Imad v Director-General of Security

Federal Court of Australia|2024-09-24|Before: Rofe J

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Date of last submissions: 23 August 2024

Counsel for the Applicant: S Sharify with J Lessing

Solicitor for the Applicant: Carina Ford Immigration Lawyers

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: D Brown (solicitor advocate)

Solicitor for the Second Respondent: Australian Government Solicitor

BETWEEN: HOSNI IMAD Applicant DIRECTOR-GENERAL OF SECURITY AND: First Respondent MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Second Respondent

order made by: ROFE J DATE OF ORDER: 24 september 2024

THE COURT ORDERS THAT:

The first respondent's claims for public interest immunity and legal professional privilege over the disputed documents are upheld.
The proceeding be listed for case management hearing at the Court's earliest convenience to timetable this matter for trial.
Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ROFE J:

INTRODUCTION 1 In this proceeding, the applicant seeks judicial review of the first respondent's (the Director-General) decision pursuant to s 134C of the Migration Act 1956 (Cth) to recommend to the second respondent (the Minister) that the applicant's temporary visitor (subclass 600) visa be cancelled on the basis of an adverse security assessment. 2 The present application relates to the Director-General's objection to the production of certain discovered documents on the basis of public interest immunity and legal professional privilege. 3 The applicant seeks access to the disputed discovered documents to ascertain the reasoning behind the Director-General's adverse security assessments pursuant to ss 134B and 134C of the Migration Act which led to the cancellation of his visa. 4 For the reasons that follow, I find that the public interest immunity and legal professional privilege claims must be upheld.

BACKGROUND 5 These proceedings concern an applicant who, ordinarily a denizen of Gaza, is currently located in Cairo, Egypt. 6 The applicant, his wife and their daughter, sought to travel to Australia to flee the war in Gaza which commenced following the 7 October 2023 attack on Israel by Hamas. The applicant, his wife and daughter were granted visitor visas on 13 November 2023. After this time, the applicant travelled with his wife and daughter to Cairo, from Gaza, for the purposes of travelling to Australia. 7 Following the grant of the visas, the Director-General made a decision under s 134C of the Migration Act to recommend to the Minister that the applicant's visa be cancelled on the basis of an adverse security assessment, concluding that the applicant is "directly or indirectly, a risk to security" (the Assessment). 8 Subsequently, the Minister, who has no discretion to refuse the Director-General's recommendation, notified the applicant of his visa cancellation on 27 March 2024. The applicant remains stranded in Cairo where he has no right to reside or work or any means of providing for himself. Further, the applicant has no family or network in Cairo and is completely isolated with nowhere to go. 9 It is not in dispute that the applicant was never provided an opportunity to address the "credible, relevant and significant matters" underpinning the Assessment decisions. The Director-General submitted that this opportunity was not provided to the applicant as there was nowhere in Cairo where, in his view, such an interview could have been conducted in a controlled and secure manner. Even absent the practical difficulties, there were constraints on the ability of the Australian Security and Intelligence Organisation (ASIO) to put to the applicant significant matters which are derived from sensitive reporting without prejudicing security. 10 The applicant's wife had participated in an interview herself with ASIO in Australia. A copy of the interview transcript was provided in discovery however, the transcript contained ellipses in place of certain information. 11 With the assistance of his brother, who is an Australian citizen, the applicant commenced proceedings in the Federal Circuit and Family Court of Australia on 24 April 2024, seeking judicial review of the Director-General's decision on the following two grounds: (a) the Director-General fell into error by failing to afford procedural fairness to the applicant as he was not afforded any opportunity to comment on whether the Assessment should be made; and (b) the Assessment was legally irrational or unreasonable as it was not open on the evidence for the Director-General to conclude that the applicant was directly or indirectly a risk to security. 12 These proceedings were later transferred to this Court in its original jurisdiction on 4 June 2024. 13 The applicant's wife and daughter arrived in Australia in January 2024 and have remained here ever since. The applicant's mother has also arrived in Australia. In March 2024, the applicant's wife, daughter and mother applied for protection visas, which have not yet been determined. It was submitted that the applicant had intended to do the same after he had arrived in Australia.

PROCEDURAL BACKGROUND TO APPLICATION 14 On 17 June 2024, I conducted a case management hearing at which I made, amongst other things, the following orders: … Discovery
By 10 July 2024, the First Respondent provide to the Applicant and the Second Respondent a list of documents, together with an electronic copy of those documents (or parts thereof) which are not subject to a claim of public interest immunity, legal professional privilege, or other objection to production, in the following categories: 2.1. all security assessments made by the First Respondent for the purpose of ss 134B and 134C of the Migration Act 1958 (Cth) in relation to the Applicant (the Security Assessments); 2.2 all documents relied upon in making the Security Assessments; 2.3 all correspondence, documents or other records relating to the Applicant held by the First Respondent that were relied upon or created in connection with the Security Assessments, including but not limited to: a) the question of whether or not to interview the Applicant; b) the question of whether or not to invite the Applicant to comment on whether or not he was a risk to security; c) the question of whether to notify the Applicant that he was being assessed; and d) the question of whether particulars of any adverse information could be provided to the Applicant so that he could respond to that information. 2.4. any document containing any direction or guidance in relation to making the Security Assessments; and 2.5. any correspondence between the First and Second Respondents, including correspondence between the department, employees or agents of the First Respondent and the department, employees or agents of the Second Respondent, in relation to the Security Assessments.
By 17 July 2024, the Applicant notify the First Respondent which, if any, of the First Respondent's claims of public interest immunity, legal professional privilege or other objection to production are disputed. … 15 I also made timetabling orders for the filing of affidavits and submissions in the event that the applicant disputed the Director-General's claims of public interest immunity or legal professional privilege (if any) and set any dispute down for hearing on 27 August 2024. 16 On 10 July 2024, the Director-General served a List of Documents pursuant to the order of 17 June 2024. The Director-General discovered 132 documents in the list. From the documents in the list, the Director-General resisted the production of certain documents and parts of other documents on the basis of public interest immunity and legal professional privilege. 17 The List of Documents recorded the documents in three categories as follows: (a) Part 1: 12 documents in respect of which no claim of privilege from production was made and which have been produced in their entirety to the applicant; (b) Part 2A: 18 documents in respect of which the Director-General either makes a partial claim of public interest immunity and legal professional privilege, or the Director-General has assessed as not being responsive to the categories of documents specified. These documents have been produced to the applicant in a redacted form. The redactions are overlaid with text which identifies in abbreviated form, the nature of the claim; and (c) Part 2B: 102 documents which have not been produced and their production is resisted by the Director-General on the basis of public interest immunity and legal professional privilege claims. 18 The applicant disputed the Director-General's public interest immunity and legal professional privilege claims. In accordance with the timetabling orders, the parties filed affidavits and submissions in support of their positions. 19 The applicant read and relied on the following affidavits: (a) The affidavit of his solicitor, Mr Zaid Gawi, affirmed 20 August 2024; and (b) The affidavit of his solicitor, Ms Carina Ford, affirmed 20 August 2024. 20 The Director-General read and relied on the following affidavits: (a) The first affidavit of Mr Michael Keith Noyes, Deputy Director-General of Security at ASIO, affirmed 5 August 2024 (Open Noyes Affidavit). Mr Noyes gave evidence in support of the public interest immunity claims; (b) The second confidential affidavit of Mr Noyes, affirmed 5 August 2024 (Confidential Noyes Affidavit); (c) The first affidavit of Ms Stacey Hahn, a lawyer with the Australian Government Solicitor (AGS) with day-to-day responsibility for the conduct of this matter, affirmed 5 August 2024. Ms Hahn gave evidence in support of the legal professional privilege claims; and (d) The second affidavit of Ms Hahn affirmed 26 August 2024, which contained minor corrections to the partially redacted bundle. 21 To date, the Minister has not played an active part in this proceeding and did not file any submissions or affidavits in relation to the document production dispute. 22 Separate from the documents provided in discovery, the Security Assessments Branch of ASIO prepared and provided to the applicant a Truncated Statement of Grounds (TSOG). This document has been modified from the Classified Statement of Grounds (CSOG) (discussed below). 23 I note that I read the Confidential Noyes Affidavit. This affidavit was delivered to me in a locked bag in chambers for inspection on the morning of the hearing on a "read and return" basis. The document was subsequently returned in same locked bag into the possession of the Director-General's counsel prior to the commencement of the hearing. The Confidential Noyes Affidavit was not filed, and the Court does not retain any copy of the affidavit. Without compromising the confidential integrity of the Confidential Noyes Affidavit, it can be disclosed that in this affidavit, Mr Noyes elaborates about the matters he discussed in the Open Noyes Affidavit. For the avoidance of doubt, nothing in the Confidential Noyes Affidavit provided any information as to the contents of any of the discovered documents in respect of which production is resisted. I will refer only to evidence from the Open Noyes Affidavit in these reasons. 24 I also note that I have not inspected the documents, nor the redacted parts of the documents, in respect of which the Director-General claims public interest immunity and/or legal professional privilege. 25 On 27 June 2024, the solicitors for the Director-General wrote to my chambers enquiring whether it would be more appropriate for a judge other than the trial judge to hear and determine the public immunity claims. This correspondence also indicated that the applicant opposed any such referral, and the second respondent took no position on this issue. At that stage, I refused any such referral given that the matter had not been raised during the earlier case management hearing, at which point I had timetabled the dispute and set it down for interlocutory hearing. The parties were advised that they may make submissions as to any referral during the interlocutory hearing or after the determination of the claims. At the hearing, the question was deferred until after my ruling on the public interest immunity and legal professional privilege claims. 26 Finally, I note that the applicant's visa, before it was cancelled, permitted him to enter Australia until 13 November 2024. At the hearing, the applicant's counsel inquired whether it was possible to extend the visa in the event that the applicant was successful in his judicial review application. No answer was provided in relation to that question at the hearing. Further, counsel for the applicant stressed that the utility of the proceeding may be lost were the matter to be substantively heard and decided after this time.

