Federal Court of Australia

MJZP v Director-General of Security [2026] FCA 694

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s claim of Public Interest Immunity over the redacted and omitted portions of the documents produced to the applicant pursuant to order 2 made by Justice Thawley on 19 September 2025, the redactions being reflected in the bundle of documents provided by the first respondent to the applicant on 13 April 2026, is established.

2.    Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The first respondent, the Director-General of Security, is an independent statutory office holder with specific responsibilities under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). The Australian Security Intelligence Organisation (ASIO) is the Commonwealth’s domestic intelligence service tasked with identifying and investigating 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 to obtain, correlate and evaluate intelligence relevant to security, to communicate any such intelligence to such persons and in such manner as are appropriate to purposes relevant to security, to advise Ministers and Commonwealth authorities in respect of matters relating to security, and to cooperate with and assist certain intelligence and law enforcement bodies. “Security” is defined in s 4 of the ASIO Act to mean the protection of Australia and its people from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia’s defence systems, and acts of foreign interference.

2    Security assessments are a key mechanism by which ASIO, in furtherance of its core functions, conveys matters relating to security to Ministers and government agencies which are relevant to their functions and responsibilities. They enable ASIO to advise Government about the risk that particular individuals or organisations might pose to Australia’s national security. In order to enable the Director-General to consider and make a security assessment, together with the proposed security assessment, ASIO typically prepares a classified Briefing Note, and a Classified Statement of Grounds which contains ASIO’s detailed reasons for its recommendation to the Director-General. These in turn typically refer to sensitive information.

3    The underlying proceeding in the present case is an appeal in this Court against a decision of the Administrative Appeals Tribunal to affirm an adverse security assessment (as defined in s 35(1) of the ASIO Act) with respect to the applicant. The amended grounds of appeal filed on 8 December 2025 relevantly include that the Tribunal failed to accord the applicant procedural fairness because four certificates issued under ss 39A(8) and 39B(2)(a) of the (since repealed) Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) were invalid on the ground of legal unreasonableness.

4    On 19 September 2025, Justice Thawley ordered that:

2. On or before 3 October 2025 and subject to any claims for public interest immunity and/or legal professional privilege, the respondent provide to the applicant all material that:

2.1. was before the [Minister for Home Affairs] for the purpose of deciding whether to issue the certificates under ss 39A(8) and 39B(2)(a) and (b) of the Administrative Appeals Tribunal Act 1975 (Cth) on 19 January 2022, 19 January 2022, 21 April 2022, and 28 July 2022 referred to in the originating application filed on 12 September 2025 in NSD1692/2025 (First, Second, Third and Fourth Certificates); or

2.2. is otherwise relevant to the validity of the First, Second, Third and Fourth Certificates.

5    On 17 October 2025, the Director-General produced a bundle of documents in compliance with that order, largely comprised of submissions made to the Minister for the purposes of deciding whether to issue each of the four certificates (the Produced Documents). That bundle redacted (or omitted where whole page claims were made) material (the redacted/omitted material) which was subject to public interest immunity (PII) or legal professional privilege claims by the Director-General and/or the operation of s 46(2) of the AAT Act. Relevantly, a number of the PII claims by the Director-General are challenged by the applicant. The applicant also challenges the Director-General’s reliance on s 46(2) of the AAT Act on the basis that the four certificates issued by the Minister are invalid and to preserve its position in the event that the challenge is successful.

6    The challenge to the validity of the four certificates will be the subject of a hearing on a separate question before the Full Court. The purpose of the application before me is to determine only the PII claims.

2.    BACKGROUND

2.1    Procedural history

7    ASIO provided the adverse security assessment to the Minister for Home Affairs in July 2021. The assessment was accompanied by a classified statement of grounds (CSOG), which was taken to form part of the assessment. As the Minister was satisfied that disclosure of parts of the CSOG would be prejudicial to security, the applicant was given a truncated version, known as an unclassified statement of grounds (USOG).

8    The applicant sought review of the assessment in the Tribunal. The Tribunal heard the proceedings in its Security Division which attracted modifications to the Tribunal’s usual procedures. In particular, between January and July 2022, the Minister made the four certificates under ss 39A and 39B of the AAT Act, certifying that disclosure of “evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director-General” (s 39A(8)), and “information with respect to a matter stated in the certificate, or … the contents of a document” (s 39B(2)), would be “contrary to the public interest” on specified grounds. Each of the certificates is expressed to apply to information contained in attachments to the Ministerial Submission by which it was sought. The effect of the s 39A certificates was that neither the applicant nor (absent the Minister’s consent) their legal representatives could be present for the evidence or submissions: ss 39A(9)(a)-(b). The relevant effect of the s 39B certificates was to require the Tribunal to “do all things necessary to ensure … that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted”: s 39B(3)(a).

