AIX20 v Director-General of Security

The public interest immunity claims and legal Principles

1. As identified above the proceedings concern the two adverse assessments made by the Director-General on 21 October 2019 and 15 July 2020, and also the decision of the Director-General on 19 March 2021 not to act on the recommendation of the Reviewer. The documents over which public interest immunity is claimed are said to be relevant to those matters. The public interest immunity claim made by the Director-General is that the disclosure of the documents, or parts of the documents, could prejudice the national security. The applicant seeks that all of the documents (and all parts of the documents) over which claims are made should be disclosed by the restricted counsel procedure.
2. The parties agree that the relevant principles include:
3. the determination of the claim for public interest immunity is governed by the common law doctrine of public interest immunity, which protects relevant and otherwise admissible information from compulsory disclosure, where disclosure would be injurious to the public interest: See Sankey v Whitlam (1978) 142 CLR 1 at 38 (Gibbs ACJ);
4. The determination of the claim of public interest immunity requires a court to balance competing or conflicting aspects of the public interest: the public interest harmed by the production of the information against the public interest in the impairment of the administration of justice if the information is withheld: See Sankey v Whitlam (1978) 142 CLR 1 at 38-39 (Gibbs ACJ), Alister v The Queen (1984) 154 CLR 404 at 412 (Gibbs CJ);
5. Having identified the competing interests the Court undertakes a balancing exercise considering the nature of the injury which the nation would likely suffer and the evidentiary value and importance of the documents in the particular litigation: Alister v The Queen (1984) 154 CLR 404 at 412 (Gibbs CJ);
6. Procedures (or 'tailored orders') that diminish or negate the risk of prejudice arising from the use of the material in the proceeding is a matter to be taken into account in the balancing exercise: Commissioner of Police v Attorney-General for New South Wales [2022] NSWSC 595 at [65]-[70].
7. The Director-General says further that whilst the categories of circumstances in which the production of documents may be contrary to the public interest are not closed; there are certain categories in respect of which there is a well-established public interest against disclosure. That, the Director-General says, includes documents which could prejudice national security. The Director-General relies upon Church of Scientology v Woodward (1980) 154 CLR 25 at 76 where Brennan J stated: discovery would not be given against the Director-General save in a most exceptional case. The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc. is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice.

Weight to be given to the Deputy Director-General's evidence

1. In Leghaei v Director-General of Security [2007] FCAFC 37; 241 ALR 141 Mr Leghaei sought judicial review of an adverse security assessment made by the Director-General on the basis that he had been denied procedural fairness and that ASIO had not asked a question required by the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). The Full Court addressed the weight to be given to the Director-General's evidence. At [56]-[57], by reference to Alister v The Queen (1984) 154 CLR 404 at 435 (per Wilson and Dawson JJ), the Full Court acknowledged that "very considerable weight must attach to the view of what national security requires as is expressed by the responsible Minister". At [57], again by reference to Alister (at [57] per Brennan J) the Full Court explained that the court is "ill-equipped itself to evaluate pieces of evidence obtained by ASIO." At [58] the Full Court set out the similar views expressed by Lord Nicholls of Birkenhead in A & Ors v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 at [79]. At [59] their Honours concluded: The observations of their Honours in Alister and of his Lordship in A & Ors were made in a different context from that before us. However, as the primary judge said at [85] of his non-confidential reasons, similar considerations apply in the present case, even at the cost of risking serious unfairness to an individual.
2. Further, when assessing the primary judge's weighing in the balance of the Director-General's evidence, the Full Court concluded at [65]: Here, the question is what weight is to be given to an opinion of a responsible officer on a matter of national security. We are not reviewing the Director-General's opinion. Nor, of course, was the primary judge. His Honour correctly determined in accordance with established authority that, genuine consideration having been given by the Director-General to the question of disclosure, and in the absence of countervailing evidence, the balance was to be struck on the side of non-disclosure.

