SDCV v Director-General of Security

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

SDCV  APPELLANT

AND

DIRECTOR-GENERAL OF SECURITY & ANOR            RESPONDENTS

SDCV v Director-General of Security

[2022] HCA 32

Date of Hearing: 7 & 8 June 2022
Date of Judgment: 12 October 2022

S27/2022

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

C L Lenehan SC with T M Wood and S N Rajanayagam for the appellant (instructed by Michael Jones, Solicitor)

S P Donaghue QC, Solicitor-General of the Commonwealth, with M J H Varley and M F Caristo for the respondents (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with M W R Adams for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

J A Thomson SC, Solicitor-General for the State of Western Australia, with J M Vincent for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

G A Thompson QC, Solicitor-General of the State of Queensland, with F J Nagorcka and K J E Blore for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

M J Wait SC, Solicitor-General for the State of South Australia, with L M Foran for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

SDCV v Director‑General of Security

Constitutional law (Cth) – Judicial power of Commonwealth – Where adverse security assessment of appellant, accompanied by statement of grounds, certified by Director‑General of Security on behalf of Australian Security Intelligence Organisation ("ASA decision") – Where appellant's visa cancelled on character grounds in consequence of ASA decision – Where appellant applied to Administrative Appeals Tribunal for merits review of ASA decision – Where Minister administering Australian Security Intelligence Organisation Act 1979 (Cth) issued certificates under s 39B(2)(a) of Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") stating that disclosure of some of contents of documents relating to ASA decision would be contrary to public interest because disclosure would prejudice security of Australia ("certificated matter") – Where Tribunal provided with certificated matter but certificated matter not disclosed to appellant or appellant's legal representatives – Where Tribunal affirmed ASA decision – Where appellant appealed to Federal Court of Australia pursuant to s 44 of AAT Act – Where s 46(1) of AAT Act allowed Federal Court to have regard to certificated matter in determining appeal – Where s 46(2) of AAT Act provided that Federal Court shall do all things necessary to ensure that certificated matter not disclosed to any person other than member of court as constituted for purposes of proceeding – Where certificated matter not disclosed to appellant or appellant's legal representatives in Federal Court – Whether s 46(2) of AAT Act invalid on basis that Ch III of Constitution precludes making of law that denied party to proceedings in court of federal judicature fair opportunity to respond to evidence on which order of court which finally altered or determined right or legally protected interest of party might be based – Whether s 46(2) of AAT Act invalid on basis that it required or authorised Federal Court to act in manner inconsistent with essential character of court or with nature of judicial power.

Words and phrases – "adverse security assessment", "all things necessary to ensure", "balancing exercise", "denial of disclosure", "essential characteristics of a court", "fair opportunity to respond", "forensic advantage", "gist", "judicial power of the Commonwealth", "national security", "officer of the court", "practical injustice", "procedural fairness", "public interest", "public interest immunity", "special advocate".

Constitution, Ch III.
Administrative Appeals Tribunal Act 1975 (Cth), ss 39A, 39B, 43AAA, 44, 46.
Australian Security Intelligence Organisation Act 1979 (Cth), s 54.

1. KIEFEL CJ, KEANE AND GLEESON JJ. The appellant's visa was cancelled on character grounds pursuant to s 501(3) of the Migration Act 1958 (Cth) in consequence of an adverse security assessment ("ASA") certified by the first respondent, the Director‑General of Security ("the Director-General"), on behalf of the Australian Security Intelligence Organisation ("ASIO") ("the ASA certificate"). The ASA certificate was accompanied by a statement of grounds, which is deemed part of that assessment and which is required to contain all information that has been relied upon 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[1]. Together, the ASA certificate and the statement of grounds comprise "the ASA decision".

   [1]s 37(2) of the Australian Security Intelligence Organisation Act 1979 (Cth).

2. The ASA decision was authorised under the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). The ASA certificate stated that the appellant had been assessed to be, directly or indirectly, a risk to security[2], and that it would not be consistent with the requirements of security for the appellant to continue to hold his visa, and recommended that his visa be cancelled[3]. The appellant was entitled to be informed that the ASA decision had been made and to be provided with a copy of it, except to the extent that the Minister administering the ASIO Act ("the ASIO Minister")[4] certified in writing that the Minister was satisfied, relevantly, that disclosure to a person of the statement of grounds, or of a particular part of that statement, would be prejudicial to the interests of security[5]. The appellant was provided with a statement of grounds noted to have sections omitted in consequence of a certificate signed by the ASIO Minister under s 38(2)(b) of the ASIO Act ("the public interest non‑disclosure certificate")[6]. Accordingly, the appellant was not to be, and was never, informed of all the information with respect to the ASA decision.

   [2]See s 4 of the ASIO Act, definition of "security".

   [3]SDCV v Director‑General of Security (2021) 284 FCR 357 at 371 [49].

   [4]Administrative Appeals Tribunal Act 1975 (Cth), s 3(1), definition of "ASIO Minister".

   [5]s 38(1), (2) of the ASIO Act.

   [6]SDCV v Director‑General of Security (2021) 284 FCR 357 at 371 [50].

3. The ASA decision was furnished to the Department of Home Affairs[7]. Subsequently, as noted above, the Minister for Home Affairs cancelled the appellant's visa pursuant to s 501(3) and (6)(g) of the Migration Act, on the basis that the Minister reasonably suspected that the appellant did not pass the character test and was satisfied that the cancellation of his visa was in the national interest. On the same day, the appellant was provided with a notice of visa cancellation and the stated grounds accompanying the ASA certificate[8].

   [7]SDCV v Director‑General of Security (2021) 284 FCR 357 at 371 [51].

   [8]SDCV v Director‑General of Security (2021) 284 FCR 357 at 370 [44], 371 [51].

4. The appellant applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the merits of the ASA decision.

5. For the purposes of the review by the Tribunal, the ASIO Minister issued certificates under s 39B(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") stating that disclosure of some of the contents of documents relating to the ASA decision would be contrary to the public interest because it would prejudice the security of Australia ("the certificated matter"). The Tribunal was provided with the certificated matter; but it was not disclosed to the appellant or to his lawyers[9].

   [9]SDCV v Director‑General of Security (2021) 284 FCR 357 at 373 [59], 377 [70].

6. Further, in order to prevent the disclosure of the certificated matter, the ASIO Minister issued certificates under s 39A(8) of the AAT Act, which had the effect that part of the hearing before the Tribunal was conducted in the absence of the appellant and his lawyers. In the "open" session, the Tribunal heard evidence called by both the Director‑General and the appellant. Evidence was heard in the "closed" session in the absence of the appellant[10]. The Tribunal accordingly wrote two sets of reasons: "open" reasons, which did not refer to the certificated matter and were seen by the appellant and his lawyers; and "closed" reasons, which addressed matters in the "closed" session and were not seen by them[11].

   [10]SDCV and Director‑General of Security [2019] AATA 6112 at [5]‑[6].

   [11]SDCV v Director‑General of Security (2021) 284 FCR 357 at 373 [59]‑[61], 377 [70].

7. The Tribunal affirmed the ASA decision. The Tribunal's "open" reasons recorded that the Tribunal was not able to form a view on whether the ASA decision was justified based on the evidence led in the "open" session[12]. The reasons continued[13]:

   "We have written closed reasons for decision based upon the classified evidence placed before us and have concluded, based upon that evidence, that the ASA [decision] is justified and that the reviewable decision should be affirmed."

   [12]SDCV and Director‑General of Security [2019] AATA 6112 at [19].

   [13]SDCV and Director‑General of Security [2019] AATA 6112 at [20].

8. The appellant appealed against the decision of the Tribunal to the Federal Court of Australia pursuant to s 44 of the AAT Act. The right of appeal under s 44 is confined to questions of law. The appellant raised five substantive grounds of appeal, including a contention that the Tribunal's decision was not open on the evidence before it. The appeal was heard in the original jurisdiction[14] of the Federal Court by a Full Court (Bromwich and Abraham JJ, Rares J agreeing). The Federal Court rejected each substantive ground of appeal, concluding, among other things, that the ASA decision was warranted by the evidence available to the Tribunal[15].

   [14]Federal Court of Australia Act 1976 (Cth), s 19(2).

   [15]SDCV v Director‑General of Security (2021) 284 FCR 357 at 361 [1], 415 [245]‑[247].

9. By reason of s 46(1) of the AAT Act, the Federal Court was allowed to have regard to the certificated matter in determining the appeal; but the certificated matter was not disclosed to the appellant or to his legal representatives. In that regard, s 46(2) of the AAT Act provided that the Court "shall … do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding".

10. In the course of the appeal to the Federal Court, the appellant also challenged the constitutional validity of s 46(2) of the AAT Act. The Federal Court rejected the constitutional challenge[16], and made a declaration that s 46(2) is a valid law of the Commonwealth.

    [16]SDCV v Director‑General of Security (2021) 284 FCR 357 at 369 [40], 397 [168].

11. The appeal to this Court is concerned only with the appellant's challenge to the validity of s 46(2) of the AAT Act. The appellant's contention is that Ch III of the Constitution precludes the making of a law that denies a party to proceedings in a court of the federal judicature a fair opportunity to respond to the evidence on which an order of the court which finally alters or determines a right or legally protected interest of that party might be based, and that s 46(2) is such a law.

12. As will be explained, there is a fatal artificiality in the appellant's attempt to analyse the effect of s 46(2) without regard to the circumstance that it has no operation independent of s 46(1). Section 46, considered as a whole, does not disadvantage a person in the position of the appellant: it simply offers that person a statutory remedy in addition to the remedies otherwise provided by law, that additional remedy being attended with forensic consequences different from those attending those other remedies. But even if attention is confined to s 46(2) as if it stood alone, it was not apt to occasion practical injustice to the appellant in the determination of his appeal under s 44. In this regard, it is necessary to appreciate the limited statutory rights of the appellant to enter and remain in Australia, the susceptibility of those rights to cancellation upon the making of an ASA, and the undisputed validity, irrespective of any challenge to the ASA decision or its outcome, of the statutory denial of disclosure to the appellant of security‑sensitive information including, on review and appeal, the certificated matter. The rights of a visa holder were always qualified by the statutory process of the executive government to deny the visa holder disclosure of security‑sensitive grounds for the making of an ASA.

