Plaintiff v Plaintiff

C.3 Issue 4: Should the Director-General's objection to the Attorney-General giving information to Benbrika pursuant to a disclosure requirement be upheld?

1. The Director-General applied by summons for orders to protect certain information contained in the letter dated 18 October 2024 ("the Secret Information").[92] He contended it was in the interests of Australia's national security not to disclose the Secret Information. In the summons, the Director-General objected to the production of this single document, which was described as "document 67, titled '20241018 Benbrika - ASIO intelligence brief - redacted' identified in the [Attorney-General]'s list of public interest immunity and legal professional privilege claims, revised and filed on 24 December 2024" ("Document 67"). The objection was said to be made on the basis that the information that document contained was subject to public interest immunity.
2. The application was made under section 93.2 of the Criminal Code, which gives power to a court exercising federal jurisdiction to make certain orders if it is satisfied that it is in the interests of Australia's national security to do so. This includes such orders or directions as a judge thinks necessary for ensuring that no person, without approval, has access to any affidavit, exhibit, information or other document used in an application or in a proceeding before the court.[93]
3. If necessary, the Attorney-General also seeks protective orders pursuant to the court's inherent jurisdiction, including its power to make a suppression order.
4. The Director-General provided the court with a copy of Document 67 in an unredacted form so that it could be inspected for the purpose of determining whether protective orders should be made.[94]
5. Document 67 consists of 3 pages, the first of which is entirely introductory. On the second page, the letter states that 5 documents had been identified as documents that might contain information that would reasonably be regarded as supporting a finding that a post-sentence order should not be made in respect of Benbrika. It was stated that the documents were drawn from a body of intelligence and reporting concerning Benbrika and that the information the documents contained was judged to be accurate.
6. The court's copy of Document 67 was partially unshaded, partially shaded in green (to show the information provided to Benbrika's counsel on a confidential basis),[95] and partially shaded in yellow. The yellow shading denoted the Secret Information. It is significant that most of the information contained in Document 67 (that is, the information that was either unshaded or shaded in green) has been disclosed to Benbrika's counsel.

1. When applying for a post-sentence order under Part 5.3 of the Criminal Code, the Attorney-General is subject to a disclosure requirement.[96] Both the obligation of the Attorney-General to make reasonable inquiries to ascertain any facts that would reasonably be regarded as supporting a finding that a post-sentence order should not be made and the disclosure requirement are "statutory safeguards" on the exercise of the court's power to make post-sentence orders under Part 5.3 of the Criminal Code.[97] As this issue concerned an objection to giving information the subject of a disclosure requirement, the court must determine the objection (with the necessary modifications) as if it were an objection to the giving or adducing of evidence.[98]
2. Accordingly, the provisions of section 130 of the Evidence Act apply.[99] That section relevantly provides:

130 Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would -

(a) prejudice the security, defence or international relations of Australia; or

(b) damage relations between the Commonwealth and a State or between 2 or more States; or

(c) prejudice the prevention, investigation or prosecution of an offence; or

(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or

(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or

(f) prejudice the proper functioning of the government of the Commonwealth or a State.

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters -

(a) the importance of the information or the document in the proceeding;

(b) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;

(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;

(e) whether the substance of the information or document has already been published;

(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused - whether the direction is to be made subject to the condition that the prosecution be stayed.

1. Similar to the position at common law,[100] considering an application under section 130 involves a 3-stage process:

(1) Determining whether there is a public interest in non-disclosure.

(2) Determining whether there is a public interest in disclosure.

(3) If both public interests are present, weighing them against each other to determine whether the latter is outweighed by the former, taking into account relevant matters including those listed in section 130(5).

1. First, in considering whether there is a public interest in non-disclosure, it is not necessary to find on the balance of probabilities that disclosure will harm the public interest. It is sufficient to demonstrate there is a real possibility that non-disclosure will result in harm to the public interest.[101]
2. The following passage describes how the gravity of a security risk is to be evaluated by a court:[102]

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.