The restricted counsel procedure

1. The applicant describes the restricted counsel procedure as one in which:
2. All of the documents over which public interest immunity is claimed, are produced to security-cleared counsel who are briefed by the applicant on an undertaking not to disclose the content of the documents to the applicant or any other person (including the applicant's other legal representatives);
3. That undertaking would also prohibit the security-cleared counsel from communicating with the applicant or the applicant's legal representatives without the permission of the Director-General;
4. Security-cleared counsel would conduct so much of the applicant's case as concerns the documents or the information contained in them;
5. Security-cleared counsel would be permitted to deploy the information in the documents in the proceeding subject to "appropriate suppression and closed court orders";
6. Security-cleared counsel may, in closed session, adduce the documents into evidence, may cross-examine the Director-General's witnesses on the documents, and may make opening and closing submissions on the documents.
7. There is no part of the restricted counsel procedure which separately assesses the sensitivity of particular documents or the forensic significance of particular documents, prior to the provision to the security-cleared counsel.
8. The procedure contemplates that security-cleared counsel may seek to tender the documents and cross-examine or make submissions on the documents. The applicant contemplates that process would occur in a closed court with the documents then seen only by the presiding judge, the Director-General's counsel, and the security-cleared counsel.
9. The restricted counsel procedure includes a mechanism for the security-cleared counsel to seek to communicate with the applicant 'concerning the conduct of the trial' if he or she considers it necessary to do so. That is to be done with the consent of the Director-General or failing agreement the Court is to determine whether the communication is necessary.

The applicant's arguments

1. In opposing the public interest immunity claim the applicant relies on three propositions: first any prejudice to national security caused by the adoption of the restricted counsel procedure would be so small as to make it negligible; second there is a weighty administration of justice interest in the applicant being able to rely on the documents; and, third there are no legal difficulties in the Court ordering the restricted counsel procedure.
2. As to the first the applicant says that any prejudice to the public interest in national security caused by the adoption of the restricted counsel procedure should be considered with the following in mind:
3. The restricted counsel proposed to be briefed by the applicant: (i) are security cleared counsel; (ii) have already reviewed the documents (other than six documents); and (iii) did so for the purpose of providing legal advice to the applicant in this proceeding with a view to narrowing the issues in dispute;
4. The undertaking to be given by the restricted counsel contains additional guardrails prohibiting the Restricted Counsel from communicating with the applicant and his legal representatives without the Director-General's consent; and
5. The counsel who will be dealing with the Confidential Information are experienced senior and junior counsel who have acted in a number of matters requiring the use of national security information. One of them, Mr James Renwick SC, is the former Independent National Security Legislation Monitor appointed under the Independent National Security Legislation Monitor Act 2010 (Cth).
6. The applicant says that, taking these mitigating factors into account, means the risk the restricted counsel procedure will result in any real or genuine prejudice is negligible.
7. As to the second the applicant submits that the restricted counsel procedure ought to be adopted because its adoption is in the interests of the administration of justice. The applicant submits the documents over which the claims are made bear directly on both the validity of the purported exercises of statutory power under the ASIO Act and the applicant's claims that the Director-General owed the applicant a duty of care, which he breached. The applicant submits that the documents are at the very heart of the applicant's claims against the Director-General, and that the substantial infringement on the applicant's liberty that occurred in this case also bears on the balance.
8. As to the third the applicant says there is no legal difficulty affecting the Court's ability to determine the Director-General's claim by assessing the harm to the public interest on the basis that the restricted counsel procedure will be adopted. He says the Court has inherent power to protect its own processes. He says the flexibility of the Federal Court's processes permit the appointment of a 'special counsel' or 'special advocate' where "promotion of fairness and expedition in the resolution of proceedings may be seen to justify the court, in a proper case and without destroying or affecting the right concerned, making a properly fashioned order for the employment of a special counsel to make submissions in relation to documents or information to which the other party is not privy": New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200; 81 NSWLR 394 at [20] (Allsop P, Hodgson JA and Sackville AJA agreeing).

