AIX20 v Director-General of Security
[2025] FCAFC 38
•28 March 2025
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
Australian Securities and Investments Commission v P CPB Contractors Pty Ltd v State of South Australia [2024] SASCA 130
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
Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553
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 AND SHARIFF JJ
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
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.
REASONS FOR JUDGMENT
THE COURT:
Introduction
This application for leave to appeal, and appeal (if leave is granted), concern claims for public interest immunity (PII) made by the first respondent, the Director-General of Security, over certain discovered documents. The Director-General’s position is that the disclosure of those documents would prejudice the public interest in national security. The application also concerns the applicant’s proposal that the Court should order that those documents be disclosed to named security-cleared counsel, subject to certain undertakings to be given by them, and deployed only in closed court and subject to suppression and non-publication orders (the Restricted Counsel Procedure or Procedure). The Procedure bears some resemblance to that proposed by the defendants in Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531.
In the substantive proceeding below the applicant seeks declarations and damages arising from negligence of the Director-General alleging, inter alia, that the Director-General had breached the duty to take reasonable care owed by him to the applicant in the exercise of the powers under ss 17(1) and 37 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). It is further alleged that the second respondent, the Commonwealth, falsely imprisoned the applicant.
The factual allegations lying behind the substantive claims are relatively straightforward. The applicant’s claims centre upon the following uncontroversial facts:
(a)An adverse security assessment (ASA) in relation to the applicant was made by the Director-General in 2019 (first ASA). Pursuant to the mandatory regime under the Migration Act 1958 (Cth), the Minister for Home Affairs cancelled the applicant’s temporary protection visa resulting in him being detained in immigration detention, in circumstances where the applicant had lived in the Australian community, without apparent incident, for seven years.
(b)Another ASA in relation to the applicant was made by the Director-General in 2020 (second ASA), which meant that the applicant continued to be detained in immigration detention.
(c)The Director-General decided on 19 March 2021 (2021 Decision) not to act on the recommendation of the Independent Reviewer of Adverse Security Assessments (Reviewer) in which the Reviewer recommended that the applicant was not “directly or indirectly” a risk to security within the meaning of s 4 of the ASIO Act, that the second ASA was “not a proportionate response to the material [ASIO] has relied on in furnishing the ASA” and that the second ASA was “not an appropriate outcome”.
(d)The applicant then brought an application for judicial review of the decisions to make the first and second ASAs. In August 2022, 25 days before the hearing of that application, the Director-General made a third security assessment, described as a “non-prejudicial security assessment”, which was not adverse to the applicant. That resulted in the Minister of Home Affairs revoking the visa cancellation decision and granting a bridging visa, and the applicant’s release from immigration detention.
(e)Overall, the applicant was detained in immigration detention for 973 days.
On the applicant’s case, there had been no change in any relevant facts since the Director-General had furnished the first ASA or the second ASA, or made the 2021 Decision, nor any explanation of any new fact or basis on which it was admitted that by the third security assessment there was no basis for an ASA. That is, the thrust of the applicant’s substantive case is that the first and second ASAs constituted a failure to take reasonable care in making them.
The proceeding below
As part of the substantive proceedings, Moshinsky J as the docket judge ordered the parties to give standard discovery pursuant to r 20.14 of the Federal Court Rules 2011 (Cth). In response to those orders for discovery, the Director-General made PII claims as specified in a list of documents which identified the documents produced in full without any claims of privilege or immunity, and more relevantly for present purposes, material over which the Director-General claimed PII, subsequently defined as Confidential Documents, being:
(a)the portions of the documents over which PII was and is claimed in part (including by redaction); and
(b)the documents over which PII was and is claimed in full.
The Confidential Documents total 1,614 pages.
The Director-General’s claim for PII in relation to the Confidential Documents was allocated to the primary judge for determination.
