R v Khaled Khayat; R v Mahmoud Khayat (No 15) [2020] NSWSC 1451

R v Khaled Khayat; R v Mahmoud Khayat (No 15) [2020] NSWSC 1451

The Court was not satisfied that a 99-year duration was necessary. For the material concerning the making of a bomb and poisonous gas, although terrorism was likely to continue for the foreseeable future, techniques change with technological advances and the relevant information is widely available on the internet, with the protected matter being validation by reliable sources; a period of 25 years was sufficient. For the ASIO-related material, secrecy was important to ASIO's efficacy and to protecting persons and international relations, but political alliances and national interests change over time; a period of 50 years was sufficient.

Jurisdiction
Australia
Judgment Date
20 October 2020
Procedural Posture
Procedural Ruling Concerning Suppression and Non Publication Orders / On the Papers Application to Vary Earlier Orders
Outcome
Earlier suppression and non-publication orders varied by specifying durations of 25 years and 50 years rather than the proposed 99 years.
Legal Topics
['suppression and Non Publication Orders' 'variation of Earlier Orders' 'duration of Orders' 'national Security Information']
['civil Procedure'] ['suppression and Non Publication Orders' 'variation of Earlier Orders' 'duration of Orders' 'national Security Information']

Case Brief

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Procedural Posture

Procedural Ruling Concerning Suppression and Non Publication Orders / On the Papers Application to Vary Earlier Orders

Legal Issues

  1. 1 ['Whether suppression and non-publication orders previously made until further order should be varied to specify a duration.' 'Whether the proposed duration of 99 years was necessary for orders protecting information about the making of a bomb and poisonous gas.' 'Whether the proposed duration of 99 years was necessary for orders protecting ASIO processes, techniques and identities of persons from whom ASIO obtained information.']

Ratio Decidendi

The Court was not satisfied that a 99-year duration was necessary. For the material concerning the making of a bomb and poisonous gas, although terrorism was likely to continue for the foreseeable future, techniques change with technological advances and the relevant information is widely available on the internet, with the protected matter being validation by reliable sources; a period of 25 years was sufficient. For the ASIO-related material, secrecy was important to ASIO's efficacy and to protecting persons and international relations, but political alliances and national interests change over time; a period of 50 years was sufficient.

Court Disposition

Earlier suppression and non-publication orders varied by specifying durations of 25 years and 50 years rather than the proposed 99 years.

Orders

  • ["Order 18 of the Court's orders dated 11 March 2019 be amended to read: These orders apply throughout the Commonwealth of Australia for a period of 25 years from the date of these orders." "Order 17 of the Court's orders dated 22 March 2019 be amended to read: These orders apply throughout the Commonwealth of...