Leghaei v Director-General of Security & Anor

The applicants, Mr. Leghaei and Mr. Al-Kassab, sought judicial review of decisions made by the Director-General of Security (ASIO) to list them on the ASIO List. This list, maintained under the *Australian Security Intelligence Organisation Act 1979* (Cth) (ASIO Act), contains names of individuals deemed to be threats to security. The applicants challenged the lawfulness of their inclusion on this list, arguing that the Director-General had failed to provide them with adequate notice and an opportunity to be heard before making the listing decisions. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Director-General of Security, in making a decision to list an individual on the ASIO List under s 37 of the ASIO Act, was required to afford that individual procedural fairness. Specifically, the applicants contended that the principles of natural justice mandated that they be informed of the case against them and given an opportunity to respond before being placed on the list, which carries significant consequences. The court was therefore required to determine the scope of procedural fairness obligations in the context of security listings under the ASIO Act.

In their joint judgment, Hayne and Crennan JJ held that the Director-General was not required to afford procedural fairness to the applicants before listing them on the ASIO List. Their Honours reasoned that the ASIO Act, by its very nature and purpose, contemplates that security assessments will be made by the Director-General based on information that may be sensitive and confidential. The Act provides a specific regime for review of such decisions, including the establishment of the Security Appeals Division of the Administrative Appeals Tribunal, which is designed to handle such matters with appropriate safeguards. The court concluded that the statutory scheme did not imply an obligation to provide procedural fairness at the initial listing stage, as doing so would be inconsistent with the effective functioning of national security measures. The applications for judicial review were dismissed.