9    On 23 August 2023, the Tribunal affirmed the assessment.

10    By an originating application dated 19 September 2023 (amended on 8 December 2025), the applicant appealed to this Court from the Tribunal’s decision.

2.2    The contested PII claims

11    As earlier explained, on 17 October 2025, the Director-General produced an initial set of documents to the applicant pursuant to the orders of Thawley J made on 19 September 2025 which did not include the redacted/omitted material.

12    The certificates issued by the Minister under s 39B of the AAT Act, if valid, also affect the procedure to be adopted in the appeal in this Court. Section 46(2) of the AAT Act (which remains in force in respect of this proceeding under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Sch 16, item 27(2)) relevantly provides:

If there is in force in respect of any of the documents a certificate in accordance with subsection … 39B(2) of this Act … certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia … shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding. …

13    The constitutional validity of s 46(2) of the AAT Act was upheld by the High Court in SDCV v Director-General of Security [2022] HCA 32; (2022) 277 CLR 241 and MJZP v Director-General of Security [2025] HCA 26; (2025) 99 ALJR 1108 (refusing leave to reopen SDCV at [5] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) and [28] (Edelman J)).

14    Redactions to the Produced Documents were made to give effect to the statutory immunity pursuant to s 46(2) of the AAT Act because they contained material which was, or would disclose the contents of, the attachments (or parts thereof) identified in the Minister’s four certificates made under s 39B(2) and on the grounds of PII and legal professional privilege.

15    On 12 December 2025, the applicant advised the Director-General that it challenged some of the Director-General’s PII claims. The applicant did not challenge any of the claims of legal professional privilege.

16    On 18 December 2025, the applicant confirmed that it did not require the Court to determine the s 46(2) claims at the hearing before me. This was because the applicant’s challenges to these claims were based solely on the invalidity of the underlying certificates made under s 39B of the AAT Act, which would be determined in due course by the Full Court on the separate question.

17    On 27 February 2026, the Director-General produced a revised bundle to the applicant, with certain PII claims lifted.

18    On 13 April 2026, the Director-General sent the applicant a further revised version of the Produced Documents, over which further PII claims had been withdrawn. The withdrawn PII claims were detailed in a covering letter of the same date.

2.3    Evidence

19    The Director-General relied on an open affidavit of Eden Cornwell sworn on 27 February 2026. Mr Cornwell is a First Assistant Director-General, Threat and Security Advice, at ASIO with 20 years’ experience in delivering and managing production of ASIO analytical assessments and advice. The name “Eden Cornwell” is an assumed identity under Part IAC of the Crimes Act 1914 (Cth). In his open affidavit, Mr Cornwell sought to explain the basis for the Director-General’s claims of PII to the extent possible without revealing the information over which those claims are based or other information of equal or greater sensitivity.

20    Mr Cornwell was not cross examined.

21    Mr Cornwell also prepared a confidential affidavit sworn on 13 April 2026. That affidavit was said to provide further detail about the information the subject of PII and the basis for those claims, the disclosure of which would itself prejudice the public interest. It was stored by the Director-General’s solicitors on behalf of the Court, consistently with orders made on 10 April 2026. In circumstances which I shortly explain, the confidential affidavit was not ultimately tendered and relied upon by the Director-General.

22    At the hearing on 20 April 2026, the Director-General invited me first to make my decision solely on the basis of the open affidavit.

23    The parties submitted that, if I were unable to make a decision on that basis alone, I should secondly proceed to privately inspect the unredacted documents.

24    The third step would be to receive the confidential affidavit into evidence, if I considered this necessary despite having inspected the documents. The Director-General submitted that if the Court should consider it necessary to have regard to the confidential affidavit, it should be privately inspected by me alone. In his submission, Courts have an obligation to hear and determine such claims in a way which does not defeat the very protection which the PII claim seeks to invoke and, to that end, courts may privately inspect the documents over which PII is claimed without providing them to the party seeking access.

