Parkin v O'Sullivan

"One of the difficulties of inquiring into intelligence and security matters and reporting outcomes is that much material is, by its very nature, very sensitive. The protection of collection methodologies and various sources means that there are appropriately circumstances in which disclosure cannot be made. In balancing security aspects against natural justice considerations, there are circumstances where it has traditionally been accepted that it is in the overall public interest for security considerations to be given precedence. The current situation is one such occasion.

While the precepts of natural justice would point to providing Mr Parkin with the details of the security assessment and allowing him to respond and suggest ways in which the evidence and considerations might be tested, security considerations of the kind described above would appear to reasonably preclude this. Even to attempt to allude in general terms to the elements of the security assessment would be problematic in this way." 10 The report does not refer to any formal legal basis for not providing Mr Parkin with the adverse security assessment or other documents relevant to his case. 11 The report refers to a further document prepared by the Inspector‑General. It is entitled "Comments on ASIO security assessment in respect of Mr Scott Parkin" and apparently discusses some details of the adverse security assessment. This document is classified and has not been provided to Mr Parkin or, for that matter, to the Court.

Mr Sagar and Mr Faisal 12 Mr Sagar and Mr Faisal are citizens of Iraq who have, since around September 2002, been held in Australian immigration detention in the Republic of Nauru. In or about September 2005, the Department of Immigration, Multicultural and Indigenous Affairs ('Department') determined that both men were entitled to be recognised as refugees in accordance with the Refugees Convention. Subsequently, at a time unknown to them, the Director‑General prepared adverse security assessments in respect of each man (it may be that there is a single assessment which applies to both men). These assessments were then provided to the Department which has refused to grant visas to Mr Sagar and Mr Faisal. The Department has written to each man explaining that he is not eligible for protection as a refugee because of the adverse security assessment prepared in respect of him. 13 The preceding paragraph is a recitation of the matters pleaded in the amended statement of claim of Mr Sagar and Mr Faisal. There is no further material before the Court in respect of them, although recent media reports give more information about their present circumstances. The matters in those reports are not presently relevant. It is not clear if either man was provided, as Mr Parkin was, the opportunity to speak to ASIO prior to the preparation of the adverse security assessments. Nor does it appear that either has sought or obtained a review of his adverse security assessment from the Inspector‑General. Finally, there is no explanation by way of defence of any activities carried out by either man, in contrast to the reliance Mr Parkin places on his being a non‑violent political activist. 14 I was told from the bar table that the Inspector‑General had commenced of his own motion an investigation into the cases of Mr Sagar and Mr Faisal. This investigation apparently ceased when the current proceedings were brought. The Inspector‑General Act provides in s 11(3) that where the Inspector‑General investigates a complaint, and a review of the subject matter of that complaint is sought in a court or tribunal, the Inspector‑General must, absent special reasons, cease his investigation. There is nothing on the face of the Inspector‑General Act to suggest that the Inspector‑General cannot continue an investigation commenced on his own motion as opposed to one commenced by reason of a complaint. Apparently the Inspector‑General is concerned about contempt of court. As no argument was addressed to that point, it would be inappropriate for me to resolve it.

The claims 15 Mr Parkin commenced a claim in this Court on 12 December 2005. Messrs Sagar and Faisal commenced a claim on 28 February 2006. The applicants seek orders quashing, first, the decisions to make the adverse security assessments and, secondly, the decisions to provide the adverse security assessments to the Department, of which the Minister is head. They seek further orders by way of declaratory relief. First, declarations that the adverse security assessments were not made in accordance with law. Secondly, declarations that the Director‑General contravened s 20 of the ASIO Act, which requires him to take all reasonable steps to ensure that ASIO acts free from irrelevant considerations, by failing to make a lawful security assessment about the applicants. Thirdly, declarations that the Director‑General contravened s 20 of the ASIO Act in providing the security assessments to the Department. 16 Mr Parkin does not deny that whilst in Australia he engaged in political activism. However, he says that nothing he did falls within the definition of "politically motivated violence" in s 4 of the ASIO Act. This is important because the definition of "security" in the same section includes within its meaning the "protection of, and of the people of, the Commonwealth and the several States and Territories from … politically motivated violence". Further, Mr Parkin says that his political activities whilst in Australia are protected by s 17A of the ASIO Act, which provides: "This Act shall not limit the right of persons to engage in lawful advocacy, protest or dissent and the exercise of that right shall not, by itself, be regarded as prejudicial to security, and the functions of [ASIO] shall be construed accordingly." 17 There is no dispute that ASIO may be subject to judicial review. So much was conceded in, and accepted by, the High Court in Church of Scientology Inc v Woodward (1982) 154 CLR 25. There are limits on the scope of that review but the usual administrative law remedies would be available to the applicants if they are able to establish jurisdictional error. 18 The primary difficulty that each of the applicants faces in bringing his claim is that he has not seen his adverse security assessment and alleges that he does not know the facts or reasoning by which the Director‑General made the adverse security assessment. Without this material, it will be difficult, if not impossible, for the applicants to make out their claim that the adverse security assessments were not made in accordance with law. It is therefore critical to the applicants that the Court order discovery of, at very least, the adverse security assessments. I therefore ordered, on 1 June 2006, that the parties make submissions on discovery, which they have subsequently done both in writing and at the hearing on 20 July 2006.

