SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277 | Case summary

The Facts 11 Counsel for Director-General did not read paragraphs 11 (last sentence), 23 (second sentence) and paragraphs 27-29 inclusive of Mr Irvine's open affidavit. Counsel for the applicant objected to paragraphs 10, 24 and 31. I heard submissions and reserved my ruling. I decided that I should receive paragraph 10. I discuss the decision in Parkin v O'Sullivan (2009) 260 ALR 503 ("Parkin v O'Sullivan") below. I think the Director-General is entitled to say that the Final Appreciation and Director-General's Briefing Note fall within the class of documents identified in that decision. The effect of the decision is, of course, ultimately a matter for the Court. I also decided that I should receive paragraph 24. The effect of the decision in Parkin v O'Sullivan is a matter for the Court, but the thrust of the statements in paragraph 24 are opinions of the Director-General which he is both qualified and entitled to express. Finally, I decided that I would receive paragraph 31 with the obvious caveat that Mr Irvine's reference to confidential material filed in another proceeding cannot be given any weight. 12 Mr Irvine's open affidavit establishes the following: 1. The Australian Security Intelligence Organization's core function is to protect Australia's national security and to provide advice to government in relation to matters relevant to the protection of Australia's national security. Self-evidently, ASIO's effective operation depends on secrecy being maintained in relation to at least some of its operations and activities. 2. Security assessments are prepared by ASIO and provided to Commonwealth agencies which agencies include the Department of Immigration and Citizenship ("DIAC"). This involves an exercise of the power in s 17(1)(c) of the ASIO Act which provides that the functions of the organisation include: to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, insofar as those matters are relevant to their functions and responsibilities. The provision of security assessments by ASIO to Commonwealth agencies is dealt with in s 37. Security assessments are a key mechanism by which ASIO advises government that particular individuals pose a threat to Australia's national security. 3. On 9 December 2011 Mr Irvine was provided with an internal minute, which he describes as the Final Appreciation, and a Director-General's Briefing Note with respect to the applicant. He decided that ASIO should issue an adverse security assessment in relation to the applicant. He assessed that the applicant was directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act and he recommended that the applicant's application for a permanent protection visa be refused. He based his decision solely on the Final Appreciation and Director-General's Briefing Note. 4. Mr Irvine's opinion is that the documents referred to in the previous paragraph fall within a class of documents which this Court in Parkin v O'Sullivan held to attract public interest immunity on a class basis. 5. In December 2011 ASIO provided two documents to DIAC, being the adverse security assessment in relation to the applicant, which did not disclose the basis of the assessment, and an advice document in relation to the assessment. The advice document was the only source of information that ASIO provided to DIAC disclosing the basis of the adverse security assessment. Other than certain immaterial additions which Mr Irvine describes, the advice document was copied verbatim from the Final Appreciation. Disclosure by DIAC of information concerning the basis of the adverse security assessment would involve disclosure of information that forms part of the Final Appreciation. 6. Final Appreciations and Director-General Briefing Notes are prepared in only a small number of cases involving security assessments. 7. A Final Appreciation ordinarily includes not just ASIO's assessment of whether or not an adverse security assessment should be issued in relation to a particular individual, but it also sets out "the investigative process, the security issues that have been identified and required resolution, and the methods used to gather evidence or corroborate information". 8. Mr Irvine's opinion is that it is important for all relevant information to be included in a Final Appreciation so that sound decisions are made, and that disclosure of information in one Final Appreciation might inhibit candour and the provision of information in Final Appreciations prepared in the future. 9. Mr Irvine's opinion is that Final Appreciations and related briefing notes invariably contain specific detail as to the reasons why persons are assessed as a risk to Australia's national security and specific detail of the intelligence sources and methods used by ASIO in obtaining relevant information and conducting its assessment functions. They are documents which are often highly classified as they disclose ASIO's sources, methods and capabilities to "a high level of detail". Mr Irvine states that they are one of the classes of documents held by ASIO that require the greatest level of protection. 