27 As noted at [20(a)] above, Mr Noyes is the Deputy Director-General of Security at ASIO. He was authorised to make his affidavits by the Director-General of Security who holds his office under the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act). 28 Mr Noyes is a career intelligence professional with more than 20 years' experience in both the Foreign Affairs and Home Affairs portfolios. Mr Noyes has been employed by ASIO for almost nine years at the Senior Executive level, during which he has had oversight over both Counter-Terrorism and Counter-Espionage Investigations as well as responsibility for ASIO's production of intelligence assessments. 29 Mr Noyes was appointed to his current role of Deputy Director-General of Intelligence Service Delivery in 2023. In that role, he is responsible for, amongst other things, the full spectrum of ASIO's counter-terrorism strategy, priorities and investigations. While Mr Noyes is not responsible for the SA Branch in his current role, he is familiar with the roles and functions of the SA Branch as his current role previously had oversight of, and was responsible for, the SA Branch, prior to organisational restructuring which transferred Intelligence Service Delivery out of his position's purview. 30 ASIO is the statutory domestic intelligence and security service for the Commonwealth of Australia. ASIO's role is to identify and investigate threats to Australia's security, in order to protect Australia and Australians. ASIO's functions are set out in s 17(1) of the ASIO Act, and include: (a) to obtain, correlate and evaluate intelligence relevant to security; (b) for purposes relevant to security, to communicate any such intelligence to such persons, and in such a manner, as are appropriate to those purposes; (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; and (d) to cooperate with and assist certain intelligence and law enforcement bodies. 31 Section 37(1) of the ASIO Act provides that the functions of the organisation referred to in s 17(1)(c) include the furnishing of security assessments to Commonwealth agencies. 32 The term "security" as defined under s 4 of the ASIO Act means: (a) the protection of, and of the people of, the Commonwealth and the several States and Territories from: (i) espionage; (ii) sabotage; (iii) politically motivated violence; (iv) promotion of communal violence; (v) attacks on Australia's defence system; or (vi) acts of foreign interference; whether directed from, or committed within, Australia or not; and (aa) the protection of Australia's territorial and border integrity from serious threats; and (b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa). 33 A person commits an offence under s 92 of the ASIO Act if they make public, or cause to be made public, information which identifies (or could lead to identifying, or inferring) that a person is a current or former ASIO employee or affiliate. This offence carries a maximum penalty of 10 years' imprisonment. 34 The following matters are taken from the Open Noyes Affidavit. 35 ASIO's core function is to protect Australia's security and provide advice to government in relation to matters relevant to the protection of Australia's security. It is critical that Australia anticipates potential threats; not simply responds to them. ASIO achieves this purpose by obtaining, correlating, evaluating and communicating intelligence relevant to security. 36 Security assessments are a key mechanism by which ASIO carries out its core functions as provided in ss 17(1)(c) and 37(1) of the ASIO Act. Security assessments enable ASIO to advise the Commonwealth Government about the risk that a particular individual might pose to Australia's national security. 37 The SA Branch is the section within ASIO that is responsible for conducting these security assessments. While the SA Branch conducts and prepares the proposed security assessment, and makes recommendations, it is the Director-General of Security who makes the security assessment. 38 To enable the Director-General to consider and make the security assessment, the SA Branch typically prepares a classified Briefing Note to the Director-General, along with the proposed security assessment, and a CSOG. 39 The Briefing Note and CSOG usually refer to sensitive information and, can include information such as: (a) the precise details of the ASIO assessments; (b) the investigative processes followed in undertaking the assessment; (c) the security issues that have been identified and require resolution; (d) the sources of information and highly classified reporting that ASIO relied on in forming the assessment; (e) any human source information; (f) particulars of the subject's known associates of security concern; (g) the methods used to gather intelligence or corroborate information; and (h) any gaps in ASIO's and other agencies' intelligence holdings and limits in their capabilities. 40 Depending on the material contained in the documents, the Briefing Note and the CSOG may carry a security classification of SECRET in accordance with the Commonwealth Government's Protective Security Policy Framework (PSPF). A security classification of SECRET means that the documents contain information, which pursuant to the PSPF, is considered to be very valuable, important and sensitive. Compromise of SECRET information would be expected to cause serious damage to the national interest, organisations or individuals. 41 It is imperative that the Briefing Note and CSOG reveal in a transparent fashion the reasoning and supporting classified intelligence that the ASIO investigative area considers may support an adverse security assessment. This is particularly important for visa related assessments because the consequences for a person who becomes the subject of such an adverse security assessment can be severe, in terms of the prescribed administrative action that may follow, including immigration detention pending removal. It is also because the consequences of failing to issue an adverse security assessment when one is warranted can be equally, if not more, serious. 42 For the purposes of this proceeding, the SA Branch prepared an unclassified version of the CSOG for the applicant: the TSOG. The TSOG omits sensitive information over which the Director-General claims public interest immunity. These omissions are indicated by ellipses, "[…]", rather than redactions so that inferences cannot be made about the content and volume of the redacted information which could potentially undermine any public immunity claim. 43 The material over which public interest immunity is claimed purportedly falls into one or more of the following subcategories of information, the disclosure of which would be injurious to national security. (a) "External liaison reporting" (ELR) refers to communications with ASIO's domestic and foreign partner agencies. The exchange of confidential information in strict secrecy is essential to ASIO's operations and disclosure would both reveal significant information and give rise to potential unwillingness by partner agencies to share intelligence with ASIO in the future. (b) "Intelligence holdings and sources of information" (IHS) refers to information collected through ASIO's operational and investigative strategies and through foreign and domestic liaison partnerships. Disclosure would reveal the extent of ASIO's understanding of various national security matters including gaps, ASIO's use of those holdings, and the sources relied on to obtain the intelligence. (c) "Investigative and operational methodology" (IOM) refers to sensitive details of ASIO's operational methodology, including its capabilities, strategies, targeting and priorities. Disclosure could enable others to avoid ASIO detection and monitoring among other things. (d) "ASIO Employees" (AE) is a category which requires absolute secrecy. This category is backed by criminal prohibitions on disclosure and is maintained over the identities of ASIO employees (other than the Director-General and three deputies). Disclosure of the identities of ASIO employees would compromise ongoing and past activities, warn targets that they were or are of security interest, and reveal ASIO's modus operandi. It could make identified ASIO employees targets for espionage or foreign interference. (e) "Administrative and system identifiers" (ID) are unique administrative identifiers in the footnotes of documents and national security markings and caveats. Disclosure of them would reveal information communication technology system identifiers and specifications and the existence of classified documents. 44 The discovery list uses the two or three letter abbreviations, as noted in brackets at [43] above to denote which subcategory applies. There is a significant degree of overlap across these categories within the individual documents in respect of which the immunity is claimed. 45 Following receipt the Open Noyes Affidavit, the applicant did not press his opposition to any public interest immunity objections in relation to the ID and AE subcategories. 46 In Mr Noyes' opinion, disclosure of the ELR information and documents would be extremely serious for Australia's national security. Not only would it severely compromise ASIO's capacity to detect and prevent activities of security concern being conducted in Australia in the future, but it could cause significant and long-term damage to ASIO's relationship with its partner agencies. 47 Mr Noyes opines that the disclosure of the IHS information and documents would prejudice the security of Australia. The disclosure of "gaps" in ASIO's understanding of various national security matters could be exploited to carry out activities which are prejudicial to Australia's security, without ASIO's detection. 48 Further, Mr Noyes maintains that the disclosure of the IOM information and documents could allow an individual or group of interest to ASIO to gain detailed insight into how ASIO conducts its investigations, which could enable them to alter their behaviour to successfully evade ASIO detection and monitoring, thereby preventing ASIO from obtaining intelligence relevant to security, and prejudicing the security of Australia. 49 In addition to the risks of disclosure set out above, Mr Noyes outlined further potential risks associated with the disclosure of the documents in respect of which public interest immunity is claimed. 50 First, small innocuous pieces of information may be "mosaiced" together to reveal significant sensitive information. Mosaic analysis is a method by which persons and organisations inimical to ASIO construct data, by piecing together intel ranging from what may appear to be seemingly meaningless to significant intelligence, for the purposes of discovering ASIO's operations in order to avoid, subvert or defeat these initiatives. The data construction is said to employ the use of sophisticated information gathering techniques, incorporating information already known with new data which enables rigorous mosaic analysis in order to defeat ASIO initiatives, compromising national security. Disclosure of any information pertaining to ASIO operations, no matter how unremarkable, cannot confidently be released with the reassurance that such information will not later be used in a mosaic analysis to compromise national security. Further, disclosure may have serious impacts such as compromising the identities of ASIO (or foreign partner) intelligence officers, the location of covert ASIO (or foreign partner) stations or premises, or the technologies and capabilities possessed by ASIO (or its foreign partners). As such, a precautionary approach must always be taken. 51 Second, secrecy is critical to ASIO's ability to conduct effective intelligence operations. It is imperative that ASIO targets do not gain understanding of what ASIO is and is unable to do. If targets are able to gain understanding, they can alter their operations to circumvent or defeat surveillance. It is a long-standing policy of ASIO to neither confirm nor deny any speculation as consistently as possible and to refrain from public comment on most matters for the purpose of avoiding prejudice to the security of Australia. Consistent with this policy, it is important to mitigate any risk which could lead to the disclosure of ASIO's operations by limiting the type and amount of information made available to the public at large. 52 Third, the risk that a nefarious actor could seek to target the applicant, or his legal representatives, or the Court and its staff in order to gain access to the national security information in the documents. 53 Fourth, the risk of inadvertent disclosure, including in open court, notwithstanding strict confidentiality regimes and which remains through any appeal process.