3. As to the second stage, although there is no real issue that the Secret Information is relevant,[103] there is still a need to assess whether the information sought to be protected would be of "substantial assistance" to Benbrika in meeting the case against him.[104]
4. In the balancing exercise of weighing the competing public interests, the court must consider the nature and gravity of injury or harm against the evidentiary value and importance of the relevant information with respect to the real issues in the proceeding. In relation to certain types of information or classes of document, the balance is weighed heavily in favour of non-disclosure.[105]
5. With respect to the court's inherent jurisdiction, it has power to make suppression orders independent of any statutory powers.[106] Before orders can be made on this basis, it must be established that they are reasonably necessary for the administration of justice.[107] Suppression orders have been held to be appropriate to secure the proper administration of justice in respect of various types of information; the categories are not closed.[108]

1. In seeking to have his objection upheld, the Director-General made open submissions in writing and orally together with confidential written submissions.[109]
2. The Director-General submitted the court should be satisfied the orders sought were in the interests of Australia's national security and are necessary to protect the administration of justice.
3. In assessing the Secret Information, it was submitted the evidence of the Deputy Director-General of Security, Intelligence Service Delivery of the Australian Security Intelligence Organisation ("the Deputy Director-General") should be given significant weight. Referring to the observations of Brennan J in Church of Scientology Inc v Woodward,[110] it was submitted the Deputy Director-General's seniority and career intelligence experience of more than 20 years meant that his detailed, cogent and well-reasoned evidence weighed heavily in favour of the objection being upheld. In addition, the Director-General referred to long-standing authority affirming the importance of, and public interest in, protecting national security.[111] By a note of caution, it was submitted the court must be alive to the fact that it may not be in a position to fully appreciate the significance of a particular piece of evidence which might form part of a mosaic, the details of which the court is unaware or not fully aware.
4. With respect to the extent to which the information might be of "substantial assistance" to Benbrika, it was submitted the volume of the Secret Information was very limited. Further, the Director-General relied upon the amount of protected information that had been made available to Benbrika's legal representatives, and the fact that they will be able to use such information in the substantive proceeding. In short, it was submitted all but the most sensitive of the evidence had been made available.
5. The Director-General referred to the concise statement of case filed on 5 December 2024.[112] It was submitted the court should have regard to whether there was an overlap between the information contained in that document and the Secret Information. It was submitted that if this was so, it would reduce, if not entirely deprive, the information of probative value, such that it could not be considered to be of "substantial assistance" to Benbrika.
6. In relation to the position of Benbrika's legal representatives that the information should be disclosed on a confidential basis to them, it was submitted such a regime was no substitute for non-disclosure on an absolute basis. In light of the possibility of inadvertent disclosure by counsel or solicitors, it was submitted the information was of a sufficiently sensitive nature that this risk could not be countenanced.[113] In this regard, the Deputy Director-General's evidence that any disclosure would be catastrophic to national security was relied upon.
7. In summary, it was submitted there was a clear public interest in non-disclosure and no public interest in disclosure. Accordingly, it was submitted that the remaining information the subject of the objection should be protected and the objection upheld.[114]
8. Benbrika submitted that the court was required to keep in mind that Benbrika does not have access to all the information before the court when weighing up the public interest in maintaining confidentiality. A necessary consequence of this is that Benbrika is also placed at a disadvantage because he is unable to meaningfully respond to broad propositions in the Director-General's submissions. It was contended such a situation compelled a vigorous approach to determining the outcome of the objection.
9. It was submitted the Attorney-General has, presumably correctly, assessed the Secret Information as information that would materially assist Benbrika at trial.
10. Turning to the factors set out in section 130(5) of the Evidence Act, a number of matters were referred to regarding paragraph (a) and the importance of the Secret Information in the proceeding.
11. It was noted that the Attorney-General expressly conceded that Benbrika had made positive progress since being released into the community on 19 December 2023. Benbrika's position was that his attitude to the authorities administering the Lapsed Supervision Order, and his careful and proactive compliance with that order more generally, supported the proposition that the risk he posed was minimal, if present at all. In light of the evidence, Benbrika will maintain at trial that he has displayed obvious concern about engaging in any conduct that might lead to his reincarceration. It was submitted this was an important protective factor which demonstrated that specific deterrence had been achieved.
12. With respect to the alleged risk, namely radicalising others or encouraging them to engage in acts of religious-inspired violence, it will be submitted at trial that Benbrika's conduct since 19 December 2023 would not provide any support for a finding that he presents an unacceptable risk of committing a serious Part 5.3 offence. To the extent the Secret Information touched on this, it was contended that it would be material.
