State of New South Wales v Lawrence

1. [1]

   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.

2. [2]

   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

1. [3]

   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.

2. [4]

   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.

3. [5]

   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.

4. [6]

   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.

5. [7]

   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

1. [8]

   The objects of the THRO Act appear in s.3 which states:

2. [9]

   Section 4 THRO Act contains a number of definitions which are presently relevant. They are:

3. [10]

   Section 17A states:

4. [11]

   Section 50 provides:

5. [12]

   Part 5 (ss.57-61) contains the provisions of particular interest to this application. Part 5 states:

6. [13]

   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:

7. [14]

   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).

8. [15]

   Clause 7 THRO Regulation provides:

9. [16]

   Clause 8 THRO Regulation provides for “prescribed terrorism intelligence authorities”:

10. [17]

    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

1. [18]

   At the hearing on 23 July 2019, the Attorney General read the following affidavits:

2. [19]

   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.

3. [20]

   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.

4. [21]

   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.

5. [22]

   There was no objection to the affidavit of Mr Vasiliou sworn 17 July 2019.

6. [23]

   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.

7. [24]

   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

1. [25]

   The issues to be determined in this judgment include:

2. [26]

   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

1. [27]

   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.

2. [28]

   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.

3. [29]

   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.

4. [30]

   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.

5. [31]

   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].

6. [32]

   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.

7. [33]

   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.

8. [34]

   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.

9. [35]

   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.

10. [36]

    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.

11. [37]

    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.

12. [38]

    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.

13. [39]

    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].

14. [40]

    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.

15. [41]

    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.

16. [42]

    I overrule the objections made on behalf of the Defendant to parts of the affidavits of Assistant Commissioner Wilson and Assistant Commissioner Talbot.

17. [43]

    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

1. [44]

   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.

2. [45]

   The definition of “terrorism intelligence” in s.4(1) picks up other defined terms including “terrorism activity” and “terrorist act”.

3. [46]

   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.

4. [47]

   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).

5. [48]

   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.

6. [49]

   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”.

7. [50]

   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):

8. [51]

   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.

9. [52]

   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.

10. [53]

    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.

11. [54]

    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.

12. [55]

    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.

13. [56]

    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.

14. [57]

    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

1. [58]

   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.

2. [59]

   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.

3. [60]

   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:

4. [61]

   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.

5. [62]

   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.

6. [63]

   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.

7. [64]

   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.

8. [65]

   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.

9. [66]

   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.

10. [67]

    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.

11. [68]

    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.

12. [69]

    The Defendant did not raise a s.58 production argument concerning this document.

13. [70]

    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”.

14. [71]

    I am well satisfied that Document 2 falls within the definition of “terrorism intelligence”.

15. [72]

    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).

16. [73]

    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.

17. [74]

    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).

18. [75]

    I am satisfied that Document 3 falls within the definition of “terrorism intelligence”.

19. [76]

    No issue is raised by the Defendant concerning s.58 production of this document.

20. [77]

    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.

21. [78]

    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.

22. [79]

    No issue is raised by the Defendant concerning s.58 production of this document.

23. [80]

    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).

24. [81]

    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.

25. [82]

    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.

26. [83]

    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.

27. [84]

    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.

28. [85]

    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

1. [86]

   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.

2. [87]

   Accordingly, the Court must grant the terrorism intelligence application with respect to those seven documents.

Steps to Maintain Confidentiality Under s.59C THRO Act

1. [88]

   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).

2. [89]

   The Court may make orders, in the exercise of discretion, in accordance with s.59C(2) and (3) THRO Act.

3. [90]

   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.

4. [91]

   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.

5. [92]

   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.

6. [93]

   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.

7. [94]

   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

1. [95]

   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.

2. [96]

   I will allow the parties an opportunity to provide written submissions with that application to be determined on the papers.

3. [97]

   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.