Traljesic v Attorney-General of the Commonwealth of Australia

REASONS FOR JUDGMENT 1 In this matter the applicant seeks review of a certificate issued by the Attorney- General of the Commonwealth under sections 36, 39A and 39B of the Administrative Appeals Tribunal Act 1975 (Cth) ('the Act'). The grounds pressed in argument were, first, that the Attorney-General in granting the certificate took into account an irrelevant consideration, namely mere risk, unsubstantiated in the context of the present case, of inadvertent disclosure and, secondly, that the decision was a decision which was so unreasonable that no reasonable decision-maker could have come to it.

BACKGROUND 2 The circumstances in which the certificate came to be issued involve a challenge in the Administrative Appeals Tribunal ('the Tribunal') by the applicant of the decision to take away his Australian passport and to give him an adverse security assessment. The security assessment recommended that action be taken under the Passports Act 1938 (Cth) to cancel and prevent the re-issue of the applicant's Australian passport. The assessment was provided to the Secretary to the Department of Foreign Affairs and Trade. The Minister for Foreign Affairs and Trade directed that the applicant's passport be cancelled and prevented its re-issue on 4 December 2003 and he was advised of that on 9 December 2003. On 19 December 2003 the applicant lodged an application in the Tribunal which challenged the adverse security assessment issued by the Director General of Security ('the Director General') and the decision of the Minister for Foreign Affairs and Trade who cancelled his passport. 3 The first challenge is to be heard and determined by the Security Appeals division of the Tribunal pursuant to section 39A of the Act. The second is to be heard and determined by the general division of the Tribunal. As I understand it, both challenges are to be heard concurrently in the Tribunal. During the processes within the Tribunal an earlier certificate by the Attorney-General under the same provisions had been issued but in December 2004 the solicitor for the applicant was invited to comment on a number of matters so that the Attorney-General might reconsider the issue of the earlier certificate at least so far as it affected the solicitor for the applicant, Mr Hopper. 4 Mr Hopper has been granted a security classification entitling him access to information that is classified to the secret level within the Australian security arrangements, although it is only in respect of such documents to that level as those in control of them within the executive choose to show him. There is no suggestion made in these proceedings that challenges Mr Hopper's integrity or the evidence which he has given as to attempts he would make to keep confidential and abide by any decisions or directions under legislation for the keeping confidential material which might be disclosed to him pursuant to the application he made to the Attorney-General. 5 In a letter dated 3 December 2004 the Australian Government Solicitor invited Mr Hopper to comment on the following matters: '3. In order to assist the Attorney-General to reconsider his previous decision not to consent to a representative of the applicant being present during the closed hearing we therefore invite you to address the following matters: 3.1. The fact that, whatever the safeguards, your access to the certificated material is an encroachment upon its confidentiality (Commonwealth v Northern Land Council (1992-93) 176 CLR 604 at 620). 3.2. The risk of you disclosing, inadvertently or otherwise, sensitive ASIO information to your client, one of your other clients, or another person. a. You have represented, or currently represent, a number of members of the Islamic community in Sydney who have been the subject of investigation by ASIO. In the present case, some of the documents refer to other individuals who are also current or former clients of yours. The risk of inadvertent disclosure is increased because it may not be self-evident to you that asking a particular (apparently benign) question of your client or other persons, could reveal to your client or the other person(s) some aspect of the certificated material. b. The risk of inadvertent disclosure of national security information has been recognised by Courts without reflecting in any way upon the integrity of the particular legal representative. The risk may increase with the volume of material, the complexity and protractedness of the legal proceedings and the passage of time. Once the certificated material became part of your general knowledge it may be difficult for you to recall its source and ensure non-disclosure. c. As noted by Justice Wilcox in Jackson v Wells 5 FCR 296, 'It seems ... merely commonsense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure'. 3.3. The potentially serious consequences if such disclosure occurred. a. Disclosure of the certificated information (and related submissions) would also result in the disclosure to others of ASIO's modus operandi and ongoing investigations. The ongoing maintenance of confidentiality of ASIO sources of information and modus operandi is essential for ASIO to carry out its functions, including ASIO's ability to provide advice to the Australian government on matters relating to security. b. Disclosure of modus operandi and details of ongoing investigations could alert targets and thereby enable them to take counter intelligence steps which could adversely affect ASIO's ability to gather useful and important intelligence. c. Disclosure of the certificated material couldreveal to Mr Traljesic and other current or prospective targets of ASIO's areas of interest and the extent of its ability or effectiveness in obtaining intelligence. 