eighth to twelfth respondents, as the arguments on this appeal revealed, dispute the contentions of the Commonwealth identified in [26] - [27] above. They deny that the Commonwealth may be granted the relief that it seeks in this Court.
29 The above analysis reveals that there is a real controversy between the parties as to the entitlement of the Commonwealth to protect the confidentiality of the contentious material. The appellants are not seeking the answer to an abstract or hypothetical question (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582). It remains to be considered whether that controversy is justiciable.
30 In our view, his Honour's conclusion that the controversy between the parties was not justiciable in this Court is difficult to reconcile with the authorities, including the decision of the High Court in Sankey v Whitlam (1978) 142 CLR 1. Sankey v Whitlam itself arose out of a claim for public interest immunity (then known as Crown privilege) advanced before a magistrate conducting committal proceedings. The Commonwealth was not a party to the committal proceedings but counsel was granted leave to appear on behalf of the Commonwealth to object to the production of certain documents, which included Loan Council documents, covered by subpoenas duces tecum. The magistrate ultimately upheld the claim for privilege in respect of the Loan Council documents. The informant, Mr Sankey, then commenced proceedings in the Supreme Court of New South Wales for declarations that the documents to which the magistrate had accorded privilege should be produced and, if otherwise admissible, could be used in the committal proceedings. A cross‑claim filed in the Supreme Court gave the proceedings in that court the character of a cause arising under the Constitution or involving its interpretation. The proceedings were removed into the High Court under s 40 of the Judiciary Act. The jurisdiction there exercised was necessarily federal jurisdiction.
31 Before the High Court in Sankey v Whitlam it was argued that the court could not grant declaratory relief on the application of an informant in committal proceedings. It is not entirely clear from the report of Sankey v Whitlam whether this argument was advanced as a matter of jurisdiction or a matter of power (see Harris v Caladine (1991) 172 CLR 84 per Toohey J at 136; ASIC v Edensor per Gleeson CJ, Gaudron and Gummow JJ at [64]-[65]). The distinction is for present purposes immaterial. Gibbs ACJ at 21 noted that 'there have been many cases in which the courts have made declarations in relation to questions which could have fallen for decision in criminal proceedings'. At 25 the Acting Chief Justice said:
'In my opinion it would be within power to grant a declaration of the kind sought by Mr Sankey in the present case. It seems to me that when an informant has properly required the production on subpoena of an admissible document, and the Commonwealth has objected to the production of the document on the ground that the public interest requires that it should not be disclosed, it is possible to regard the Commonwealth as asserting, against the informant as well as against the court, a "right" to withhold production of the document, and that in those circumstances the court has power to grant declaratory relief if the objection is held to be untenable. The same reasoning would not justify the making of a declaration that documents for which privilege was not claimed should not be admitted, but as will appear I need not decide whether it would be proper to make a declaration in such a case.'
32 In Sankey v Whitlam Stephen J, with whom Aickin J generally agreed, expressed the issue in terms of jurisdiction. His Honour at 79 noted that the informant was entitled to institute the committal proceeding and that, having the carriage of the prosecution, the informant had caused subpoenas duces tecum to be issued. His Honour then observed at 79‑80:
'When objections to compliance with those subpoenas were raised, based upon claims to Crown privilege, that immediately affected the informant in the exercise of the rights to which I have referred. That the rights which the informant is asserting are not concerned with the defence of his own person or property is no reason to deny them recognition. They are entitled to such recognition and there is, accordingly jurisdiction to make declarations such as are sought.'
33 In the same case Mason J at 81 said:
'Initially there is the question whether declaratory relief of the kind sought should be granted in relation to issues arising in committal proceedings pending before a magistrate in a court of petty sessions. As the proceedings have been removed into this court, it is this court's jurisdiction to grant declaratory relief that is engaged. This court's jurisdiction to grant declaratory relief, delimited as it is by O 26, r 19 of the High Court Rules, is no less extensive than the jurisdiction conferred upon the Supreme Court of New South Wales by s 75 of the Supreme Court Act 1970. … Having regard to the breadth of our jurisdiction to grant relief of the kind sought, I see no impediment in point of jurisdiction to grant of declaratory relief in the present case. (citation omitted)
Order 26 rule 19 of the High Court Rules is in similar terms to s 21 of the Federal Court Act. Strictly speaking it is concerned with power rather than jurisdiction.
34 The remaining member of the High Court in Sankey v Whitlam, Jacobs J, did not expressly deal with the issue of whether the Court has jurisdiction, or alternatively power, to make the declaration sought. It would appear, however, that his Honour assumed that the Court could make the declarations sought although his Honour considered that the relevant proceeding had been instituted prematurely (at 102).
35 The High Court in Sankey v Whitlam examined the Loan Council documents in respect of which the Commonwealth had claimed immunity. It declared that certain documents, or portions of documents, were not privileged from production and that the magistrate was in error in upholding the objections taken by the Commonwealth to their production and disclosure. It seems plain that all members of the High Court, apart perhaps from Jacobs J, considered the dispute between, amongst others, the Commonwealth and Mr Sankey as to whether or not the Loan Council documents attracted public interest immunity to be justiciable in the High Court. That is, to be justiciable as an exercise of federal jurisdiction in a court other than, to use the words of the primary judge, 'the court in which the claim of public interest immunity arises'. There is no reason to conclude that the High Court would have taken a different view had the magistrate rejected the claim for privilege with the consequence that the Commonwealth, rather than Mr Sankey, approached the Supreme Court of New South Wales. It is also plain that, since the issue of whether the documents attracted public interest immunity was justiciable in the High Court following the removal of the proceedings into the High Court, it would also have been justiciable in the Supreme Court of New South Wales.