10. The public interest in non-disclosure is particularly acute where the proposed disclosure is to the person who is the subject of the Final Appreciation and Director-General's Briefing Note. 11. Mr Irvine states that there are specific features of the information commonly found in Final Appreciations that support the proposition that the content of Final Appreciation documents should be protected from disclosure, save in the most exceptional circumstances. 13 This case is about the provision of information, not the production of documents. However, documents are relevant because they are the source of the information. The adverse security assessment of the applicant by Mr Irvine was based on the Final Appreciation and the Director-General's Briefing Note. The information provided to Mr Kelly about the basis of the adverse security assessment was based on a verbatim copy of the Final Appreciation. Although Mr Kelly gave some evidence of contact with ASIO earlier in 2011, I am satisfied on the evidence of Mr Irvine that Mr Kelly's knowledge of the basis of the adverse security assessment of the applicant derives from the advice document which in turn reproduces part of the Final Appreciation. In those circumstances, the Director-General argued his claim as if the question was whether the Final Appreciation was protected by public interest immunity. 14 By contrast, the applicant emphasized the fact that the case before me concerned the provision of information not documents. It was said by the applicant that the Director-General could not point to a case where a class claim had been made over information to be given by way of oral evidence. That may be so, but the important point is that the information which is sought from Mr Kelly will be information contained in the Final Appreciation prepared in relation to the applicant. The applicant also submitted that the fact that the issue here involved oral information rather than documents gave the Court increased flexibility in terms of allowing disclosure of information where the public interest favoured disclosure, and preventing disclosure of information where the public interest favoured non-disclosure. For example, it was put by the applicant that, if necessary, questions could be written down and approved by me before they were put to the witness. Furthermore, questions could be restricted to the basis for the assessment and disallowed if they strayed into sources of information or operational matters. Finally, it was said that answers could be reduced to writing and made available only to the Court and counsel. To a point these submissions have force, but at the same time documents can be redacted and made available only to the Court and to counsel. What seem to be neat, distinct categories of information often turn out not to be. I will return to this consideration later in these reasons.

The Claim for a Direction under s 130 of the Evidence Act 15 The Director-General submitted that the Final Appreciation in relation to the applicant belonged to a class of documents which, in the public interest, ought not be disclosed and that that was so irrespective of its contents. In Sankey v Whitlam (1978) 142 CLR 1 at 39-43 Gibbs ACJ (as his Honour then was) identified classes of documents which of their nature were such that it is in the public interest that they not be disclosed. Even in such a case the balancing exercise must be carried out. The Director-General submitted that the decision of Sundberg J in Parkin v O'Sullivan established in an authoritative way the proposition that Final Appreciations leading to adverse security assessments were a class of documents which in the public interest ought not be disclosed. I think that submission is correct and I refer to his Honour's conclusions at 511 [33]. Although his Honour examined the documents he did that in order to determine whether they fell within the class and he also used his examination of the documents to assist him in determining where the balance lay between the competing considerations (at 513 [37-[30]). The result of Sundberg J's ruling in Parkin v O'Sullivan was that any challenge to an adverse security assessment was bound to fail (see Sagar v O'Sullivan (2011) 193 FCR 311 at 327-328 [93] per Tracey J). 16 I would respectfully follow Sundberg J's decision in Parkin v O'Sullivan and hold that Final Appreciations leading to adverse security assessments fall within a class of documents which, in the public interest, ought not to be disclosed. My reasons are the same as those identified by Sundberg J and they are reinforced in this case by the contents of Mr Irvine's open affidavit. 17 I would add this. Although I have not inspected the documents I would conclude on the evidence of Mr Irvine that the contents of the Final Appreciation in relation to the applicant are such that there is a public interest in the document not being disclosed. In other words, I would infer from Mr Irvine's evidence that the Final Appreciation prepared in relation to the applicant has the features that Mr Irvine described as characteristic of a Final Appreciation. 18 The above conclusions are not the end of the matter. The balancing exercise referred to in s 130(1) of the Evidence Act must be carried out. That subsection provides as follows: (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. 