A claim for public interest immunity must be supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for maintaining secrecy

For a lesson in how not to run a claim for public interest immunity, see the judicial critique of the woeful effort in Holloway v Commonwealth of Australia [2016] VSC 317.  Since succeeding in a claim for public interest immunity in WA v Christie (2005) 30 WAR 514, I’ve argued many of these cases.   There are some basic lessons here:

  1. the deponent of your affidavit in support should read the all the documents the claim relates to ([19]);
  2. the basis of redactions should be explained if it is not self-evident ([22])
  3. distinctions between reasons for redaction should be indicated ([55]); and, above all,
  4. your claims should be consistent and not over material already in the public domain: [130].

The case can be found in JADE: https://jade.io/article/480393

A duty to protect one’s client from incurring unnecessary legal expenses?

Yes, a lawyer has a duty to advise and protect a client against unnecessary expense – including the unnecessary expense of instructing the lawyer to do legal work that is “entirely disproportionate to the complexity of the case and the nature of the matters in issue in the proceedings:  Judge O’Brien of the Family Court of Western Australia in Taronite and Mabra (Costs) [2017] FCWA 72, [103]-[108].  In this case  the parties spent in excess of $570,000 in legal fees.  See the case in Jade at https://jade.io/article/533469

Privilege does not protect lawyer-client communications when the client is engaged in fraud, even if the lawyer is unaware

Lawyers beware!  Client legal privilege does not protect communications that were made in furtherance of an illegal scheme, even where the lawyers are unaware of the illegal scheme being pursued by their clients.

In Aucare Dairy Pty Ltd v Huang [2017] FCA 746 O’Callaghan J of the Federal Court considered the authorities and noted that they show illegality to include “fraud on justice” and conduct that would “frustrate the processes of the law”.

On the facts of this case, the Court was satisfied that the applicants had established a strong prima facie case that the respondents engaged in wrongful and fraudulent conduct contrary to various legal duties.  The respondents had to produce communications with their solicitors.

The Jade report is at https://jade.io/article/539836

State Tribunal unable to adjudicate on allegation of vilification by resident of another state due to limits on “diversity jurisdiction”

The NSW Court of Appeal held in February 2017 that the NSW Anti-Discrimination Board does not have jurisdiction to deal with complaints by a NSW resident about public acts by residents of other states.  The State tribunal is not a “court of a State” and so is unable to exercise judicial power to determine matters between residents of two States because the State law which purports to authorise the tribunal to do so is inconsistent with the conditional investment by s 39(2) of the Judiciary Act of all such jurisdiction in State courts, and therefore rendered inoperative by virtue of s 109 of the Constitution.

See the report of Burns v Corbett; Gaynor v Burns [2017] NSWCA 3; (2017) 316 FLR 448 in Jade: https://jade.io/article/519810

The High Court granted special leave on 22 June 2017: http://www.hcourt.gov.au/assets/registry/special-leave-results/2017/22-06-17Determin.pdf

ASIO Security Assessment quashed: Federal Court says that ASIO procedures led to practical injustice

Back in 2005, in Leghaei v Director-General of Security [2005] FCA 1576, the Federal Court said that in the national security area the content of procedural fairness can be reduced to nothingness. Then in 2015 the Full Federal Court said that ASIO did not breach its obligation to provide procedural fairness despite not providing Mr Jaffarie with all the non-sensitive information that it could have provided: Jaffarie v Director-General of Security [2014] FCAFC 102.

Given this background, and the limited number of decisions on the subject of security assessments, it is noteworthy that Justice Wigney recently set aside an adverse security assessment on the basis not of a single clear breach, but of the cumulative effect of 8 aspects of ASIO’s procedure. His Honour found that as a result of ASIO’s procedures Mr El Ossman lost the practical opportunity to propound his case for a favourable assessment, and that this amounted to practical injustice. See El Ossman v Minister for Immigration and Border Protection [2017] FCA 636. The JADE report is here.


On 11 July 2017, the Full Federal Court again quashed an adverse security assessment given by the Director-General of Security (ASIO) to the Minister for Immigration recommending that a visa not be granted.  This decision was BSX15 v Minister for Immigration and Border Protection [2017] FCAFC 104.  As with El Ossman, the Full Court quashed the assessment on the basis that ASIO did not, in the manner it conducted its interviews with BSX15, afford him procedural fairness.  Specifically, its questioning did not bring to the attention of BSX15 the specific issue of concern in a manner that would have allowed him to make meaningful submissions in response: [42]-[60].  The JADE report is https://jade.io/article/540592

It is also salient to note that the Full Court in BSX15 (at [48]) said that the primary judge was correct to conclude that in circumstances where public interest immunity applies for the purposes of the protection of the national interest, it is sufficient for a relevant issue to be raised with an applicant at a level of generality.  However, their Honours said that in each case the level of generality will depend on the balance between the obligation to afford procedural fairness and the interests of national security.

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