The Major Crime (Investigative Powers) Act 2004 ('the MCIPA')

1. In correspondence on 4 June 2025, the applicant alerted the Court to the fact that, included in the documents the subject of their request, are six documents containing information restricted by the MCIPA. The information restricted in this way was released to the applicant following the ruling in Madafferi v The King [2023] VSCA 178 ('the MCIPA Ruling').
2. In addition to seeking a release from his Harman undertaking, the applicant seeks a variation of the MCIPA Ruling to allow that information to also be released.
3. In relation to this issue the Court received the following:

(a) Confidential submissions of the Chief Commissioner of Police on s 43A of the MCIPA filed on 7 July 2025; and

(b) Confidential submissions of the respondent on s 43A of the MCIPA filed on 8 July 2025.

1. The applicant did not seek to file anything in reply to these submissions.
2. By way of background, on 16 May 2023 the applicant applied to this Court to have restricted evidence made available to him pursuant to s 43A(5) of the MCIPA. On 7 August 2023 the Court allowed limited information to be made available to him in the form of an unredacted version of the ruling in respect of his application.[5]
3. Section 43A provides a framework by which restricted information collected pursuant to the MCIPA may, in limited circumstances, be used in extant criminal proceedings. The certification permitted by s 43A is available only where a person is charged with an offence before the court.
4. Pursuant to s 43A(1), if a court considers that it may be desirable in the interests of justice that restricted evidence be made available to a person charged with an offence before the court, or to a legal practitioner representing a person charged, the court, on the application of the Chief Commissioner, the Director of Public Prosecutions or the person charged, may give the Chief Examiner or the Chief Commissioner a certificate to that effect.
5. Following certification in respect of the restricted evidence and an assessment conducted of the evidence, a court might release restricted evidence to the person charged where the court assesses that the interests of justice so require. That assessment is to be made in the context of the criminal proceeding.[6]
6. The context for the assessment and release of evidence restricted by the MCIPA in Madafferi v The King [2023] VSCA 178 was these criminal proceedings. It is clear from authority that the assessment of whether justice requires the release of restricted evidence is to be conducted on a case-by-case basis. The release of the information restricted under the MCIPA was in the context of, and for, the applicant's purpose in this appeal proceeding and remains limited to that.
7. Further, it is clear from the legislative provisions that the evidence restricted by the MCIPA can only be considered for release in criminal proceedings and would therefore not be available for consideration in the immigration proceedings of the applicant.

Determination in respect of information restricted by the MCIPA

1. The information restricted under the MCIPA will need to be redacted or removed from any of the materials in respect of which the applicant is released from his undertakings.
2. Having determined the issue of information restricted by the MCIPA and described broadly the manner in which the express undertakings given should be resolved, I turn finally to the application before the Court; that is the application that the applicant be released from their implied Harman undertaking.

1. The Harman undertaking derives its name from the case Harman v Secretary of State for Home Department [1983] 1 AC 280. The undertaking is implied and is given by the parties to the Court that documents compelled to be produced in litigation will not be used for a purpose other than that for which they were produced.
2. It was reformulated by the High Court in 2008 in the case of Hearne v Street:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.

The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.[7]

1. A release from this obligation to the court can only be given by the court. Modification or release from the obligation is not exercised lightly.[8]
2. Where the undertaking applies, there are a number of factors to consider in respect of a release from it. A non-exhaustive list of them was included by Wilcox J in his judgment in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217:

they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.[9]

1. It was recognised by Lords Scarman and Roskill in Harman that:

The party for whose benefit the obligation was imposed may waive or accept or consent to the breach of, or non-compliance with, the implied undertaking.[10]

The Acquaro Documents and the release from the undertaking

1. I discern that the relevant considerations regarding a release of the Harman undertaking are an assessment of :

(a) The nature of the document;

(b) The circumstances under which the document came into existence;

(c) Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;

(d) The nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);

(e) The circumstances in which the document came into the hands of the applicant for leave;

(f) The likely contribution of the document to achieving justice in the second proceeding; and

(g) The attitude of the author of the document and any prejudice the author may sustain.

