Case: Church of Scientology Inc v Woodward [1980] HCA 38 ; (1982) 154 CLR 25
Outcome: distinguished
There is no dispute that ASIO may be subject to judicial review. So much was conceded in, and accepted by, the High Court in Church of Scientology Inc v Woodward [1980] HCA 38 ; (1982) 154 CLR 25. There are limits on the scope of that review but the usual administrative law remedies would be available to the applicants if they are able to establish jurisdictional error. 18 The primary difficulty that each of the applicants faces in bringing his claim is that he has not seen his adverse security assessment and alleges that he does not know the facts or reasoning by which the Director-General made the adverse security assessment. Without this material, it will be difficult, if not impossible, for the applicants to make out their claim that the adverse security assessments were not made in accordance with law. It is therefore critical to the applicants that the Court order discovery of, at very least, the adverse security assessments. I therefore ordered, on 1 June 2006, that the parties make submissions on discovery, which they have subsequently done both in writing and at the hearing on 20 July 2006. 40 In Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25, the High Court had to consider a claim that the Director-General of ASIO did not have a reasonable basis for believing that members of the Church of Scientology were a security risk and therefore had no power to investigate them. It was accepted that judicial review of the ASIO Act was available. 43 It is apparent from these passages that what Brennan J had in mind was not merely discovery, but the dual process of discovery and production. His use of the word discovery appears to be a short-hand reference to this dual process. Because the Court in Church of Scientology did not need to decide whether to order discovery, Brennan J's obiter remarks were directed to difficulties generally in bringing review proceedings against ASIO. They were not directed to the important distinction between discovery and the subsequent production of non-privileged discovery documents. Mason J's judgment also refers to the difficulties in bringing this type of claim. He notes, at 61, that: "Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument ... [but the] fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials." 44 The reference to Crown privilege demonstrates that His Honour has in mind the production of documents at least as much as the discovery of them, for it is at the production stage that a successful claim for privilege may thwart a plaintiff. The Church of Scientology case may have critical implications for the parties at the production stage, but it is not determinative of the discovery question. 45 The Director-General submits that there is no live issue between the parties and that discovery therefore should not be ordered. In order to make out their respective claims, the applicants will need to demonstrate jurisdictional error on the part of the Director-General. They will need to show that there was no evidence on which ASIO could have formed the opinion that the applicants were security threats. Given the extreme difficulty of this task, the Court should not be satisfied that the applicants have a good case proof of which may be aided by discovery. 46 I am not persuaded by this argument. The applicants' claim is that they have done nothing to justify their security assessments. Therefore ASIO must be wrong to conclude that they are security threats. In order to demonstrate this to a court they need to understand why and on what basis ASIO has formed the view that it has. It stands to reason that they do not yet have the evidence to demonstrate this; that is why they have sought discovery. The Director-General's argument is circular. It is, in effect, that because the applicants do not have the evidence they need, they therefore have no case and so do not need that evidence. In the circumstances of these applicants, it is not possible to say whether they do or do not have any chance of making out a good case. It would be premature at this stage to say that there is no live issue between the parties.