Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25 (19 November 1982)

CATCHWORDS

HEARING

DECISION

2. Paragraphs 1 to 5 inclusive of the statement of claim identify the parties. The first-named plaintiff is an association duly incorporated under the laws of South Australia in 1969. It is and at all material times has been a religious organization engaged in the practice, promotion, propagation, teaching and application of the Scientology religion. The second-named plaintiff is a member of the first-named plaintiff and a practising adherent of the Scientology religion, and he sues on his own behalf and on behalf of all of the other members of the first-named plaintiff. (at p27)

3. The defendants are the Director-General of Security, who has the control of the Australian Security Intelligence Organization ("ASIO"); the Attorney-General, who is the Minister of State responsible for ASIO; and the Commonwealth of Australia. (at p27)

4. Two enactments of the Parliament of the Commonwealth are material to the allegations of the plaintiffs. The Australian Security Intelligence Organization Act 1956 ("the 1956 Act") continued in existence "the Australian Security Intelligence Organization", being "the Organisation established in pursuance of a directive given by the Prime Minister" on 16 March 1949 (s. 4(1)), and provided for its operation. This Act was repealed as from 1 June 1980 by the Australian Security Intelligence Organization Act 1979 ("the 1979 Act"), which again continued ASIO in existence, and made rather more elaborate provisions for its operation. (at p27)

5. I think it will be sufficient for the purpose of understanding these reasons if I indicate in summary form the substance of the allegations in the statement of claim. Having in pars. 6, 6A and 6B described the functions of ASIO and the Director-General by reference to the two statutes which I have mentioned, the plaintiffs in effect allege (in pars. 7 and 7A) that the Director-General, both prior to and subsequent to 1 June 1980, (a) caused ASIO to obtain correlate and evaluate initial intelligence concerning the plaintiffs and to communicate such initial intelligence to other persons; (b) caused ASIO to continue in such activity notwithstanding that the initial intelligence established or should have established that it was not relevant to security; and (c) caused ASIO to characterize the plaintiffs as security risks and communicated that characterization to other persons. Paragraphs 8 and 8A deny that either of the plaintiffs satisfied the characterization to which I have referred, and in pars. 9 and 9A it is asserted that by reason of the provisions of the 1956 Act and the 1979 Act respectively and of s. 70 of the Crimes Act 1914, ASIO is prohibited from continuing to obtain, correlate evaluate and communicate such intelligence unless the characterization is true. Paragraph 10 advances an additional or alternative ground of claim, namely, that in causing ASIO to undertake the conduct referred to the Director-General or alternatively the Attorney-General purported to exercise the executive power of the Commonwealth pursuant to s. 61 of the Constitution, and that the executive power does not authorize such conduct. (at p28)

6. It is alleged in par. 11 that the conduct of continuing to gather intelligence concerning the plaintiffs and of communicating it to other persons was and is unlawful, and in par. 11A that the Director-General has failed to comply with the terms of s. 20 of the 1979 Act, a section which I shall set out in full later in these reasons. (at p28)

7. It is also alleged, further or alternatively, that if and in so far as the 1956 Act and the 1979 Act did authorize the alleged conduct then in each case the Act was a law for prohibiting the free exercise of any religion and was therefore invalid by reason of s. 116 of the Constitution (pars. 12, 12A). Paragraph 13 asserts that the plaintiffs have locus standi to bring the action as they have suffered special damage peculiar to themselves as a result of the conduct alleged. The damage is not particularized. Paragraph 14 is directed to establishing that the matter is one in which the Court has original jurisdiction. (at p28)

8. It will be convenient to conclude this review of the statement of claim by setting out in full the relief that is claimed by the plaintiffs. It is as follows:

"AND THE PLAINTIFFS CLAIM:

A. (i) A Declaration that prior to 1st June 1980 ASIO was prohibited from continuing to obtain, correlate and evaluate intelligence other than intelligence relevant to security within the meaning of the 1956 Act, after initial enquiries established or ought to have established that such intelligence was not relevant to security within the meaning of the 1956 Act.

(ii) A Declaration that prior to 1st June 1980 ASIO was prohibited from communicating any intelligence to any person other than intelligence relevant to security within the meaning of the 1956 Act;

(iii) A Declaration that prior to 1st June 1980 ASIO was prohibited from communicating the fact that ASIO had characterised persons as persons in respect of whom the Commonwealth and the Territories needed protection from acts of espionage, sabotage or subversion unless such characterisation was true;

(iv) A Declaration that prior to 1st June 1980 after initial enquiries established or ought to have established that such intelligence was not relevant to security within the meaning of the 1956 Act, the continued obtaining, correlating and evaluating of intelligence by ASIO concerning the plaintiffs and the other members of the firstnamed plaintiff was unlawful;

(v) A Declaration that prior to 1st June 1980 intelligence concerning the plaintiffs and the other members of the firstnamed plaintiff other than intelligence that they were not persons in respect of whom the Commonwealth and the Territories need protection from acts of espionage, sabotage, or subversion could not be communicated to any person;

(vi) A Declaration that prior to 1st June 1980 the communication of information by ASIO to the effect that the plaintiffs and the members of the firstnamed plaintiff were persons in respect of whom the Commonwealth and the Territories needed protection from acts of espionage, sabotage or subversion was unlawful;

(vii) A Declaration that prior to 1st June 1980 the executive power of the Commonwealth did not authorise the acts alleged in paragraph 7(b) and (c) hereof.

B. (i) A Declaration that ASIO is prohibited from continuing to obtain, correlate and evaluate intelligence other than intelligence relevant to security within the meaning of the 1979 Act, after initial enquiries have established or ought to have established that such intelligence is not relevant to security within the meaning of the 1979 Act.

(ii) A Declaration that ASIO is prohibited from communicating any intelligence to any person other than intelligence relevant to security within the meaning of the 1979 Act, and information relating to the offences and matters specified in section 18(3) of the 1979 Act.

(iii) A Declaration that ASIO is prohibited from communicating the fact that ASIO has characterised persons as persons in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention and terrorism or who have committed or intend to commit the said offences unless such characterisation is true;

(iv) A Declaration that after initial enquiries have established or ought to have established that such intelligence is not relevant to security within the meaning of the 1979 Act, the continued obtaining correlating and evaluating of intelligence by ASIO concerning the plaintiffs and the other members of the firstnamed plaintiff is unlawful;

(v) A Declaration that intelligence concerning the plaintiffs and the other members of the firstnamed plaintiff other than intelligence that they are not persons in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism may not be communicated to any person;

(vi) A Declaration that the communication of information by ASIO to the effect that the plaintiffs and the members of the firstnamed plaintiff are persons in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism, or who have committed or intend to commit the said offences, is unlawful;

(vii) A Declaration that the executive power of the Commonwealth does not authorise the acts alleged in paragraph 7A(b) and (c) hereof.

C. An injunction restraining the defendants from causing or permitting ASIO from continuing to act as alleged in paragraph 7A(b) and (c) hereof.

D. An order commanding the firstnamed defendant to perform his duty under section 20 of the 1979 Act by taking all reasonable steps to ensure that the work of ASIO is limited to what is necessary for the purposes of the discharge of its functions and that ASIO is kept free from any influences or considerations not relevant to its functions and that nothing is done that might lend colour to any suggestion that ASIO is concerned to further or protect the interests of any particular section of the community or with any matters other than the discharge of its function.

E. A Declaration that if and insofar as the 1956 Act did empower the firstnamed defendant to act as alleged in paragraph 7(b) and (c) hereof, the said Act was a law for prohibiting the free exercise of any religion and was beyond the powers of the Commonwealth by reason of the provisions of section 116 of the Constitution.

F. A Declaration that if and insofar as the 1979 Act does empower the firstnamed defendant to act as alleged in paragraph 7A(b) and (c) hereof, the said Act is a law for prohibiting the free exercise of any religion and is beyond the powers of the Commonwealth by reason of the provisions of section 116 of the Constitution.

G. Such further or other relief as to the Court seems meet." (at p30)

9. The primary contention of the defendants on this application is that the statement of claim does not disclose a reasonable cause of action for the reason that on their proper construction each of the Acts in question evinces a legislative intent to shield the conduct of ASIO from judicial review. (at p31)

10. I am fully conscious, as I embark on a consideration of the application, of the principles governing the jurisdiction summarily to terminate an action. Those principles are well established. It is sufficient to refer to the observations of Barwick C.J. in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125, at pp 129-130, 137-138 and to those of Dixon J. in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, at pp 91-92 . Mr. Castan, counsel for the plaintiffs, argues that the case involves difficult and real issues of law which ought not to be determined summarily. I agree that "great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal" but recognize also that "the exercise of the jurisdiction should" (not) "be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed": General Steel Industries (1964) 112 CLR, at p 130 . (at p31)

11. With these considerations in mind, then, I turn to the primary submission advanced for the defendants by Mr. Byers, the Solicitor-General for the Commonwealth. Its understanding and evaluation may conveniently begin with an examination of the material provisions of the 1979 Act, which I now set out:

"4. In this Act, unless the contrary intention appears -

. . .

'domestic subversion' means activities of the kind to which sub-section 5(1) applies;

. . .

'security' means -

(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from -

(i) espionage;

(ii) sabotage;

(iii) subversion;

(iv) active measures of foreign intervention; or

(v) terrorism,

whether directed from, or committed within, Australia or not; and

(b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the sub-paragraphs of paragraph (a);

'terrorism' includes -

(a) acts of violence for the purpose of achieving a political objective in Australia or in a foreign country (including acts of violence for the purpose of influencing the policy or acts of a government in Australia or in a foreign country);

(b) training, planning, preparations or other activities for the purposes of violent subversion in a foreign country or for the purposes of the commission in a foreign country of other acts of violence of a kind referred to in paragraph (a);

(c) acts that are offences punishable under the Crimes (Internationally Protected Persons) Act 1976; or

(d) acts that are offences punishable under the Crimes (Hijacking of Aircraft) Act 1972 or the Crimes (Protection of Aircraft) Act 1973.

5. (1) For the purposes of this Act, the activities of persons, other than activities of foreign origin or activities directed against a foreign government, that are to be regarded as subversion are -

(a) activities that involve, will involve or lead to, or are intended or likely ultimately to involve or lead to, the use of force or violence or other unlawful acts (whether by those persons or by others) for the purpose of overthrowing or destroying the constitutional government of the Commonwealth or of a State or Territory;

(b) activities directed to obstructing, hindering or interfering with the performance by the Defence Force of its functions or the carrying out of other activities by or for the Commonwealth for the purposes of security or the defence of the Commonwealth; or

(c) activities directed to promoting violence or hatred between different groups of persons in the Australian community so as to endanger the peace, order or good government of the Commonwealth.

. . .

PART II - THE ORGANIZATION AND THE DIRECTOR-GENERAL

6. The Australian Security Intelligence Organization, being the Organization that was continued in existence by the Acts repealed by this Act, is continued in existence.

7. (1) There shall be a Director-General of Security, who shall be appointed by the Governor-General and shall hold office, subject to this Act, on such terms and conditions as the Governor-General determines.

(2) Before a recommendation is made to the Governor-General for the appointment of a person as Director-General, the Prime Minister shall consult with the Leader of the Opposition in the House of Representatives.

8. (1) The Organization shall be under the control of the Director-General.

(2) In the performance of his functions under this Act, the Director-General is subject to the general directions of the Minister, but the Minister is not empowered to override the opinion of the Director-General -

(a) on the question whether the collection of intelligence by the Organization concerning a particular individual would, or would not, be justified by reason of its relevance to security;

(b) on the question whether a communication of intelligence concerning a particular individual would be for a purpose relevant to security; or

(c) concerning the nature of the advice that should be given by the Organization to a Minister, Department or authority of the Commonwealth.

. . .

PART III - FUNCTIONS AND POWERS OF ORGANIZATION

DIVISION 1 - GENERAL

17. (1) The functions of the Organization are - (a) to obtain, correlate and evaluate intelligence relevant to security;

(b) for purposes relevant to security and not otherwise, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes; and

(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.

(2) It is not a function of the Organization to carry out or enforce measures for security within an authority of the Commonwealth.

18. (1) The communication of intelligence on behalf of the Organization shall be made only by the Director-General or by an officer of the Organization acting within the limits of authority conferred on him by the Director-General.

(2) If a person makes a communication of any information or matter that has come to his knowledge or into his possession by reason of his being, or having been, an officer or employee of the Organization or his having entered into any contract, agreement or arrangement with the Organization, being information or matter that was acquired or prepared by or on behalf of the Organization in connection with its functions or relates to the performance by the Organization of its functions, other than a communication made -

(a) to the Director-General or an officer or employee of the Organization -

(i) by an officer or employee of the Organization - in the course of his duties; or

(ii) by a person who has entered into any such contract, agreement or arrangement - in accordance with the contract, agreement or arrangement;

(b) by an officer of the Organization, within the limits of authority conferred on him by the Director-General; or

(c) with the approval of the Director-General or of an officer of the Organization having the authority of the Director-General to give such an approval,

he is guilty of an offence.

(3) Notwithstanding paragraph 17(1)(b), the Director-General may, in accordance with the following paragraphs, by himself or by an officer authorized by him, communicate information that has come into the possession of the Organization in the course of performing its functions under section 17:

(a) where the information relates, or appears to relate, to the commission, or intended commission, of an offence against the law of the Commonwealth or of a State or Territory, being an offence punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years - the information may be communicated to an officer of the Police Force of a State or Territory or of the Commonwealth Police Force;

(b) where the information relates, or appears to relate, to the commission, or intended commission, of an offence punishable as provided by section 235 of the Customs Act 1901 - the information may be communicated to a person who is an officer of Customs for the purposes of the Customs Act 1901; or

(c) where the information has come into the possession of the Organization outside Australia or concerns matters outside Australia and the Director-General is satisfied that the national interest requires the communication - the information may be communicated to a Minister or Department or to the Office of National Assessments.

(4) An offence against sub-section (2) may be prosecuted either summarily or on indictment and the penalty for such an offence is -

(a) upon summary conviction - a fine not exceeding $1,000 or imprisonment for a term not exceeding 1 year; or

(b) upon conviction on indictment - imprisonment for a term not exceeding 2 years.

(5) A prosecution for an offence against sub-section (2) shall be instituted only by or with the consent of the Attorney-General.

. . .

20. The Director-General shall take all reasonable steps to ensure that -

(a) the work of the Organization is limited to what is necessary for the purposes of the discharge of its functions; and

(b) the Organization is kept free from any influences or considerations not relevant to its functions and nothing is done that might lend colour to any suggestion that it is concerned to further or protect the interests of any particular section of the community, or with any matters other than the discharge of its functions.

21. The Director-General shall consult regularly with the Leader of the Opposition in the House of Representatives for the purpose of keeping him informed on matters relating to security."

prejudicial to security."

