Resolution of the issues
22 Although Mr Lange's argument raised the broader question of whether an ASIO officer could ever legitimately give evidence in any proceedings, the narrower and more precise question I am concerned with is whether the proposal to call ASIO officers in this trial to give evidence concerning their surveillance of the accused will involve a criminal offence under s 18(2) of the ASIO Act. If the answer to that question is in the negative, no question of abuse of process can arise and the present application must fail. The abuse of process argument is aimed directly at the present trial.
23 In my opinion, the answer to the question posed by Mr Lange is that, provided the giving of evidence is approved by the Director-General of Security, the communication of the information represented by the giving of that evidence would not amount to or involve any criminal offence under s 18(2) of the ASIO Act.
24 In my opinion, s 18, on its proper interpretation, would permit ASIO officers, with the approval of the Director-General, to give evidence of surveillance of the accused in a prosecution of the accused for an offence of the kind charged in the present indictment. I shall state my reasons.
25 First, s 18 does not prohibit communication of intelligence on behalf of ASIO. In fact, it permits it, but only where that communication is made by the Director-General or by a person acting within the limits of authority conferred on the person by the Director-General.
26 Secondly, the more precise question involves the interpretation of s 18(2) of the ASIO Act. This plainly establishes an offence where an employee of ASIO makes a communication of any information that has come to the knowledge or into his or her possession by reason of his or her being, or having been, an officer or employee of ASIO. No crime will be committed, however, where the communication is made by a person acting within the limits of authority conferred on the person by the Director-General, or where the communication is made with the approval of the Director-General.
27 Thirdly, it is clear that, in the present matter, the giving of approval for an ASIO officer to give evidence about surveillance of the accused (or other persons connected with the conspiracy) may properly be said to be for a purpose "relevant to security". In this regard, I consider that the Crown's submissions are correct. The statutory framework I have earlier set out makes it clear that the giving of surveillance evidence in the present matter would not be a matter that falls outside the scope of the statutory functions in s 17, especially those mentioned in 17(1)(a) and (b). More precisely, it may be stated, first, that the giving of evidence would not be a criminal offence under s 18(2) because it had been approved; and secondly, it would not be beyond the scope of the statutory functions because the statutory definitions in s 4 clearly enable it to be categorised it as a task "for purposes relevant to security". In other words, once a broad construction is given to the sections under consideration, a prosecution for a terrorism offence, and the process of giving of evidence within that trial, will be seen to be a proceeding relevant to the protection of the community from the implementation of an agreement that would, by its very nature, involve acts of violence, and would, in any event, answer the description of a terrorism offence in the ASIO Act.
28 Fourthly, this construction of both s 17(1)(a) and (b) and s 18(1) and (2) of the ASIO Act is further aided by ss 8, 18(3), 19 and 20 of the Act.
29 Section 8 confirms the broad powers of the Director-General to act as the controlling figure of ASIO. Section 20 confers a wide ambit of authority on the Director-General ("take all reasonable steps") to ensure the Organisation operates within the confines of its statutory functions and is not diverted or distracted into partisan or political paths. Section 18(2), as I have said, gives the Director-General a broad power to approve the communication by employees of intelligence information in circumstances, no doubt, deemed by him to be appropriate. Section 17 ascribes, as a core ASIO function, the ability to communicate intelligence for purposes that are both relevant and appropriate to the broadly defined notion of "security".
30 Indeed, s 18(3) travels well beyond the concept of "security" to enable the communication by employees of intelligence on an even broader basis: for example, where the intelligence reveals the commission by a person of any indictable offence against the laws of the Commonwealth, a State or Territory. Section 18(3)(b) enables the dissemination within Australia of information captured outside Australia, where the Director-General is satisfied that the "national interest" requires the communication (there could hardly be a wider concept than this). Finally, s 19 provides that, so far as is necessary or conducive to the performance of its functions, ASIO may cooperate with, for example, nominated police agencies and the like, both in Australia and overseas. It may also communicate information to an overseas authority where such information is "relevant to the security of that country".
31 Consequently, it will be seen that the statute gives very substantial powers to the Director-General, and hence to the Organisation, to communicate intelligence to individual persons, bodies, other countries and generally. For that reason, it seems to me to be fanciful to suggest that, where ASIO has been acting in cooperation with police agencies to provide surveillance of terrorist suspects, the calling of those ASIO officers with the approval of the Director-General, in a subsequent prosecution for a terrorism-related offence, will or could involve the commission of a crime. Such a consequence would be completely unexpected, at variance with the terms of the legislation and, in terms of the principles of statutory construction, an absurd result. Indeed, one would expect the legislature to cater for the very situation that is envisaged and intended in the present trial. In my opinion, the legislation plainly allows for that result and any contrary interpretation is, with respect, misconceived.
32 Mr Lange advanced four specific reasons in support of his suggested interpretation of the legislation. I will deal with these briefly.