36 Had the proceedings not been removed into the High Court, the jurisdiction that would have been exercised in the Supreme Court would have been federal jurisdiction: 'there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court' (Felton v Mulligan (1971) 124 CLR 367 per Barwick CJ at 373 cited in ASIC v Edensor at [7]). Similarly, were the present controversy to arise for determination in the Supreme Court of New South Wales, as the respondents apparently envisage that it might, its determination in that court would involve an exercise by that court of federal jurisdiction (see s 39B of the Judiciary Act). Federal jurisdiction is, as we have noted above, a jurisdiction defined by reference to 'matters'. If a controversy is justiciable in the Supreme Court of New South Wales in the exercise of federal jurisdiction, logic dictates that it is a matter within the meaning of par 39B(1A)(a) of the Judiciary Act.
37 Guidance on the question of the justiciability of the dispute between the parties may also be gained from DPP v Smith (1996) 86 A Crim R 308. In DPP v Smith the New South Wales Court of Appeal and Court of Criminal Appeal, constituted in each case by Gleeson CJ, Clarke and Sheller JJA, sat together to give consideration to two appeals that concerned claims of public interest immunity that arose during the course of committal proceedings. Orders had been sought in the committal proceedings to protect from disclosure the names of certain persons who were police informers. The magistrate refused to make the orders sought. An appeal from the decision of the magistrate was instituted in the Court of Criminal Appeal. An application was also made to the Supreme Court in its supervisory jurisdiction for orders which would protect the names of the police informers from disclosure. That application was dismissed by a judge of the Supreme Court on the basis that the court had no jurisdiction to intervene to protect the public interest immunity claimed in the committal proceeding. An appeal from his Honour's decision was brought in the Court of Appeal.
38 In DPP v Smith the appeal from the decision of the magistrate was allowed. The appeal from the decision of the judge of the Supreme Court was stood over for further argument if judgment in that appeal were required by the parties. However, the court itself considered the material that was tendered before the judge of the Supreme Court and concluded that:
'in the circumstances that existed before the learned magistrate at the time of the application to her, and in the present circumstances as revealed by the evidence before this court, the case is one which has been shown to involve the public interest immunity claimed by the Attorney General, the public interest in preserving confidentiality in relation to police informers outweighs any countervailing public interest, and the making of the orders sought by the Attorney General is necessary for the administration of justice.'
39 DPP v Smith provides additional support for the conclusion that a claim for public interest immunity can give rise to a justiciable controversy in a court other than 'the court in which the claim of public interest immunity arises'. We doubt that the primary judge in this case intended to suggest that a claim of public interest immunity could not give rise to a justiciable controversy on appeal from the court in which the claim is first advanced. However, it is significant that the court in DPP v Smith gave consideration itself to material that was not before the magistrate. It did not adopt the course of directing the magistrate to reconsider the claim of public interest immunity according to law. That is, the court engaged in the process of evaluation that the primary judge in this case considered 'peculiarly and singularly the province' of the magistrate.
40 Another example of a superior court considering a claim for public interest immunity that did not initially arise in that court is provided by Commissioner of the Australian Federal Police v Poompiriyapinte (unreported, Supreme Court of New South Wales, Badgery‑Parker J, 28 August 1990). In that case the initial claim that certain information was in the public interest immune from disclosure had been made in the District Court in Sydney. The trial judge had rejected the claim. There was no right of appeal from his Honour's ruling. The Commissioner of the Australian Federal Police commenced a proceeding in the original jurisdiction of the Supreme Court claiming declaratory relief. Badgery‑Parker J considered it 'beyond argument' that the court had power to grant declaratory relief in the circumstances. The issue which troubled his Honour was whether the Supreme Court 'should grant declaratory relief in respect of proceedings before another court exercising and acting within the limits of its jurisdiction'. Ultimately his Honour held that, in the particular circumstances of the case before him, it was appropriate to grant declaratory relief.
41 The submissions of the media interests in the present case tended, in our view, to elide the distinction between the jurisdiction of the Court to adjudicate upon the applicants' claim for relief and the likelihood of the applicants' claim for relief succeeding. Where this Court's jurisdiction is properly invoked, the Court does not exceed its jurisdiction by adjudicating upon a case ultimately found to lack merit. Nor does it exceed its jurisdiction by adjudicating upon a case appropriate for summary dismissal on the ground that it fails to disclose a reasonable cause of action, or, although the present was not suggested to be such a case, on the ground that it is frivolous or vexatious or otherwise an abuse of the Court's process.
42 As we consider, for the reasons set out below, that the contention identified in the notice of contention filed by the media interests has no present relevance, we conclude that the primary judge erred in dismissing the application for want of jurisdiction.
43 Nothing that we have said in the course of reaching the above conclusion should be understood as implying that the appellants' claim for relief in this Court should succeed, or even that this Court is bound to determine the controversy between the parties. The Court may conclude that it is inappropriate for declaratory relief, which is discretionary in nature, to be granted. Gibbs ACJ observed in Sankey v Whitlam at 26:
'…a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.'
(See also Phong v Attorney‑General of the Commonwealth [2001] FCA 1241 (FC); (2001) 114 FCR 75).
44 The reluctance to which the Acting Chief Justice referred in the passage from Sankey v Whitlam cited above might be increased were the Court to be satisfied that subsequent events might impinge on the utility of the relief sought. Reluctance to grant relief, however, is not to be equated with an absence of jurisdiction to grant relief.