"34. The Director-General shall furnish to the Minister in respect of each warrant issued under this Division a report in writing on the extent to which the action taken under the warrant has assisted the Organization in carrying out its function of obtaining intelligence relevant to security." (at p36)

12. Part IV deals with security assessments, and its salient features may be summarized as follows: (a) The functions of ASIO referred to in s. 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities (s. 37(1)). (b) A security assessment is a statement in writing furnished by ASIO expressing any recommendation, opinion or advice on the question whether it would be consistent with the requirements of security for "prescribed administrative action" to be taken in respect of a person, or whether it was necessary or desirable for such action to be taken (s. 35). (c) "Prescribed administrative action" means action which relates to or affects access by a person to any information or place, access to which is controlled or limited on security grounds, including action affecting the occupancy of any office under the Commonwealth or under a State or in the service of a Commonwealth contractor the occupant of which has or may have any such access. It also embraces the exercise of a power or performance of a function in relation to a person under the Migration Act 1958, the Australian Citizenship Act 1948, the Passports Act 1938, or the regulations thereunder (s. 35). (d) Whenever an adverse or qualified security assessment in respect of a person is furnished by ASIO to a Commonwealth agency, the agency shall within fourteen days inform that person by notice in writing of the making of the assessment and enclose a copy of the assessment. The assessment is accompanied by a statement which includes all the information that has been relied on by ASIO in making the assessment, other than information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security. Furthermore, the Attorney-General may certify that he is satisfied either that - (i) it is essential to the security of the nation that notice to a person of the making of a security assessment be withheld; or (ii) the disclosure to the subject of the accompanying statement or part thereof would be prejudicial to the interests of security, and in either case effect is to be given to the certificate (ss. 37, 38). (e) A person who has been given notice of an adverse or qualified security assessment may apply to the Security Appeals Tribunal (established by Div. 3 of Pt IV) for a review of the assessment (s. 54). The proceedings shall be in private; neither the applicant nor his representative shall be present when the Tribunal is hearing submissions or evidence from the Director-General or Commonwealth agency concerned, and the same rule applies to the Director-General and Commonwealth agency when the Tribunal is hearing submissions or evidence from the applicant (s. 58(6) and (7)). For the purpose of giving the applicant an opportunity of adducing further evidence, the Tribunal may give him such particulars of evidence adduced or submissions made by the Director-General as it considers can be so given consistently with the requirements of security, and before doing so it shall consult with the Director-General as to those requirements (s. 58(12) and (13)). (f) Other than an application to the Tribunal, no proceedings shall be brought in any court or tribunal in respect of the making of an assessment or anything done in respect of an assessment in accordance with this Act (s. 37(5)), and subject to the Constitution a decision of the Tribunal is not subject to review by any court or other tribunal (s. 62). (g) Section 81 provides as follows:

"(1) A person who is or has been a member or an officer of the Tribunal shall not, either directly or indirectly, except for the purposes of this

Act -

(a) make a record of, or divulge or communicate to any person, any information acquired by him by reason of his office or employment under or for the purposes of this Act; or

(b) produce to any person a document furnished for the purposes of this Act.

Penalty: $2,000 or imprisonment for 2 years.

(2) A person who is or has been a member or an officer of the Tribunal shall not be required to produce in a court any document of which he has custody, or to which he has access, by virtue of his office or employment under or for the purposes of this Act, or to divulge or to communicate to a court any information obtained by him by reason of such an office or employment, except when it is necessary to do so for the purposes of this Act." (at p38)

13. Section 91 provides that the Director-General and officers and employees of ASIO shall be deemed to be Commonwealth officers for the purposes of the Crimes Act 1914. The only material provision of the Crimes Act which is brought into operation by s. 91 is s. 70, which reads:

"(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he is authorized to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of his office, and which it is his duty not to

disclose, shall be guilty of an offence.

(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him), any fact or document which came to his knowledge, or into his possession, by virtue of his office, and which, at the time when he ceased to be a Commonwealth officer, it was his duty not to disclose shall be guilty of an offence.

Penalty: Imprisonment for two years." (at p38)

14. As I have said, the Solicitor-General argues that the discretions implicit in s. 17(1) are not reviewable by a court. It will be noted, as Mr. Castan observes, that the sub-section is not expressly conditioned by any reference to the opinion of the Director-General. Nevertheless, Mr. Byers puts the case against justiciability by taking a broad view of the statute. He relies on the fact that ASIO is a nonstatutory organization which is placed under the control of the Director-General with a view to the performance of the functions set out in s. 17(1). The kind of decisions by which that performance is directed and controlled are necessarily matters of opinion and judgment, and this is emphasized by s. 8 which places the opinions of the Director-General relating to the collection and communication of intelligence by ASIO beyond ministerial control. The Act recognizes that the Director-General may make errors of judgment in controlling the course of an investigation or the communication of information, but it is only when the communication comes within the concept of an adverse or qualified security assessment that the subject matter is open to any kind of judicial review, and then by a special tribunal under the most stringent procedural restraints, obviously imposed with a view to protecting security. In the context of this broad view, s. 20 is to be seen as a direction for the guidance of the Director-General, and not as a prescription of a legal right of the subject which is capable of protection by declaration or injunction. (at p39)

15. In the second place, the Solicitor-General attacks the particular allegations that lie at the heart of the action, namely, the continuing to gather information, and the communication of that intelligence. With respect to the former, it is said that even if it be possible to characterize such an operation of ASIO as outside its proper function, that does not make the conduct unlawful. Similarly with the alleged improper communication of information, neither statute or common law provides a remedy unless the published statement be defamatory and not protected by privilege. (at p39)

16. For the plaintiffs, Mr. Castan joins issue with the defendants' arguments. He argues that the omission from s. 17 of any reference to the opinion of the Director-General is significant, particularly when compared with provisions such as are found in ss. 26(2), 27(2) and 38(2). It follows that the operations of ASIO are controlled by criteria which are capable of objective determination, and are therefore subject to review by the Court. With respect to the second argument, he concedes that it is undoubtedly relevant to security and therefore lawful for ASIO to make an initial collection of information concerning a person but if the evaluation of that initial intelligence leads or ought to lead to a conclusion that the person is not a security risk then ASIO has no authority to continue to gather information on that person or to communicate any such information. He points to the phrase "for purposes relevant to security and not otherwise" (my emphasis) in s.17(1)(b), and argues that on their proper construction ss.17 and 20 lead to the conclusion that the lawful operations of ASIO are delimited by reference to its functions. (at p39)

17. I may say at once that whatever may be the lawfulness of ASIO continuing to communicate intelligence in circumstances which fail to come within the phrase "for purposes relevant to security and not otherwise" in s.17(1)(b) I find it difficult to deny to ASIO a statutory function pursuant to s.17(1)(a) of continuing to "obtain, correlate and evaluate intelligence relevant to security" merely because initial intelligence may have established that a person or body was not then a security risk. It is always possible that circumstances will change and I cannot accept that an initial clearance must thenceforth protect a person or body from further scrutiny. (at p39)

18. The features of the 1979 Act which impress me as being of importance to the resolution of the issues that have been raised include the following: (a) Section 17 must be read in the light of s.8, with the result that ASIO's pursuit of its functions is surrounded at every point by the controlling opinion of the Director-General. (b) Section 20 exhibits the character of a political exhortation rather than a legal command. I cannot conceive of a court being required to adjudicate on allegations touching "influences or considerations not relevant to its functions" or on conduct which "might lend colour to any suggestion that it (ASIO) is concerned to further or protect the interests of any particular section of the community". (c) The existence of grounds supporting the issue of a warrant authorizing the exercise by ASIO of special powers would not seem to be open to judicial review. I draw this conclusion from the emphasis, (i) in s. 25, upon the satisfaction of the Minister as a condition precedent to the issue of the warrant; and (ii) in ss.26 and 27, upon the satisfaction of the Minister of, inter alia, a reasonable suspicion of the Director-General. (d) The provision of a specific form of judicial review of one aspect only of the operations of ASIO, namely, the furnishing to a Commonwealth agency of an adverse or qualified security assessment. Three things may be noted about this provision: the first is that it is directed to that part of the operations of ASIO that is most likely to be attended with immediate adverse consequences to the individual; the second is that the procedure bears no comparison to customary court procedures, and is clearly dominated by a concern to protect security; the third is that, save for such a review, no proceedings shall be brought in any court or tribunal in respect of the making of an assessment or anything done in respect of an assessment in accordance with this Act. (e) The legislature makes clear its reliance upon the integrity and competence of the Director-General to ensure that ASIO conforms to its charter, and it pays some attention to political processes in relation to the office: see ss.7(2), 8, 20, 21, 26(1), 27(1), 34 and 94. (at p40)

19. It is against this background that I now examine the relief sought by the plaintiffs in relation to the 1979 Act. Under par. B of the claim, seven declarations are sought, the grant of which would require the Court to entertain and adjudicate, inter alia, upon the following issues: (a) that initial inquiries respecting the plaintiffs established or ought to have established that such intelligence is not relevant to security within the meaning of the 1979 Act (B(iv)); (b) that the continued obtaining, correlating and evaluating of intelligence by ASIO concerning the plaintiffs and the other members of the firstnamed plaintiff is unlawful (B(iv)); (c) that the communication of information by ASIO to the effect that the plaintiffs and the members of the firstnamed plaintiff are persons in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism, or who have committed or intend to commit the said offences, is unlawful for the reasons that the information is not true (B(iii) and (vi)); (d) whether or not the executive power of the Commonwealth authorizes the continued obtaining, correlating and evaluating of intelligence and the communication of the same as alleged in the statement of claim (B(vii)). (at p41)

20. One may put aside the question whether the communication by ASIO of intelligence for purposes which are not relevant to security is unlawful because even if, for the purposes of the argument, Mr. Castan's point in this regard is conceded, there remains what to my mind is an insuperable objection extending to all the issues I have mentioned. It is the notion that the Court can examine the intelligence in question and receive evidence, presumably in the presence of the plaintiffs if not in open court, concerning the Director-General's reasons for believing the communication to be for "purposes relevant to security and not otherwise", and then decide for itself the purpose of the communication and the truth of its subject matter. The likelihood is that a hearing on such issues would be aborted at the outset by reason of problems of privilege and secrecy, but in any event I cannot discern any legislative intent to have questions of security ventilated in a court proceeding surrounded with none of the safeguards that are provided for the review of adverse security assessments. I find the inference in favour of the defendants' submission on justiciability to be irresistible. (at p41)

21. It follows that the relief by way of injunction claimed in par. C can have no basis in law, and a similar conclusion follows in the case of the order in the nature of a mandamus directed to the Director-General claimed in par. D. (at p41)

22. The relief claimed in par. A purports to be grounded on the 1956 Act, but nevertheless follows the same pattern and raises the same issues as those that I have discussed in relation to par. B. It is unnecessary to examine the 1956 Act in detail. It suffices to say that s.5(1) of that Act expressly conditions the communication of intelligence on "the discretion of the Director-General". This fact, together with the strong correspondence in subject matter linking the two statutes, notwithstanding the greater detail of the 1979 Act, leads me to construe the 1956 Act also as not exposing the functions of ASIO to judicial review. I am fortified in this conclusion by the further considerations that both the continued gathering of intelligence and its communication prior to 1 June 1980 would not appear to have been unlawful, for the reasons given by Aickin J. in an action Church of Scientology Inc. v. Woodward.* With respect, I agree with those reasons.



*The judgment of Aickin J. in a previous case of Church of Scientology v. Woodward, delivered 9 November 1979, is reproduced at p.79. (at p41)

23. In pars. E and F of the claim the plaintiffs seek declarations that the 1956 Act was, and the 1979 Act is, a law for prohibiting the free exercise of any religion and beyond the powers of the Commonwealth by reason of s.116 of the Constitution. Mr. Castan made it clear that the plaintiffs do not challenge the decision of this Court in Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth [1943] HCA 12; (1943) 67 CLR 116 , and that the only basis on which allegations were advanced concerning s. 116 was in anticipation of a possible defence by the defendants. The Solicitor-General responded to this with the submission that the pleading should have been held in reserve for use in reply if necessary, and that as the matter stands this part of the statement of claim is embarrassing. I agree with the submission. (at p42)

24. My consideration of the submissions of the parties on this application has led me to a firm conclusion that the plaintiffs cannot possibly succeed in the action. In the circumstances, while acknowledging the caution with which an action should ever be summarily terminated, I think it proper to accede to the defendants' application. (at p42)

25. Pursuant to O. 26, r. 18, the statement of claim is struck out, and the action dismissed with costs. (at p42)

26. The plaintiffs appealed to the Full Court from the orders of Wilson J. (at p42)

27. A. R. Castan Q.C. (with him J. I. Fajgenbaum), for the appellants. ASIO is limited by its legislative charter which reflects the constitutional limits. Nothing in the current or earlier legislation prevents supervision by the courts of its actions that go beyong the statutory limits. Actions taken by Commonwealth officers beyong constitutional limits of legislative and executive power can never be removed from the supervision of the High Court. While a person or a State with plenary powers may gather and communicate intelligence, the Commonwealth may do so only within the limits of constitutional powers or purposes. The plaintiffs have standing because a public wrong is alleged. There must be a point at which the Director-General is satisfied or should properly be satisfied that a person is not a security risk. (at p42)

28. The courts have pratical procedures for regulating any questions of Crown privilege or confidentiality: Krew v. Federal Commissioner of Taxation (1971) 45 ALJR 249; 2 ATR 230; 71 ATC 4091 ; The Commonwealth v. John Fairfax & Sons Ltd [1980] HCA 44; (1981) 147 CLR 39, at pp 50-54 ; Sankey v. Whitlam (1978) 142 CLR 1 . Facts or documents relating to the affairs of the appellants should not be disclosed to other persons under the cover or guise of legislative authority when, in fact, those matters are not properly the subject of the Act. The Court has a role to play in relation to the Act, e.g., in relation to the validity of search warrants and wrongful transmission of security assessments. Where there is to be no access to the courts, the legislature has said so, e.g. in ss. 62 and 81. The existence of a private right of action does not affect or negative in any way the existence of the right to complain of the public wrong. Officers of the Commonwealth authorized by statute to exercise the executive power of the Commonwealth are limited, when acting in the exercise of that capacity, to the functions so authorized by the relevant statute. Once it is established that a person is not a security risk, he cannot be the subject of continuing or permanent surveillance in the obtaining of intelligence. Where the matter governing the exercise of a statutory power is objective rather than being a matter of the opinion of an officer, then that matter can be reviewed by a court. All actions of the executive must be for constitutional purposes of the Commonwealth and the power of inquiry also is subject to that limit: Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) [1912] HCA 94; (1912) 15 CLR 182, at pp 194, 205-206 ; Victoria v. The Commonwealth [1975] HCA 52; (1975) 134 CLR 338, at pp 362, 377-378, 380, 396-397 ; Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, at pp 183, 187 . The constitutional limits inevitably mean that these issues are justiciable. (at p43)