13. It should also be understood that s 46 of the AAT Act applies to an appeal under s 44, which is but one avenue of challenge to the decision of the Tribunal. The appellant might have challenged the Tribunal's decision in proceedings for judicial review under s 75(v) of the Constitution[17] or s 39B of the Judiciary Act 1903 (Cth)[18], and in those proceedings s 46 would have had no application and so the appellant's alleged disadvantage under s 46(2) would have been avoided. Of course, if the appellant had chosen to bring his challenge to the decision of the Tribunal pursuant to one of those avenues, he would not have enjoyed the forensic advantage conferred by s 46(1) because public interest immunity would likely have prevented the use of the certificated matter by the Federal Court[19].

    [17]Plaintiff M47/2012 v Director‑General of Security (2012) 251 CLR 1 at 146 [376].

    [18]Sagar v O'Sullivan (2011) 193 FCR 311 at 312 [1].

    [19]See SDCV v Director‑General of Security (2021) 284 FCR 357 at 396‑397 [166].

14. The appellant's argument in this Court is that the vice of s 46(2) of the AAT Act lies in allowing evidence adverse to him to be considered by the Federal Court without his being afforded the opportunity to know and respond to it. But on no view can it be supposed that s 46(2) could be construed such that the appellant might have pursued an appeal under s 44 with the benefit of s 46(1) and shorn of the alleged disadvantage of s 46(2). The appellant's choice of s 44 as the avenue of challenge to the ASA decision reflects a judgment that ss 44 and 46 offered him the best chance of a successful challenge to the ASA decision. No practical injustice was caused to the appellant by reason of his choice of preferred remedy. One cannot maintain the proposition that one has been subjected to a practical impediment by reason of the presence of a known obstacle on the path that one has chosen to pursue.

15. As to the possibility that the real vice of s 46(2) of the AAT Act lies in its creation of an institutional difficulty for the Federal Court in hearing and determining an appeal pursuant to s 44 by denying the appellant the ability to know and to respond to evidence adverse to him, it is necessary to appreciate that Ch III of the Constitution does not entrench the adversarial system of adjudication and its incidents as defining characteristics of the courts for which it provides[20]. The limitation imposed by s 46 on the ability of a person in the position of the appellant to participate in an appeal on a question of law under s 44 does not, in any way, compromise the functioning or impartiality or independence of the Federal Court.

    [20]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 100 [157].

16. Before discussing these matters further, it is necessary to summarise the appellant's circumstances, the statutory context in which the appellant's appeal came before the Federal Court, and the reasons of that Court.

    The appellant's circumstances

17. This Court has before it the Tribunal's "open" reasons for its decision and a redacted version of the Federal Court's judgment. The following chronology of events leading up to this appeal is drawn from that material.

18. The appellant is a citizen of Lebanon. He married his wife, who is an Australian citizen, in 2010. On 13 December 2012, the appellant was granted a Class BS Subclass 801 Partner (Residence) visa. He made an application for Australian citizenship[21].

    [21]SDCV v Director‑General of Security (2021) 284 FCR 357 at 370 [45].

19. Several of the appellant's relatives were connected with an organisation known as the Islamic State of Iraq and the Levant ("ISIL")[22], which was, and remains, specified as a terrorist organisation[23]. In a summary of the statement of grounds for the ASA certificate, ASIO described ISIL as[24]:

    "an Iraq and Syria‑based Sunni extremist group and former al‑Qa'ida affiliate that adheres to the global jihadist ideology. ISIL follows an extreme interpretation of Islam which is anti‑Western, promotes sectarian violence, and targets those who do not agree with its interpretation as infidels and apostates."

    [22]SDCV v Director‑General of Security (2021) 284 FCR 357 at 370 [46].

    [23]See para (b) of the definition of "terrorist organisation" in s 102.1 of the Criminal Code (Cth); s 5 of the Criminal Code (Terrorist Organisation ­– Islamic State) Regulations 2020 (Cth).

    [24]SDCV v Director‑General of Security (2021) 284 FCR 357 at 372 [54].

20. Some of the appellant's relatives were convicted of and sentenced to imprisonment for attempted terrorism offences committed in Australia. ASIO investigated the appellant as to whether he was involved in those terrorism offences but he was not found to have been involved. Nevertheless, the appellant was advised that his citizenship bestowal ceremony, which was necessary for the conferral of his citizenship, had been delayed pending consideration of whether his visa should be cancelled[25].

    [25]SDCV v Director‑General of Security (2021) 284 FCR 357 at 370‑371 [47]‑[48], 372 [56].

    The ASA decision and the cancellation of the appellant's visa

21. As noted above, on 21 August 2018, the appellant's visa was cancelled, the ASA decision having been furnished to the Department of Home Affairs on 16 August 2018[26]. Pursuant to ss 37(2)(a), 38(1), 38(2)(b) and 38(5) of the ASIO Act, a person the subject of an ASA is to be informed of the grounds for the ASA and given all the information relied upon in making it, except to the extent that the Director‑General, acting reasonably and under a correct understanding of the law, concludes that such disclosure would be "contrary to the requirements of security"; or the ASIO Minister is satisfied that disclosure "would be prejudicial to the interests of security". Parts of the statement of grounds that accompanied the ASA certificate were deleted in accordance with s 38(2)(b) of the ASIO Act. These deletions were consequent upon the public interest non‑disclosure certificate signed by the ASIO Minister[27].

    [26]SDCV v Director‑General of Security (2021) 284 FCR 357 at 371 [51].

    [27]SDCV v Director‑General of Security (2021) 284 FCR 357 at 371 [50].

22. It is to be noted that statutory rights as a visa holder are subject to cancellation upon the making of an ASA, in respect of which the visa holder is to be kept uninformed of security‑sensitive information bearing upon its making. So long as the administrative decisions concerning the non‑disclosure of that information are valid, an ASA may be made, and the rights of a visa holder to enter and remain in Australia may be cancelled, on the basis that such information must not be disclosed to the subject of an ASA. Any claim by a visa holder to vindicate his or her rights as such must necessarily proceed subject to the prohibition on disclosure of security‑sensitive information.

    The application to the Tribunal

23. As noted above, the appellant sought review of the merits of the ASA decision by the Tribunal pursuant to s 54 of the ASIO Act[28]. Pursuant to ss 39A and 39B of the AAT Act, the review was conducted in the Security Division of the Tribunal constituted by two Deputy Presidents and a Senior Member.

    [28]SDCV v Director‑General of Security (2021) 284 FCR 357 at 371 [52].

24. The appellant was subsequently furnished with a revised statement of grounds, in consequence of a partial revoking of the public interest non‑disclosure certificate upon the grounds that certain information was no longer prejudicial to security. This statement recorded that the appellant: had support for politically motivated violence and ISIL; and employed communications security tradecraft practices while engaging with individuals of security concern, including Syria‑based individuals affiliated with ISIL[29].

    [29]SDCV v Director‑General of Security (2021) 284 FCR 357 at 371‑372 [53].

25. In relation to the appellant's alleged support for politically motivated violence and ISIL, the revised statement of grounds recorded that the appellant had said in interviews that he had never supported or been affiliated with any group in the Syria/Iraq conflict, including ISIL. ASIO's assessment was that these statements were likely to have involved untruthful answers, because the appellant believed it would have had an adverse effect on his citizenship application or his ability to continue to hold his visa[30].

    [30]SDCV v Director‑General of Security (2021) 284 FCR 357 at 372 [57].

26. In relation to the appellant's alleged employment of communications security tradecraft practices while engaging with individuals of security concern, the revised statement of grounds recorded that the appellant was found:

    (1) to have used a covert phone obtained specifically to communicate with his brother based in Syria, using an encrypted messaging app;

    (2)also to have used that covert phone to communicate with a relative who was an ISIL leadership figure and to communicate with Australian‑based family members of security interest who had been convicted of very serious offences (as noted above, the appellant was not found to have been involved in those offences);

    (3)to have disposed of that covert phone, as the appellant said he had done when interviewed by ASIO, because of fears that he may have done something illegal by using it; and

    (4)to have provided inaccurate information to ASIO about the existence, use and disposal of the covert phone, and that this demonstrated a heightened security awareness which indicated that the communications were likely of security concern[31].

    [31]SDCV v Director‑General of Security (2021) 284 FCR 357 at 372‑373 [58].

27. As noted above, the appellant's application to the Tribunal was unsuccessful. The Tribunal's "open" reasons record that it was not able to be satisfied whether the ASA decision was justified on the evidence led in open session, but that it was so satisfied based upon the evidence before it in the closed session[32].

    [32]SDCV and Director‑General of Security [2019] AATA 6112 at [19]‑[20].

    The legislative framework for the proceedings in the Tribunal

28. Section 37(5) of the ASIO Act provides that no proceedings, other than an application to the Tribunal under s 54, shall be brought in any court or tribunal in respect of the making of a security assessment, including an ASA, or anything done in respect of a security assessment in accordance with the ASIO Act. Such a review is conducted in the Security Division of the Tribunal in accordance with ss 39A and 39B of the AAT Act.

29. Pursuant to s 39A(3) of the AAT Act, the Director‑General is obliged to present to the Tribunal all relevant information available to the Director‑General, whether favourable or unfavourable to an applicant.

30. Section 39A(6) of the AAT Act provides that, subject to s 39A(9), an applicant and a person representing an applicant may be present when the Tribunal is hearing submissions made or evidence adduced by, relevantly, the Director‑General.

31. Section 39A(8) of the AAT Act provides that the ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of, relevantly, the Director‑General are "of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia". Section 39A(9) provides that, if such a certificate is given, an applicant "must not be present when the evidence is adduced or the submissions are made"; and "a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents". If a person representing an applicant is present when such evidence is adduced or such submissions are made, it is an offence for the representative to disclose any such evidence or submission to the applicant or to any other person, punishable by two years' imprisonment[33].

