Church of Scientology v Woodward [1982] HCA 78;

Church of Scientology v Woodward [1982] HCA 78; - HCA 1982 case summary — Zoe

[14]

"AND THE PLAINTIFFS CLAIM:

A. (i) A Declaration that prior to 1st June 1980 ASIO was prohibited from continuing to obtain, correlate and evaluate intelligence other than intelligence relevant to security within the meaning of the 1956 Act, after initial enquiries established or ought to have established that such intelligence was not relevant to security within the meaning of the 1956 Act.

(ii) A Declaration that prior to 1st June 1980 ASIO was prohibited from communicating any intelligence to any person other than intelligence relevant to security within the meaning of the 1956 Act;

(iii) A Declaration that prior to 1st June 1980 ASIO was prohibited from communicating the fact that ASIO had characterised persons as persons in respect of whom the Commonwealth and the Territories needed protection from acts of espionage, sabotage or subversion unless such characterisation was true;

(iv) A Declaration that prior to 1st June 1980 after initial enquiries established or ought to have established that such intelligence was not relevant to security within the meaning of the 1956 Act, the continued obtaining, correlating and evaluating of intelligence by ASIO concerning the plaintiffs and the other members of the firstnamed plaintiff was unlawful;

(v) A Declaration that prior to 1st June 1980 intelligence concerning the plaintiffs and the other members of the firstnamed plaintiff other than intelligence that they were not persons in respect of whom the Commonwealth and the Territories need protection from acts of espionage, sabotage, or subversion could not be communicated to any person;

(vi) A Declaration that prior to 1st June 1980 the communication of information by ASIO to the effect that the plaintiffs and the members of the firstnamed plaintiff were persons in respect of whom the Commonwealth and the Territories needed protection from acts of espionage, sabotage or subversion was unlawful;

(vii) A Declaration that prior to 1st June 1980 the executive power of the Commonwealth did not authorise the acts alleged in paragraph 7(b) and (c) hereof.

B. (i) A Declaration that ASIO is prohibited from continuing to obtain, correlate and evaluate intelligence other than intelligence relevant to security within the meaning of the 1979 Act, after initial enquiries have established or ought to have established that such intelligence is not relevant to security within the meaning of the 1979 Act.

(ii) A Declaration that ASIO is prohibited from communicating any intelligence to any person other than intelligence relevant to security within the meaning of the 1979 Act, and information relating to the offences and matters specified in section 18(3) of the 1979 Act.

(iii) A Declaration that ASIO is prohibited from communicating the fact that ASIO has characterised persons as persons in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention and terrorism or who have committed or intend to commit the said offences unless such characterisation is true;

(iv) A Declaration that after initial enquiries have established or ought to have established that such intelligence is not relevant to security within the meaning of the 1979 Act, the continued obtaining correlating and evaluating of intelligence by ASIO concerning the plaintiffs and the other members of the firstnamed plaintiff is unlawful;

(v) A Declaration that intelligence concerning the plaintiffs and the other members of the firstnamed plaintiff other than intelligence that they are not persons in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism may not be communicated to any person;

(vi) A Declaration that the communication of information by ASIO to the effect that the plaintiffs and the members of the firstnamed plaintiff are persons in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism, or who have committed or intend to commit the said offences, is unlawful;

(vii) A Declaration that the executive power of the Commonwealth does not authorise the acts alleged in paragraph 7A(b) and (c) hereof.

C. An injunction restraining the defendants from causing or permitting ASIO from continuing to act as alleged in paragraph 7A(b) and (c) hereof.

D. An order commanding the firstnamed defendant to perform his duty under section 20 of the 1979 Act by taking all reasonable steps to ensure that the work of ASIO is limited to what is necessary for the purposes of the discharge of its functions and that ASIO is kept free from any influences or considerations not relevant to its functions and that nothing is done that might lend colour to any suggestion that ASIO is concerned to further or protect the interests of any particular section of the community or with any matters other than the discharge of its function.

E. A Declaration that if and insofar as the 1956 Act did empower the firstnamed defendant to act as alleged in paragraph 7(b) and (c) hereof, the said Act was a law for prohibiting the free exercise of any religion and was beyond the powers of the Commonwealth by reason of the provisions of section 116 of the Constitution.

