State of New South Wales v Lawrence

Supreme Court of NSW|2019-07-18|Before: Johnson J, Dr J

Judgment

JOHNSON J: By Further Amended Notice of Motion filed on 23 July 2019, the Applicant, the Attorney General for New South Wales, makes a terrorism intelligence application under s.59A Terrorism (High Risk Offenders) Act 2017 ("THRO Act") in proceedings under that Act brought by the Plaintiff, the State of New South Wales against the Defendant, Tukiterangi (Tuki) Lawrence, pursuant to a Summons filed on 14 June 2019.
The hearing of the Plaintiff's claim for interim and interlocutory orders under the THRO Act is listed for hearing on 6 August 2019.

The Present Application

The Attorney General's application under s.59A THRO Act first came before me on 18 July 2019. The Court was informed that there had been substantive narrowing of the documents which the Attorney General sought to bring within the terms of s.59A THRO Act. Given that development, the proceedings were adjourned to 23 July 2019 with orders being made for provision of submissions and other material relevant to the revised and narrowed application.
Having regard to the nature of the application, the Court made orders on 18 and 23 July 2019 that the proceedings take place in closed court: s.71 Civil Procedure Act 2005. The Defendant (who is in custody) appeared by audio-visual link on 18 July 2019 when there was no discussion of the substantive issues. At the request of the Defendant's legal representatives, the Defendant did not appear on 23 July 2019. This approach was suitable as it permitted a freer discussion of the material in circumstances where a principal object of the Attorney General's application was that the material not be disclosed to the Defendant.
At the hearing on 23 July 2019, Mr Hutley SC and Mr I Fraser appeared for the Attorney General. Mr Robinson SC and Dr Lucy of counsel appeared for the Defendant.
A number of evidentiary objections were taken for the Defendant with respect to the material relied upon for the Attorney General and detailed submissions were made as well in writing with respect to both procedural and substantive aspects of the application.
Before moving to the issues to be determined in this judgment, it is appropriate to set out the statutory scheme pertinent to this application. In doing so, I note that this is the first application under s.59A THRO Act since amendments to that Act came into effect on 28 November 2018. Rothman J considered some aspects of the predecessor provisions in State of New South Wales v Elomar [2018] NSWSC 708 following an ex parte application for orders under the then s.60 THRO Act. However, the present scheme is markedly different.