54 The common law recognises that there are certain documents which by their nature fall into a class of documents which should not be disclosed no matter what the documents contain. The law accepts that there may be a public interest in such documents being immune from disclosure. Documents relating to national security may fall within this class: HT v The Queen (2019) 269 CLR 403 at [28] (per Kiefel CJ, Bell and Keane JJ) citing Sankey v Whitlam (1978) 142 CLR 1 at 39 (per Gibbs ACJ) and Alister v The Queen (1984) 154 CLR 404 at 435-7 (per Wilson and Dawson JJ). 55 A legislative equivalent of the common law doctrine of public interest immunity has been enshrined at s 130 of the Evidence Act 1995 (Cth). The legislative equivalent, however, only applies to claims made in relation to the admission of "information or a document" into evidence and does not extend to pre-trial disclosures or the inspection of documents: DCL22 v Sage [2022] FCA 1310 at [23] (per Abraham J). 56 The public interest immunity doctrine is not a mere rule of evidence, but a substantive and fundamental immunity: Commissioner of Police, NSW v Guo (2016) 332 ALR 236 at [12] (per Collier J). Further, as it confers an immunity rather than a privilege, it cannot be waived: Young v Quin (1985) 4 FCR 483 at 486 (per Bowen CJ). 57 The immunity provided with respect to documents by the common law doctrine of public interest immunity is from their production. The application of the doctrine prevents the document being admitted into evidence at all: HT v The Queen at [29] (per Kiefel CJ, Bell and Keane JJ) and [71] (per Gordon J). This is of particular relevance in relation to the applicant's submissions as to its proposed closed court or judicial inspection approaches which are discussed below. 58 Where a claim of public interest immunity is made in respect of documents, it is for the Court to decide whether or not to uphold the objection. The Court may ask for a clarification or an amplification of the objection to production, being careful not to impose requirements which could only be met by divulging the very matters to which the objection relates. The Court also has power to examine the documents privately. It has been said this power should be sparingly exercised. Indeed, Bowen CJ considered that the better view appeared to be that the Court should not inspect the documents unless it decides that, on balance, the documents probably ought to be produced: Young v Quin at 484 (per Bowen CJ), citing Conway v Rimmer [1968] AC 910 at 952, 953 (per Lord Reid) and 971 (per Lord Morris of Borth-Y-Gest). 59 In considering whether to order production, the Court is required to engage in a balancing exercise in relation to two competing aspects of public interest: first, whether harm would be done by the disclosure of matters of State and, second, whether the administration of justice would be frustrated or impaired if the documents are not produced. The Court must decide which aspect of the public interest predominates: Sankey v Whitlam at 38-9 (per Gibbs ACJ). 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 v The Queen at 412 (per Gibbs CJ). 60 The applicable test is whether harm to the public interest could arise from disclosure as a matter of real possibility, as opposed to a matter of probability. This is because "the incurring of the identified risk [of harm] is itself injurious to the public interest": Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83 at [46] (per Steytler P, McLure JA and Newnes AJA); see also Conway v Rimmer at 940 (per Lord Reid), referred to with approval by Gibbs ACJ in Sankey v Whitlam at 39. 61 The balancing exercise does not begin from any presumption that the competing interests are of equal importance. Where it is "established that a document belongs to a class which attracts immunity, a court will lean initially against ordering disclosure": Commonwealth v Northern Land Council (1993) 176 CLR 604 at 618 (per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 62 Prejudice to national security has commonly been held as a well-established category of public interest weighing very heavily against disclosure: SDCV v Director-General of Security (2022) 277 CLR 241 at [13] (per Kiefel CJ, Keane and Gleeson JJ). In some cases, the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it: Sankey v Whitlam at 39 per (Gibbs ACJ), citing Conway v Rimmer at 940 (per Lord Reid). 63 The importance of the work conducted by ASIO, and its gravity in relation to national security, is well recognised by the Courts. The following observations by Brennan J (as his Honour then was) in Church of Scientology v Woodward (1982) 154 CLR 25 at 76 have been commonly cited in this respect: Yet 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 (Reg. v. Lewes Justices; Ex parte Home Secretary (36)). Indeed, even if the plaintiff were in possession of evidence relevant to the activities of the Organization and the matters in respect of which those activities were being pursued, the evidence might be inadmissible. In D. v. National Society for the Prevention of Cruelty to Children (37), Lord Simon of Glaisdale observed: "So the law says that, important as it is to the administration of justice that all relevant evidence should be adduced to the court, such evidence must be withheld if, on the balance of public interest, the peril of its adduction to national security outweighs its benefit to the forensic process ..." Nevertheless, the veil of secrecy is not absolutely impenetrable, for the public interest in litigation to enforce the limitation of function prescribed by s. 17 is never entirely excluded from consideration (Sankey v. Whitlam (38)). But the veil is not penetrated merely by a plaintiff's deposition that he is not a security risk. That, after all, may be the very matter which is under investigation. Nor is the veil penetrated by showing that initial investigation has failed to reveal that he is a security risk, for one who turns out to be a security risk will often be found to have some depth of cover. (Footnotes omitted.) 64 The reasons for upholding public interest immunity that are publicly given or available will generally need to be expressed in a form that does not compromise the very interest that is held, or might be held on appeal, to be in need of protection. Nevertheless, as Mason J (as his Honour then was) set out in Sankey v Whitlam, the reasons must still reveal that the Court has, in relation to the relevant part of each document or class of document, (at 95-6): evaluate[d] the respective public interests and determine[d] whether on balance the public interest which calls for non-disclosure outweighs the public interest in the administration of justice that requires that the parties be given a fair trial on all the relevant and material evidence.