In support of the PII claims, the Director-General relied upon two affidavits affirmed by the Deputy Director-General of Security, Mr Michael Noyes:
(a)The first affidavit, affirmed 5 July 2024 (the Noyes open affidavit), which annexed, inter alia, a copy of the partial PII claim documents with all information subject to the claim redacted and an open list of all the Confidential Documents. The Noyes open affidavit explains the background to the making of the ASAs, and some of the evidence supporting, the PII claims.
(b)The second affidavit, affirmed 9 July 2024, provided only to the Court (the Noyes confidential affidavit). The Noyes confidential affidavit provided more detail as to the basis of the Director-General’s claims for PII, and annexed, inter alia, the Confidential Documents and a confidential list of those documents. The Noyes confidential affidavit and the Confidential Documents were provided to the primary judge under strict security arrangements on a read and return basis, on the basis of a claim that their disclosure would prejudice the public interest in national security.
By agreement of the parties, in an attempt to settle the dispute between them, the Director-General provided access to all but six of the Confidential Documents to security-cleared counsel for the applicant, Dr James Renwick SC and Ms Sarah Zeleznikow, on a strictly confidential basis, in a security restricted area in the offices of the Australian Security Intelligence Organisation (ASIO). That agreement was subject to undertakings given by Dr Renwick SC and Ms Zeleznikow not to disclose the content of any of the Confidential Documents to any person or entity, including the applicant and his legal representatives.
In resisting the Director-General’s claims for PII, the applicant contended that the primary judge should order that the Confidential Documents be produced to security-cleared counsel (the Restricted Counsel) within five days of the applicant’s legal representatives notifying the Director-General of Restricted Counsel having been briefed on the basis of undertakings forming part of the Restricted Counsel Procedure. The effect of the Restricted Counsel Procedure, if implemented, would be that the Restricted Counsel would not be permitted to disclose the information contained in the Confidential Documents to any person, including the applicant and his existing legal team, but would be in a position to advance those parts of the applicant’s case in the substantive proceeding which required the use of any information contained in Confidential Documents, subject to arrangements for that to occur at trial in closed court and with suppression orders being made.
The primary judge upheld the Director-General’s PII claims: AIX20 v Director-General of Security (No 2) [2024] FCA 1130 (PJ). In doing so the primary judge examined the Confidential Documents in relation to which immunity was claimed: PJ [9]. In particular, weighing the competing aspects of the public interest, the primary judge was not satisfied that implementation of the Restricted Counsel Procedure would provide an adequate safeguard to national security, even if the Court had power to implement the Restricted Counsel Procedure (which his Honour doubted): PJ [44], [45] and [61].
The application for leave to appeal
The applicant seeks leave to appeal from the orders made by the primary judge upholding the Director-General’s PII claims.
It is settled that leave is generally refused unless the applicant establishes that: (a) the decision giving rise to the orders is attended by sufficient doubt to warrant it being considered by a Full Court; and (b) substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart IndustriesInc [1991] FCA 844; (1991) 33 FCR 397 at 398. These considerations are cumulative and will not be satisfied “unless each limb of the test is made out”: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at [5] (Ryan, Stone and Jagot JJ); see also Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at [3] (Jagot, Yates and Murphy JJ).
The applicant’s draft notice of appeal raised a number of grounds, but the applicant’s written submissions addressed only two grounds, being that the primary judge erred by:
(a)stating, without qualification, a rule of deference to the opinions expressed by Mr Noyes and, in doing so, did not accurately apply the relevant authorities and failed to take into account the “structural context” of the proceedings (Proposed First Ground); and
(b)misdirecting himself by asking whether the Court should “exercise its discretion” to “implement” the Restricted Counsel Procedure in circumstances where it is claimed that the primary judge was required to make a determination as to whether PII applied to the Confidential Documents if production were to occur in accordance with the Restricted Counsel Procedure (if the measures thereby contemplated were available to the Court) (Proposed Second Ground).