29. M. H. Byers Q.C., Solicitor-General for the Commonwealth, (with him G. Griffith), for the respondents. Section 17 sets out the activities or functions ASIO is to pursue. It obtains, correlates and evaluates intelligence that is relevant to security and, in so doing, must, from time to time, exercise judgment as to whether the intelligence is relevant to security. It is not confined to making this assessment on only one occasion, and there is nothing unlawful in making a mistake in the course of making such an assessment in good faith. The exercise of that judgment should not be called in question in the courts. The Act provides a method by which the security assessment may be called in question and under circumstances which envisage that there may have been a mistake on the part of the person concerned, but nonetheless that is contemplated as being within the pursuit of the power. Section 18(2) prohibits the communication of any information or matter that comes to the knowledge of an officer or employee of ASIO except for the stated purposes, and s. 81(2) prohibits disclosure by members of the Tribunal in a court. There is no judicial review apart from questions of corruption or mala fides. (He referred to Marcus Clark & Co. Ltd. v. The Commonwealth [1952] HCA 50; (1952) 87 CLR 177, at pp 215-216, 252-253 .) It is futile to embark on any question relating to the 1956 Act, because it was repealed from 1 June 1980. There can be no question of constitutional power in any relevant sense because the Act gives no right to do anything except to collect information and communicate that information under stated conditions. It confers no immunity for error. (He also referred to Church of Scientology Inc. v. Woodward Post, p. 79. ; Lockwood v. The Commonwealth [1954] HCA 31; (1954) 90 CLR 177 ; and Clough v. Leahy [1904] HCA 38; (1904) 2 CLR 139 .) (at p44)

30. A. R. Castan Q.C., in reply.

Cur. adv. vult. (at p44)

1982, November 19

The following written judgments were delivered: -

Gibbs C.J. This is an appeal from a judgment of Wilson J. ordering that the

2. The action is brought by the Church of Scientology Inc. and by Peter James Fowler (who sues on his own behalf and on behalf of all the other members of the Church of Scientology Inc. as at the date of the issue of the writ) against the Honourable Mr. Justice Woodward (who was at the date of delivery of the statement of claim the Director-General of the Australian Security Intelligence Organization ("ASIO")), the Attorney-General and the Commonwealth. Full details of the amended statement of claim appear in the judgment of Wilson J., and it is unnecessary to repeat them. Until 1 June 1980, the legislation governing the activities of ASIO was the Australian Security Intelligence Organization Act 1956 (Cth), as amended ("the Act of 1956"), which was repealed and replaced by the Australian Security Intelligence Organization Act 1979 ("the Act of 1979") which came into operation on that date. The amended statement of claim alleges that both before and since 1 June 1980 the Director-General (on his own initiative or acting under instructions from and in concert with the Attorney-General, or acting in consequence of policies and directions determined by various Ministers of the Commonwealth) has caused or permitted ASIO to obtain, correlate and evaluate intelligence concerning the plaintiffs and the members of the first plaintiff and to communicate such intelligence to other persons and to characterize the plaintiffs and other members of the first plaintiff as security risks and to communicate to other persons the fact that ASIO has made that characterization, in circumstances in which it was unlawful for ASIO to do any of these things. The plaintiffs seek declarations that these activities of ASIO were prohibited both before and after 1 June 1980 and seek an injunction restraining the defendants from causing or permitting ASIO to act in the manner alleged and an order commanding the Director-General to perform his duty under s. 20 of the Act of 1979, to whose provisions I shall shortly refer. Declarations were sought that if the Acts of 1956 and 1979 did empower the Director-General to act in the manner alleged they were beyond power by reason of the provisions of s. 116 of the Constitution, but those claims were abandoned in argument before us. In the circumstances, it is unnecessary to deal separately with the effect of the Act of 1956, since the real concern of the plaintiffs is with the continued activities of ASIO in the future, and the question whether ASIO was prohibited from doing what it did in the past is now only of theoretical interest. There is however, no reason to suppose that any different conclusion would be reached in relation to the Act of 1956 from that which will be reached in relation to the Act of 1979. (at p45)

3. The functions of ASIO are described in s. 17 of the Act of 1979 as follows:

"(1) The functions of the Organization are -

(a) to obtain, correlate and evaluate intelligence relevant to security;

(b) for purposes relevant to security and not otherwise, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes; and

(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.

(2) It is not a function of the Organization to carry out or enforce measures for security within an authority of the Commonwealth." "Security" is defined in s. 4 to mean -

"(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from -

(i) espionage;

(ii) sabotage;

(iii) subversion;

(iv) active measures of foreign intervention; or

(v) terrorism,

whether directed from, or committed within, Australia or not; and

(b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the sub-paragraphs of paragraph (a);".

policy or acts of a government in Australia or in a foreign country);

(b) training, planning, preparations or other activities for the purposes of violent subversion in a foreign country or for the purposes of the commission in a foreign country of other acts of violence of a kind referred to in paragraph (a);

(c) acts that are offences punishable under the Crimes (Internationally Protected Persons) Act 1976; or

(d) acts that are offences punishable under the Crimes (Hijacking of Aircraft) Act 1972 or the Crimes (Protection of Aircraft) Act 1973."

government, that are to be regarded as subversion are -

(a) activities that involve, will involve or lead to, or are intended or likely ultimately to involve or lead to, the use of force or violence or other unlawful acts (whether by those persons or by others) for the purpose of overthrowing or destroying the constitutional government of the Commonwealth or of a State or Territory;

(b) activities directed to obstructing, hindering or interfering with the performance by the Defence Force of its functions or the carrying out of other activities by or for the Commonwealth for the purposes of security or the defence of the Commonwealth; or

(c) activities directed to promoting violence or hatred between different groups of persons in the Australian community so as to endanger the peace, order or good government of the Commonwealth.

(2) For the purposes of this section, 'activities of foreign origin' means activities of, directed or subsidized by, or undertaken in active collaboration with, a foreign power or foreign political organization, whether carried on or to be carried on in Australia or outside Australia.

(3) Nothing in this section affects the meaning of the expression 'subversion' in relation to activities of foreign origin or activities directed against a foreign government."

Director-General.

(2) In the performance of his functions under this Act, the Director-General is subject to the general directions of the Minister, but the Minister is not empowered to override the opinion of the Director-General -

(a) on the question whether the collection of intelligence by the Organization concerning a particular individual would, or would not, be justified by reason of its relevance to security;

(b) on the question whether a communication of intelligence concerning a particular individual would be for a purpose relevant to security; or

(c) concerning the nature of the advice that should be given by the Organization to a Minister, Department or authority of the Commonwealth."

Director-General.

(2) If a person makes a communication of any information or matter that has come to his knowledge or into his possession by reason of his being, or having been, an officer or employee of the Organization or his having entered into any contract, agreement or arrangement with the Organization, being information or matter that was acquired or prepared by or on behalf of the Organization in connection with its functions or relates to the performance by the Organization of its functions, other than a communication made -

(a) to the Director-General or an officer or employee of the Organization -

(i) by an officer or employee of the Organization - in the course of his duties; or

(ii) by a person who has entered into any such contract, agreement or arrangement - in accordance with the contract, agreement or arrangement;

(b) by an officer of the Organization, within the limits of authority conferred on him by the Director-General; or (c) with the approval of the Director-General or of an officer of the Organization having the authority of the Director-General to give such an approval,

he is guilty of an offence.

(3) Notwithstanding paragraph 17(1)(b), the Director-General may, in accordance with the following paragraphs, by himself or by an officer authorized by him, communicate information that has come into the possession of the Organization in the course of performing its functions under section 17:

(a) where the information relates, or appears to relate, to the commission, or intended commission, of an offence against the law of the Commonwealth or of a State or Territory, being an offence punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years - the information may be communicated to an officer of the Police Force of a State or Territory or of the Commonwealth Police Force;

(b) where the information relates, or appears to relate, to the commission, or intended commission, of an offence punishable as provided by section 235 of the Customs Act 1901 - the information may be communicated to a person who is an officer of Customs for the purposes of the Customs Act 1901; or

(c) where the information has come into the possession of the Organization outside Australia or concerns matters outside Australia and the Director-General is satisfied that the national interest requires the communication - the information may be communicated to a Minister or Department or to the Office of National Assessments.

(4) An offence against sub-section (2) may be prosecuted either summarily or on indictment and the penalty for such an offence is -

(a) upon summary conviction - a fine not exceeding $1,000 or imprisonment for a term not exceeding 1 year; or

(b) upon conviction on indictment - imprisonment for a term not exceeding 2 years.

(5) A prosecution for an offence against sub-section (2) shall be instituted only by or with the consent of the Attorney-General."

-

(a) the work of the Organization is limited to what is necessary for the purposes of the discharge of its functions; and

(b) the Organization is kept free from any influences or considerations not relevant to its functions and nothing is done that might lend colour to any suggestion that it is concerned to further or protect the interests of any particular section of the community, or with any matters other than the discharge of its functions.

21. The Director-General shall consult regularly with the Leader of the Opposition in the House of Representatives for the purpose of keeping him informed on matters relating to security."

4. The principal allegations of fact made in the amended statement of claim are those contained in pars. 7A and 8A which are as follows:

"7A. Since the 1st day of June 1980 the firstnamed defendant on his own initiative or alternatively acting under instructions from and in concert with the secondnamed defendant, or in the further alternative, acting as a consequence of policies and directions determined by various Ministers of

State of the thirdnamed defendant -

(a) has caused or permitted ASIO to obtain correlate and evaluate initial intelligence concerning the plaintiffs and other members of the firstnamed plaintiff and to communicate such initial intelligence to other persons;

(b) has further caused or permitted ASIO to continue to obtain, correlate and evaluate further intelligence concerning the plaintiffs and the other members of the firstnamed plaintiff and to continue to communicate such further intelligence to other persons notwithstanding that the initial obtaining, correlating and evaluating of intelligence established or ought to have established that such intelligence -

(i) is not relevant to the protection of the Commonwealth and the several States and Territories and of their people from espionage, sabotage, subversion, active measures of foreign intervention or terrorism;

(ii) does not relate or appear to relate to the commission or intended commission of an offence against the law of the Commonwealth or of a State or Territory being an offence punishable by imprisonment for not less than 3 years or an offence punishable as provided by section 235 of the Customs Act 1901;

(iii) did not come into the possession of ASIO outside Australia and does not concern matters outside Australia and is not information which the firstnamed defendant is satisfied must be communicated in the national interest;

(c) has caused or permitted ASIO to characterise the plaintiffs and other members of the firstnamed plaintiff as persons in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism or who have committed or intend to commit the said offences and has caused or permitted the fact that ASIO has made such characterisation to be communicated to other persons.

8A. (a) The firstnamed plaintiff is not now and has not been at any material time since the 1st day of June 1980 a person or organisation in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism, or who have committed or intend to commit the said offences.

(b) The secondnamed plaintiff and the members of the firstnamed plaintiff are not now and have not been at any material time since the 1st day of June 1980 persons in respect of whom, by reason of their membership of the firstnamed plaintiff or by reason of their being practising adherents of the Scientology religion, the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism, or who have committed or intend to commit the said offences.

(c) Intelligence concerning the plaintiffs and the members of the firstnamed plaintiff is not now and has not been at any material time since the 1st day of June 1980 -

(i) intelligence relevant to security within the meaning of the 1979 Act;

(ii) intelligence or information which relates or appears to relate to the commission or intended commission of the said offences;

(iii) intelligence or information which came into the possession of ASIO outside Australia or which concerns matters outside Australia or which the firstnamed defendant is satisfied must be communicated in the national interest." (at p50)

5. The plaintiffs do not challenge the validity of the Act of 1979. Their argument is that, properly construed, that Act prohibits ASIO from obtaining, correlating or evaluating intelligence unless the intelligence is relevant to security within the meaning of the Act, and that intelligence is not relevant to security if it relates to a person who is not a security risk. It is conceded that ASIO may make initial inquiries, but it is said that once those inquiries have established, or ought to have established, that the intelligence is not relevant to security, in that sense, ASIO may not proceed to obtain further intelligence - unless the further intelligence is relevant to security. Similarly, it is submitted, ASIO is prohibited from communicating to any person intelligence which is not in truth intelligence relevant to security or evidence relating to the matters specified in s. 18(3). It is further submitted that ASIO may not communicate the fact that it has characterized a person as one in respect of whom the Commonwealth and the several States and Territories and their people need protection from espionage, sabotage, subversion, active measures of foreign intervention or terrorism, (i.e., as a security risk) or as one who has committed or intends to commit the offences mentioned in s. 18(3), unless such characterization is true. If the action proceeds, the plaintiffs will seek to prove that they are not security risks, and that information concerning them is not information relevant to security, or to the matters mentioned in s. 18(3), and that the initial inquiries of ASIO established or should have established these things. (at p51)

6. The argument for the plaintiffs requires the words of s. 17(1) of the Act of 1979 to be given a very narrow meaning. Section 17(1)(a), it is said, enables ASIO to obtain intelligence only if it is "relevant to security", and s. 17(1)(b) enables ASIO to communicate only "such intelligence", i.e., intelligence "relevant to security"; s. 18(3) enables ASIO also to communicate information of the kind to which that sub-section refers, but for convenience that exception may be temporarily ignored, and it will be convenient in general to speak only of intelligence relevant to security. If the Court decides that the intelligence in question is not relevant to security, the result, it is submitted, is that ASIO is prohibited from obtaining, correlating, evaluating or communicating it, and that it would be unlawful to do so. Support for this contention was sought to be found in the contrast between the words of s. 17, which it is said provide for an objective test, and those of other sections which refer to the satisfaction of the Director-General or the Minister - see ss. 18(3)(c), 25(1) and (2), 26(3) and (4), 27(2), 30 and 38(2). (at p51)

7. The construction which the plaintiffs seek to place on s. 17(1) would give that section an effect which would be absurd and unworkable. It is obvious that intelligence which falls far short of establishing that a person is a risk to security may nevertheless be relevant to security. A scrap of information which, in itself, may seem to have no bearing on security may, when put together with other information, assume a vital significance. An officer seeking intelligence will not always start with a hot trail but may need to begin by collecting information in the hope that it may ultimately prove to be of importance. The necessary concession that ASIO is entitled to make initial inquiries reveals the difficulty in the suggested construction. It is impossible to suggest any rational test by which one could determine the point of time at which one should ask the question whether the inquiries so far made have established that the intelligence is relevant to security. Today's intelligence may seem to establish that a suspected person is a loyal citizen; further information obtained tomorrow may show that he is engaged in espionage or subversion. There is nothing in the Act of 1979 that leads to the unlikely conclusion that ASIO must cease to obtain intelligence about a particular person unless its intial investigations are successful in establishing that he is a security risk. Moreover, intelligence gathered in the honest belief, or in the hope, that it will be relevant to security may, in the light of further information, prove to be valueless. Finally, it should be remembered that it may be relevant to security to establish that a particular person is not a security risk. (at p52)