The discretionary nature of discovery 19 Discovery in this Court is discretionary. It is governed by Order 15 of the Federal Court Rules. In particular, r 15.15 provides that the Court will not make an order for discovery "unless satisfied that the order is necessary at the time when the order is made." The exercise of this discretion is usually seen as involving the balancing of competing interests. In Home Office v Harman [1983] 1 AC 280, 308, Lord Keith said: "Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality." 20 Relevant factors in determining whether or not the discretion should be exercised include the burden on the discovering party, the benefits of discovery and the circumstances of the discovering party: see Practice Note 14. Further factors include whether discovery would constitute a "fishing exercise" and whether there are policy reasons not to order it.

The ASIO Act 21 The ASIO Act, by s 6, continues the operation of ASIO. The Director‑General is appointed pursuant to s 7 and, by virtue of sub‑s 8(1), controls ASIO. 22 Part IV of the ASIO Act concerns security assessments. Section 35 provides that a security assessment means: "a statement in writing furnished by [ASIO] to a Commonwealth agency expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question." 23 I have already explained at [4] why, in the case of the present applicants, the security assessments are adverse security assessments. 24 It is necessary to have regard to the meaning of "prescribed administrative action". Section 35 relevantly provides that prescribed administrative action includes: "(b) the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act." 25 This definition is relevant because s 36 provides that the remainder of Part IV (other than certain sub‑sections that are not presently relevant) does not apply to: "(b) a security assessment in relation to action of a kind referred to in paragraph (b) of the definition of prescribed administrative action in section 35 … in respect of a person who is not: (i) an Australian citizen; (ii) a person who is, within the meaning of the Migration Act 1958, the holder of a valid permanent visa; or (iii) a person who holds a special category visa or is taken by subsection 33(2) of the Migration Act 1958 to have been granted a special purpose visa." 26 There is no evidence or allegation that any of the applicants satisfies the criteria in any of sub‑paragraphs (i), (ii) or (iii). They do not deny that their adverse security assessments relate to the matters in paragraph (b) of the definition of "prescribed administrative action", as the adverse security assessments recommended, in Mr Parkin's case, the cancellation of his tourist visa by the Minister pursuant to the Migration Act and, in the case of Mr Sagar and Mr Faisal, the refusal by the Minister to grant a visa under the Migration Act. It therefore follows that the remainder of Part IV (other than the irrelevant sub‑sections) does not apply to them. 27 Notwithstanding this, it is necessary to consider the remainder of Part IV because the Director‑General submits that the nature of some of the matters excluded by s 36 evinces a legislative intent that bears on whether the Court should exercise its discretion to order discovery in this case. Put simply, the Director‑General says that the ASIO Act does not intend that a person in the position of the applicants should have access to his or her security assessment and that for the Court to order discovery of the security assessment would be to circumvent this intention. 28 Division 2 of Part IV concerns the furnishing of security assessments. It provides, in ss 37 and 38 read together, that the agency to which a security assessment has been furnished is to provide to its subject a notice to which a copy of the assessment is attached, (which will include the material relied on in making the adverse security assessment) and certain prescribed information concerning rights of review. However, there is an exception to this requirement contained in sub‑s 38(2). This sub‑section permits the Attorney‑General to certify either that the withholding of a notice to the subject of the assessment is "essential to the security of the nation" or that disclosure to any person of the statement of grounds that is otherwise to be provided with the security assessment would be prejudicial to the interests of security. If the Attorney‑General makes the former certification, then there is no requirement on the agency to provide the security assessment to its subject. If the Attorney‑General makes the latter certification, the assessment given to the subject "shall not contain any matter to which the certificate applies". 29 Division 4 of Part IV provides for the review of security assessments by the Administrative Appeals Tribunal. Such review would of course be subject to the provisions of the Administrative Appeals Tribunal Act 1975 (Cth), including s 39A(5) which provides for private hearings for security assessment reviews. 30 I must also refer to sub‑s 37(5), which is contained in Division 2 of Part IV. It provides that: "No proceedings, other than an application to the Tribunal under section 54, shall be brought in any court or tribunal in respect of the making of an assessment or anything done in respect of an assessment in accordance with this Act." 31 It is clear that the ASIO Act does not, on its face, prohibit a Court from ordering discovery of an adverse security assessment. The Director‑General, however, says that the intention of the Act is to preclude a non‑citizen who is the subject of an adverse security assessment from receiving a copy of the assessment or the material relied on in preparing it, or from having that assessment reviewed by the Administrative Appeals Tribunal. This, he submits, should be taken into account in determining whether the Court should exercise its discretion to order discovery. 32 Division 2 of Part IV of the ASIO Act is only concerned with the provision of a security assessment to the subject of the assessment. In addition, nothing within that Division or elsewhere in the Act prohibits the provision of an assessment to its subject. Even where the Attorney‑General certifies that withholding a security assessment is essential to the security of the nation, sub‑s 38(4) merely provides that this "does not require a notice to be given in relation to a security assessment". And if the Attorney‑General certifies that disclosing the statement of grounds would be prejudicial to the interests of security, sub‑s 38(5) provides that the assessment must still be provided, but without the certified material. It may be true to say that there is a legislative intention not to provide the non‑citizen subject of an adverse security assessment with a copy of that assessment, but it goes too far to imply into the ASIO Act an intention not to allow discovery of such a document if the justice of the case otherwise requires it. Two points need to be made in this regard. First, discovery is not the same thing as production. It may be that a litigant is entitled to know what documents exist that are relevant to a dispute, even if he or she cannot compel production of those documents. Secondly, production may not be to the litigant himself or herself. A court may place confidentiality orders on the production of the discovered material, which may exclude the litigant from access to them. On these matters, the ASIO Act is silent. 33 It follows that the Director‑General's submission that discovery would circumvent the ASIO Act and therefore constitute an abuse of process must fail.