The Statutory Scheme for Terrorism Intelligence Applications

The objects of the THRO Act appear in s.3 which states: "3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage these offenders to undertake rehabilitation."
Section 4 THRO Act contains a number of definitions which are presently relevant. They are: "… prescribed terrorism intelligence authority means any authority or other agency (or authority or other agency of a kind) of an Australian jurisdiction that is prescribed by the regulations. … terrorism activity means: (a) any statement or other conduct of any person or group of persons involving advocating support for engaging in any terrorist acts or violent extremism, or (b) any conduct or other activity of any person or group of persons involving planning or preparing for, or engaging in, any terrorist acts or violent extremism. terrorism intelligence means information relating to actual or suspected terrorism activity (whether in the State or elsewhere) the disclosure of which could reasonably be expected: (a) to adversely affect the capacity of persons or bodies involved in the prevention of terrorist acts from preventing such acts or the capacity of intelligence agencies (for example, the Australian Security Intelligence Organisation) to carry out their functions, or (b) to prejudice criminal investigations or investigations by intelligence agencies, or (c) to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or the functions of intelligence agencies, or (d) to endanger a person's life or physical safety. terrorist act has the same meaning as in Part 5.3 of the Commonwealth Criminal Code."
Section 17A states: "17A Public interest immunity not abrogated Nothing in this Act operates to abrogate public interest immunity."
Section 50 provides: "50 Nature and conduct of proceedings (1) Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings. (2) To avoid doubt, a provision of this Act that provides for a document, report or other information to be admissible in proceedings under this Act despite any Act or law to the contrary does not affect any rule of evidence with respect to the relevance or probative value of the document, report or other information once it is admitted into evidence."
Part 5 (ss.57-61) contains the provisions of particular interest to this application. Part 5 states: "Division 5.1 Interpretation 57 Definitions In this Part: independent third party means a person appointed as an independent third party under section 59B. offender information means any document, report or other information that relates to the behaviour, beliefs, financial circumstances, or physical or mental condition, of an eligible offender, and includes terrorism intelligence about the offender. relevant indictable offence means an offence against a law of this State or any other Australian jurisdiction that may be prosecuted on indictment. substantive proceedings - see section 59A (1). terrorism intelligence application - see section 59A (1). Division 5.2 Requirements and requests for offender information 58 Requirement to provide offender information to Attorney General (1) The Attorney General may in the circumstances prescribed by the regulations, by order in writing served on a person, require that person to provide the Attorney General with offender information of a kind prescribed by the regulations that is in the person's possession or under the person's control. (2) A person on whom an order has been duly served must comply with the order. Maximum penalty (subsection (2)): (a) in the case of a corporation - 100 penalty units, or (b) in the case of an individual - 100 penalty units or imprisonment for 2 years (or both). 59 Request to provide offender information to Attorney General The Attorney General may request: (a) a court to provide any offender information to the Attorney General that is held by the court, or (b) a person in another Australian jurisdiction to provide offender information that is in the person's possession or under the person's control. Division 5.3 Use of information involving terrorism intelligence 59A Making terrorism intelligence applications (1) The Attorney General or a prescribed terrorism intelligence authority may: (a) make an application (a terrorism intelligence application) to the Supreme Court in any proceedings before the Court under this Act (the substantive proceedings) for particular information to be dealt with as terrorism intelligence in those proceedings, and (b) request that the Supreme Court take steps under section 59C to maintain the confidentiality of the information while the Court is considering whether to grant the application. (2) The Supreme Court must grant a terrorism intelligence application if the Court is satisfied that: (a) the information to which the application relates was provided to the Attorney General under Division 5.2, and (b) the information is terrorism intelligence. 59B Appointment and role of independent third parties (1) The Supreme Court must appoint a qualified person to be an independent third party representative for an eligible offender for the purposes of a terrorism intelligence application or the substantive proceedings (or both) if: (a) the eligible offender does not have any legal representatives in the substantive proceedings, or (b) the applicant in the terrorism intelligence application requests that the Court take the steps referred to in section 59C (2) (b), (c) or (d) to maintain the confidentiality of information. (2) A person is a qualified person for the purposes of subsection (1) if the person is a person of a kind prescribed by the regulations as being qualified to provide independent and impartial representation for eligible offenders for the purposes of this Division. (3) An independent third party representative for an eligible offender: (a) is to be allowed access to information or terrorism intelligence in respect of which the representative has been appointed by either being provided with a copy of the information or intelligence or being allowed to view it, and (b) may make such submissions to the Court on behalf of the eligible offender as the representative considers to be in the best interests of the offender concerning: (i) whether or not information is terrorism intelligence, or (ii) the level of access to terrorism intelligence that should be given to the offender under this Division. (4) The applicant in the terrorism intelligence application concerning the information or terrorism intelligence in respect of which an independent third party representative has been appointed is responsible for the payment of the costs of the services provided by the representative. 59C Steps to maintain confidentiality (1) The Supreme Court must take steps: (a) to maintain the confidentiality of information to which a terrorism intelligence application relates (including steps to receive evidence and hear argument about the information) until the application is determined, and (b) if the terrorism intelligence application is granted - to maintain the confidentiality of the terrorism intelligence in the substantive proceedings (including steps to receive evidence and hear argument about the intelligence in private). (2) The Supreme Court may allow any of the following forms of access to information or terrorism intelligence referred to in subsection (1) (having regard to what the Court considers appropriate because of the nature of the information or intelligence and the degree of risk of disclosure to non-parties by parties and their legal representatives and any other matter the Court considers relevant): (a) viewing, or providing a copy of, a document containing the information or intelligence, (b) viewing, or providing a copy of, a document containing the information or intelligence that has been redacted to the extent necessary to prevent the disclosure of the information or intelligence, (c) viewing, or providing a copy of, a document containing the information or intelligence that has been redacted to the extent necessary to prevent the disclosure of the information or intelligence together with a written summary of the nature of the redacted information or intelligence, (d) viewing, or providing a copy of, a document containing the information or intelligence that has been redacted to the extent necessary to prevent the disclosure of the information or intelligence together with a written statement of the facts that the information or intelligence would (or would be likely to) establish. (3) In allowing access to a document referred to in subsection (2), the Supreme Court may: (a) allow a party and the party's legal representatives, if any, to be provided with a copy of the document, or (b) allow a party's legal representatives, if any, to be provided with a copy of the document and the party to view (but not have a copy of) the document, or (c) allow a party's legal representatives to be provided with a copy of the document, but deny the party any form of access to the document, or (d) allow a party and the party's legal representatives, if any, to view (but not have a copy of) the document, or (e) allow a party's legal representatives, if any, to view (but not have a copy of) the document, but deny the party any form of access to the document. (4) Subsections (2) and (3): (a) are subject to any agreement under section 59E and the regulations, and (b) do not limit access that an independent third party for an eligible offender is required to be provided with under section 59B. 59D Withdrawal of information to which a terrorism intelligence application relates (1) The Supreme Court must give an affected person or body an opportunity to withdraw the information to which a terrorism intelligence application relates from consideration by the Court if: (a) the Court is not satisfied that the information is terrorism intelligence, or (b) the Court decides not to grant the level of access requested under section 59A (1) (b) in relation to the information. (2) Each of the following is an affected person or body: (a) the applicant in the terrorism intelligence application, (b) any prescribed terrorism intelligence authority that provided the information. (3) However, the Supreme Court is not required to allow the information to be withdrawn from consideration by the Court if the Court considers that its withdrawal would be manifestly unfair to a party to the substantive proceedings who is an eligible offender. (4) Any information that is withdrawn from consideration by the Supreme Court must not be: (a) disclosed to a party to the substantive proceedings who is an eligible offender or the offender's legal representatives, or (b) taken into consideration by the Supreme Court in determining the substantive proceedings. 