DCL22 v Sage

• Jurisdiction: Australia Federal only
• Judgment Date: 10 October 2022
• Neutral Citation: [2022] FCA 1310
• Date: 10 October 2022
• Court: Federal Court

Federal Court of Australia

DCL22 v Sage [2022] FCA 1310

File number:	VID 530 of 2022
Judgment of:	ABRAHAM J
Date of judgment:	10 October 2022
Date of publication of reasons:	3 November 2022
Catchwords:	PRACTICE AND PROCEDURE – public interest immunity – where documents produced pursuant to notice to produce are redacted – where documents include written reasons for the issue of a summons under s 28(1) of the Australian Crime Commission Act 2002 (Cth) – where applicant challenges the validity of the Summons – whether redacted passages are covered by public interest immunity – claim established
Legislation:	Australian Crime Commission Act 2002 (Cth) ss 7, 7A, 7C, 20-22, 24A, 28, 29A and 30 Evidence Act 1995 (Cth) s 130 Judiciary Act 1903 (Cth) s 78B
Cases cited:	Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1974] AC 405 Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356 Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 52 A Crim R 423 Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 31 FCR 523 Burmah Oil Co. Ltd. v Governor and Company of the Bank of England and Another [1980] AC 1090 Cain v Glass (No 2) (1985) 3 NSWLR 230 Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 Commonwealth v Northern Land Council (1991) 30 FCR 1 Conway v Rimmer [1968] AC 910 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd Joint Venture [2021] FCA 512 Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 Harper v Costigan (1983) 72 FLR 140 HT v The Queen [2019] HCA 40; (2019) 278 A Crim R 133 Marinovich v Director of Public Prosecutions & Anor (1987) 14 ALD 315 National Crime Authority v Gould (1989) 23 FCR 191 National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 Polley v Johnson; Gillard v Johnson; Ward v Higgs [2013] NSWSC 543 R v Baladjam & Ors (No 29) [2008] NSWSC 1452 R v Lodhi [2006] NSWSC 596; (2006)199 FLR 270 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) [2021] FCA 552 Rogers v Home Department State Secretary; Gaming Board for Great Britain v Rogers [1973] AC 388 Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 SDCV v Director-General of Security [2022] HCA 32 The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83 Young v Quin (1985) 4 FCR 483 ZX v Commonwealth [2016] FCA 1013
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	54
Date of hearing:	7 October 2022
Counsel for the Applicant:	Mr M W Guo
Solicitor for the Applicant:	Radovic Lawyers
Counsel for the Respondents:	Ms S Maharaj KC with Mr R Minson
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		VID 530 of 2022
BETWEEN:	DCL22 Applicant
AND:	TIM SAGE First Respondent ; COMMONWEALTH OF AUSTRALIA Second Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	10 October 2022

THE COURT ORDERS THAT:

1. The second respondent’s claim of Public Interest Immunity over the redacted portions of the documents produced to the applicant pursuant to a Notice to Produce dated 27 September 2022, the redactions being reflected in the annexures to the affidavit of Jason Leigh Halls dated 5 October 2022, is established.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1. By a summons dated 18 August 2022 issued pursuant to s 28(1) of the Australian Crime Commission Act 2002 (Cth) (ACC Act), the first respondent, an examiner of the Australian Crime Intelligence Commission (ACIC), required the applicant (DCL22) to attend before an examiner at an examination for the purposes of a special operation pursuant to a determination of the ACIC’s Board. A copy of the determination, the Special Australian Criminal Intelligence Commission Investigation Determination (Targeting Criminal Wealth) 2020, which was made on 28 July 2020 pursuant to s 7C of the ACC Act (the Determination), was annexed to the summons, together with a statement of the rights and obligations pursuant to s 29A(3) of the ACC Act, and Explanatory Notes.

2. By an amended originating application for judicial review dated 16 September 2022, DCL22 challenges the validity of the summons on three grounds (ground 1 now having been abandoned).

3. First, the decision to issue the summons, insofar as it requires the applicant to attend the premises of the ACIC for examination, which hearing will occur in unspecified appropriate security and secrecy protocols, is legally unreasonable and/or a denial of procedural fairness. Second, the summons is invalid as no reasons were provided to the applicant for its issue at the time it was served, contrary to s 28(1A) of the ACC Act on its proper construction. Third, the summons is invalid in that: (i) whatever reasons might have been recorded as the reasons for its issue could not have evidenced that the state of satisfaction of the first respondent rose to the level that he was reasonably satisfied that the summons was reasonably necessary; and/or (ii) the decision was based on a misunderstanding of the law, specifically the threshold of “reasonably necessary” in s 28(1) of the ACC Act.

4. On 27 September 2022, the applicant issued the respondents with a notice to produce. The notice sought the production of the first respondent’s written reasons, made on 18 August 2022, for having been satisfied of the matters for the issue of the summons.

5. On 30 September 2022, the respondents produced documents in response to the notice. The documents produced were the redacted reasons for the issue of the summons dated 18 August 2022, the redacted application in relation to the summons dated 17 August 2022, and the summons to the applicant. A claim of public interest immunity was made by the second respondent, the Commonwealth of Australia, over the redacted passages.

6. The argument was heard on 7 October 2022, with each party agreeing that orders could be made with the reasons for doing so then being provided at a later stage to enable the matter to progress in a relatively expeditious manner.

7. On 10 October 2022, I made orders upholding the claim of public interest immunity. These are my reasons for doing so.

History of the proceedings

8. This matter came before the duty judge on 14 September 2022, at which time the examination was scheduled to be conducted on 7 October 2022. A timetable for the hearing of the judicial review application was set, with the hearing to take place in the week commencing...