F. A Declaration that if and insofar as the 1979 Act does empower the firstnamed defendant to act as alleged in paragraph 7A(b) and (c) hereof, the said Act is a law for prohibiting the free exercise of any religion and is beyond the powers of the Commonwealth by reason of the provisions of section 116 of the Constitution.

G. Such further or other relief as to the Court seems meet." (at p30)

[18]

"4. In this Act, unless the contrary intention appears -

. . .

'domestic subversion' means activities of the kind to which sub-section 5(1) applies;

. . .

'security' means -

(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from -

(i) espionage;

(ii) sabotage;

(iii) subversion;

(iv) active measures of foreign intervention; or

(v) terrorism,

whether directed from, or committed within, Australia or not; and

(b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the sub-paragraphs of paragraph (a);

'terrorism' includes -

(a) acts of violence for the purpose of achieving a political objective in Australia or in a foreign country (including acts of violence for the purpose of influencing the policy or acts of a government in Australia or in a foreign country);

(b) training, planning, preparations or other activities for the purposes of violent subversion in a foreign country or for the purposes of the commission in a foreign country of other acts of violence of a kind referred to in paragraph (a);

(c) acts that are offences punishable under the Crimes (Internationally Protected Persons) Act 1976; or

(d) acts that are offences punishable under the Crimes (Hijacking of Aircraft) Act 1972 or the Crimes (Protection of Aircraft) Act 1973.

5. (1) For the purposes of this Act, the activities of persons, other than activities of foreign origin or activities directed against a foreign government, that are to be regarded as subversion are -

(a) activities that involve, will involve or lead to, or are intended or likely ultimately to involve or lead to, the use of force or violence or other unlawful acts (whether by those persons or by others) for the purpose of overthrowing or destroying the constitutional government of the Commonwealth or of a State or Territory;

(b) activities directed to obstructing, hindering or interfering with the performance by the Defence Force of its functions or the carrying out of other activities by or for the Commonwealth for the purposes of security or the defence of the Commonwealth; or

(c) activities directed to promoting violence or hatred between different groups of persons in the Australian community so as to endanger the peace, order or good government of the Commonwealth.

. . .

PART II - THE ORGANIZATION AND THE DIRECTOR-GENERAL

6. The Australian Security Intelligence Organization, being the Organization that was continued in existence by the Acts repealed by this Act, is continued in existence.

7. (1) There shall be a Director-General of Security, who shall be appointed by the Governor-General and shall hold office, subject to this Act, on such terms and conditions as the Governor-General determines.

(2) Before a recommendation is made to the Governor-General for the appointment of a person as Director-General, the Prime Minister shall consult with the Leader of the Opposition in the House of Representatives.

8. (1) The Organization shall be under the control of the Director-General.

(2) In the performance of his functions under this Act, the Director-General is subject to the general directions of the Minister, but the Minister is not empowered to override the opinion of the Director-General -

(a) on the question whether the collection of intelligence by the Organization concerning a particular individual would, or would not, be justified by reason of its relevance to security;

(b) on the question whether a communication of intelligence concerning a particular individual would be for a purpose relevant to security; or

(c) concerning the nature of the advice that should be given by the Organization to a Minister, Department or authority of the Commonwealth.

. . .

PART III - FUNCTIONS AND POWERS OF ORGANIZATION

DIVISION 1 - GENERAL

17. (1) The functions of the Organization are - (a) to obtain, correlate and evaluate intelligence relevant to security;

(b) for purposes relevant to security and not otherwise, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes; and

(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.

(2) It is not a function of the Organization to carry out or enforce measures for security within an authority of the Commonwealth.

18. (1) The communication of intelligence on behalf of the Organization shall be made only by the Director-General or by an officer of the Organization acting within the limits of authority conferred on him by the Director-General.

(2) If a person makes a communication of any information or matter that has come to his knowledge or into his possession by reason of his being, or having been, an officer or employee of the Organization or his having entered into any contract, agreement or arrangement with the Organization, being information or matter that was acquired or prepared by or on behalf of the Organization in connection with its functions or relates to the performance by the Organization of its functions, other than a communication made -

(a) to the Director-General or an officer or employee of the Organization -

(i) by an officer or employee of the Organization - in the course of his duties; or

(ii) by a person who has entered into any such contract, agreement or arrangement - in accordance with the contract, agreement or arrangement;

(b) by an officer of the Organization, within the limits of authority conferred on him by the Director-General; or

(c) with the approval of the Director-General or of an officer of the Organization having the authority of the Director-General to give such an approval,

he is guilty of an offence.

