DCL22 v Sage

1. The applicant be granted an extension of time for the filing and serving of the application for leave to appeal to the date of the filing of the application for an extension of time.
2. Leave to appeal be refused.
3. The applicant pay the respondents' costs of the application for an extension of time, the application for leave to appeal and for the argument of the appeal that took place.
4. The parties have liberty to file and serve, within 7 days, submissions as to subs 20(1A) of the Federal Court of Australia Act 1976 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 Before the Court are: an application for an extension of time in which to file an application for leave to appeal from orders of the primary judge upholding claims for public interest immunity in respect of documents of the Australian Crime Commission (the ACC or the Commission); if an extension of time be granted, an application for leave to appeal from those orders; and, if leave be granted, an appeal in relation to those orders; and an application in the original jurisdiction of the Court for judicial review under s 39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a decision by an examiner, an officer of the Commission to issue a summons against DCL22 to give evidence. The summons is what is called a post-charge summons contemplated by s 28 of the Australian Crime Commission Act 2002 (Cth). 2 DCL22 is facing serious charges [REDACTED]. 3 The documents over which public interest immunity was claimed are parts of the reasons of the examiner explaining why he reached the relevant state of satisfaction of reasonable necessity for the issue of the post-charge summons. 4 Subsection 28(1) of the Australian Crime Commission Act 2002 (Cth) is in the following terms: (1) An examiner may summon a person to appear before an examiner at an examination to do either or both of the following: (a) give evidence; (b) produce any documents or other things referred to in the summons; if the examiner is satisfied that the summons is: (c) in all cases-- reasonable in all the circumstances; and (d) in the case of a post-charge, or post-confiscation application, summons-- reasonably necessary for the purposes of the relevant special ACC operation/investigation even though: (i) the person has been charged or the confiscation proceeding has commenced; or (ii) that charge or proceeding is imminent. 5 Paragraph 28(1)(d) concerns a summons in the case of a charge having already been laid. By subsection 28(1) an examiner (here, Mr Sage) may summon a person to appear if the person (Mr Sage) is satisfied that issuing the summons is reasonably necessary for the purposes of the relevant special ACC operation/investigation. 6 The state of satisfaction of the examiner is reviewable under s 75(v) of the Constitution by reference to well-known principles such as those expressed in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 and Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353. In respect of such review it would be necessary to demonstrate that the state of satisfaction was not open to the examiner or could not lawfully have been reached on the material before him or her properly construing the legislation. 7 The matter in the original jurisdiction came to the Full Court after the parties, through the primary judge, sought expedition of the matters. After considering the nature and apparent urgency of the matter, I considered that a direction under subs 20(1A) of the Federal Court of Australia Act 1976 (Cth) would be appropriate in order that the original jurisdiction matter could be heard with the appeal, if granted. 8 On calling on the matters for hearing on Monday 28 November, it became apparent that the application for an extension of time and leave to appeal and the appeal, should leave be granted, should be heard first. No argument and no substantive advancement of the original jurisdiction matter took place, though evidence was formally read in the application by the applicant. These reasons are only in the matter in the appellate jurisdiction. 9 At the time the matter came on, I assumed I had formally made a subs 20(1A) direction. In fact, no such direction had been made or executed. 10 In the light of my view as to the disposition of the application for leave to appeal, I do not consider that the original jurisdiction matter is of sufficient importance for a direction under subs 20(1A) to be made. I am therefore minded simply to remit the original jurisdiction matter to the primary judge for disposition. However, given my earlier view and my oversight in respect of the making of a direction pursuant to subs 20(1A), and that these reasons and orders deal in substance with the appellate jurisdiction, the parties should be heard on that course of action. 11 The decision of the primary judge (DCL22 v Sage [2022] FCA 1310) set out the history of the proceeding, the statutory scheme and the legal principles involved. Subject to the argument referred to below, there was no complaint as to her Honour's setting out of those legal principles at J[21]-[36]. 