65 The applicant contends that his visitor visa is not a run of the mill "holiday" type visitor visa. With a visitor visa, the applicant could escape the war in Gaza and travel to safety in Australia. Without a visitor visa the applicant submits that his situation is extremely dire, including the possibility of long term separation from his family and a likely future as a stateless person, with the probability of being returned to Gaza. The applicant notes that the situation in Gaza is exceptionally grave, not only by reason of direct military action, but also the spread of famine and starvation. 66 Although the applicant accepts that the ability to travel to Australia is a "privilege", the applicant submits that his case is different to the average visitor visa holder who has been subject to an adverse security assessment. Hence, when balancing the competing public interests, the applicant contends that he has a very strong interest in, ultimately, having the visa cancellation revoked as it may be his only way to survive. By this submission, the applicant advances private interests in the face of broader public concerns. 67 The applicant acknowledges that national security is paramount and seeks to balance this with the requirements for natural justice. The applicant submits that due to the limited nature of information received from the respondents, it has been difficult to mount a case to challenge the visa cancellation as his legal team is operating at a significant forensic disadvantage. The applicant submits that in order to be accorded procedural fairness, some indication is required to understand the basis of the adverse assessment. 68 The applicant submits that in circumstances where a "no evidence" ground of jurisdictional error is alleged, as in the present case, if the Court upholds the public interest immunity, the consequence is that the applicant's "no evidence" ground of review must fail: Sagar v O'Sullivan (2011) 193 FCR 311 at [64]-[65] (per Tracey J); and that his procedural fairness ground would be severely hampered, with no opportunity given to him to make meaningful submissions. 69 The applicant notes that there is great potential for abuse if baseless public interest immunity claims are made in relation to information which cannot rationally be said to have a real possibility of prejudicing national security: Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 at [58] (per Wright J). 70 The applicant submits that it is not possible on the basis of the TSOG to make any inferences about the content and volume of the redacted information which could potentially undermine any public interest immunity claim or assist with the applicant's judicial review case. 71 In the context of the power in s 134C of the Migration Act, the applicant submits that the effect of upholding the public interest immunity claim is that the Director-General can cancel a visa without ever being accountable for his decision to any Court. The applicant describes s 134C as a draconian provision as there is no right to reasons, no right to merits review, and no statutory process to allow the Court to consider confidential information itself without disclosing it to an applicant. 72 The applicant proposed two approaches that he contended were open to the Court to adopt in order to balance the competing public interests and deal with the documents the subject of the public interest immunity claims. The applicant contended that these approaches could ensure that the documents, and the information contained in them, remained confidential and did not form part of the evidence before the Court, but allowing some access to their contents. The applicant contended that these approaches were available even if the public interest immunity claim was upheld. 73 The first approach, being the Closed Court Approach, is where the applicant's representatives are given access to inspect and rely on the confidential material on the undertaking that they do not disclose the material to the applicant. The Court would then proceed to conduct a closed hearing and any determination arising out of such hearing could be dealt with by redactions to protect the information subject to the public interest immunity claims. 74 The second approach, being the Judicial Examination Approach, is where the confidential material is taken into evidence but not disclosed to the applicant or his legal representatives. The Court would then determine whether the grounds of jurisdictional error are made out without the full assistance of counsel for the applicant. 75 The Director-General contends, relying on the observations of the High Court in HT v The Queen at [29] (per Kiefel CJ, Bell and Keane JJ) and [71] (per Gordon J), that the common law doctrine of public interest immunity prevents disclosure of documents. Once the immunity is upheld, there can be no disclosure of the documents on any basis, and it is therefore unnecessary to consider the approaches proposed by the applicant. Accordingly, the Director-General submits that neither the Closed Court Approach nor the Judicial Examination Approach is available or appropriate for the Court to adopt if the Court considers that the public interest immunity should be upheld. 76 The Director-General accepts that if the public interest immunity is upheld, the applicant's "no evidence" ground is likely to fail, however contends that this is not a reason to deny the immunity. 77 The Director-General also accepts that the material over which public interest immunity is claimed is relevant to the applicant's allegation that the Assessment was legally unreasonable. The nature of the unreasonableness ground of review is such that, without access to important material on which the Assessment was based, it is almost inevitable that the applicant will be unable to discharge his onus of proof in establishing that there was no rational basis for the Assessment. The Director-General contends the cases in this area generally support and reflect this outcome and that this does not in itself justify any rejection of the public interest immunity claim. 78 The Director-General submits that the applicant will still have an opportunity to litigate his procedural fairness ground, and the public interest immunity claims do not impede his ability to advance that ground. Indeed, at least some details about ASIO's consideration of the inability to afford the applicant a hearing in advance of furnishing the impugned Assessment have already been disclosed to the applicant in the documents produced, and in the TSOG.

