Kim v Attorney-General of the Commonwealth
[2013] FCA 902
FEDERAL COURT OF AUSTRALIA
Kim v Attorney-General of the Commonwealth [2013] FCA 902
Citation: Kim v Attorney-General of the Commonwealth [2013] FCA 902 Parties: YEON KIM v ATTORNEY-GENERAL OF THE COMMONWEALTH and ADMINISTRATIVE APPEALS TRIBUNAL File number: ACD 74 of 2012 Judge: FOSTER J Date of judgment: 6 September 2013 Catchwords: ADMINISTRATIVE LAW – whether certificates issued by or on behalf of the Attorney-General for the Commonwealth pursuant to s 39A(8) and s 39B(2) of the Administrative Appeals Tribunal Act 1975 (Cth) were invalid because the Attorney-General self-evidently failed to take into account a number of matters which the applicant contended were inevitably required to be taken into account when regard is had to the legislative framework of which s 39A and s 39 form part and to the subject matter, scope and purpose of that scheme in the circumstances of the present case Legislation: Acts Interpretation Act 1901 (Cth), s 46(2)
Administrative Appeals Tribunal Act 1975 (Cth), ss 19, 27AA, 35AA, 36, 38A, 39, 39A, 39B, 43, 43AAA
Australian Security Intelligence Organisation Act 1979 (Cth), ss 4, 17(1)(c), 35(1), 37(1), 54, 81
Judiciary Act 1903 (Cth), s 39BCases cited: De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 64 cited
Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 cited
Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24 cited
Traljesic v Attorney-General (Cth) (2006) 150 FCR 199 cited
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 citedDate of hearing: 27 March 2013 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 110 Counsel for the Applicant: Mr LT Grey Solicitor for the Applicant: Colquhoun Murphy Counsel for the Respondents: Dr SP Donaghue SC and Mr AP Berger Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 74 of 2012
BETWEEN: YEON KIM
Applicant
AND: ATTORNEY-GENERAL OF THE COMMONWEALTH
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
6 SEPTEMBER 2013
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 74 of 2012
BETWEEN: YEON KIM
Applicant
AND: ATTORNEY-GENERAL OF THE COMMONWEALTH
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE:
6 SEPTEMBER 2013
PLACE:
CANBERRA
REASONS FOR JUDGMENT
The applicant, Dr Kim, is a senior public servant employed by the Australian Bureau of Agricultural Resource Economics and Sciences, a research organisation within the Department of Agriculture, Fisheries and Forestry. The first respondent is the Attorney-General of the Commonwealth (the Attorney-General). The second respondent, the Administrative Appeals Tribunal (the AAT) filed a submitting appearance.
The applicant received an adverse security assessment from the Director-General of Security (DGS) in September 2011. Between 2001 and the date of that adverse security assessment, the applicant held a security clearance for access to classified information up to and including SECRET. He challenged the September 2011 adverse security assessment in the Administrative Appeals Tribunal (the AAT) and continues to do so in a separate proceeding in this Court (ACD 72 of 2012).
In this proceeding, the applicant seeks to set aside two security certificates (the certificates) issued in the name of the Attorney-General. The Attorney-General is the responsible Minister for the purpose of issuing security certificates of the type in question here. Those certificates operated to deny to the applicant and to his legal representatives information, evidence and submissions relevant to his case before the AAT.
In a judgment originally delivered on 27 March 2013 which was subsequently redacted to some extent in order to prohibit the disclosure of certain matters (RJCG v Director-General of Security; RJCG v Attorney-General of the Commonwealth and Anor [2013] FCA 269 (the first judgment), I summarised the relevant background facts in this matter in the following way:
1The applicant is a Commonwealth public servant employed in a senior capacity by a research organisation within a Commonwealth Department of State.
2Between 2001 and 2011, the applicant held a security clearance for access to classified information up to and including “SECRET”. Without such a security clearance, the applicant’s career as a senior public servant in his specialist field will end.
3On 15 September 2011, an adverse security assessment of the applicant was made by the Director-General of Security (DGS) of the Australian Security Intelligence Organisation (ASIO). The DGS has control of ASIO under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) (see s 7 and s 8 of the ASIO Act).
4The adverse security assessment of the applicant was based upon allegations that the applicant had unreported contact with officers of the intelligence service of a country which is generally friendly to Australia, which I shall, for the time being, call “country X”. It was alleged that the applicant had provided information to an intelligence officer working for the intelligence service of country X in connection with government to government negotiations between Australia and country X concerning an important bilateral trade agreement. It was said that this conduct on the part of the applicant constituted “… acts of foreign interference …” within the meaning of that expression as defined in s 4 of the ASIO Act.
5The applicant sought a review of the adverse security assessment in the Administrative Appeals Tribunal (AAT) pursuant to s 54 of the ASIO Act. That review must be conducted in accordance with s 39A and s 39B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
6Section 39A(5) provides that the review proceedings are to be held in private in the Security Appeals Division of the AAT and, subject to s 39A, the AAT is to determine who may be present at the hearing at any time.
7Subsections (6)–(11) of s 39A are in the following terms:
Right of parties etc. to be present
(6)Subject to subsection (9), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director General of Security or the Commonwealth agency to which the assessment was given.
(7)The Director General of Security or a person representing the Director General, and a person representing the Commonwealth agency to which the assessment was given, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.
Security/defence certificate
(8)The Minister administering the Australian Security Intelligence Organisation Act 1979 (the responsible Minister) may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director General of Security or the Commonwealth agency to which the assessment was given 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.
(9)If such a certificate is given:
(a)the applicant must not be present when the evidence is adduced or the submissions are made; and
(b)a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the responsible Minister consents.
(10)If a person representing the applicant is present when evidence to which a certificate given under subsection (8) relates is adduced or submissions to which such a certificate relates are made, the representative must not disclose any such evidence or submission to the applicant or to any other person.
Penalty:Imprisonment for 2 years.
Note:Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
Protection of identity of person giving evidence
(11)If the Director General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director General of Security is not revealed.
8Section 39B provides that the Attorney-General of the Commonwealth may issue a public interest certificate the effect of which is to deny access to information or material specified in the certificate which is adduced in proceedings to which s 39A applies. Such a denial of access would extend to the review applicant and to his or her legal representatives.
9On 17 August 2012, the AAT, in its Security Appeals Division, published an open Decision and Reasons for Decision (the open decision) by which it affirmed the adverse security assessment made by the DGS in respect of the applicant. I understand that, on the same day, the AAT published a closed decision dealing with secret classified information (the closed decision). I have not looked at the closed decision.