The DIRECTOR-GENERAL's arguments

1. In support of his claim for public interest immunity the Director-General relies on three propositions: First, it is not within the power of the Court to adopt the proposed restricted counsel procedure for the trial of these proceedings; Second, even if the Court had the power to impose such a procedure, it would not in its discretion do so having regard to the unacceptable intrusion upon procedural fairness, the lack of statutory authorisation for such a process, the practical difficulties it would create, and the fact that the applicant can maintain his claim without access to the documents; and Third, even if the proposed restricted counsel procedure were adopted, the disclosure of the documents would present a serious and unacceptable threat to national security, which risk outweighs any public interest in disclosure of the information.
2. As to the first the Director-General says that the Federal Court, as a creature of statute, does not have an express or implied power to abrogate fundamental common law rights such as procedural fairness. As the Restricted Counsel would not be able to convey the substance of the National Security Information to the applicant they will not in substance be acting on his instructions. He says the procedure undermines the principles of open and natural justice.
3. As to the second the Director-General argues that even if the Court does have the power to adopt the proposed restricted counsel procedure, it should not exercise its discretion to implement it. That is because Parliament has not made provision for a procedure like that sought by the applicant despite making provision for other like procedures in other circumstances. Also, there will be several practical difficulties with adopting the scheme. And the applicant does not contend that the proceedings must be discontinued without being able to rely upon the documents.
4. As to the third the Director-General submits that the evidence of the Deputy Director-General demonstrates that there is a compelling public interest against disclosure of the documents. The restricted counsel procedure does not adequately protect against the risks of the documents and their contents becoming known to persons other than those permitted to attend closed court. There is a risk of inadvertent disclosure in the course of taking instructions from the applicant. Highly sensitive material will be canvassed in court proceedings when otherwise it would not be. Ongoing access to the documents increases the risk of inadvertent disclosure, including by a 'mosaic analysis' (namely, combining different, sometimes seemingly innocuous sources of information to create a mosaic, or picture, of otherwise protected information). Further, public knowledge about the use of a restricted counsel procedure increases the risk that 'hostile actors' could target those procedures.

questions for determination and consideration

1. As I set out above, I was provided with access to copies of all those documents over which partial and full public interest immunity was claimed. I have reviewed each of those documents.
2. In assessing the claims I have weighed the competing aspects of public interest; the public interest harmed by the production of the documents against the public interest in the impairment of the administration of justice if the information is withheld. I have endeavoured to balance the injury which the nation would likely suffer with the evidentiary value and importance of the documents for the applicant in the substantive proceeding. However, as discussed below, in assessing the evidentiary value and importance of the documents I note: first, that the opposition to the claim for public interest immunity was not brought by reference to particular documents, so my assessment of the evidentiary value is necessarily broad; second, the security cleared counsel procedure has the potential to undermine the value of the documents where there are limits on the use to which the documents may be put.
3. I accept that a tailored procedure, as proposed by the applicant is a matter that may be taken into account in the balancing exercise. I accept that the public interest in the national security will seldom yield to the public interest in the administration of civil justice: Church of Scientology at 76.
4. I also accept that the Deputy Director-General has given genuine consideration to the question of disclosure of the documents. Such genuine consideration, in the absence of countervailing evidence, may result in the balance being struck on the side of non-disclosure: Leghaei at [65].
5. I consider that the relevant questions for determination are:
6. Does the Court have power to implement the restricted counsel procedure?
7. Should the Court exercise its discretion to implement the restricted counsel procedure?
8. Would the restricted counsel procedure be an adequate safeguard? For the reasons set out below I answer the second and third questions by refusing to exercise my discretion to order disclosure of the documents under the restricted counsel procedure (whether the Court has the power to do so or not). In those circumstances it is not necessary for me to determine the question of the Court's power.