    [33]s 39A(10) of the AAT Act.

32. The Tribunal must first hear evidence adduced and submissions made by, relevantly, the Director-General. The Tribunal must next permit an applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal[34].

    [34]s 39A(12), (13) of the AAT Act.

33. Section 39B of the AAT Act applies to a proceeding in the Security Division to which s 39A applies[35]. Section 39B(2)(a) provides that if the ASIO Minister certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest "because it would prejudice security or the defence or international relations of Australia", the remaining provisions of s 39B have effect. In this regard, s 39B(3) provides that where information has been disclosed or documents have been produced to the Tribunal for the purposes of a proceeding, the Tribunal "must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure", relevantly, "that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding".

    [35]s 39B(1) of the AAT Act.

34. Section 39B(7) of the AAT Act provides that s 39B does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal's staff in the performance of his or her duties as a member of the Tribunal's staff.

35. Section 39B(8) of the AAT Act provides that s 39B excludes the operation, apart from s 39B, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding.

36. Section 39B(11) of the AAT Act further provides that it is the duty of the Tribunal, even though there may be no relevant certificate under s 39B, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.

37. Upon the conclusion of the Tribunal's review, it must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment[36]. The Tribunal must cause copies of its findings to be given to an applicant, the Director‑General, the Commonwealth agency, State or authority of a State to which the assessment was given, and the ASIO Minister[37]. However, the Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to an applicant, is not to be given to the applicant or to the Commonwealth agency, State or authority of a State to which the assessment was given[38].

    [36]s 43AAA(2) of the AAT Act.

    [37]s 43AAA(4) of the AAT Act.

    [38]s 43AAA(5) of the AAT Act.

    The legislative framework for the proceedings in the Federal Court

38. Section 44(1) of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to the Federal Court, on a question of law, from any decision of the Tribunal in that proceeding. The Federal Court "shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision"[39]. In particular, the Federal Court may make "an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again ... by the Tribunal in accordance with the directions of the Court"[40]. The Federal Court may make findings of fact in certain circumstances[41]. For those purposes, the Federal Court may have regard to evidence given in the proceeding before the Tribunal, and may receive further evidence[42].

    [39]s 44(4) of the AAT Act.

    [40]s 44(5) of the AAT Act.

    [41]s 44(7) of the AAT Act.

    [42]s 44(8) of the AAT Act.

39. Section 46(1)(a) of the AAT Act provides relevantly that when an appeal is instituted in the Federal Court in accordance with s 44:

    "the Tribunal shall, despite subsections 36(2), 36B(2) and 39B(3) of this Act, ... cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal ... relates and are relevant to the appeal".

40. Section 46(2) of the AAT Act provides relevantly:

    "If there is in force in respect of any of the documents a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) of this Act ... certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia ... shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding."

41. In the course of the hearing of the appeal in this Court there was some discussion of whether s 46(1) and s 46(2) were merely machinery whereby the record of the proceedings in the Tribunal was transmitted to the Federal Court. It is not necessary to pursue this question further. It is sufficient to say that these provisions determined what material might be before the Federal Court and what material the appellant and his lawyers might see. As noted earlier, the Federal Court had before it the evidence and submissions that were before the Tribunal, from both the "open" and "closed" sessions, as well as the Tribunal's "open" and "closed" reasons[43].

    [43]SDCV v Director‑General of Security (2021) 284 FCR 357 at 373 [64].

42. Section 46(3) of the AAT Act provides relevantly:

    "If:

    (a)the certificate referred to in subsection (2) relating to matter contained in the document does not specify a reason referred to in paragraph 28(2)(a) or (b), 36(1)(a) or (b), 36B(1)(a), or 39B(2)(a) of this Act ... as the case may be;

    (b)a question for decision by the Federal Court of Australia ... is whether the matter should be disclosed to some or all of the parties to the proceeding before the Tribunal in respect of which the appeal was instituted ...; and

    (c)the court decides that the matter should be so disclosed;

    the court shall permit the part of the document in which the matter is contained to be inspected accordingly."

43. Section 46(4) of the AAT Act provides that "[n]othing in [s 46] prevents the disclosure of information or of matter contained in a document to an officer of the court in the course of the performance of his or her duties as an officer of the court".

    The Federal Court

44. In respect of the appellant's challenge to the validity of s 46(2) of the AAT Act before the Federal Court, his counsel argued that legislation providing for a determination by a Ch III court must, without exception, ensure that a person whose right or interest may finally be altered or determined by a court order has a fair opportunity to respond to the evidence on which that order might be based[44]. The Federal Court rejected that argument.

    [44]SDCV v Director‑General of Security (2021) 284 FCR 357 at 380 [86].

45. Bromwich and Abraham JJ, with whom Rares J agreed[45], proceeded on the basis that it was uncontroversial that Parliament cannot require a court within Ch III of the Constitution to exercise the judicial power of the Commonwealth in a manner that is inconsistent with the essential character of a court or with the nature of judicial power[46]. Their Honours stated that "it may be accepted that procedural fairness is an essential feature of a Ch III court"[47]. For their Honours, as for this Court, the question was "whether, taken as a whole, the Court's procedures avoid practical injustice"[48].

    [45]SDCV v Director‑General of Security (2021) 284 FCR 357 at 361 [1].

    [46]SDCV v Director‑General of Security (2021) 284 FCR 357 at 380 [84], citing Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27.

    [47]SDCV v Director‑General of Security (2021) 284 FCR 357 at 380 [84], citing Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 71 [67], 99 [156], 105 [177], 108 [188], 110 [194].

    [48]SDCV v Director‑General of Security (2021) 284 FCR 357 at 380 [85], citing Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 100 [157].

46. In this regard, their Honours noted that the only circumstance in which s 46(2) of the AAT Act applies is when an appeal is brought against a decision of the Tribunal on a question of law; the appellant did not suggest that he was, or should have been, entitled to the certificated matter either at the stage at which the administrative decision was made by the Director‑General, or at the stage of merits review in the Tribunal[49]. Their Honours also noted that they were not concerned with a case where the impugned legislation allowed a party to move the Court for an order which affected or altered the rights or interests of a person on the basis of evidence which was not available to the person affected by the order because of public interest and national security issues[50].

    [49]SDCV v Director-General of Security (2021) 284 FCR 357 at 392 [140].

    [50]SDCV v Director-General of Security (2021) 284 FCR 357 at 392 [141].

47. Bromwich and Abraham JJ said that the Commonwealth Parliament may validly create a regime in which, for good reason, the court may have access to information that a party affected may not. Their Honours noted that this Court has, on numerous occasions, upheld the validity of legislation which had that very consequence[51]. In their Honours' view, s 46 of the AAT Act could be described, as the legislation was in those decisions, as having "an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information"[52].

    [51]SDCV v Director-General of Security (2021) 284 FCR 357 at 393 [148]‑[149], citing Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 and South Australia v Totani (2010) 242 CLR 1. See also Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 31‑32 [62].

    [52]SDCV v Director-General of Security (2021) 284 FCR 357 at 393 [149], quoting Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 31‑32 [62], referring to Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532.

48. Their Honours also reasoned that when assessing the validity of s 46(2) of the AAT Act and whether there is a practical injustice, one must do so against the background of the legislative scheme as a whole and the counterfactual situation – that is, the position if s 46(2) did not exist[53]. In relation to these considerations, their Honours said[54]:

    "It is plain that the regime involves significant modifications of the requirements of procedural fairness. That said, the regime is rather nuanced, with different categories of material being addressed according to the basis of the certification, with only the core categories of public interest immunity falling within the mandated non‑disclosure. This is in the context where the regime provides that all the material is to be provided to the Tribunal, favourable and unfavourable, and that that material is to be before the Court on appeal. The Court can take that material into account in considering the appeal, albeit without submissions on it from the appellant, he or she having not seen the material. In respect to any submissions on the material by the respondent, either in writing or orally in closed court, it is to be expected that the obligations of the type that apply in ex parte hearings, in addition to the respondent's model litigant obligations, would apply.

    This is to be contrasted with what would occur in such a situation absent s 46(2), in the context of this regime. The material before the decision-maker would not be before the Court on any appeal. Such material could be the subject of a subpoena, but inevitably there would be a public interest immunity claim and where those claims are made and supported by cogent material, the claim would ordinarily or likely succeed".

    [53]SDCV v Director-General of Security (2021) 284 FCR 357 at 394 [154].

    [54]SDCV v Director-General of Security (2021) 284 FCR 357 at 396 [161]‑[162], citing Plaintiff M46 of 2013 v Minister for Immigration and Border Protection (2014) 139 ALD 277 at 282‑284 [26]‑[30] and Sagar v O'Sullivan (2011) 193 FCR 311 at 326‑327 [84]‑[91].

49. Their Honours concluded that if the Federal Court were not provided with the certificated matter pursuant to s 46, the appellant "would likely be in a worse position than he is now"[55]. Their Honours explained[56]:

    "Absent the provision for a merits review, the only challenge would be by way of judicial review of the ASA, which would occur without access to the material upon which the decision was based. The material before the decision-maker may be subpoenaed, but if there was a successful claim of public interest immunity, that material would not be before the Court. For the reasons set out above, in the context where the material relates to national security, it can safely be assumed that any claim of public interest immunity would have significant prospects of success.

    When regard is had to the regime considered as a whole, and the context in which s 46(2) exists, it cannot be contended that an appellant having appealed by way of s 44 from the decision of the Tribunal has suffered a practical injustice such that s 46(2) is invalid."

    [55]SDCV v Director-General of Security (2021) 284 FCR 357 at 396 [165].

    [56]SDCV v Director-General of Security (2021) 284 FCR 357 at 396‑397 [166]‑[167].