10The applicant was dissatisfied with the open decision and, by a proceeding commenced in this Court on 14 September 2012 (No ACD 72 of 2012), appealed to this Court pursuant to s 44 of the AAT Act on five questions of law, from the open decision. In the event that the applicant presses that appeal, it will be heard by a Full Court. The applicant’s s 44 appeal has not yet been fixed for hearing.
11For the purposes of and in connection with the applicant’s review application in the AAT, two certificates were issued in the name of the Attorney-General. Those certificates were dated 24 January 2012 and 7 March 2012 respectively. Those certificates had the effect of denying access to the applicant and his legal representatives to certain material tendered before the Tribunal during the hearing of his review application. The Attorney-General and the acting Attorney-General relied upon ss 36(1)(a), 39A(8) and 39B(2)(a) of the AAT Act as the statutory foundation for the issue of these two certificates.
In these Reasons for Judgment, I shall use the same abbreviations as I used in the first judgment.
The first judgment determined applications made by the DGS in proceeding ACD 72 of 2012 and by the Attorney-General in this proceeding for suppression orders in respect of:
(a)The Secret Confidential affidavit of the DGS sworn on 26 October 2012 and filed in this proceeding;
(b)The documents contained in the AAT’s open file concerning the applicant’s review application before the AAT;
(c)Information identifying the foreign country (described in the first judgment as “country X”), the foreign intelligence service and the foreign intelligence service officers referred to in the AAT’s open file;
(d)Exhibits 1 and JCMR-6 to the affidavit of James Charles McNair Ronald sworn on 26 September 2012 and filed in this proceeding;
(e)Exhibits IMS-18 and IMS-19 to the affidavit of Irene Maria Sekler affirmed on 31 January 2013 and filed in this proceeding; and
(f)The respondents’ Outline of Submissions filed in this proceeding on 30 November 2012.
Exhibit 1 to Mr Ronald’s affidavit is the whole of the transcript of the hearing of the applicant’s review application in the AAT with the exception of that part of that hearing covered by the certificates.
Exhibit JCMR-6 to Mr Ronald’s affidavit is a copy of the open decision.
The applications determined by the first judgment did not concern classified material. Order 1 made by me on 12 October 2012 in proceeding ACD 72 of 2012 remains in place. That order is in the following terms:
THE COURT:
1.ORDERS that the content of the classified Administrative Appeals Tribunal (AAT) file and the documents covered by non-publication orders made by the AAT pursuant to s 35AAA of the Administrative Appeals Tribunal Act 1975 (Cth), delivered to the Court by the AAT, are to be stored in a Class B safe and that no access be granted to that file and those documents (including access by the applicant or his legal representatives) without an order of the Court and without prior notice to Commonwealth which is to be given an opportunity to be heard in relation to the grant of any access order.
I have not looked at any of the classified material.
As a result of the orders which I made at the time when I delivered the first judgment, the suppression orders made in respect of the documents described in subpar (b) to (f) of [6] above ceased to have effect. In addition, the open decision became available to the public free of any redactions.
It is therefore now known that “country X” is the Republic of Korea. The foreign intelligence service of “country X” is the “National Intelligence Service of the Republic of Korea” (the NIS). The applicant’s name is no longer suppressed. Information concerning the applicant in the open decision is no longer suppressed. In particular, the fact that the applicant most recently worked as Section Manager of the Agricultural Trade Section of the Department of Agriculture, Fisheries and Forestry is now known. The bilateral trade agreement referred to in the first judgment has also been revealed as the Australia/Korea Free Trade Agreement (the FTA).
The applicant challenges the validity of both of the certificates. The precise relief sought by the applicant in his Amended Originating Application is in the following terms:
On the grounds stated in the accompanying affidavit, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903:
1. A declaration that ss.39A of the Administrative Appeals Tribunal Act 1975, properly construed, does not authorise the First Respondent to sign a certificate under ss.39A(8) of the Administrative Appeals Tribunal Act 1975 withholding consent under s.39A(9)(b) for a legal practitioner, who –
(a) is admitted to practice under the laws of a State or Territory;
(b) holds a current practising certificate; and
(c) represents an Applicant in proceedings in the Security Appeals Division of the Administrative Appeals Tribunal,
to be present when evidence is adduced or submissions are made by the Director-General of Security in the relevant proceedings, unless the First Respondent is satisfied on credible evidence that the presence of that legal practitioner would be contrary to the public interest because it would prejudice security or the defence of Australia.
2. A declaration that ss.39B of the Administrative Appeals Tribunal Act 1975, properly construed, does not authorise the First Respondent to sign a certificate under ss.39B(2) stating that the disclosure of information with respect to a matter stated in the certificate or the disclosure of the contents of a document, to a legal practitioner who –
(a) is admitted to practice under the laws of a State or Territory;
(b) holds a current practising certificate; and
(c) represents an Applicant in proceedings in the Security Appeals Division of the Administrative Appeals Tribunal,
would be contrary to the public interest for one of the reasons set out in s.39B(2), unless the First Respondent is satisfied on credible evidence that disclosure of information or the contents of a document to that legal practitioner would be contrary to the public interest for the specified reason.
3. An order quashing the certificates signed on 24 January 2012 and 7 March 2012 by the First Respondent under s.39A(8) and 39B(2) of the Administrative Appeals Tribunal Act 1975 (“the Certificate”), made in Administrative Appeals Tribunal proceedings 2011/4582 Re RJCG and the Director-General of Security (“the Proceedings”).
4. An order quashing the decision of the Second Respondent made in the Proceedings on 17 August 2012 in reliance upon the Certificate.
5.An order remitting the proceedings to the Second Respondent for determination according to law.
6. An order prohibiting the First Respondent from signing any other certificate in relation to the remitted Proceedings except in accordance with the reasons given by this honourable Court.
Section 39B(1) of the Judiciary Act 1903 (Cth) (the Judiciary Act) provides that, subject to certain exceptions and qualifications which are not presently relevant, the original jurisdiction of this Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. Subsection (1A) of s 39B provides:
(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a)in which the Commonwealth is seeking an injunction or a declaration; or
(b)arising under the Constitution, or involving its interpretation; or
(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
Note:Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.
Here, the applicant relies upon s 39B(1A)(c). It is not disputed that the issue of the certificates is theoretically susceptible to attack under that subsection.
These Reasons for Judgment determine the applicant’s claims for final relief in respect of the certificates.
