MJZP v Director-General of Security & Anor

[2025] HCATrans 17

[2025] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S142 of 2023

B e t w e e n -

MJZP

Plaintiff

and

DIRECTOR‑GENERAL OF SECURITY

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 MARCH 2025, AT 9.59 AM

(Continued from 13/12/2024)

Copyright in the High Court of Australia

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MR T.M. WOOD and MR S.N. RAJANAYAGAM for the plaintiff.  (instructed by Corrs Chambers Westgarth)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR M.A. HOSKING and MS P.F. BRISTOW for the second defendant.  (instructed by Australian Government Solicitor)

GAGELER CJ:   There is a submitting appearance for the first defendant.  Thank you, Mr Solicitor.  Mr Lenehan.

MR LENEHAN:   Your Honours will have seen from the oral outlines filed this morning that there now appears to be quite a degree of commonality between the parties.

I was going to focus on the two matters that the Court had indicated it would be assisted by, starting with the construction of section 46.  Your Honours will have seen that our friends accept that the so‑called mechanical construction – the construction which your Honours find in Justice Steward’s reasons in SDCV – our friends accept, as we understand it, that that is not the preferable construction.

Your Honours will have also seen that they now appear to embrace what your Honours find in the dissenting reasons in SDCV, particularly the reasons of Justice Edelman at 242 and 243 and what your Honour Justice Gordon said at 185 to 187 – the point being – that your Honours are familiar with – that this procedure has in mind something akin to certiorari and the putting before the court of the record.

We have drawn in particular on those judgments, but could we add that while your Honour the Chief Justice did not expressly accept that analogy with certiorari, your Honour’s reasons as we read them appear to adopt at least a similar approach.  If your Honours look to, in SDCV, paragraph 126, you will see there is reference there to section 46 ensuring:

that all documents that were before the AAT and that are relevant to the appeal will automatically be available to the Federal Court –

And we detect a similar point at paragraph 154, again, referring to:

automatic access to the whole of the relevant information that had been before the AAT –

Now, I think I dealt last time, including in response to questions from your Honour Justice Beech-Jones, with the point made by your Honour Justice Steward in SDCV that certiorari and the record actually has a more limited meaning.  Our answer to that is the answer that we gave last time, that is, we – and, as we understand it, the dissenting reasons – are simply drawing an analogy, and the statute, of course, can add to what is comprised by the record.

GAGELER CJ:   You say that is the starting point, is it, as a matter of construction?

MR LENEHAN:   Yes.

GAGELER CJ:   That is common?

MR LENEHAN:   It appears to – our friends accept that is the preferable construction, and your Honours will have seen from our outline, we advance a number of further points as to why that is the only available construction.  So, the first point there ‑ ‑ ‑

EDELMAN J:   Even despite section 15A?

MR LENEHAN:   Yes, for the reasons that we have given in writing, your Honour, that is the alternative valid construction has to be at least open, and significantly, in SDCV, your Honour actually said that Justice Steward’s approach to construction was not open.  And that is the conclusion that we urge on the Court.  So, in terms of – your Honours will have seen that we advance some additional points as to why we say that that is so.

The first point is that the construction that our friends for the Commonwealth are at least flirting with would mean that the source of the Federal Court’s power to receive and act on evidence that has not been disclosed to the other party becomes rather difficult to discern and unclear, because our view is that your Honours have everything – or the legislation provides for that through the automatic provision to the court of the record.

The question that our friends would then need to grapple with, if that is not right – if Justice Steward’s view is right – is, how then does the court have power to receive secret evidence?  Your Honours know – see HT and see the judgments in Al Rawi, and also Haralambous in the House of Lords or the United Kingdom Supreme Court – that that is a complicated issue.

BEECH‑JONES J:   On your analysis, what the source of the court’s power to receive evidence, period?

MR LENEHAN:   Section 46(2), your Honour.

BEECH‑JONES J:   No, no, in any case.

MR LENEHAN:   In any case, your Honour?

BEECH‑JONES J:   Yes.

MR LENEHAN:   So, in the normal course, things are tendered under section 48 and the court has them, but that is not the only way, we say, that the Commonwealth ‑ ‑ ‑ 

BEECH‑JONES J:   No – in your standard civil case.  It is a court, there is an Evidence Act, you tender it – and then the court does something with it.

MR LENEHAN:   Your Honour, that is undoubtedly the normal case.

BEECH‑JONES J:   All right.  So, why would that not, on the Commonwealth’s instruction, be the position here, and then the Act would simply superimpose an obligation on the court once it is tendered?