The restricted counsel procedure would not be an adequate safeguard

1. The evidence of the Director-General establishes that the documents contain information the disclosure of which would reveal, or tend to reveal:
2. ASIO's intelligence holdings and sources of information;
3. ASIO's investigative and operational methodology;
4. The identity of ASIO employees; and
5. ASIO administrative and system identifiers.
6. The Deputy Director-General, in both his open and confidential affidavit, has identified each document within each of those categories and set out the basis for those claims. The Deputy Director-General deposes that there is a significant degree of overlap across those categories within the documents, and that a claim is made over each document for at least one of those reasons. Having reviewed the documents I accept that there is a proper basis for the claims under those grounds of national security. There was no meaningful challenge to those particular claims.
7. The Deputy Director-General deposes, and I accept, that it is fundamental to the effective operation of ASIO that the following matters be kept in the strictest possible secrecy: the specific details of ASIO's areas of interests; the identity of the subjects of security interest; the degree of ASIO's ability to obtain intelligence in relation to those subjects; ASIO's sources (including human sources); ASIO's investigative techniques; ASIO's technical capabilities and work methods; and ASIO's successes and the information derived from its successes.
8. In balancing the public interests, and considering the restricted counsel procedure in the balance, I weigh the risk of inadvertent disclosure. I have no reason to doubt the integrity and efforts of all counsel proposed to be involved in, and associated with, the restricted counsel procedure. However, 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": R v Collaery (No 11) [2022] ACTSC 40; 364 FLR 418 at [73] citing R v Khazaal [2006] NSWSC 1061 at [34]-[37].
9. The Deputy Director-General deposes to the reasons why the restricted counsel procedure would be an inadequate safeguard. I accept the evidence of the Deputy Director-General that:
10. the documents are materially more vulnerable if the restricted counsel procedure was adopted than if withheld from disclosure and kept within ASIO;
11. courtrooms are not designed to operate as a secure environment;
12. if the restricted counsel procedure is public knowledge, it will increase the risks associated with the use of it in this proceeding, including of access by 'hostile actors';
13. the level of sustained access to the documents in the restricted counsel procedure leads to a wider risk of inadvertent disclosure, particularly when the restricted counsel are seeking instructions from the applicant;
14. if the restricted counsel procedure is adopted there will remain material risks to the security of the documents; and
15. the documents would pose a significant risk of prejudice to Australia's national security and that any such disclosure would be detrimental to the public interest.
16. I accept the submissions of the Director-General that: First, where the restricted counsel have already viewed all but six of the documents, and where those documents contain a significant amount of information, there is a risk of inadvertent disclosure in counsel's dealings with the applicant. Second, that once the documents are outside of the ASIO premises, including to be canvassed in court proceedings, there are increased risks. Third, there are risks of disclosure generally in the preparation of the case. These risks increase during the conduct of the case such that, when weighed against the possible harm, support non-disclosure. Fourth, where there is public knowledge about the restricted counsel process, there are increased risks of hostile actors viewing the restricted counsel procedure as an opportunity to collect information.
17. When considering the harm that may flow from disclosure, I accept the evidence of the Deputy Director-General that small (or seemingly innocuous) pieces of information may be gathered in an effort to build a more comprehensive picture of security information. This is described as mosaic analysis.
18. I accept, as contended for by the applicant, that the Director-General has in the past implemented security measures to mitigate the risks associated with the disclosure of such documents. However, I am not satisfied that in the present circumstances, weighing the public interests, that those measures are an adequate protection. It is clear from the above that I do not accept the proposition contended for by the applicant that the risk to national security would be 'negligible' in the present circumstances.
19. I am satisfied that even if the Court does have the power to adopt the proposed restricted counsel procedure, it should not exercise its discretion to implement the procedure because the procedure is not an adequate safeguard of the national security.

The Court should not exercise its discretion to implement the restricted counsel procedure

