Minister for Immigration and Border Protection v Singh & Anor
[2017] HCATrans 107
[2017] HCATrans 107
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M12 of 2017
B e t w e e n -
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Applicant
and
AVTAR SINGH
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Application for special leave to appeal
KEANE J
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 12 MAY 2017, AT 11.42 AM
Copyright in the High Court of Australia
MR G.R. KENNETT, SC: May it please the Court, I appear with MR P.M. KNOWLES for the applicant. (instructed by the Australian Government Solicitor)
MR C.J. HORAN, QC: May it please the Court, I appear with MR A. ALEKSOV for the first respondent. (instructed by Carina Ford Immigration Lawyers)
KEANE J: Mr Kennett.
MR KENNETT: Your Honours, the issues of significance in this case really boil down to three, which I propose to say a little bit about. The first relates to section 357A(1) of the Migration Act, which your Honours will set out on page 99 of the book; the second relates to subsection (2) of the same section; and the third issue relates to principles of procedural fairness more generally, and in particular the emphasis which the Full Court placed in that connection on the need for the Tribunal to work out whether the certificate it had before it was effective and, therefore, what consequences it had for its procedure.
Before I come to those matters, and lest I forget it later, can I note that we also rely, for the purposes of indicating a question of importance, on the large and, I understand, growing caseload directly affected by this matter which we have referred to at paragraphs 29 and 30 of the application, pages 93 to 94.
If I could come to section 357A(1), we note in approaching this that the decision under review in the court below and the decision said to be affected by error is the final decision of the Tribunal on its review, affirming a decision of the delegate. We spent a bit of time in the court below on this matter, but there is no anterior exercise of power for the Tribunal to undertake in this regard in relation to the certificate. It emerged in the hearing below that what was complained about, doctrinally speaking, was a lack of procedural fairness in the Tribunal’s ultimate decision.
Whether that decision was vitiated by a denial of procedural fairness of course involves identifying the scope of the procedural fairness obligations that attended its making, and that has to be done, we say, by reference to subsection (1) of section 357A, on page 99 of the book.
GORDON J: What do you say the matter is that is being addressed in that section?
MR KENNETT: In that particular section? The matters it deals with?
KEANE J: Yes.
MR KENNETT: This was considered by this Court in Saeed, which referred back to a decision of Justice Lindgren and decided that it is not a reference to everything to do with a review; it is a reference to the particular subject matters that the sections in Division 5 address.
GORDON J: That is why I ask. What is it here that the matters referred to for the purposes of that section?
MR KENNETT: Well, your Honour, there are two which are relevant. One is section 359A, which deals with circumstances in which information must be given to an applicant, how it is to be given, what kinds of information – particulars that are to be provided. We say that is a section that deals with the subject matter of provision of information to an applicant and thus is, section 357A would say, exhaustive as to that matter. The other which is relevant, potentially, or is relevant, we say, is section 362A, which is on page 102, which entitles a review applicant:
to have access to any written material, or a copy of any written material, given or produced to the Tribunal –
That may very well – in fact I think we submitted below would capture a copy of the certificate and would thus be a way in which an applicant can obtain, should he or she or their assistant seek it ‑ ‑ ‑
GORDON J: But how would they know about it unless it was identified to them? This is your tension. Unless they are told about it, how do they get it? How do they know to ask for it?
MR KENNETT: There are, I think, two answers to that, your Honour. One is that under section 362A a global request could be made for everything – every document – the Tribunal has. It does not need to be particularised.
GORDON J: That does not sound like a good answer to me.
MR KENNETT: And that is a course of action that is open to any applicant. The other is that where these issues ultimately resolve themselves, we say, as a result of the submissions I will make later, is not in the Tribunal but in the courts.
GORDON J: But again, they do not know to go to the court to complain about the certificate if they have not got it.
MR KENNETT: Well, if the Tribunal relies on information or a document in making its decision, one expects at least ordinarily that the Tribunal will make some mention of the document in its reasons. That is part of its obligation.