    The appellant's argument in this Court

50. It was common ground in this Court, as it was in the Federal Court[57], that Parliament cannot require a court within Ch III of the Constitution to exercise the judicial power of the Commonwealth in a manner inconsistent with the character of a court or the nature of judicial power. It was also common ground that procedural fairness is an essential feature of a Ch III court and that, as was said by the plurality in Condon v Pompano Pty Ltd[58], the ultimate question is "whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid 'practical injustice'".

    [57]SDCV v Director-General of Security (2021) 284 FCR 357 at 380 [84]‑[85].

    [58](2013) 252 CLR 38 at 100 [157].

51. The appellant submitted that a law that requires a court to adopt an unfair procedure infringes the limitation identified by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[59] that Ch III of the Constitution precludes the enactment of a law that requires or authorises a court to exercise the judicial power of the Commonwealth "in a manner which is inconsistent with the essential character of a court or with the nature of judicial power". The appellant, while acknowledging that the requirements of procedural fairness are not fixed, argued that there is a "minimum requirement" of procedural fairness such that, if a court is to make an "order that finally alters or determines a right or legally protected interest of a person", the court must afford to that person "a fair opportunity to respond to evidence on which that order might be made"[60]. The appellant submitted that that opportunity may be afforded in different ways, namely allowing the affected person to be given the "gist" of the evidence, to have special advocates appointed to represent a person's interests, or both, as a means to achieve the necessary minimum requirement of procedural fairness.

    [59](1992) 176 CLR 1 at 27.

    [60]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 105 [177]. See also 108 [188].

52. The critical divergence between the appellant and the respondents is that the respondents argued that the "minimum requirement" of an opportunity to know and respond to adverse material before the Federal Court, insisted upon by the appellant, is not invariably required to prevent practical injustice in an appeal under s 44 of the AAT Act from the Tribunal to the Federal Court.

    Practical injustice and a "minimum requirement"

53. As to the appellant's reliance upon Chu Kheng Lim as the foundation of his argument, it is to be noted that the passage from Chu Kheng Lim quoted above focussed upon the exclusivity of the constitutional function of Ch III courts to adjudge and punish criminal guilt. That passage was a step in the reasoning to the conclusion that Ch III "precludes the enactment ... of any law purporting to vest any part of that function [namely the adjudgment and punishment of criminal guilt] in the Commonwealth Executive"[61]. Chu Kheng Lim did not suggest that the content of procedural fairness, characteristic of a Ch III court, is fixed by a "minimum requirement"; and it cast no doubt on the proposition that the requirements of procedural fairness are "adaptable to the environment in which it is applied"[62]. Nor does any subsequent decision of this Court establish that there is a "minimum requirement" of procedural fairness applicable to all proceedings in a Ch III court. As will be seen, those statements of high authority are to the contrary.

    [61]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27.

    [62]Pathan v Secretary of State for the Home Department [2020] 1 WLR 4506 at 4522 [55]; [2021] 2 All ER 761 at 777. See also Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99‑100 [156]‑[157].

54. The question whether practical injustice may be caused to a litigant is not to be resolved by reference to fixed rules as to the "minimum requirement" of procedural fairness that apply in every case in which the judicial power of the Commonwealth is engaged. Whether practical injustice may be occasioned to a litigant depends upon the nature of the proceedings and the rights and interests at stake[63]. So, in the adjudgment and punishment of criminal guilt, a person's liberty may, speaking generally, be taken away only in judicial proceedings involving observance of all the procedural safeguards that attend a criminal trial; but there is no support in the decided cases for the view that the requirements of procedural fairness that attend a criminal trial are also guaranteed by Ch III in relation to an appeal to a court as an adjunct to a statutory regime under which statutory rights depend upon administrative decisions. Indeed, it is salutary to acknowledge that, as French CJ said in Pompano, even in a criminal proceeding, where the claim to the full gamut of procedural protections of the accused in the interest of fairness is at its strongest, the accused may be denied disclosure of information that may lead to the identification of an informant. In that regard, French CJ said[64]:

    "Procedural fairness, manifested in the requirements that the court be and appear to be impartial and that parties be heard by the court, is defined by practical judgments about its content and application which may vary according to the circumstances. Both the open court principle and the hearing rule may be qualified by public interest considerations such as the protection of sensitive information and the identities of vulnerable witnesses, including informants in criminal matters."

    And that may be so even where only the "gist" of the information is sought, because the gist of the information will often suffice to identify the informant[65].

    [63]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99‑100 [156]‑[157].

    [64]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 72 [68].

    [65]R (Haralambous) v Crown Court at St Albans [2018] AC 236 at 273 [63].

    Gypsy Jokers

55. That practical judgments, legislative or judicial, about the content and application of procedural fairness may vary with the claim to consideration of matters of public interest is illustrated by this Court's decision in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police[66]. In that case, the Corruption and Crime Commission Act 2003 (WA) ("the CCA") authorised the Commissioner of Police to issue a "fortification removal notice" in respect of premises[67]. Section 72(2) of the CCA provided that the Commissioner could not issue such a notice unless the Commissioner "reasonably believe[d]" that the premises were "heavily fortified" and "habitually used as a place of resort by members of a class of people a significant number of whom may reasonably be suspected to be involved in organised crime"[68]. Section 76 of the CCA conferred on the Supreme Court of Western Australia a power to review whether the Commissioner could have reasonably held the belief required by s 72(2) when issuing the fortification removal notice[69]. The impugned provision was s 76(2), which stated[70]:

    "The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if its disclosure might prejudice the operations of the Commissioner of Police, and information so identified is for the court's use only and is not to be disclosed to any other person, whether or not a party to the proceedings, or publicly disclosed in any way."

    [66](2008) 234 CLR 532.

    [67]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 553‑555 [13]‑[16].

    [68]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 554 [16].

    [69]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 557 [26].

    [70]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 558 [30].

56. The plurality (Gummow, Hayne, Heydon and Kiefel JJ) rejected the challenge to the validity of s 76(2) on the basis that, on its proper construction, it did not render unexaminable by the Supreme Court the decision of the Commissioner[71], noting that the legislative regime had "an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information in question"[72]. Crennan J, with whom Gleeson CJ agreed[73], came to the same conclusion[74] and also considered an argument advanced on behalf of the appellant that the procedure established by s 76(2), whereby information identified as confidential by the Commissioner could not be disclosed to an applicant for judicial review, constituted a denial of procedural fairness[75]. Crennan J said[76]:

    "The appellant's particular complaints alleging a want of procedural fairness were that it did not have access to material adverse to it and the Court was deprived of the benefit of its submissions on such material. Parliament can validly legislate to exclude or modify the rules of procedural fairness provided there is 'sufficient indication'[77] that 'they are excluded by plain words of necessary intendment'[78]. Whether the obligation to accord procedural fairness is satisfied will always depend on all the circumstances. For example, in a joint judgment of five members of this Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[79], it was recognised, by reference to Sankey v Whitlam[80] and Alister v The Queen[81], that courts 'mould their procedures to accommodate what has become known as public interest immunity'[82].

    The statutory modification of procedural fairness achieved by s 76(2) (including any effect on the giving of reasons) is indistinguishable from the modification of procedural fairness which can arise from the application of the principles of public interest immunity."

    [71]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 558 [31].

    [72]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 559 [36].

    [73]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 549‑550 [1].

    [74]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 593‑594 [173]‑[174].

    [75]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 592 [166].

    [76]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 595‑596 [182]‑[183].

    [77]Commissioner of Police v Tanos (1958) 98 CLR 383 at 396.

    [78]Annetts v McCann (1990) 170 CLR 596 at 598; Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at 56 [24].

    [79](2005) 225 CLR 88.

    [80](1978) 142 CLR 1.

    [81](1984) 154 CLR 404.

    [82]Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 98 [24].

57. This passage recognises that the balancing exercise undertaken by the legislature in its determination of the requirements of procedural fairness is no less legitimate than the balancing exercises conducted in the exercise of judicial power. Of this passage in Gypsy Jokers, the plurality in Pompano said[83]:

    "The plurality [in Gypsy Jokers] said nothing to indicate that s 76(2), by allowing only the Court to have access to the confidential information, might, on that account, be of doubtful validity. Rather, the plurality's conclusion in Gypsy Jokers proceeded from an acceptance that, as Crennan J rightly pointed out, 'Parliament can validly legislate to exclude or modify the rules of procedural fairness'."

    [83](2013) 252 CLR 38 at 98 [152] (footnote omitted).

58. True it is that Gypsy Jokers was concerned with State legislation, and was decided on the basis of the principles in Kable v Director of Public Prosecutions (NSW)[84], whereas the impugned legislation here is a Commonwealth law and no reference to Kable is necessary to explain why the implications of Ch III of the Constitution are engaged. But there is no principled basis to distinguish between State and federal courts as components of the federal judicature in relation to their institutional obligations to accord procedural fairness. The Kable doctrine is derived from the requirement of Ch III that State courts must conform to the description of a court in Ch III in order to fulfil their role as potential repositories of federal jurisdiction and as part of the integrated court system in Australia; and as Gaudron J said in Kable, "there is nothing anywhere in the Constitution to suggest that it permits of different grades or qualities of justice, depending on whether judicial power is exercised by State courts or federal courts created by the Parliament"[85].

    [84](1996) 189 CLR 51.

    [85]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 103.

59. It may be noted that s 46(2) of the AAT Act applies only when there is in force a valid certificate in accordance with, relevantly, s 39B(2) of the AAT Act. In Hussain v Minister for Foreign Affairs[86], Sagar v O'Sullivan[87] and Traljesic v Attorney‑General (Cth)[88] it was recognised that a person adversely affected by an ASA is entitled to seek judicial review of the decision to issue such a certificate. The appellant did not seek to challenge the validity of the ASIO Minister's certificates issued under s 39A(8) or s 39B(2) in the Federal Court or otherwise[89]. In addition, as Bromwich and Abraham JJ observed[90], the appellant could have argued before the Tribunal that the certificates of the ASIO Minister were invalid as an improper exercise of an administrative discretion, and that, accordingly, ss 39A and 39B were not applicable to the review before the Tribunal.

    [86](2008) 169 FCR 241 at 258 [47]‑[49].