79 As set out at [59] above, the Court must engage in a balancing exercise to weigh the conflicting two aspects of the public interest: whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates: Alister v The Queen at 412 (per Gibbs CJ). 80 In approaching the weighing exercise, I am mindful that a decision to either uphold or reject a claim for public interest immunity can, and often will, have the potential to produce very grave consequences: Chief Commissioner of Police v Crupi (2023) 72 VR 280 at [105] (per Emerton P, Niall and Taylor JJA). Such is the case here. 81 The applicant notes that there is great potential for abuse if baseless public interest immunity claims are made in relation to information which cannot rationally be said to have a real possibility of prejudicing national security. 82 I consider that the claims as to public interest immunity in this case are not baseless or lightly made. I accept the evidence given by Mr Noyes in his open and confidential affidavits. Mr Noyes plainly has extensive experience in the areas of intelligence gathering, counter-terrorism and counter-espionage. It is evident that care has been taken in the preparation of his affidavits. The Open Noyes Affidavit is 19 pages in length and - to the extent that he is able without revealing security intelligence - he provides a detailed explanation of the categories of information and documents in respect of which public interest immunity is claimed and the reason why their disclosure would be prejudicial to Australian national security. 83 Mr Noyes, a very senior ASIO officer, has given considered evidence on oath as to the national security implications if the public interest immunity is not upheld. In making his assessment as to the risk of harm to Australia's security if the documents were disclosed, Mr Noyes' evidence was that in making his assessment he had regard to both the likelihood of the particular harm eventuating, and the gravity of the consequences if it did. Mr Noyes' assessment of risk is based on his years of experience and expertise developed over many years of undertaking the collection of security intelligence, conducting security assessments and working on security and counter-terrorism investigations. 84 Mr Noyes personally reviewed the documents in question and gave his opinion as to the significant national security implications if those documents were to be disclosed. It is Mr Noyes' opinion that it would be highly prejudicial to the public interest (specifically Australia's national security) for the information in the documents to be disclosed. Given his current position, his experience and expertise, I attach significant weight to that opinion, and the opinions that Mr Noyes expresses in his affidavit about the impact of disclosure of the documents sought. 85 Secrecy is fundamental to ASIO's effective operation. The exchange of confidential information in strict secrecy is essential to ASIO's operations and disclosure would both reveal significant information and give rise to potential unwillingness by partner agencies to share intelligence with ASIO in the future. 86 Security assessments of the kind impugned in this proceeding are, according to Mr Noyes, a "key mechanism by which ASIO carries out its core functions". The SA Branch "deploys a range of investigative powers and methodologies to acquire sensitive information from various sources". The SA Branch prepares "detailed reasons" for its recommendation to the Director-General on whether a particular security assessment should be furnished, which will typically refer to sensitive information. Mr Noyes' evidence is that it is imperative that SA Branch be able to give the Director-General full and frank information without fear that doing so could lead to disclosure of sensitive information in legal proceedings. 87 Mr Noyes explained that by "mosaic analysis", apparently innocuous or meaningless pieces of information can be put together with other pieces of information to build a coherent and comprehensive picture that reveals more significant information such as secret identities, locations or capabilities. 88 Against the interests of national security must be weighed the public interest in the open administration of justice and whether the administration of justice would be frustrated or impaired if the documents are withheld. 89 I acknowledge that the personal circumstances of the applicant are dire, and that if the Court upholds the public interest immunity, the consequence is that the applicant's "no evidence" ground of review will likely fail and his ability to argue his procedural fairness ground would be hampered, with little ability to make substantive submissions. 90 However, the applicant is an offshore non-citizen who has been assessed as a risk to national security. The applicant seeks access to the information and documents over which public interest immunity is claimed in order to challenge the cancellation of his short-term visitor visa on the basis of the adverse security assessment made in respect of him. In that context, the risk of disclosure of the information and documents over which public interest immunity is claimed is heightened. 91 Against this, must be weighed the imperative that SA Branch be able to give the Director-General full and frank information without fear that doing so could lead to disclosure of sensitive information in legal proceedings. Further imperatives include the strong desirability that ASIO is able to continue to work with partner agencies and to share intelligence with them in the future, that mosaicking is not enabled and that ASIO's investigative processes, methods and any gaps in ASIO's capabilities not be revealed. 92 I consider that the countervailing interest in the open administration of justice does not outweigh the clear prejudice to national security that would be occasioned by disclosure of the documents and the information in them. 93 Balancing all the relevant considerations in this case, I am satisfied that the balance weighs heavily in favour of the non-disclosure of the documents on the basis of public interest immunity. 94 The Director-General has established his claim for public interest immunity.