MR LENEHAN:   Well, your Honour, the difficulty, as we see it, is perhaps twofold.  The first is:  where does one find the power to admit evidence without disclosing it to the other party, if that is not found within section 46(2)?  So, if 46(2) is simply a mechanical provision which gets – I think the analysis goes, it gets it to the registry.  Where does one find the difficulty that is addressed in all the reasons in HT?  Where does one find that addressed?  So, that is the first point.

The second point is really a textual one, and your Honours have looked again and again at the provisions.  If I could invite you to go back to section 46, what we would say is that what one sees in 46(1) and (2) is a similar approach to that that the Court identified in Hockingv Director‑General of the National Archives (2020) 271 CLR 1, which is not in the joint bundle.

The point that I am making there is that there is a distinction drawn between the court as an institution and the individual judicial office holders, and you see that, in particular, in subsection (2).  So, the way the court as an institution obtains the record is via subsection (1); it comes from the tribunal under the obligation in (1)(a).  The way, then, that judicial officers obtain that material is dealt with in subsection (2), on our construction, and the disclosure that it authorises, so:

not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding.

If that is right, then what one sees, we say clearly textually, is no intermediate step of tendering.  It involves no act by any of the parties at all.  It goes from the tribunal to the court and then from the court to the relevant judge or judges.  That, to pick up some questions from your Honour Justice Gordon on the last occasion and also the references to the rules in your Honour Justice Gordon’s reasons in SDCV, that is how the rules correspond, we say, to the text.

BEECH-JONES J:   What is the distinction between (1)(a):

cause to be sent to the Court –

and then (2) imposes a restriction on the court.

MR LENEHAN:   Yes.  So, the court cannot disclose the material:

to any person other than –

And then separate office holders are dealt with.  So, separate to the court:

a member of the court as constituted for the purposes of the proceeding.

So, the section itself, we say, shows your Honours the conduits through which the record flows.  While your Honours have the Act, if your Honours could turn back to section 44(7) and (8), which in the original joint book appears at 157 and 158.

Some of your Honours in SDCV noticed these provisions in your reasons.  Subsection (7) allows the Federal Court to make findings of fact in specified circumstances.  Then, we draw on what your Honours see in subsection (8) as contextual support for the construction that we advance.  So, for the purposes of making those findings under subsection (7), the court can, first:

(a)have regard to the evidence given in the proceeding before the Tribunal; and

(b)      receive further evidence.

Which we draw on to say appears to assume that the court has before it all of the evidence given in the proceeding before the tribunal – again, by reason of 46(1) and (2) – and has no need to, (b), receive that material into evidence because it is already before it.

That distinction, we say, coheres with what your Honour Justice Edelman described as the “presupposition” or the assumption that in conducting the appeal the court has before it all of that material, without any necessity to receive it.  Again, to use your Honour the Chief Justice’s description, it is “automatically” before the court.

As I say, we understand that our friends for the Commonwealth in fact accept – without dealing specifically with each of the points that I have just put – do accept that – and that, I should say, is not surprising because I have just advanced them and your Honours saw the sequence of submissions, so they have not really had an opportunity to say whether they accept each of those things – the mechanical construction is not the preferable construction, as we understand it.

But they nevertheless say that your Honours could adopt that construction in a Residual Assco way if there is a choice between the construction that I have just advanced and an alternative construction that would render the provision valid.  Of course, the submission that we make on the back of that is that that means that section 46(2) is invalid.  But if we are right, we would say that that mechanical construction is not in fact open, which was my answer to your Honour Justice Edelman.

EDELMAN J:   That was not an issue in SDCV though, was it?  There was no issue in SDCV of whether or not, if the provisions were invalid, they could be saved under section 15A by reading the receipt of the material as a mechanical receipt by the court.

MR LENEHAN:   Your Honour, I think that may be – we, of course, advanced a reading down‑type argument as part of our case, which was rejected.  So, it was certainly in the mix, but – I think I mentioned this point before – your Honour specifically considered whether Justice Steward’s construction was open, and at 223 and then again at 267 your Honour decided that it was not.

BEECH‑JONES J:   What are those paragraphs, Mr Lenehan?

MR LENEHAN:   Paragraph 223, where Justice Edelman said that Justice Steward’s construction is “not open”, and then at 267 ‑ ‑ ‑ 

EDELMAN J:   Paragraph 223 is about the special advocate issue.

MR LENEHAN:   It is.  But at 267, your Honour makes clear that the construction that you had given to section 46 is the only interpretation which you “consider to be open”.

EDELMAN J:   Yes, but I think what I am putting to you is I do not recall argument in SDCV, or deciding in SDCV, the question of whether the gateway to the issues you are about to come to, being whether or not a certiorari‑to‑remove‑type approach was intractable – an intractable assumption of section 46(1) and (2).