THE RELEVANT FACTS
As mentioned at [1] to [4] above, the DGS issued an adverse security assessment of the applicant on 15 September 2011. In that assessment, it was alleged that the applicant had had unreported contact with officers of the NIS which included the provision of information to NIS officers in connection with the FTA. In section 4 of that assessment, which is headed Advice, the DGS said:
The prescribed administrative action recommended by ASIO in this case is that [the Australian Government Security Vetting Agency]:
•Revoke Dr Kim’s SECRET security clearance; and
•Before issuing any further security clearance to Dr Kim, obtain a further security assessment from ASIO.
Further, ASIO recommends that [the Department of Agriculture, Forestry and Fisheries] takes action to prevent Dr Kim from:
•Accessing any classified, caveated or government information not available to the general public (whether national security classified or not); and
•Accessing any areas within [the Department of Agriculture, Forestry and Fisheries] to which access is limited on security grounds.
The grounds for the adverse security assessment issued in respect of the applicant were attached to the assessment. They were not tendered in evidence before me. I do not know whether they were furnished to the applicant.
On 25 October 2011, the applicant applied to the Security Appeals Division of the AAT for merits review of the DGS’s adverse security assessment issued on 15 September 2011. The applicant’s application to the AAT listed Mr Ronald, a solicitor from Colquhoun Murphy, solicitors, as his representative. Mr Ronald acted as the applicant’s representative throughout the AAT proceedings. He continues to act for the applicant. In the interlocutory stages, the DGS made a number of applications to the AAT seeking confidentiality orders in respect of documents and information to be relied upon in due course at the AAT hearing. In particular, on 23 January 2012, the AAT made directions for the filing of evidence, including classified evidence, by the DGS and the applicant.
On 24 January 2012, Jason Clare, who was then the Acting Attorney-General, issued a certificate pursuant to ss 36, 39A and 39B of the AAT Act. I set out below the entirety of that certificate.
On 13 February 2012, a copy of the 24 January 2012 certificate was provided to Mr Ronald.
As a result of orders made by the AAT, specific documents were made the subject of confidentiality orders but were not sought to be protected by any certificate from the Attorney-General. At par 16 of the affidavit of Ms Sekler affirmed on 31 January 2013, Ms Sekler, who is the solicitor employed by Australian Government Solicitor who has the carriage of this and other matters concerning the applicant, said:
The unredacted parts of the three tranches of confidential documents referred to in paragraph 15 above were not the subject of requests for or grants of Attorney-General’s certificates. The unredacted parts of those documents contain information that I was instructed by ASIO would be prejudicial to security if it was to enter the public domain at that time but could, if subject to confidentiality orders, be provided to RJCG and his legal advisors without prejudicing security, largely because RJCG was likely to already be aware of such information. This is to be contrasted with the documents that were the subject of a certificate issued by the Attorney-General. I was instructed by ASIO that the information covered by the certificates could not be provided to RJCG or his legal advisors, even subject to confidentiality orders, without prejudicing security.
On 27 February 2012, the AAT listed the applicant’s appeal for hearing on 22 May 2012 with an estimate of three days.
On 7 March 2012, the Attorney-General issued a second certificate. This certificate was issued pursuant to s 39A and s 39B of the AAT Act. I set out this second certificate in full below:
A copy of the 7 March 2012 certificate was provided to Mr Ronald on 15 March 2012.
The hearing of the applicant’s application took place in Canberra on 22 May 2012, 23 May 2012 and 24 May 2012. Submissions were made in Sydney on 14 June 2012. Mr LT Grey, of Counsel, appeared for the applicant at that hearing. He was instructed by Mr Ronald. The period beginning on 22 May 2012 and ending on 24 May 2012 primarily dealt with evidentiary issues. The last day, 14 June 2012, was the day when submissions were made.
In his affidavit sworn on 26 September 2012 and filed in this proceeding, Mr Ronald testified that he was granted an Australian government Negative Vetting 1 Security Clearance on 19 October 2011. He went on to say that no request was made to him that Mr Grey should undergo any security vetting process.
Mr Ronald also said that he was not consulted at all in relation to the certificates prior to their issue. Nonetheless, he was provided with a copy of each certificate well in advance of the hearing before the AAT.
At 2.31 pm on 22 May 2012, at 10.27 am on 23 May 2012, in the morning of 24 May 2012 and again at 2.43 pm on 24 May 2012, both Mr Grey and Mr Ronald were excluded from the AAT hearing. They were also excluded on several occasions on 14 June 2012. The applicant was not allowed to be present during these periods of exclusion either. These periods of exclusion were required as a consequence of the operation of the certificates. Mr Ronald testified that neither he nor Mr Grey has subsequently had access to any part of the transcript from any of the closed sessions to which I have referred. He said that neither he nor Mr Grey nor the applicant has any knowledge of the evidence adduced or the submissions made during those closed sessions. He also said that, on other occasions during the hearing, the certificates were relied upon by the DGS to deny access to the applicant and his legal representatives to evidence adduced from time to time during that part of the hearing which was not in closed session. Mr Ronald said that both he and Mr Grey would have given confidentiality undertakings in respect of sensitive material, had they been requested to do so. He also said that the applicant would have continued to retain Mr Grey and him, even if they had been required to give such undertakings.
In her affidavit, Ms Sekler said that Mr Grey had asked questions and made submissions that led the DGS to rely upon on the certificates during the course of that part of the hearing which was not in closed session. She said that at no time during any part of the AAT hearing did the applicant or his legal representatives challenge the validity, scope or operation of either of the certificates.
At par 32 of her affidavit, Ms Sekler said:
At various times during the hearing on 22 May 2012–24 May 2012 and 14 June 2012, RJCG, Mr Grey and Mr Ronald were required to leave the hearing room after which particular evidence was given or submissions made referring to certificated documents or information. At the times during the May hearings that Mr Grey and Mr Ronald were required to leave the hearing room, neither of them objected to that course, suggested that consent should be given for either or both of them to remain, or indicated or suggested that RJCG wished to challenge the validity of the certificates. Based on my review of the transcript of the June hearing, the same is true during that hearing. …
At par 34 of her affidavit, Ms Sekler said:
To my knowledge at no stage prior to the Tribunal handing down its decision did RJCG or any of his legal representatives seek to provide any information, or to make any submission:
34.1about whether either of the certificates referred to above should be issued, issued subject to consent pursuant to s 39A(9)(b) of the AAT Act, or revoked, in order to allow Mr Ronald and/or Mr Grey access to the certificated information and documents (whether on conditions of non-disclosure or otherwise);
34.2to contend that the security clearance Mr Ronald had been granted in connection with another matter involving another part of the Commonwealth should be taken into account in issuing the certificates;
34.3to indicate that Mr Grey was willing to undergo a security clearance in order to facilitate access to the certificated documents or information; or
34.4to indicate that RJCG intended to, or wished to, challenge the validity of either certificate issued by the Acting Attorney-General and Attorney-General respectively.