4.5 The appropriateness of the applicant's suggested approaches

95 The authorities have provided guidance as to how a proceeding must continue once a claim of public interest immunity is upheld: see Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at [24] (per Gummow, Hayne, Heydon and Kiefel JJ); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [148] (per Hayne, Crennan, Kiefel and Bell JJ); HT v The Queen at [29], [32] (per Kiefel CJ, Bell and Keane JJ) and [71]-[72] (per Gordon J). In summary, the following occurs: (1) the documents and information in question need not be produced for inspection by any party to the proceedings; (2) the documents and information in question cannot be adduced in evidence by any party, and they are denied to both the Court and the parties; and (3) the substantive proceedings continue, in effect, without regard to the existence of the information over which public interest immunity has been successfully asserted. 96 Once a claim of public interest immunity is upheld, the documents are not to be disclosed, they are immune from production in the litigation and may not be used by any party or admitted into evidence. Importantly, any confidentiality regime or closed court approach to circumvent the immunity, to any degree, is not available. The confidentiality regimes canvassed by the Courts are appropriate to avoid practical injustice where documents, or information are to be admitted as evidence. 97 Having upheld the public interest immunity claim and taking into account the general position at common law, I do not consider that either of the approaches advanced by the applicant, i.e. the Closed Court Approach and the Judicial Examination Approach, are available to the Court in this case as the documents are immune from production. Notwithstanding, as the applicant made submissions directed towards the appropriateness of the approaches in the balancing exercise of the competing interests, I will briefly make some observations. 4.5.1 The Closed Court Approach 98 I have set out what this approach entails at [73] above. This approach was purported to be most desirable and beneficial by the applicant as it is said to confer the greatest degree of procedural fairness. 99 In considering the consequences on natural justice in the face of the public immunity claims, I have had regard to the findings of Tracey J in Sagar v O'Sullivan, a matter in which the public immunity claims were also upheld. There, his Honour held that even if the security assessments were not released to the applicants, the applicants could have inferred from the questions put to them during the extensive interviews they were made to participate in, matters which concerned their assessments: at [71] (per Tracey J). Unlike the circumstances in Sagar v O'Sullivan, the applicant here was never provided with an opportunity to participate in any interviews. Further, the matters raised during his wife's interview are classified and have not been disclosed to the applicant. As such, the ability for the applicant to infer relevant matters from the limited information before him has been impeded. 100 Acknowledging the gravity of the national security concerns, the applicant pressed for the confidential information to be disclosed only to his counsel. The applicant maintains that as the overall proceeding is concerned with judicial review, there is limited need for his legal representatives to seek his instructions in a manner that would compromise the confidential information were it disclosed to the applicant's counsel. Further, it was put that the chances of the applicant's counsel breaching any undertaking which could regulate the risk of disclosure to be extremely low. While the applicant concedes that none of his legal representatives currently hold the relevant security clearances, he drew attention to the fact that one of his counsel, Mr Sharify, previously held an NV1 level security clearance, which has since expired in 2019. 101 The majority in HT v The Queen observed that closed material procedures and public interest immunity procedures are fundamentally different, not least because the public interest immunity procedure respects common law principles of natural justice: at [32] (per Kiefel CJ, Bell and Keane JJ): … If it is held that the documents should be produced, and thereby disclosed, they are available to both parties; if they are not to be produced they are not available to either and the court may not use them. There is no question of unfairness or inequality. 102 Nevertheless, despite the impacts on natural justice, no degree of production could be ordered where the Court could comfortably be assured that such disclosure could not reasonably compromise national security interests. 103 The applicant attempted to rely on the following three decisions to support the purported availability of the Closed Court Approach as a way to balance the public interests in public interest immunity claims: Mao v Commonwealth of Australia [2012] NSWSC 370 at [30] (per Beech-Jones J); Leghaei v Director-General of Security [2005] FCA 1576 at [101] (per Madgwick J) and Australian Statistician at [47] (per Steytler P, McLure JA and Newnes AJA). 104 Notwithstanding, the approaches adopted by the Courts in these decisions do not help the applicant here. 105 First, it has been acknowledged that while a panoply of orders can be made in the litigation process to protect relevant and admissible confidential information, these orders can easily be frustrated at a number of levels. This risk is further amplified by the fact that any confidential information provided without context cannot convey to the persons granted access to that information sufficient knowledge to accurately assess that material without leading to any compromise. Other risks, such as inadvertent disclosure and the possibility of counsel and solicitors inferring secrets from even the most basic level of disclosure of the confidential material, are all factors which heavily indicate that no degree of disclosure could satisfactorily protect the public interest in the confidentiality of the information: Australian Statistician at [41], [49], [50]-[52], [61] (per Steytler P, McLure JA and Newnes AJA). 106 Second, the facts in Leghaei v Director General are not relevant here. In that case, the Director-General adduced confidential evidence at the final hearing to prove that the gravamen of the security concern in relation to the applicant could not have been put to him. That proposition was relevant to resisting the allegation that there was a denial of procedural fairness arising from not having put the gravamen to him: at [52], [86], [88]-[89] (per Madgwick J). As the Director-General there had adduced confidential information, a regime had been put into place under which the applicant's lawyers were given access to the material. There was no public interest immunity claim made, such that the confidentiality regime adopted there could be considered. 107 Finally, in Mao v Commonwealth, Beech-Jones J considered two documents that would disclose confidential police methodologies. Whilst the public interest immunity claim was upheld over one of the documents, his Honour permitted the plaintiffs' lawyers to access the material: at [28] (per Beech-Jones J). His Honour rejected the public interest immunity claim over the second document because the interest in non-disclosure was outweighed by the interest in the administration of justice and it was possible and appropriate to give the plaintiffs' lawyers access. Importantly, it seems that there was a particular interest in the document not being disclosed to the plaintiffs (as distinct from their lawyers) because the document concerned a police method actually deployed in the plaintiffs' case and the first plaintiff was in "the very category of persons to whom this type of information should not be disseminated": at [28], [31] (per Beech-Jones J). 108 The Director-General submits that those considerations do not arise in the present case, because disclosure to the applicant's lawyers would still occasion significant prejudice to national security having regard to the nature and source of the national security information in question. This would be so even if counsel had security clearances. As Mr Noyes' evidence makes clear, the risk to national security arises not simply from the risk of disclosure to uncleared personnel. 109 Further, the Director-General contends, and I accept, that the Court has no power to grant a security clearance, and no power to require that any consideration be given to granting a security clearance. Leghaei v Director General, on which the applicant relies, was a case where the Director-General there had facilitated security clearances because the Director-General wished to adduce sensitive evidence. 110 The kinds of risks considered in Australian Statistician raise serious concerns about the security of the confidential information if it were disclosed to any persons. In my view, these concerns cannot be adequately addressed by any undertaking to the Court. Further, to compel disclosure on this occasion could set a dangerous precedent which may impede the operations of ASIO in the future, with potentially catastrophic impacts on national security. 111 In balancing the interests of national security against the public interest in the open administration of justice, I consider that the Closed Court Approach would not reduce the risks to national security discussed above. I consider that it would be highly prejudicial to the public interest (specifically Australia's national security) for the information in the documents to be disclosed even on a Closed Court Approach. 4.5.2 The Judicial Examination Approach 112 The proposed elements of the Judicial Examination Approach are set out at [74] above. 113 The applicant maintains that through this approach, the inquiry before the Court will be whether the Director-General had sufficient basis to not invite comment from the applicant on the Assessment. 114 In conducting its inquiry, the applicant says that the Court should be permitted to inspect confidential information over which public interest immunity has been claimed. To not do so, in the applicant's submissions, would allow the Director-General to escape accountability for his decision by mere assertions that it was effectively impossible to grant the applicant any procedural fairness whatsoever. 115 In advancing this approach, the applicant relies on the Full Court decision in Chu Sing Wun v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 at 328 (per Carr and Sundberg JJ) where their Honours accepted the Judicial Examination Approach offered by the appellant there, finding that they could see no public interest which might be placed in jeopardy in adopting the approach and that the public interest will be served by having the case decided on the best available evidence. 116 For the same reasons as the previous approach, the Director-General maintains that the Judicial Examination Approach is also not available or appropriate for the Court to adopt. 117 The Director-General submits, and I accept, that the High Court in recent years has departed from the approach accepted by the majority in Chu v Minister and has since adopted the stance taken by Kiefel J (as her Honour then was) in dissent where her Honour held at 353 that, in her view, the Judicial Examination Approach was not appropriate: ... absent some reason for doubting the summary of factors which is said to have led the delegate to conclude that the requirement of good character was not met, these being the matters brought to the applicant's attention, the Court should not examine the material upon which it was founded. To do so would be to undertake an investigation and to assess what weight ought be given to pieces of information, without evidence or explanation from the delegate. On the view I have taken of the matter I do not consider it would have been correct for the primary judge to have viewed the material and I have refrained from doing so. 118 The High Court in HT v The Queen has made it clear that the Judicial Examination Approach, as propounded by the applicant, is not a proper way to approach public interest immunity claims. The remarks of the majority in the Supreme Court of the United Kingdom decision, Al Rawi v Security Service [2012] 1 AC 531 were considered in the High Court's observation that, if there was to be a change to the existing process for dealing with claims to public interest immunity, it would be necessary for Parliament to effect such change: at [31] (per Kiefel CJ, Bell and Keane JJ). 119 The Director-General drew attention to the enactment of regimes akin to a Judicial Examination Approach by Parliament, noting that it has done so only in carefully selected contexts. Thus, where merits review of adverse security assessment is available, the Administrative Appeals Tribunal can consider material in the absence of the applicant and their lawyers pursuant to express statutory authorisation: see SDCV v Director-General. Similarly, where the National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth) applies, ss 29 and 38I permit the Court in certain circumstances to exclude a party from having access to evidence. These are specific contexts in which Parliament has determined that the risks associated with disclosure of national security information can be taken. The Director-General has correctly submitted that it is not for this Court to expand those categories. 120 Furthermore, the Director-General warns that adopting the Judicial Examination Approach on a final hearing still presents practical problems about keeping a record of the evidence and maintaining confidentiality of the information throughout any appeal process, which would potentially provide opportunities for inadvertent disclosure, diminishing any protection this material may have under the Judicial Examination Approach. 121 In balancing the interests of national security against the public interest in the open administration of justice, I consider that even the Judicial Examination Approach would not reduce the risks to national security discussed above. I consider that it would be highly prejudicial to the public interest (specifically Australia's national security) for the information in the documents to be disclosed even on a Judicial Examination Approach.