59E Agreements concerning dealing with terrorism intelligence An agreement may be entered at any time in the substantive proceedings by the following persons as to arrangements about the disclosure, protection, storage, handling or destruction of the terrorism intelligence in the proceedings: (a) the Attorney General on behalf of the State, (b) if the terrorism intelligence is provided by a prescribed terrorism intelligence authority - the authority, (c) one or more other parties to the proceedings (or their legal representatives on their behalf). 59F Orders by Supreme Court (1) The Supreme Court may make any orders the Court considers appropriate: (a) to prohibit or restrict access to, or the disclosure or publication of, terrorism intelligence for the purposes of this Division, or (b) to give effect to an agreement under section 59E. (2) A person is guilty of an offence if the person contravenes an order under this section. Maximum penalty: (a) in the case of a corporation - 100 penalty units, or (b) in the case of an individual - 100 penalty units or imprisonment for 2 years (or both). (3) A person is guilty of an offence against this subsection if the person commits an offence against subsection (2) in circumstances in which the person: (a) intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation into a relevant indictable offence, or (b) knows that, or is reckless as to whether, the disclosure of the information: (i) endangers or will endanger the health or safety of any person, or (ii) prejudices or will prejudice the effective conduct of an investigation into a relevant indictable offence. Maximum penalty: imprisonment for 7 years. 60 Regulations concerning dealing with terrorism intelligence The regulations may make provision for or with respect to: (a) the ways in which terrorism intelligence to which this Division applies is to be stored, handled or destroyed, and (b) the ways in which, and places at which, terrorism intelligence to which this Division applies may be accessed and documents or records relating to such intelligence may be prepared. Division 5.4 General 60A Withdrawal from consideration of documents or reports for which public interest immunity claimed (1) This section applies in respect of a document or report provided to the Attorney General under this Part if the State, or a prescribed terrorism intelligence authority that provided it, makes a claim in proceedings before the Supreme Court under this Act that the document or report is subject to public interest immunity. (2) If the Supreme Court is not satisfied that the document or report is subject to public interest immunity, the Court must, before determining the claim for immunity, give the claimant an opportunity to withdraw the document or report from consideration by the Court in the proceedings. (3) However, the Supreme Court is not required to allow the document or report to be withdrawn from consideration in the proceedings if the Court considers that its withdrawal would be manifestly unfair to a party to the proceedings who is an eligible offender. (4) A document that is withdrawn from consideration by the Supreme Court must not be: (a) disclosed to a party to the proceedings who is an eligible offender or the offender's legal representatives, or (b) taken into consideration by the Supreme Court in determining any proceedings under this Act. 61 Admissibility of documents or reports provided under Part Any document or report (or a copy of a document or report) provided to the Attorney General under this Part is admissible in proceedings under this Act despite any Act or law to the contrary."
Given the issues raised on the present application, it is appropriate to set out Clause 6 Terrorism (High Risk Offenders) Regulation 2018 ("THRO Regulation") which states: "6 Prescribed circumstances (1) The Attorney General may require offender information about an eligible offender of the kind prescribed by clause 7 from a person (the required person) under section 58 of the Act only if the Attorney General is satisfied that: (a) the information is required for use in: (i) determining whether or not to make an application for a declaration under section 12, or an order under Part 2 or 3, of the Act, or (ii) proceedings under the Act, and (b) the required person is a compellable person, and (c) if the required person is neither a public authority nor a public official - the eligible offender could pose an unacceptable risk of committing a future serious terrorism offence. (2) Each of the following is a compellable person: Item Prescribed person 1 the Director of Public Prosecutions 2 the Commissioner of Corrective Services 3 the Commissioner of Police 4 the Commissioner of the New South Wales Crime Commission 5 the Secretary of the State Parole Authority 6 the Secretary of the Department of Family and Community Services 7 the Secretary of the Department of Justice 8 the Chairperson of the Serious Offenders Review Council 9 the Secretary of the Ministry of Health 10 the Chief Executive of Justice Health and Forensic Mental Health Network 11 the Registrar of Victims Services 12 the Executive Director of Juvenile Justice 13 a relevant official of the Serious Young Offenders Review Panel 14 the principal registrar of the Civil and Administrative Tribunal 15 the registrar of the Mental Health Review Tribunal 16 the Children's Guardian 17 a police officer 18 the Chief Executive of Roads and Maritime Services 19 the Secretary of the Department of Transport 20 the Secretary of the Department of Education 21 a financial institution 22 an associate or family member of the eligible offender 23 a carriage service provider within the meaning of the Telecommunications Act 1997 of the Commonwealth 24 an internet service provider within the meaning of the Telecommunications Act 1997 of the Commonwealth 25 a medical practitioner or former medical practitioner involved in providing medical treatment of the eligible offender (whether currently or previously) 26 a relevant official of an educational institution 27 a relevant official of a religious institution 28 a relevant official of any club, association or other organisation of which the eligible offender is or has been a member 29 an employer or former employer of the eligible offender 30 a chief executive of a statutory health organisation within the meaning of the Health Services Act 1997 31 a licensee within the meaning of the Private Health Facilities Act 2007 32 a chief executive officer, within the meaning of the Public Health Act 2010, of a public hospital (3) However, a compellable person does not include another Australian jurisdiction or a person exercising functions for or on behalf of another Australian jurisdiction."
On this application, the documents in question were provided by two prescribed persons, being "the Commissioner of Corrective Services" (Item 2) and "the Commissioner of Police" (Item 3).
Clause 7 THRO Regulation provides: "7 Prescribed offender information (1) The Attorney General may require only the following kinds of offender information about an eligible offender under section 58 of the Act: Item Prescribed information 1 psychological or other medical reports about the eligible offender (including documents about treatment programs in which the eligible offender has participated) 2 custodial records about the eligible offender (including documents containing information about intervention programs in which the eligible offender has participated) 3 parole and community supervision records about the eligible offender 4 reports, records or other documents about applications for compensation made in respect of the eligible offender 5 reports, records or other documents about the eligible offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere and sentencing remarks by courts) 6 reports, records or other documents about data and telephone usage and call charges of the eligible offender 7 reports, records or other documents containing information about the eligible offender's membership, or the membership of associates of the eligible offender, in a club, association or other organisation 8 reports, records or other documents about the eligible offender's educational history (including the offender's behaviour at an educational institution) 9 reports, records or other documents containing information about the eligible offender's work and employment history (including the offender's behaviour at work) 10 reports, records or other documents containing information about the religious beliefs or ideologies of the eligible offender or associates of the eligible offender 11 reports, records or other documents containing financial information relevant to offences committed, or the funding of actual or potential terrorism activities, by the eligible offender 12 reports, records or other documents containing information about the behaviour or patterns of behaviour of the eligible offender while in custody 13 letters or correspondence of the eligible offender to an associate or family member 14 books, magazines, pamphlets or other publications possessed by the eligible offender containing material advocating support for engaging in any terrorist acts 15 information about material posted on the internet (including on social media websites) by the eligible offender advocating support for engaging in any terrorist acts 16 reports, records or other documents containing information about the participation of the eligible offender in programs or intervention plans for the assistance of individuals identified as being at risk of engaging in violent extremism (2) The only type of information that the Attorney General can require is pre-existing documents."
Clause 8 THRO Regulation provides for "prescribed terrorism intelligence authorities": "8 Prescribed terrorism intelligence authorities Each of the following authorities or agencies are prescribed for the purposes of the definition of prescribed terrorism intelligence authority in section 4 (1) of the Act: Item Prescribed authority or agency 1 Independent Commission Against Corruption of New South Wales (including its Inspector) 2 Law Enforcement Conduct Commission of New South Wales (including its Inspector) 3 New South Wales Crime Commission 4 NSW Police Force 5 Corrective Services NSW"
It will be observed that "NSW Police Force" and "Corrective Services NSW" are both prescribed terrorism intelligence authorities for the purpose of the THRO Act.