MR LENEHAN:   Yes, well, that may mean, then, that – again, it is unclear whether SDCV decides that issue, which may leave it open.  For the reasons that I have given, we would say that it is not an open construction.  But that may again expose a further reason why your Honours have heard us make a number of submissions to this effect:  there is a crying need to reopen SDCV, even if our friends’ mechanical construction point and then their various mechanisms are an available way of dealing with this, because that would – to use your Honours’ decision in Vunilagi – involve re‑explaining what was decided in SDCV, and does, we say, demand that it be reopened.

Now, the second broad issue that we were asked to address your Honours on assumes that I am wrong on what I have just said and then requires us to consider the Commonwealth’s various mechanisms, and the focus that we were invited to address your Honours on was the power to admit or refuse to admit certified matter.

GORDON J:   Sorry, just before you get there, on your first approach, which you contend is the only construction open, the two mechanisms in play there were the certificate and the substance of the material, and you say neither of those are sufficient.

MR LENEHAN:   We do, for the reasons that we developed at length last time.

GORDON J:   Thank you.  Then the only other – the third one – is the stay alternative, on that analysis, and you again say that is not sufficient for the reasons you gave earlier.

MR LENEHAN:   We do, that is so.

GORDON J:   And your position is in relation to what might be described as mechanisms 4 to 6; they are not in play at all on the first construction.

MR LENEHAN:   They could not be because they each go through that gateway.

GORDON J:   Thank you.

MR LENEHAN:   Just to be clear, your Honour, that is mechanisms 3 to 5 in the Commonwealth’s submissions they have advanced.  So, I think 1 is the certificate, 2 is the dreadful word “gisting” ‑ ‑ ‑

GORDON J:   I use “the substance”, I think it is better language.

MR LENEHAN:   Yes, I should adopt that preferable label.

GORDON J:   The third is – yes, I understand.  Thank you.

GAGELER CJ:   Mr Lenehan, on what I might call the certiorari reading of section 46, apart from the confidentiality aspects of section 46, does that assimilate this form of proceeding to the ordinary proceeding before the AAT where you have T documents, or is it different?

MR LENEHAN:   Sorry, is your Honour’s question:  is it the same body of documents that are before the tribunal that are before the court?

GAGELER CJ:   And dealt with in the same way, apart from the confidentiality requirements.

MR LENEHAN:   Yes, I think that is so.  Yes.  Your Honours, just to introduce this topic, so the third, fourth and fifth mechanisms are closely related, although the invitation from the Court suggested that we focus on the third mechanism.  That is, the refusal to accept the tender.  Then the fourth mechanism was parasitic on the third.  That is, that the court could indicate that it will only accept a tender if certain conditions are satisfied.  Then the fifth mechanism seemed to be a form of safety valve, if those first two mechanisms did not alleviate unfairness.  That is, a reversion to ordinary procedures.

Can I make one observation at the outset before addressing the court’s powers to refuse to accept the material.  There seems to be an assumption made by our friends for the Commonwealth that the context in which all of these mechanisms operate is that it will frequently be my client, or a person in the position of my client, that is seeking to tender the material.  We say that it is not at all clear that that is so.  Your Honours will have seen this in a footnote to our written submissions, but we have picked up what your Honour Justice Steward noted in the paragraph that your Honours are now very familiar with.  That is, paragraph 302.  At the end of that paragraph, your Honour said this:

Whether the Director‑General, as a model litigant, would be obliged to tender certified documents is not a matter that needs to be decided.

That probably remains true of the current case, but can I say that the better view, in my submission, is that the tentative view or the possibility that your Honour identifies in that sentence, we say, is correct, and there is a similar passage about “model litigant” ‑ ‑ ‑

BEECH‑JONES J:   Sorry, what is correct?  That he would be obliged?

MR LENEHAN:   Would be obliged, yes.  If your Honours look to the joint reasons at paragraph 48, we detect a similar idea in a passage that the plurality extracts from the reasons of Justice Abraham and Justice Bromwich.  In the CLR – that is, the bottom of 263, over the page to 264 – where in addition to those:

model litigant obligations –

their Honours refer to:

the obligations of the type that apply in ex parte hearings –

Noting that this would generally involve closed court proceedings.

GLEESON J:   What is the aspect of the model litigant obligations that would be relevant?

