Federal Court of Australia

Lehrmann v Commonwealth Special Minister of State [2026] FCA 1637

ORDERS

THE COURT ORDERS THAT:

1.    The Second Respondent’s claim for public interest immunity over the portions of the document outlined in Annexure A to these Orders be upheld.

2.    The Second Respondent be excused from producing, pursuant to the subpoena issued by the Applicant on 14 May 2026, those parts of the document outlined in Annexure A to these Orders on the basis that the Second Respondent’s claims for public interest immunity are upheld.

3.    Costs be reserved.

4.    If the parties do not reach an agreed position in relation to the costs of the Second Respondent’s interlocutory application filed on 3 June 2026:

(a)    the Second Respondent should file and serve submissions in relation to costs, not exceeding two pages in length, by 16 November 2026; and

(b)    the Applicant should file and serve submissions in relation to costs, not exceeding two pages in length by 23 November 2026.

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

Annexure A

REASONS FOR JUDGMENT

MARKOVIC J:

1    On 4 September 2025 Bruce Lehrmann commenced this proceeding by filing an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) and/or s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). He seeks relief in the form of declarations, a writ of mandamus and an injunction in relation to his then outstanding application for legal financial assistance made in accordance with Appendix E (which applied at the time) of the Legal Services Directions 2017 (Cth) (financial assistance application) in connection with two investigations being conducted by the National Anti-Corruption Commission (NACC). The respondents to the proceeding are the Commonwealth Special Minister of State and the Commissioner of the NACC.

2    On 14 May 2026, on the application of Mr Lehrmann, a subpoena to produce documents was issued to the Commissioner. Among other things the subpoena sought production of a “blue Moleskine branded personal diar[y] of” Mr Lehrmann “seized by the NACC on 5 June 2024” (Blue Diary).

3    On 22 May 2026 the Commissioner produced the documents sought by the subpoena save for the Blue Diary. The Commissioner objected to production of the Blue Diary on the basis that it contains information that is subject to a claim for public interest immunity (PII).

4    The Commissioner subsequently produced a redacted copy of the Blue Diary to the Court, with redactions over parts of the Blue Diary (on pages 9 and 29-35) over which he claimed PII. The Commissioner contended that was because those parts of the Blue Diary form part of, or record, Cabinet processes.

5    Mr Lehrmann pressed for production of the whole of the Blue Diary. Accordingly, on 3 June 2026 the Commissioner filed an interlocutory application by which he seeks an order that his claims for PII, which over a period have reduced to and are now limited to portions of pages 9 and 30 of the Blue Diary, be upheld and that he be excused from producing those parts of the Blue Diary (in original and copy form) in answer to the subpoena.

background facts

The NACC investigations

6    Mr Lehrmann has been involved in two investigations commenced by the NACC. They are:

(1)    Operation Greenough which is an investigation into whether appointees of the Australian Federal Police (AFP) engaged in conduct that constituted or involved the misuse of official information which was acquired by them in the course of AFP Operation Covina, the investigation of the alleged sexual assault of Brittany Higgins; and

(2)    Operation Ivanhoe which is an investigation into whether Mr Lehrmann misused official information, which he describes as “French submarine secrets”, within the meaning of s 8(1)(d) of the National Anti-Corruption Commission Act 2022 (Cth) (NACC Act).

7    On 5 June 2024, as part of the investigations and pursuant to a search warrant, the AFP seized documents from Mr Lehrmann’s premises, including the Blue Diary.

8    On 22 and 23 October 2024 Mr Lehrmann appeared at a NACC hearing before the Commissioner.

9    On 22 October 2025, after commencement of this proceeding, a delegate of the Special Minister informed Mr Lehrmann that the Special Minister had decided not to approve his financial assistance application.

10    On 12 October 2026 the Acting Deputy Commissioner of the NACC informed Mr Lehrmann that “the former Commissioner decided to take no further action concerning the investigation in Operation Ivanhoe under section 41 of the NACC Act” and that the “the investigation into that matter has now come to an end”. However, the investigation in Operation Greenough is ongoing.