13. With respect to Ellis' opinion that there remained some uncertainty as to whether Benbrika has truly adopted moderate Islamic beliefs (because such an assessment relies on Benbrika's self-reporting), Benbrika anticipated some of the Secret Information may go directly towards this issue. Material gathered during the operation of the Lapsed Supervision Order included extensive monitoring of Benbrika's conduct in circumstances where he might not have expected to be under surveillance or to have his communications reported back to authorities. It was submitted any information gathered in this context which reflected positively on Benbrika might attract significant weight and contradict any view that the only way to verify Benbrika's statements regarding his ideology and religious views was through his self-reporting.
14. To the extent the Attorney-General argued there is material available suggesting that Benbrika continues to hold concerning or extremist ideologies, it was submitted any information that would assist in understanding the nature of his supposed ideology (and therefore the degree of any risk of him committing a serious Part 5.3 offence) was important.
15. With respect to Benbrika's public profile and his level of influence and notoriety in the Islamic community, it was accepted that on occasion Benbrika has been approached by members of his community and asked about religious matters. It was submitted that such approaches were beyond Benbrika's control, and in any event, his responses to such approaches were of greater relevance. Thus, it was contended that if the Secret Information shed any light upon his responses, it was likely to be of significance to the assessment of risk and whether it could be described as unacceptable.
16. More generally, it was submitted that if the court considered that any of the Secret Information might assist Benbrika in challenging propositions for which the Attorney-General contends, it necessarily had significance for Benbrika's case. Further, it was submitted the court should be alive to the potential significance of any information which was relevant to an assessment of the current state of Benbrika's ideology, his attitude to authority (including the courts), his own view of the role he intends to play in the community, his willingness to accept the treatment provided by his psychological, psychiatric and disengagement providers and his concern to avoid doing anything which might put him at risk of incarceration.
17. With respect to paragraphs (b) and (c) of section 130(5), broadly concerning the nature of the proceeding and the offence and subject matter of such, it was submitted that Benbrika's position was analogous to that of "an accused", especially in light of the recent applications to impose the Further Conditions.
18. Whatever the correct characterisation of the nature of this proceeding,[115] it was submitted a more liberal approach to the production of documents should be taken than that employed in a standard civil case, because Benbrika's personal liberty and freedoms are at stake.[116] Further, a previous observation to the effect that a full examination of documents by defence lawyers may sometimes produce relevant material for cross-examination, which others (including the presiding judge) may not fully appreciate as being important, was submitted to be relevant to the context of this application.[117]
19. It was submitted that the court should be open to adopting a more nuanced approach than the binary question of whether or not the Secret Information should be disclosed. By reference to approaches taken in other cases,[118] it was submitted the court should consider excising or summarising the substance of the Secret Information, so that it may be disclosed without destroying the subject of the public interest immunity claim itself. On the assumption that a possible concern was disclosure of the identity of the person who provided the Secret Information,[119] it was submitted that the substance could (and should) be provided in a manner that would not disclose this detail. The court was invited to explore this option in a closed court with the Director-General (as had been done previously in an earlier proceeding involving Benbrika).
20. It was acknowledged that the Secret Information has not been published.[120] Further, it was accepted there was no basis to stay the proceeding if the Secret Information were not forthcoming, as this is not a criminal proceeding.[121] However, it was submitted to be instructive that the Evidence Act provides for the stay of a criminal proceeding in circumstances where public interest immunity claims are upheld. It was submitted that the absence of an ability to stay the proceeding meant the court should be more open to the provision of the Secret Information by a "non-binary" means.
21. It was further submitted that the nature of the case Benbrika is required to meet is such that it can only be combatted by evidence of the absence of inappropriate conduct. Thus, it is important for Benbrika's defence to be able to know not only what the Secret Information contains, but also what it does not contain. In this regard, reference was made to evidence of what has been said in settings where it would be expected that Benbrika would speak truthfully.
22. Although significant parts of Document 67 have been disclosed on a confidential basis, including the ultimate conclusion reached about Benbrika, it was submitted evidence concerning the basis of that conclusion would be of great assistance to him. In addition, it was submitted that without the underlying information, Benbrika was unable to assess whether the conclusion accurately captured the weight of the information.
23. As a general proposition, it was submitted that the Director-General is likely to have information that would be very different from that obtained by the Federal Police as part of administering a supervision order. Further, in circumstances where it was likely that some parts of the trial would be heard in a closed court, it was submitted that the court should be more willing to allow Benbrika's counsel to have access to the Secret Information on a confidential basis.[122]