Material Tendered by the Attorney General on the Application

At the hearing on 23 July 2019, the Attorney General read the following affidavits: 1. open affidavit sworn 11 July 2019 by Mark Wilson, Assistant Commissioner, Security and Intelligence, Corrective Services New South Wales ("CSNSW"); 2. confidential affidavit of Mark Wilson sworn 11 July 2019, together with confidential Exhibit MW-1 which contained six documents which were the subject of the application; 3. confidential affidavit of Assistant Commissioner Wilson sworn 18 July 2019; 4. affidavit sworn 17 July 2019 by Jonathan Vasiliou, solicitor; 5. open affidavit sworn 18 July 2019 of Gelina Talbot, Assistant Commissioner of Police; 6. confidential affidavit of Assistant Commissioner Talbot sworn 18 July 2019, together with confidential Exhibit GT-1 which contained the seventh document which was the subject of the application.
Objections were taken by the Defendant to a number of paragraphs in the open and confidential affidavits of Assistant Commissioner Talbot sworn 18 July 2019. Objections were made, as well, to parts of the open and confidential affidavits of Assistant Commissioner Wilson sworn 11 July 2019.
Specific objections were taken upon the basis that the deponents expressed opinions which were not admissible under s.76 Evidence Act 1995, that parts of the affidavits were not relevant and thus not admissible under s.56(2) Evidence Act 1995 and that parts of the affidavits impermissibly summarised the contents of other documents which were in evidence.
A general objection taken to all affidavits of Assistant Commissioner Wilson and Assistant Commissioner Talbot was that each purported to give expert evidence and that the affidavits did not comply with Part 31 Uniform Civil Procedure Rules 2005 ("UCPR") in that there was no acknowledgement by either deponent that he or she had read and was bound by the Expert Witness Code of Conduct for the purpose of Rule 31.23 UCPR.
There was no objection to the affidavit of Mr Vasiliou sworn 17 July 2019.
I determined that the appropriate way forward was for submissions to be made upon all issues without an initial ruling on admissibility with the present judgment to contain rulings on admissibility and remaining issues. If the Court determined that the evidence of Assistant Commissioner Wilson and Assistant Commissioner Talbot constituted expert opinion evidence, I indicated that the Attorney General would be given an opportunity to obtain from those witnesses necessary certificates concerning the Expert Evidence Code of Conduct after the judgment was delivered.
The only evidence relied upon for the Defendant was the affidavit of Rhiannon McMillan affirmed 22 July 2019, which related to the question of the costs of 18 July 2019.

Issues for Determination on the Present Application

The issues to be determined in this judgment include: 1. rulings on the Defendant's objections to parts of the evidence relied upon by the Attorney General; 2. a decision as to whether the Attorney General has established the elements contained in s.59A THRO Act; 3. if the s.59A application succeeds, the nature of orders to be made with respect to "terrorism intelligence" under s.59C(2) THRO Act.
Given the need for a prompt determination of these issues because of the proximity of the interlocutory hearing on 6 August 2019, I will move as directly as possible to the resolution of the matters falling for determination.