(3) Notwithstanding paragraph 17(1)(b), the Director-General may, in accordance with the following paragraphs, by himself or by an officer authorized by him, communicate information that has come into the possession of the Organization in the course of performing its functions under section 17:

(a) where the information relates, or appears to relate, to the commission, or intended commission, of an offence against the law of the Commonwealth or of a State or Territory, being an offence punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years - the information may be communicated to an officer of the Police Force of a State or Territory or of the Commonwealth Police Force;

(b) where the information relates, or appears to relate, to the commission, or intended commission, of an offence punishable as provided by section 235 of the Customs Act 1901 - the information may be communicated to a person who is an officer of Customs for the purposes of the Customs Act 1901; or

(c) where the information has come into the possession of the Organization outside Australia or concerns matters outside Australia and the Director-General is satisfied that the national interest requires the communication - the information may be communicated to a Minister or Department or to the Office of National Assessments.

(4) An offence against sub-section (2) may be prosecuted either summarily or on indictment and the penalty for such an offence is -

(a) upon summary conviction - a fine not exceeding $1,000 or imprisonment for a term not exceeding 1 year; or

(b) upon conviction on indictment - imprisonment for a term not exceeding 2 years.

(5) A prosecution for an offence against sub-section (2) shall be instituted only by or with the consent of the Attorney-General.

. . .

20. The Director-General shall take all reasonable steps to ensure that -

(a) the work of the Organization is limited to what is necessary for the purposes of the discharge of its functions; and

(b) the Organization is kept free from any influences or considerations not relevant to its functions and nothing is done that might lend colour to any suggestion that it is concerned to further or protect the interests of any particular section of the community, or with any matters other than the discharge of its functions.

21. The Director-General shall consult regularly with the Leader of the Opposition in the House of Representatives for the purpose of keeping him informed on matters relating to security."

[19]

Division 2 of Pt III is headed "Special Powers", and covers ss. 22 to 34 inclusive. It authorizes under stringent conditions the exercise on behalf of ASIO by the Director-General and persons approved by him of special powers under warrants issued by the Minister or in case of emergency by the Director-General himself. The special powers extend to the search of premises and inspection and removal of records, the use of listening devices whether in relation to a particular person or particular premises, and the inspection of postal articles, whether in relation to a particular person or particular premises. The conditions precedent to the exercise by the Minister of the power to issue a warrant include the following: (a) a request by the Director-General for the issue of a warrant; (b) the satisfaction of the Minister, (i) in the case of a search warrant, that there are reasonable grounds for believing that there are in any premises any records without access to which the collection of intelligence by ASIO in respect of a matter that is of importance in relation to security would be seriously impaired; (ii) in the case of a listening device in relation to a particular person, that the person is engaged in, or is reasonably suspected by the Director-General of being engaged in, or of being likely to engage in, activities prejudicial to security, and that the use by ASIO of a listening device in relation to that person will, or is likely to, assist ASIO in carrying out its function of obtaining intelligence relevant to security; (iii) in the case of a listening device in relation to particular premises that the premises are used, likely to be used or frequented by a person engaged in, or reasonably suspected by the Director-General of being engaged in or of being likely to engage in, activities prejudicial to security, and that the use of a listening device in such premises will, or is likely to assist ASIO in carrying out its function of obtaining intelligence relevant to security; and (iv) in the case of postal articles, of considerations similar to those applicable to the case of listening devices. Section 26(1), in relation to listening devices, and s. 27(1) in relation to the inspection of postal articles declare it to be unlawful for ASIO to use a listening device or to seek or be provided with access to a postal article, as the case may be, otherwise than in accordance with a warrant, and it is declared to be the duty of the Director-General to take all reasonable steps to ensure that the provision is not contravened. Division 2 includes also the following provisions:

[22]