1. Without disclosing specifically the basis upon which the public interest immunity claim has been made, it is plain the very limited information still the subject of objection is highly sensitive and that the consequences of its disclosure would likely be very grave.
2. Contrastingly, the probative value of the Secret Information is not high, and could not be categorised as being likely to be of substantial assistance to Benbrika. In light of the extensive information that has already been provided to Benbrika, either on a confidential basis to his legal representatives or more broadly, the non-disclosure of this limited quantity of information would appear to be largely inconsequential. While it must be accepted that withholding the Secret Information prevents Benbrika's lawyers from fully assessing what has already been disclosed to them, given the favourable information that has been made available, the significance of this suggested predicament is marginal.
3. In addition, although the Secret Information is relevant, I accept the Director-General's submission that some of it is outdated or, although strictly relevant, peripheral to the real issues in dispute in this proceeding.
4. Finally, given the very confined amount of information the subject of the objection, it could not be disclosed in some other form on a confidential basis to Benbrika's counsel in a manner consistent with the public interest immunity claim being upheld.
5. Accordingly, the objection as ultimately made will be upheld in its entirety. The non-disclosure of the Secret Information is both in the interests of Australia's national security and necessary to protect the due administration of justice.

1. For the reasons stated, the Attorney-General was granted leave to amend his originating motion to agitate for the Further Conditions at trial and to amend the summons seeking a third interim supervision order. However, the Further Conditions were not included in the third interim supervision order made on 11 February 2025. Further, the Director-General's objection in relation to the disclosure of the Secret Information relating to matters of state has been upheld.

[1] The day after rulings were given on these applications, directions were made for the Attorney-General's additional evidence to be filed and served. The parties agreed the final hearing needed to be postponed for a short period to allow Benbrika an appropriate amount of time to respond.

[2] Benbrika did not oppose a third interim supervision order being made, commencing on the expiry of the second interim supervision order on the same terms as previously ordered.

[4] As to which, see par 22 below.

[5] These rulings were given on the basis that reasons would be published subsequently.

[6] As part of the application, the Attorney-General must include any report or other document that he intends to rely upon at the time of making the application (Criminal Code, s 105A.5(3)(a)), as well as a statement of any facts of which the Attorney-General is aware that would reasonably support a finding that, relevantly, the supervision order should not be made (s 105A.5(3)(aa)(ii)), or any condition should not be imposed: s 105A.5(3)(d)(iii).