The Commissioner’s PII claim

11    In support of his PII claim the Commissioner relies on the affidavit of Branko Ananijevski, Assistant Secretary of the Cabinet Governance and National Security Branch in the Cabinet Division of the Department of the Prime Minister & Cabinet (PM&C) affirmed on 2 July 2026. Mr Ananijevski, who has been in his current role since 3 March 2025, is responsible for managing the work of the Cabinet Governance and National Security Branch in the Cabinet Division. This includes managing the delivery of a range of Cabinet functions, including support for the National Security Committee of Cabinet and Cabinet information access. His responsibilities include sitting in as an official note-taker in Cabinet meetings.

12    I set out below a summary of Mr Ananijevski’s evidence.

The Cabinet Division in PM&C

13    PM&C is the Commonwealth Department with responsibility for Cabinet matters: it maintains Cabinet records for the current government; preserves Cabinet records of previous governments; and supports and maintains the integrity of the Cabinet process.

14    The Cabinet Division within PM&C is responsible for providing continuity and impartial support for Cabinet operations at the centre of the Australian Government. It is staffed and managed by officers of PM&C and its role is to support the Prime Minister, the Cabinet Secretary and the chairs of Cabinet committees in ensuring that government business is conducted in an effective and timely way, and that proper collective consideration takes place.

15    The Cabinet Division is responsible for organising all facets of Cabinet and Cabinet Committee meetings including overseeing the preparation and finalisation of, Cabinet documents, including Cabinet submissions, minutes, attachments, papers and presentations. It is also responsible for the management of Cabinet records which include Cabinet submissions, Cabinet memoranda, matters without submission and Cabinet minutes or decisions. Cabinet notebooks are also held within the Cabinet Division.

Confidentiality in the Cabinet process

16    Mr Ananijevski explains that there is a longstanding convention that deliberations and discussions within Cabinet remain confidential which is reflected in Commonwealth legislation such as the Freedom of Information Act 1982 (Cth) and the Archives Act 1983 (Cth). In his experience in the conduct of the policy debate that occurs as part of the Cabinet process, Ministers rely heavily on the convention that their views, either written or spoken, will remain confidential until relevant records enter the “open access period” as defined by s 3 of the Archives Act. This convention allows Ministers to enjoy complete freedom to explore all policy options without the need to temper their comments or views and the executive to contest policy ideas in a highly confidential manner.

17    According to Mr Ananijevski if the confidentiality of Cabinet deliberations was undermined, the process of decision-making and policy development would be substantially impaired. The confidence of current Ministers in the confidentiality of the Cabinet process would be undermined if the details of past Cabinet deliberations were disclosed prior to the open access period provided for in the Archives Act. Such disclosure would risk harm because, among other things, Cabinet members may not speak honestly and robustly between themselves and may be more likely to hold back any views that may be unpopular or perceived to be embarrassing.

18    Mr Ananijevski also explains that the principles he describes in his affidavit and risk of harm summarised above apply equally to information created as part of the Cabinet process. Disclosure of that type of information would allow reliable inferences to be drawn about what matters were discussed or views were likely to have been expressed by individual Ministers in Cabinet. He illustrates this by reference to an example: if a document prepared for Cabinet consideration which reveals two potential costings is presented to a Minister to take to Cabinet is disclosed and thereafter, work on only one costing option is progressed, a reliable inference could be drawn that Cabinet rejected the other costing option. According to Mr Ananijevski disclosure of information of this kind would undermine Cabinet decision-making and policy development substantially as it may impede candid discussions on challenging policy options.

The Blue Diary

19    Mr Ananijevski has reviewed an electronic scan of the Blue Diary and considers that parts of it contain Cabinet information which, if disclosed, would or could reasonably be expected to, prejudice the effective and proper functioning of Cabinet.

20    Mr Ananijevski gives the following evidence about the redacted part of page 9 of the diary:

(1)    based on the heading and date of the entry on this page, it is apparent that the entry contains information relating to a committee of Cabinet’s consideration of that particular topic on that particular date;

(2)    based on the date referred to in the heading of page 9, he has identified that the named committee of Cabinet did meet on that date. Mr Ananijevski has reviewed the submissions considered by the committee of Cabinet on that date and identified that the information on page 9 of the Blue Diary corresponds with a submission which was considered on that date; and

(3)    based on his review of the Cabinet submission presented to the committee of Cabinet, it appears to Mr Ananijevski that the entry on page 9 summarises the contents of the Cabinet submission.