12 The Commonwealth relied upon the evidence of a Mr Halls who was the Commission's National Manager of Examinations. That evidence was contained in an open affidavit of 5 October 2022 and a confidential affidavit dated 7 October 2022. The material over which public interest immunity is claimed was not examined by the primary judge. It was redacted from the affidavits to which I have referred. There is, within the affidavit evidence of Mr Halls, the statement of reasons for the issue of a summons of some 5 pages of Mr Sage which dealt in part with his state of satisfaction. Relevant parts of those reasons were redacted (albeit not heavily). Also within the affidavit evidence is a document entitled 'Application for the Issue of a Summons' of some 28 pages which includes a 'Statement of Facts and Circumstances' signed by another officer of the Commission, being a document that Mr Sage considered for the purposes of determining whether to issue the summons. This document may be described as quite heavily redacted, including as to the surrounding factual circumstances and, of particular significance to the present matter, as to why the summons is reasonably necessary. Although, there is non-redacted material in the affidavits that gives some foundation for Mr Sage's state of satisfaction. 13 Mr Halls gave evidence as described by the primary judge at J[39]-[41] as follows: [39] Mr Halls gives evidence in his open affidavit that disclosure of the redacted material would, or would tend to: prejudice the special ACIC investigation, which is ongoing, by disclosing the objectives of that investigation, the targets of that investigation, and the state of the intelligence holdings of the ACIC and other law enforcement agencies in relation to that investigation; undermine the effectiveness of any examinations which may be conducted and the purposes of that investigation; and reveal sensitive law enforcement methodologies. These are recognised bases of a public interest claim. [40] Mr Halls deposes that the effectiveness of the special ACIC investigations is dependent to a large extent on its capability to gather and assess intelligence and to apply safeguards to protect it. He said that this effectiveness would be undermined if the intelligence gathered by ACIC were to be disclosed publicly, particularly during an ongoing investigation. He gave evidence that for the reasons he gave in the open and confidential affidavit, it would be injurious to the public interest for the redacted material to be disclosed because this could be used by persons involved in serious and organised criminal activity to understand the state of ACIC's intelligence holdings and sensitive law enforcement methodologies, as well as to identify sources and targets of past and ongoing investigations by the ACIC. Such disclosure would undermine the ability of the ACIC to exercise its statutory functions. [41] I have also had regard to the Mr Halls' confidential affidavit, which the second respondent refers to in its written submissions as identifying an additional ground. 14 In her Honour's consideration of the matter, her Honour said the following at J[43]-[45]: [43] I have already referred above to the observations of Hunt CJ in Attorney-General v Stuart. The ACIC refer, in particular, to three other cases, Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356 (Barnes v Boulton), National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 (National Companies and Securities Commission) and Harper v Costigan (1983) 72 FLR 140) (Harper v Costigan), which make observations to the same effect. [44] In Barnes v Boulton, Finn J observed at [25] that when considering a submission that there is an obligation pursuant to s 28(1A) of the ACC Act to give reasons for issuing a summons, "the Courts have shown an understandable reluctance to occasion the compromise of a criminal investigation by requiring the premature disclosure of information concerning that investigation". In National Companies and Securities Commission at 323-324, Mason, Wilson and Dawson JJ observed: It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry. [45] In Harper v Costigan, Morling J at 154 described as "cogent" the reasons given by Royal Commissioner Costigan for refusing to furnish a statement of reasons for his decisions to issue summonses stating: If law enforcement agencies generally, and Royal Commissions such as mine in particular, are compelled to reveal their knowledge of sophisticated criminal activities point by point as the knowledge is gained, then the investigations into those activities will swiftly founder. The criminals engaged in them will be warned as to the progress of the investigations and will thus be equipped to counter its inquiries by such means, lawful and unlawful, as they choose to adopt. It would be quite contrary to the public interest to compel such disclosure as the investigations proceed. 15 At J[46] her Honour referred to the possibility of material in the redacted parts that may assist the applicant in the judicial review application: On the other side, the public interest in disclosure is that there may be material in the redacted parts of the documents over which a claim is made which might assist the applicant in his judicial review application. Although that was not expressly articulated by the applicant, I take that to be the position advanced. It was no higher than that. Rather, the applicant's submission was that it is uncontroversial that the scales in an immunity claim may tip differently depending on whether the proceeding is civil or criminal, and so the circumstances in which he is seeking judicial review, being the "enforcement of statutory and constitutional limits of exercise of executive power", should inform the balancing exercise in an analogous way. 16 What appears at J[46] contains what might be called an echo of the argument that was elaborated and developed in written submissions and later further in oral address in the application before us. That is, that there is within the dichotomy of civil or criminal proceedings a recognition that there is an enforcement of statutory and constitutional limits of the exercise of executive power which here affect the criminal process. 