[7] Criminal Code, s 105A.18D. In September 2024, Ellis met with Benbrika on a single occasion in the presence of Benbrika's solicitor. The meeting lasted approximately 3 hours. Otherwise, Ellis has not met with Benbrika.

[8] For further details of these 2 reports, see pars 34-39 below.

[10] For details of the conditions of the Lapsed Supervision Order, see Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 401-416 [133]-[244] (Hollingworth J).

[11] There were also conditions dealing with case management and associated machinery conditions.

[13] Ibid, ss 105A.2, 473.1 (definition of "intelligence or security officer"). The Australian Security Intelligence Organisation is under the control of the Director-General: Australian Security Intelligence Organisation Act 1979 (Cth), s 8(1).

[14] See further par 137 below.

[16] See further Criminal Code, ss 105A.14B(2)(b), 105A.14C(2), 105A.14D(2) and (3).

[17] Annexures A and B to these reasons are the orders made substantially as sought by the Director-General and the chief commissioner of Victoria Police respectively, noting that if was foreshadowed that there would be some variations sought in due course. Agreement was also reached between the commissioner of the Australian Federal Police and Benbrika concerning public interest immunity, but no orders were sought from the court in this regard.

[18] There were some other minor changes to the existing conditions.

[19] The summons seeking leave to amend the originating motion, which set out the proposed amended conditions, is Annexure C to these reasons. The Further Conditions are underlined, while the conditions that are not underlined comprise the Therapeutic Conditions.

[20] The Further Conditions did not include conditions concerning a curfew, education and employment, financial transactions, prohibited activities, the requirement to wear an electronic device or certain restrictions on travel, among several other conditions that had previously been imposed under the Lapsed Supervision Order.

[21] Criminal Code, ss 105A.3A(6), 105A.9A(4)(b)(ii), 105A.18(1)(b)(ii).

[23] See Benbrika v The Queen [2010] VSCA 281; (2010) 29 VR 593 (Maxwell P, Nettle and Weinberg JJA); R v Benbrika [2009] VSC 21; (2009) 222 FLR 433 (Bongiorno J).

[24] Criminal Code, ss 105A.2 (definition of "terrorist offender"), 105A.3(1).

[25] A serious Part 5.3 offence is an offence against Part 5.3, the maximum penalty for which is 7 or more years of imprisonment: ibid, s 105A.2 (definition of "serious Part 5.3 offence"). Benbrika was convicted of membership of a terrorist organisation and of directing the activities of a terrorist organisation. These offences were committed contrary to ss 102.3(1) and 102.2(1) respectively (both provisions appear in Part 5.3 of the Criminal Code) and carry maximum penalties of 10 and 25 years' imprisonment respectively: see Minister for Home Affairs v Benbrika (2022) 366 FLR 32, 37 [15] (Hollingworth J).

[27] Minister for Home Affairs v Benbrika [2020] VSC 888 (Tinney J).

[28] Minister for Home Affairs v Benbrika (2022) 366 FLR 32.

[29] Benbrika v Attorney-General (Cth) (2024) 74 VR 379.

[38] Benbrika v Attorney-General (Cth) (2024) 74 VR 379; Minister for Home Affairs v Benbrika (2022) 366 FLR 32; Minister for Home Affairs v Benbrika [2020] VSC 888; Benbrika v The Queen [2010] VSCA 281; (2010) 29 VR 593; R v Benbrika [2009] VSC 21; (2009) 222 FLR 433.

[39] See pars 57-65 below.

[40] Ellis gave the wrong date in erroneously referring to a single communication. In his fourth report, Ellis corrected these errors, stating that he should have referred to 2 conversations on 2 separate days in November 2024.

[41] Director of Public Prosecutions v Clavell [2020] VCC 1437 (Judge Marich).

[42] See Booth v Abdirahman-Khalif [2021] FCA 1651 (Besanko J); McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002 (Charlesworth J). There was no evidence of any direct connection between this individual and Benbrika.