33 The first related to s 18(3)(a) of the ASIO Act. Mr Lange placed particular reliance on the opening words of the sub-section. These were "Notwithstanding paragraph 17(1)(b)". Mr Lange submitted that this phrase was inserted because the provision of information for reasons of investigation for prosecution was not covered by the language of s 17(1)(b). I am unable to agree with this submission. The phrase appears where it does in s 18(3) because the clear intention of the legislature was to allow the communication of information where the offence revealed by the intelligence related to the commission (or intended commission) of any indictable offence in the relevant criminal legislation, even if it were not a "security" related offence. Similarly, Mr Lange argued that the language of s 18(3)(b) was restrictive. I would, however, regard the concept in this sub-section as very broad indeed, namely, the concept of "national interest".
34 Secondly, Mr Lange argued that there is in fact no provision in the legislation expressly permitting the giving of evidence by ASIO employees in a trial of the present kind, or, for that matter, in any trial. One answer to that proposition is that there is no provision in the legislation expressly prohibiting it. Moreover, for the reasons I have explained, there is, in any event, ample scope within the legislation for a finding that the Director-General's powers of approval extend to allow the giving by ASIO officers of evidence in a trial such as the present.
35 Thirdly, Mr Lange argued that ASIO is essentially an intelligence gathering body and is not normally regarded as being involved in investigative matters. In general, I accept that this is an accurate description of the functions of ASIO. However, the power, and perhaps obligation, to cooperate with other authorities (as evidenced by ss 18 and 19) has meant that ASIO on occasions has provided its intelligence gathering services within the umbrella of an investigative process. Such a level of co-operation is likely to increase rather than to lessen. This can have awkward results for the agency, as I found in the Lodhi trial. That is, however, not to the point in the present discussion. In this trial, ASIO witnesses would simply be called to give evidence of surveillance. That might properly be described as intelligence gathering within the umbrella of a criminal investigation by the police.
36 Whatever label is ascribed to the ASIO task, the question is whether the giving of evidence by an ASIO officer about matters he has observed in the course of carrying out an intelligence gathering exercise would fall outside the scope of the statutory functions of ASIO? In my opinion, for the reasons I have already given, it would not. A prosecution for a terrorism offence must be, as I have said, a proceeding that is itself relevant to the protection of the Australian community from the implementation of an alleged agreement that would or might involve acts of violence against the community. If that be so, the giving of evidence in such a trial must be regarded as an activity carried out "for purposes relevant to security". In that sense, it is very much within the scope of ASIO's statutory functions.
37 Finally, Mr Lange argued that, since s 8 of the ASIO Act envisages that the Director-General will control the activities of the Organisation, it would be a matter for concern if ASIO witnesses were to be cross-examined about matters that might unexpectedly and perhaps inadvertently throw up important issues of national security. The Director-General, counsel argued, would have no control over this situation. There are a number of answers to this submission. First, the Director-General has the power and discretion to decide whether a particular ASIO officer will give evidence in a prosecution. The Director-General has the capacity to reflect upon the identity of the witness, the nature of the evidence to be given and the likely ambit of relevant cross-examination. I stress the word "relevant" because the duty of a Court would be to stop in its tracks cross-examination that passed beyond the permissible to the irrelevant. The first point of control, however, is the Director-General's decision itself.
38 The second point of control is the important obligation placed on counsel not to ask questions that are scandalous, embarrassing, confusing, time wasting or off the point. In a trial where national security issues are clearly involved, counsel would be expected to be particularly focused and diligent in this regard.
39 The third point of control is the Court itself, which would, with stern but polite detachment, prevent any of these boundaries from being improperly transgressed.
40 The fourth area of control lies in the continued presence of solicitor and counsel for the Commonwealth. The Attorney General, by virtue of the National Security Information legislation, is taken to be a party to the proceedings. In that context, there are already in force, by agreement, a raft of security related orders arising from the operation of the security protection legislation. The lawyers for the Commonwealth are there to ensure those orders are obeyed.
41 Finally, there are the provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004 itself. This legislation includes provisions such as s 25. This section prevents a witness from disclosing national security information in federal criminal proceedings by not allowing the witness to answer "the question" until a national security hearing has been held, or a certificate has been issued by the Attorney General. This is but one example of the way in which the legislation protects the inadvertent or careless disclosure of national security information. There are many other instances in the legislation, but they do not require detailed examination on the hearing of the present application.
42 The presence and combination of all of these control points, if I may so describe them, seem to me to rob Mr Lange's final point of any real substance or significance.
43 The remaining matter to be determined is whether the Court can be satisfied that the Director-General has given his approval to the procedure that the Crown intends to adopt in the present trial. Has the Director-General given approval for each of the witnesses to give evidence of the surveillance and other matters intended to be relied upon as part of the prosecution case?
44 The answer to that question, given the contents of Exhibit "B", is plainly in the affirmative. In those circumstances, the asserted foundation of Mr Lange's argument cannot stand. Consequently, the application for a stay of proceedings must fail. No abuse of process has been demonstrated. I order that the application for a stay of proceedings be dismissed.