Fishing 34 Courts have long been wary of ordering discovery to enable parties to 'fish' for a case. Of the term 'fishing expedition' in the discovery context, Lindgren J in Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 at 438 said: "ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware … What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists" 35 In WA Pines Pty Ltd v Bannerman ((1980) 41 FLR 175 at 181‑182) Brennan J, with whom Bowen CJ agreed, said: "In the present case, discovery is sought before there is a tittle of evidence to suggest that the [respondent] did not have the requisite cause to believe which par 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim … but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made … and, the paragraph being denied, the applicant seeks to interrogate the [respondent] and ransack his documents in the hope of making a case. That is mere fishing." 36 More recently, it has been observed by Full Courts of this Court that the reluctance of the court to allow a fishing expedition is not as great as it once was: Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113;Treasurer of the Commonwealth of Australia v CanWest Global Communications Corp [1997] FCA 578; see also Bertran v Vanstone [1999] FCA 1753 at [18] to [23]. There are two significant reasons for this. The first is that the Federal Court Rules do not, as most jurisdictions traditionally did, provide for discovery as of right. The second is the introduction in 1988 of Order 15A and its equivalents in other jurisdictions which permit preliminary discovery and discovery against a non‑party. These considerations led Burchett J (with whom Lockhart and Gummow JJ agreed) to conclude in Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113 at 116 that "This [fishing] objection to applications for discovery of documents does not now have the weight it was once thought to have. Perhaps it should be seen as a metaphor with more colour than substance." 37 In a sense, the present application is a fishing expedition, and as much is admitted by the applicants. But I do not think it is an impermissible fishing expedition. The purpose of the discovery that is sought is not for the applicants to determine if they have a case. If the applicants are right that they have no idea why the adverse security assessments have been made, then it follows that they must have a case that is at least arguable. Their case is that, because they have done nothing to constitute a threat to national security, any finding that they are such a threat must have been made in error. The purpose of discovery is to determine the nature of that error, not whether it exists. The classes of document sought are not overly broad and can be stated simply. The existence of the security assessments is admitted and the existence of documents supporting them can be readily inferred. The 'fishing' allegation does not dissuade me from ordering discovery.