THE RELEVANT STATUTORY PROVISIONS
Section 35AA of the AAT Act provides that, for the purposes of a proceeding before the Security Appeals Division to which s 39A applies, the AAT may give directions prohibiting or restricting the publication of evidence given before the Tribunal and other information.
Section 36 authorises the Attorney-General to issue a public interest certificate in respect of proceedings other than a proceeding in the Security Appeals Division to which s 39A applies. In such a certificate, the Attorney-General is to certify that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest:
…
(a)by reason that it would prejudice the security, defence or international relations of Australia;
(b)by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or
(c)for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed;
Section 39 of the AAT Act provides:
39 Opportunity to make submissions concerning evidence
(1)Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
(2)This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
Section 39A governs the way in which hearings in the Security Appeals Division are to be conducted. That section is in the following terms:
39A Procedure at certain hearings in Security Appeals Division
Review of security assessment
(1)If an application for a review of a security assessment is made to the Tribunal, the Tribunal is to review the assessment in accordance with this section.
Parties
(2)The parties to the proceeding are the Director General of Security and the applicant, but the Commonwealth agency to which the assessment is given is entitled to adduce evidence and make submissions.
Director General of Security must present all relevant information
(3)It is the duty of the Director General of Security to present to the Tribunal all relevant information available to the Director General, whether favourable or unfavourable to the applicant.
Member may require parties to attend etc.
(4)The presidential member who is to preside, or is presiding, at the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings.
Proceedings to be in private
(5)The proceedings are to be in private and, subject to this section, the Tribunal is to determine what people may be present at any time.
Right of parties etc. to be present
(6)Subject to subsection (9), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director General of Security or the Commonwealth agency to which the assessment was given.
(7)The Director General of Security or a person representing the Director General, and a person representing the Commonwealth agency to which the assessment was given, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.
Security/defence certificate
(8)The Minister administering the Australian Security Intelligence Organisation Act 1979 (the responsible Minister) may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director General of Security or the Commonwealth agency to which the assessment was given 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.
(9)If such a certificate is given:
(a)the applicant must not be present when the evidence is adduced or the submissions are made; and
(b)a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the responsible Minister consents.
(10)If a person representing the applicant is present when evidence to which a certificate given under subsection (8) relates is adduced or submissions to which such a certificate relates are made, the representative must not disclose any such evidence or submission to the applicant or to any other person.
Penalty:Imprisonment for 2 years.
Note:Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
Protection of identity of person giving evidence
(11)If the Director General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director General of Security is not revealed.
Evidence and submissions
(12)The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Director General of Security and any evidence or submissions that the Commonwealth agency to which the assessment was given may wish to adduce or make.
(13)The Tribunal must next permit the applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal.
(14)The Tribunal may, on its own initiative and at any stage of the proceedings, invite a person to give evidence, or cause a person to be summoned to give evidence.
(15)If a person invited or summoned to give evidence under subsection (14) is an officer or employee of the Australian Security Intelligence Organisation or of the Commonwealth agency to which the assessment was given, subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director General of Security or that agency, as the case may be.
(16)If:
(a)a party presents his or her case to the Tribunal; and
(b)after that case has been presented, the other party adduces evidence; and
(c)the Tribunal thinks that, because of evidence adduced by the other party, the first mentioned party should be further heard;
the Tribunal must give the first mentioned party an opportunity of adducing further evidence but must not give to the applicant any particulars of any evidence to which a certificate given under subsection (8) relates.
(17)A member of the Tribunal may ask questions of a witness before the Tribunal and the presidential member presiding may require a witness to answer any such question.
Dismissal of application
(18)If the applicant fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the security assessment.
Section 39B provides:
39B Certain documents and information not to be disclosed in proceedings before Security Appeals Division
Scope
(1)This section applies to a proceeding in the Security Appeals Division to which section 39A applies.
Attorney General may issue public interest certificate
(2)If the Attorney General 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:
(a)because it would prejudice security or the defence or international relations of Australia; or
(b)because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or
(c)for any other reason stated in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the contents of the document should not be disclosed;
the following provisions of this section have effect.
Protection of information etc.
(3)A person who is required by or under this Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement, but the Tribunal must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure:
(a)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; and
(b)in respect of a document produced to the Tribunal—that the document is returned to the person by whom it was produced.
(4)Subsection (3) does not apply in relation to disclosure to the Director General of Security or his or her representative if the reason stated in the certificate is the reason referred to in paragraph (2)(a).
Disclosure of information etc.
(5)If:
(a)the Attorney General has certified in accordance with subsection (2) that the disclosure of information or of the contents of a document would be contrary to the public interest but the certificate does not state a reason referred to in paragraph (2)(a) or (b); and
(b)the presidential member presiding is satisfied that the interests of justice outweigh the reason stated by the Attorney General;
the presidential member may authorise the disclosure of the information, or of the contents of the document to, the applicant.
What presidential member must consider in deciding whether to authorise disclosure of information etc.
(6)In considering whether information or the contents of a document should be disclosed as mentioned in subsection (5):
(a)the presidential member must take as the basis of his or her consideration the principle that it is desirable, in the interest of ensuring that the Tribunal performs its functions effectively, that the parties should be made aware of all relevant matters; but
(b)the presidential member must pay due regard to any reason stated by the Attorney General in the certificate as a reason why the disclosure of the information or of the contents of the document, as the case may be, would be contrary to the public interest.
Disclosure of information etc. to staff of Tribunal
(7)This section does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal’s staff in the course of the performance of his or her duties as a member of the Tribunal’s staff.
Public interest
(8)This section excludes the operation, apart from this section, 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.
Copy of document
(9)If the Attorney General has given a certificate under subsection (2) in respect of a document, this section applies in relation to a document that is a copy of the first mentioned document as if the copy were the original document.
Certificate lodged under subsection 38A(1)
(10)For the purposes of this section, if the Director General of Security, in accordance with subsection 38A(1), has lodged with the Tribunal a certificate of the Attorney General given under subsection 38(2) of the Australian Security Intelligence Organisation Act 1979, the certificate is taken to be a certificate certifying to the Tribunal that the disclosure of the information to which the certificate relates would be contrary to the public interest because it would prejudice security.
Duty of Tribunal
(11)It is the duty of the Tribunal, even though there may be no relevant certificate under this section, 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.