19 Section 130(5) contains a non-exhaustive list of the matters which may be relevant to the balancing exercise referred to in subsection (1). It provides as follows: (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding; (b) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor; (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding; (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication; (e) whether the substance of the information or document has already been published; (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant - whether the direction is to be made subject to the condition that the prosecution be stayed. 20 The above matters are also relevant to the balancing exercise required as part of the common law test and, therefore, the cases dealing with the common law test are relevant. The matters referred to in paragraphs (b) and (f) are not relevant in this case because this proceeding is not a criminal proceeding. As to the matter in paragraph (e), there is no suggestion that the information has been published outside ASIO and government agencies and, in particular, DIAC, and this fact tends to favour non-disclosure. As to the matter referred to in paragraph (d), I do not think a consideration of this matter takes the balancing exercise very far. The applicant submitted that in a case such as the present, the public interest in the non-disclosure of sources of information and operational matters, such as surveillance techniques, appears to be stronger than it is in the case of information about the basis of the adverse security assessment. That appears to make an assumption concerning the basis of the assessment. Such an assumption may be justified in some cases but not in others. In any event, building on this distinction, the applicant submitted, as I have said, that I could limit questions to the basis of the assessment and restrict publication of this information to counsel and solicitors. I did not think it appropriate to proceed in the way proposed by the applicant. Nor am I inclined to place any real weight on the possibility of an order limiting publication. I do not think a clear distinction can be drawn between the two categories of information and I think that there is always the possibility, or indeed likelihood, of overlap between the two. Furthermore, although difficult to be precise as to the exact weight which ought to be placed on the consideration, I accept Mr Irvine's evidence that publication, even limited publication, may well jeopardise the candour that is displayed in the future in the preparation of such documents. 21 It seemed to me that the two decisive matters in this proceeding were the nature of the subject matter of the proceeding and the cause of action or defence to which the information related (paragraph (c)) and the importance of the information in the proceeding (paragraph (a)). 22 In considering these matters I bear in mind the general statements to which I was referred in Church of Scientology v Woodward (1982) 154 CLR 25 ("Church of Scientology v Woodward") at 61 per Mason J (as his Honour then was) at 76 per Brennan J (as his Honour then was); Leghaei v Director-General of Security and Anor [2007] FCAFC 37; (2007) 241 ALR 741 at 146-147 [48]-[52]; Gypsy Jokers Inc v Commissioner of Police (2008) 234 CLR 532 at 556 [24] per Gummow, Hayne, Heydon and Kiefel JJ. 23 The decision of the Full Court in Leghaei v Director-General of Security is instructive. The applicant in that case sought to quash an adverse security assessment on the basis of jurisdictional error in proceedings under s 39B of the Judiciary Act 1901 (Cth). One of the grounds of challenge was that the applicant had been denied procedural fairness. The Court said (at 146-147 [51]-[52]): If that is where the balance is found to lie, then it may well be correct, as the primary judge appears to have concluded in the present case, that the content of the procedural fairness obligation is reduced in particular terms to 'nothingness'. Such a result would be consistent with the observations of Brennan J in Church of Scientology v Woodward (1982) 154 CLR 25 at 76. His Honour there observed that the secrecy of the work of an intelligence organization which is to counter threats of espionage and sabotage is essential to national security, and it will be a rare case where the public interest in national security will yield to the public interest in the administration of justice. 24 The Director-General also emphasized the weight which is to be accorded to his opinion on matters of national security: Leghaei v Director-General of Security at 147 [56] et seq. 25 For his part, the applicant put a submission based on the definition of "security" in s 4 of the ASIO Act. That definition is in the following terms: security means: (a) the protection of, and of the people of, the Commonwealth and the several States and Territories from: (i) espionage; (ii) sabotage; (iii) politically motivated violence; (iv) promotion of communal violence; (v) attacks on Australia's defence system; or (vi) acts of foreign interference; whether directed from, or committed within, Australia or not; and (aa) the protection of Australia's territorial and border integrity from serious threats; and (b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa). 26 The matter in paragraph (aa) was added by the Anti-People Smuggling and Other Measures Act 2010 (Cth) (Schedule 2). 