122 Weighing the alternative approaches propounded by the applicant as ways to deal with the confidential material as part of the balancing exercise, I still consider it would be highly prejudicial to the public interest (specifically Australia's national security) for the information in the documents to be disclosed on any basis and as such, the Director-General's public interest immunity claims must be upheld.

LEGAL PROFESSIONAL PRIVILEGE CLAIMS 123 I will now consider the Director-General's claims for legal professional privilege in his bid to resist production of the balance of the disputed material. Of the numerous documents subject to the claims for legal professional privilege, only one of these documents was not also the subject of public interest immunity claims. 124 I accept that, to the extent that public interest immunity claims have been upheld over whole documents, those documents cannot be disclosed, and the determination of the legal professional privilege claims will not have any practical effect in that context. 125 From the remaining bundle of the disputed documents, seven documents had partial claims for public interest immunity and legal professional privilege. Here, while public interest immunity has been upheld over certain sections of the document (as claimed), the legal professional privilege claims must nonetheless be assessed, as immunity has not been conferred over the entirety of the document.

126 The parties have since narrowed the number of documents in dispute, over which legal professional privilege is claimed, and only four documents remain in dispute. 127 The specifics of these documents are as follows:  Document 17 described as the "Director−General Decision Brief − Non−Part IV adverse security assessments (Emergency Visa Cancellations) for Mr Hosni Imad (s 134B)" dated 1 March 2024;  Document 18 described as the "Undated - Non Part IV Security Assessment under s 134B − cleared 1 March 2024";  Document 23 described as "Hosni IMAD - DG approved ASA s 134C" dated 26 March 2024; and  Document 27 described as "Unsigned - None Part IV Adverse Security Assessment (subclass FA 600)" dated 26 March 2024, (together, the Briefing Documents). 128 In each of the Briefing Documents, the Director-General claims privilege over part of a paragraph, and a later paragraph under the heading "Risks and Mitigations", as well as a paragraph under the heading "Consultation:": the impugned paragraphs.

129 Ms Hahn, an AGS lawyer with over 18 years' experience as a lawyer, and who has the day-to-day responsibility for the conduct of this matter, made her first affidavit in support of the Director-General's claims as to legal professional privilege in the Briefing Documents. Ms Hahn's second affidavit contained minor corrections to the partially redacted bundle. For the purposes of these reasons, references to Ms Hahn's evidence will be contained to her first affidavit. 130 Ms Hahn explained that as she was prevented by s 92 of the ASIO Act from disclosing the names or otherwise identifying any ASIO officer or employee (including in-house lawyers), she used generic descriptors such as "Legal Service Lawyers" in her affidavit in place of identifying particular lawyers. There are also logistical and practical difficulties in ASIO employees providing affidavits given their protected identities. I take no issue with such identification of the relevant persons and will employ the use of Legal Services when making references to them. 131 The Director-General's privilege claim falls within three categories of communications, all of which Ms Hahn describes as being for the dominant purpose of legal advice, or for receiving legal services and representation in relation to current or anticipated legal proceedings. 132 Communications in each category are as follows: (1) Category 1: lawyers within Legal Services and their internal clients in the context of investigating and preparing the security assessments made in respect of the applicant; (2) Category 2: lawyers within Legal Services and legal officers from the Department of Home Affairs; (3) Category 3: lawyers within Legal Services and their external legal advisers, being AGS and external counsel; (4) Subcategory 3A: legal advice privilege; and (5) Subcategory 3B: litigation privilege - documents created after these proceedings were commenced. 133 Ms Hahn annexes a schedule which lists the documents in respect of which a claim for legal professional privilege is made either in whole or in part. Each document is assigned a category of privilege. Ms Hahn's evidence is that she has read the documents identified in the schedule. All four Briefing Documents are ascribed to Ms Hahn's Category 1 communications. 134 As to Category 1 communications, Ms Hahn's evidence was as follows on information and belief from senior ASIO officers from the SA Branch responsible for the conduct of the security assessments in relation to the applicant, and from the senior lawyer within Legal Services with day-to-day supervision of the communications and advice passing between Legal Services and ASIO officers. (a) During the course of ASIO's investigation into the applicant, officers within the SA Branch sought and received legal advice from Legal Services about the interpretation and effect of ss 134B and 134C of the Migration Act, and the legal requirements relating to ASIO's investigation and security assessments furnished in respect of the applicant. (b) Each of the communications from officers within the SA Branch to Legal Services were prepared for the dominant purpose of the SA Branch and Director-General receiving legal advice from Legal Services. There was no other purpose. (c) Each of the communications from Legal Services to officers within the SA Branch were prepared for the dominant purpose of providing legal advice to the SA Branch and the Director-General. Legal Services were responding to requests for legal advice. 135 The purpose and nature of each of the Briefing Documents listed in the schedule is recorded as "[r]ecord the content of legal advice provided by Legal Services to the SA Branch and Director-General".