[43] See par 37 above.

[44] Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.01. See also Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 185 [13]-[14] (French CJ). The rules of civil procedure of this court apply during a post-sentence order proceeding: Criminal Code, s 105A.13(1).

[45] There is no issue of costs, as all of Benbrika's costs are being met by the Commonwealth. Further, there was no suggestion that the public's confidence in the judicial system would be lessened by any decision to grant leave.

[46] Carroll v Goff [2021] VSCA 267, [75]-[76] (Maxwell P, Kennedy and Walker JJA).

[48] Mandie v Memart Nominees Pty Ltd [2016] VSC 4, [47] (Kyrou, Ferguson and McLeish JJA).

[49] See, in particular, s 64 of the Civil Procedure Act 2010 (Vic).

[50] In relation to the underlying provisions relating to summary judgment in this jurisdiction, see ibid, ss 61-63, together with the Supreme Court (General Civil Procedure) Rules, rr 22.03, 22.16, 23.01.

[51] See, for example, Gull Lexington Group Pty Ltd v Laguna Bay (Banongill) Agricultural Pty Ltd [2018] VSCA 85; (2018) 55 VR 273, 305 [123]-[124] (Santamaria JA and McDonald AJA); Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17, [127] (Whelan and Santamaria JJA and T Forrest AJA); CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd [2017] VSCA 11; (2017) 55 VR 62, 73 [27] (Redlich, Tate and Ferguson JJA); D'Aquino v Trovatello [2015] VSCA 78; (2015) 47 VR 31, 42 [49] (McLeish JA, with whom Warren CJ and Ashley JA agreed); Mutton v Baker [2014] VSCA 43, [18]-[19] (Santamaria JA, with whom Whelan JA agreed), [55] (Whelan JA).

[52] Criminal Code, s 105A.7A(3), in conjunction with subs (1)(b) and (c).

[53] Summaries of some audio recordings are provided by the Federal Police at or around the same time as the recordings. Those summaries bear "session numbers" that correspond to the "session numbers" of the audio recordings.

[54] Obviously, the holiday shutdown period intervened.

[55] See par 42 above.

[56] See par 51 above.

[57] Further translations and transcriptions were obtained by the Government Solicitor following further instructions on 6 February 2025.

[58] See Criminal Code, ss 105A.9B-105A.9E.

[61] It is a criminal offence to contravene a condition of an extended supervision order, the maximum penalty for which is 5 years' imprisonment: ibid, ss 105A.3(3), 105A.18A.

[62] See par 59 above.

[63] Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 385 [23] (Hollingworth J).

[64] Some of these matters are addressed below: see par 103 below. See also par 47, fn 40 above.

[65] Criminal Code, s 105A.7A(1)(c)(i) and (ii).

[66] Benbrika v Attorney-General (Cth) (2024) 74 VR 379, 399 [116]-[118].

[69] See par 51 above.

[70] See par 129 below.

[71] See par 47 above.

[72] See par 48 above.

[73] See fn 40 above.

[74] As to the matter in parenthesis, see par 69 above.

[75] See pars 76-85 above.

[76] See pars 59-63 above.

[78] See pars 13 above and 137 below.

[84] Benbrika made a contrary submission. It is unnecessary to decide this issue.

[85] As to which, see Annexure C to these reasons.

[86] See further par 126 below.

[87] Of course, I say nothing about the likelihood or otherwise of the content of any expert evidence Benbrika might have adduced with respect to the further events the subject of Ellis' third and fourth reports or whether any such evidence, if adduced, ought to be accepted.

[88] See par 70 above.

[89] At the time of the hearings, disclosure material had been provided on 5, 9 and 24 December 2024, 9 and 17 January 2025, 6 and 11 February 2025. For completeness, this factor was not relied upon by Benbrika as a basis to adjourn the trial if leave were granted to amend the originating motion.