25    While the applicant accepted that the Court could rely on Mr Cornwell’s confidential affidavit in determining the PII claims without providing that affidavit to the applicant, the applicant submitted that the Court should first consider whether to adopt one of the ways it proposed to mitigate the prejudice which it would suffer as a result, such as appointing a security-cleared amicus curiae (friend of the Court) or a special advocate. The Director-General opposed the Court adopting any such measures. Thus, before taking the third step, the parties agreed that it would be necessary for me to hear submissions on the appropriateness of adopting one of the measures suggested by the applicant. The Director-General also foreshadowed that, should this stage be reached, he would likely seek an opportunity to provide further confidential evidence.

26    In the circumstances, I did not consider it was necessary to take this third step as, having inspected the unredacted documents, I am satisfied on the basis of those documents and the open affidavit of Mr Cornwell that the Director-General’s claims of PII over the redacted/omitted material must be upheld for reasons I shortly explain.

3.    THE PRODUCED DOCUMENTS

27    The Produced Documents comprise 29 documents, being six Ministerial Submissions and their attachments. These are listed and categorised in an index titled “Confidential Annexure EC-6: Schedule of PII claims challenged by Applicant in documents produced by the First Respondent” (Index EC-6). This index includes redactions in the column headed “PII Claim in Produced Documents & Confidential Affidavit of Eden Cornwell – Paragraph Pinpoint”.

(1)    Items 1, 6, 11 and 17 in Index EC-6 relate to the First, Second, Third and Fourth Certificates and are identified, together with their attachments, as Ministerial Submission (MINSUB) 098/21 (First Certificate dated 19 January 2022), MINSUB 109/21 (Second Certificate dated 19 January 2022), MINSUB 022/22 (Third Certificate dated 21 April 2022) and MINSUB 043/22 (Fourth Certificate dated 28 July 2022).

(2)    Item 20 (MINSUB 046/22) relates to the preparation of a statement of reasons for the Fourth Certificate (in response to a request by the applicant) and includes a number of attachments.

(3)    Item 25 (MINSUB 099/21) relates to a decision to partially revoke a previous non-disclosure certificate made under s 38A(3) of the ASIO Act and includes a number of attachments.

28    The Produced Documents contain redactions over material which the Director-General asserts is covered by PII for the following reasons:

(1)    ID: Administrative and system identifiers

(2)    AE: ASIO employees

(3)    IHS: Intelligence holdings and sources of information

(4)    ELR: External liaison and reporting

29    The applicant does not challenge any of the ID or AE claims. Accordingly, the material in dispute falls within the categories of “intelligence holdings and sources of information” and “external liaison and reporting”.

4.    THE PUBLIC INTEREST IMMUNITY CLAIMS

4.1    Legal principles

30    The public interest immunity doctrine constitutes a substantive and fundamental immunity which cannot therefore be waived: JLW24 v Minister for Immigration and Multicultural Affairs [2024] FCA 1319 at [67] (Perry J); Young v Quin (1985) 4 FCR 483 at 486 (Bowen CJ).

31    It is common ground that the Director-General’s PII claims fall to be determined according to common law principles. This is because s 130 of the Evidence Act 1995 (Cth), which closely reflects the common law position (e.g. Eastman v The Queen (1997) 76 FCR 9 at 63 (the Court)), is limited to claims made in relation to the admission of evidence and does not apply to pre-trial disclosures or the inspection of documents.

32    With respect to the test for determining a claim of public interest immunity, the principles are well settled and are conveniently summarised by Abraham J in DCL22 v Sage [2022] FCA 1310 at [24]-[25] as follows:

Whether a claim of public interest immunity ought to be upheld requires the Court to consider two conflicting aspects of the public interest: first, whether harm would be done by the disclosure of matters of state; and second, whether the proper administration of justice would be frustrated or impaired if the documents were withheld. If it appears that both aspects of public interest require consideration, the final step is a balancing exercise of those interests.

This accords with the approach outlined by Gibbs CJ in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 (Alister v The Queen) at 412:

… when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely 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. The final step in this process — the balancing exercise — can only be taken when it appears that both aspects of the public interest do require consideration — i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider 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.

(Emphasis added.)

33    An issue arose between the parties as to the meaning of “likely” in the passage from Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 quoted by Abraham J in this passage.

34    As to the consequences of upholding a claim of PII, Abraham J in DCL22 explained at [27] that:

If the claim of public interest immunity is successful: (1) the information in question need not be produced for inspection by any party to the proceedings; (2) the information in question cannot be adduced in evidence by any party; 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: Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 61; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 (Gypsy Jokers) at [24]; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at [148]; HT v The Queen [2019] HCA 40; (2019) 278 A Crim R 133 (HT v The Queen) at [29], [32] and [71]-[72].