MR LENEHAN:   Your Honour, most likely the general obligation of fairness.  The essential point is that only the Director‑General will know what is sent under section 46(1).  So, we would say only the Director‑General is really in a position to form a proper view that it is relevant and to be tendered on that basis.  We say that as an important context in which one understands, then, what follows in terms of the court’s powers to exclude evidence.  It will generally – well, we say inevitably – be the Director‑General who is making the tender, because of those considerations.

That then leads me to the two ways by which it was suggested that the material could be excluded.  The first is section 135, and your Honours will have seen that our friends have focused, I think, in their written submissions on 135(a), which was the provision that was canvassed in some detail in argument last time.  We have noted in our written submissions that a further possibility seems to be 135(b), which authorises the court to:

refuse to admit evidence:

where the:

probative value is substantially outweighed by the danger that the evidence might:

. . .

(b)be misleading or confusing –

What we have in mind there is the way in which your Honour the Chief Justice picked up Al Rawi at 155, where:

Lord Kerr eloquently explained . . . that evidence that insulated from challenge –

or “contextual explanation” may positively mislead.  So, that is a possible basis for the 135(b) argument.  But we say your Honours would not pursue that possibility further, because ‑ ‑ ‑

GORDON J:   Is this (a) or (b) you are talking about now?

MR LENEHAN:   It is (a) or (b).

GORDON J:   Thank you.

MR LENEHAN:   The reason being that 135 simply does not provide a solution to the issue of procedural unfairness.

GORDON J:   Can we just unpack that a bit, because that is, I think, probably a conclusion, at the moment for me.  Is that because the party seeking to rely on 135 – so, for example, your client – I do not know the answer to this – is unable to assess the probative value, because they cannot see the material?

MR LENEHAN:   That, as your Honours and Justice Edelman used the term anterior unfairness, is a significant obstacle, yes.

GORDON J:   So, we have the anterior unfairness.  And then, is another problem the analysis of:  the prejudice must substantially outweigh the probative value – is that itself an issue?

MR LENEHAN:   Yes.

GORDON J:   And why?

MR LENEHAN:   Because that then means – I am going to use the word “tailoring” – it is not closely tailored in the way the constitutional test requires it to be, because the term “substantially outweighed” simply leaves too much room.

GORDON J:   Does that mean, in other words, is it, in blunt terms, at a practical level, tilting in favour of admission as against the question of prejudice?

MR LENEHAN:   Yes.  And then – your Honour was probably going to remind me of the next point ‑ ‑ ‑

GORDON J:   I was not.  You are going to tell me which one I have missed?

MR LENEHAN:   I am going to tell your Honour – I do not think your Honour has missed this – the next point is the difficulty in what is involved on either side of the balance.  And so ‑ ‑ ‑

GORDON J:   What does that mean?

MR LENEHAN:   Well, on the one hand, you have unfair prejudice, which is, we say – and I think the Commonwealth accepts this – not the same as procedural unfairness.  That emerges from a case that both parties have referred, to which your Honours are familiar with, which is Moore.  It was said there that a procedural disadvantage – so, in that case, the inability to cross-examine a witness – was not sufficient in itself, what one has to have is the risk that the tribunal of fact will not be able to rationally assess the weight of the evidence.  So, it is something more than simply procedural unfairness.

The difficulty also arises on the other side of the balance, that is, the probative value, and that was a point that your Honour the Chief Justice made to our friends last time, the short point being that the provision is concerned with weighing unfair prejudice against probative value, which is then different to weighing procedural fairness – which, for the reason I have just given, is not quite the same as unfair prejudice – against national security interests.  So, the section is really ‑ ‑ ‑ 

BEECH‑JONES J:   Is a blunt example of that a case where what is said in the certificated material might be highly relevant and highly probative, the procedural fairness denial may be even considered greater, because you do not know why.

MR LENEHAN:   Yes.  Yes.

BEECH‑JONES J:   But 135 would not actively – could never be invoked, is that where we get to?

MR LENEHAN:   It will have difficulty being invoked, yes.

BEECH‑JONES J:   Because you would have to find some even greater prejudice from even that great probative value.

MR LENEHAN:   Yes.  So, to pick up an example that a number of the members of the minority in SDCV noted, it will not capture the case – to pick up on your Honour’s example – so, very probative material, but only raises very trivial concerns in terms of disclosure, or non‑disclosure, for security reasons.  So, the point there is really the provision is speaking to concepts which are incommensurate with the constitutional test, and so, for that reason, we say that does not address the validity problem.  This is all assuming, in this universe, that first, our friends’ construction is available and then your Honours are, I think, reopening SDCV, not accepting the fact that there is an alternative procedure available, is the sufficient answer.