12. Part IV deals with security assessments, and its salient features may be summarized as follows: (a) The functions of ASIO referred to in s. 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities (s. 37(1)). (b) A security assessment is a statement in writing furnished by ASIO expressing any recommendation, opinion or advice on the question whether it would be consistent with the requirements of security for "prescribed administrative action" to be taken in respect of a person, or whether it was necessary or desirable for such action to be taken (s. 35). (c) "Prescribed administrative action" means action which relates to or affects access by a person to any information or place, access to which is controlled or limited on security grounds, including action affecting the occupancy of any office under the Commonwealth or under a State or in the service of a Commonwealth contractor the occupant of which has or may have any such access. It also embraces the exercise of a power or performance of a function in relation to a person under the Migration Act 1958, the Australian Citizenship Act 1948, the Passports Act 1938, or the regulations thereunder (s. 35). (d) Whenever an adverse or qualified security assessment in respect of a person is furnished by ASIO to a Commonwealth agency, the agency shall within fourteen days inform that person by notice in writing of the making of the assessment and enclose a copy of the assessment. The assessment is accompanied by a statement which includes all the information that has been relied on by ASIO in making the assessment, other than information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security. Furthermore, the Attorney-General may certify that he is satisfied either that - (i) it is essential to the security of the nation that notice to a person of the making of a security assessment be withheld; or (ii) the disclosure to the subject of the accompanying statement or part thereof would be prejudicial to the interests of security, and in either case effect is to be given to the certificate (ss. 37, 38). (e) A person who has been given notice of an adverse or qualified security assessment may apply to the Security Appeals Tribunal (established by Div. 3 of Pt IV) for a review of the assessment (s. 54). The proceedings shall be in private; neither the applicant nor his representative shall be present when the Tribunal is hearing submissions or evidence from the Director-General or Commonwealth agency concerned, and the same rule applies to the Director-General and Commonwealth agency when the Tribunal is hearing submissions or evidence from the applicant (s. 58(6) and (7)). For the purpose of giving the applicant an opportunity of adducing further evidence, the Tribunal may give him such particulars of evidence adduced or submissions made by the Director-General as it considers can be so given consistently with the requirements of security, and before doing so it shall consult with the Director-General as to those requirements (s. 58(12) and (13)). (f) Other than an application to the Tribunal, no proceedings shall be brought in any court or tribunal in respect of the making of an assessment or anything done in respect of an assessment in accordance with this Act (s. 37(5)), and subject to the Constitution a decision of the Tribunal is not subject to review by any court or other tribunal (s. 62). (g) Section 81 provides as follows:

[32]

18. The features of the 1979 Act which impress me as being of importance to the resolution of the issues that have been raised include the following: (a) Section 17 must be read in the light of s.8, with the result that ASIO's pursuit of its functions is surrounded at every point by the controlling opinion of the Director-General. (b) Section 20 exhibits the character of a political exhortation rather than a legal command. I cannot conceive of a court being required to adjudicate on allegations touching "influences or considerations not relevant to its functions" or on conduct which "might lend colour to any suggestion that it (ASIO) is concerned to further or protect the interests of any particular section of the community". (c) The existence of grounds supporting the issue of a warrant authorizing the exercise by ASIO of special powers would not seem to be open to judicial review. I draw this conclusion from the emphasis, (i) in s. 25, upon the satisfaction of the Minister as a condition precedent to the issue of the warrant; and (ii) in ss.26 and 27, upon the satisfaction of the Minister of, inter alia, a reasonable suspicion of the Director-General. (d) The provision of a specific form of judicial review of one aspect only of the operations of ASIO, namely, the furnishing to a Commonwealth agency of an adverse or qualified security assessment. Three things may be noted about this provision: the first is that it is directed to that part of the operations of ASIO that is most likely to be attended with immediate adverse consequences to the individual; the second is that the procedure bears no comparison to customary court procedures, and is clearly dominated by a concern to protect security; the third is that, save for such a review, no proceedings shall be brought in any court or tribunal in respect of the making of an assessment or anything done in respect of an assessment in accordance with this Act. (e) The legislature makes clear its reliance upon the integrity and competence of the Director-General to ensure that ASIO conforms to its charter, and it pays some attention to political processes in relation to the office: see ss.7(2), 8, 20, 21, 26(1), 27(1), 34 and 94. (at p40)

[43]