136 Legal professional privilege attaches to documents which would reveal confidential communications between a client and lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552-3 (per Gleeson CJ, Gaudron, Gummow and Hayne JJ). It protects from disclosure confidential communications between client and lawyer for the purpose of legal advice and documents prepared for use in existing or reasonably anticipated litigation. 137 Provided the requisite dominant purpose is established, the privilege can attach to communications between a government client and its in-house lawyers: Waterford v Commonwealth (1987) 163 CLR 54. Whether an in-house lawyer performs non-legal functions might bear on the assessment of whether a particular communication had the requisite dominant purpose, but the relationship between a salaried government lawyer and a government client, like that between a salaried in-house counsel and a corporation, can give rise to the privilege. 138 The relevant principles as conveniently summarised by Beach J in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 at [27]-[36] and are adopted here.

139 I will note at the outset that the submissions from the applicant and the Director-General were limited on this issue. I acknowledge that, given the limited information before them and which they are able to disclose, they have attempted to assist the Court as much as possible. 140 The applicant seeks access to the impugned paragraphs as he believes these parts of the Briefing Documents set out the factual matters and considerations relevant to the visa cancellation and the Assessment in support of a recommendation to the Director-General about whether the adverse security assessments should be made. It is submitted that these paragraphs disclose the information the Director-General had before him when he made the Assessment. 141 The applicant submits that the Briefing Documents are not communications between a client and a lawyer made for the dominant purpose of giving or obtaining legal advice. 142 The applicant submits that there is a distinction between legal advice and relevant facts. And it may be possible to disclose additional factual matters or information without disclosing the substance of the legal advice about it. 143 In considering the nature of the material over which privilege is claimed, it must be considered whether there has been some action taken that is inconsistent with privilege, such as disclosing parts of the legal advice or the substance of the legal advice elsewhere. 144 In Zentai v O'Connor (No 2) (2010) 183 FCR 180, McKerracher J held that although the document in dispute there was privileged, the privilege had been waived as it was unfairly inconsistent to release to the applicant (at, essentially, a private level) the conclusions reached on topics which were at the heart of the applicant's legal submissions, while at the same time claiming privilege for the reasoning of earlier advices: at [137], [138], [141] (per McKerracher J). 145 The applicant advances that a similar approach should be adopted here. The applicant's position is that privilege has been waived in the Briefing Documents. This is because, on the applicant's reading, portions relating to the requirements and the application of the ASIO Act and references to paragraphs of Security Assessment Determination No. 4 (SAD No. 4) appear to be legal advice which was not redacted. 146 Further, the applicant submits that the question of whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or to use material and yet assert that such material is privileged from production: Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481 (per Gibbs CJ). 147 To the extent that the legal professional privilege claims in those redacted portions might inform the position that ASIO took and recommended to the Director-General, it is submitted that they are plainly, at least, associated and it would be unfair to rely on a claim of legal professional privilege if it illustrates the position or conclusions that ASIO ultimately took. 148 The Director-General maintains that the Briefing Documents are not from his lawyers, but rather from his staff on security matters. The purpose of the documents records the content of legal advice provided by the ASIO Legal Services Division to the SA Branch and Director-General.

149 The legal professional privilege claims are made in respect of two sections in the Briefing Documents. The first two are under the heading "Risks and Mitigations" and the second, under "Consultation". 150 The "Risks and Mitigations" section of the Briefing Documents begins by quoting clause 11.3 of SAD No. 4. Legal professional privilege is claimed over the remainder of the paragraph. After a discussion of the practical reasons for which ASIO was unable to give the applicant the opportunity to respond in person or in writing to the "credible, relevant and significant matters underpinning ASIO's assessment", the documents note that there are also real constraints to ASIO's ability to put to the applicant significant matters which are derived from sensitive reporting, without prejudicing security. 151 SAD No. 4, promulgated by the Director-General, states that it provides guidance to the decision-maker in the making of security assessments under Part IV of the ASIO Act. Clause 11.3 provides the security assessment is to be made using a process which is as fair as possible, while taking into account the requirements of security. The introductory paragraph to SAD No. 4 states that "where the national interest in protecting security is inconsistent with the application of procedural fairness principles in making a security assessment, the protection of the national interest prevails to the extent necessary". 152 The second legal professional privilege claim is in respect of a paragraph just above a section which discusses clauses 12.3.1 and 12.3.2 of SAD No. 4. It is a reasonable inference that this paragraph concerns clause 12.2.1, which comes after clause 11.3 and before 12.3.1 of SAD No. 4. Clause 12.2.1 provides that in deciding the threshold for an adverse assessment, the decision-maker should take into account any relevant legislative test which will be used by the agency receiving the security assessment. 153 Ms Hahn has read the impugned documents in their entirety. Having done so, Ms Hahn considers that the impugned paragraphs fall within the Category 1 communications in that they record legal advice received during the course of ASIO's investigation into the applicant, from Legal Services about the interpretation and effect of ss 134B and 134C of the Migration Act, and the legal requirements relating to ASIO's investigation and security assessments furnished in respect of the applicant. Ms Hahn's evidence is that the Category 1 communications were for the dominant purpose of ASIO and the Director-General receiving legal advice. 154 I consider that the context in which the parts of the Briefing Documents in which legal professional privilege is claimed are located is consistent with those parts recording legal advice. The claims made under the "Risks and Mitigations" heading arise in the context of clauses 11.3 and 12.2.1 of SAD No. 4. ASIO might well seek legal advice as to procedural fairness considerations and legal thresholds relevant to the Director-General making a security assessment in respect of the applicant. 155 I accept that the communications had the relevant dominant purpose. The context does not suggest another purpose, certainly not a purpose that is dominant over the purpose contended by the Director-General; that of receiving legal advice.

CONCLUSION 156 For the reasons given above, the Director-General's claims for public interest immunity and legal professional privilege have been upheld. I am satisfied that that the Director-General's claims for public interest immunity, in the interests of national security, must prevail when weighed against the applicant's private rights. Further, I have found that legal professional privilege has not been waived by the Director-General in respect of the impugned paragraphs in the Briefing Documents. 157 Accordingly, the Director-General is excused from producing the disputed discovered documents to the applicant. 158 As the parties have not made any submissions on costs of this interlocutory application, I will make an order for costs to be reserved at this stage. I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe.

Migration Act 1956(Cth)

National Security Information (Civil and Criminal Proceedings) Act 2004(Cth)

At a glance

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Legislation Cited (5)

Cases Cited (23)

Cited By (3)