During the course of oral argument before us, senior counsel for the applicant did not abandon the Proposed First or Second Grounds but submitted that the applicant’s overarching contention was that the primary judge had reached the wrong conclusion in upholding the Director-General’s claim for PII. The applicant submitted that, if leave was granted, the appeal would be governed by the application of the correctness standard such that the Full Court would need to determine the correct outcome: citing Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553 at [43] (Maxwell P, Buchanan and Vincent JJA); Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227 at [11]-[21] (Heerey, Moore and Tracey JJ); Police Federation of Australia v Nixon [2011] FCAFC 161; (2011) 198 FCR 267 at [82] (Lander, Gilmour and Gordon JJ); CPB Contractors Pty Ltd v State of South Australia [2024] SASCA 130 at [126] (Livesey P and David JA); cf New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; (2007) 70 NSWLR 643 at [26] (Mason P). The Director-General did not demur from the proposition that the correctness standard applied, but denied that the primary judge had treated the PII exercise as an exercise of discretion.
The applicant submitted that, as the correctness standard would apply to an appeal, it was sufficient for the purpose of the grant of leave to appeal to establish sufficient doubt in the ultimate order made by the primary judge, citing Patial v Kailash Lawyers Pty Ltd (t/as Kailash Lawyers and Consultants) [2025] FCA 114 at [3] (Bromwich J). We will deal with this argument separately below as the Proposed Third Ground.
The Director-General resisted the application for leave to appeal and submitted that, if leave was granted, it would rely upon a Notice of Contention to the effect that the Court does not have power to implement the Restricted Counsel Procedure.
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.)
The applicant contended that the primary judge had erroneously applied an “unqualified rule of deference” (at PJ [18]-[19]) to the opinions expressed by Mr Noyes and that this led his Honour to accept uncritically all of the reasons given by Mr Noyes as to why the public interest did not favour disclosure. It was further claimed that the primary judge failed to have regard to the nature of the proceeding and the “structural context” in which the Director-General's claims fell to be determined, being that upholding of the claim was made would deny the applicant access to documents which the Director-General himself has determined were "directly relevant" to the issues in dispute.
We do not agree that the primary judge applied an unqualified rule of deference to the opinions expressed by Mr Noyes. Nor do we consider that the primary judge failed to have regard to the “structural context” within which the claims for PII were to be determined.
At PJ [17]-[18], the primary judge extracted two relevant passages of the Full Court’s reasoning in Leghaei as to the weight to be afforded to a considered opinion of a senior ASIO officer on matters of national security. The applicant did not contend that the Full Court’s decision in Leghaei was wrongly decided and did not invite us to depart from it. We do not consider that the Full Court in Leghaei was expressing a rule of deference to the opinions expressed by officers of security agencies, but was identifying the natural limits of a court making assessments as to national security. The Full Court’s articulation of principle was consistent with what Wilson and Dawson JJ stated in Alister at 435 that:
Questions of national security naturally raise issues of great importance, issues which will seldom be wholly within the competence of a court to evaluate. It goes without saying in these circumstances that very considerable weight must attach to the view of what national security requires as is expressed by the responsible Minister …
The above passage was quoted and developed by the Full Court in Imad v Director-General of Security [2024] FCAFC 138; (2024) 305 FCR 523 at [57]:
As Wilson and Dawson JJ observed in Alister at 435, “[q]uestions of national security naturally raise issues of great importance … which will seldom be wholly within the competence of a court to evaluate”. As their Honours also observed, “considerable weight must attach to the view of what national security requires” as expressed in the evidence, albeit the views or claims are not conclusive. That is particularly so where (as here) the person expressing the views has examined the documents, has specialised knowledge and experience as to security risks and what national security requires in the circumstances, and has articulated a cogent basis for the views expressed: see Sankey v Whitlam [1978] HCA 43; 142 CLR 1 at 43-44. Wilson and Dawson JJ in Alister continued at 436:
It is conceded by counsel for ASIO that the duty lies with the court to balance the competing aspects of the public interest. No doubt that duty will often be little more than a formality unless in the face of a claim based on security a compelling case is made out for the production of the documents.
None of this is inconsistent with Jaffarie. A court should not merely defer to the opinions expressed by officers of a security agency without critical evaluation. Much will depend on the quality of the opinions expressed including the basis upon which they are expressed.