28. The courts have pratical procedures for regulating any questions of Crown privilege or confidentiality: Krew v. Federal Commissioner of Taxation (1971) 45 ALJR 249; 2 ATR 230; 71 ATC 4091 ; The Commonwealth v. John Fairfax & Sons Ltd [1980] HCA 44; (1981) 147 CLR 39, at pp 50-54 ; Sankey v. Whitlam (1978) 142 CLR 1 . Facts or documents relating to the affairs of the appellants should not be disclosed to other persons under the cover or guise of legislative authority when, in fact, those matters are not properly the subject of the Act. The Court has a role to play in relation to the Act, e.g., in relation to the validity of search warrants and wrongful transmission of security assessments. Where there is to be no access to the courts, the legislature has said so, e.g. in ss. 62 and 81. The existence of a private right of action does not affect or negative in any way the existence of the right to complain of the public wrong. Officers of the Commonwealth authorized by statute to exercise the executive power of the Commonwealth are limited, when acting in the exercise of that capacity, to the functions so authorized by the relevant statute. Once it is established that a person is not a security risk, he cannot be the subject of continuing or permanent surveillance in the obtaining of intelligence. Where the matter governing the exercise of a statutory power is objective rather than being a matter of the opinion of an officer, then that matter can be reviewed by a court. All actions of the executive must be for constitutional purposes of the Commonwealth and the power of inquiry also is subject to that limit: Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) [1912] HCA 94; (1912) 15 CLR 182, at pp 194, 205-206 ; Victoria v. The Commonwealth [1975] HCA 52; (1975) 134 CLR 338, at pp 362, 377-378, 380, 396-397 ; Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, at pp 183, 187 . The constitutional limits inevitably mean that these issues are justiciable. (at p43)

[47]

2. The action is brought by the Church of Scientology Inc. and by Peter James Fowler (who sues on his own behalf and on behalf of all the other members of the Church of Scientology Inc. as at the date of the issue of the writ) against the Honourable Mr. Justice Woodward (who was at the date of delivery of the statement of claim the Director-General of the Australian Security Intelligence Organization ("ASIO")), the Attorney-General and the Commonwealth. Full details of the amended statement of claim appear in the judgment of Wilson J., and it is unnecessary to repeat them. Until 1 June 1980, the legislation governing the activities of ASIO was the Australian Security Intelligence Organization Act 1956 (Cth), as amended ("the Act of 1956"), which was repealed and replaced by the Australian Security Intelligence Organization Act 1979 ("the Act of 1979") which came into operation on that date. The amended statement of claim alleges that both before and since 1 June 1980 the Director-General (on his own initiative or acting under instructions from and in concert with the Attorney-General, or acting in consequence of policies and directions determined by various Ministers of the Commonwealth) has caused or permitted ASIO to obtain, correlate and evaluate intelligence concerning the plaintiffs and the members of the first plaintiff and to communicate such intelligence to other persons and to characterize the plaintiffs and other members of the first plaintiff as security risks and to communicate to other persons the fact that ASIO has made that characterization, in circumstances in which it was unlawful for ASIO to do any of these things. The plaintiffs seek declarations that these activities of ASIO were prohibited both before and after 1 June 1980 and seek an injunction restraining the defendants from causing or permitting ASIO to act in the manner alleged and an order commanding the Director-General to perform his duty under s. 20 of the Act of 1979, to whose provisions I shall shortly refer. Declarations were sought that if the Acts of 1956 and 1979 did empower the Director-General to act in the manner alleged they were beyond power by reason of the provisions of s. 116 of the Constitution, but those claims were abandoned in argument before us. In the circumstances, it is unnecessary to deal separately with the effect of the Act of 1956, since the real concern of the plaintiffs is with the continued activities of ASIO in the future, and the question whether ASIO was prohibited from doing what it did in the past is now only of theoretical interest. There is however, no reason to suppose that any different conclusion would be reached in relation to the Act of 1956 from that which will be reached in relation to the Act of 1979. (at p45)

[59]

Director-General.

(2) If a person makes a communication of any information or matter that has come to his knowledge or into his possession by reason of his being, or having been, an officer or employee of the Organization or his having entered into any contract, agreement or arrangement with the Organization, being information or matter that was acquired or prepared by or on behalf of the Organization in connection with its functions or relates to the performance by the Organization of its functions, other than a communication made -

(a) to the Director-General or an officer or employee of the Organization -

(i) by an officer or employee of the Organization - in the course of his duties; or

(ii) by a person who has entered into any such contract, agreement or arrangement - in accordance with the contract, agreement or arrangement;

(b) by an officer of the Organization, within the limits of authority conferred on him by the Director-General; or (c) with the approval of the Director-General or of an officer of the Organization having the authority of the Director-General to give such an approval,

he is guilty of an offence.