35    The applicant submits that Gibbs CJ in Alister used the word “‘likely’ to convey the notion of ‘probable’ rather than merely ‘possible’”. In other words, in his submission, to succeed in establishing PII, the Director-General must establish that it is more probable than not that danger to the public interest would result from disclosure of the material the subject of the PII claim. In support of this contention, the applicant submitted that this construction accorded with the “natural meaning” of the word adopted by Gibbs CJ two years later in Boughey v The Queen (1986) 161 CLR 10 at 14. However, as Gibbs CJ explained in that case, the word “likely” takes its meaning from the context in which it appears. The fact that his Honour held that the word meant “probable” and not merely “possible” in the context of a statutory provision prescribing the mens rea for murder does not assist the applicant in the very different (non-statutory) context in which judicial statements of principle on PII fall to be considered here. I also note that, in any event, Mason, Wilson and Deane JJ held at 21 that the term “likely” in the context in question in Boughey naturally conveyed “the notion of a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than 50 per cent”.

36    In my view the Director-General correctly contends that the question is whether there is a real risk of prejudice to the public interest should material the subject of a PII claim be disclosed. As, for example, the Western Australian Court of Appeal (Steytler P, McLure JA, Newnes AJA) held in their joint judgment in Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83 at [46]:

We accept the appellant’s submissions that a claim of public interest immunity is properly invoked so as to require the court to undertake the balancing exercise if disclosure of the information in question gives rise to a real risk of harm to the identified public interest relied on, which in this case was the risk that disclosure of the confidential information would impair the responsiveness (in terms of reliability and timeliness) of survey respondents and thus impair the proper workings of government agencies. The incurring of the identified risk is itself injurious to the public interest. That is consistent with the authorities, including Sankey v Whitlam (at 39); Rogers v Home Secretary [1973] AC 388 at 410-411; Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405 at 434.

(See also e.g. Imad v Director-General of Security [2024] FCA 1115 at [60] (Rofe J); and DCL22 at [28] (Abraham J).)

37    This construction also accords with common sense in that the incurring of a real risk of harm itself prejudices the national interest, as the Court of Appeal explained in Australian Statistician in the passage quoted above. As the Director-General submitted by way of illustrating the point:

If there was a 30 per cent chance that information would lead to the death of an informer, for example, you wouldn’t say, “Well, there’s no prejudice to the national interest because it’s less likely than likely that this is going to occur.” You would say, “Well, that risk is itself prejudicial to the national interest.”

38    As such, it is not necessary for the Director-General to establish that disclosure of the information the subject of the PII claim would on the balance of probabilities prejudice national security. It suffices that disclosure would give rise to a real risk of such prejudice.

4.2    Would disclosure give rise to a real risk of harm to national security?

39    Turning to whether disclosure would give rise to a real risk of harm to national security, first, as earlier mentioned, Mr Cornwell holds the senior position of First Assistant Director-General, Threat and Security Advice. In that role, he is charged with responsibility for ASIO’s analytical threat advice functions across all ASIO’s heads of security including most relevantly espionage and foreign interference. This requires him to have a deep understanding of:

(1)    ASIO’s intelligence and assessment collection and capabilities;

(2)    the sensitivities which accompany their use in ASIO’s published assessments, briefings and advice; and

(3)    the protections that must apply to ASIO’s use of sensitive intelligence.

40    Mr Cornwell’s prior roles have also given him extensive insight into threats to Australia’s national security, including politically motivated violence, espionage and foreign interference. He has worked closely with ASIO’s domestic and international partners throughout his time at ASIO. As such, he has considerable experience and expertise in understanding and assessing relevant risks to Australia’s national security. Furthermore, Mr Cornwell’s expertise was not challenged; nor was his substantive evidence challenged by cross-examination.

41    I agree with the Director-General’s submission that the Court should place significant weight on Mr Cornwell’s evidence, given his experience as a senior ASIO officer who has been involved in delivering and managing the production of ASIO’s analytical assessments and advice for 20 years. In this regard, as Abraham J observed in DCL22 at [35]:

courts have recognised that “full respect” should be given to the evidence of the deponent who makes an affidavit in support of a claim of public interest immunity: Sankey v Whitlam at 46, and see 43-44, 59-60; and see Alister v The Queen at 435, 455; Young v Quin [(1985) 4 FCR 483] at 489-490; R v Lodhi [2006] NSWSC 596; 199 FLR 270 at [31]-[32]; Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38. It is relevant that the deponent is a person of seniority: Young v Quin at 489, and that the matters in respect of which the evidence is given are not, or not wholly, within the competence of the Court to evaluate for itself: see, for example, Sankey v Whitlam at 43-44, 46 and 59-60.