1. The Director-General also argues that even if the Court does have the power to adopt the proposed restricted counsel procedure, it should not exercise its discretion to implement it. He says so for three reasons. First, Parliament has chosen to exclude common law public interest immunity, and make provision for procedures like those sought by the applicant, in only limited circumstances, the Court should not adopt such a procedure beyond those circumstances. Second, the procedure is ad hoc and has practical difficulties. Third, the applicant is able to maintain his proceeding without the documents.
2. I accept, as contended for by the Director-General, that I should be slow to order such a procedure in circumstances where Parliament has chosen to provide for the exclusion of the common law public interest immunity in only certain proceedings (see Administrative Appeals Tribunal Act 1975 (Cth) ss 39A, 39B). He says the Court should be slow to go beyond those proceedings chosen by Parliament.
3. As to the practical difficulties, the Director-General complains that the procedure is incomplete, unclear or uncertain. The procedure provides that the security cleared counsel will not communicate with the applicant about the information in the documents other than as provided for by the undertaking. The undertaking then provides a process where the security cleared counsel considers it 'necessary' to communicate with the applicant or his legal representatives. That process is set out at [12(3)] above. Questions then arise about why the application is 'necessary' in the view of security cleared counsel: how that might be established; how security cleared counsel's communications with the Director-General (about that issue) might be reviewed and assessed; how the Court might resolve whether the communication is necessary. The uncertainty in those processes counts against the implementation of the procedure.
4. Th Director-General also complains that the procedure is premised on the applicant's consent (including his consent to not being able to see the documents) and no provision is made for the consequences if that consent is withdrawn. The Director-General also complains that no provision is made for the circumstances where security cleared counsel are instructed to act contrary to their undertaking. I accept the submissions of the applicant that the likelihood of these scenarios are low, however, given the views I have formed about the proper basis for the national security claims, it is relevant that provision has not been made for those matters.
5. The Director-General raises the scenario where the applicant provides instructions to security cleared counsel that are inconsistent with information contained in the documents provided to counsel. Ultimately the Director-General complains that such matters are wholly at large and it is not clear how they will be resolved, including how the Court will resolve them, and including whether the Court could or should be constituted by the trial judge or a different judge. He says such matters might be expected to be resolved by a legislative scheme if one were provided for in the present circumstances. Again, given my views about the proper basis for the national security claims over the documents, the uncertainty in those processes counts against the implementation of the procedure.
6. The applicant sensibly submits that he will cooperate with the Director-General to resolve any outstanding difficulties with the procedure, or alternatively return before the Court to have matters resolved. Of course, all of that depends on the demands or proposals made by the Director-General and the applicant, and the applicant's willingness to consent to some addition or variation to the process. That may result in court supervision, or at least court amendments, to a process with some uncertainty as to how those matters might be resolved by the court or between the parties. I weigh that uncertainty in the balance.
7. Lastly, the applicant accepts that he is able to maintain his proceeding without disclosure of the documents. However, that itself is not the test. The principles above identify that I should weigh the injury which the nation will likely suffer with the evidentiary value and importance of the documents. Whilst the applicant accepts that he can proceed without the documents, that does not mean the documents lack value or importance. The applicant has not made submissions on the value of particular documents, rather they are said, as a group, to bear on the validity of the purported exercises of power under the ASIO Act and the applicant's claims of duties owed and breached by the Director-General. I weigh the fact that the documents are not essential for the continuance of the proceeding, but that does not weigh heavily in the balance.
8. Weighing all of those matters above, I am satisfied that, even if the Court does have the power to adopt the proposed restricted counsel procedure, I should not exercise my discretion to implement it.

Does the Court have power to implement the restricted counsel procedure?