8. These considerations lead to the conclusion that it was not intended that a court should have power to decide whether ASIO has exceeded its proper function, and obtained intelligence which is not relevant to security, in a case where bad faith is not alleged, and it is not suggested that any private right has been infringed. It is important to recognize that the provisions of s. 17 of the Act of 1979 neither confer powers nor impose duties on ASIO - they simply define its functions. The present case is therefore not one in which it can be suggested that there has been an abuse of statutory power or a breach of statutory duty. In particular, s. 17 does not authorize ASIO to invade private rights - ASIO is given no power to affect the liberty or interfere with the person or property of a private citizen and its officers are given no privilege to make defamatory statements additional to that which is available under the general law. Where it is intended that ASIO should have special powers (for example to search, to use listening devices and to inspect postal articles) express provision is made to that effect: see Div. 2 of Pt III. The argument for the plaintiffs in essence is that the courts have power to control ASIO in the exercise of its functions of collecting and assessing intelligence, even though no private right is affected and bad faith is not alleged. However, it seems to me impossible for a court to say that any intelligence collected in good faith - i.e., for purposes believed to be relevant to security, and not for some ulterior purpose - is not relevant to security, since it may, in the light of other material, bear on the question whether a person is or is not a security risk. For all these reasons I consider that the legislation does not entrust to the courts the power to decide that ASIO may not obtain particular intelligence on the ground that it is not relevant to security. By s. 20 the Parliament requires the Director-General to take all reasonable steps to ensure that the work of ASIO is limited to what is necessary for the discharge of its functions. The Director-General is placed in a special position. By s. 8(2) the Minister cannot override his opinion on the question whether the collection or communication of intelligence concerning a particular individual would be justified. Sections 21 and 94 require the Leader of the Opposition to be consulted and informed, but oblige him to treat as secret the Director-General's reports on the activities of the Organization. These provisions show that the Director-General is not in the ordinary position of the head of a government department. And when it is intended that the work of ASIO should be reviewed, express provision is made: see Pt IV which provides for a review of security assessments by a special tribunal which sits in private and hears evidence from one party in the absence of the other. It would indeed be anomalous if, although an individual affected - and perhaps seriously affected - by a security assessment is given only a limited right of recourse to a special tribunal, a person who is merely the subject of inquiry has the right to have the exercise by ASIO of its functions reviewed in the ordinary courts. In my opinion, the Parliament intended that the performance of the functions of ASIO, which necessarily require secrecy, should be controlled by the Director-General and not by the courts - i.e., as I have said, in a case where individual rights are not involved and there is no bad faith. (at p53)

9. The provisions of the Act of 1979 with regard to the communication of intelligence are rather more detailed than those which relate to the collection of intelligence. The offence created by s. 18(2) is not committed when information is communicated by an officer of ASIO, within the limits of the authority conferred on him by the Director-General, or with the approval of the Director-General or of an officer of ASIO having the authority of the Director-General to give such an approval. Obviously, this subsection does not prevent the Director-General or an officer authorized by him from making a communication of whatever information the Director-General authorizes to be communicated. Section 18(3), although placed in the Act between s. 18(2) and s. 18(4) which provides the penalty for offences against s. 18(2), does not appear in any way to qualify s. 18(2). Its purpose appears to be to permit the Director-General or an authorized officer to communicate, for certain purposes not relevant to security, information that has come into the possession of ASIO in the course of performing its functions. This suggests that the intention of the Parliament is that the Director-General should not authorize the communication of any intelligence except for purposes relevant to security or in the circumstances mentioned in s. 18(3), but it does not follow that the information which is communicated must be itself relevant to security in the way in which that expression is interpreted by the plaintiffs. Reference was made to s. 70 of the Crimes Act 1914 (Cth), as amended, but that section applies only to the disclosure by an officer of information which it was his duty not to disclose. And neither the Act of 1979, nor the Crimes Act, places an officer of ASIO under a duty not to disclose information simply because, in the opinion of the Court, it was not relevant to security or related to a person who was not a security risk. (at p54)

10. The further argument that ASIO may not characterize a person as a security risk unless he is in fact a risk finds no support in the provisions of the Act of 1979, and if accepted would, in effect, give a right of appeal from conclusions formed by officers of ASIO. (at p54)

11. Counsel for the plaintiffs submitted that if the Act of 1979 was not read down in the way that was suggested, it would go beyond the power of the Commonwealth Parliament. The power to enact the statute is to be found in some of the paragraphs of s. 51 of the Constitution (including pars. (vi), (xxix) and (xxxix)) and in the implied power to legislate for the protection of the Commonwealth against subversive action and preparation: cf. Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, at p 184 . The present appeal does not raise any question, such as that which arose in Australian Communist Party v. The Commonwealth, as to whether the powers of the Parliament extend to the enactment of a law under which in certain circumstances, vaguely and uncertainly described, adverse consequences affecting the rights of organizations and individuals would ensue. The question in the present case is whether it is within the power of the Parliament to enact a law which sets up a security agency of the government and empowers it to obtain, correlate and evaluate intelligence relevant to security and to communicate that intelligence for purposes relevant to security and for the purposes mentioned in s. 18(3), even though a particular item of intelligence obtained or communicated might not in itself appear to a court to be relevant to security and even though the intelligence available at a particular time, considered alone, would establish that the person to whom the information relates is not a security risk. For the reasons I have given if the Constitution did not empower the Parliament to enact legislation of that kind, it would not empower the Parliament to authorize the effective gathering of intelligence at all. (at p54)

12. On behalf of the plaintiffs it was submitted that the actions alleged to have been done by ASIO fell outside the executive power conferred by s. 61 of the Constitution. The scope of the executive power does not in my opinion arise in the present case, because the powers allegedly exercised by ASIO were conferred by legislation made by the Parliament. The Act of 1979 construed according to its natural meaning authorized ASIO to do what it is alleged to have done in the present case and no necessity exists to read down the legislation to bring it within constitutional limits. In a democratic society, it is sometimes difficult to strike the proper balance between the maintenance of national security and the protection of individual liberties. The legislation in question - so far as this case is concerned with it - does not raise that difficulty, for it does not entrench on private rights. (at p55)

13. I entirely agree with the conclusion of Wilson J. that the plaintiffs cannot possibly succeed in the action. I would dismiss the appeal. (at p55)

MASON J. The appellants appeal against an order made by Wilson J. striking out their amended statement of claim under O.26, r.18 of the High Court Rules and dismissing their action. The order was made on the ground that the amended statement of claim did not disclose a reasonable cause of action. The pleading and the relevant statutory provisions, particularly the Australian Security Intelligence Organization Acts of 1956 and 1979 are set out in his Honour's judgment. I need not repeat them. (at p55)

2. In deciding that there was no reasonable cause of action disclosed by the appellants' amended pleading, Wilson J. accepted a submission made by the Solicitor-General for the Commonwealth that each of the two Acts "evinces a legislative intent to shield the conduct of ASIO from judicial review". Before us the proposition submitted by the Solicitor-General was less ambitious. It was evidently tailored to meet the particular case pleaded and argued by the appellants. The Solicitor-General disavowed any claim that the Acts completely excluded the operations of ASIO from judicial review and conceded that decisions made and acts done corruptly or mala fides were open to such review. Otherwise, he submitted, the actions of ASIO were not open to review. (at p55)

3. It would be too much to say that the supervisory jurisdiction of the courts cannot be impliedly excluded by statute, though no case of implied exclusion was cited to us in argument. But it is not too much to say that any suggestion that Parliament has impliedly excluded judicial review, especially for ultra vires, should be viewed with extreme caution, indeed with healthy scepticism. If Parliament intends to take the radical step of ousting judicial review then it is reasonable to suppose that it will express its intention with directness and clarity upon the topic, thereby taking the responsibility upon its own shoulders for that result rather than leaving the Court to spell it out from a series of provisions not specifically addressed to that question. (at p55)

4. The approach of the courts to the construction and application of privative clauses is instructive. The privative clause is the conventional expression of the legislative intention that a decision shall not be challenged in the courts. Yet, notwithstanding the wide and strong language in which these clauses have been expressed, the courts have traditionally refused to recognize that they protect manifest jurisdictional erros or ultra vires acts. It would be ironical in the extreme if we were now to hold that what for so long Parliament has failed to achieve by express provision, it has now achieved without any provision at all, and this in a case in which, as we shall see, Parliament has been insistent that ASIO's activities should be confined to security. (at p56)

5. What I have said has special force in its application to the jurisdiction of this Court to grant relief under s.75(v) of the Constitution when the plaintiff seeks relief by way of mandamus, prohobition or injunction: see R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, at pp 614-617 ; Reg. v. Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77, at pp 96-97 . And, it goes almost without saying, that no legislative provision can protect ASIO, from relief by way of injunction restraining it from engaging in activities which are ultra vires the Commonwealth under the Constitution. (at p56)

6. It is with these comments in mind that I look to the Act of 1979. The Act does not expressly incorporate ASIO. Section 6 refers to ASIO as "the Organization that was continued in existence" by the repealed statutes and goes on to continue it in existence. Section 4 of the Act of 1956, as amended, up to 1973 had referred to ASIO as "the Organization established in pursuance of a directive given by the Prime Minister" on 16 March 1949 and had continued it in existence. (at p56)

7. However, the authorities suggest that it is possible to incorporate a statutory body by implication or to endow it with an artificial legal personality falling short of incorporation. This may be achieved by providing that it is to own property, employ its own staff, enter into transactions, sue and be sued in its collective or corporate name. In Chaff and Hay Acquisition Committee v. J. A. Hemphill and Sons Pty. Ltd. [1947] HCA 20; (1947) 74 CLR 375 this Court held that the Committee, which did not have perpetual succession or a common seal, was not incorporated, but was nevertheless a legal entity distinct from the natural persons who composed it. (at p56)

8. In the case of ASIO there is not only an absence of provisions relating to incorporation, perpetual succession and common seal, there is also an absence of provisions relating to the ownership of property, entry into transactions, employment of staff on its own behalf and capacity to sue and be sued. Indeed, s.84 empowers the Director-General to employ officers of ASIO "on behalf of the Commonwealth". There is therefore no firm basis for saying that ASIO is a corporation. (at p57)

9. Instead, it seems, ASIO is a department of the executive government, placed under the control of the Director-General and staffed by Crown servants. Unlike other government departments the Minister's control of it is qualified by s.8(2). If this were all there would be nothing to be said for the view that ASIO is a legal entity distinct in any way from the executive government. (at p57)

10. However, ASIO is a government department with a difference. The statute gives it a collective name, continues it in existence and goes to some pains to confine its functions (see s.17(2)). But these characteristics are not sufficient to sustain the conclusion that ASIO is a legal entity independent of the executive government or that it is a legal entity capable of suing or being sued in its corporate name. (at p57)

11. The question then is whether the doctrine of ultra vires can apply to ASIO's activities. It is beyond question that the doctrine will apply to the extent to which ASIO's activities exceed the executive power of the Commonwealth, as to which see Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, at p185 et seq and Victoria v. The Commonwealth and Hayden [1975] HCA 52; (1975) 134 CLR 338, at p 396 . But does the doctrine apply to activities of ASIO which exceed its statutory functions but fall within the executive power of the Commonwealth unaffected by statute? It has frequently been said that the doctrine of ultra vires relates to the capacity of corporations. So it does. But this is by no means its only sphere of operation. It applies to questions of authority, as well as to questions of capacity, especially to acts done in excess of statutory authority. (at p57)

12. If the effect of the Act is to confine ASIO's authorized activities to something less than the full ambit of activities which might otherwise be permitted to the Commonwealth in execution of its executive power, then I see no reason for thinking that a person adversely affected by activities which are unauthorized cannot obtain relief by way of declaration and injunction. There is a clear distinction to be drawn between acts which are unauthorized and those which are illegal. Section 17 is not a prohibition against the carrying on of activities which stand outside the functions described in s.17(1). The section is expressed in terms of functions, authorized and unauthorized. It constitutes the exclusive and comprehensive charter of ASIO's activities. It therefore effectively limits the activities in which ASIO as a government department is authorized to engage. So long as its enactment is within the field of legislative power Parliament can deprive corporations, authorities or government departments of capacity or authority which they might otherwise possess. (at p58)

13. The question here is not whether the individuals who are employed in ASIO have the capacity as individuals to engage in the activities complained of; the question is whether ASIO as a government department has the authority to do so. No doubt individuals ask questions, form opinions and make statements about matters relating to security, but as individuals they cannot exercise the powers conferred by the Act. (at p58)

14. The features of the Act chiefly relied upon to sustain the weight of the argument in favour of exclusion of review are ss. 8(2), 20(a) and Pt IV dealing with security assessments. Section 20(a) imposes on the Director-General of ASIO, who is not required to be a judge to be eligible for appointment, the obligation of taking all reasonable steps to ensure that the work of the Organization is limited to what is necessary for the discharge of its functions. I should have thought that this would have been the responsibility of the Director-General even if the statute had been silent upon the point. Why the express enactment of it, readily understandable in the case of ASIO with its investigatory functions and its history of political controversy, should be thought to be a pointer to ousting the jurisdiction of the courts, I am at a loss to appreciate. The considerations to which I have just referred underlie the purpose which s. 8(2) serves. The provision that the Minister cannot override the opinion of the Director-General on the matters set out in pars. (a), (b) and (c) - whether the collection of intelligence concerning an individual is relevant to security; whether communication of intelligence concerning an individual is for a purpose relevant to security; and the advice to be given to the Commonwealth and its agencies - is plainly designed to make ASIO in these functions at least independent from ministerial direction and free from political interference. It says nothing about the availability of judicial review. (at p58)

15. Part IV provides for an appeal by a person who has been given notice of an adverse or qualified security assessment to the Security Appeals Tribunal. Section 37(5) provides that, other than an appeal to the Tribunal, no proceedings shall be brought in any court or tribunal in respect of a making of an assessment or anything done in respect of an assessment. Section 62 then provides that a decision of the Tribunal is not subject to review by any court or other tribunal. There is no doubt that the provisions in Pt IV reflect a paramount concern with security and with the need to protect the confidentiality of security intelligence and information. But again I do not think that this or the desire to protect security assessments and the Tribunal's decision from judicial review evidences a more general intent to protect all the activities of ASIO from judicial review. Indeed, the very presence of s. 37(5) and s. 62 contrasts with the absence of provisions having a general operation outside the ambit of s. 37(5) and s. 62. This contrast is of telling significance. (at p59)