(3) Notwithstanding paragraph 17(1)(b), the Director-General may, in accordance with the following paragraphs, by himself or by an officer authorized by him, communicate information that has come into the possession of the Organization in the course of performing its functions under section 17:

(a) where the information relates, or appears to relate, to the commission, or intended commission, of an offence against the law of the Commonwealth or of a State or Territory, being an offence punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years - the information may be communicated to an officer of the Police Force of a State or Territory or of the Commonwealth Police Force;

(b) where the information relates, or appears to relate, to the commission, or intended commission, of an offence punishable as provided by section 235 of the Customs Act 1901 - the information may be communicated to a person who is an officer of Customs for the purposes of the Customs Act 1901; or

(c) where the information has come into the possession of the Organization outside Australia or concerns matters outside Australia and the Director-General is satisfied that the national interest requires the communication - the information may be communicated to a Minister or Department or to the Office of National Assessments.

(4) An offence against sub-section (2) may be prosecuted either summarily or on indictment and the penalty for such an offence is -

(a) upon summary conviction - a fine not exceeding $1,000 or imprisonment for a term not exceeding 1 year; or

(b) upon conviction on indictment - imprisonment for a term not exceeding 2 years.

(5) A prosecution for an offence against sub-section (2) shall be instituted only by or with the consent of the Attorney-General."

[66]

State of the thirdnamed defendant -

(a) has caused or permitted ASIO to obtain correlate and evaluate initial intelligence concerning the plaintiffs and other members of the firstnamed plaintiff and to communicate such initial intelligence to other persons;

(b) has further caused or permitted ASIO to continue to obtain, correlate and evaluate further intelligence concerning the plaintiffs and the other members of the firstnamed plaintiff and to continue to communicate such further intelligence to other persons notwithstanding that the initial obtaining, correlating and evaluating of intelligence established or ought to have established that such intelligence -

(i) is not relevant to the protection of the Commonwealth and the several States and Territories and of their people from espionage, sabotage, subversion, active measures of foreign intervention or terrorism;

(ii) does not relate or appear to relate to the commission or intended commission of an offence against the law of the Commonwealth or of a State or Territory being an offence punishable by imprisonment for not less than 3 years or an offence punishable as provided by section 235 of the Customs Act 1901;

(iii) did not come into the possession of ASIO outside Australia and does not concern matters outside Australia and is not information which the firstnamed defendant is satisfied must be communicated in the national interest;

(c) has caused or permitted ASIO to characterise the plaintiffs and other members of the firstnamed plaintiff as persons in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism or who have committed or intend to commit the said offences and has caused or permitted the fact that ASIO has made such characterisation to be communicated to other persons.

8A. (a) The firstnamed plaintiff is not now and has not been at any material time since the 1st day of June 1980 a person or organisation in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism, or who have committed or intend to commit the said offences.

(b) The secondnamed plaintiff and the members of the firstnamed plaintiff are not now and have not been at any material time since the 1st day of June 1980 persons in respect of whom, by reason of their membership of the firstnamed plaintiff or by reason of their being practising adherents of the Scientology religion, the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism, or who have committed or intend to commit the said offences.

(c) Intelligence concerning the plaintiffs and the members of the firstnamed plaintiff is not now and has not been at any material time since the 1st day of June 1980 -

(i) intelligence relevant to security within the meaning of the 1979 Act;

(ii) intelligence or information which relates or appears to relate to the commission or intended commission of the said offences;

(iii) intelligence or information which came into the possession of ASIO outside Australia or which concerns matters outside Australia or which the firstnamed defendant is satisfied must be communicated in the national interest." (at p50)

[70]