    [87](2011) 193 FCR 311 at 312 [1].

    [88](2006) 150 FCR 199. See also Plaintiff M47/2012 v Director‑General of Security (2012) 251 CLR 1 at 146 [376]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 438 [18].

    [89]SDCV v Director‑General of Security (2021) 284 FCR 357 at 377 [71].

    [90]SDCV v Director‑General of Security (2021) 284 FCR 357 at 377 [72].

60. The circumstance that a person in the position of the appellant may test the validity of a certificate of the ASIO Minister in any of these ways forecloses one argument that might have been advanced, but was not pursued in this Court, against the validity of s 46(2)[91]. That argument might have been to the effect that legislation which purported to direct the courts as to the manner and outcome of the exercise of their jurisdiction would be apt impermissibly to impair the character of the courts as independent and impartial tribunals[92]. Section 46 of the AAT Act does not purport to direct the Federal Court to act upon an unexaminable opinion of the ASIO Minister as to whether disclosure of certificated matter would be contrary to the public interest because, relevantly, it would prejudice security or the defence or international relations of Australia[93]. But where there is no challenge to the decision to issue a certificate, no question can arise as to the lawfulness of the denial of disclosure to a person in the position of the appellant of security‑sensitive information (at the time of the making of an ASA) or certificated matter (at the review before the Tribunal). The bringing of an appeal to the Federal Court does not change that state of affairs.

    [91]See Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 558 [31], [33].

    [92]See Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 560 [39].

    [93]cf Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 579‑581 [95]‑[99].

    HT v The Queen

61. Before the Federal Court, the appellant relied "heavily"[94] on a passage from this Court's decision in HT v The Queen[95]. In that case, the issue was whether the appellant, who was a police informer, was denied procedural fairness in a Crown appeal against sentence because confidential evidence about her assistance to the police was provided by the Crown to the sentencing judge and the Court of Criminal Appeal of New South Wales, but was not seen by the appellant or her legal representatives[96]. All members of this Court held that the appellant was denied procedural fairness[97]. Before the Federal Court[98], and in this Court, the appellant relied, in particular, on the following passage from the judgment of Kiefel CJ, Bell and Keane JJ[99]:

    "It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding[100]. This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is made be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case[101]. In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it[102]. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made[103]."

    [94]SDCV v Director‑General of Security (2021) 284 FCR 357 at 391 [136].

    [95](2019) 269 CLR 403.

    [96]HT v The Queen (2019) 269 CLR 403 at 412 [2], 413 [4], 414 [9], 415 [10].

    [97]HT v The Queen (2019) 269 CLR 403 at 419 [27], 426 [55], 430‑431 [66].

    [98]SDCV v Director‑General of Security (2021) 284 FCR 357 at 378 [75]‑[76].

    [99]HT v The Queen (2019) 269 CLR 403 at 416 [17].

    [100]Cameron v Cole (1944) 68 CLR 571 at 589; Commissioner of Police v Tanos (1958) 98 CLR 383 at 395‑396; Taylor v Taylor (1979) 143 CLR 1 at 4; Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99 [156].

    [101]Cameron v Cole (1944) 68 CLR 571 at 589; Taylor v Taylor (1979) 143 CLR 1 at 4.

    [102]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 100 [157].

    [103]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 359 [56]; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 348 [39]; Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 105 [177], 108 [188].

62. The appellant's reliance on this passage as support for his argument was misconceived. HT was concerned with the legitimacy of a departure by a court from the general principles of procedural fairness applicable to criminal proceedings within the adversarial system. HT was not concerned with any question as to the limit of legislative power to enact measures that may curtail the familiar incidents of any other type of hearing, much less with the legitimacy of measures intended to accommodate national security considerations that would be compromised by full disclosure. There is nothing in the passage cited to suggest otherwise.

63. Similarly, in relation to the appellant's reliance upon remarks, apparently helpful to his argument, in the decision of the Supreme Court of the United Kingdom in Al Rawi v Security Service[104] by Lord Kerr of Tonaghmore JSC, his Lordship was not concerned with the limits of legislative power to modify the principles of procedural fairness. As French CJ noted in Pompano, in Al Rawi the Supreme Court was addressing the limits of the inherent power of a trial court in the exercise of civil jurisdiction to develop procedural innovations to accommodate public interest immunity claims at common law[105]. French CJ went on to observe that Al Rawi did not provide an answer to the constitutional question as to the validity of the legislation under challenge in Pompano[106].

    [104][2012] 1 AC 531 at 592‑593 [91], [93].

    [105]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 63 [47].

    [106]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 64 [49].

    Finally altering or determining rights

64. In support of the appellant's contention that the denial by s 46(2) of the AAT Act of an opportunity to know and respond to evidence adverse to him is inconsistent with Ch III of the Constitution, the appellant relied principally upon dicta of Gageler J in Pompano. There his Honour stated[107]:

    "My view, in short, is that Ch III of the Constitution mandates the observance of procedural fairness as an immutable characteristic of a Supreme Court and of every other court in Australia. Procedural fairness has a variable content but admits of no exceptions. A court cannot be required by statute to adopt a procedure that is unfair. A procedure is unfair if it has the capacity to result in the court making an order that finally alters or determines a right or legally protected interest of a person without affording that person a fair opportunity to respond to evidence on which that order might be made."

    [107]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 105 [177]. See also 108 [188], 110‑111 [194]‑[196].

65. This statement was made in relation to legislation which affected property rights and individual liberty[108]. His Honour, in speaking of legislation that might "result in the court making an order that finally alters or determines a right or legally protected interest of a person", was not speaking of procedural rights whereby a right or legally protected interest, much less a wholly statutory right, might be vindicated. Rather, his Honour was concerned with the loss of rights or legally protected interests that cannot be determined other than fairly by judicial proceedings. The point is that this passage cannot be understood as supporting the notion that full disclosure of adverse material is mandated merely by the conferral of a right of appeal. In any event, it should be noted that the view expressed by Gageler J did not command the support of the other members of the Court in Pompano; and that this view has not, before or since, garnered the support of a majority of this Court.

    [108]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 48 [7].

66. This Court's decision in Pompano involved consideration of the principles stated in Kable. The plurality, in rejecting the argument for the invalidity of the legislation challenged in that case, said[109]:

    "The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed[110] in the context of administrative decision‑making but in terms which have more general and immediate application, '[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice'. To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them[111].

    Consideration of other judicial systems may be taken to demonstrate that it cannot be assumed that an adversarial system of adjudication is the only fair means of resolving disputes. But if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid 'practical injustice'." (emphasis in original)

    [109]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99‑100 [156]‑[157].

    [110]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37].

    [111]See, eg, RCB v Justice Forrest (2012) 247 CLR 304.

67. This passage makes the important point, uncontradicted by any decision of this Court, that the question whether legislative alteration of the rules of procedural fairness is apt to cause practical injustice in any particular proceeding is not to be resolved on the basis that Ch III mandates adherence to the adversarial system of litigation, much less to all the incidents familiar within that system. It has never been suggested that the Constitution denies the legitimacy of legislative curtailment of disclosure in litigation involving trade secrets or confidential information, or the protection of children, or informants in criminal cases. That being so, there is no reason to complicate the analysis of whether the prescription of a particular procedure occasions practical injustice by asking whether the proceeding is adversarial and then asking what the adversarial system requires. One may simply ask the question whether, having regard to "all aspects of [a court's] procedures and the legislation and rules governing them"[112], the impugned legislation is an occasion of practical injustice.

    [112]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99 [156].

68. The passage from the plurality in Pompano also directs attention to the need for consideration of the rights and interests of the appellant at stake in an appeal under s 44 of the AAT Act from the Security Division of the Tribunal. To a consideration of those rights one may now turn.

    The appellant's rights

69. The appellant is a non‑citizen. His rights to enter and remain in Australia depend on his holding a valid visa under the Migration Act[113]. Other statutory provisions circumscribe those rights: in particular, the appellant was liable to have his visa cancelled under s 501(3) of the Migration Act in consequence of the making of an ASA under the ASIO Act[114]. Any entitlement of the appellant to disclosure of information with respect to an ASA was statutory; under statute, it could be denied by decisions of officers of the executive government where those officers considered that the public interest in Australia's security required non‑disclosure of that information[115]. It is undisputed that, apart from s 46(2) of the AAT Act, the denial of disclosure to the appellant of security‑sensitive information, including the certificated matter, was effected lawfully. And that was so irrespective of any challenge to the validity of the ASA decision and of the outcome of that challenge. The appellant's rights were always circumscribed by the denial of disclosure of security‑sensitive information pursuant to unchallenged administrative decisions made under unchallenged laws. The statutory provisions that allowed the appellant to challenge the ASA decision in the Tribunal maintained that state of affairs in consequence of the certificates issued by the ASIO Minister under the AAT Act.

    [113]Migration Act 1958 (Cth), s 42.

    [114]Migration Act 1958 (Cth), s 501(3)(c), (d), (6)(g); s 4 of the ASIO Act, definition of "security".

    [115]ss 37(2), 38(1), (2) of the ASIO Act.

70. The right of appeal to the Federal Court is itself a creature of statute. On the appellant's appeal under s 44 of the AAT Act, s 46(2) maintained the position regarding non‑disclosure of security‑sensitive information relating to the ASA decision, while s 46(1) allowed the Federal Court to consider all of the material that was before the Tribunal in reviewing the ASA decision and which was relevant to the appeal. The Federal Court was thereby enabled to decide the appeal before it on the same material as that on which the Tribunal proceeded[116].

    [116]cf R (Haralambous) v Crown Court at St Albans [2018] AC 236 at 271 [57].

71. In considering the rights and interests of the appellant that were at stake in his appeal, it must be appreciated that he was, at all times, denied disclosure of the certificated matter by the laws regulating his presence in Australia. It may be observed that the statement by Gageler J in Pompano on which the appellant's argument relied presupposes that the rights the protection of which are at stake in the proceeding in question are different from the "right" to bring that proceeding. The unfairness which is to be avoided is the loss of those rights otherwise than by a fair judicial process. In the present case, the only right of the appellant that was relevantly at stake in the appeal to the Federal Court was his right to hold his visa or, more precisely, his right to hold his visa unless he had been the subject of a valid ASA[117].