(See also e.g. JLW24 at [68] (Perry J).)

42    Secondly, the applicant correctly submits that Mr Cornwell’s open affidavit should nonetheless be carefully scrutinised and that, because the courts tend to afford weight to the evidence of a deponent with national security expertise, such witnesses bear a heavy burden and must give “personal genuine consideration” to the competing interests involved.

43    In Sagar v O’Sullivan [2011] FCA 182; (2011) 193 FCR 311 at [89]-[90], Tracey J explained the cautious approach adopted by Courts when reviewing decisions by security agencies, lest the actions of the Court harm national security interests, as follows:

the courts will give “very considerable weight” to the agency’s view of what national security requires in any particular instance: see Alister [v The Queen (1984) 154 CLR 404] at 435 (per Wilson and Dawson JJ). This dictum was applied by the Full Court in Leghaei [v Director-General of Security (2007) 241 ALR 141] when dealing with an adverse security assessment, made under the ASIO Act: see at 147. This is not to say that the Court must, in all cases, accept the security organisation’s assessment. Such deference is, however, an acknowledgement of the practical difficulty faced by a court in evaluating evidence adduced in support of public interest immunity claims on the grounds of harm to national security.

Faced with this difficulty Australian courts have stressed that those whose evidence is relied on to make good a claim that disclosure of information would be contrary to the national interest bear a heavy burden and have insisted that decision-makers must give “personal genuine consideration” to the competing interests which are involved when such a claim is made: see Leghaei at 148.

44    I accept that it is appropriate to adopt this cautious approach.

45    Thirdly, as to the background security environment against which his assessment of risk relevant to the PII claims was made and the importance of protecting against disclosure of sensitive information generally, Mr Cornwell explained the following:

(1)    It is fundamental to the effective operation of an organisation such as ASIO that its activities be conducted in the strictest possible secrecy. (I note, in this regard, that the need for the secrecy of ASIO’s work has been recognised as “essential to national security”: Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 76 (Brennan J).) Mr Cornwell further explained that this includes protecting from disclosure ASIO’s areas of interest, sources, investigative techniques, technical capabilities and intelligence gaps. While accepting that it is not the case that no ASIO information can ever be disclosed, based on his long experience as an ASIO officer, Mr Cornwell explained the heightened need for the secrecy of ASIO’s activities to be preserved:

[D]isclosing information which reveals ASIO’s areas of interest, the identity of subjects of security interest, the degree of its ability to obtain intelligence in relation to those subjects, its sources (including human sources), its investigative techniques, its technical capabilities (and limitations) and work methods (modus operandi), its successes and the information derived from its successes, can cause very significant harm to ASIO’s ability to perform its functions. Put another way, secrecy is essential to ASIO’s ability to fulfill its mission to protect the security of Australia and Australians.

Further, information relayed ASIO internally and to domestic partners may have been provided by partner intelligence and law enforcement agencies. Such information is generally shared with ASIO on the basis that ASIO has agreed to strict information sharing arrangements, often requiring that the intelligence not be disclosed, including for use or disclosure in legal proceedings, at all or without the consent of the partner.

It is also fundamental to ASIO’s effective operation that any ‘intelligence gaps’ in ASIO’s coverage of persons or organisations of security concern (for example, gaps in ASIO’s knowledge of some of their activities or associates of security concern) be protected from disclosure. These ‘gaps’ could otherwise be exploited to carry out activities prejudicial to Australia’s security, with or without ASIO’s detection.

(2)    Hostile foreign intelligence services are constantly seeking to penetrate Australia’s government, among other sectors. This includes foreign actors seeking to pre-position themselves on communication and other networks to disrupt or conduct destructive attacks against critical infrastructure targets, as outlined by the Director-General in his sixth Annual Threat Assessment on 19 February 2025. In particular, the Director-General said in his Threat Assessment that “[e]spionage and foreign interference are already at extreme levels and we anticipate that they will only intensify.” He also referred specifically to the threat of espionage and sabotage to Australia’s critical networks and infrastructure, stating that “cyber units [of certain foreign nation states] … routinely try to explore and exploit Australia’s critical infrastructure networks, almost certainly mapping systems so they can lay down malware or maintain access in the future.” Further, the Director-General recently stated that each such instance of cyber-related sabotage to Australia’s critical infrastructure will cost the economy an estimated $1.1 billion per incident.

