Citation: R v Khaled Khayat; R v Mahmoud Khayat (No 15) [2020] NSWSC 1451
Court: Supreme Court of NSW
Date: 20 October 2020
Judge(s): Adamson J
Background
Two offenders were tried and convicted in 2019 on terrorism-related charges involving the construction of a bomb and a poisonous gas. During and after the trials, the court made suppression and non-publication orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW) to protect sensitive material: one set of orders covered technical information about the bomb and gas, and a second set protected the identities of persons from whom ASIO had obtained intelligence. Both sets were made "until further order" because their necessary duration could not be determined at the time.
Following the sentencing of both offenders in December 2019, the Commissioner of Police and the Director-General of Security (ASIO) returned to the court in September 2020 seeking to vary those orders. Their application was prompted by two things: a change in legal representation for at least one offender (requiring the orders to extend to new representatives), and a Court of Appeal decision that questioned whether suppression orders, other than interim orders, should be made on an open-ended "until further order" basis.
The offenders were notified of the proposed variations and did not seek to be heard against them.
Legal Issues
- Whether the existing suppression orders, made "until further order," should be varied to orders of fixed duration in light of the Court of Appeal's observations in DRJ v Commissioner of Victims Rights [2020] NSWCA 136.
- What fixed duration was appropriate for the order protecting bomb-making and poisonous gas information (sought by the Commissioner of Police).
- What fixed duration was appropriate for the order protecting ASIO's intelligence methods and sources (sought by the Director-General of Security).
Decision
Issue 1: Open-ended orders and the need for fixed terms
The court accepted that the "until further order" formulation used in the original 2019 orders was no longer appropriate in light of the Court of Appeal's observations in DRJ. The applicants brought the variation application as part of their obligations as model litigants, and the court proceeded to consider what fixed terms were justified (at [3]).
Issue 2: Duration of the order protecting bomb-making and gas information
The Commissioner sought a duration of 99 years, arguing that terrorism would persist for at least that long and that the technical information therefore needed ongoing suppression. Adamson J rejected that reasoning. Her Honour accepted that terrorism in a broad sense would continue for the foreseeable future, but found it did not follow that the specific information required suppression for 99 years. Techniques evolve with technology, and what was highly significant in 2013 may be negligible by 2040. The court also noted that the underlying information is widely available online; what the orders protect is its validation by reliable expert sources, including a Commonwealth chemist and a bomb technician. A term of 25 years was determined to be sufficient, and the Commissioner did not oppose that period (at [6]-[7]).
Issue 3: Duration of the order protecting ASIO sources and methods
The Director-General, supported by confidential affidavits, contended that 99 years was necessary to protect ASIO's operational secrecy, guard against violent reprisals, and preserve Australia's international relations. The court acknowledged the importance of those interests but observed that political alliances and what constitutes sensitive intelligence shift considerably over time, and that material once highly classified can become common historical knowledge. A duration of 50 years was determined to be appropriate. The Director-General's representatives accepted that preliminary view and did not seek to be heard further against it (at [8]).
Orders Made
- Order 18 of the court's orders dated 11 March 2019 was amended to apply throughout the Commonwealth of Australia for a period of 25 years from the date of the variation orders.
- Order 17 of the court's orders dated 22 March 2019 was amended to apply throughout the Commonwealth of Australia for a period of 50 years from the date of the variation orders.
Key Takeaways
- Following DRJ v Commissioner of Victims Rights [2020] NSWCA 136, the Supreme Court confirmed that suppression orders made "until further order" required variation to orders of defined duration, consistent with the Court of Appeal's expressed reservations about open-ended non-interim suppression orders (at [3]).
- A claimed need to suppress technical terrorism-related information for 99 years was not made out where the court found that techniques become outdated with technological change and the underlying information was already widely available online, with the orders' real function being to protect expert validation of that information (at [6]).
- Different durations were warranted for different categories of protected material: 25 years for bomb-making and chemical weapon information, and 50 years for material concerning ASIO's intelligence sources and methods, reflecting the distinct and longer-term national security interests at stake in the latter category (at [7]-[8]).
- The court drew on the observation that political alliances and intelligence sensitivities evolve significantly over decades, so that material once critical to national security can eventually become of purely historical significance, as a basis for declining to grant the full 99-year term sought for ASIO-related material (at [8]).
- Variation of suppression orders to accommodate a change in an offender's legal representatives is a recognised basis for returning to court, ensuring that new representatives are included among those to whom protected disclosures may lawfully be made (at [3]).
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
Cases
- DRJ v Commissioner of Victims Rights [2020] NSWCA 136
- R v Khaled Khayat; R v Mahmoud Khayat (No 14) [2019] NSWSC 1817