GORDON J: That is not really the question, is it? Here, if you took – the handing over of the certificate on procedural fairness grounds is – already they are limited to some extent to the way in which they can conduct the matter because of the way in which the Act is structured. But the important point is, if one looks at the certificate in conducting your – if you are an applicant before the Tribunal, and one gets information from the certificate. One gets it here that there has been an inquiry by the AFP. You know that more than one person is affected by looking at the certificate. So it is the existence and handing over of the certificate itself that gives rise to the disclosure of information relevant to the way in which the matter is conducted before the Tribunal. The fact that the Tribunal refers to it later is too late.
MR KENNETT: With respect, no, we would say, because the Tribunal, while it must necessarily have its own view about the procedures it is obliged to follow, cannot make any binding decision about whether the certificate affects it or not. The Tribunal ‑ ‑ ‑
GORDON J: But that is not the question, though, is it? As Justice Brennan said in – I forget which decision it is now – they may not be able to finally determine the legitimacy of the certificate but they can make an assessment of it for the purposes of the procedures in front of them.
MR KENNETT: Quite so, and they either get it right or get it wrong.
GORDON J: But they have got the certificate and they have disclosed it to the person to enable them to use it.
MR KENNETT: If the Tribunal gets this wrong and as a consequence fails to comply with a procedure – fails to disclose information that it ought to disclose or something of that sort – that is in principle reviewable and correctable in the federal courts which can decide those matters authoritatively. That is where it bites, we say.
There is a practical difficulty, as your Honour points out, that the person may just not know, but the legislators must be taken to have appreciated that and legislated in the way that they did despite that. At the level of principle, we say that practical problem cannot be resolved by imposing an ethereal obligation of procedural fairness on the Tribunal, not when it is exercising any decision‑making power but when it is working out for itself what procedures it needs to undertake.
This has taken me onto what was going to be the third of my points, your Honour, but I think it is important. If the Full Court here is right in the emphasis that it places at pages 77 to 79 on the Tribunal giving the applicant an opportunity to query the validity of the certificate before it – that is, before the Tribunal – then that reasoning would seem on the face of it to apply generally to decision‑makers so that when a decision‑maker, whoever it might be, sits down to decide, to work out “what are the procedures I am going to have to follow in deciding this case”, it becomes necessary to consult the parties whose interests are affected by those procedures.
We say “affected by the procedures”, not affected by any exercise of power by the decision‑maker in relation to the procedures, because I am postulating here procedures that are binding as a matter of law, as a function of the operation of the Act. The certificate here was in that class. The Tribunal did not have any discretion about whether to comply with it or not, whether to grant exemptions from it or not. The Tribunal simply had to decide for itself whether it was bound by the certificate or not, and that binding effect is a matter of the operation of the Act, not a consequence of any power that the Tribunal was considering exercising, any decision‑making power.
So what follows from that, we would say, is that, firstly, there was nothing for procedural fairness to attach to in that contemplation of procedures, because what procedural fairness is, we would say, is a doctrine that qualifies grants of decision‑making power. Secondly, the final decision of the Tribunal does not become procedurally unfair by reason of that contemplation of the procedure having occurred in private.
If the Tribunal had to consult applicants when determining what procedures it was bound by, it would need to consult people as to what procedural fairness required them to be given. So one would have procedural fairness squared in that circumstance, which we would suggest is a large departure from the foundation of the doctrine. We say it cannot be right in principle but, at any rate, it is such a large question that it merits in itself the attention of this Court.
That really is what I wanted to say about the third of the matters that I identified at the outset. I think I have just about finished the first of the matters. I indicated two provisions in Division 5 which deal with subject matters which we say are apt to include the provision of information to an applicant, the provision of documents to an applicant. Subsection (1) of 357A on our submission makes those provisions exhaustive as to those subject matters, and thus, excludes the implication or the imposition by the general law of further obligations in that regard.