1. I have reviewed the Acquaro Documents.
2. I am satisfied that the nature of the documents, the circumstances in which they came into existence, and the circumstances in which they came into the possession of the applicant gives rise to the implied undertaking.
3. The likely contribution of the document to achieving justice in the second proceeding is deposed to by Ms Parker. She concedes a lack of expertise in the area of immigration law such that she is guided by the applicant's lawyers in those proceedings. She deposes that they inform her that the documents have a contribution to make in the case that the applicant will advance. I accept that she has been so advised and that the Acquaro Documents will be of assistance.
4. Some of the documents contain highly sensitive information such that the producing authority, the Chief Commissioner, has required an express undertaking being given by the applicant and respondent to the Court prior to the release of the documents to them.
5. Having required such an undertaking, their attitude to the release of both the implied and express undertakings is of significant weight but not solely determinative of a release from the Harman undertaking. In this case, the producing agency not only consents to a release from the implied undertaking, but is willing to consent to a limited release from the form of the express confidentiality undertaking previously given to allow the use of the Acquaro Documents in the second proceeding. Beyond the acquiescence in respect of the implied undertaking, the attitude of the Chief Commissioner in respect of this express undertaking is also of significance. As observed earlier, the Acquaro Documents have only come to be in the possession of the applicant following considerable litigation by the Chief Commissioner to protect the contents of those documents and so I attribute considerable weight to their agreement to the releases that they have provided.

1. In relation to the documents subject to the Harman undertaking, the Court releases the applicant from that undertaking in relation to the 'Acquaro Documents' for the sole purpose of their use in his immigration proceedings.
2. In relation to the express undertaking given by the applicant's legal practitioners, the Court will order a release upon the applicant's legal practitioners entering a fresh undertaking. The form of release drafted and provided to the Court on 11 August 2025 should be updated to include the name and court reference number for the applicant's immigration proceedings in which they are to be used, noting they are to be used for no other purpose.
3. The parties are to draft a release in similar terms in respect of the implied Harman undertaking and orders giving effect to this ruling. The orders and undertakings are to refer to the documents contained in the version of Index C provided to the Court on 11 August 2025 with the index annexed as a schedule to the orders and release.
4. To the extent that the documents contain information that is relevantly restricted by the Major Crime (Investigative Powers) Act 2004 or any other Act or order, the documents are to be redacted before they are shared.
5. Draft orders along with the releases described above to give effect to this ruling are to be prepared and provided to the Court within 7 days.

[1] Issues arose in respect of consistent identification of the documents in respect of which the applicant sought release. That controversy was resolved as this matter progressed but for convenience, the documents from which the applicant seeks a release from his implied and express undertakings are referred to as the 'Acquaro Documents' throughout this judgment.

[2] Madafferi v The Queen (2021) 287 A Crim R 380; [2021] VSCA 1; Madafferi v The King [2023] VSCA 178; Madafferi v the King [2024] VSCA 12; Madafferi v the King [No 2] [2024] VSCA 14; Madafferi v the King [2025] VSCA 114.

[3] All material provided to the Court in respect of the Harman undertaking application is listed at paragraph [7] below.

[4] Index C provided to the Court on 30 July 2025.

[5] Madafferi v The King [2023] VSCA 178.

[6] Jean Ross (a Pseudonym) v The Chief Commissioner of Police and the Chief Examiner (2014) 45 VR 220; [2014] VSCA 254, [72].

[7] Hearne v Street [2008] HCA 36, [96] (emphasis added).

[8] Deputy Commissioner of Taxation v Karas [2012] VSC 143, [23].

[9] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, [26].

[10] Harman v Secretary of State for Home Department [1983] 1 AC 280, 310, 313 (Lord Scarman), 322, 326 (Lord Roskill).