In the present case, we do not agree that the primary judge merely adopted the opinions of Mr Noyes without critical evaluation. As we have already mentioned, the primary judge had examined the documents over which immunity had been claimed. His Honour considered those documents with the benefit of both the Noyes open and confidential affidavits. Having done so, the primary judge reasoned that the Deputy Director-General had given genuine consideration to the question of disclosure (PJ [35]) and had deposed to specific reasons why the Restricted Counsel Procedure would be an inadequate safeguard: PJ [41]. The primary judge concluded that there was a proper basis for the claims based on each of the four categories of national security information identified by the Deputy Director-General: PJ [37]. Having ourselves reviewed the Noyes closed affidavit and the Confidential Documents, we are of the same view as the primary judge.
Nor did the primary judge ignore the “structural context”. At PJ [33], the primary judge specifically stated that he had regard to the “importance of the documents for the applicant in the substantive proceeding”. In deciding that the primary judge’s decision is not attended by sufficient doubt to warrant consideration by this Court we have also had regard to the importance of the documents for the applicant in the substantive proceeding. Another part of the context is that the applicant is bringing a tort claim against the Director-General and there is an imperative for judicial supervision over security agencies: see Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 65-68. The primary judge did not specifically refer to that part of the context, but it is evident from the entirety of his Honour’s reasoning (at PJ [32]-[45]) that he was seeking to balance the competing interests between national security and the importance of the documents to the applicant’s case.
We do not consider that the correctness of the primary judge’s decision is attended by doubt as contended.
Proposed Second Ground
The applicant contended that the primary judge erred by failing to consider the Restricted Counsel Procedure in the balancing exercise as between the competing interests in determining whether the claims for immunity should be upheld and instead dealt with the availability of the Procedure as a matter relevant to an “exercise of discretion”. The applicant submitted that the availability of procedures that negate or diminish the risk of prejudice arising from the use of the material in the proceeding is required to be taken into account in assessing where the balance lies (both under statute and at common law) – that is, in determining (in an evaluative but not discretionary way) whether the claims of PII should be upheld. It was contended that the Court's consideration of the means available to limit disclosure must be undertaken in the balancing exercise and does not involve an exercise of discretion.
In conducting the evaluative PII exercise, the Court must consider whether there are available means of conducting the proceeding that would safeguard against harms to the public interest that are attached to disclosure. Suppression or closed-court orders may be considered in this context. This aspect of the evaluative exercise may involve the consideration of, and making of choices between, a variety of procedures, for which there may be no one correct answer. In that respect, this aspect of the PII exercise bears some similarities to discretionary decision-making. Indeed, outside of the PII context, a decision to make a suppression order has been described as discretionary: Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [27] (French CJ); HT v The Queen [2019] HCA 40; (2019) 269 403 at [82] (Gordon J); but cf Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659 at [17] (which described the decision as one to which the principles in House v The King (1936) 55 CLR 499 do not apply in the context of the power to make the suppression order being governed by a high statutory threshold of the order being “necessary” to prevent prejudice to the proper administration of justice). It is nonetheless integrated in the overall evaluative PII assessment in deciding whether the balancing of competing aspects of the public interest favour disclosure, here specifically disclosure subject to the Restricted Counsel Procedure, to which the correctness standard of appellate review applies.
We do not accept that the primary judge did not take into account the possibility of the availability of the Restricted Counsel Procedure in assessing whether the claim for immunity should be upheld, assuming for present purposes that his Honour was required to do so. That the primary judge took into account the availability of the Restricted Counsel Procedure as part of the balancing exercise is plain from his Honour’s reasons at PJ [32]-[45]. There, the primary judge commenced his analysis at PJ [33] by stating that he had weighed the competing aspects of the public interest. At PJ [34], the primary judge expressly stated that he accepted that “a tailored procedure, as proposed by the applicant is a matter that may be taken into account in the balancing exercise”. At PJ [36], the primary judge identified that the relevant questions for consideration included whether the Court had power to implement the Restricted Counsel Procedure, whether the Court should implement the Procedure, which his Honour described perhaps infelicitously as a matter of discretion, and whether it would be an adequate safeguard.