21    In Mr Ananijevski’s view, disclosure of the information on page 9 of the Blue Diary would reveal the contents of the Cabinet submission considered by a committee of Cabinet on the date referred to, would allow inferences to be drawn about options that were considered and could also reveal the content of what was rejected or endorsed by Cabinet by comparison to the policy which was subsequently implemented. In summary, Mr Ananijevski says that in his view disclosure of that information would have the effect of revealing the confidential deliberations of a Cabinet committee.

22    Mr Ananijevski says that the single redacted line on page 30 of the Blue Diary details a decision of Cabinet in relation to specific costings which remain confidential and that their disclosure would reveal the confidential decisions of Cabinet which have already been taken. He concludes that the disclosure of this information would also undermine Cabinet confidentiality as explained above.

legal principles

23    As the PII claim is made in response to production in answer to a subpoena, the common law applies (rather than the Evidence Act 1995 (Cth)).

24    The applicable principles were not in dispute. They were summarised by the respondents.

25    PII is an immunity from production of documents or disclosure of information, where production or disclosure would be against the public interest. The claim may be made by a person who is not a party to the proceeding. Indeed, the Court itself may be obliged to prevent disclosure of a document even though no PII claim has been made, if it is clear that disclosure may result in serious injury to the national interest: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 44 (Gibbs ACJ). Further, PII cannot be “waived” by the Crown or anyone else: see Young v Quin [1985] FCA 18; (1985) 4 FCR 483 at 486 (Bowen CJ).

26    In Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 Gibbs CJ set out the test to apply when determining whether to allow a claim for PII as follows at 412:

Sankey v Whitlam establishes that 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 — ie, 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.

27    Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 was an appeal brought by the Attorney-General against rulings made by a magistrate in the course of rejecting a claim for PII asserted by the Attorney-General in answer to parts of a subpoena served by the respondent on the Commissioner of Police. Hunt CJ at CL observed at 675-6:

Where a claim of public interest immunity is made, the judge (or magistrate) is required to consider two conflicting aspects of the public interest:

(i)    whether harm would be done by the production of the documents, and

(ii)    whether the administration of justice would be frustrated or impaired if the documents are withheld,

and to decide which of those aspects predominates in the particular case.

This balancing exercise can only be undertaken when it appears that (a) damage would be done to the public interest by producing the documents sought or documents of that class, and (b) there are or are likely to be documents which contain material which is relevant to the issues raised in the proceedings: Sankey v Whitlam (at 38-39); Alister v The Queen (at 412). This latter issue encompasses what has become known as the legitimate forensic purpose for the party’s desire to have access to the documents: Maddison v Goldrick [1976] 1 NSWLR 651 at 666; R v McPhail (1988) 36 A Crim R 390 at 404; R v Saleam (1989) 16 NSWLR 14 at 18; it involves the need to prevent a fishing expedition in the hope of catching something worthwhile to the defence case: Burmah Oil Co Ltd v Governor and Company of the Bank of England (at 1129); Alister v The Queen (at 414, 455).

28    As is apparent and as the respondents submit, the consideration of a claim for PII involves three steps: first, establishing that there is a sound basis for the claim of immunity; secondly, determining whether the evidence that the party seeking production seeks to obtain is 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 proceeding; and thirdly, balancing the competing interests of the first and second steps.

29    Where a claim for PII is upheld, the documents or information need not be produced or disclosed to the Court and the documents or information are not available to be, and cannot be, adduced in evidence or relied upon by the Court: see HT v The Queen [2019] HCA 40; (2019) 269 CLR 403 at [29] (Kiefel CJ, Bell and Keane JJ, Nettle and Edelman JJ agreeing at [55]), [71] (Gordon J).

disposition

30    Mr Lehrmann submits that the Blue Diary is his personal diary, that only he would wish to see its contents and that was the case until it was seized upon execution of the search warrant. Mr Lehrmann also submits that Mr Ananijevski is a note taker, a position he has only held since 2022, and if the Commissioner is making a claim for PII, the best evidence on which he could rely, and which he should have provided in a confidential affidavit, was the actual Cabinet notes.

31    Mr Lehrmann submits that if that was not possible then the Commissioner could have obtained evidence from the former Minister for Defence, the Hon Linda Reynolds, as to whether the redacted passages on pages 9 and 30 of the Blue Diary actually reflected or recorded what was discussed at a Cabinet meeting.

