Case: Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25
Outcome: considered
As to the deference that Courts ought properly give to decisions of the executive in matters of national security, observations by the High Court in Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25 are relevant. 63 Mason J, as his Honour then was, said, at 55: It would be too much to say that the supervisory jurisdiction of the courts cannot be impliedly excluded by statute, though no case of implied exclusion was cited to us in argument. But it is not too much to say that any suggestion that Parliament has impliedly excluded judicial review, especially for ultra vires, should be viewed with extreme caution, indeed with healthy scepticism. 64 At 59, Mason J said: Surveillance in association with the obtaining, storage and dissemination by a government organization of information relating to private citizens can only be justified in a democratic society by the need to protect that society, i.e., on security grounds. ... No-one could doubt that the revelation of security intelligence in legal proceedings would be detrimental to national security. But it does not follow that ASIO's activities should be completely free from judicial review. To so conclude would be to ignore the protection which is given by the doctrine of Crown privilege to information the disclosure of which is prejudicial to national security. It is one thing to say that security intelligence is not readily susceptible of judicial evaluation and assessment. It is another thing to say that the courts cannot determine whether intelligence is "relevant to security" and whether a communication of intelligence is "for purposes relevant to security". 65 Brennan J, as his Honour then was, said, at 70: Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly. 66 At 74, Brennan J asked: ... how can the gravity of a security risk be evaluated by a court? It may be necessary to evaluate Australia's relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof. It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than deduction. It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely. However, it does not follow that judicial review is excluded. 67 As to the intersection of matters of national security with the administration of civil justice, Brennan J said at 76: 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. ... 68 It is right to acknowledge the political character of the Minister's office, and his accountability to the Parliament, and of the government ultimately to the electorate. The Minister is nonetheless susceptible to the requirements of the law that he act within the jurisdiction conferred by the Parliament on him.