Section 43AAA obliges the AAT, when conducting a review in its Security Appeals Division, to make and record its findings in relation to the security assessment under review. Subject to an overriding discretion in the AAT to withhold copies of its findings, those findings are to be given to the applicant, the DGS, the Commonwealth agency to which the assessment was given and the Attorney-General (see subs (4) and subs (5) of s 43AAA).
THE PARTIES’ SUBMISSIONS
The Applicant’s Submissions in Chief
At par 6 of the applicant’s Written Submissions in Chief, it was submitted that the certificates resulted in the applicant, and his legal representatives, being denied most of the basic ingredients of natural justice, including:
(a)provision of particulars of the case against the applicant, including the precise details of the acts he is said to have engaged in that constituted “acts of foreign interference”;
(b)the identification of, and access to, quantities of documentary evidence which were clearly highly persuasive in causing the AAT to reach its final decision;
(c)an effective cross-examination of Mr Hampton, a witness called on behalf of the DGS, who was permitted by the AAT to make his own decisions as to when he would and would not answer questions in reliance upon the certificates;
(d)the ability to make detailed submissions about the evidence; and
(e)the ability of the applicant’s legal representatives to advise him fully about his prospects of success both before the AAT and now in this Court.
Generally, when conducting reviews, the AAT is required to follow procedures consistent with a legislative intention that parties appearing before it should enjoy all of the basic rights usually taken for granted in courts. In his submissions, the applicant accepted that, in the Security Appeals Division of the AAT, these general rights were subject to modifications. Those modifications are to be found in s 39A of the AAT Act. In particular:
(a)The proceedings are to be held in private and the AAT is to determine who may be present at any particular time (s 39A(5));
(b)Subject to the potential operation of a security certificate, the applicant and a person representing the applicant may be present when the AAT is hearing submissions made or evidence adduced by the DGS or the Commonwealth agency to which the assessment was given (s 39A(6));
(c)If the DGS so requests, the AAT must do all things necessary to ensure that the identity of a person giving evidence on behalf of the DGS is not revealed (s 39A(11));
(d)The AAT must first hear evidence and submissions from the DGS (and, if applicable, the agency to which the assessment was given) and then hear evidence and submissions from the applicant (s 39A(12) and s 39A(13));
(e)The AAT may, on its own initiative and at any stage of the proceedings, invite or summons a person to give evidence (s 39A(14)); and
(f)After hearing from one party, the AAT may decide to give the other party an additional opportunity to adduce evidence (s 39A(16)).
The critical subsections of s 39A concerning security certificates are subs (6), subss (8) to (10) and subs (16). In addition, s 39B of the AAT Act deals with the issue by the Attorney-General of a public interest certificate.
The prerequisite for issuing a certificate under s 39A(8) is a determination by the Attorney-General that:
… evidence proposed to be adduced or submissions proposed to be made by or on behalf of the DGS or the Commonwealth agency to which the assessment was given 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.
The concept of “security”, when used in s 39A(8), is defined in s 4 of the ASIO Act. It includes the protection of the Commonwealth from “acts of foreign interference”. That expression is also defined in s 4 of the ASIO Act.
If a certificate is issued by the Attorney-General pursuant to s 39A(8) of the AAT Act, two consequences follow. They are:
(a)The applicant must not be present when the evidence is adduced or the submissions are made; and
(b)A person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the Attorney-General consents.
These consequences are spelled out in s 39A(9).
If the applicant’s representative is present on an occasion when evidence is adduced or submissions are made in respect of matter covered by such a certificate, the representative is subjected to very strict confidentiality requirements.
Section 39B(2) sets out the matters which must be determined by the Attorney-General prior to issuing a certificate under that section. For present purposes, the relevant prerequisite is that which is found in s 39B(2)(a), namely 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.
Where the Attorney-General issues a certificate under s 39B(2) of the AAT Act, the consequences specified in s 39B(3) to s 39B(9) follow. Those provisions require that information or documents are not to be provided to any person other than a member of the AAT or a staff member of the AAT in a manner inconsistent with the terms of the relevant certificate.
Section 39B does not contain any provision equivalent to s 39A(9). Nonetheless, it was submitted on behalf of the applicant that it is implicit in s 39B(2) that a certificate under that subsection could be issued by the Attorney-General in a form which would permit disclosure of information and documents to a legal representative of an applicant, consistently with a consent given under s 39A(9).
The issue of a certificate under either s 39A(8) or s 39B(2) of the AAT Act is an administrative decision amenable to review by this Court under s 39B of the Judiciary Act (Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 (Hussain) at 274 [136]).
The issue of a certificate under either s 39A(8) or s 39B(2) involves a denial of procedural fairness to an applicant. Although common law principles of natural justice can be overridden by statute, such an outcome can only be achieved if the legislature has evinced a clear intention to do so. In the case of s 39A and s 39B there is no clear intention evident in the legislation that every applicant in a security appeal should suffer procedural unfairness or that, if some procedural unfairness is necessary in the interests of Australia’s security, the unfairness should be the same in every case. Certificates should be tailored to suit the circumstances of the individual case.
The Attorney-General must make a determination in every case, not only about the form of the certificate which is to be issued, but also whether the circumstances of the particular case are such that consent should be given under s 39A(9). The Attorney-General is obliged to consider whether the public interest in protecting the security of the nation outweighs the right of an applicant to be properly represented by his legal representatives.
There are no formal criteria set out in the AAT Act that need to be satisfied before the Attorney-General can decide to issue a certificate under either section and no particular level of satisfaction is required in assessing the risk that would justify the issue of a certificate. If, when the Attorney-General comes to consider issuing a certificate under either section, there is no material before him or her relevant to the question of whether consent should be given pursuant to s 39A(9), the issue of a certificate under s 39A would be an improper exercise of the power reposed in the Attorney-General pursuant to s 39A. The Court is entitled to examine the evidence that was before the Attorney-General at the time when he or she issued the certificate in order to determine whether there was credible evidence that the Attorney-General actually turned his or her mind to the question of whether consent should be given pursuant to s 39A(9) and whether consideration was given in good faith to other relevant factors including the individual circumstances of the applicant and the individual circumstances of the applicant’s legal representatives. In the present case, there is no evidence that the Attorney-General considered the individual circumstances of the case at all.
There is material in the open decision which suggests that the confidential case put against the applicant was largely circumstantial arising out of his position as a Korean-born Australian citizen mixing openly with persons who worked at the Korean Embassy including persons identified by ASIO as agents of the NIS. The present is the kind of case where the Attorney-General was obliged to consider whether the applicant might have had a perfectly innocent explanation for specific allegations raised against him, if he had been given an opportunity to answer them. The applicant’s particular expertise and contribution to the Australian government’s work and Australia generally should have been weighed in the balance.