16. It is to s. 17 that we must look for the statutory statement of ASIO's functions. The importance of this description is that it confines these functions by reference to matters relevant to security and it gives very much emphasis to so confining them. Thus, the intelligence which ASIO is to obtain, correlate and evaluate is "intelligence relevant to security" (par. (a)); it is authorized to communicate that intelligence "for purposes relevant to security and not otherwise" (par. (b)); and it is to advise Ministers and the Commonwealth in respect of matters relating to security, but only "in so far as those matters are relevant to their functions and responsibilities" (par. (c)). The pervasive intention to confine ASIO's activities and to confine them to matters relevant to security destroys the suggestion that ASIO's activities should be completely immune from judicial review for ultra vires. And there are very powerful reasons why Parliament would wish to restrict ASIO's activities in this way. Surveillance in association with the obtaining, storage and dissemination by a government organization of information relating to private citizens can only be justified in a democratic society by the need to protect that society, i.e., on security grounds. (at p59)

17. It is an abuse of s. 17(1) to read it, as the Solicitor-General asks us to do, as if s. 8(2) is somehow to be incorporated into it, so that the functions of ASIO are transformed into the pursuit of activities which in the opinion of the Director-General are relevant to security. It is not the office of s. 8(2) to delimit ASIO's functions; its purpose is to deal with the relationship between the Minister and the Director-General and, as I have said, to protect ASIO from political interference. (at p59)

18. No-one could doubt that the revelation of security intelligence in legal proceedings would be detrimental to national security. But it does not follow that ASIO's activities should be completely free from judicial review. To so conclude would be to ignore the protection which is given by the doctrine of Crown privilege to information the disclosure of which is prejudicial to national security. (at p59)

19. It is one thing to say that security intelligence is not readily susceptible of judicial evaluation and assessment. It is another thing to say that the courts cannot determine whether intelligence is "relevant to security" and whether a communication of intelligence is "for purposes relevant to security". Courts constantly determine issues of relevance. As an issue, relevance to security involves several unusual complications. The first is that the expanded definition of "security" in s. 4 and the associated definition of "subversion" in s. 5 extend to a wide variety of matters, including the carrying out of Australia's responsibilities to any foreign country in relation to any of the matters referred to in par. (a) of the definition of "security". The second is that security is a concept with a fluctuating content, depending very much on circumstances as they exist from time to time; it is similar to the constitutional concept of defence. The third is a problem which arises in relation to s. 17(1)(a), a problem of determining the relevance to security of intelligence concerning a particular person or organization. Is the question of relevance to security to be determined: (a) in the light of what is known to ASIO; or (b) in the light of all the circumstances touching the particular person or organization, whether known to ASIO or not? I set this point aside for later discussion, merely noting at this stage that I would answer question (a) in the affirmative. The final point is that Crown privilege will almost certainly exclude from consideration some evidence that is material and would otherwise assist the Court in deciding whether particular intelligence is "relevant to security". (at p60)

20. I return now to the second of the points mentioned above. As a matter of expression s. 17(1)(a) is drawn more narrowly than s. 17(1)(b) - in (a) the intelligence obtained, correlated and evaluated must be relevant to security; in (b) the communication of intelligence must be "for purposes relevant to security". However, little, if anything, turns on this difference because it would be absurd to suppose that Parliament intended by s. 17(1)(a) to confine ASIO to the obtaining of intelligence which on ultimate analysis in the light of all established facts, whether known to ASIO or not, related to a person who is a security risk. In the very nature of things a security intelligence organization from time to time receives information, not always reliable, tending to suggest that an individual is a security risk. The information has to be checked out and followed up. This may, and probably will, involve the obtaining of intelligence relating to the alleged suspect. The end result of the inquiries may establish to the satisfaction of ASIO, or even objectively, that the suspect is not and never was a security risk. But this does not mean that the intelligence which ASIO obtained was not relevant to security. Intelligence is relevant to security if it establishes or tends to establish that a person suspected of being a security risk is, or is not such a risk. Moreover, it may well be that intelligence is relevant to security, so long as it is obtained for the purpose of determining whether a person alleged or thought to be a security risk, is such a risk. Despite this, in some cases it may be possible to infer from the character and reputation of the plaintiff that ASIO could have no information in its possession suggesting that he is a security risk or that if it has, that information could not be credible, simply because the suggestion that the particular plaintiff is a security risk must be regarded as fanciful. (at p61)

21. The first three matters to which I have referred do not make the issue of relevance to security insusceptible of judicial determination. Intelligence is relevant to security if it can reasonably be considered to have a real connexion with that topic, judged in the light of what is known to ASIO at the relevant time. This is a test which the courts are quite capable of applying. It is a test which presents a formidable hurdle to a plaintiff and not only because a successful claim for Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument - that there is no real connexion between the intelligence sought and the topic. 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. (at p61)

22. Although the statutory statement of ASIO's functions does not define them in terms of the Director-General's opinion of what is relevant to security, it is obvious that the Director-General's opinion of what is relevant to security would, if given, constitute important evidence in the decision of the question whether ASIO is acting ultra vires. The practical consequence of this is that a person seeking to establish that actions taken by ASIO are ultra vires may need to show that the Director-General's opinion, based as it inevitably will be on information in ASIO's possession, is wrong, as an element in demonstrating that the intelligence cannot reasonably be considered to have a real connexion with security. But this does not mean, as seems to have been thought in argument, that the plaintiff is challenging the exercise of a statutory discretion by the Director-General and that he must therefore show that the Director-General did not form a genuine opinion that the actions were relevant to security or that his opinion was not bona fide or was formed with some ulterior purpose in mind. It means no more and no less than that a plaintiff bears the onus of showing that there is no reasonable basis for concluding that the actions in question have a real connexion with security. Although this task is rather different from that suggested by the Solicitor-General it will none the less be a formidable task. (at p61)

23. It is not suggested that the two Acts exceed the legislative powers of the Commonwealth Parliament. However, it is suggested that by making inquiries not related to security ASIO exceeds the executive power of the Commonwealth. The suggestion is not only misconceived, it is also irrelevant. Attorney-General (Cth) v. Colonial Sugar Refining Co. Ltd. [1913] UKPCHCA 4; (1913) 17 CLR 644 decided only that "the Commonwealth cannot constitutionally confer compulsive powers" on a body set up to make an inquiry into a subject matter outside the powers of the Commonwealth (Lockwood v. The Commonwealth [1954] HCA 31; (1954) 90 CLR 177, at p182 ). As Fullagar J. says in Lockwood the only possible objection to an inquiry of a non-compulsive kind by the Commonwealth as to any subject of its own choosing is as to the application or, as I would prefer to express it, the expenditure of moneys on matters outside Commonwealth power. But this is by the way. In the present case we are concerned with excess of statutory powers. As I have already said, if ASIO exceeds its statutory functions it can be no answer to say that what it is doing is within the executive power of the Commonwealth. The Parliament has limited ASIO's functions. If the limitation is as I think it is, to something less than the full scope of the Commonwealth's executive powers, then the consequence is that ASIO cannot exceed that statutory limitation, though the Commonwealth in its other capacities may act free from that limitation. (at p62)

24. At this point it is necessary to examine the case pleaded by the appellant. In part some of the misconceptions which have arisen in argument are attributable to the way in which the appellants' case has been pleaded. In my comments on the amended statement of claim I shall omit all references to the 1956 Act. It was replaced by the 1979 Act. The appellants' claim for relief on the footing that ASIO exceeded its powers under the 1956 Act is confined to declaratory relief; there is no claim for consequential relief by way of damages. It is inconceivable that the Court would exercise its discretion so as to grant declaratory relief in respect of past acts long since completed under a statute which has since been repealed. The manifest inutility of making such a declaration makes the claim for relief academic. I shall therefore focus my attention on the case for relief in respect of what is alleged to have occurred under the 1979 Act. (at p62)

25. The essence of the appellants' case consists of two allegations in par. 7A of the amended statement of claim. The first allegation is that the first respondent has caused or permitted ASIO to continue to obtain, correlate and evaluate further intelligence concerning the appellants and to continue to communicate such further intelligence to other persons, notwithstanding that the initial obtaining, correlating and evaluating of intelligence concerning the appellants "established or ought to have established that such intelligence" (1) is not relevant to security; (2) does not relate or appear to relate to the matters mentioned in s. 18(3)(a) and (b); and (3) does not come within s. 18(3)(c). The second allegation is that the first respondent has caused or permitted ASIO to characterize the appelants as persons who, broadly speaking, are a security risk and has caused or permitted ASIO to communicate such characterization to other persons. (at p63)

26. The appellants also allege that neither of the appellants are or have been at any material time, a security risk, that they are not persons who have committed or intend to commit the offences referred to in s. 18(3)(a) and (b) (see pars. 8A(a) and (b). They further allege that intelligence concerning the appellants is not now, and has not been at any material time, intelligence which is relevant to security, or which relates to the commission or intended commission of the offences referred to in s. 18(3)(a) and (b) or which comes within s. 18(3)(c): see par. 8A(c). (at p63)

27. Two matters at least are left obscure by the amended statement of claim. The allegation in par. 7A(b) that the initial obtaining etc. of intelligence "established or ought to have established that such intelligence" is not relevant to security should evidently be understood as referring to "such further intelligence". The second matter is whether pars. 7A and 8A of the amended statement of claim are alternative and independent allegations. In this respect Mr. Castan for the appellants conceded that the allegations in par. 8A are linked to the allegations in par. 7A. It is essential to the appellants' case, as pleaded and argued, that the initial obtaining etc. of intelligence concerning the appellants established or ought to have established that they were not persons who presented a security risk. (at p63)

28. Even if it be assumed that the initial intelligence established or ought to have established that the appellants were not a security risk, this does not exclude the hypothesis that subsequent information provided a fresh basis for suspecting that the appellants were a possible security risk. And the further allegations in par. 8A that the appellants are not and have not been at any material time a security risk does not answer the problem. I have already pointed out that, although a person is not in fact a security risk, ASIO may well have reasonable grounds, based on information it receives, for believing or suspecting that he is. Likewise, subsequent information may provide a fresh basis for viewing the appellants as persons who may have committed or intend to commit offences mentioned in s. 18(3)(a) and (b), notwithstanding that earlier intelligence may have shown that they were not implicated. (at p64)

29. Because the allegation in par. 8A(c) is linked to the allegations in par. 7A it provides no independent ground for relief. The appellants' case is that intelligence concerning the appellants has not been at any material time relevant to security, because intelligence initially obtained showed that the appellants were not a security risk. It is not surprising that the case should be presented in this way. Unless the appellants can show that intelligence initially obtained established that they were not a security risk and that intelligence concerning them was not relevant to security, how do they begin to construct a prima facie case that intelligence concerning them has not been at any material time relevant to security? The matters alleged in par. 7A are material to the matters alleged in par. 8A. Indeed, their materiality and connexion might have been made clear by the inclusion in par. 8A of some such words as "by reason of the matters alleged in par. 7A". (at p64)

30. I would dismiss the appeal. (at p64)

MURPHY J. The appellant plaintiffs claim relief on the ground that the Australian Security Intelligence Organization (ASIO) is breaking the Australian Security Intelligence Organization Act 1979 ("the Act") by improperly using its powers in relation to the plaintiffs. The plaintiffs also claim a declaration (without any consequential claim for damages) that ASIO exceeded its powers under the repealed Australian Security Intelligence Organization Act 1956-1976; this seeks judicial opinion on a dead issue, and may be disregarded. By demurring, the respondents, the Director-General of ASIO and the Commonwealth, raise the question whether the plaintiffs can bring such a claim to court. The plaintiffs' appeal is from Wilson J.'s decision to uphold the demurrer. The plaintiffs' standing is not challenged and no question has been raised about the constitutional validity of any part of the Act. The question is whether such a claim or cause of action is judicially recongnized. (at p64)

2. ASIO is authorized by the Act; its functions are set out in s. 17(1). As part of the executive government, ASIO and its members are subject to the administrative control of the Executive Council and Ministers envisaged by the Constitution: ss. 61, 64. The Constitution vests the executive power in the Governor-General and Ministers who (except for a three months' period of grace) must be members of the Senate or the House of Representatives. This is the mechanism by which responsible government is secured. Responsible government is also a feature of State Constitutions, although sometimes it has been erroneously suggested that Commissioners of Police are outside the control of the government and have some mystical relationship with "the Crown". (at p65)

3. ASIO and its officers are also subject to the judicial constraints which apply to every other branch of the executive government. Parliament has not purported to immunize ASIO from judicial process and could not constitutionally do so. The Constitution provides that the Commonwealth and its officers are amenable to judicial process. If they violate the law, redress is achievable in this Court at least by any person with sufficient interest to meet the requirements of standing. Section 75(iii) of the Constitution gives this Court original jurisdiction in actions against the Commonwealth and persons sued on behalf of the Commonwealth. Section 75(v) of the Constitution authorizes this Court to issue writs of mandamus, prohibition and injunction against officers of the Commonwealth. The Prime Minister, Ministers, justices of federal courts, officers of statutory bodies and federal public servants are officers of the Commonwealth and so are the Director-General, the officers and employees of ASIO. The Solicitor-General correctly did not assert that the actions of ASIO, its officers and employees were unconstrained by law and immune from legal redress. (at p65)

4. The necessity for such controls is demonstrated by the history of such organizations here and overseas. Characteristically from time to time they exceed, and misuse, their powers. The expectation that they will do so, creates a climate of apprehension and an inhibition of lawful political activity even at the highest levels of government. There are many references to these tendencies and I will mention a few. (at p65)

5. Royal Commissioner Mr. Justice Hope found that there have at times been departures by ASIO from principles of legality, propriety and staying within its charter (Royal Commission on Intelligence and Security Fourth Report, vol. 1, 1977, pp. 70-71). Mr Acting Justice White in his initial report on the South Australian inquiry into the operation of the Special Branch of the South Australian Police Force, said "principal concern about Special Branch records was with the width of its interpretation of 'domestic subversion', an interpretation obviously influenced by ASIO and by the Federal Bureau of Investigation of the United States. An exaggerated interpretation of the concept by security forces in various countries over recent decades has resulted in many innocent persons being suspected of subversion. Special Branch records reflect this kind of groundless suspicion." See also Royal Commission Report on the Dismissal of H.H. Salisbury, 1978, p. 36. The Australian experience is not exceptional. (at p65)

6. In Canada the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Parliament and Security Matters stated in 1979 that the danger to civil liberties in police surveillance of political activities and organizations are obvious and "include the possibility of the intimidation of persons simply by the citizen's awareness of surveillance, the inhibition of freedom of expression, the potential for abuse and misuse of information on individuals and organizations; infiltration of and consequent influencing of organizations; the use of discretionary police powers to inhibit individuals from political activities, and so on . . ."(Study by C. E. S. Franks, p. 7. See also W. H. McConnell, "Unreasonable Searches and Seizures: A 'Fourth Amendment' for Canada?" Revue de Droit, vol. 11 (1980-81), 155, at pp. 159-160.) (at p66)

