And: DOROTHY HONORA MADIGAN, JOHN MENADUE and THE MINISTER FOR IMMIGRATION AND
ETHNIC AFFAIRS (1982) 64 FLR 112
No. G 151 of 1982
Practice and Procedure - Administrative Law - Practice - Immigration and
Aliens
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)
Practice and Procedure - subpoena for production of documents concerning questions of national security - ASIO - Australian Federal Police - balancing of public interests.
Administrative Decisions (Judicial Review) Act 1977 s. 5
Australian Security Intelligence Organisation Act 1979 ss. 8, 17
Administrative Law - Decision to refuse permanent resident status to three applicants - Deportation orders not signed by Minister - Application for order of review of decision and deportation order - Whether deportation order was invalid - Whether rules of natural justice had been breached - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5.
Practice - Subpoenas to A.S.I.O. and Australian Federal Police for production of documents concerning matters of national security - Conflicting aspects of public interest - Inspection of documents by court - Whether production of documents contrary to public interest - Whether documents produced should be inspected by applicants - Whether court should exercise its power to inspect documents - Australian Security Intelligence Organization Act 1979 (Cth), ss. 8, 17.
Immigration and Aliens - Deportation orders not signed by Minister - Application for order of review of decision to refuse permanent resident status and of decision to issue deportation order - Whether deportation order was invalid - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5.
The three applicants applied, pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977, for an order of review of (a) the decision of the respondent Madigan refusing the grant of permanent resident status in Australia to the applicants and of (b) deportation orders signed by the respondent Menadue for the deportation of the first and second applicants who were husband and wife. The third applicant was their daughter. The applicants contended, inter alia, that in making her decision the respondent Madigan (i) failed to give them an opportunity to put material concerning their character to the first respondent; (ii) failed to inform the applicants of criteria to be applied concerning the determination of character; (iii) took into account irrelevant considerations; and (iv) failed to take into account a relevant consideration.
The applicants further contended that the deportation orders were invalid because they were not made by the Minister of State for Immigration and Ethnic Affairs (the Minister) but by the respondent Menadue who, they alleged, lacked the requisite power.
At the request of the applicants, the Director-General of the Australian Security Intelligence Organization (A.S.I.O) and the Assistant Commissioner (Crime) of the Australian Federal Police (the Police Commissioner) were subpoenaed to produce certain specified documents to the court. The Director-General of A.S.I.O. swore an affidavit in which he objected to producing documents to…
Continue reading Haj-Ismail v Madigan
Sign in free to access the full text
- AGLC
- Ismail, H.H. & Ors v. Madigan, D.H. & Ors [1982] FCA 240 ((1982) 64 FLR 112)
- Case
- [1982] FCA 240
- Decision Date
CaseChat Overview and Summary
The legal issues at hand centred on the appropriate balance between the public interest in protecting national security and the applicants' right to inspect documents that were potentially relevant to their case. The applicants argued that they needed to inspect the documents to effectively prepare their defence, while the Commissioner of the Australian Federal Police and the Director-General of ASIO contended that the inspection of certain parts of the documents could compromise national security.
Justice Bowen determined that the public interest in protecting national security was a significant factor to consider. However, he also recognised the applicants' need to inspect documents relevant to their defence. Consequently, the Court ordered that the documents produced to the Court by the Commissioner be released to him on the condition that he return copies to the Court with the sensitive parts erased. The proceeding was adjourned to allow for the inspection of these documents and to address the applicants' request for the production and inspection of documents subpoenaed from ASIO.
In summary, the Court balanced the competing interests by allowing the applicants to inspect the documents while taking measures to protect national security. The final orders included the conditional release of the documents to the Commissioner and the adjournment of the proceeding to further address the inspection requests.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The documents produced to the Court by the Commissioner of the Australian Federal Police be released to the Commissioner on condition that he returns to the Court on or before 3 December 1982 copies of such of those documents or parts thereof as I have said may be inspected by the applicants erasing from them the parts highlighted in yellow or green.
2. The proceeding be adjourned to 3 December 1982 to deal further with the application by the applicants for inspection of the documents mentioned in 1. above and with the application by the applicants for production and inspection of the documents subpoenaed from the Director-General of ASIO.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.