Objections to Evidence

At the outset, I observe that proceedings under the THRO Act (including the present s.59A application) are civil proceedings in relation to which the rules of evidence apply: s.50(1) THRO Act.
Documents provided to the Attorney General under Part 5 are admissible in proceedings under the THRO Act despite any law to the contrary: s.61 THRO Act. However, any rule of evidence with respect to relevance or probative value of a document, report or other information applies once the item is admitted into evidence: s.50(2) THRO Act.
The Defendant's objection does not relate to the seven documents themselves. There is a submission that two of these seven documents were not provided to the Attorney General under s.58 THRO Act, but that does not attract any provision of the Evidence Act 1995.
The objection relates to parts of the affidavits upon which the Attorney General seeks to rely on the present application. Section 61 THRO Act does not render those affidavits admissible. They are not documents provided to the Attorney General under Part 5. The provisions of the Evidence Act 1995 apply with respect to the objections to parts of the affidavits.
In circumstances where this judgment will be published openly, care must be taken so that confidential material is not disclosed directly or indirectly. In the same way as applies to a judgment on a public interest immunity claim, this judgment should be expressed in general terms in a manner which maintains confidentiality of the material which is the subject of the claim: R v Francis (2004) 145 A Crim R 233 at 237-238; [2004] NSWCCA 85 at [22], [26]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 596; [2008] HCA 4 at [185].
The affidavits of Assistant Commissioner Wilson and Assistant Commissioner Talbot explained the nature and significance of the seven categories of documents which are the subject of this application. Each deponent explained the functioning of his or her particular agency and intelligence gathering processes and investigatory processes undertaken, with Assistant Commissioner Wilson referring especially to these activities in what is a specialist custodial setting.
The fact that each of these deponents was giving evidence concerning documents which were not created by either of them is not a basis for circumscribing the evidence which they could give on an interlocutory application such as this. Each deponent explained his or her role and the authority under which each came to swear the affidavits in question. The contents of these affidavits are of a type made frequently by senior members of the New South Wales Police Force or other investigatory agencies in support of a claim of public interest immunity.
I have kept in mind that the present application does not involve a claim of public interest immunity which is not abrogated by the statute: s.17A THRO Act. Certain parts of the documents in question have been redacted already on the basis of public interest immunity. What is sought here by the Attorney General is that certain other information contained in the seven documents be made subject to a s.59A order.
Whilst acknowledging the different nature of this application, the procedure utilised in public interest immunity claims provides a useful analogy concerning issues of admissibility. Affidavits made in support of public interest immunity claims frequently include evidence of the type contained in the affidavits of Assistant Commissioner Wilson and Assistant Commissioner Talbot. Evidence of this type provides a description of the documents in question (which invariably are not documents created by the deponent), the function of the agency in question and the particular way in which it is contended that the public interest would be compromised through disclosure. Whilst noting s.130(3) Evidence Act 1995 concerning a public interest immunity claim, I consider that the broad procedural approach to be adopted on the present application may be informed usefully by procedure on a public interest immunity claim.
Section 76(1) Evidence Act 1995 provides that "evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". Section 77 Evidence Act 1995 provides that the opinion rule in s.76(1) does not operate to exclude an opinion which is relevant otherwise than as opinion evidence.
I accept the submission made by the Attorney General that the affidavits of Assistant Commissioner Wilson and Assistant Commissioner Talbot are not sought to be admitted as s.76 opinion evidence on this interlocutory application. The evidence which each deponent gives deals with factual issues and includes factual evidence which bears upon the particular qualified concepts which the Court must consider in determining whether the information in the seven documents falls within the definition of "terrorism intelligence" in s.4(1) THRO Act.
Further, the evidence of Assistant Commissioner Wilson and Assistant Commissioner Talbot does not constitute expert evidence. It is not necessary for either deponent to comply with Rule 31.23 UCPR which has no application.
In the same way as a statement by a member of the National Crime Authority concerned fact and not opinion in Bank of Valletta Inc v National Crime Authority (1999) 90 FCR 565 at 569-570; [1999] FCA 1099 at [20]-[22], I consider that the bulk of the affidavits of the two deponents on the present application relate to fact and not opinion. The fact that the relevant agency holds an opinion is a matter directly relevant to whether it could reasonably be expected to have any of the four effects within the definition of "terrorism intelligence": Pfizer Ireland Pharmaceuticals and Others v Samsung Bioepsis AU Pty Limited (2017) 257 FCR 62 at 102-103; [2017] FCAFC 193 at [151]-[152].
With respect to the objection as to relevance, I am well satisfied that the parts of the affidavits objected to on this basis are relevant to the issues which the Court must determine on the s.59A application, having regard to ss.55 and 56 Evidence Act 1995. It is for the Court to determine whether the requirements of s.59A THRO Act are met and the tendered evidence is relevant to those issues.
Further, I do not consider that the inclusion of summaries of parts of the seven documents renders any parts of the affidavits inadmissible. The primary documents have been tendered as well and the summary of those documents in the affidavits assists the Court in the discharge of its function on this interlocutory application.
I overrule the objections made on behalf of the Defendant to parts of the affidavits of Assistant Commissioner Wilson and Assistant Commissioner Talbot.
I should observe, in any event, that the only objection to the confidential affidavit of Assistant Commissioner Wilson sworn 18 July 2019 concerned the expert evidence argument which I have rejected. As will be seen, it was this affidavit which was of particular assistance concerning my rulings on the six documents produced to the Attorney General by CSNSW.