3.4. The extent to which your being present (when the certificated evidence is given or submissions are made) is likely to assist your client. You may be able to make submissions about such things as the likely reliability, plausibility or relevance of evidence given or submissions made that could affect the weight the Tribunal would attach to such evidence or submissions. You would not, however, be able to tell your client anything which would disclose certificated evidence or related submissions. This prohibition may well mean that your client will not be able to adduce any responsive evidence.' 6 On 12 December 2004 Mr Hopper responded to the Attorney's invitation in the following terms: 'We refer to the above and your correspondence of 3 December 2004. We are obliged for the opportunity to address the concerns raised by the Attorney General in relation to certificated material. We make the following submissions in reply to your correspondence and adopt your paragraph numbering for clarity: 3.1 It is quite clear to the writer that certified materials are highly sensitive to the interests of national security and access to such materials by the writer is acknowledged as an encroachment upon their confidentiality. As such the writer recognises the special responsibility placed on him if access is permitted. Nonetheless, the immunity sought by the Attorney General is subject to a competing interest being the proper administration of justice. In the particular case the interest of the proper administration of justice is superior as our client has had the right of international travel denied based on serious allegations contained in the ASIO security assessment. This administrative decision has been made on the basis of this adverse security assessment. A significant portion of the evidence in support of the security assessment is subject to a certificate restricting access to it. For our client to obtain even the basic level of procedural fairness and natural justice it is imperative that the writer, who holds the appropriate security clearance, be permitted access to certified material and be permitted to make submissions to the Tribunal at in camera hearings. 3.2 The writer submits that the risk of a willful or inadvertent disclosure is non-existent. a. The writer acknowledges that he has represented a number of clients subject to ASIO investigations in the past and currently. The writer represents 3 clients in "passport cases" and one in a civil litigation. The writer further represents another client held in Guantanamo Bay but has not communicated with this client. The writer has also represented and provided legal advise [sic] to a number of other people who have been [sic] subject of ASIO investigations but for various reasons does not represent such people anymore and is unlikely to have any further contact with all but a few of these former client [sic]. From representing such clients the writer has a significant understanding of various methods employed by ASIO during investigations. As a consequence the writer is acutely aware of sensitivities related to such knowledge obtained and to providing appropriate lawful advice to clients subject to ASIO scrutiny without compromising the interests of national security. In the present case the writer's experience in dealing with matters of national security would assist him in ensuring no deliberate or inadvertent disclosure of certified material would occur. The writer has discussed the matter of accessing certified material with Mr Traljesic and other relevant active clients of this practice in Australia and advised them that he would not be able to disclose any certified material to them. Further, the writer has advised these clients that when he is attending to one client's matter he may obtain information from certified material attending relating to another client and would not be able to disclose the information to either client. These clients instructed the writer that they understood this and had no objections if such were the case. Accordingly, there would be no expectation by the clients for the writer to disclose any certified material to them. The clients are also aware that if any information exposes a conflict of interest then the writer will have to cease to act for those whom the conflict applies. b. The writer understands the importance of retaining a clear knowledge of the source of information related to national security as a strategy to prevent inadvertent disclosure. The writer will always, and has always, checked the source of information prior to disclosure if there is any uncertainty as to the information's source. c. The writer acknowledges the obita dicta in Jackson v Wells and submits that the writer being permitted access to certified material and in camera hearings is entirely consistent with the principle. The writer has the appropriate security clearance and as he represents a number of clients with such matters any information would be restricted to the one person. This has to be advantageous to a situation where numerous persons had separate representatives. It should be further noted that disclosure of any certified information to any source would be a serious ethical breach of the solicitor's practice rules and would be reportable to the Law Society. A significant possibility would exist that the writer would be struck off the role of solicitors if a deliberate or negligent disclosure of certified information was made. The writer takes very seriously his role as an officer of the court and is aware that his duty to the court outweighs that to his clients. 