Discovery and inspection 38 I have said at [32] that discovery and production are not the same thing; a party may be entitled to the one but not the other. So far, I have not had to consider whether the applicants would be entitled to have produced to them or to their legal advisers the documents sought in discovery. That question was not addressed in argument. If I were satisfied that under no circumstances could they compel production of the documents sought, then I would be inclined against ordering discovery on the ground that it would be futile. For the same reason that a court will not grant leave to hear an appeal that is doomed to fail, it should not generally order discovery of a document production of which can never be compelled. Courts do not make nugatory orders. 39 In this case, I cannot be satisfied that the documents sought would be immune from production. To reach that degree of satisfaction is a very high threshold indeed. One of the purposes of a court ordering discovery is to allow the party to whom discovery is made to challenge any claims for privilege. This occurs all the time in the context of legal professional privilege. The discovering party will make a list or affidavit of documents, including, where appropriate, setting out grounds why certain documents are privileged from inspection. If its opponent, upon examining those grounds, believes that the privilege claim should not be upheld, it may bring appropriate proceedings to challenge the claim. The same is true in this case. It may be that every document discovered by the respondent is privileged or its production is otherwise not compellable. This can only be determined once discovery has taken place and the applicants given the opportunity to challenge any assertion of privilege. 40 In Church of Scientology v Woodward (1982) 154 CLR 25, the High Court had to consider a claim that the Director‑General of ASIO did not have a reasonable basis for believing that members of the Church of Scientology were a security risk and therefore had no power to investigate them. It was accepted that judicial review of the ASIO Act was available. 41 The Court noted that discovery and production were critical issues in any judicial review proceeding under the ASIO Act. Brennan J said, at 75, that "[i]t would be an unusual case, however, if a plaintiff without discovery against the Director‑General could discharge the burden of proving that [ASIO] had engaged in the particular activity of which he complains". He continued, at 76: "discovery would not be given against the Director‑General save in a most exceptional case. The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice … Nevertheless, the veil of secrecy is not impenetrable, for the public interest in litigation to enforce the limitation of function prescribed by s 17 is never entirely excluded from consideration … But the veil is not penetrated merely by a plaintiff's deposition that he is not a security risk." 42 Further on, at 76‑77, his Honour noted the "large obstacles in the path of a plaintiff" seeking orders against ASIO. These obstacles arise in part because "of the restrictions imposed upon discovery in aid of proving, and upon the admission of evidence in proof of, what is and what is not relevant to security". 43 It is apparent from these passages that what Brennan J had in mind was not merely discovery, but the dual process of discovery and production. His use of the word discovery appears to be a short‑hand reference to this dual process. Because the Court in Church of Scientology did not need to decide whether to order discovery, Brennan J's obiter remarks were directed to difficulties generally in bringing review proceedings against ASIO. They were not directed to the important distinction between discovery and the subsequent production of non‑privileged discovery documents. Mason J's judgment also refers to the difficulties in bringing this type of claim. He notes, at 61, that: "Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument … [but the] fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials." 44 The reference to Crown privilege demonstrates that His Honour has in mind the production of documents at least as much as the discovery of them, for it is at the production stage that a successful claim for privilege may thwart a plaintiff. The Church of Scientology case may have critical implications for the parties at the production stage, but it is not determinative of the discovery question.

Is there a live issue between the parties? 45 The Director‑General submits that there is no live issue between the parties and that discovery therefore should not be ordered. In order to make out their respective claims, the applicants will need to demonstrate jurisdictional error on the part of the Director‑General. They will need to show that there was no evidence on which ASIO could have formed the opinion that the applicants were security threats. Given the extreme difficulty of this task, the Court should not be satisfied that the applicants have a good case proof of which may be aided by discovery. 46 I am not persuaded by this argument. The applicants' claim is that they have done nothing to justify their security assessments. Therefore ASIO must be wrong to conclude that they are security threats. In order to demonstrate this to a court they need to understand why and on what basis ASIO has formed the view that it has. It stands to reason that they do not yet have the evidence to demonstrate this; that is why they have sought discovery. The Director‑General's argument is circular. It is, in effect, that because the applicants do not have the evidence they need, they therefore have no case and so do not need that evidence. In the circumstances of these applicants, it is not possible to say whether they do or do not have any chance of making out a good case. It would be premature at this stage to say that there is no live issue between the parties.

Exercise of discretion 47 Taking into account the above considerations, it is appropriate that I exercise my discretion to allow discovery. The applicants say that they have good reason for bringing their claims. They are entitled to call on the aid of the Court to assist them in determining if they are right and, if so, the detail of those claims. They should not be shut out just because their claim involves the denial of a state of affairs they cannot explain, as opposed to a positive averment. No sufficient reason has been advanced why discovery should not be ordered. 48 The parties should confer as to the appropriate orders for discovery. If they are unable to agree by 17 November 2006, they should each by 1 December 2006 file written submissions as to the orders that should be made. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Counsel for the Applicants: Mr J W K Burnside QC and Mr L W Maher

Solicitors for the Applicants: Maurice Blackburn Cashman

Solicitor for the Respondent: Australian Government Solicitor