    [117]Migration Act 1958 (Cth), s 501(3)(c), (d), (6)(g); s 4 of the ASIO Act, definition of "security".

72. The appellant's right to hold his visa free of the consequences of an erroneous ASA was subject to the qualification that an ASA was to be made with him having no access to security‑sensitive information relating to the ASA. The lawfulness of that qualification upon the appellant's rights has not been challenged. The determination of the appeal without disclosure of the certificated matter reflected the substance of the appellant's rights to access that material, that is to say, that he was by law denied disclosure. The Federal Court's duty to "do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding" meant that the appellant had no right to disclosure of security‑sensitive information relating to the ASA decision; and whether he was entitled to hold his visa free of the consequences of an erroneous ASA was to be determined on that footing.

73. The denial of an opportunity for the appellant to know the totality of information that justified the making of the ASA decision was an incident of the statutory regime under which the appellant was permitted lawfully to enter and remain in Australia. The statutory regime under which he was present in Australia as a visa holder denied him that information when the ASA decision was made. That was also the case before the Tribunal. There is no question that this state of affairs was lawfully imposed. Section 46(2) of the AAT Act maintained that state of affairs on the appeal to the Federal Court.

74. The appellant suffered no practical injustice in the determination of his appeal to the Federal Court without either him or his lawyers having access to the certificated matter. He suffered no loss of rights by reason of being denied full disclosure because his right to hold a visa unless he was the subject of a valid ASA was circumscribed by the requirement that he not be informed of security‑sensitive information in relation to that decision. Indeed, it would be "productive potentially of injustice and absurdity" if the Federal Court were to allow the appeal and remit the matter for determination by the Tribunal "on a basis different from that which the [Tribunal] had quite rightly adopted and been required to adopt when first considering the matter"[118].

    [118]See R (Haralambous) v Crown Court at St Albans [2018] AC 236 at 271 [57].

    An additional remedy but no additional right

75. The same conclusion may be reached by considering more closely the operation of s 46 of the AAT Act as a whole.

76. The appellant attacked the reasoning of the Federal Court[119] that s 46(2) did not cause practical injustice to the appellant because, if s 46(2) did not exist, the certificated matter would still have been covered by public interest immunity and so would have been unavailable to the Court. The appellant argued that, in the absence of s 46(2), if a claim for public interest immunity were upheld, the certificated matter would not be available to either party or to the Court. On that basis, the appellant would not be subject to the alleged forensic disadvantage of being denied the opportunity to know and respond to the certificated matter that was available to the Federal Court. The appellant's argument is flawed in its focus upon the operation of s 46(2) as if it has an operation independent of s 46(1).

    [119]SDCV v Director-General of Security (2021) 284 FCR 357 at 396‑397 [162]‑[167].

77. Had the appellant challenged the validity of the ASA decision by judicial review proceedings under s 75(v) of the Constitution or s 39B of the Judiciary Act immediately upon the making of that decision, there can be no doubt as a practical matter that those proceedings would have been heard and determined on the footing that the certificated matter could not be disclosed to the appellant for the purposes of those proceedings[120]. Nothing in the legislative regime which provided, validly, for the making of the ASA decision altered the position that the law required that the certificated matter not be disclosed to the appellant on appeal to the Federal Court. Section 46(2) of the AAT Act confirmed that this state of affairs was not altered by the operation of s 46(1) in relation to an appeal under s 44.

    [120]See, eg, Sagar v O'Sullivan (2011) 193 FCR 311 at 313 [4]‑[6].

78. It is clear, as a matter of statutory construction, that s 46(2) of the AAT Act has no operation independently of s 46(1), and so one cannot begin to answer the question whether the determination of the appellant's appeal to the Federal Court involved practical injustice by focussing exclusively on s 46(2) as if it does. When one considers the operation of s 46 as a whole, it is readily apparent that it confers an additional remedy upon a person in the position of the appellant but does not alter the state of affairs under which that person is lawfully denied disclosure of security‑sensitive information.

79. As noted above, s 46 of the AAT Act applies to an appeal to the Federal Court under s 44, which provides an alternative to the constitutionally entrenched avenue of judicial review in s 75(v) of the Constitution[121] and the further statutory avenue of judicial review under s 39B of the Judiciary Act[122] as a means of challenge to an ASA. On one hand, pursuing one of those avenues would have avoided the procedural disadvantage identified by the appellant. On the other hand, neither of those avenues would have included the advantage assured to the appellant by s 46(1), in having the certificated matter placed before the Court. Without s 46(1), a person in the position of the appellant might struggle to make out the error for which he or she contends before the Federal Court[123], especially in a case such as the appellant's where one of the asserted errors was that the Tribunal's decision was not open on the evidence before it. Section 46(1) thus provides a forensic benefit to a litigant in the position of the appellant.

    [121]Plaintiff M47/2012 v Director‑General of Security (2012) 251 CLR 1 at 146 [376].

    [122]Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at 258 [47]‑[49]; Sagar v O'Sullivan (2011) 193 FCR 311 at 312 [1].

    [123]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 556 [24]; Sagar v O'Sullivan (2011) 193 FCR 311 at 313 [4]‑[6].

80. It cannot be supposed that, if this Court were to hold that Parliament may not validly call upon a Ch III court to entertain an appeal under s 44 of the AAT Act which is affected by s 46(2), it would follow that a person in the position of the appellant could proceed with the appeal free of the forensic "disadvantage" imposed by s 46(2) but with the forensic advantage of s 46(1). If s 46(2) is invalid by reason of its inconsistency with Ch III, then s 46 is invalid in its entirety. The provisions of s 46 cannot have been intended to operate otherwise than as a package: in this regard s 46(2) makes no sense at all without s 46(1). The courts have no power to engage in a rewriting of s 46 to alter its intended effect.

81. If s 46 of the AAT Act were invalid in its entirety, it is, as a practical matter, distinctly unlikely that the Federal Court would ever be able to consider information precluded from disclosure by certificates issued by the ASIO Minister on an appeal under s 44. Public interest immunity could be expected to prevent the use of such information by the Federal Court. As a practical matter, it is safe to say that, in the appellant's case, there is no good reason to think that the certificated matter could have been disclosed to the Federal Court in the absence of s 46(1).

82. The choice of an alternative avenue of challenge under s 75(v) of the Constitution or s 39B of the Judiciary Act would not have offered the forensic advantage provided by an appeal under s 44 of the AAT Act; but it would have obviated the forensic "disadvantage" that is said to be the basis of the appellant's argument in this Court. That being so, it is difficult to accept that the avoidable consequences of s 46(2) caused him any practical injustice. The appellant chose the remedy that carried the benefit of s 46(1) available only on the terms contained in s 46(2).

83. That s 46 of the AAT Act stands or falls in its entirety highlights the artificiality of the appellant's complaint, and helps to demonstrate that s 46(2) was not apt to cause him any practical injustice in the determination of his appeal to the Federal Court. That is because the effect upon his appeal of the forensic consequences of s 46(2) cannot be considered separately from the forensic advantage conferred by s 46(1): one comes with the other. To the extent that the benefit of s 46(1) may be thought to outweigh the limitation imposed by s 46(2) so that a person in the position of the appellant chooses to pursue an appeal under s 44 rather than the other available avenues of challenge, no practical injustice is suffered. There is only the choice of a remedial procedure that is less advantageous for an appellant than it might have been, but, nevertheless, more advantageous for an appellant than the alternatives, none of which can sensibly be said to be practically unjust. Each alternative remedy is simply what the law provides, that being indisputably a matter for the Parliament. The choice of remedy was a matter for the appellant.

    Case‑by‑case decisions – by the court?

84. The appellant argued that s 46(2) of the AAT Act operates impermissibly in a "blanket" fashion to deny an appellant information about the case against him or her, whereas cases involving trade secrets or confidential information proceed on a case‑by‑case analysis by a court of what fairness requires in the particular case before that court, with the appropriate procedure being moulded by the court itself. The appellant argued that, in considering a claim for public interest immunity, a court must, in each case, engage in a balancing exercise which takes into account both whether any harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld[124]; in contrast, s 46(2) does not allow for this case‑by‑case balancing of competing interests by the Federal Court. Rather, the appellant argued, s 46(2) precludes the Court from tailoring an order to ensure "basic procedural fairness"[125].

    [124]Alister v The Queen (1983) 154 CLR 404 at 412.

    [125]HT v The Queen (2019) 269 CLR 403 at 426 [52].

85. The appellant's argument cannot be accepted. No decision of this Court supports a constitutional imperative that the balance of competing public interests in litigation must always be left to be struck on a case‑by‑case basis by a court. Indeed in Nicholas v The Queen[126], this Court rejected the contention that "only the courts may determine what the public interest requires" in balancing competing considerations relating to the protection of the integrity of the court's processes and the pursuit of other objectives within legislative power[127].

    [126](1998) 193 CLR 173.

    [127]Nicholas v The Queen (1998) 193 CLR 173 at 272 [233]. See also 197 [37], 203 [55], 239 [167].

86. Nor does Ch III give rise to a constitutional impediment to the Parliament deciding that s 46(2) of the AAT Act was necessary or appropriate to maintain the balance of the competing public interests struck by the provisions in the ASIO Act limiting the appellant's rights to disclosure of security‑sensitive information. Disclosure of the information on which an ASA has been made, or even the "gist" of that information, is apt to enable the identification by the person the subject of an ASA of the sources of information adverse to his or her interests. Parliament was entitled to proceed on the basis that, given the security context in which that information is provided, the human sources of that information will be willing to co‑operate with the authorities only on the basis of assurances that their identities, and the information that may identify them, would be kept confidential.