17 At J[50]-[53] her Honour weighed the matters in accordance with the instructions she gave herself by reference to principle and said the following: [50] I accept that there are conflicting aspects of the public interest, and therefore that it is necessary to undertake the balancing exercise referred to by Gibbs CJ in Alister v The Queen. [51] As I have already explained, I accept the evidence of Mr Halls. The ACIC investigates serious and organised crime. It can readily be accepted that, as Mr Halls states, its ability to perform its function is dependent to a large extent on its capability to gather and assess intelligence and to apply safeguards to protect it. It can readily be accepted that if the objects of an investigation, its targets, its intelligence holdings in relation to it (including with other law enforcement agencies), and the methods used, were disclosed, it would not only affect this investigation but would undermine the effectiveness of the ACIC to fulfil its functions. Although there are redactions in the documents provided, there is information provided. Moreover, the documents are structured in such a way that they reflect the topics to which the redactions are addressed. [52] Balancing all of the relevant considerations in this case, I am satisfied that the balance weighs in favour of non-disclosure on the basis of public interest immunity. On the evidence before me, the Commonwealth has established its claim for public interest immunity. [53] As explained above, I have considered the open and confidential affidavit. The confidential affidavit and unredacted material were provided in separate sealed envelopes. In reaching the conclusion that the claim is established I have not accessed the unredacted material. 18 It is important to understand that before her Honour the arguments were put in a binary way: should the claim for public interest immunity be upheld or not. Further, no one either requested or required her Honour to look at the redacted portions of Mr Sage's reasons, unless her Honour came to the view for herself that she needed to. Indeed, the Commonwealth submitted that her Honour should not look at the redacted material unless she found it necessary. Nothing to the contrary was put on behalf of DCL22. 19 As her Honour's reasons make clear, her Honour read and considered both the open and confidential affidavits of Mr Halls, but did not read or consider the redacted material. Both the open and confidential affidavits of Mr Halls were before this Court and were considered in order to be placed in the shoes of the primary judge. However, like the primary judge, this Court did not consider the redacted material given that here the Full Court's concern was whether the primary judge erred, not making its own public interest immunity determination. 20 Essential to the arguments on appeal was that the Constitutional minimum requirements of judicial review under s 75(v) (and thus s 39B(1)) described in Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 demanded that her Honour look at the redacted material and to consider the question and weigh in the balance the importance of the judicial review of executive action as part of the weighing process. This was developed in argument in effect to require the primary judge to weigh these matters in the balance by recognising the ability to protect the public interest not just by a blanket public interest immunity claim being upheld, but also by fashioning a regime whether through limited disclosure to counsel retained or special counsel in order that the judicial review of the executive action can be effected by reference to all material that was before the decision maker (the examiner). 21 Thus it was submitted that it was necessary for the judge to look at the whole document and bring to bear in the weighing process a consideration of all of it, and the importance of its contents to the judicial review process, recognising that in a post-charge summons the review of the satisfaction of the reasonable necessity could have a direct relationship with the integrity of the criminal justice process. 22 It was submitted that this more nuanced approach to the claim for public interest immunity was demanded by the Constitutional imperative of the entrenched minimum standard of judicial review. 23 None of this was put to the primary judge. The respondent Commonwealth argued that the way the matter was being put to this Court was in substance how it was put to the primary judge. With the utmost respect, plainly, that is not so. 24 First, it was now said that the primary judge erred as a matter of principle by not looking at the redacted material. 