3.3 The writer is well aware of the serious consequences of a deliberate or inadvertent disclosure of certified information. a. The writer acknowledges that disclosure of sources of information, being persons, documents or devices, would seriously prejudice the operations of ASIO and the interests of national security. The writer is aware that the disclosure of the name of a person who is a source of information to ASIO would place that person at significant risk of harm. Given these sensitivities the writer understands that he would have a special responsibility not to disclose sources of information. The writer undertakes not to disclose sources of information of ASIO and to employ the highest degree of prudence to ensure that no inadvertent disclosure occurs. b. The writer undertakes not to disclose any information obtained from certified information regarding the modus operandi of ASIO and details about ongoing operations to any person or client. The writer is aware of the nature of counter intelligence and would be extremely prudent with any certified information obtained to prevent it being disclosed and used to undermine the efforts of ASIO and other relevant authorities. c. The writer acknowledges the Government's concerns in this paragraph. It is the writer's role to represent clients legally and not assist them in activities that may be detrimental to the national security or to otherwise offend the laws of Australia. Accordingly, the writer is aware that disclosure of certified material could be of great prejudice to ASIO and the national interest. As such the writer undertakes not to deliberately disclose certified information and employ the highest degree of prudence to avoid inadvertent disclosure of such information. 3.4 The writer acknowledges that we would not be able to disclose any certified information obtained from documents or in camera proceedings to any client, counsel or other person. Without prior knowledge of the material we cannot submit specifically to what extent the writer can assist our client. Notwithstanding that, the writer agrees that he can assist as you have outlined in paragraph 3.4. Furthermore, the writer has a significant understanding of the client's mindset, social background, culture and his philosophy toward Islam. This information may well assist our client in relation to any analysis of his comments by ASIO or others. The writer's presence would also ensure that our client was treated fairly in relation to the admission of evidence and submissions by the Government. This is significant in the circumstances as the client cannot be present and is up against a well resourced Government that has taken action to restrict his right to international travel based on serious allegations that have criminal undertones. Summary The writer has been involved in matters involving ASIO and national security since October 2001. This has involved providing advice to numerous clients, instigating court and tribunal proceedings and public comment. The writer is one of the few non-government lawyers who has obtained a security clearance that is at the appropriate level to have access to certified material. There are competing interests at stake in this matter. That of the public interest to maintain national security, over that of the proper administration of justice. Given the resources of the Government and the fact that our client is not permitted access to certified information or in camera proceedings the interest of the proper administration of justice is superior. This is buttressed by the writers exposure to national security matters and the acute awareness of the sensitivities of restricted information and the consequences that would flow from its disclosure. The writer undertakes that any certified information will not be disclosed to the client, the client's counsel or any other person other than strictly authorised by the Government. The writer further undertakes to employ the highest degree of prudence to prevent inadvertent disclosure of certified information. The writer is aware that disclosure of certified information would constituted a serious ethical breach of the solicitors practice rules and such breach would likely involve disciplinary action that may well see the offending practitioner struck off from the role of solicitors.' 7 On 9 March 2005 the Australian Government Solicitor responded to the letter of 12 December 2004 stating that they were advised that the Attorney-General: '(a) has now reconsidered all relevant matters in relation to his decision under section 39A(9) (including but not limited to the submissions made in your letter of 12 December 2004) (b) does not consent to your - (that is, Mr Hopper) - being present when evidence is adduced or submissions made which are the subject of the certificates issued pursuant to section 39A(8) of the AAT Act in the proceedings.' 