I have two things to say about that before I leave the matter. Firstly, the Full Court just missed this point altogether. Their Honours said at paragraph 38 on page 76 that this case was concerned only with subsection (2) and not with subsection (1). We say that is not right because, if this was a review of a decision of a tribunal for a procedural fairness, subsection (1) was necessarily central and on our submission should have decided the matter.
The second short point that we would make is that we have relied for our submission about the scope of the matters on what was said by a majority of this Court in Saeed at paragraphs 40 to 42. The reference is at paragraph 21 of the application. To the extent that that is a contestable reading of Saeed, a question arises which we say is of some importance about what ought to be taken from the observations of the majority in that case.
Your Honours, the second of the matters I indicated at the outset is the effect of subsection (2) of section 357A, which refers to three specific provisions, one of which is section 375A, the section under which the certificate was issued. May we note how the Full Court described the constructional choice in relation to section 357A generally, or perhaps more by reference to subsection (1) at pages 75 to 76 of the book. Their Honours referred to an “ambiguity” in the word “matters” and an issue being whether this referred “to the general topic with which the division deals” or “the individual elements in the division”. Then their Honours referred over the page to that question having been resolved in Saeed.
The outcome of that constructional choice, we would submit with respect, tells us little or nothing about subsection (2), which their Honours came to at paragraph 40 on page 76, because subsection (2) itself only refers to individual provisions. The question then becomes: how does subsection (2) apply to one of the provisions that it refers to; namely, the certificate provision, 375A?
KEANE J: Mr Kennett, can I just ask you about 375A?
MR KENNETT: Yes.
KEANE J: Subsection (2) is the operative provision, the operative instruction, to the Tribunal, but that instruction applies in respect of “a document or information to which this section applies”. Do you say that the certificate that is referred to in subsection (1) is itself a document or information?
MR KENNETT: No.
KEANE J: No.
MR KENNETT: The certificate does not capture itself.
KEANE J: No. Quite.
MR KENNETT: So if the certificate itself were within that instruction it would be a much shorter case.
KEANE J: Quite. But it does not.
MR KENNETT: No.
KEANE J: So the question then is: insofar as the certificate may answer the description of a written material or a copy of written material given or produced to the Tribunal for the purposes of the review, it is not excluded by the operation of 362A(1)?
MR KENNETT: No, that is right.
KEANE J: So, on the face of things, 362A(1) entitles the applicant to see the certificate.
MR KENNETT: Yes. Now, that section was not relied on below as having been breached by the Tribunal. We apprehend that was so because of an understanding that it implicitly involves a request for access. That is how we would read it. We would submit that an obligation arises upon the Tribunal when access is sought.
KEANE J: And hence the entering into the world of Franz Kafka, that you cannot ask if you do not know it exists.
MR KENNETT: Well, you cannot ask for a particular thing if you do not know it exists, but we see no reason why a request could not be made to see the whole file.
KEANE J: But why would one not just construe 362A as just creating an obligation on the Tribunal to just do it, to just give them access to any written material given or produced to the Tribunal for the purposes of the review? Why would one read that as subject to this requirement for a request?
MR KENNETT: Because it speaks in terms of an entitlement rather than an obligation. If the intention was to require everything to be disclosed, we would say Parliament would more likely have said the Tribunal must disclose.
KEANE J: Any entitlement that is to be meaningful must have a correlative obligation.
MR KENNETT: Yes, that is so. But further, the reference to an entitlement to access, we would submit, suggests not necessarily turning up at the office to see the file physically but the applicant or his or her representative taking some step to get that access, which might be turning up or it might be making a request by email, fax or something of that kind.
GORDON J: So if you come then to 375A(2), in effect to (b) what it says is:
the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal –
Does that not itself suggest that the Tribunal must deal with the certificate? If it meant to extend to the certificate and meant to extend to the fact that there was to be some limit on it, would it not address that issue squarely?
MR KENNETT: Would not provide specifically in relation to the certificate?