7. In England during the debates in the House of Lords in 1979 on the British Telecommunications Bill, a number of members expressed concern at the disquiet in the general community, and amongst themselves, about telephone tapping by British security services (House of Lords: Parliamentary Debates, 19 May 1981, pp. 858-863). Lord Gardiner informed the House of the difficulties during his period of office as Lord Chancellor (1964-1970) in having strictly private conversations with the then Attorney-General and said that he believed that his telephone calls were intercepted by a British intelligence organization (p. 858). (at p66)

8. In the United States in 1970 Congress, concerned with the scope of the United States' Army's domestic surveillance system, conducted hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary. In 1975 the Hearings before the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, held before the United States' Senate, disclosed an extraordinary range of activities on the part of the Central Intelligence Agency (C.I.A.), Federal Bureau of Investigation (F.B.I.) and National Security Agency (N.S.A.). Concern was noted at the "sophisticated vigilante operation (of the F.B.I.) aimed squarely at preventing the exercise of First Amendment rights of speech and association", misinformation being given to "many senior Government officials" by the intelligence bodies about "intelligence" activities, "violation of laws of the land" and "acknowledgment by (the agents and agencies) of the illegality of (their) . . . actions". (See Final Report, Books 1-6 and Hearings, vols. 1-7; see also "Abscam Scandal Clouded Congress' Image" in Congress and Government, 1980 C.Q. Almanac 513; "Senate Abscam Committee Broadens Scope" in C.Q. - Inside Congress, 22 May 1982, p. 1215; see also Laird v. Tatum [1972] USSC 162; (1972) 408 US 1 (33 Law Ed (2d) 154) and Morton H. Halperin and Daniel Hoffman, Freedom vs. National Security - Secrecy and Surveillance, New York, 1977.) Chief Justice Warren referred to a surreptitious attempt in 1969 to influence the Supreme Court on pending cases about illegal surveillance (Memoirs, pp. 338- 342). (at p67)

9. A wealth of memoirs and other literature demonstrates that the socialist and communist countries have also experienced secret intelligence organizations engaging in surveillance and other behaviour beyond what could reasonably be regarded as legitimate actions in the interests of national security, and widespread community apprehension over the behaviour. (at p67)

10. Experience thus shows that for a free society to exist intelligence organizations must be subject to administrative supervision and amenable to legal process. The Act contains some express safeguards against misuse by officers:

"20. The Director-General shall take all reasonable steps to ensure that

-

(a) the work of the Organization is limited to what is necessary for the purposes of the discharge of its functions; and

(b) the Organization is kept free from any influences or considerations not relevant to its functions and nothing is done that might lend colour to any suggestion that it is concerned to further or protect the interests of any particular section of the community, or with any matters other than the discharge of its functions."

11. United States Senator Sam Ervin said any "claim of an inherent executive branch power of investigation and surveillance on the basis of people's beliefs and attitudes may be more of a threat to our internal security than any enemies beyond our borders" ("Privacy and Government Investigations", University of Illinois Law Forum (1971), 137, at p. 153). So would a statutory power on the same basis, but the Act does not purport to grant such a power, and s. 20 makes this clear. It would be a misuse of power and office if ASIO (or any other government organization) were to infiltrate trade unions, political or other organizations, or use their members to influence the course of activities, or directly or indirectly inhibit or adversely affect radicals, non-conformists or other dissenters. The Act does not purport to authorize any system of thought control or of inhibition, directly or indirectly, of those who advocate or strive by lawful means for changes, even fundamental ones, in our society. Australians are entitled to advocate and strive for a republic, a socialist society, a theocratic one, as long as they do so by lawful means. Advocacy of, or working for, socialism, republicanism or theocracy are not subversion; it would be an abuse of authority if ASIO carried out its functions on the basis that they were. (at p68)

12. ASIO has not been authorized (and it could not constitutionally be authorized) to do what any natural person could do - i.e., to investigate and disseminate information about anyone he or she chooses for any purpose at all provided that this did not involve breach of any law. Nor has ASIO been authorized to exercise all possible power with which the executive government could be vested by way of investigation or dissemination of information. (at p68)

13. Any powers granted to ASIO and exercisable by its Director-General or other officers must like other powers be used in good faith, for the purposes for which they are conferred and with due regard to those affected. That is the general rule (see British Equitable Assurance Company Ltd. v. Baily (1906) AC 35, at p 42 ; Isles v. Daily Mail Newspaper Ltd. [1912] HCA 18; (1912) 14 CLR 193, at p 202 ; Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 ; Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 ). These implied conditions are not to be taken as excluded except by unmistakable language. If any of its officers acts in bad faith, uses his or her office or powers for extraneous purposes (for example private, domestic, or partly political) or acts without due regard to those affected, then the officer is liable for misuse of office or power. Remedies may be in the traditional tort claims such as assault, trepass and defamation and the developing torts such as unjustified invasion of privacy, and outrage, or statutory remedies. (at p68)

14. Therefore, if a violation of the law by ASIO is proved, ASIO and its officers are amenable to legal process and to remedies available at least under the Constitution. The difficulty the plaintiffs face is that assertion of violation of the law is one thing, proof is another. If a case comes before the courts where it is claimed on what appear to be reasonable grounds that ASIO has misused its powers, it is to be expected that the courts will be astute to ensure that misuse of power is not cloaked by claims of national security. Because of the experience that secret organizations of this kind from time to time misuse their powers in relation to individuals and institutions, it is essential that the judicial process be exerted, no doubt with caution, but if occasion warrants it, firmly, to keep the organization and officers within the law. At this stage we are dealing with a case on demurrer, a procedure in which the assertions of fact by the plaintiffs are assumed to be correct. The Court therefore decides the demurrer on the assumption, which may be incorrect, that the organization has misused its powers in relation to the plaintiffs. To the question: if the assumed facts are proved, is there a legal remedy, the answer should be yes. (at p69)

15. One of the plaintiffs' claims was that if initial investigation of a person or group proved negative then ASIO would exceed its powers if it continued investigation. That is obviously incorrect. (at p69)

16. The demurrer should be overruled and the plaintiffs should be directed to amend the statement of claim by deleting the statements in pars. 7A and 9A concerning initial intelligence and initial inquiry. (at p69)

17. The appeal should be allowed. (at p69)

BRENNAN J. The Australian Security Intelligence Organization ("the Organization") was established in pursuance of a directive given by the Prime Minister of the day on 16 March 1949. The Organization was recognized by s. 4 of the Australian Security Intelligence Organization Act 1956 (Cth), which continued it in existence. The 1956 Act was repealed by the Australian Security Intelligence Organization Act 1979 (the Act), s. 6 of which provides that the Organization, "being the Organization that was continued in existence by the Acts repealed by this Act, is continued in existence". Its staff is employed by the Director-General on behalf of the Commonwealth (s. 84), and it is under the control of the Director-General (s. 8(1)). It is not incorporated, and it is otiose to inquire as to corporate powers. (at p69)

2. It is an organization - a group of persons centrally controlled and acting in concert to perform particular functions. No doubt the efficiency with which those functions are performed owes much to the internal control and direction of its staff, to the facilities furnished for their use by the Commonwealth and to the exercise on occasions of the special powers for which Div. 2 of Pt III of the Act provides. The discipline of the Organization and the facilities and powers available to the Director-General and the staff enable them to do collectively more than they could do severally, and to do it more effectively. (at p69)

3. The functions of the Organization are not left at large. Parliament defined its functions in s. 17 of the Act. That provision is not merely facultative: it marks the limits of legitimate organizational activity, which might otherwise have a "chilling effect" (to borrow the phrase used in Laird v. Tatum [1972] USSC 162; (1972) 408 US 1(33 Law Ed (2d) 154) upon the enjoyment of those freedoms or immunities which are sometimes described as civil rights. Parliament clearly intended that the statutory charter of the Organization's functions should define both what the members of the Organization are to do and what they are not to do. The Director-General is charged expressly with the administrative responsibility of ensuring that the Organization does not exceed the functions assigned to it by statute (s. 20). The limitation implies a prohibition upon the Director-General and upon the staff of the Organization from acting in concert, from using the facilities furnished by the Commonwealth and from exercising special powers as members of the Organization in the performance of functions which the Parliament has not assigned to it. (at p70)

4. The prohibition not only binds the Director-General and the staff of the Organization but it also limits the directions which might be given by the Minister to the Director-General under s. 8(2). It is not necessary to consider now whether a contravention of the prohibition is a tort actionable at the suit of a person adversely affected thereby; it is sufficient to observe that the prohibition can be enforced at the suit of a person having a special interest in enforcing it (Onus v. Alcoa of Australia Ltd. [1981] HCA 50; (1981) 149 CLR 27 ). If need be, the prohibition can be enforced by injunction, restraining either the performance of an unauthorized function, or acting as a member of the Organization while performing an unauthorized function, or both, according to the exigencies of the case. The law expressed by the Parliament is that the strengths and resources of the Organization should be employed only in the performance of the functions assigned to it, and the remedies of the law can be moulded to enforce the law so expressed. (at p70)

5. The jurisdiction of this Court to give relief compelling compliance with the Act is not in question. It was conceded that the activities of the Organization were subject to judicial review, and the concession was rightly made. As the law which sustains the Organization in existence limits its functions, it would mock the will of Parliament to deny that the functions which it has defined may be exceeded without restraint by the courts. Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly (cf. L. F. Jaffe and E. G. Henderson, "Judicial Review and the Rule of Law: Historical Origins", Law Quarterly Review, vol. 72 (1956), p. 345; Legal Control of Government: Administrative Law in Britain and the United States (1972), ch. 9, by Professors Schwartz and Wade). The remedy of declaration is available to define the limit of executive powers or functions in a particular case. In Dyson v. Attorney-General (1911) 1 KB 410, at p 423 , Farwell L.J. pointed out the convenience in the public interest of giving speedy and easy access to the courts to those "who have any real cause of complaint against the exercise of statutory powers by Government departments and Government officials". In Crouch v. The Commonwealth [1948] HCA 41; (1948) 77 CLR 339, at p 359 Williams J. referred to this dictum and added:

"This case and Burghes v. Attorney-General (1912) 1 Ch 173 indicate the particular benefits that flow from making declaratory decrees where such departments and officials are not acting in accordance with their statutory powers."

In the present action, where it is pleaded that the acts complained of were not done in performance of a function assigned to the Organization by the Act, declaratory relief will be appropriate if the plaintiff makes out a case. A declaration would be appropriate not because the Organization is to be regarded as a quasi-corporation bound by a declaration as to its powers, but because the binding of the defendants by a declaration would require the Director-General, in controlling the Organization, and the Attorney-General in giving general directions to the Director-General (see s. 8(1) and (2)), to act in conformity with the declaration. (at p71)

6. It is submitted, however, that the Act commits to the Organization the determination of what activities it will undertake within its charter, and that a decision to engage in a particular activity is not open to review merely because a mistake is made as to whether that activity is within its charter. Bad faith apart, it is said, mistakes in making decisions are necessarily incidental to or part of the Organization's function of deciding whether to undertake a particular activity and mistaken decisions, honestly made, are not amenable to judicial review. (at p71)

7. The submission cannot be accepted. The Organization's functions are not defined in terms of what the Organization believes them to be. The provisions of the Act, not the Organization's opinion, furnish the measure of its legitimate functions. No doubt it is necessary for the Organization to decide whether a particular activity is within its functions but such a decision is merely the administrative step taken to ensure compliance with the Act. What Fullagar J. said with respect to the constitutional validity of administrative acts in Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, at p 258 applies equally to the statutory validity of an executive act undertaken in reliance upon a statutory power:

"The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity."

Though it is for the Court to determine whether a particular activity is within the functions assigned by the Act to the Organization, a plaintiff in an action to enforce the statutory limitations on the Organization's activities encounters formidable difficulties. Some of those difficulties stem from the inevitable imprecision in the terms used to define the Organization's functions; some of the difficulties stem from the secrecy which necessarily shrouds the activities and plans of such an organization. (at p72)

8. Section 17 of the Act, the leading provision defining the Organization's functions, reads as follows:

"(1) The functions of the Organization are--

(a) to obtain, correlate and evaluate intelligence relevant to security;

(b) for purposes relevant to security and not otherwise, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes; and

(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.

(2) It is not a function of the Organization to carry out or enforce measures for security within an authority of the Commonwealth."

9. A plaintiff who seeks to prove that members of the Organization, who are otherwise acting lawfully, are engaged in doing in respect of him what they are prohibited from doing as members of the Organization, must show that its members are assembling intelligence in respect of him which is not relevant to security, or are communicating intelligence in respect of him for a purpose which is not relevant to security. To prove that proposition, a plaintiff must be able to show at least the relevant boundary of the concept of "security", else he cannot show that the intelligence or purpose in question is not relevant to it.

"Security" is defined by s. 4 to mean -

"(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from -

(i) espionage;

(ii) sabotage;

(iii) subversion;

(iv) active measures of foreign intervention; or

(v) terrorism;

whether directed from, or committed within, Australia or not; and

(b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the sub-paragraphs of paragraph (a);" (at p73)

10. Paragraph (a) of the definition specifies the persons or polities to be protected from conduct of the kinds mentioned in sub-pars. (i) to (v). The adverse affection or risk of adverse affection of any of their interests from conduct of those kinds is a matter of security. That part of the definition is in the widest of terms, and it is supplemented by par. (b) which encompasses Australia's responsibilities to foreign countries in relation to the conduct mentioned in sub-pars. (i) to (v) of par. (a). (at p73)

11. The restrictive elements in the definition of "security" are to be found in pars. (i) to (v) of par. (a). Unless there be a risk of espionage, sabotage, etc. there is nothing from which protection may be required. The function of the Organization in assembling and disseminating intelligence is to counter espionage, sabotage, subversion, active measures of foreign intervention and terrorism so far as any conduct of those kinds may either threaten the Commonwealth, the several States and Territories and the people thereof or be the subject of Australia's international responsibilities. The functions of the Organization are thus defined in terms of the purpose to be served by the intelligence activity in question. (at p73)

12. Parliament confined the relevant purposes by enacting definitions of "subversion" (s. 5) and "active measures of foreign intervention" (s. 4) "Terrorism" was defined to include particular classes of conduct (s. 4). "Espionage" and "sabotage" were not defined, but perhaps their meaning in the Act is to be gleaned from the Crimes Act 1914 (Cth) (see ss. 24AB and 78). Protection from the several kinds of conduct mentioned in par. (a) or the carrying out of Australia's international responsibilities in relation to such conduct are the purposes for which the members of the Organization may assemble and disseminate intelligence. Unless intelligence is relevant to a risk that such conduct may be engaged in, or to an apprehension that it is being engaged in, the assembly and dissemination of that intelligence is not within the legitimate functions of the Organization. But for all the statutory endeavour to give some precision to the definition of the Organization's functions, there is an inherent elasticity in the term "relevant". The requisite degree of relevance must surely depend upon the gravity of the conduct from which the assembly and dissemination of intelligence is intended to provide protection. The gravity of the risk against which protection is needed affects the scope of the inquiries which it is prudent to make, and thus the degree of relevance between the intelligence which the Organization might legitimately assemble and the conduct which is apprehended. But, it may be said, how can the gravity of a security risk be evaluated by a court? It may be necessary to evaluate Australia's relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof. It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than deduction. It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely. However, it does not follow that judicial review is excluded. (at p74)

13. The issue for curial determination is whether the activity of which a plaintiff complains is either an assembly of intelligence which is not relevant to security, or a dissemination of intelligence for a purpose which is not relevant to security or, perhaps, some other activity which falls outside s. 17. To prove either of the first two propositions, the plaintiff must be able to show that, allowing for any deficiency in the court's ability to quantify the security risk precisely, the intelligence or purpose in question is not relevant to security. Although it is not essential that the court be able to quantify the security risk, its inability to do so will affect its finding as to whether the limit upon the functions of the Organization has been exceeded. The evidentiary burden may be difficult to discharge, but the issue of excess of function is nevertheless justiciable. In particular, it is for the court at the end of the day to say whether, after allowing for any deficiency in its ability to quantify the security risk, it is satisfied that the requisite degree of relevance to security is absent. (at p75)

14. The court is not bound by the Organization's opinion as to what constitutes security or what is relevant to it. As Lord Devlin said in Chandler v. Director of Public Prosecutions [1962] UKHL 2; (1964) AC 763, at p 811 :

"There is no rule of common law that whenever questions of national security are being considered by any court for any purposes, it is what the Crown thinks to be necessary or expedient that counts, and not what is necessary or expedient in fact."