87. In Gypsy Jokers[128], the plurality approved the following remarks of Deane J in Australian Broadcasting Commission v Parish[129]:

    "The results of an undue discounting of legitimate claims to confidentiality are likely to be both the deterrence of the subject from having recourse to courts of justice for the vindication of legal rights or the enforcement of criminal law and the discouragement of willing co‑operation on the part of witnesses whose evidence is necessary to enable the ascertainment of truth. The interests of the administration of justice plainly make it desirable that obligations of confidence be not lightly overruled and that legitimate expectations of confidentiality as to private and confidential transactions and affairs be not lightly disregarded.

    In some cases, where publicity would destroy the subject matter of the litigation, the avoidance of prejudice to the administration of justice may make it imperative that the ordinary prima facie rule of open justice in the courtroom gives way to the overriding need for confidentiality."

    [128]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 560‑561 [41].

    [129](1980) 29 ALR 228 at 255.

294. Having said that, there may be occasions when even disclosing the general nature of an activity might, by reason of its nature, imperil, for example, the safety of a foreign informant. As the Victorian Court of Appeal recognised in Chief Commissioner of Police v Nikolic[433], there is no minimum standard of "gisting" that applies in every case; in some contexts, "the importance of protecting highly sensitive information may have the consequence that the principles of procedural fairness do not require the disclosure of even the substance or gist of that information to the person who is the subject of the decision in question"[434]. Plainly, what might be disclosed would depend on the particular facts and circumstances.

     [433](2016) 338 ALR 683.

     [434](2016) 338 ALR 683 at 703 [74] per Maxwell P, Osborn and Kaye JJA.

295. Secondly, both the appellant and the Solicitor-General of the Commonwealth accepted, although with some hesitation, that it was possible for the Federal Court to appoint a special advocate who could examine certified material and unredacted reasons and make independent submissions to the Court. Such an advocate would do so subject to an obligation not to say or do anything that might tend to disclose certified material to an applicant. It was also accepted, however, that this would only be possible if such a special advocate could constitute an "officer of the court" for the purposes of s 46(4) of the AAT Act. In National Archives of Australia v Fernandes[435], Foster J rejected a submission that the phrase "officer of the court" in s 46(4) should include any lawyer acting on behalf of a party. That is plainly correct. But in reaching this conclusion, his Honour decided that the phrase "officer of the court" only referred to "public servants employed in the Court to assist the judges in the performance of their judicial function"[436].

     [435](2014) 233 FCR 461.

     [436](2014) 233 FCR 461 at 468 [44(a)].

296. With respect, that construction of the phrase is too narrow. In New South Wales v Public Transport Ticketing Corporation [No 3][437], Allsop P (as his Honour then was) observed that whilst there was no statutory foundation for the appointment of a special advocate in public interest immunity cases, the Supreme Court of New South Wales had an inherent power to do so where disclosure to the special advocate did not injure the public interest and where there existed exceptional circumstances[438]. With respect, that conclusion is correct, although the need for exceptional circumstances in every case may be doubted. The Federal Court has the same inherent power, arising as it does from a court's jurisdiction to do that which is incidental to its judicial function[439]. An independent lawyer appointed by the Court to be a special advocate to assist it in exercising judicial power is an "officer of the court" for the purposes of s 46(4); such a person holds an office, that of special advocate, and does so at the direction of and for the benefit of the Court in the discharge of its duty to afford procedural fairness. That interpretation is more consistent with the constitutional imperative that the Court adhere to the requirement to provide procedural fairness in its exercise of federal judicial power[440].

     [437](2011) 81 NSWLR 394.

     [438](2011) 81 NSWLR 394 at 397 [10].

     [439]New South Wales v Public Transport Ticketing Corporation [No 3] (2011) 81 NSWLR 394 at 397 [15].

     [440]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 71 [67] per French CJ, 99 [156] per Hayne, Crennan, Kiefel and Bell JJ; Acts Interpretation Act 1901 (Cth), s 15A.

297. In Public Transport Ticketing Corporation, Allsop P also usefully explained the procedural fairness dilemma that can arise when a party is denied access to relevant material, and how this can be ameliorated by the appointment of a special advocate. His Honour said[441]:

     "There are a number of circumstances in which the courts have been faced with a handicap or a difficulty in efficiently or justly resolving an aspect of a dispute where one party cannot see the material upon, or in respect of which, the court must adjudicate. Fairness may be compromised because the nature of the right or privilege asserted or claimed is one that excludes the other party from an examination of relevant material, but to disclose it to the other party for the purpose of resolving the claim of right would destroy that very right (if legitimately claimed). Further, fairness may be compromised by the court examining the material without a contradictor. This is, in part, alleviated by the recognition that the hearing without the substantive participation of the other party will have features of an ex parte application, thereby requiring appropriate disclosure from the party claiming the right. Nevertheless, it is easily seen how the other party may feel less than fully satisfied with the decision of the court, the foundation of which it cannot know or understand. Further, efficiency, to a degree, is impeded. A court, without a contradictor, must seek to understand the litigious context of the claim of right and assess it with only one side assisting. ...

     The promotion of fairness and expedition in the resolution of proceedings may be seen to justify the court, in a proper case and without destroying or affecting the right concerned, making a properly fashioned order for the employment of a special counsel to make submissions in relation to documents or information to which the other party is not privy. The circumstances of what is a proper case and the fashioning of the order to avoid any deleterious effect on the claimed right will be particular to each case. It will be important, in the fashioning of such orders, to retain a focus upon substance, not form or labels. Thus, what I have said by way of general approach could extend to the appointment of an amicus curiae or assessor who could be seen as acting on behalf of, and assisting, the court in a manner that would support the conclusion that the right to non-publication beyond the court's necessary examination of the documents had not been affected or breached".

     [441](2011) 81 NSWLR 394 at 398 [19]-[20].

298. The use of a special advocate as a contradictor to assist the court, and as a means of mitigating any procedural unfairness, is a device known in the United Kingdom and in Canada. In Secretary of State for the Home Department v MB[442], Lord Hoffmann adopted the following description of the "Canadian procedure" given by the Grand Chamber of the European Court of Human Rights[443]:

     "[A] Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant."

     [442][2008] AC 440 at 484-485 [51]-[54].

     [443]Chahal v United Kingdom (1996) 23 EHRR 413 at 472 [144].

299. The foregoing represents a sensible combination of both the appointment of special advocate and the disclosure of the gist of the certified documents. Lord Hoffmann made the following additional observations about the adoption of the Canadian procedure in the United Kingdom[444]:

     "The Canadian model is precisely what has been adopted in the United Kingdom, first for cases of detention for the purposes of deportation on national security grounds (as in Chahal) and then for the judicial supervision of control orders. From the point of view of the individual seeking to challenge the order, it is of course imperfect. But the Strasbourg court has recognised that the right to be informed of the case against one, though important, may have to be qualified in the interests of others and the public interest. The weight to be given to these competing interests will depend upon the facts of the case, but there can in time of peace be no public interest which is more weighty than protecting the state against terrorism and, on the other hand, the Convention rights of the individual which may be affected by the orders are all themselves qualified by the requirements of national security. There is no Strasbourg or domestic authority which has gone to the lengths of saying that the Secretary of State cannot make a non-derogating control order (or anything of the same kind) without disclosing material which a judge considers it would be contrary to the public interest to disclose. I do not think that we should put the Secretary of State in such an impossible position and I therefore agree with the Court of Appeal that in principle the special advocate procedure provides sufficient safeguards to satisfy [the right to a fair hearing]."

     [444][2008] AC 440 at 485 [54].

300. Of course, the terms of appointment of a special advocate by an order of the Court would need to be carefully calibrated to the needs of a given appeal. Orders of the kind made in the Public Transport Ticketing Corporation case illustrate this. They included: an order for the nomination of a special advocate; an order for the obtaining of initial instructions from the excluded party before giving the special advocate access to the confidential material; an order that the special advocate not disclose the contents of that confidential material to anyone other than the Court and the relevant State body; an order that the special advocate make submissions to the Court; and an order that the excluded party pay the costs of the special advocate in the first instance[445].

     [445](2011) 81 NSWLR 394 at 405-406 [40] per Allsop P.

301. It may also be accepted that the utility of the appointment of a special advocate will depend upon the circumstances of the case. There will be cases where, because disclosure to an applicant of even the gist of the allegations made is not possible, the special advocate will be unable to obtain sufficient instructions from the applicant. There will also be cases where, even with disclosure of the gist of what is alleged, adequate instructions may not be capable of being given. In such cases, the special advocate may be unable to give the court any real assistance. But such possibilities may ultimately and practically prove largely to be illusory given that appeals to the Federal Court pursuant to s 44 of the AAT Act are almost always limited to questions of law; an inability to obtain instructions will often have little practical effect on the capacity of the special advocate to make submissions to the Court about the presence of error. In any event, notwithstanding the difficulties that might arise in a given case, it does not follow that the appointment of a special advocate could never cure any shortcoming in procedural fairness in a given case.

302. Thirdly, to the extent the Director-General sought to tender documents, whether in whole or part, that were the subject of certification pursuant to s 39B(2), it would be open to the Court to require, as a condition of admission into evidence, those documents, or parts of those documents, to be shown to an applicant's legal representatives on a confidential basis. The Court, cognisant of the ethical obligations owed by an applicant's legal representatives to the administration of justice, has the ability to mould the conditions and restrictions governing the disclosure of certified materials by the Director-General on a case-by-case basis with a view to balancing, to the extent possible, the competing imperatives of national security and procedural fairness[446]. No such direction would involve the Court itself failing to do "all things necessary to ensure" that certified matters in the documents held by the Court pursuant to s 46(1) were not disclosed to another person. The Solicitor-General of the Commonwealth agreed with this proposition. Whether the Director-General, as a model litigant, would be obliged to tender certified documents is not a matter that needs to be decided.

     [446]cf R v Khazaal [2006] NSWSC 1061 at [33]-[39] per Whealy J.

