FEDERAL COURT OF AUSTRALIA
AIX20 v Director-General of Security [2025] FCAFC 38
Appeal from: Application for leave to appeal: AIX20 v Director-General of Security (No 2) [2024] FCA 1130 File number: VID 1111 of 2024 Judgment of: MURPHY, BROMWICH AND SHARIFF JJ Date of judgment: 28 March 2025 Catchwords: PRACTICE AND PROCEDURE – public interest immunity claims – restricted counsel procedure – leave to appeal judgment upholding claim of public interest immunity – appellate standard of review for decisions upholding public interest immunity claims – where first respondent asserted public interest immunity of some discovered documents – where public interest in protection of national security weighed against disclosure of documents – where documents important to applicant’s substantive proceeding – whether balance of competing aspects of the public interest favoured disclosure of documents under a restricted counsel procedure, similar to that proposed in Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531 – Held: leave to appeal refused; no error identified in primary judge’s public interest immunity balancing exercise Legislation: Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 17(1) and 37
Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth) r 20.14
Cases cited: Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404
Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531
Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227
Décor Corporation Pty Ltd v Dart IndustriesInc [1991] FCA 844; (1991) 33 FCR 397
Imad v Director-General of Security [2024] FCAFC 138; (2024) 305 FCR 523
Jaffarie v Director-General of Security [2014] FCAFC 102; (2014) 226 FCR 505
Leghaei v Director-General of Security [2007] FCAFC 37; (2007) 241 ALR 141
Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1
New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; (2007) 70 NSWLR 643
Patial v Kailash Lawyers Pty Ltd (t/as Kailash Lawyers and Consultants) [2025] FCA 114
Police Federation of Australia v Nixon [2011] FCAFC 161; (2011) 198 FCR 267
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 46 Date of hearing: 18 March 2025 Counsel for the Applicant: Mr E Nekvapil SC with Ms E Brumby Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Mr P Herzfeld SC with Ms C Ernst Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 1111 of 2024 BETWEEN: AIX20
Applicant
AND: DIRECTOR-GENERAL OF SECURITY
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
ORDER MADE BY:
MURPHY, BROMWICH…
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- Case
- [2025] FCAFC 38
- Decision Date
CaseChat Overview and Summary
The central legal issue in this case was whether the primary judge's balancing exercise in determining the public interest immunity claim was flawed. The court needed to assess whether the primary judge correctly weighed the competing interests of national security and the administration of justice. The applicant argued that the primary judge had placed too much weight on the security officer's opinion and failed to critically assess the evidence. The court had to determine whether the primary judge's decision was attended by sufficient doubt to warrant an appeal to the Full Court.
The Full Court found that there was no sufficient doubt in the primary judge's decision to warrant consideration by the court. After reviewing the confidential documents and affidavits, the court agreed with the primary judge that the public interest immunity claim should be upheld. The court rejected the applicant's argument that the primary judge had erred in relying on the judgment in Leghaei v Director-General of Security, stating that the weight given to the reasons supporting a PII claim depends on the facts and circumstances of each case. The court concluded that the primary judge's decision was correct and that the balance of the public interest favoured non-disclosure of the documents.
The court refused the application for leave to appeal and ordered the applicant to pay the first respondent's costs as taxed or agreed. This decision underscores the court's cautious approach to reviewing PII claims, particularly where national security is at stake.
Orders
Orders of the court
1. Leave to appeal be refused.
2. The applicant pay the first respondent’s costs as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
For the reasons we now explain, we are not satisfied that the primary judge’s decision is attended by sufficient doubt to warrant consideration by the Full Court. We have determined that the application for leave to appeal should be refused. Not only are we not satisfied that the primary judge’s decision is attended by sufficient doubt to warrant our consideration, having ourselves examined the Confidential Documents and considered the Noyes confidential affidavit (provided to us under strict security arrangements on a read and return basis), as well as the Noyes open affidavit, we concur in the view that the PII claims should be upheld. Consideration In the proceedings below, and in the hearing before us, the principles applicable to establishing a claim for PII were not in dispute. It was not in dispute that, where it appears to the Court, on the one hand that damage could be done to the public interest by the production of documents over which PII is claimed, and on the other hand that the documents contain or are likely to contain evidence of probative value to a proceeding, a balancing exercise is required to determine whether the PII claim is made out. The court is required to balance the effects of disclosure and non-disclosure on competing aspects of the public interest to determine whether, and on what terms, disclosure should occur. Here, the two predominant interests are the public interest in national security that could be harmed by the disclosure of the relevant documents and the competing public interest as to whether the administration of justice could be frustrated or impaired if the relevant documents are not produced: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38-39 (Gibbs ACJ); Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 412 (Gibbs CJ). The balancing exercise requires an assessment of the “nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation”: Alister at 412 (Gibbs CJ). Proposed First Ground The applicant contended that the primary judge erroneously relied on the judgment in Leghaei v Director-General of Security [2007] FCAFC 37; (2007) 241 ALR 141 at [57] where, by reference to Brennan J’s judgment in Alister at 455, the Full Court stated that the Court is “ill-equipped itself to evaluate pieces of evidence obtained by ASIO”. The applicant submitted that Brennan J’s statement does not support a proposition as unqualified as that a Court should defer to the opinion of an officer of ASIO on the basis that it is itself "ill-equipped" to critically assess the evidence of a security officer for the purposes of determining where the balance lies on a PII claim. The applicant submitted that the correct position was that stated by Flick and Perram JJ in Jaffarie v Director-General of Security [2014] FCAFC 102; (2014) 226 FCR 505 at [26] that:The “weight” to be given to the reasons expressed in support of a claim to privilege will, obviously enough, depend upon the facts and circumstances of each individual case and the persuasiveness of the reasons advanced. Less “weight”, it may be expected, will be given to reasons expressed as mere assertions and conclusions than the "weight" to be given to a course of reasoning, soundly based upon such facts as it is possible to disclose, consistent with the maintenance of the privilege …(Emphasis by the applicant.)