(3)    It is vital that the Minister be given comprehensive and accurate information by ASIO upon which to base the decision whether to issue a certificate pursuant to ss 39A(8) and 39B(2) of the AAT Act, including by referring to the sensitive information itself. If the confidentiality of that information could not be protected, this could impair ASIO’s ability to give comprehensive and accurate information to the Minister. In particular, Mr Cornwell explained that:

It is imperative that the Briefing Note and CSOG reveal in a transparent and comprehensive fashion the reasoning and supporting classified intelligence that the ASIO investigative area considers may support an ASA. This is important because the consequences for a person or entity that becomes the subject of such an ASA can be severe, in terms of the prescribed administrative action that may follow. It is also because the consequences of failing to issue an ASA when one is warranted can be equally, if not more, serious.

46    In the fourth place, in his open affidavit Mr Cornwell correctly identified the need in making this assessment to have regard both to the likelihood of the particular harm eventuating and the gravity of the consequences if it did. He also correctly appreciated the need for the risk to be real, while also recognising that in some cases the consequences may be so grave that the risks, while not high, ought not be taken. In turn, Mr Cornwell’s evidence amply demonstrates in my view that he gave personal genuine consideration to the competing interests involved in weighing up the claims of PII. In particular, Mr Cornwell explains that, following his personal review of the unredacted Produced Documents, he is of the opinion that disclosure of the information covered by the disputed PII claims would be contrary to the public interest, because it would create a significant risk of prejudice to Australia’s national security for the following reasons.

(1)    Mosaic analysis can be employed by persons with interests inimical to Australia’s security to build a comprehensive picture from individual pieces of information, including those which may appear to be innocuous or meaningless. ASIO cannot always know in advance, or with confidence, what pieces or types of information, if revealed, are likely to be of most value and significance to those persons. As Mr Cornwell explained, mosaic analysis:

involves the construction, in jigsaw fashion, of information such that, when it is compiled with other pieces of information, other more significant information is revealed and an understanding gained. It may be relatively simple, such as when an ASIO target is able to connect only a small number of significant pieces of information, or it may be very complex, such as when a [foreign intelligence service] is able to combine numerous small bits of information with information it already holds to ascertain information about such things as the identity 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, when assessing the sensitivity of information sought to be protected, Mr Cornwell took into consideration the significance which a piece of information may have to a mosaic analysis of Australia’s security information and capabilities. I accept that Mr Cornwell is exceptionally well placed to make these assessments, given his many years of experience in intelligence analysis.

(2)    With respect to the material subject to the PII claims which are challenged by the applicant, Mr Cornwell’s unchallenged evidence was to the following effect:

(a)    The material in the “intelligence holdings and sources of information” category is sensitive because it tends to reveal ASIO’s knowledge of various national security matters and any gaps in that knowledge, the significance ASIO places on those matters, and the sources ASIO relied on in obtaining that intelligence. Certain documents, including the CSOG, were entirely omitted from the bundle of Produced Documents on the basis of “intelligence holdings and sources of information”. I accept that disclosing even a redacted version of these documents would tend to disclose the volume and location of redacted material, which may allow an adversary to make judgements about the extent to which ASIO has coverage about a particular topic.

(b)    The material in the “external liaison and reporting” category is also sensitive as it would tend to disclose the fact and nature of ASIO’s communications and information sharing with its partner agencies, including foreign partner agencies. Mr Cornwell deposes that confidential information exchanged between ASIO and its partner agencies occurs pursuant to agreements to maintain the strictest secrecy, including non-disclosure in legal proceedings. Mr Cornwell’s opinion is that disclosure of this material may reveal other agencies’ sources, modus operandi and intelligence gaps, and cause them to lose confidence in ASIO’s ability to protect their sensitive information.

(3)    Mr Cornwell considered that limiting the disclosure of the sensitive information to the applicant’s legal representatives would not adequately mitigate the real risk of prejudice, given the risks of inadvertent disclosure or technical surveillance – concerns which are plainly acute in the current heightened and aggressive environment of foreign intelligence gathering as described in the Director-General’s 2025 Threat Assessment and more generally by Mr Cornwell.