The circumstances of the legal practitioners involved should also have been taken into account.
At the very least, the Attorney-General should have exercised her discretion pursuant to s 39A(9)(b) to allow the applicant’s legal representatives to be present at all relevant times.
The Attorney-General’s Submissions
The Attorney-General submitted that it was not mandatory for the Attorney-General to consider any of the matters identified by the applicant as matters which should have been weighed in the balance before the certificates were issued. The Attorney-General identified those matters as:
(a)The individual circumstances of the applicant;
(b)The individual circumstances of his legal representatives; and
(c)The case against the applicant, when deciding whether to refuse to consent to the presence of legal representatives pursuant to s 39A of the AAT Act.
In any event, so it was submitted, the validity of the certificates does not affect the validity of the AAT’s decision. By the time this proceeding was commenced, matters had progressed to such a point that, whatever conclusion the Court might come to now in respect of the certificates, no relief should be granted to the applicant for discretionary reasons.
At pars 10–15 of the Attorney-General’s Written Submissions, the following submissions were made:
10. The certificates were issued within a legislative framework contained in the ASIO Act and the AAT Act. That framework permits merits review of ASIO security assessments, but limits that review in a way designed to ensure that the Commonwealth's national security interests are protected. The key aspects of this framework are set out below.
11.One of ASIO’s functions is ‘to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities’ (ASIO Act, s 17(1)(c)). ‘Security’, is defined by s 4(a) of the ASIO Act to include the protection of, and of the people of, the Commonwealth and the several States and Territories from such things as ‘espionage’, ‘politically motivated violence’, ‘attacks on Australia's defence system’ or ‘acts of foreign interference’ whether directed from, or committed within, Australia or not.
12. In carrying out its functions under s 17(1)(c) of the ASIO Act, ASIO may furnish ‘security assessments’ to Commonwealth agencies (ASIO Act, s 37(1)). Security assessments express ‘a recommendation, opinion or advice on the question whether it would be consistent with the requirements of security or whether those requirements make it necessary or desirable for prescribed administrative action (which is defined in s 35 of the ASIO Act) to be taken in respect of a person’ (ASIO Act, s 35(1)). An adverse security assessment contains an opinion, advice, information or recommendation prejudicial to the interests of a person (ASIO Act, s 35(1)(b)).
AAT review
13. The AAT’s jurisdiction to review an adverse security assessment is conferred by s 54(1) of the ASIO Act. The power of review in respect of an application made under that section may only be exercised by the AAT in the SAD (AAT Act, ss 19(6)(a) and 19(2)(baa)). Section 21AA of the AAT Act imposes special requirements for the constitution of that Division, while s 27AA(1) of the AAT Act specifies the persons who can apply for review of an adverse security assessment.
14.The AAT Act specifies that applications before the SAD are to be dealt with on a different basis and by a different procedure than applications in the other divisions of the AAT. The difference is achieved by excluding the operation of generally applicable sections of the AAT Act and establishing a special framework for the SAD which is reflective of the importance of protecting the interests of security (see for example, s 35AA (compared with s 35), s 38A (compared with s 37), s 39A (which is specifically concerning with the procedure at hearings in the SAD), s 39B (compared with s 36) and s 43AAA (compared with s 43)).
15. The provisions of the AAT Act relevant to the SAD are supplemented by s 81(1) of the ASIO Act, which prohibits current or former members or officers of the Tribunal, except for the purposes of ASIO Act, from making a record of, divulging or communicating any information acquired by reason of their office or employment in the AAT or producing to any person a document furnished for the purposes of the ASIO Act. Section 81(2) of the ASIO Act prohibits such a member or officer from being required to produce any document, or divulge or communicate to a court any information obtained by reason of their office or employment, except where necessary for the purposes of the ASIO Act. A breach of this section carries of maximum penalty of imprisonment for 2 years.
It was submitted that it is self-evident from the terms of the certificates themselves that the Attorney-General and the Acting Attorney-General both turned their minds to whether the disclosure of the certificated information would prejudice security and whether to provide consent to the applicant’s representative being present.
Sections 39A(8) and (9) and s 39B(2) of the AAT Act do not enumerate the factors that the Attorney-General is required to take into account when exercising the power to issue certificates and the power to grant or withhold consent pursuant to s 39A(9)(b). Where a statute gives no express indication of the criteria by which a decision is to be made:
(a)The decision-maker is permitted to consider any matter unless, having regard to the subject matter, scope and purpose of the legislation, the legislation is properly interpreted as prohibiting the decision-maker from taking a particular matter into account in the exercise of the power (Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24 (Peko-Wallsend) at 40 per Mason J); and
(b)It will normally be for the decision-maker, and the decision-maker alone, in light of the matters placed before him or her by the parties, to determine which matters he or she regards as relevant and the comparative importance to be afforded to matters which he or she so regards (Peko-Wallsend at 45 per Mason J).
The legislative intention revealed by the terms of s 39A(9)(b) is not that legal representatives ought to be permitted to attend at most hearings but rather that legal representatives will be permitted to attend at some hearings. The circumstances in which the indulgence of allowing legal representatives to attend the hearing are not specified in s 39A(9)(b). The discretion is at large subject to the general considerations referred to at [61] above.
The terms of the AAT Act do not support the suggestion that the Attorney-General is required to take into account the matters upon which the applicant relies which are summarised at [57] above. The terms of the relevant legislation indicate that a contrary intention is in place.
At pars 23.1 to 23.5 of the Attorney-General’s Written Submissions, the Attorney-General set out the contrary indicators in the following terms:
23.1. The provisions now in issue form one part of a regime governing the procedure to be adopted in hearings in the SAD that clearly indicate a strong intention to prioritise security interests (as part of the ‘public interest’) over the private interests of individuals (sees 39A(11), 39B and 43AAA(5) of the AAT Act and s 81 of the ASIO Act).
23.2. Sections 39A(8), 39A(9) and 39B(2) stand in sharp contrast to s 39B(6) of the AAT Act, which specifies the matters to which a decision-maker must have regard to in deciding whether certificated information should be disclosed.
23.3. Sections 39A(8) and 39B(2) of the AAT Act empower the Attorney-General to certify that the disclosure of the matters with which each provision is concerned ‘would be contrary to the public interest’ because of prejudice to the security of Australia. The use of the phrase ‘public interest’ reveals a legislative choice to confer a power of broad import on the Attorney-General. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said in The Pilbara Infrastructure Pty Ltd v The Australian Competition Tribunal:
It is well established that, when used in a statute, the expression "public interest" imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is "neither arbitrary nor completely unlimited" but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”. (emphasis added)
23.4. A power granted by reference to the ‘public interest’ is of particularly broad width when conferred upon a Minister. As Hayne J pointed out in Minister for Immigration and Ethnic Affairs v Jia Legeng, ‘[c]onferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject’.