This Court has of necessity formed a view as to matters of national security in determining the connexion between challenged legislation and the defence power relied on to support it: see, e.g., Marcus Clark & Co. Ltd. v. The Commonwealth [1952] HCA 50; (1952) 87 CLR 177 . If the issues under s. 17 were not justiciable, the limitation of function spelt out by s. 17 would be determined not by the section, but by the unreviewable belief of the Director-General as to what is within the ambit of the section. It is not necessary to consider whether the Act, so construed, would withstand a challenge to its validity. It is sufficient to say that the difficulties inherent in questions of national security do not affect the justiciability of the issues, though they are of major importance in determining the sufficiency of evidence bearing on those issues. (at p75)

15. The burden of proof resting on a plaintiff is not necessarily discharged by showing that an activity of which he complains does not appear at first sight to be a function referred to in s. 17, or by showing that the Director-General made an error of law or fact in forming an opinion that the activity was legitimate. The appearance at first sight of the activity or the opinion of the Director-General are not the issues for determination under s. 17, though each of those factors may be material to those issues. It is futile, of course, to attempt an exhaustive statement of what evidence will suffice to discharge the burden of proof in every case. It would be an unusual case, however, if a plaintiff without discovery against the Director-General could discharge the burden of proving that the Organization had engaged in the particular activity of which he complains and that that activity fell outside s. 17. The negative propositions involved in the latter question would ordinarily require proof of matters peculiarly within the knowledge of the Director-General. The matters within his knowledge would be likely to show what is relevant to the protection of the Commonwealth, the States or Territories or of the people thereof from any conduct mentioned in sub-pars. (i) to (v) of the definition of "security", or to show what is relevant to Australia's international obligations in respect of such conduct, and those matters would be oftentimes of great assistance in determining the issues. (at p76)

16. Yet discovery would not be given against the Director-General save in a most exceptional case. The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc. is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice (Reg. v. Lewes Justices; Ex parte Home Secretary (1973) AC 388, at p 407 . Indeed, even if the plaintiff were in possession of evidence relevant to the activities of the Organization and the matters in respect of which those activities were being pursued, the evidence might be inadmissible. In D. v. National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1978) AC 171, at p 233 , Lord Simon of Glaisdale observed:

"So the law says that, important as it is to the administration of justice that all relevant evidence should be adduced to the court, such evidence must be withheld if, on the balance of public interest, the peril of its adduction to national security outweighs its benefit to the forensic process . . . "

Nevertheless, the veil of secrecy is not absolutely impenetrable, for the public interest in litigation to enforce the limitation of function prescribed by s. 17 is never entirely excluded from consideration (Sankey v. Whitlam (1978) 142 CLR 1 . But the veil is not penetrated merely by a plaintiff's deposition that he is not a security risk. That, after all, may be the very matter which is under investigation. Nor is the veil penetrated by showing that initial investigation has failed to reveal that he is a security risk, for one who turns out to be a security risk will often be found to have some depth of cover. (at p76)

17. There are thus large obstacles in the path of a plaintiff who seeks to restrain an alleged activity of the Organization on the ground that it does not lie within the functions assigned to it by s. 17. They do not arise because the Court's jurisdiction has been ousted, nor because the issues upon which a right to relief might turn are not justiciable. They arise first because of the difficulty of proving the negative proposition that, whatever the content of the notion of "security" in the instant case, the intelligence being assembled is not relevant to it, or the purpose of its dissemination is not relevant to it. They arise secondly because of the restrictions imposed upon discovery in aid of proving, and upon the admission of evidence in proof of, what is and what is not relevant to security. (at p77)

18. The extremely narrow confines within which the activities of the Organization are likely to be judicially reviewed are recognized by the statutory direction given by s. 20 to the Director-General to do administratively what a court could be moved to do if it were put in possession of all the facts known to the Director-General. The Director-General (who may be a judge: s. 15) is removed from Ministerial direction in reaching his decision on either of the questions specified in s. 8(2):

"(a) on the question whether the collection of intelligence by the Organization concerning a particular individual would, or would not, be

justified by reason of its relevance to security;

(b) on the question whether a communication of intelligence concerning a particular individual would be for a purpose relevant to security;"

19. In the light of these general observations, I turn to the amended statement of claim. The allegations therein contained relating to the activities of the Organization prior to 1 June 1980 (the day on which the 1979 Act came into operation) may be put aside, for declaratory relief should not be granted in respect to the operation of the 1956 Act after its repeal when no consequential relief depends upon it. Allegations relating to the activities of the Organization after 1 June 1980 are to be found in amendments made to the statement of claim on 14 August 1980. The amendments were framed in faithful repetition of the statutory phrases. It is alleged by par. 7A(a) and (b) that intelligence concerning the plaintiffs and other members of the first-named plaintiff has been obtained correlated and evaluated by the Organization (cf. s. 17(1)(a)), and that such intelligence has been communicated to other persons (cf. s. 17(1)(b)). It is further alleged (by par. 8A(c)) that such intelligence is not and has not been at any material time since 1 June 1980 "relevant to security within the meaning of the 1979 Act", and (by par. 9A(b)) that the Organization is prohibited "from communicating such intelligence to any other person". (at p77)

20. The amended statement of claim also contains allegations in terms drawn from the definition of "security", the provisions of s. 20, and the provisions of s. 17(3) - a provision which authorizes the communication of information in certain classes of case which do not fall within s. 17(1)(b). The case was argued, however, on the footing of issues raised under s. 17(1) and it is not necessary to consider either the more detailed allegations or the supplementary allegations contained in the amended pleading. (at p78)

21. In argument on the appeal, some emphasis was placed upon what the pleader described as "initial intelligence" (par. 7A(a) and (b)) or "initial enquiries" (par. 9A(a)). It was submitted in argument (conformably to an allegation in the pleadings) that if the Organization properly initiates an inquiry but a stage is reached where the information gathered ought to satisfy the Organization that there is nothing further into which legitimate inquiry can be made and the Organization nevertheless persists in making further inquiry, a person in respect of whom the further inquiry is being made may then seek judicial review to restrain the further inquiry. The argument is unconvincing in fact, but it is immaterial to the sufficiency of the pleading. To say that an initial inquiry in respect of a person or group ought to satisfy the Organization that that person or group is not a security risk cannot be a proposition of universal truth however clear the results of the initial inquiry may seem to be. On the other hand, what the initial inquiry reveals at first sight, or what state of mind it produces or ought to produce in the Director-General or other officer of the Organization is not the issue upon which the grant of relief depends. If the information gathered in the initial inquiry were admissible and proved in evidence, it may be of assistance to the Court in determining whether a proposed further inquiry falls within s. 17. That is a matter of evidence. The reference in the amended statement of claim to an initial investigation and what it is alleged to have established is a mere pleading of evidence. (at p78)

22. The sufficiency of the statement of claim depends on whether it is therein alleged that the Organization has undertaken activities which do not fall within s. 17. That allegation is made; it is justiciable; it is within the original jurisdiction of the Court. The pleading cannot be struck out. It may be that the plaintiffs will fail for want of admissible evidence, but that is not the matter for present consideration, nor does it appear from the pleading. (at p78)

23. In my judgment, those parts of pars. 7A and 9A referring to initial investigation should be struck out as pleading evidence only. Though importance was placed by the plaintiffs upon those parts, I did not understand counsel to argue that the whole pleading was dependent upon those parts, or to concede that the whole pleading should fall if those parts were struck out. Rather I understood him to submit that the statement of claim raised the broad question of principle whether the relevance of intelligence to security for the purposes of s. 17(1)(a) and (b) was a justiciable issue. Within the limits I have stated, I would hold that the plaintiffs succeed on that issue. The appeal should be allowed, but I would order that the appellants bring in minutes of an order to amend the amended statement of claim by deleting the allegations as to initial intelligence and initial inquiry in pars. 7A and 9A. (at p79)

ORDER

Grant leave to the plaintiffs to file and serve a further amended statement of claim within twenty-one days. In the event of the plaintiffs not filing and serving a further amended statement of claim within that time action dismissed with costs.

CHURCH OF SCIENTOLOGY v. WOODWARD*

(9 November 1979)



*See pp. 41,44 ante.

AICKIN J. This is a summons taken out on behalf of the defendant asking that the statement of claim be struck out pursuant to O. 26, r. 18 on the ground that it does not disclose a reasonable cause of action or alternatively that the proceedings should be stayed under O. 63, r. 2 on the ground that there is not a reasonable or probable cause of action disclosed or that the proceedings are vexatious and oppressive. In the course of the proceedings counsel for the plaintiffs indicated that he did not seek to support pars. 17 and 18 and accordingly those paragraphs may be struck out by consent.

Paragraphs 1-5 of the statement of claim are concerned only with the identification of the parties but when combined with other paragraphs in the statement of claim form part of each of the three causes of action which are asserted. Paragraph 1 states that the first plaintiff was incorporated under the laws of the State of South Australia in 1969. Paragraph 2 states that it is a "religious organization engaged in the practice promotion propagation, teaching and application of the Scientology Religion". Paragraph 3 states that the second plaintiff has at all material times been a member of the first plaintiff and a practising adherent of the Scientology religion, and that he brings the action on his own behalf and on behalf of all of the other members of the first plaintiff as at the date of the issue of the writ, who are said to be numerous and all of whom are said to be practising adherents of the Scientology religion. Paragraph 4 asserts that the defendant is the Director-General of Security holding office under the Australian Security Intelligence Organization Act 1956 (as amended) ("the Act"). Paragraph 5 summarizes the material functions of the Australian Security Intelligence Organization (ASIO).

It is convenient to set out in full ss. 4(1) and 5 of the Act which are as follows:

"4.(1) The Australian Security Intelligence Organization, being the Organization established in pursuance of a directive given by the Prime Minister on the sixteenth day of March, One thousand nine hundred and

forty-nine, is, subject to this Act, continued in existence.

5.(1) The functions of the Organization are -

(a) to obtain, correlate and evaluate intelligence relevant to security and, at the discretion of the Director-General, to communicate any such intelligence to such persons, and in such manner, as the Director-General considers to be in the interests of security;

(b) to advise Ministers, where the Director-General is satisfied that it is necessary or desirable to do so, in respect of matters relevant to security, in so far as those matters relate to Departments of State administered by them or to authorities of the Commonwealth established by or under Acts administered by them; and

(c) to co-operate with such Departments of State and authorities of the Commonwealth and, so far as is practicable, with such Departments and authorities of the States and of other countries as are capable of assisting the Organization in the performance of its functions.

(2) It is not a function of the Organization to carry out or enforce measures for security within a Department of State or authority of the Commonwealth."

disclose, shall be guilty of an offence.

(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him), any fact or document which came to his knowledge, or into his possession, by virtue of his office, and which, at the time when he ceased to be a Commonwealth officer, it was his duty not to disclose, shall be guilty of an offence.

Penalty: Imprisonment for two years."

What was conveniently called in argument the "first cause of action" depends upon pars. 1-5, pars. 6-15 and par. 22. Paragraph 22 states that the action is brought against the defendant in his capacity as Director-General of Security under the Act and is a matter in which the Commonwealth or a person being sued on behalf of the Commonwealth is a party or is a matter in which an injunction is sought against an officer of the Commonwealth, so as to found original jurisdiction in the Court. Paragraphs 1-5 and 22 are common to each of the three causes of action. The relief sought under the first cause of action is set out in par. B of the relief claimed and it is convenient to quote that in full:

"B. Pursuant to paragraphs 1 to 15 and 22 above:

(i) A Declaration that the functions of ASIO do not include the obtaining, correlating and evaluating of information concerning the Plaintiffs or either of them or concerning the members of the firstnamed Plaintiff.

(ii) A Declaration that the functions of ASIO do not include the communicating of any such information to such persons in such manner as the Defendant considers to be in the interests of security.

(iii) A Declaration that the operations of ASIO in obtaining correlating and evaluating information concerning the Plaintiffs and the members of the firstnamed Plaintiff and the communicating of the same to other persons are and have at all times been beyond the power of ASIO and of the Defendant and are unlawful.

(iv) A Declaration that information concerning the Plaintiffs is not 'intelligence relevant to the protection of the Commonwealth and Territories from acts of espionage, sabotage or subversion' within the meaning of the Australian Security Intelligence Organisation Act 1956.

(v) A Declaration that the firstnamed Plaintiff is not a person or organisation from whom the Commonwealth and the Territories require protection from acts of espionage, sabotage or subversion.

(vi) A Declaration that the secondnamed Plaintiff and the members of the firstnamed Plaintiff are not persons who, by reason of their membership of the firstnamed Plaintiff or by reason of being practising adherents of the Scientology Religion, are persons from whom the Commonwealth and the Territories require protection from acts of espionage, sabotage or subversion.

(vii) A Declaration that the communication of information by the Defendant or by ASIO to the effect that the Plaintiffs and the members of the firstnamed Plaintiff are persons from whom the Commonwealth and Territories require protection from acts of espionage, sabotage or subversion is beyond the powers of ASIO and is unlawful.

(viii) A Declaration that in characterising the secondnamed Plaintiff and members of the firstnamed Plaintiff who are practising adherents of the Scientology Religion as 'security risks' by reason of their membership of the firstnamed Plaintiff and by reason of them being practising adherents of the Scientology Religion, for the purpose of security assessments, and in communicating the same to Ministers concerning persons employed or proposed to be employed in offices under the Commonwealth or under authorities of the Commonwealth the Defendant has caused or permitted ASIO to require a religious test as a qualification for an office of public trust under the Commonwealth and has thereby contravened Section 116 of the Constitution.