32    Mr Lehrmann also submits that he never attended a Cabinet meeting in the time he held the position of adviser and that a note by a person who was not in the room cannot record what was deliberated upon at a meeting. He contends that the notes in the Blue Diary are at most a second-hand account, which record what others told him. They are not Cabinet minutes or a submission and do not engage the rationale of collective ministerial responsibility.

33    Mr Lehrmann submits that the Blue Diary was written when he served a Minister in the Defence and Home Affairs portfolios, neither of those Departments, having reviewed the entries, make a PII claim, nor does the NACC or the Hon Ms Reynolds. Only PM&C makes such a claim. That submission can be addressed shortly. The PII claim is made by the Commissioner supported by evidence given by a public servant and employee of PM&C who, in light of the nature of the information the subject of the claim, has the appropriate experience and qualifications to give the evidence.

34    Finally, Mr Lehrmann submits that the entries in the Blue Diary date from 2019 and nothing in them could concern a matter that remains current or controversial, particularly given the change in government.

35    As set out above and as is apparent from Mr Ananijevski’s evidence, the Commissioner’s PII claim over parts of pages 9 and 30 of the Blue Diary is made on the basis that those entries contain Cabinet or Cabinet related material.

36    The Commissioner says that his claim is made on two bases: first, as a “class claim”; and secondly, as a “contents claim”: see Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1111-2 (Lord Wilberforce). Insofar as the claim is made as a “class claim” that is because the information falls within an identifiable class, Cabinet documents, which prima facie attracts PII and insofar as the claim is made as a “contents claim” that is because the Blue Diary is said to contain sensitive information.

37    Putting that to one side, the first step in determining the Commissioner’s PII claim is to establish that there is a sound basis for the claim of immunity or put another way, whether harm would be done to the public interest by disclosure of the information in question.

38    As the Commissioner submits, Cabinet documents (and information disclosed or discussed in Cabinet meetings) have long been regarded as a quintessential example of material in relation to which there is a strong public interest in non-disclosure. In Sankey v Whitlam Gibbs ACJ observed at 39-40 that:

An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document. In the present case no suggestion has been made that the contents of any particular documents are such that their disclosure would harm the national interest. The claim is to withhold the documents because of the class to which they belong. Speaking generally, such a claim will be upheld only if it is really necessary for the proper functioning of the public service to withhold documents of that class from production. However, it has been repeatedly asserted that there are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words that the law recognizes that there is a class of documents which in the public interest should be immune from disclosure. The class includes cabinet minutes and minutes of discussions between heads of departments … , papers brought into existence for the purpose of preparing a submission to cabinet … , and indeed any documents which relate to the framing of government policy at a high level …

…

Of course, the object of the protection is to ensure the proper working of government, and not to protect ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal.

See too at 97-8 per Mason J.

39    In Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 617 a majority of the High Court (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) relevantly said at 617-618:

Where, however, a document clearly falls within a class which attracts immunity, a different approach is called for. Documents recording Cabinet deliberations upon current or controversial matters, such as the records in question in this case, are an example. Obviously, there are extremely strong considerations of public policy weighing against their production regardless of how significant disclosure of their contents might be to the case of one side or the other in the proceedings in which the claim for immunity is raised. However, as we have said, the immunity which membership of the class confers is not absolute and that is so even if, as in the case of records of Cabinet deliberations, the highest degree of protection against disclosure is warranted. Nevertheless, where it is established that a document belongs to a class which attracts immunity, a court will lean initially against ordering disclosure. …

    (Footnotes omitted.)

40    Mr Ananijevski is an experienced public official. I accept that he has the qualifications and capacity to assess and quantify the risks associated with disclosure of the material the subject of the Commissioner’s PII claim. There may well have been other witnesses or evidence on which the Commissioner could have relied to establish his PII claim. However, he chose to rely on Mr Ananijevski. Mr Lehrmann’s submissions as to the alternate or, as he put it, “best evidence” go nowhere.

41    Mr Ananijevski considers that confidentiality in the cabinet process is an “essential underpinning of successful Cabinet Government” and he explains that Ministers rely heavily on the convention that their views will remain confidential until relevant records enter the open access period. Mr Ananijevski also says that it “is only with confidence in this convention that Ministers can enjoy complete freedom to explore all policy options without the need to temper their comments or views” and that, without this protection, the process of decision-making and policy development would be substantially impaired.