Construing Particular Parts of the THRO Act

Before moving to consider the seven documents subject to the present application, it is appropriate to say something further about features of the legislative scheme with which the Court is presently engaged.
The definition of "terrorism intelligence" in s.4(1) picks up other defined terms including "terrorism activity" and "terrorist act".
The term "terrorism activity" extends to statements or other conduct of "any person or group of persons" who engage in the nominated activities. In the present case, to fall within "terrorism intelligence", it is not necessary that the information in question relate directly to the Defendant. The question as to whether the seven documents (or any of them) relate directly or indirectly to the Defendant is not a pertinent consideration on this application. That issue may well arise at a later hearing under the Summons given the need for evidence to be relevant to the application made with respect to the Defendant in the principal proceedings: s.50(2) THRO Act. However, that is not the case on this application.
It is necessary to note the breadth of the definition of "terrorism intelligence" in s.4(1) THRO Act. The term widens significantly the statutory term "terrorism activity". This is understandable as "terrorism intelligence" involves the less concrete concept of "intelligence". The term "intelligence" is understood as extending to direct or indirect information which falls short of being evidence. The use of the term "terrorism intelligence" is understandable given the primary object in s.3(1) THRO Act (ensuring the safety and protection of the community) and the range of concepts engaged by the definitions of "terrorist activity" and "terrorist act" in s.4(1), with the latter definition incorporating by reference the elaborate provisions in s.100(1) and (2) Criminal Code (Cth).
The definition states that the term means "information relating to actual or suspected terrorism activity (whether in the State or elsewhere) …". It is sufficient that the "terrorism activity" be "suspected" to fall within the definition.
The words "relating to" can have a broad or narrow operation depending essentially upon statutory context: Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209 at [67]. It has been said that the words "relating to" are extremely wide and require the existence of a connection or association between the two elements: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 387; [1998] HCA 28 at [87]. I see no reason to confine the words "relating to" in the definition of "terrorism intelligence" in a narrow way. In my view, the words are used in a manner which is intended to broaden "information" which is capable of falling within the term "terrorism intelligence".
The definition of "terrorism intelligence" means the stated information "the disclosure of which could reasonably be expected" to have one or more of the attributes or consequences referred to in subparagraphs (a) to (d) of the definition. In Attorney General's Department and Australian Iron and Steel Pty Limited v Cockcroft (1986) 10 FCR 180, Bowen CJ and Beaumont J said at 190 with respect to a similar phrase in the Freedom of Information Act 1982 (Cth): "In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like."
In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 445-456; [2006] HCA 45 at [61], Hayne J applied this passage without criticism or reservation.
The proper construction of the term "could reasonably be expected" in the definition of "terrorism intelligence" in s.4(1) THRO Act is assisted by reference to these authorities. The words should be given their ordinary meaning.
The Court must consider whether "disclosure" of information which falls within the opening words of the definition "could reasonably be expected" gives rise to one or more of the four consequences listed in subparagraphs (a) to (d). This involves a form of risk assessment. The process involves the use of qualified terms concerning an assessment as to the prospect of adversely affecting the capacity of persons or bodies to carry out certain functions or to prejudice nominated forms of investigation or enable the discovery of certain forms of information or endanger a person's life or physical safety. The concepts of prejudice and the risk of disclosure bear certain similarities to features of public interest immunity under s.130(4) Evidence Act 1995.
The term "intelligence agencies" appears in subparagraphs (a), (b) and (c). The term is not defined in the THRO Act although subparagraph (c) provides an example by way of the Australian Security Intelligence Organisation. I noted earlier (at [17]) that the definition of "prescribed terrorism intelligence authority" includes expressly the "NSW Police Force" and "Corrective Services NSW". In my view, this is a statutory indicator that these agencies are capable of falling within the undefined term "intelligence agencies". The evidence of Assistant Commissioner Wilson and Assistant Commissioner Talbot identify the intelligence and investigatory functions of these agencies carried out to ensure the safety and protection of the community. There are persons detained in New South Wales correctional centres for terrorism offences and persons who are said to have become radicalised and supportive of violent extremism even if they were sentenced originally for non-terrorist offences. The submission of Senior Counsel the Defendant that CSNSW is engaged, at the highest, in "prisoner watching" (T51.46) is misconceived both as to the statutory obligations of the Commissioner of Corrective Services and the officers of CSNSW and issues which are part of the contemporary reality in the prison system.
It is necessary to apply the statutory language in determining whether information contained within the seven documents falls within the definition of "terrorism intelligence". In this respect, the extended form of the language contained within that definition (and related definitions) must be kept in mind.
Submissions were directed to the meaning of the words "violent extremism' as contained in the definition of "terrorism activity" in s.4(1) THRO Act. This term is not defined in the statute. It was submitted for the Attorney General that the term "violent extremism" should be interpreted as extremist views with violent intent. The submission for the Defendant was that this was not an apt statement of the statutory term.
It is necessary to keep in mind the context "engaging in any terrorist acts or violent extremism" in the definition of "terrorism activity". However, the term "terrorism intelligence" means information relating to actual or suspected terrorism activity. The holding of extremist views with violent intent may be accommodated readily within the words "information relating to actual or suspected terrorism activity".