8 A certificate signed by the Attorney-General subsequently issued dated 19 April 2005 in the following terms: 'ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 ABDULLAH TRALJESIC CERTIFICATE ISSUED BY THE ATTORNEY-GENERAL UNDER SECTIONS 36, 39A AND 39B I, Philip Ruddock, the Attorney-General for the Commonwealth of Australia and the Minister administering the Australian Security Intelligence Organisation Act 1979, hereby certify pursuant to paragraph 39B(2)(a) of the Administrative Appeals Tribunal Act 1975 ('the Act') that disclosure of the contents of the documents described in the supplementary schedules hereto, and the schedules, would be contrary to the public interest because the disclosure would prejudice security. I further certify, pursuant to subsection 39A(8) of the Act, that evidence proposed to be adduced and submissions proposed to be made by or on behalf of the Director-General of Security concerning the documents set out in the Supplementary Schedules hereto are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security. As the responsible Minister for the purposes of subsections 39A(8) and (9) of the Act I do not consent to a person representing the Applicant being present when evidence described in paragraph 2 is adduced and such submissions are made. I further certify, pursuant to subsection 36(1) of the Act, that disclosure of the contents of the public interest by reason that it would prejudice the security of Australia.' 9 The power to issue the certificate is found in three sections of the Act as described in the certificate. Relevantly, they provide as follows: 36 Disclosure not required: Attorney‑General's public interest certificate Scope (1AA) This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies. Attorney‑General may issue public interest certificate (1) If the Attorney‑General certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest: (a) by reason that it would prejudice the security, defence or international relations of Australia; (b) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or (c) for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed; the following provisions of this section have effect. Protection of information etc. (2) A person who is required by or under this Act to disclose the information or to produce to, or lodge with, the Tribunal the document in which the matter is contained for the purposes of a proceeding is not excused from the requirement but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information or the matter contained in the document is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged. 39A Procedure at certain hearings in Security Appeals Division Review of security assessment (1) If an application for a review of a security assessment is made to the Tribunal, the Tribunal is to review the assessment in accordance with this section. Parties (2) The parties to the proceeding are the Director‑General of Security and the applicant, but the Commonwealth agency to which the assessment is given is entitled to adduce evidence and make submissions. Director‑General of Security must present all relevant information (3) It is the duty of the Director‑General of Security to present to the Tribunal all relevant information available to the Director‑General, whether favourable or unfavourable to the applicant. … Security/defence certificate (8) The Minister administering the Australian Security Intelligence Organisation Act 1979 (the responsible Minister) may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director‑General of Security or the Commonwealth agency to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia. (9) If such a certificate is given: (a) the applicant must not be present when the evidence is adduced or the submissions are made; and (b) a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the responsible Minister consents. (10) If a person representing the applicant is present when evidence to which a certificate given under subsection (8) relates is adduced or submissions to which such a certificate relates are made, the representative must not disclose any such evidence or submission to the applicant or to any other person. 39B Certain documents and information not to be disclosed in proceedings before Security Appeals Division Scope (1) This section applies to a proceeding in the Security Appeals Division to which section 39A applies. Attorney‑General may issue public interest certificate (2) If the Attorney‑General certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest: (a) because it would prejudice security or the defence or international relations of Australia; or (b) because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or (c) for any other reason stated in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the contents of the document should not be disclosed; the following provisions of this section have effect. .... Public interest (8) This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding. Duty of Tribunal (11) It is the duty of the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security. 10 Mr Hopper gave evidence in an affidavit of 12 July 2005 and no cross examination was sought or occurred on that affidavit. The Attorney-General relied on affidavits dated 17 August 2005 an 7 February 2005 by a legal officer of the Australian Security Intelligence Organisation ('ASIO') whose name has not been revealed in open court for reasons set out in those affidavits. I direct under section 50 of the Federal Court of Australia Act 1976 (Cth) that the name of the officer or any material capable of identifying him not be disclosed without leave of a judge of the court. 11 The material in the affidavits provided by the unnamed officer includes redacted electronic copies of the submissions which were before the Attorney-General and noted by him on the occasions on which he came to consider the issue of the earlier certificate and the certificate the subject of these proceedings dated 19 April 2005.