47    As to the last of these considerations, I also agree with Wilcox J’s observations in Jackson v Wells (1985) 5 FCR 296 at 307-8 that, while no doubt the assistance of counsel on the content of the documents would be helpful and the applicant would have been satisfied that the material was rigorously examined by the court if their counsel had had the opportunity to take the court through the documents:

Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible.

48    These risks are heightened, as Mr Cornwell explains, where the people afforded access to the classified information lack significant training and experience in protecting sensitive information which, according to ASIO’s information security policy, “must be handled with extreme care and with strict application of the ‘need to know’ principle.”. As Wilcox J held in Jackson at 308, it is “merely commonsense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure.”

49    The applicant submitted that there were a number of factors which adversely impacted upon the weight which the Court should give to the Director-General’s open evidence. For the reasons set out below, I do not accept these submissions.

50    First, the applicant placed weight on the fact that the Director-General decided to make a subsequent disclosure on 13 April 2026 of material which Mr Cornwell had earlier sworn to be secret in his open affidavit on 27 February 2026. The material which was subsequently disclosed, as identified in a letter from the Director-General’s solicitors to the applicant’s solicitors dated 13 April 2026, includes:

(1)    general information about why certain material is sensitive, to similar effect as the statements in Mr Cornwell’s open affidavit; and

(2)    commentary on the expected attitude and reaction of the applicant, and of third parties, to the adverse security assessment.

51    However, I do not consider that this change in the Director-General’s position with respect to certain material initially the subject of PII claims detracts from Mr Cornwell’s open evidence with respect to those claims of PII which have been maintained over other material. The change in position may well have reflected a change in circumstances and been the product of a careful, genuine and continuing consideration given personally by Mr Cornwell to the PII claims. I do not consider that it could safely be inferred that this change in position with respect to certain material was due to a factor which should adversely affect the weight I could otherwise give to Mr Cornwell’s evidence.

52    Secondly, the applicant submitted that, in relation to the “external liaison and reporting” category, the Director-General cannot “bootstrap” into a PII claim by promising to a partner agency that it will not share information with the Court, as a PII claim is ultimately a matter for the Court to determine for itself. I do not, however, consider that this is a fair characterisation of the Director-General’s contention. The Director-General did not suggest that the assessment of whether there is a real risk of prejudice to the public interest if the material the subject to the challenged PII claims is disclosed was otherwise than a matter ultimately for the Court to determine. More importantly, the applicant’s submission does not grapple with the fundamental point that if ASIO is required to disclose confidential information exchanged between it and its partner agencies, the other agencies’ sources, modus operandi and intelligence gaps may be revealed thereby prejudicing Australia’s security and that of foreign partner countries, and may cause foreign partner agencies to lose confidence in ASIO’s ability to protect their sensitive information. This in turn, as Mr Cornwell explained, may make other agencies less willing to supply ASIO with further information thereby potentially depriving ASIO of vital intelligence in the future. In this regard, I accept Mr Cornwell’s evidence that the implications of these outcomes 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 against Australia and its people in the future, but it could cause significant and long-term damage to ASIO’s relationship with its partner agencies”.

53    It follows for the reasons set out above that the evidence more than sufficiently establishes that disclosure of the material subject to the PII claims would give rise to a real risk of harm to national security.

4.3    Would non-disclosure frustrate or impair the administration of justice?

54    As I have found that there is a significant risk of prejudice to Australia’s national security if the material the subject of the PII claims were disclosed, the question then arises as to whether the proper administration of justice would be frustrated or impaired if that material were withheld.

55    The applicant submitted there is “a public interest in the fair and efficient disposition of civil disputes by the courts, including the access of the courts to relevant evidence which litigants may wish to adduce”: ASIC v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at [32] (Heerey, Moore and Tracey JJ). In the applicant’s submission, a claim of legal unreasonableness “requires a close focus upon the particular circumstances of exercise of the statutory power”, such that a conclusion of legal unreasonableness is “drawn from the facts and from the matters falling for consideration in the exercise of the statutory power”: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26] (the Court).

56    Thus, in the applicant’s submission, the starting position in an unreasonableness case is that the applicant is entitled to all of the information so as to be able to articulate whatever arguments might possibly be made in an outcome-focused unreasonableness case, or to expose illogicality between the information that is contained in the material before the decision-maker and the ultimate conclusion. The applicant submitted that if all of that information is not disclosed, the consequence would be to deprive the applicant of information that might materially bear upon the arguments that are available in contending that a decision is affected by legal unreasonableness.