His Honour then dealt with the last question first at PJ [37]-[45]. In doing so, the primary judge weighed whether the adoption of the Restricted Counsel Procedure would adequately safeguard the risk of disclosure and thereby imperil the interests of national security as against the interests in favour of disclosure in the limited way sought by the applicant. His Honour was not satisfied that, even if there was power to adopt the Procedure, that it provided for adequate safeguards: PJ [45]. In other words, the primary judge was not satisfied that the balance weighed in favour of disclosure notwithstanding the implementation of the Restricted Counsel Procedure.
At PJ [47]-[53], the primary judge considered a range of factors related to the practical workability of the Restricted Counsel Procedure described as going to the question of whether the Court should exercise its “discretion” in implementing it. These were all practical problems or potential problems with the Procedure raised by the Director-General, and his Honour concluded that these factors weighed against its implementation: PJ [53]. It is probably better not to refer to evaluative assessments that involve making choices as discretionary, but no error resulted from his Honour attaching that label to the evaluation that was conducted. His Honour’s reasons disclose that in substance this was a continuation of the evaluative PII assessment, addressed to the question of the appropriate design of safeguards (discussed above at [31]) as part of the process of balancing the “competing aspects of the public interest”: see the quote from Alister at 436 in Imad, reproduced at [26] above. Even if that were not a correct reading of this aspect of the primary judgment, however, his Honour’s reasoning up until that point had already assumed the availability of the Restricted Counsel Procedure and concluded that the PII balancing test did not weigh in favour of disclosure even in the limited circumstances contemplated under the Procedure.
The primary judge’s assessment of the Restricted Counsel Procedure as part of the balancing exercise was distinct to his Honour’s determination as to whether there was in fact power to do so. For that purpose, his Honour assumed that the power to implement the Restricted Counsel Procedure existed, without needing to determine whether that was so.
The error alleged by the applicant is without foundation.
Proposed Third Ground
As noted above, during the course of oral argument before us, senior counsel for the applicant submitted that the primary judge’s order upholding the Director-General’s claim for PII was more generally not the correct decision. A number of interrelated submissions were made in support of this contention.
It was submitted that, in undertaking the balancing exercise, the primary judge erroneously focussed upon the public interest in national security that could be harmed by the disclosure of the Confidential Documents in a general sense and not by reference to the specific marginal risk of disclosure arising from the implementation of the Restricted Counsel Procedure. The applicant submitted that the risk of disclosure was marginal in circumstances where security-cleared counsel had already examined the Confidential Documents and they had also been reviewed by the primary judge and by us in accordance with conditions imposed by the Director-General. The applicant submitted that in these circumstances the primary judge failed to engage in the balancing exercise by reference to the correct risk calculus being that there was only a minimal additional risk of disclosure that would arise from the implementation of the Restricted Counsel Procedure.
We do not agree.
The primary judge’s analysis at PJ [40]-[45] discloses that his Honour did not merely consider the risks attached to disclosure in some general sense, but considered the specific risk of disclosure arising from the implementation of the Restricted Counsel Procedure. At PJ [40], the primary judge stated that he had weighed the risk of “inadvertent disclosure” by reference to the implementation of the Restricted Counsel Procedure. His Honour stated that he had “…no reason to doubt the integrity and efforts of all counsel proposed to be involved in, and associated with, the restricted counsel procedure” but observed uncontroversially that “there will be cases where there is an unacceptable risk of inadvertent disclosure “even where the court has absolute confidence in the lawyers to whom it would be disclosed””: citing R v Collaery (No 11) [2022] ACTSC 40; (2022) 364 FLR 418 at [73], in turn citing R v Khazaal [2006] NSWSC 1061 at [34]-[37]. At PJ [41(a)], the primary judge stated that the Confidential Documents were “materially more vulnerable if the restricted counsel procedure was adopted than if withheld from disclosure and kept within ASIO”. It was these risks that the primary judge stated at PJ [40(e)-(f)] would “remain material” and “would pose a significant risk of prejudice to Australia’s national security and that any such disclosure would be detrimental to the public interest”. For these reasons, we do not accept the applicant’s contention that the primary judge did not address the specific or marginal risk arising from the implementation of the Restricted Counsel Procedure.