8. These considerations lead to the conclusion that it was not intended that a court should have power to decide whether ASIO has exceeded its proper function, and obtained intelligence which is not relevant to security, in a case where bad faith is not alleged, and it is not suggested that any private right has been infringed. It is important to recognize that the provisions of s. 17 of the Act of 1979 neither confer powers nor impose duties on ASIO - they simply define its functions. The present case is therefore not one in which it can be suggested that there has been an abuse of statutory power or a breach of statutory duty. In particular, s. 17 does not authorize ASIO to invade private rights - ASIO is given no power to affect the liberty or interfere with the person or property of a private citizen and its officers are given no privilege to make defamatory statements additional to that which is available under the general law. Where it is intended that ASIO should have special powers (for example to search, to use listening devices and to inspect postal articles) express provision is made to that effect: see Div. 2 of Pt III. The argument for the plaintiffs in essence is that the courts have power to control ASIO in the exercise of its functions of collecting and assessing intelligence, even though no private right is affected and bad faith is not alleged. However, it seems to me impossible for a court to say that any intelligence collected in good faith - i.e., for purposes believed to be relevant to security, and not for some ulterior purpose - is not relevant to security, since it may, in the light of other material, bear on the question whether a person is or is not a security risk. For all these reasons I consider that the legislation does not entrust to the courts the power to decide that ASIO may not obtain particular intelligence on the ground that it is not relevant to security. By s. 20 the Parliament requires the Director-General to take all reasonable steps to ensure that the work of ASIO is limited to what is necessary for the discharge of its functions. The Director-General is placed in a special position. By s. 8(2) the Minister cannot override his opinion on the question whether the collection or communication of intelligence concerning a particular individual would be justified. Sections 21 and 94 require the Leader of the Opposition to be consulted and informed, but oblige him to treat as secret the Director-General's reports on the activities of the Organization. These provisions show that the Director-General is not in the ordinary position of the head of a government department. And when it is intended that the work of ASIO should be reviewed, express provision is made: see Pt IV which provides for a review of security assessments by a special tribunal which sits in private and hears evidence from one party in the absence of the other. It would indeed be anomalous if, although an individual affected - and perhaps seriously affected - by a security assessment is given only a limited right of recourse to a special tribunal, a person who is merely the subject of inquiry has the right to have the exercise by ASIO of its functions reviewed in the ordinary courts. In my opinion, the Parliament intended that the performance of the functions of ASIO, which necessarily require secrecy, should be controlled by the Director-General and not by the courts - i.e., as I have said, in a case where individual rights are not involved and there is no bad faith. (at p53)

[142]

12. Parliament confined the relevant purposes by enacting definitions of "subversion" (s. 5) and "active measures of foreign intervention" (s. 4) "Terrorism" was defined to include particular classes of conduct (s. 4). "Espionage" and "sabotage" were not defined, but perhaps their meaning in the Act is to be gleaned from the Crimes Act 1914 (Cth) (see ss. 24AB and 78). Protection from the several kinds of conduct mentioned in par. (a) or the carrying out of Australia's international responsibilities in relation to such conduct are the purposes for which the members of the Organization may assemble and disseminate intelligence. Unless intelligence is relevant to a risk that such conduct may be engaged in, or to an apprehension that it is being engaged in, the assembly and dissemination of that intelligence is not within the legitimate functions of the Organization. But for all the statutory endeavour to give some precision to the definition of the Organization's functions, there is an inherent elasticity in the term "relevant". The requisite degree of relevance must surely depend upon the gravity of the conduct from which the assembly and dissemination of intelligence is intended to provide protection. The gravity of the risk against which protection is needed affects the scope of the inquiries which it is prudent to make, and thus the degree of relevance between the intelligence which the Organization might legitimately assemble and the conduct which is apprehended. But, it may be said, how can the gravity of a security risk be evaluated by a court? It may be necessary to evaluate Australia's relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof. It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than deduction. It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely. However, it does not follow that judicial review is excluded. (at p74)

[171]

"B. Pursuant to paragraphs 1 to 15 and 22 above:

(i) A Declaration that the functions of ASIO do not include the obtaining, correlating and evaluating of information concerning the Plaintiffs or either of them or concerning the members of the firstnamed Plaintiff.

(ii) A Declaration that the functions of ASIO do not include the communicating of any such information to such persons in such manner as the Defendant considers to be in the interests of security.

(iii) A Declaration that the operations of ASIO in obtaining correlating and evaluating information concerning the Plaintiffs and the members of the firstnamed Plaintiff and the communicating of the same to other persons are and have at all times been beyond the power of ASIO and of the Defendant and are unlawful.

(iv) A Declaration that information concerning the Plaintiffs is not 'intelligence relevant to the protection of the Commonwealth and Territories from acts of espionage, sabotage or subversion' within the meaning of the Australian Security Intelligence Organisation Act 1956.