57    I agree with the Director-General, however, that withholding the documents would not frustrate or impair the proper administration of justice.

58    First, this is a civil proceeding which ultimately affects private or commercial interests. As a consequence, the public interest in the administration of civil justice weighs less heavily in favour of disclosure than where information is sought to support the defence of an accused in criminal proceedings whose liberty is at stake: Commonwealth v Northern Land Council (1993) 176 CLR 604 at 618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

59    Secondly, the applicant has not identified the particular respect in which the administration of justice would be frustrated if the material subject to the contested PII claims is not disclosed. I do not accept the applicant’s submission that all facts are necessarily relevant to its unreasonableness ground. Rather, in order to show relevant harm by way of damage or impairment to the court process by non-disclosure, “it must be shown that the documents or information are, or are likely to be, material in the sense that there are concrete grounds to believe that disclosure of the documents or information would materially assist given the nature of the issues in the proceedings”: Commissioner of Police v Attorney-General for NSW [2022] NSWSC 595 at [59] (Wright J).

60    Thirdly, it is convenient to take the different categories of information subject to the disputed PII claims in turn. I start by noting that items 1 to 19 comprise the material that was before the Minister in relation to the issue of the four certificates, i.e., the Ministerial briefs and attachments.

(1)    Material the subject of the contested PII claims contained in the Ministerial Submissions seeking the First, Second, Third and Fourth Certificates (items 1, 6, 11, and 17): The material the subject of the contested PII claims in these items contain descriptions by ASIO of the documents which are proposed to be certificated, and advice by ASIO to the Minister on why disclosure of the certificated documents would prejudice security. As the Director-General submitted, the material the subject of the contested PII claims is merely a subset of information (being the underlying schedule of certificated documents, and the certificated documents themselves) that will be available to the Full Court in assessing the applicant’s challenge to the reasonableness of the certificates. Having seen that information, I agree with the Director-General that the material the subject of the contested PII claims is unlikely to materially assist the applicant in establishing its unreasonableness grounds on appeal.

(2)    The complete CSOG for the adverse security assessment prepared by ASIO with respect to the applicant (items 16 and 28, also reproduced in attachments to items 5 and 29): Mr Cornwell explains that all of the information in the CSOG which is not the subject of the Third Certificate (MINSUB 022/22) dated 21 April 2022 has been disclosed to the applicant in the USOG. As both PII and s 46(2) claims have been made over the CSOG, the Director-General submits that refusing the PII claim will only reveal the volume and location of the remaining redactions (made under s 46(2)) to the applicant, without making any of that material available to the applicant. I agree. For this reason, this material is not likely to assist the applicant in establishing that the decision to issue the four certificates is legally unreasonable.

(3)    Ministerial Submission 040/21 (items 5 and 29): As the Director-General submitted, this material related to the Director-General’s adverse security assessment with respect to the applicant and to the Minister’s decision to withhold information in the CSOG under s 38A(3) of the ASIO Act. As it did not relate to the Minister’s decisions to issue the four certificates under ss 39A and 39B of the AAT Act, it is not likely to be material to the applicant’s claim that those decisions are invalid on the ground that they were legally unreasonable. This is so even though it was attached to MINSUB 098/21 relating to the first certificate by way of background, and MINSUB 099/21 seeking partial revocation of the previous non-disclosure certificate under s 38A(3) of the ASIO Act.

(4)    The material the subject of the challenged PII claims with respect to items 20-29 comprise duplicates of documents already addressed in my reasons above and therefore raise no separate issues for consideration.

61    Finally, having inspected the material, I am confirmed in the view that this is not a case where the information is likely to materially assist the applicant on an identified issue in the proceedings. Nor is this a case where upholding the contested PII claims would mean that the applicant’s challenge to the First, Second, Third and Fourth Certificates was doomed to fail.

5.    CONCLUSION

62    For the reasons set out above, I have concluded that:

(1)    there is a real risk that serious harm would be done to national security were the material subject to the contested PII claims to be disclosed; and

(2)    the material subject to the contested PII claims is not of sufficient relevance to establish that the administration of justice would be frustrated or impaired by its non-disclosure.

63    Having reached these conclusions, there is no further balancing exercise to be undertaken. I have no discretion. As Gibbs CJ observed in Alister at 412:

The final step in this process – the balancing exercise – can only be taken when it appears that both aspects of the public interest do require consideration – i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider 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.

64    It follows that the Director-General’s contested PII claims have been established.

Associate:

Dated:    5 June 2026