The primary judge also addressed at PJ [41] the applicant’s contention as to the limited risk of disclosure arising from the implementation of the Restricted Counsel Procedure in circumstances where the Restricted Counsel had already viewed all but six of the Confidential Documents. His Honour reasoned that there remained a risk of “inadvertent disclosure” in the Restricted Counsels’ dealings with the applicant, and in circumstances where the documents were to be examined and considered outside of security classified locations. In so reasoning, the primary judge regarded the risk of such inadvertent disclosure to be such that the implementation of the Restricted Counsel Procedure would not be an adequate safeguard to the public interest in national security. In other words, the primary judge reasoned that the marginal risk of disclosure was outweighed by the gravity of the impairment to the public interest in national security notwithstanding the countervailing interests in the administration of justice having regard to the criticality of the Confidential Documents to the applicant’s case against the respondents. The primary judge also specifically considered the applicant’s contention as to the marginal risk of disclosure that would arise in circumstances where restricted counsel had already viewed all but six of the Confidential Documents and determined, inter alia, that those risks would increase in the conduct of the case under the Procedure: PJ [42].
Having examined the Noyes closed affidavit and the Confidential Documents, as well as the Noyes open affidavit, we do not consider that the primary judge’s conclusion is attended by sufficient doubt and, in fact, we agree with the conclusion that his Honour reached. It may be accepted that the primary judge’s reasons as to “inadvertent disclosure” and the gravity of the risk to national security were cast at a level of generality, but this was necessarily the case given the contents of the Noyes confidential affidavit and the Confidential Documents. It is sufficient for us to observe the following. The risk to the impairment of national security is not limited to the risk of inadvertent disclosure that arises because of the disclosure of the Confidential Documents to security-cleared counsel. It also involves an assessment as to the practicalities involved in the handling and examination of such material as part of proceedings before this Court, even where orders are made for such proceedings to occur in closed court and be subject to suppression orders. Nor is that risk to be assessed merely as against the prospect of the secure information being intercepted or falling into the hands of “bad actors”. The risk is also to be assessed as against the prospect that the fact of such disclosure may place Australia’s security interests in jeopardy in respect of the sources of intelligence information both presently and into the future. The gravity or consequences of those risks materialising may, depending on the particular facts and context, outweigh the rival public interest in the administration of justice.
The applicant submitted that refusing to grant leave to appeal would lead to an extraordinary outcome which would leave the applicant without access to documents that are critical to his case and in seeking to hold the Director-General to account for an alleged infringement of his civil liberties. The primary judge was conscious of this fact, as are we. The outcome here is fact dependent. The upholding of any claim for PII necessarily weighs in favour of one aspect of public interest over another. In the present case, it is our assessment of the facts that the balance weighed in favour of upholding the PII claim and the primary judge’s decision in this regard was not attended by sufficient doubt to warrant the grant of leave to appeal. As we have separately considered and upheld the claim for PII, nor is there any relevant injustice in refusing leave to appeal as the outcome could not have been different.
The question of power to implement the Restricted Counsel Procedure
In rejecting the applicant’s arguments we, in common with the primary judge, do not consider it is necessary to decide whether this Court has the power to implement procedures such as the Restricted Counsel Procedure and, if so, how such a procedure should be implemented as a matter of discretion. Although the question of power was raised by the Director-General by a notice of contention, that notice does not require consideration as none of the grounds for the grant of leave to appeal have succeeded. The applicant correctly conceded that the question of power did not arise for determination if leave to appeal was refused: see Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [7].
Disposition
For the reasons above, the application for leave to appeal should be dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Murphy, Bromwich and Shariff. Associate:
Dated: 28 March 2025
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