27 There was some very brief evidence in this case about discussions between the Australian Federal Police and the applicant which suggested the former asked the latter about the activities of his father and smuggling. As I understood the applicant's argument it was that I should infer that the security aspect in the case of the applicant was that mentioned in paragraph (aa) of the definition, or at least I could not be sure that it was not that, and the matter referred to in paragraph (aa) was a security issue of less concern than, for example, espionage or sabotage or attacks on Australia's defence system (see Church of Scientology v Woodward (1982) 154 CLR 25 at 77 per Brennan J). I do not accept that argument because I do not think it is appropriate to speculate about the precise seriousness of the security issue in the absence of a firm evidentiary basis. 28 The applicant is an unlawful non-citizen and, as I understand it, the orders he seeks are premised on the assumption that he will remain in detention. On the one hand, the respondents emphasise the fact that the proceeding is not a criminal proceeding against the applicant and that national security rarely yields to the public interest in the administration of civil justice (Church of Scientology v Woodward at 76 per Brennan J). On the other hand, applicant contends that he is entitled to a fair trial and that if the order he seeks is made it will have a significant effect on the circumstances and place of his detention, and will mean that to a point he is relatively free to move about in the community. 29 There are some obvious difficulties with the injunctive order sought by the applicant. It is arguable that the consequences of the injunction sought in terms of the place and circumstances of the applicant's detention are not clear. That might affect whether the Court should make such an order, but the point at this stage of the proceeding is that there are limits to any assumption I am able to make about the final result of this proceeding even if the applicant was to be wholly successful. 30 The difficulties with the order are known to the applicant. In the applicant's originating application dated 14 December 2011 he sought the following relief: Claim pursuant to section 39B of the Judiciary Act 1903 (Cth) to restrain a continuing tort in relation to the failure to remove the applicant from immigration detention and to require the respondents to provide the applicant with adequate treatment. On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims: 1. Damages in negligence 2. Interest pursuant to statute; 3. Costs; 4. Such further order as the Court considers appropriate. 31 In his amended originating application dated 15 December 2011 he sought the following relief: 1. A permanent injunction against the First and Third Respondents restraining them by themselves, their servants or agents or howsoever otherwise, from placing or keeping the Applicant in any non-residential place of detention and from so detaining him as to prevent or inhibit his access to immediate assessment, treatment and supervision by suitably qualified mental health workers; 2. A writ of mandamus to the Third Respondent in his said capacity as the guardian of the Applicant directing him to use his best endeavours to secure for the Applicant a residential place of detention with access to and supervision from suitably qualified mental health workers. 3. A writ of mandamus to the Third Respondent in his capacity directing him to use his best endeavours to obtain forthwith for the Applicant the grant of a visa under the Migration Act 1958 and directing him to ensure that the Applicant receives immediate medical assessment, treatment and supervision from suitably qualified mental health workers. 4. Damages in negligence. 5. Interest pursuant to statute. 6. Costs. 7. Such further order as the Court considers appropriate. 32 The orders which he seeks in his further amended originating application dated 27 January 2012 are set out above (at [2]). I made it clear to the applicant at the beginning of the trial that he needed to clearly identify the injunctive order he sought (see transcript 15-16). On 29 February 2012, the applicant foreshadowed an application to amend for a third time his claim for injunctive relief. 33 I turn now to the importance of the information in the proceeding. 34 At the time I made my ruling under s 130 of the Evidence Act, the evidence in the trial was complete subject to finalising Mr Kelly's evidence. In addition, I had received the closing written submissions of both parties. Despite these matters it was not entirely clear to me what the respondents seek to make of the adverse security assessment or what, should disclosure of the information occur, the applicant will ask me to do concerning the basis of, or reasons for, the adverse security assessment. I have difficulty in thinking that a Court could be asked to determine the appropriate level of security in relation to the applicant. Counsel for the respondent submitted that the adverse security assessment does not have an automatic effect under the Migration Act 1958 (Cth). Rather, the respondent submits that it is a relevant discretionary factor in considering whether or not an injunction should be granted. The respondents plead that the applicant is not entitled to injunctive relief and one of the matters they plead in support of that contention is the adverse security assessment. They plead that: … the applicant is subject to an adverse security assessment by the Australian Security Intelligence Organisation, which fact means that as a matter of discretion injunctive relief ought to be refused. The respondents' closing written submissions contain the following: 122. Finally, in the event, the Court is satisfied the power and the occasion to exercise the power to grant an injunction has arisen (which is denied) the Court must in the exercise of its discretion refuse to grant the relief sought. 