Considering the Seven Documents

It is appropriate now to turn to the seven categories of documents to be considered on this application. It is inappropriate, of course, for this judgment to reveal the contents of the documents which are said to constitute "terrorism intelligence" for the purpose of s.59A THRO Act. In doing so, I will keep in mind the approach referred to at [31] above concerning the maintaining of confidentiality.
Before doing so, it is necessary to note two pieces of evidence which relate to the risk of disclosure of material by the Defendant if he was provided with the documents which are the subject of this application.
The open affidavit of Assistant Commissioner Wilson sworn 11 July 2019 has annexed to it a letter from the Defendant intercepted by correctional officers on 19 June 2019 which was addressed to Milad Al Ahmadzai. Part of the Defendant's letter was written on the back of a Corrections Intelligence Group ("CIG") intelligence report which had been served on the Defendant in the course of parole proceedings in which he was unrepresented. It was submitted for the Attorney General that the Defendant's writing of a letter which included a page of a CIG intelligence report bore upon the risk that the Defendant would further disseminate any information which he received in these proceedings. The Defendant's letter has a strong religious flavour reflecting his Islamic beliefs. The Defendant states he is "half Aussi [sic] half Kiwi" and has "been practising Islam properly God willing for the last 3 years". The Defendant continues: "Obviouly [sic] what there [sic] trying to do is interlink all so called associates togher [sic] to try build a case that way it looks good 4 them in court. To try get this 3 year detention order to stick."
The Defendant's supply of the intelligence report to Mr Al Ahmazdai is linked with the Defendant's belief as to how it may be useful against him on the THRO Act application. This is a concerning feature on the s.59A application.
Further, Annexure A to the confidential affidavit of Assistant Commissioner Wilson sworn 18 July 2019 reveals troubling aspects of the thought processes of the Defendant which bear upon the areas to be considered in subparagraphs (a) to (d) of the definition of "terrorism intelligence" in s.4(1) THRO Act. It is not appropriate to say more than that in the present judgment. Document 1 - IR-15-1838
This is a document described in the confidential affidavit of Assistant Commissioner Wilson sworn 11 July 2019 which is contained in confidential Exhibit MW-1.
It was submitted for the Defendant that this document did not fit the description of "prescribed offender information" within Clause 7 THRO Regulation and was not required to be produced by the order of the Attorney General under s.58 THRO Act.
I do not accept this submission. In my view, the requirement in s.59A(2)(a) THRO Act is met when the information was provided to the Attorney General in response to an order under s.58 THRO Act. The affidavit of Mr Vasiliou sworn 17 July 2019 demonstrates that this was the case. Compliance with s.59A(2)(a) THRO Act does not require more than provision of the information in response to a notice. It is not necessary for the Attorney General's notice to contain any more than that which is contained in the notice annexed to the affidavit of Mr Vasiliou, which led to the production of the documents itemised at page 85 of that affidavit.
Document 1 is an intelligence report prepared within the CIG of CSNSW, the functions and duties of which are explained by Assistant Commissioner Wilson. The document related to the Defendant with the parts which are the subject of the present claim referring to others. The document falls within Clause 7 of the THRO Regulation, Item 10.
With respect to the document itself, the confidential affidavit of Assistant Commissioner Wilson sworn 18 July 2019 (paragraphs 11-17) makes clear, in a persuasive way, the potential use which could be made of this document. In reaching a conclusion concerning this document, I have had regard to an examination of the contents of the document on its face together with, in particular, the confidential affidavit of Assistant Commissioner Wilson.
I am satisfied that the part of Document 1 which is the subject of the present claim constitutes "terrorism intelligence" as the information relates to suspected terrorism activity, the disclosure of which could reasonably be expected to enable the discovery of [redacted]. The fact that the information refers to another person is not to the point as that person is said to be an associate of the Defendant. Document 2 - IR-18-2755
The Defendant did not raise a s.58 production argument concerning this document.
This document is an intelligence report of the CIG and is referred to in the confidential affidavit of Assistant Commissioner Wilson sworn 18 July 2019 (paragraphs 18-22). An examination of the document on its face, and the additional evidence contained in the affidavit of Assistant Commissioner Wilson, assists the Court in an understanding of the document. It is, of course, necessary to read the entirety of the document and not confine attention to particular words or phrases in the parts which are subject to the s.59A application. The part of the document which is the subject of this application refers to other persons who are said to be associates of the Defendant with those other persons said to hold "violent extremist ideologies".
I am well satisfied that Document 2 falls within the definition of "terrorism intelligence". Document 3 - IR-18-3138
This is an intelligence report of the CIG. I have examined the document and had regard, as well, to the confidential affidavit of Assistant Commissioner Wilson sworn 18 July 2019 (paragraphs 23-29).
It was submitted for the Defendant that this document was not provided to the Attorney General under s.58 THRO Act so that the requirement of s.59A(2)(a) was not met with respect to it. I do not accept that submission. I am satisfied that this document falls within the definition of "offender information" in s.57 THRO Act. The notice attached to the affidavit of Mr Vasiliou is sufficient to catch this document. I am satisfied that the document falls within Items 7 and 10 of Clause 7 of the THRO Regulation.
Once again, the document (and the claimed parts) must be read as a whole and not piecemeal. The subject matter of the claimed parts falls within the definition of "terrorism intelligence" with particular reference to subparagraph (a).
I am satisfied that Document 3 falls within the definition of "terrorism intelligence". Document 4 - IR-19-0521
No issue is raised by the Defendant concerning s.58 production of this document.
This document is an intelligence report of the CIG which relates to the Defendant and another person. Part of the document (which is not the subject of the present claim) refers to the attendance by the Defendant at the Ahlus Sunnah Wal Jamaat Mosque in Auburn which was linked to a number of persons including Mr Al Ahmadzai.
The part of this document which is subject to a s.59A claim refers to extremist topics in a manner which, in my view, bring those parts of the document within the definition of "terrorism intelligence", with particular reference to subparagraph (a) of the definition. Document 5 - IR-19-0608
No issue is raised by the Defendant concerning s.58 production of this document.
This is an intelligence report of the CIG relating to the Defendant. The part of the document which is the subject of the present claim refers to the Defendant and others in a manner further described by Assistant Commissioner Wilson in his confidential affidavit of 18 July 2019 (paragraphs 35-39).
Having considered the content of the document itself in conjunction with the affidavit of Assistant Commissioner Wilson, I am satisfied that the document constitutes "terrorism intelligence" for the purpose of s.4 THRO Act. Document 6 - IR-19-0746
This is an intelligence report of the CIG relating to the Defendant. The confidential affidavit of Assistant Commissioner Wilson sworn 18 July 2019 (paragraphs 40-41) relates to this document.
I have considered the contents of the document which are the subject of the claim, together with the confidential affidavit of Assistant Commissioner Wilson. Once again, they must be read as a whole and not piecemeal. Having done so, I am satisfied that the parts of the document which are the subject of this claim fall within the definition of "terrorism intelligence", with particular reference to subparagraph (a) of the definition. Document 7 - New South Wales Police Information Report Summary I 115320301
The confidential affidavit of Assistant Commissioner Talbot sworn 18 July 2019 relates to this document. The information report refers to the Defendant and other persons.
Having considered the contents of the document itself and the confidential affidavit of Assistant Commissioner Talbot, I am satisfied that the parts of this document which are the subject of the claim constitute "terrorism intelligence" for the purpose of the Act, with particular reference to subparagraph (a) of the definition.