[90] See also par 69 above.

[91] Without being exhaustive, see par 103 above.

[92] See par 13 above.

[93] See Criminal Code, s 93.2(2)(c).

[94] If a question arises under Part 3.10 of the Evidence Act (relating to privileges), the court may order that a document be produced and inspect it for the purpose of determining the question: s 133. See also Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, 672D (Hunt CJ at CL, with whom Smart and Studdert JJ agreed); Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 416.2 (Gibbs CJ), 453.9-454.3 (Brennan J).

[95] See par 14 above.

[96] See Criminal Code, s 105A.5(3). "Disclosure requirement" is defined to mean a court process or court order that requires disclosure of information or a document: Evidence Act, s 131A(2). See also fn 6 and par 12 above.

[97] Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 272 CLR 68, 87-88 [12] (Kiefel CJ, Bell, Keane and Steward JJ).

[98] Evidence Act, s 131A(1).

[99] Each of Benbrika, the Director-General and the chief commissioner of Victoria Police agreed that by virtue of s 131A, s 130 of the Evidence Act applied.

[100] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 412.4 (Gibbs CJ), referring to Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38.6-39.2 (Gibbs ACJ).

[101] See, for example, Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 39.2 (Gibbs ACJ), citing Conway v Rimmer [1968] UKHL 2; [1968] AC 910, 940D (Lord Reid).

[102] Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25, 74.5 (Brennan J); see also Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 477 [510] (Hayne J).

[103] See pars 12-14 above.

[104] R v Peters [2018] VSCA 115, [53] (Osborn, Kaye and Niall JJA), and the cases there cited.

[105] Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 618.1 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

[106] PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; (2017) 53 VR 45, 53 [22] (Bell J), referring to the Open Courts Act 2013 (Vic), s 5(1).

[107] HT v The Queen (2019) 269 CLR 403, 435-436 [82] (Gordon J) and the cases there cited.

[108] Hogan v Hinch (2011) 243 CLR 506, 531-532 [21] (French CJ).

[109] The Director-General's submissions will be referred to only to such an extent as is consistent with the maintenance of the claim for public interest immunity. A version of the confidential submissions was provided to Benbrika's legal representatives with only some parts of those submissions redacted.

[110] [1982] HCA 78; (1982) 154 CLR 25, 74.5: see par 143 above.

[111] See, for example, Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 436.5 (Wilson and Dawson JJ), citing D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 233C (Lord Simon).

[112] See par 5 above. The court was told that, as the Director-General is not a party to the proceeding, neither he nor his legal representatives have had access to the Attorney-General's statement of disclosable facts.

[113] Referring to Imad v Director-General of Security [2024] FCA 1115, [100]-[111] (Rofe J) (upheld on appeal in Imad v Director-General of Security (2024) 305 FCR 523 (Bromwich, Thawley and Shariff JJ)); Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83, 93-94 [49]-[52] (Steytler P, McLure JA and Newnes AJA).

[114] For completeness, the Director-General made submissions based on the premise that the Attorney-General would only be seeking the Therapeutic Conditions. Self-evidently, these submissions have become superseded by more recent events.

[115] See fn 44 above. Benbrika did not contend that s 130(5)(b) had any direct application to this proceeding.

[116] As to the more "liberal" approach to be adopted in a case involving serious criminal charges, see R v Debono [2012] VSC 476; (2012) 225 A Crim R 585, 590 [23] (Kyrou J) and the cases there cited.

[117] R v Mokbel (Ruling No 1) [2005] VSC 410, [71] (Gillard J).

[118] See, for example, R v Peters [2018] VSCA 115, [59] (Osborn, Kaye and Niall JJA).

[119] It was acknowledged that there are good reasons for protecting the identity of human sources.

[120] See Evidence Act, s 130(5)(e).

[121] See ibid, s 130(5)(f).

[122] The court was told Benbrika had no issue with being personally denied the information and that his senior counsel holds a security clearance.