GORDON J: There is a distinction drawn by the statute between information only to be disclosed to the Tribunal and procedural mechanisms whereby notification is given that certain steps have been taken. That is what 375A is addressed to.
MR KENNETT: Section 375A gives an instruction to the Tribunal, and the instruction relates to a body of information or document specified in the certificate. It does not say anything either way about whether the certificate itself must be disclosed in all circumstances, can be disclosed when asked for, or anything of that sort. One is left with the other provisions of the Act and the general principles of procedural fairness to the extent that there is room left for them to apply.
GORDON J: That is the point. It says nothing about the certificate. We left working out what we should do with the certificate consistent with the principles of procedural fairness.
MR KENNETT: Yes, consistent with the principles of procedural fairness insofar as they are attenuated by the provision that I have emphasised.
GORDON J: Correct.
KEANE J: So one is looking for the attenuation.
MR KENNETT: In part, yes. Well, one is seeking to understand the extent of the attenuation by section 357A. There are two aspects of that: one is subsection (1), which I have addressed, which we say is really central to the case and ought resolve it, but secondly – I see my light has gone on, but may I –
KEANE J: I think it might be unfortunately red when it should be yellow, so please feel free.
MR KENNETT: I will try to be very brief on subsection (2). Subsection (2) of 357A refers to specific sections, one of them being 375A, and says that it is an exhaustive statement of the hearing rule in relation to the matters that it deals with. Their Honours, at page 76, endorsed some reasoning of Justice Beach in an earlier case which we understand to be a reference to the reasoning which the learned primary judge had set out at the top of page 56, a choice between two constructions, and the second of those constructions was preferred.
The construction that was preferred was that this is a section – that is, section 375A – the role of 375A(2) was to narrow what was described as a procedural fairness obligation that otherwise exists, or at least that that was what 375A does. I am sorry, that was rather confused. That is problematic, with respect, we say, to conclude that a provision that narrows or excludes procedural fairness obligations, as 375A does, constitutes an exhaustive statement of them. An exhaustive statement would usually be something that grants rights rather than – an exhaustive statement of rights would normally be something that grants them rather than taking them away.
We say that the better understanding of subsection (2) of 357A here is that one does not have any right to a hearing about the issuing of a certificate or about the Tribunal’s dealing with a certificate if it is not provided for in the section that is mentioned – that is, section 375A. So, for that reason as well, we say the Full Court misunderstood the effect of the section that attenuates procedural fairness. Now my red light really has gone on, if the Court pleases.
KEANE J: Thanks, Mr Kennett. Mr Horan.
MR HORAN: If the Court pleases, the Full Court’s decision turned on an application of principles of procedural fairness to the particular facts of the case and, although those facts are not necessarily unique, we submit that no question of public importance arises from the manner in which they were dealt with below and/or there is no reason to doubt the correctness of the decision reached by both the Full Court and the Federal Circuit Court.
In relation to the prominence of section 357A, the exhaustive statement of the hearing rule which is relied upon in relation to the first two issues identified by Mr Kennett, there was not much argument put below in relation to subsection (1) and my learned friend suggested that the Full Court had rather overlooked the importance of that subsection, but in fact, both in the written and oral submissions, the Minister’s argument was based almost completely, if not completely, on subsection (2) and the exhaustive nature of section 375A itself rather than the broad provisions of Division 5.
Insofar as either subsection is concerned, what the Full Court was required to do was apply the approach identified in Saeed to identify the matters with which firstly section 375A dealt with and, insofar as it was a live issue, the matters in respect with which the relevant sections in Division 5 dealt with. We submit that there is nothing in section 375A itself which deals with disclosure of the existence of a certificate. It is a section about protection of confidential material that is the subject of the certificate. It is not a section about making secret the exercise of power to issue a certificate and to notify the Tribunal of that fact. So one cannot get exclusion of procedural fairness from subsection (2) in combination with section 375A itself.