23.5. Sections 39A(8) and 39B(2) of the AAT Act do not draw any distinction between the disclosure of information to the public at large or its disclosure to the person the subject of the assessment or his or her representative(s). When a certificate is issued under s 39A(8), the exclusion of the subject of the assessment is mandatory, while the default position is the exclusion of that person's legal representative. That illustrates that it is the protection of the public interest by avoiding prejudice to security through the disclosure of information at all (rather than to any particular person) that is the focus of these provisions.
I have not reproduced the authorities referred to in the footnotes to those subparagraphs.
The two authorities in this Court that have considered the operation of s 39A and s 39B of the AAT Act have construed the relevant sections of that Act in a way that is inconsistent with the approach which the applicant now urges upon the Court.
In this regard, the Attorney-General relied upon Hussain at 273 [129]–[131], at 279 [166] and at 280 [173]. The Attorney-General also relied upon the decision of Rares J in Traljesic v Attorney-General (Cth) (2006) 150 FCR 199 (Traljesic) at 209 [19]–[20], at 211 [26]–[27].
The imposition of a requirement that the Attorney-General must consider the individual circumstances of a particular applicant or his or her representatives, or other matters such as the strength of the case against the subject of the adverse assessment, would create such uncertainties and inconvenience in the certification process as to render it unworkable.
The legislature did not intend to confine the discretion conferred by s 39A(8), s 39A(9) and s 39B(2) of the AAT Act in the manner for which the applicant contends. On the contrary, the Attorney-General is entitled to identify the matters that he or she considers relevant to the exercise in the public interest of the power conferred by those sections.
In the present case, it was open to the Attorney-General to issue the certificates.
In the present case, neither the applicant nor his representatives requested that the Attorney-General provide consent pursuant to s 39A(9) of the AAT Act to their being present during the closed parts of the hearing. Had such a request been made, it would have been open to the Attorney-General to reconsider the question. At that point, it would also have been open to the Attorney-General to take into account any information that was submitted in support of the request.
There is no basis for the Court to conclude that the Attorney-General did not have appropriate material before him or her which supported the issue of the certificates.
To condition the exercise of the Attorney-General’s power to issue a certificate under s 39A or s 39B on the presence of credible evidence of any matters including such as those nominated by the applicant would defeat the purpose of each provision and expose the Attorney-General to litigation on the very question that the provisions are designed to protect.
In addition, the form of the second declaration sought by the applicant misconceives the requirements of s 39B(2). The Attorney-General is not required to reach two separate judgments: one concerning the disclosure of the contents of the material covered by the certificate at large; and the other concerning the disclosure of the documents to the applicant’s legal practitioners. There is only one judgment to be made and that concerns the public interest as explained in the section.
Even if the applicant should succeed in his attack based upon the refusal to consent pursuant to s 39A(9) of the AAT Act, it does not follow that the decision made by the AAT should now be quashed. The decision of the AAT can be quashed only if it was affected by an error of law. Even if that part of the certificates that contained the Attorney-General’s refusal to give consent pursuant to s 39A(9) was invalid, that would not affect the validity of the certificates insofar as they were based on s 39A(8) or s 39B(2). This is because the offending portion of the certificate can be severed (as to which see s 46(2) of the Acts Interpretation Act 1901 (Cth)). For this reason, the AAT was obliged to exclude the legal representative of the applicant even if the refusal of consent under s 39A(9) was invalid.
Declaratory relief should be refused in circumstances where the grant of such relief can produce no foreseeable consequences for the parties. That is the case here.
In addition, the Court should refuse relief on discretionary grounds. The certificates should have been challenged at the time they were issued which was months before the AAT hearing. In addition, there has been significant delay subsequently which has had serious consequences for the conduct of the applicant’s review before the AAT.
The Applicant’s Submissions in Reply
In reply, the applicant specifically accepted that public interest considerations which impact upon any individual decision to issue a security certificate are generally capable of encompassing many different criteria, limited only by the circumstance that the Attorney-General has a wide discretion in considering whether to issue a security certificate, the factors informing the exercise of that discretion being drawn from the subject matter, scope and purpose of the relevant provisions of the AAT Act and the ASIO Act.
In his Reply Submissions, Counsel for the applicant concentrated on the question of consent pursuant to s 39A(9)(b). In the course of making those submissions, the applicant accepted that there was no express obligation on the Attorney-General to consult the applicant before issuing a security certificate. Notwithstanding the acceptance of that proposition, the submissions went very close to contending that such an obligation existed.
The applicant endeavoured to distinguish Hussain and Traljesic from the present case. The applicant endeavoured to do so on the basis that the circumstances confronting the Court in each of those cases were materially different from circumstances of the present case.
The applicant also sought to meet the submissions made on behalf of the Attorney-General that relief should be refused on discretionary grounds by submitting that, until the hearing was under way, it was impossible for the applicant to appreciate the significance of the certificates. The applicant submitted that, until the open decision was available, it was impossible for the applicant to appreciate the significance of the material adduced before the AAT in the closed sessions.
The applicant also submitted that the certificates had such an impact on the decision made by the AAT that an order quashing that decision would be justified.
DECISION
I propose to dismiss the applicant’s application essentially for the reasons advanced by the Attorney-General. I will briefly state my reasons for doing so.
Part IV of the AAT Act governs the exercise by the AAT of its jurisdiction to review administrative decisions on their merits. That Part is divided into six divisions. Division 4 (ss 34J to 39B) is headed Hearings and Evidence. Division 5 (ss 40 to 42D) contains the procedural powers of the AAT. Divisions 6 and 7 (ss 43 to 43A) govern the terms in which the decisions of the AAT are to be made.
It is clear that Pt IV, Div 4 is intended to regulate the conduct of hearings before the AAT.
Section 35(1) provides that, generally speaking, hearings are to be in public. That stipulation is subject to s 35(1AA) and s 35(2). Section 35(1AA) provides that s 35 does not apply to a proceeding in the Security Appeals Division of the AAT to which s 39A applies.
Section 35AA gives to the AAT power to prohibit or restrict the publication of evidence and information which relates to proceedings in the Security Appeals Division of the AAT.
Section 36 regulates the circumstances in which a public interest certificate may be issued by the Attorney-General in connection with proceedings in the AAT. Section 36 does not apply to a proceeding in the Security Appeals Division of the AAT to which s 39A applies.