42    Mr Ananijevski has reviewed the parts of the Blue Diary over which a PII claim is made because it discloses Cabinet material or information. His evidence in relation to that review is summarised at [19]-[22] above. In short, he is satisfied that those parts of the Blue Diary respectively contain the considerations of a Cabinet committee and a Cabinet decision and that disclosure of that material would result in a breach of Cabinet confidentiality. He considers that if the information in those parts of the Blue Diary were disclosed, that disclosure could reasonably be expected to prejudice the effective and proper functioning of government.

43    Whether Mr Lehrmann attended a Cabinet meeting is not to the point, nor is the fact that the Blue Diary is Mr Lehrmann’s personal diary and records his notes. It is the nature of the information over which the PII claim is made that is relevant. Mr Ananijevski deposes to that aspect of the redacted parts of pages 9 and 30 of the Blue Diary.

44    Returning to the classification of the claim, classification of the material in the Blue Diary as either a “class claim” or a “contents claim” is not controversial. It is clear from the reasoning of the High Court in Commonwealth v Northern Land Council (see above at [39]) that documents recording Cabinet deliberations fall within a class which attracts immunity. I also am satisfied, based on Mr Ananijevski’s evidence, that the parts of the Blue Diary over which PII has been claimed contain sensitive information, disclosure of which could be injurious to the public interest.

45    Based on those matters I am satisfied that harm would be done if the material at pages 9 and 30 of the Blue Diary was disclosed and that therefore there is a compelling public interest against disclosure.

46    The next question that arises is whether there are strong grounds to believe that disclosure of the information would materially assist Mr Lehrmann, given the issues in the proceeding.

47    To consider that question, it is necessary to identify the issues in the proceeding. In his originating application Mr Lehrmann challenges the decision by the Special Minster for legal funding which, at the time the originating application was filed, had not yet been made. Mr Lehrmann seeks declarations that he is eligible for legal funding in relation to costs incurred in compliance with the NACC investigations, that the Commonwealth unreasonably delayed a grant of funding and denied him procedural fairness through the NACC process, a writ of mandamus compelling the Special Minister and the Commissioner to “determine or redetermine and provide legal funding lawfully” and an injunction restraining the Special Minister and the Commissioner from maintaining or enforcing a refusal of funding “inconsistent with the NACC’s acknowledgment of eligibility and this Court’s declarations”.

48    Mr Lehrman has not demonstrated the public interest in the disclosure of the parts of the Blue Diary that are the subject of the Commissioner’s PII Claim. He has not explained how those parts of the Blue Diary are materially relevant, let alone relevant, to his claims made in his originating application as presently framed or to the Court’s determination of the question of validity of the decision made in relation to the financial assistance application.

49    It follows that Mr Lehrmann has not established that disclosure of the information would materially assist him in the proceeding and thus that the administration of justice would be frustrated or impaired if the documents were withheld. That being so, it is not necessary for me to undertake the third identified step, namely the balancing exercise (see [28] above).

50    The Commissioner’s PII claim over the redacted parts of pages 9 and 30 of the Blue Diary must be upheld.

conclusion

51    As the Commissioner’s PII claim is to be upheld I will make the orders sought by the Commissioner in his interlocutory application filed on 3 June 2026, namely that the Commissioner’s claim for PII over the redacted passages appearing at pages 9 and 30 of the Blue Diary be upheld and, to the extent necessary, the Commissioner is excused from producing in answer to the subpoena, those parts of the Blue Diary appearing at pages 9 and 30 on the basis that his claim for PII over those parts of the Blue Diary are upheld.

52    The Blue Diary, which was produced to the Court and is held in a sealed envelope, will be returned to the Commissioner.

53    The parties requested that I reserve on the question of costs of the Commissioner’s interlocutory application. If the parties cannot agree on that question, the Commissioner and Mr Lehrmann should each file and serve submissions, not exceeding two pages in length, on the costs of the interlocutory application by 14 and 21 days respectively. Unless either party requests an oral hearing, the question of costs of the interlocutory application will be determined on the papers.

Associate:

Dated:    2 November 2026