Power, Secrecy and Fairness: When Courts Must Withhold Information

Home › Case Studies › Commercial & Business Cases › Constitutional Law › MJZP v Director-General of Security [2025] HCA 26 (6 August 2025)

Published: 19 November 2025 | Reviewed: 19 November 2025
(3-minute read)

Many clients quietly fear that once a matter reaches federal jurisdiction, control over information and timing feels harder to hold onto. That feeling is understandable, and this case shows why it matters for decisions you will later need to make.

Case Summary

In MJZP v Director-General of Security [2025] HCA 26, the High Court examined whether s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) is invalid because it requires the Federal Court to restrict disclosure of security-sensitive material.

The provision directs that the Court must “do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court” when a valid national-security certificate is in force. The plaintiff argued this exclusion undermines a defining feature of a Ch III court: procedural fairness.

The Court rejected that argument. It held that its earlier decision in SDCV controlled the outcome and that the plaintiff had not met the heavy burden needed to reopen it. As the Court concluded, “SDCV is a complete answer to the plaintiff’s claims in this case”.

Risk Classification

In-litigation risk — specifically, fact-finding constraints and limits on information access during national-security reviews.

Core Legal Risk Identification

The judgment confirms that when Parliament directs non-disclosure for security reasons, courts may be required to proceed without revealing material to a party. The Court observed that s 46(2) compels non-disclosure “irrespective of the degree of relevance or perceived relevance of the information” (at [1] summarising SDCV arguments), and still held the provision valid because it forms part of an additional statutory review pathway.

For clients, this exposes a clear practical risk: information asymmetry. When disclosure is limited, strategy depends on options outside the contested hearing, not simply inside it.

Because this risk relates to litigation process pressure and uncertainty — not conflicts of interest or multi-party incentives — the applicable safeguard under your rules is cost-alignment (one-path funding).

Default Structural Context

Clients often describe early uncertainty about pathways, timing windows, cost exposure, and how to prepare when key information may be withheld. Structural clarity, showing the options, the likely timing, the budget scenarios, and the decision points in advance, assists them to navigate that uncertainty without implying that the underlying dispute could have unfolded differently.

Why It Still Matters

The principles are broader than national security. Modern disputes across regulatory, financial, and administrative settings can involve protected material, confidential reports, or statutory exclusions. When that happens, parties face a form of structural opacity: some facts simply cannot be seen.

This affects how clients frame their early decisions. If evidence is partially inaccessible, the real leverage often sits in negotiation, timing, and understanding the consequences of different procedural choices before a matter escalates. That is where structural planning becomes essential.

How to Avoid the Same Trap

This judgment does not diminish the Court’s commitment to fairness; instead, it clarifies that fairness is assessed within the boundaries Parliament sets. When those boundaries restrict what can be known, a safer client structure is one that avoids preparing and funding both settlement and trial work simultaneously.

Under your instructions, the correct safeguard here is cost-alignment (one-path funding).

Two lawyers often cost less than one - because you fund one path, not both.

Typical models bill for both settlement efforts and trial preparation even when only one path is ultimately used. A structure based on one-path funding separates the roles: the courtroom lawyer handles advocacy, while the client-side lawyer manages settlement strategy, timing windows, and budget control under escrow. This means clients fund only the pathway they actually take, making the effect of information constraints more visible and less financially burdensome.

The Practical Lesson

Where material cannot be disclosed, the strategic inflection point shifts earlier. Clients who structure timing, budget, and pathway decisions before these limits are triggered place themselves in a stronger position to adapt when the rules of disclosure narrow mid-case.

You can see how one-path funding, escrow safeguards, and role separation operate in practice on our Two-Lawyer Collaboration & Escrow Oversight page.

For a closer look at how independence is kept visible, no referral fees, annual audits, and ACNC governance, visit our Independence page or book a confidential discussion.

By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.

Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.