Conclusion Concerning s.59A THRO Act Application

Having considered the relevant statutory provisions, the evidence adduced in support of the claim by the Attorney General, the documents which are the subject of the claim and the submissions of the Attorney General and the Defendant, I am satisfied that the requirements of s.59A(1) and (2) THRO Act have been satisfied with respect to each of the seven documents.
Accordingly, the Court must grant the terrorism intelligence application with respect to those seven documents.

Steps to Maintain Confidentiality Under s.59C THRO Act

As the terrorism intelligence application has been granted with respect to the seven documents, the Court must take steps, in accordance with s.59C(1)(b) THRO Act, to maintain the confidentiality of the terrorism intelligence in the substantive proceedings (including steps to receive evidence and hear argument about the intelligence in private).
The Court may make orders, in the exercise of discretion, in accordance with s.59C(2) and (3) THRO Act.
In the Further Amended Notice of Motion, the Attorney General seeks orders with respect to the information which comprises terrorism intelligence in accordance with s.59C(2)(a) and (3)(e) THRO Act. I am satisfied that orders to that effect should be made in this case. I am conscious that the making of this order will mean that the Defendant will not be able to see this information himself for the purpose of the proceedings. On the evidence adduced on this application, including the Defendant's letter and the matters referred to at [59]-[62] above, it is not appropriate to permit the Defendant to see this material.
The Defendant's legal representatives will have an opportunity to consider this material (as they have already) for the purpose of the remaining phases of the principal proceedings, although not to retain copies.
The Attorney General sought as well in the Further Amended Notice of Motion an order that the evidence and submissions on the hearing of this application in the form of confidential affidavits and unredacted submissions of the Attorney General dated 22 July 2019, be marked confidential and not be disclosed to the Defendant.
It was submitted for the Defendant that the Court did not have power to make such an order and that, even if it did, such an order should not be made in the circumstances of the case.
Having regard to the statutory scheme under Part 5 THRO Act, I consider it to be appropriate to protect the confidentiality of material which the Court has had regard to in ruling upon the terrorism intelligence application of the Attorney General, conducted in closed court. I will make an order in accordance with paragraph 13 of the Further Amended Notice of Motion.

Costs

The Court was informed that the Defendant sought to make an application that the Attorney General pay the Defendant's costs of the hearing on 18 July 2019 which was adjourned because of the late steps taken by the Attorney General. It was submitted that substantial work had been carried out on behalf of the Defendant in anticipation of a claim which, on the morning of the hearing, narrowed substantially.
I will allow the parties an opportunity to provide written submissions with that application to be determined on the papers.
The parties should provide, by email to my Associate by 4.00 pm today, Short Minutes of Order to give effect to this judgment, including a timetable for submissions on the Defendant's application for costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 October 2023

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