303. The foregoing is not intended to be an exhaustive list of the means by which the Federal Court could afford a sufficient degree of procedural fairness, or a sufficient reduction in any procedural unfairness, in appeals from the Security Division of the AAT. In respect of each appeal, the Court will need to mould what relief can be given to overcome the disadvantage suffered by the applicant as a result of the provision to the Court, but not to the applicant, of certified material.

304. If, notwithstanding the aforementioned options, the Court considers that it cannot sufficiently mitigate the disadvantage suffered by the applicant and that to proceed with the appeal without affording the applicant a fair opportunity to respond to the case against them would be productive of practical injustice, it is not compelled to do so. Contrary to what might be assumed, neither s 46(1) nor s 46(2) obliges the Federal Court to adopt a "closed material procedure"[447] in an appeal from a decision of the Security Division of the AAT. As previously explained, s 46(1) provides for the transfer of documents to the Federal Court, and s 46(2) prohibits disclosure of certified material to any person other than a member of the Federal Court. But the provisions do not compel the Court to adopt any other specific course of action[448].

     [447]See R (Haralambous) v Crown Court at St Albans [2018] AC 236.

     [448]cf Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 105 [177]-[178] per Gageler J.

305. In Al Rawi v Security Service, Lord Kerr of Tonaghmore JSC said of the closed material procedure adopted in the United Kingdom[449]:

     "The defendants' second argument proceeds on the premise that placing before a judge all relevant material is, in every instance, preferable to having to withhold potentially pivotal evidence. This proposition is deceptively attractive – for what, the defendants imply, could be fairer than an independent arbiter having access to all the evidence germane to the dispute between the parties? The central fallacy of the argument, however, lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one's opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial. However astute and assiduous the judge, the proposed procedure hands over to one party considerable control over the production of relevant material and the manner in which it is to be presented. The peril that such a procedure presents to the fair trial of contentious litigation is both obvious and undeniable."

     [449][2012] 1 AC 531 at 592-593 [93].

306. In a given case, it would be open to a judge, mindful of the concerns of Lord Kerr, to decline a tender of certified documents or otherwise to refuse to consider documents certified pursuant to s 39B of the AAT Act. But there will be other cases where it will be justifiable for a judge to consider the certified documents, especially when urged to do so by an applicant and where this will make adjudication of the questions of law the subject of the appeal more "effective".

307. In neither of those scenarios is a judge compelled to preside over a hearing that would be productive of practical injustice. That is because, even where the Court declines to consider the certified documents transmitted to it pursuant to s 46(1) of the AAT Act, it would remain open to the Court, in the exercise of its original jurisdiction, to revert to the principles and procedures that would have governed the appeal in the absence of s 46 – including, for example, the rules of public interest immunity, which would almost certainly apply to deny both the appellant and the Court any access to certified material[450]. For the reasons explained below and by Kiefel CJ, Keane and Gleeson JJ[451], that counterfactual position forecloses the appellant's contention that s 46 mandates the adoption of an unfair procedure.

     [450]See SDCV v Director-General of Security (2021) 284 FCR 357 at 396 [161]-[162] per Bromwich and Abraham JJ.

     [451]See [75]-[83].

308. Because the duty and the capacity of the Court to provide different forms of procedural fairness, of the kind described above, are not necessarily precluded by s 46(2) of the AAT Act, it is a valid law. If it were otherwise, like Gordon J and Edelman J, I may well have formed the view that s 46(2) was not a valid law. It follows that what in substance divides us is the way we construe s 46(2).

     Appeal not inimical to the exercise of judicial power

309. As mentioned, there will be appeals where, by reason of the nature of the certified material, the Federal Court will not be able to provide an applicant with a fair opportunity to respond to the evidence against them by any of the above means. The certified material may be so sensitive that any form of disclosure would be too dangerous. The possibility of such a case, however, of itself does not make s 46(2) an invalid law. That is because this type of appeal, even with its adoption of an unfair procedure, is not inimical to an exercise of federal judicial power.

310. In that respect, one commences with the observation that some degree of caution should be exercised in drawing implications from the essential nature of judicial power which fetter the exercise of legislative or executive authority. That is because, as Kitto J famously observed, "it has not been found possible to frame an exhaustive definition of judicial power"[452]. Indeed, Sir Owen Dixon, writing extra-judicially, once remarked that the doctrine of the separation of powers was an "artificial and almost impractical classification"[453]. In determining here what is inimical to the exercise of judicial power, one cannot consider the operation of s 46, to the extent that it has inhibited, or even denied, the provision of the usual norms of procedural fairness, in isolation. If an appeal from the Security Division is ultimately and otherwise beneficial to an applicant, justice is not denied but is served. And that is so even though, as Edelman J observes, the resulting procedure adopted by the Court may be seen, in and of itself, to be unfair – indeed, in some cases, acutely so.

     [452]R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373.

     [453]Dixon, "The Law and the Constitution", in Crennan and Gummow (eds), Jesting Pilate and Other Papers and Addresses, 3rd ed (2019) 170 at 181.

311. The provisions of the AAT Act concerning merits review of security assessments reflect choices made by the Parliament to enhance the rights of applicants who have been the subject of adverse security assessments, whilst at the same time preserving the confidentiality of intelligence held by the Director-General in the public interest. It is a legislative scheme that comprises a carefully balanced solution to conflicting rights and interests and that, when originally enacted in the ASIO Act, was a breakthrough in the common law world. Thus, in the Second Reading Speech for the Bill that became the ASIO Act, the following was noted[454]:

     "The statutory procedures for notification of security assessments and for rights of appeal in large part implement the recommendations of Mr Justice Hope. They represent the first attempt, at least in a common law country, to provide a comprehensive statutory framework regulating the making of security assessments of individuals and providing a right of appeal to an independent judicial tribunal. They therefore represent one of the most important steps taken in this Parliament for many years directed to the protection of the rights of individuals."

     [454]Australia, House of Representatives, Parliamentary Debates (Hansard), 22 May 1979 at 2175.

312. The Second Report of the Hope Royal Commission on Intelligence and Security, which recommended the establishment of a statutory right of merits review of security decisions in what is now the Security Division of the AAT, records Hope J's acute recognition of the need to balance private and public rights. His Honour described the "central problem" of a proposed security appeals system as "the difficulty of reconciling the needs and rights of the state with the needs and rights of the individual"[455]. Hope J wrote[456]:

     "The understandable desire of individuals to have all the rules of natural justice applied to security appeals must be denied to some extent, unfortunate though this may be. ... I do not think, however, that a security appeals system in which the appellant always had the right to hear all the evidence and to cross-examine all the witnesses, without restriction, would be either possible or desirable. In some cases, it may not be possible to inform the appellant of the whole of the case against him, although he must always be told as much of that case, and all the rules of natural justice must be applied as fully as is consistent with the national interest.

     The most common difficulty in any appeal against a security assessment is the protection of intelligence sources. ... If this protection is to be maintained, despite the existence of an appeals system, it will be necessary for the appeals tribunal to be able to allow evidence to be given in the absence of the appellant or his representatives, to be able to disallow cross-examination, and to admit hearsay evidence. Indeed, the description of some material relied upon to support an adverse or qualified assessment may be such as to identify the source. It may therefore be necessary to limit or totally to prohibit the giving of information in relation to that material to the appellant. These propositions derogate from the rules of natural justice, but they have been proved necessary in other countries which respect those rules. They are justified, and are only justified, by reference to the security of the nation.

     In some cases, in addition to the protection of sources, the security issue involved in the case may be so sensitive that to give any information concerning it to the appellant will be impossible."

     [455]Australia, Royal Commission on Intelligence and Security: Second Report (1977) at 68 [132].

     [456]Australia, Royal Commission on Intelligence and Security: Second Report (1977) at 68-70 [134]-[136].

313. The provisions of the AAT Act, described above, faithfully implement Hope J's concerns and reflect a measured "trade-off" between the need to protect the security interests of the nation and the benefit of providing independent merits review of security assessments. The resulting legislation is plainly beneficial. It is even more beneficial with the existence of judicial oversight pursuant to s 44 of the AAT Act. Without this regime, a person who has been the subject of an adverse security assessment would have a less effective right of appeal from a decision of the Security Division. That is because it is practically inevitable in such proceedings that the Director-General would successfully claim public interest immunity over certified documents[457], and the Court would be unable to understand fully the reasons of the AAT based on all of the evidence that was before it. Parliament has sought to avoid such an iniquitous result by enacting appeal rights which provide for the possibility of the Court considering all of that evidence. It follows that an appeal from the Security Division of the AAT to the Federal Court – notwithstanding the limitations imposed on the Court by s 46(2) of the AAT Act, which, in a given case, may deprive an applicant of a fair opportunity to respond to adverse evidence – is nonetheless beneficial to a litigant in the position of the appellant. For that reason, the adoption by the Court of such a procedure does not result in an applicant suffering "practical injustice"[458], and is not inconsistent with Ch III of the Constitution. In unadorned terms, the regime is better than nothing. In the context of a clearly recognised public interest in protecting the non-disclosure of highly sensitive intelligence, s 46(2) is a valid and necessary law of the Commonwealth, which forms part of an otherwise beneficial regime.

     [457]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 550-551 [5] per Gleeson CJ, 556 [23]‑[24] per Gummow, Hayne, Heydon and Kiefel JJ. See also Church of Scientology v Woodward (1982) 154 CLR 25 at 60 per Mason J, 76 per Brennan J; R v Khazaal [2006] NSWSC 1061 at [30]-[32] per Whealy J; Leghaei v Director-General of Security (2007) 241 ALR 141 at 147 [52] per Tamberlin, Stone and Jacobson JJ.

     [458]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99 [156] per Hayne, Crennan, Kiefel and Bell JJ.

314. Edelman J would criticise the foregoing conclusion as an example of an end justifying the means. With respect, that may well be so. But it nevertheless represents an acceptance that in order to provide an applicant in circumstances such as these with a meaningful – as distinct from meaningless – chance of independent review with subsequent judicial oversight, there is a necessary and regrettable cost that may need to be incurred. In this context, that cost does not offend justice.

315. I agree with the orders proposed by Kiefel CJ, Keane and Gleeson JJ.