1. As set out above, in circumstances where I consider that the restricted counsel procedure is not an adequate safeguard, and I have refused to exercise my discretion to adopt the procedure, it is not necessary for me to determine whether the Court has the power to order the procedure.
2. However, I express some reservations about the Court's power to order such a procedure. It is a procedure in which neither the applicant nor his counsel (other than the restricted counsel) are able to see and provide instructions on the relevant documents, save through some further process or orders. It is a procedure that undermines principles of open justice and natural justice. In Al Rawi v Security Service [2012] 1 AC 531 Lord Dyson of the Supreme Court of the United Kingdom at [10] described those principles as "fundamental to our system of justice".
3. Mr Al Rawi was one of six claimants who alleged false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breach of the Human Rights Act 1998 (UK), as a result of their detention at various locations including Guantanamo Bay detention facility. Their claims were brought against the Security Service, the Security Intelligence Service, Foreign and Commonwealth Office, the Home Office and the Attorney General. Those agencies filed an open defence and in that defence stated that they intended to rely on closed pleadings and evidence. They claimed that the closed material was relevant to the proceeding but they could not rely on it openly because disclosure would be contrary to the public interest, and in particular to the public interest in the national security. The agencies proposed a "closed material procedure" in which national security documents were only to be provided to a special counsel (to represent the claimants) and not the claimants themselves. Under the proposal the documents could only be relied on in closed court.
4. The majority of the Court in Al Rawi held that, absent legislative authority, the inherent jurisdiction of the Supreme Court did not empower it to order a closed material procedure for the trial of such a civil claim. It described the principles of open justice and natural justice as fundamental features of a common law trial. Whilst the court had inherent power to regulate its own procedures, it could not, in doing so, deny the parties the benefit of those principles. It described the closed material procedure as a departure from those principles.
5. The difference in the circumstances in Al Rawi and the present circumstances is that here the applicant (rather than the government agencies) proposes the restricted counsel procedure. The applicant does so for his own benefit. The Director-General says that is not material because principles of open justice and natural justice cannot, as explained by Lord Brown of Eaton-under-Heywood JSC in Al Rawi be "sacrificed merely on the say so of the parties": Al Rawi at [84]. I agree with the Director-General that the applicant's consent does not change the open and natural justice shortcomings, where there is no statutory authorisation for such a procedure. Likewise, the implementation of the procedure through the giving of undertakings cannot overcome any deficiency in the Court's power: see Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 165 (Gibbs CJ, Stephen, Mason and Wilson JJ).
6. The applicant submits that no Australian court has applied Al Rawi and rather the trend of Australian authority is consistent with the position adopted by Lord Clarke in dissent in Al Rawi. However, I accept, as the Director-General contends, that the authorities relied upon by the applicant involved parliamentary approval of closed material procedures, or concerned interlocutory contests, either to determine the extent to which a trial should be conducted in public under national security legislation, or to resolve public interest immunity claims. Those proceedings did not involve material being withheld from a party at trial absent express statutory authorisation. Indeed, courts inspecting documents to determine public interest immunity do not have the same shortcoming as the restricted counsel procedure, because if the documents are required to be produced they are available to both parties, and if they are not to be produced they are available to neither party, and the court may not use them. In that way the same complaint cannot be made of any shortcomings in natural justice: See Al Rawi at [41] per Lord Dyson and HT v The Queen [2019] HCA 40; 269 CLR 403 at [32] (per Kiefel CJ, Bell and Keane JJ).
7. The Director-General submits that no Australian court, absent statutory authorisation, has adopted a procedure for the conduct of a trial that contemplates that a party (or their lawyers acting on their instructions) will not have access to the evidence against them. That was accepted by the applicant. The Director-General responds to the applicant's reliance on Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 and SDCV v Director-General of Security [2022] HCA 32; 277 CLR 241 by identifying that those cases concerned processes authorised by the legislature. He says, Parliament has chosen not to modify the common law of public interest immunity in the circumstances of this case, and the Court should not, and cannot, do so.
8. I accept, as contended for by the applicant, that the Court may vary the manner in which a proceeding is conducted, including by modifying some of the requirements of procedural fairness: HT v The Queen (2019) 269 CLR 403 [42]-[44] (per Kiefel CJ, Bell and Keane JJ). However, I am concerned that the present procedure would be such a significant departure from those requirements that the Court's power to do so is at best uncertain. Whilst, as explained above, it is not necessary for me to determine whether the Court has the necessary power, I express those reservations about the Court's power to order such a restricted counsel procedure.

Imad v Director-General of Security [2014] FCA 1115

1. After listing this matter for judgment, the Director-General, with the consent of the applicant, brought to my attention the decision of Rofe J of 24 September 2024 in Imad v Director-General of Security [2024] FCA 1115. In that matter her Honour is to be the trial judge in an application for judicial review of the Director-General's decision to recommend the cancellation of Mr Imad's temporary visitor visa on the basis of an adverse security assessment.
2. In the decision of 24 September 2024 her Honour relevantly upheld the Director-General's claims for public interest immunity. There is nothing in the principles set out by her Honour, or the application of those principles, which alters my conclusions above.

disposition

1. For the reasons set out above I am not prepared to make the restricted counsel procedure orders sought by the applicant. I uphold the Director-General's claims for public interest immunity. I order that costs are reserved. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.