25 Secondly, this was put when no party required her Honour to examine the material and to exercise that part of her procedural discretion in that fashion. It was only put by the Commonwealth (and not contested by the applicant) that it was only if her Honour was not able to reach a conclusion on the public interest immunity claim without looking at the redacted material that she should look at it. 26 Thirdly, now the applicant seeks to move away from the binary approach to public interest immunity or no public interest immunity to a more nuanced approach where the public interest can be protected by some confidentiality regime worked out and the documents made available to counsel, whether retained or special, to assist in the judicial review argument. 27 Fourthly, the working through of such a regime, if it were to be decided upon, is not just a question of some judicial technique, but would or may require evidence as to the practicality of the Court being able to protect the vital interest of the public in the particular circumstances in the investigation of very serious criminal activity. 28 As I earlier said, the primary judge had a faint echo of the argument before her as described in J[25]. It may be putting it too highly even to call it an echo. The error now asserted was in the qualitative development of the submissions that there was an error in principle in not looking at the redacted material and not weighing it by reference to considerations of judicial review and assessing its importance for such judicial review proceedings. Senior Counsel for the applicant conceded, properly, that the nuanced approach to the undertaking of the evaluation of the public interest immunity claim contended for by the applicant on appeal was not put below (see T.27-28 and T.30). 29 There can be no doubt that what the appellant is now asking for is an entirely different, more detailed, and more subtle exercise than was engaged in by the primary judge according to established principle and according to the submissions of the parties made before her. 30 How in an appropriate case public interest immunity and the necessity for meaningful minimum judicial review in the light of Graham might be worked through is or may, in any given circumstances, be an important question. The protection for the judicial review proceedings may lie in how the judge in the public interest immunity application approaches the material over which immunity is claimed. It may be that the appropriate approach in any given case is to look at the material and assess the broad merits of the application for judicial review in the light of all the material. If a case impugning the decision is weak, the public interest immunity protection may be more likely than where the case against the impugned decision is manifestly strong. In the latter case, in weighing the balance, there may be a call not to grant unqualified public interest immunity but to fashion some form of confidentiality protection and make available under some regime the documents to counsel to advance the judicial review. 31 However, here, the case argued before was quite different to that which was run on appeal. The case propounded on appeal would or may require evidence as to the likelihood or practicality of any regime protecting the public interest if the documents over which public interest immunity is claimed were made available for the purposes of the judicial review proceeding. 32 Looking at the material that was before her Honour, there was material which indicated that there could be seen to be a rational or reasonable basis for the satisfaction. The non-redacted parts of Mr Sage's reasons may be said to include a reasonably clear indication as to why he concluded that the post-charge examination of the applicant was reasonably necessary and do not appear to disclose on their face any lack of appreciation by Mr Sage, or of the person seeking the issue of the summons, of the significance of the summons being issued. Put another way, there was no material which indicated that the state of satisfaction as to reasonable necessity was likely to be misconceived or irrational or based on some misconstruction of the statute. 33 In my view, in all the circumstances, it would be wrong to grant leave to appeal to run a new case which would involve quite different considerations put to the primary judge and, in all likelihood, would require the calling forth of evidence as to the practicality of the protection of the public interest if the documentation and information were made available to contest the judicial review proceedings. 34 No error of principle or fact was shown in how her Honour dealt with the arguments and materials put before her. 35 The application for an extension of time should, however, be granted. The applicant was only one day late. The delay has been explained. The extension of time was only opposed upon the perceived lack of merits of the argument. Thus, I would extend time for filing and serving the application for leave to appeal up to and including the date of filing of the application for an extension of time. 36 I would however, refuse leave to appeal for the reasons that I have indicated. 37 I would make the following orders: (1) The applicant be granted an extension of time for the filing and serving of the application for leave to appeal to the date of the filing of the application for an extension of time. (2) Leave to appeal be refused. (3) The applicant pay the respondents' costs of the application for an extension of time, the application for leave to appeal and for the argument of the appeal that took place. (4) The parties have liberty to file and serve, within 7 days, submissions as to subs 20(1A) of the Federal Court of Australia Act 1976 (Cth).