Insofar as one goes to the individual sections in Division 5, the problem is that they do not – as my learned friend suggests – deal with a general topic of the disclosure of information to an applicant. The two sections that are mentioned are two specific occasions in which certain matters need to be disclosed to an applicant. Section 359A and 359AA only deal with the disclosure of particulars of relevant adverse information which forms part of the reason for decision.
Now, that is a very specific obligation which does not exhaust the occasions on which the Tribunal might disclose information to an applicant, both voluntarily and there is another section – section 363(1)(c) which confers a general power on the Tribunal to disclose information to an applicant or to the Secretary. But more generally, outside of section 359A, it is accepted that there are obligations – there may be obligations on the Tribunal to disclose matters to an applicant beyond the particulars required by the codified procedure in section 359A, and the best example of that is the matters dealt with in SZBEL which arise from section 360, so that it may be necessary to tell an applicant certain matters in relation to the issues which arise on the review.
GORDON J: Is the consequence of that contention that the submission that somehow there is no obligation here, having regard to the language of 357 read with 375A to disclose the existence of the certificate?
MR HORAN: Yes. Well, this is dealing with – insofar as now the Minister relies more on subsection (1) and Division 5, we say that the two sections identified – the first I have dealt with, does not deal with or exhaust the obligations of the Tribunal to provide material to an applicant. The second section that is dealt with is section 362A, but we say that only deals with an entitlement to access to written material which, on the assumption that that is conditioned on a requirement for a request to be made for access, it is still only dealing with access on request to written material. It is not dealing with the entire topic of information passing from the Tribunal to an applicant. So those two sections together do not exhaust ‑ ‑ ‑
GORDON J: They are not a complete answer.
MR HORAN: They are not a complete answer, they do not exhaust the topic of provision of material or information by the Tribunal to an applicant. We say, as in Saeed, the principle of legality requires clears words and necessary intention to be displayed before one would construe either of those sections as dealing with a matter as broad as the matter postulated by my learned friend.
Now, the consequence of this is that this case really becomes all about the timing of disclosure because the facts of this case reveal that there is no real controversy about whether or not this certificate can be disclosed and there is not even a controversy about whether it should be disclosed. It is a question of when it should have been disclosed and the Minister says in law there is never an obligation to disclose this certificate, so that it may remain silent and secret on the files of the Department and the Tribunal and, short of putting a fishing expedition request under section 362A, an applicant would never know of the existence of the certificate unless it was disclosed in the Tribunal’s reasons or, as in this case fortuitously, included in a court book because the applicant happened to have made an application for judicial review, not based upon knowledge of that certificate at that stage but simply having commenced proceedings, that then flushed out the existence of the certificate for the first time.
Now, in relation to the Tribunal’s reasons, my learned friend indicated one would expect that the Tribunal would include a reference to the certificate in its reasons. Now, that assumption is not necessarily always going to be correct because section 368, which is the obligation to provide a written statement of reasons, is expressly made subject to the obligation in section 375A(2)(b), so that the Tribunal is instructed in giving its statement of reasons not to refer to the documents or information that are the subject of the certificate.
Now, it may be that that means that the Tribunal, as in this case, will not refer to the existence of the certificate at all, in which case the applicant remains in the dark that this exercise of power has affected the conduct of the review. But conversely, if the Minister accepts that the Tribunal in such circumstances can disclose the existence of the certificate, and one would expect it may be appropriate for the Tribunal to say when identifying the evidence or material on which its findings were based, if they include protected or confidential documents or information, that the Tribunal may say I have also relied upon documents or information which are the subject of a certificate given under section 375A ‑ ‑ ‑
GORDON J: But you would say even at that point it is too late.
