Case: Alister v The Queen (1984) 154 CLR 404
Outcome: applied
Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 , a public interest immunity case about documents recording cabinet deliberations, the Court said at 620: There was, therefore, no call for Jenkinson J to order that the documents be produced for inspection. But we would add that, even if there had been, the procedure of ordering production of documents for inspection by the legal representatives of one of the parties, even upon a restricted basis, before the claim for immunity had been decided by the court, was open to serious question. Whatever the safeguards, it represents an encroachment upon the confidentiality claimed for the documents. And in this case, public interest in their immunity from disclosure was of the highest order. If inspection of documents is necessary to determine the question of immunity (and in this case it was not) then it ought to be carried out by the court before ordering production for inspection by a party. No doubt this may in some cases cast a heavy burden on the court, but it is unavoidable if confidentiality is to be maintained until a claim for immunity is determined. See also Alister v The Queen (1984) 154 CLR 404 at 469 and Gypsy Jokers Inc v Commissioner of Police (WA) [2008] HCA 4 ; (2008) 234 CLR 532 at [180] and [185] per Crennan J. Northern Land Council and Alister concerned inspection by the court of the documents over which privilege was claimed. In Gypsy Jokers Crennan J spoke more broadly of "information in documents", "certain material relied on for determination of a proceeding" and "confidential material before a court", which was not revealed to a party seeking it. In The Queen v Bebic (unreported, 27 May 1982) the Court of Criminal Appeal of New South Wales dealt specifically with the disclosure of the contents of an affidavit tendered in support of a public interest immunity claim. There Samuels JA, Nagle CJ at CL and Cantor J said at 4: Mr Mason tendered an affidavit in support of his claim for privilege. He submitted, however, that the affidavit should not be placed on the file, that is to say that it should be read only by the Court and not disclosed to the party calling, on the footing that the contents of the affidavit would or might themselves compromise the claims for privilege. We had and still have some doubts about the propriety of restricting the affidavit in the way proposed. However, it may well be that that course is, in certain cases, of which this is one, no more than a logical extension of the established practice of the Courts inspecting the allegedly privileged documents itself. Later at 5, after saying that the Court had read both documents in question and the affidavit in support of the claim for privilege, their Honours said: It seems to us that granted that it is now commonplace for judges to make a private inspection of documents in order to resolve a claim for privilege ..., it follows that in a proper case the judge may similarly keep to himself the affidavit by which the claim is supported. The Court then ordered that the affidavit remain sealed up with the papers on the ground that to disclose its contents might prejudice the claim for privilege. I have referred in connection with the respondent's affidavit to the great importance that is attached to the respondent's opinion as to the damage to national security incident upon disclosure. Obviously that is also the case in relation to the disclosure of the documents over which privilege is claimed. I have summarised the respondent's reasons for his opinion about the possible effects of disclosure of the documents in question. This is all derived from the open parts of his affidavit. The Final Appreciations and related briefing notes set out the reasoning process that underlies the making of security assessments, which are the key mechanism by which ASIO advises government that particular individuals pose a threat to national security. If documents falling within this class were required to be produced, ASIO would be giving information about its knowledge, assessments and methodology to the very people to whom it is most important that national security information is not disclosed: cf Alister 154 CLR at 454-455 per Brennan J. As the respondent has deposed, the relevant class is "one of the classes of documents held by ASIO that require the greatest level of protection" first, because of the inherent sensitivity of the information that is routinely contained in such documents, and second, because of the detrimental consequences in terms of the quality of decision-making that would be likely to follow if ASIO officers were forced to omit particular kinds of information from Final Appreciations and related briefing notes due to the risk that those documents will become available to persons the subject of security assessments. The applicants contended that the respondent was not able to make a class claim. It was said that he seeks to describe as a class claim documents which he considers constitutes a Final Appreciation and documents related thereto. That description, they say, does not constitute an identifiable class. The table in the affidavit (set out at [9]) refers to an internal email, an internal minute and a briefing note. It does not refer to any Final Appreciation. By way of contrast, the applicants assert that Cabinet documents constitute a clear class claim. Here they say the so-called class claim involves the respondent asserting for himself that particular documents constitute Final Appreciations. I do not think that is a fair description of the respondent's claim. The presently relevant parts of his affidavit are as follows: (a) shortly after identifying the documents in the table at [9] he describes them on a class basis as "paradigm examples of documents that ASIO should not be required to disclose save in exceptional circumstances"; (b) the results of complex security assessments are usually contained in a Final Appreciation document, though it may not be headed in that way; (c) the Final Appreciation ordinarily takes the form of an ASIO minute; (d) when the investigative branch assesses an individual to be a threat to Australia's national security, the respondent is advised, usually by a DGBN; (e) often both a DGBN and a Final Appreciation are provided to the respondent for decision; (f) it is the document on which a security assessment is based, being the Final Appreciation (however that document is headed) and any associated DGBN that cannot be disclosed; (g) the class claim advanced concerns the class of documents shortly described as "Final Appreciation documents and related briefing notes"; (h) documents in this class invariably contain specific detail as to why persons are assessed as a risk to national security, and specific details of intelligence sources and methods; (i) the respondent has examined the ASIO documents, namely those in the table (the class claim) and the contents claim documents; and (j) the disclosure of the documents in (i) would prejudice Australia's national security for the reasons stated in the affidavit.