123. In this case the Respondent submits that it has done and will do all that it reasonably should for the Applicant now and in the future. But the Applicant's interests must be balanced against the Respondents' equally important public interest duties to the Australian community at large and the objects of the Act as a whole. In this regard it is important to note that the provision under which an adverse security assessment is made and s 197AB are both concerned with public interest. 124. The Applicant has now been assessed by ASIO as an adverse security risk. The fact that this assessment has been made is what this Court must act on. These proceedings cannot collaterally challenge the basis of such an assessment as the legislature has provided for a specific pathway for such challenges to be made. In the premises, the fact that an adverse security assessment has been made alone stands in the way of the Court exercising any discretion which might lead to the Applicant's release from the form of his current detention into some form of community detention where 'he is free to come and go' and the injunction should be refused on discretionary grounds. 125. It is respectfully submitted that on each of the above grounds, singularly, and cumulatively, the Respondents submit that the injunctive relief that is sought ought be refused in this case. 126. The Respondents will now turn to consider the choice of law issues which apply as a pre-requisite to considering the elements (as modified by statute) to the cause of action in negligence alleged in this case. 35 In brief oral submissions on the question of whether a direction should be made under s 130 of the Evidence Act, the respondents emphasised paragraph 124 in particular. The respondents also referred to paragraph 247 of their closing written submissions: The Applicant does not contend, and could not contend, that the Minister make him the subject of a residence determination pursuant to s 197AB: AS[34]. But he does contend that the Minister 'design a form of immigration detention' that will balance the needs of the Applicant with the interests of the Australian people: AS [34]. This can only be effected if the Secretary or the Minister respectively give a direction, or approve another place, which would bring the Applicant's detention within the definition of 'immigration detention' in s 5. Such a contention is untenable, given the breadth of the discretion in the implicit grant of power in those paragraphs of the definition, which is fettered only by the scope, object and purpose of the Act: see Pearce and Geddes, Statutory Interpretation in Australia, seventh ed, [11.4]-[11.8]. The breadth of the factors available to be considered in addressing the public interest (as to which see Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419 at 428; and Botany Bay City Council v Minister for Transport (1996) 66 FCR 537 at 564-5), together with the weight to be attributed to the assessment of the Applicant as a risk to national security by the statutory body charged with making such assessments, and the potential costs of providing adequate security to the community if the Applicant is to be held outside a formal detention environment, are such that neither the Secretary nor Minister could be directed to exercise those discretionary powers in a particular way. 36 Finally, paragraph 11 of the respondents' closing written submissions is as follows: The Respondents' principal contentions are as follows. The Respondents contend that the form of detention of the Applicant is lawful and mandated by the provisions of the Act. An injunction in the terms sought by the Applicant: 11.1 cannot be given, given the terms of the Act 11.2 cannot be given as a matter of principle in the circumstances of the present case 11.3 in any event, ought not be granted, including due to the Applicant being assessed by the Australian Intelligence Security Organisation (ASIO) to be directly or indirectly a risk to security, within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth). 37 The precise significance of the adverse security assessment will need to be carefully examined in the course of closing oral submissions. Nevertheless, both parties have said that it is not decisive in terms of the applicant's claim for injunctive relief and I proceed on that basis.

SBEG v Secretary, Department of Immigration and Citizenship

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Judgment (17 paragraphs)

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Legislation Cited (7)

Cases Cited (11)

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