MR HORAN: Well, that is right, and then it becomes – this whole exercise – the whole argument that is brought below and which is sought to be agitated on special leave becomes a rather sterile argument about when this information about the existence of the certificate should come to light, and the Minister is strenuously fighting to protect the disclosure of a certificate in which he has no interest in keeping confidential because ‑ ‑ ‑
GORDON J: There is that argument but there is also the consequences of not having access to it for the conduct of the hearing before the Tribunal, so I think I said to Mr Kennett, when one looks at the certificate here one gets certain information from it without having access to the documents or information which may impact upon the way you might conduct the hearing.
MR HORAN: And the knowledge – and we have identified in our written submissions as did the Full Court below, the manner in which that affects the conduct of the hearing and it affects the applicant’s interests in the broad sense.
GORDON J: Interests which have already been curtailed.
MR HORAN: Yes, because the Tribunal is prevented from disclosing relevant information. It is not like a section 375 certificate which prevents the information getting to the Tribunal. This allows the Tribunal to receive information, to take it into account, but precludes it from disclosing that information to an applicant, and that qualifies or limits a whole range of obligations on the Tribunal to give particulars of adverse information, to give access to the written material before the Tribunal, to provide a real and meaningful hearing, and to even giving it statement of reasons.
So that impact is something which the applicant has an interest in and it will affect the way in which the whole review is conducted. We say that in those circumstances the Full Court correctly rejected the Minister’s submission that there is never any obligation to disclose the existence of the certificate to a review applicant.
So there may be particular cases in which a particular certificate might raise issues as to the manner in which it is drafted and that has been identified by the Full Court, circumstances in which the certificate itself reveals confidential material or particulars that are confidential, but because this obligation relies upon the flexible requirements of procedural fairness, that can be accommodated by an ordinary application of principle if a particular certificate raises concerns about the confidentiality being undermined, but also it should be pointed out that that is not this case because the certificate has been made available but only after the event when it was too late.
We say that there is real practical utility in disclosing the existence of the certificate. The first respondent could have made submissions to the Tribunal not just as to the validity of the certificate but as to its proper construction and scope and effect, and the certificate is extracted at paragraph 9 of the Full Court’s reasons at application book 68, and it is not a model of clear drafting.
GORDON J: It seems to me it is no different in form from a list of privileged documents where you are given the bare essential particulars about the information and one gleans from those particulars sufficient information to enable you to at least turn your mind to whether or not you would make certain inquiries ‑ ‑ ‑
MR HORAN: Yes, well ‑ ‑ ‑
GORDON J: ‑ ‑ ‑ with the Australian Federal Police. There is more than one person involved, when one reads the certificate and one gets information which you would not otherwise have.
MR HORAN: And provided that there is no confidentiality in those – the manner in which the information is identified, then one should ‑ ‑ ‑
GORDON J: There is not in this case.
MR HORAN: Not in this case, and one should be entitled to see what has been given to the Tribunal to be taken into account but is being withheld from an applicant. As I say, the certificate in this case is rather vexed in terms of its drafting. It identifies at a highest level three documents but then both as the reason for the public interest being against disclosure focuses
only on a very small aspect of those documents which is that they contain third party details not relevant to the particular merits review, and it gives rise to both questions about how that certificate should be construed, how it would affect the manner in which the Tribunal should exercise its powers and possibly questions about whether the certificate is even formally or substantively valid and those questions – there is no controversy that they can be considered and determined by the Tribunal, as an administrative body, it is simply that its decision on those questions would be subject to review ultimately by a court.
But the applicant lost the opportunity to make submissions about the validity and effect of the certificate and also the broader opportunity to conduct the review in the knowledge that information of this nature had been given to the Tribunal and had been subjected to a certificate.
I think I have dealt at the outset with the effect of section 357A, but we say that the Full Court’s decision below turns upon broader procedural fairness obligations which are not excluded by any of the provisions either in Division 5 or by section 375A itself, and in circumstances where there is nothing in the Act which prevents the Tribunal from disclosing the existence of the certificate and there is every indication in the scheme of Division 5 that the Tribunal should conduct its review in a manner that is fair and just, we say that there is no clear intention shown to exclude the procedural fairness obligation which was identified by the Full Court below. So, for those reasons, we say the Full Court’s decision was correct and the Tribunal was obliged to disclose the existence of the certificate to the first respondent. If the Court pleases.