Section 39A governs the review initiated by the applicant in the AAT on 25 October 2011. This is because the applicant’s application for review sought a review of a security assessment.
The Acting Attorney-General relied upon s 36 in issuing the first certificate. This was an error. Section 36 does not apply in the present case. However, his reliance upon that section is inconsequential. It does not affect the validity of the certificate.
Section 39A requires the AAT to conduct its review of a security assessment in accordance with the section. Section 39A contains a specific and comprehensive set of rules for the conduct of such reviews.
Section 39A proceedings are to be held in private.
The AAT is given express powers to control who may be present at the hearing at any particular time. The right of a review applicant and his legal representatives to be present at the hearing is governed by s 39A(6). That right is circumscribed at its inception by the power of the Attorney-General to issue a security/defence certificate pursuant to s 39A(8). Subsections (9) to (11) regulate the consequences of the issue of such a certificate.
A review applicant is not permitted to be present at the hearing when the protected evidence is adduced or when submissions are made in respect of that evidence (s 39A(9)(a)). The same restriction is imposed upon the applicant’s representative “… unless the [Attorney-General] consents”.
Section 39B regulates the disclosure of documents and information which has come to the AAT under compulsion. Essentially, disclosure is prohibited subject to certain exceptions. Insofar as a review applicant is concerned, s 39B(5) allows the presidential member presiding at the hearing to authorise the disclosure of information and documents to the review applicant provided that the basis upon which the s 39B certificate was issued does not include one or other of the bases provided for in s 39B(2)(a) or (b). In the present case, the Attorney-General specifically stated in both certificates that the justification relied upon by the Attorney-General for issuing the certificate was prejudice to the security of Australia. The Attorney-General determined that it was in the public interest that the protected evidence and information should not be disclosed.
There is no provision in s 39B equivalent to s 39A(9).
For this reason, when considering the applicability of s 39B to any given case, the Attorney-General is not obliged to have regard to the possibility of allowing the applicant’s representatives to be present during the hearing if (as is the case here) the basis for the issue of the certificate is prejudice to the security of Australia.
Because the Acting Attorney-General and the Attorney-General relied upon s 39B as well as s 39A in the present case, the applicant confronts an additional hurdle in seeking to make out his case. Under s 39B, the Attorney-General is not required to consider allowing the applicant’s representatives to be present during the hearing in circumstances where prejudice to the security of Australia is the basis upon which a certificate is issued.
Neither s 39A nor s 39B of the AAT Act enumerates any factors that the Attorney-General is required to take into account when exercising the power to issue certificates pursuant to s 39A(8) and s 39B(2) and the power to withhold consent for the purposes of s 39A(9)(b). Where a statute gives no express indication of the criteria by which a decision is to be made, the decision-maker is permitted to consider any matter that he or she in good faith decides might be relevant. It is for the decision-maker to determine what he or she regards as relevant and the relative weight to be given to the selected factors. The only restriction imposed upon the decision-maker in selecting the relevant criteria is that which may be dictated by the subject matter, scope and purpose of the legislation. If the relevant legislation is properly interpreted as prohibiting the decision-maker from taking a particular matter into account in the exercise of the power conferred upon him or her, the decision-maker is not permitted to take that particular matter into account (Peko-Wallsend at 40 per Mason J; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J; De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 at 661 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).
In the present case, the only evidence before the Court which could provide any basis for inferring the factors which actuated the Attorney-General’s decision to issue each of the certificates is to be found in the terms of the certificates themselves. On the face of the certificates, the Attorney-General and the Acting Attorney-General concluded that the material to be withheld should be withheld in the interests of protecting the security of Australia and should, for that reason, be withheld in the public interest. In addition, the Attorney-General has expressly addressed the question of whether the representatives of the applicant should be permitted to be present at any part of the hearing.
There is no other evidence that could fairly form the basis of an inference, one way or the other, as to the factors taken into account by the Acting Attorney-General and the Attorney-General deciding to issue and when issuing the certificates. As submitted by the Attorney-General, it will normally be for the decision-maker, in light of the matters placed before him or her by the parties, to determine which matters he or she regards as relevant and the comparative importance to be afforded to matters which he or she so regards.
Neither the Acting Attorney-General nor the Attorney-General was obliged to alert the applicant that he or she had in mind issuing a certificate under s 39A and s 39B of the AAT Act. The applicant was not entitled to be afforded procedural fairness prior to the issue of such certificates in relation to the question of whether the certificates should be issued.
Had the applicant sought to place before the Attorney-General, after the issue of the certificates, material which the applicant requested the Attorney-General to take into account in reconsidering the issue of the certificates themselves or, at least, in reconsidering the question of whether the applicant’s representatives could be present during part of the hearing, the Attorney-General might have been required at least to consider whether any of the decisions made by her should be reconsidered in light of such material.
In the present case, the applicant never sought to place any such material before the Attorney-General. The applicant was informed of the issue of the certificates some considerable time before the AAT hearing was fixed to commence. Notwithstanding that circumstance, the applicant did not take steps to raise with the Attorney-General the matters which the applicant now argues ought to have been considered by the Attorney-General prior to the issue of the certificates.
The decisions of Hussain and Traljesic are consistent with the above analysis even though the particular facts of each of those cases are not on all fours with the facts in the present case.
In the circumstances of the present case, there is simply no legal foundation which can support the assertions made in the applicant’s submissions as to the considerations which, according to the applicant, the Attorney-General was bound to take into account prior to issuing the certificates. There is no other basis, in my view, for challenging the certificates.
For these reasons, the applicant’s case must fail.
I should add that, for the reasons submitted by the Attorney-General, I would have refused relief on discretionary grounds, in any event. The AAT was obliged to comply with the terms of the certificates, once issued. The only avenue available to the applicant which would have avoided that consequence was to challenge the certificates prior to the commencement of the AAT hearing. He did not do so prior to that time. His failure to do so led to the inevitable consequence that the hearing before the AAT was conducted, as required by law, upon the basis that the certificates had to be respected. In my judgment, it is now too late for the applicant to attack the certificates. He cannot stand by and watch while the certificates are deployed against him and then subsequently seek to challenge them when it becomes apparent that they were a significant contributor to the applicant’s loss in the AAT. To allow him to do so would be to undermine the integrity of the AAT’s procedures and the statutory provisions which underpin those procedures, as well as the effect of s 39A and s 39B of the AAT Act.
CONCLUSION
For all of the above reasons, the applicant’s Application must be dismissed with costs.
There will be orders accordingly.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 6 September 2013
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