(ix) An injunction restraining the Defendant from causing or permitting ASIO from continuing to obtain, correlate or evaluate information concerning the Plaintiffs or members of the firstnamed Plaintiff or from communicating any such information to any person.

(x) Alternatively an injunction restraining the Defendant from causing or permitting ASIO from continuing to communicate information to the effect that the Plaintiffs and members of the firstnamed Plaintiff are persons from whom the Commonwealth and Territories require protection from acts of espionage, sabotage or subversion.

(xi) an injunction restraining the Defendant from causing or permitting ASIO to communicate security assessments to Ministers concerning persons employed or proposed to be employed in offices under the Commonwealth or under authorities of the Commonwealth to the effect that such persons as are members of the firstnamed Plaintiff and are practising adherents of the Scientology Religion are 'security risks' by reason of their membership of the firstnamed Plaintiff and by reason of them being practising adherents of the Scientology Religion.

(xii) Damages."

Paragraph 6 alleges that "the Defendant has wrongfully caused or permitted ASIO to obtain, correlate and evaluate information concerning the Plaintiffs and has communicated that information to other persons". Particulars are given under that paragraph which state that ASIO has characterized the first plaintiff as a "target organization" and as an organization that is a "security risk". The particulars further assert that ASIO has undertaken the continuous assembling of information concerning the first plaintiff, and that it has characterized the second plaintiff and "other members" (not identified) as security risks by reason of their membershop of the first plaintiff and their adherence to the Scientology religion. Paragraphs 8 and 9 then set out the basis for the contention that the conduct specified in par. 6 is wrongful or unlawful. Paragraph 7 alleges that information concerning the plaintiffs is not "intelligence relevant to the protection of the Commonwealth and Territories from acts of espionage, sabotage and subversion" within the meaning of the Act. Paragraph 8 alleges that the first plaintiff is not a person or organization in respect of which the Commonwealth and the Territories "require (i.e. need) protection from acts of espionage, sabotage or subversion" and that the second plaintiff and "the members" (presumably all the members) are not, by reason of their membership or by reason of being practising adherents of the Scientology religion, persons from whom the Commonwealth and the Territories require protection from acts of espionage, sabotage or subversion. Paragraph 9 alleges that the obtaining, correlating and evaluation of information concerning the plaintiffs and members of the first plaintiff and the communication of the same to other persons is beyond the powers of ASIO and is unlawful.

Paragraph 10 alleges that the communication of information by the defendant to the effect that the plaintiffs and the members of the first plaintiff are persons from whom the Commonwealth requires protection is beyond the powers of ASIO and of the defendant and is unlawful. Paragraphs 11 and 12 allege that the defendant threatens and intends to cause or permit ASIO to continue to obtain, correlate and evaluate information concerning the plaintiffs and the members of the first plaintiff and to communicate the same to other persons, and threatens and intends to communicate information to the effect that the plaintiffs and the members of the first plaintiff are persons from whom the Commonwealth requires protection.

Paragraph 13 alleges that the plaintiffs have suffered loss and damage as a result of the said acts of ASIO. It was said in argument that pars. 13, 14 and 15 and the particulars thereunder were designed solely to demonstrate that the plaintiffs had the relevant standing to assert a claim against a public authority by reason of having suffered the special damage asserted in accordance with the requirements defined in Boyce v. Paddington Borough Council (1903) 1 Ch. 109. The particulars set out under par. 13 assert that ASIO has assembled material purportedly concerning the first plaintiff which is false and which is defamatory and has communicated it to other persons, that persons who might otherwise have become members and adherents to the religion have been dissuaded from doing so, that sales of publications have diminished and that the growth and development of the first plaintiff and the spread of its teachings have been inhibited. Finally, the particulars assert that the second plaintiff has suffered loss by reason of his being transferred from one R.A.A.F. base to another with consequent loss as a result of a report from ASIO concerning his adherence to Scientology.

Paragraph 15 alleges that by causing and permitting ASIO to act as aforesaid the defendant has caused or permitted ASIO to require a religious test as a qualification for an office or public trust of the Commonwealth contrary to s. 116 of the Constitution. Particulars under that paragraph state that in making security assessments for the purpose of advising Ministers as to the requirements of security with respect to persons employed or proposed to be employed by the Commonwealth and in communicating such assessments ASIO has characterized the second plaintiff and other members of the first plaintiff as "security risks" by reason of their membership and by reason of their being practising adherents of Scientology religion.

Counsel for the defendant attacked the first cause of action upon the basis that it applied to the defendant and to officers of ASIO conceptions applicable only to statutory corporations in asserting that the collection and communication of information was beyond the powers of ASIO. It was argued that the underlying assumption was that ASIO was in the same position as a statutory corporation and that its function as specified set a limit to its powers and those of the defendant. It was argued for the defendant that officers of ASIO were in the same position as any private individual who might wish to obtain information and correlate and evaluate it in relation to security or indeed any topic and to communicate it to other persons. If the material communicated was defamatory, then the ordinary consequences would follow in the case of private citizens, and so also in the case of the Director-General and the employees of ASIO, subject however to any questions of privilege which might arise. It was thus argued that the allegation that the gathering and communication of information was beyond the power of ASIO or unlawful had no justification.

It was submitted that pars. 11 and 12 carried the matter no further and involved no separate cause of action. I am satisfied that this submission is correct. Those paragraphs were no doubt inserted to support the claim for injunctive relief but they do not assert a separate cause of action. Paragraph 13 is, as I have said, directed solely to locus standi.

Counsel for the plaintiffs said that there were certain paragraphs of the statement of claim which it would be necessary to amend, in addition to the abandonment of pars. 17 and 18, but the amendments had not been formulated. It is clear that in the present state of the litigation the plaintiffs may amend without leave if they so desire. However, the matter was argued upon the basis of the statement of claim as it stands, save for the deletion of pars. 17 and 18 .

Paragraph 14 was attacked as clearly demurrable upon the ground that there is no such right as there asserted, because s. 116 does not bind the States and there was no allegation that any law of the Commonwealth was involved. Paragraph 15 stands on a different basis in its express reliance upon s. 116 but the allegation, so it was argued for the defendant, is not one that ASIO itself applied a religious test in relation to appointment of its own officers or that the defendant as the Director-General did so. The allegation, as spelt out in the particulars, seems really to be that the Commonwealth itself required a religious test, but that does not particularize the allegation in par. 15 itself. The plaintiffs' argument in par. 15 appears untenable on its face. The provision of information to a prospective employer cannot be regarded as the imposition of a religious test by the provider of the information.

The plaintiffs' counsel sought to uphold the first cause of action by saying that the argument that there was a statutory limit on the communication of information was supported by s. 5 of the Act and by s. 70 of the Crimes Act in that the joint operation of those provisions was such as to make it beyond the power of the officers to communicate information. He said that the argument for the defendant suggested that the words "relevant to security" in s. 5 meant that ASIO could collect and evaluate and pass on information about anybody at any time regardless of whether the information had anything to do with espionage, sabotage or subversion. It was conceded, however, that an inquiry concerning a person in order to ascertain whether or not he was a security risk would be authorized but that the question sought to be raised was whether ASIO could continue to collect and collate information and communicate it after it had formed, or should have formed, a view that a person wither was or was not a security risk. It was suggested that, if ASIO concluded that no information from or about a person or a body was likely to be relevant to security, it could not continue to obtain and collate and communicate further information and that to do so would be a breach of s. 5.

This argument appears to me to confuse lawfulness with lack of power. Section 5 authorizes officers of ASIO to communicate information in certain circumstances and s. 70 of the Crimes Act makes it a criminal offence to do so without such authority. Actual communication, however, is not beyond power in any relevant sense of that expression and could not be regarded as a nullity. The fact that it is a criminal offence is enough to demonstrate that it is not a nullity. The fact that an act constitutes a criminal offence does not mean that the individual does not effectively perform the act. The question of power or lack of power to do an act is one which can only be asked in relation to bodies corporate and to the power, or more properly, authority of one person to bind another or act so as to impose liability on another. The latter sense is not presently relevant.

Here we are concerned with acts of individual public servants (in a wide sense of that term), employed in a non-corporate organization. ASIO is properly to be regarded as part of the executive government. Here there can be no question of lack of statutory authority to communicate information to such persons as the Director-General directs or approves. Nor can there be any lack of executive authority to make inquiries on any matter in the light of the observation of Griffith C.J. in Clough v. Leahy [1904] HCA 38; (1904) 2 C.L.R. 139, at p. 157, though power to compel answers is another question. No doubt the executive power of the Commonwealth is not unlimited (see the observation of Dixon J. in Australian Communist Party v. The Commonwealth (1950) 83 C.L.R. 2, at p. 185 et seq. and of Mason J. in Victoria v. The Commonwealth and Hayden [1975] HCA 52; (1975) 134 C.L.R. 338, at p. 396) but the observations of Griffith C.J. to which I have C.L.R. 338, at p. 396) but the observations of Griffith C.J. to which I have just referred, in which Barton and O'Connor JJ. joined, demonstrate there is no limitation relevant to the present case. It is not necessary for the purposes of the present summons to attempt to define the limits of the executive power nor the extent to which executive, as distinct from statutory powers, are capable of review by the Court.

The Solicitor-General submitted that when s. 5 of the Act is read with s. 70 of the Crimes Act the staff of ASIO would only have authority to make such disclosure as was authorized by the defendant under the Act, because otherwise they would be committing a crime under s. 70. He submitted that the prohibition would extend to disclosure to a court and referred to Miller v. Miller [1978] HCA 44; (1978) 22 A.L.R. 119, at p. 125 per Gibbs J. and to Canadian Pacific Tobacco Co. Ltd. v. Stapleton [1952] HCA 32; (1952) 86 C.L.R. 1, at p. 6, where it was said that the word "person", did not include a court. Thus the result would be that the staff of ASIO could not disclose any of the relevant matters even to the Court. The Solicitor-General said that the argument for the plaintiffs was that all matters as to who was a security risk were capable of being tested in the Court, including whether a ruling or decision by the Director-General was "correct". This is illustrated by the declarations sought that information concerning the plaintiffs is not intelligence relevant to the protection of the Commonwealth etc. and that the first plaintiff, the second plaintiff and all members of the first plaintiff are not persons from whom the Commonwealth requires protection. Even if this can be regarded as a judicial function, it is difficult to see how it can be performed when the officers of ASIO are prohibited from revealing to the Court any information they may have used. As a matter of construction it seems reasonably clear that review by the Court was not intended. However it is not necessary to decide these questions at present.

The second cause of action is based on pars. 1-5, 16, and 22 of the statement of claim. Paragraph 16 is as follows: "Further, the Defendant threatens and intends to cause or permit ASIO unlawfully to harass and persecute the Plaintiffs and members of the firstnamed Plaintiff." The relief claimed is set out in par. C and comprises a declaration that, ". . . any harassment and persecution of the Plaintiffs and of the members of the firstnamed Plaintiff is unlawful" and "an injunction restraining the Defendant from causing or permitting ASIO to harass or persecute the Plaintiffs or any of the members of the firstnamed Plaintiff".

The mere assertion that action is not lawful is not sufficient to found a cause of action unless the acts alleged to have been done are themselves sufficient to demonstrate their unlawful character. Counsel for the plaintiffs said that the particulars under par. 16 were to be found in the affidavits in support of the application for an interlocutory injunction and that the statement for claim would require amendment, and that reliance was placed upon what were alleged in the affidavits to be tortious and criminal acts. It was submitted that it was really a question of the lack of particulars and that particulars could be provided.

Counsel for the defendant cited Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor [1937] HCA 45; (1937) 58 C.L.R. 479 as authority for the proposition that the erection of a building tower adjacent to a racetrack and watching, and broadcasting an account of, the activities going on there was not unlawful action. Megarry V.C.'s judgment in Malone v. Metropolitan Police Commissioner (1979) Ch. 344 was cited as demonstrating that there was no cause of action for breach of privacy in English law. However, counsel for the plaintiffs disclaimed any reliance on an invasion of privacy.

In think that par. 16 in its present form is embarrassing and oppressive. In my opinion, it should be struck out irrespective of the fate of other parts of the statement of claim, but in the light of the intention of the plaintiffs to amend an opportunity to remedy its defects should be given to them.

The third cause of action depends on pars. 19-21 and the substantive allegation is that in so far as the provisions of the Act authorize or permit ASIO to obtain, correlate and evaluate intelligence concerning the plaintiffs and at the direction of the defendant to communicate such intelligence to others, it is a law prohibiting the free exercise of a religion and contravenes s. 116. For the defendant it was said in the first place that a corporation could not have a religious belief and reliance was placed on the Adelaide Company of Jehovah's Witness Inc. v. The Commonwealth(1943) [1943] HCA 12; 67 C.L.R. 116, at p. 147, per Latham C.J. But in any event there is an individual plaintiff who alleges that he had religious beliefs and practises a religion. It was argued for the defendant that the allegation must extend to saying that subversion is protected under s.116 if it has a religious element or motive and that this was inconsistent with the decision in the Jehovah's Witness' Case, and reliance was placed on the following passages: per Latham C.J., at pp. 146-147; per Rich J.,at p.149; per Starke J., at pp. 154-155; and per Williams J., at pp. 159-161. Counsel for the plaintiffs said that there was no challenge being made to the Jehovah's Witnesses' Case and that the allegations arose only upon one view of the meaning of the Act, but that such meaning was not one for which the plaintiffs contended. He said that the narrow point was the meaning of "subversion". The argument was that the defendant must be wrong if he treated the first plaintiff and all its members as subversive by reason of their adherence to the religion of Scientology. He said that such a characterization of all members would be wrong because it was not possible to obtain any useful information from or about any member. He said that subversion meant an attempt at overturning a system of government and that if it was alleged that the promulgation of the religion of Scientology was subversion in itself, i.e. that the mere fact of having and promulgating the views of Scientology, whether or not directed to the overthrow of government, could not be subversion. If that was the meaning of the word subversion it would be contary to s. 116.

The Solicitor-General in reply said that what had been said had little to do with the pleading and that must mean that not only was the pleading defective, but apparently it did not represent the pleader's intention, and in the result it gave no clue as to the cause of action intended to be set up and in that respect was clearly embarrassing.

In view of the plaintiff's wish to amend par. 16 and to make other unspecified amendments I think that it would be premature to dismiss the action.

I am, however, satisfied that the pleading in its present form does not disclose a reasonable cause of action, and is in a number of respects vexatious and oppresive. However it may be that one or more of the alleged causes of action can be reframed in a manner which will satisfy the rules and I think that the plaintiffs should have an opportunity to make such amendments as they may wish to that end.

I therefore order that the statement of claim be struck out with costs, the plaintiffs to be at liberty to replead. I certify for counsel