KEANE J: Thanks, Mr Horan. Mr Kennett.
MR KENNETT: Your Honours, my friend overstates the Minister’s position slightly when he refers to the certificate lying on the file secret. It has not been the Minister’s position that the certificate is non‑discloseable. The controversy is about whether an obligation arose on the Tribunal to disclose it. There are just a couple of aspects of the argument that I should focus on in reply.
Firstly, as to 357A(2), my friend submits that the certificate section 375A is not about making the certificate secret. That can be accepted. The question is what is it about for the purpose of, and what does it do exhaustively for the purpose of subsection (2) of section 357A? Our submission is that the effect of the latter subsection is that when it says 357A is exhaustive it means 375A is all you get – and all you get may be nothing – in terms of a hearing about the subject matter of the section.
As to 357A(1), my friend raised some arguments about the scope of the matters dealt with by firstly 359A and secondly, 362A, and that really joins issue with us on the implications and the effect of what was said by the majority of this Court in Saeed. We have in paragraph 21 of the application paraphrased what seems to us to be the critical observation which is that when 357A(1) talks about the matters dealt with it is not limited to the particular procedures in the sections of the Act, otherwise if it were it would not be doing any work. It must cast its net somewhat more broadly than that, and that is the basis for our reference to section 359A as dealing with the subject matter of disclosure of information, and 362A is dealing with the subject matter of access to documents.
Now, we submit that is right. The true position may be our friends or may be somewhere in between, but that is a matter of some substance we would say. We would query our friend’s characterisation of our argument as being that this is all about the timing of disclosure. As I have said, we have not submitted at any stage that it is not open to the Tribunal to disclose the existence of a certificate. The problem arises as a procedural fairness issue where the argument is that the Tribunal was obliged to disclose it.
One, of course, appreciates the practical problem that arises here, and that is a difficulty for us, that an applicant may not know about a certificate and therefore may not be in a position to raise a challenge to it. But that is not a reason, we say, for unhinging doctrines of procedural fairness from their proper basis and implying an ethereal obligation attaching to a power that is not a power. That would be the ultimate case of a hard case making bad law, we would say.
Disclosure in the Tribunal’s reasons may be too late in one sense but not in another sense which is important in principle, we say, because disclosure at that point means that if the Tribunal has got things wrong, there is an entitlement to have the Federal Courts of this country correct that and have a decision made according to law. The other aspect of that that our friend mentioned was that submissions might have been made on the construction and effect of the certificate. That really belongs in the same basket as validity. Validity is not even perhaps really strictly the issue because it is not put in terms of a power in the Minister to issue a certain kind of certificate. Rather, if the Minister does issue a certificate, consequences follow.
What those consequences are may be a complicated matter, but that all amounts to the legal effect of the certificate and thus, what is the extent of the provisions or constraints that the Tribunal is bound by and that, as we have said, is not a matter that the Tribunal can decide conclusively and not something that procedural fairness in principle can attach to when it is in the hands of the Tribunal.
Your Honours, the final matter - your Honour Justice Gordon raised this – is that access or knowledge about the certificate may conceivably be important for the purpose of a hearing, a hearing under section 360. My learned friend referred to SZBEL in that connection and that, of course, was a case about disclosure of – or advertence to the critical issues rather than provision of information per se.
But there was argument below about section 360 and whether non‑disclosure of the certificate affected compliance with that section. The Full Court did not find it necessary to deal with that. That may be a notice of contention issue if leave were granted, but it has not been dealt with in the – is not part of the decision of the court below. If your Honours please.
KEANE J: Thanks, Mr Kennett.
The proposed appeal does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. The application is dismissed with costs.
The Court will now adjourn until 10.15 am on Wednesday, 14 June in Sydney.
AT 12.29 PM THE MATTER WAS CONCLUDED
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