(v) A Declaration that the firstnamed Plaintiff is not a person or organisation from whom the Commonwealth and the Territories require protection from acts of espionage, sabotage or subversion.

(vi) A Declaration that the secondnamed Plaintiff and the members of the firstnamed Plaintiff are not persons who, by reason of their membership of the firstnamed Plaintiff or by reason of being practising adherents of the Scientology Religion, are persons from whom the Commonwealth and the Territories require protection from acts of espionage, sabotage or subversion.

(vii) A Declaration that the communication of information by the Defendant or by ASIO to the effect that the Plaintiffs and the members of the firstnamed Plaintiff are persons from whom the Commonwealth and Territories require protection from acts of espionage, sabotage or subversion is beyond the powers of ASIO and is unlawful.

(viii) A Declaration that in characterising the secondnamed Plaintiff and members of the firstnamed Plaintiff who are practising adherents of the Scientology Religion as 'security risks' by reason of their membership of the firstnamed Plaintiff and by reason of them being practising adherents of the Scientology Religion, for the purpose of security assessments, and in communicating the same to Ministers concerning persons employed or proposed to be employed in offices under the Commonwealth or under authorities of the Commonwealth the Defendant has caused or permitted ASIO to require a religious test as a qualification for an office of public trust under the Commonwealth and has thereby contravened Section 116 of the Constitution.

(ix) An injunction restraining the Defendant from causing or permitting ASIO from continuing to obtain, correlate or evaluate information concerning the Plaintiffs or members of the firstnamed Plaintiff or from communicating any such information to any person.

(x) Alternatively an injunction restraining the Defendant from causing or permitting ASIO from continuing to communicate information to the effect that the Plaintiffs and members of the firstnamed Plaintiff are persons from whom the Commonwealth and Territories require protection from acts of espionage, sabotage or subversion.

(xi) an injunction restraining the Defendant from causing or permitting ASIO to communicate security assessments to Ministers concerning persons employed or proposed to be employed in offices under the Commonwealth or under authorities of the Commonwealth to the effect that such persons as are members of the firstnamed Plaintiff and are practising adherents of the Scientology Religion are 'security risks' by reason of their membership of the firstnamed Plaintiff and by reason of them being practising adherents of the Scientology Religion.

(xii) Damages."

[188]

The third cause of action depends on pars. 19-21 and the substantive allegation is that in so far as the provisions of the Act authorize or permit ASIO to obtain, correlate and evaluate intelligence concerning the plaintiffs and at the direction of the defendant to communicate such intelligence to others, it is a law prohibiting the free exercise of a religion and contravenes s. 116. For the defendant it was said in the first place that a corporation could not have a religious belief and reliance was placed on the Adelaide Company of Jehovah's Witness Inc. v. The Commonwealth(1943) [1943] HCA 12; 67 C.L.R. 116, at p. 147, per Latham C.J. But in any event there is an individual plaintiff who alleges that he had religious beliefs and practises a religion. It was argued for the defendant that the allegation must extend to saying that subversion is protected under s.116 if it has a religious element or motive and that this was inconsistent with the decision in the Jehovah's Witness' Case, and reliance was placed on the following passages: per Latham C.J., at pp. 146-147; per Rich J.,at p.149; per Starke J., at pp. 154-155; and per Williams J., at pp. 159-161. Counsel for the plaintiffs said that there was no challenge being made to the Jehovah's Witnesses' Case and that the allegations arose only upon one view of the meaning of the Act, but that such meaning was not one for which the plaintiffs contended. He said that the narrow point was the meaning of "subversion". The argument was that the defendant must be wrong if he treated the first plaintiff and all its members as subversive by reason of their adherence to the religion of Scientology. He said that such a characterization of all members would be wrong because it was not possible to obtain any useful information from or about any member. He said that subversion meant an attempt at overturning a system of government and that if it was alleged that the promulgation of the religion of Scientology was subversion in itself, i.e. that the mere fact of having and promulgating the views of Scientology, whether or not directed to the overthrow of government, could not be subversion. If that was the meaning of the word subversion it would be contary to s. 116.

At a glance

Court

Decision date

Before

Source

Judgment (192 paragraphs)

Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25 (19 November 1982)

Parties

Legislation Cited (10)

Cases Cited (22)