EDELMAN J:   Is there another issue about 135, which is whether the reference to “the evidence” – at least in relation to paragraph (a) – is talking about whether the evidence, intrinsically, is unfairly prejudicial, not unfairly prejudicial for extrinsic – like procedural fairness – reasons.  So, to give an example, I do not recall any use of section 135(a) in a case where it might be said:  this evidence is particularly relevant but it will have disastrous effects on the psychological health of one of the parties.  Other provisions address those sorts of situations.

MR LENEHAN:   Yes, I embrace what your Honour has just put to me – that is a further difficulty in applying it.

That then leaves the implied power to reject evidence, and your Honours will have seen that both we and, I think – looking at the order in which their oral argument is set out – our friends for the Commonwealth now see as the primary way by which the court would have power to reject evidence on the scenario that I am assuming.  That is, that our friends’ mechanical construction is correct.

Your Honours will have seen that we, in our written submissions, commence with what I hope is a frank acknowledgement – this is at paragraph 24 – that there is authority in this Court and in lower courts which generally stands against the proposition that there exists a common law discretion in civil proceedings to refuse to admit evidence on grounds of prejudice.

GORDON J:   This is CDJ?

MR LENEHAN:   Yes.  So, in CDJ, a majority of the Court – albeit in a footnote – described that proposition as “highly doubtful”.  We have also referred to an observation of Justice Heydon in Stoddart, where his Honour observed that there were “only a handful” of authorities that recognised the existence of a discretion of that nature.  So, I am trying to convince your Honours that, despite those doubts and in that unpromising territory, such a discretion does exist.

EDELMAN J:   Why would it not be seen as simply a less extreme version of a permanent stay?

MR LENEHAN:   That is essentially our point, your Honour.  I think our friends for the Commonwealth make a similar point.  That has a number of strings to it.  The first is – and, perhaps, an obvious point, see Chief Justice Mason’s reasons in Jago – the court can mould remedies to address an abuse of process.  So, we say that that – picking up what your Honour has just said – is what is being done, on our argument.

Your Honours will have seen that we identify two forms of abuse, accepting, of course, that the categories of abuse are not closed.  We say that there are two categories that the Court has clearly recognised that this situation may fall into.  The first is that the admission of certified matter may involve the court’s procedures being used in a way that is unjustifiably oppressive to a party.  In saying that, what we are saying is that, again, the admission and use of secret material has the potential to mislead the court, because it has been shielded from challenge.

The second related point is that the admission of certified material may bring the administration of justice into disrepute.  Your Honours will recall, and we have picked up the reference in our written submissions in Moti, the plurality said that that second category is concerned with:

the trust reposed constitutionally in the courts –

and so, we draw on that and move from there, and draw also on your Honour the Chief Justice’s reasons in Pompano at 186, a passage that I have addressed your Honours on before, that is, that procedural unfairness, departure from the general rule, has a tendency to sap:

confidence in the judicial process and undermines the integrity of the court as an institution that exists for the administration of justice.

and so in that way, we say, brings the administration of justice into disrepute.  Your Honours will have seen that we also draw on what was said recently in GLJ, which your Honours are very familiar with, where the Court looked in particular at the normative structure of the Australian legal system as an explanation for what is involved in determining whether there is an abuse of process.

So, the idea of whether the putative abuse of process is congruent with that normative structure and in that way, again, drawing on your Honour’s observation in Pompano, say that those considerations are in play.  That is, that the admission of evidence that would result in a greater than reasonably necessary departure from the general rule would necessarily be incongruent with the normative structure of our legal system, insofar as it adopts an adversarial process.

STEWARD J:   Mr Lenehan, can I ask, does this proposition operate on the premise that your construction of section 46(1) is correct?

MR LENEHAN:   No, that it is wrong.

STEWARD J:   It is wrong.

MR LENEHAN:   Yes.

STEWARD J:   So, assuming you are right under section 46, why would the court not have, to prevent an abuse of process, a right to exclude evidence that has come before it in the way that you have suggested it would under section 46?  Why is it, once admitted, it is always admitted?  Not that there are any admissions going on with your section 46, but I am just struggling to understand why it is necessarily foreclosed, if your interpretation of 46 is correct.

MR LENEHAN:   Your Honour, if our construction of 46 is correct, then the assumption of the statute is that it is available to the court. 

STEWARD J:   Does that mean the court, though, can nonetheless reject it, to prevent an abuse?

MR LENEHAN:   The presupposition for the operation of the provision appears to be that it cannot.

STEWARD J:   It is reading a lot into section 46(1) in terms of limiting the court’s inherent and statutory powers.

MR LENEHAN:   Your Honour, that may be so.  This, of course, is an argument that we have not been met with by our friends at the moment.  Perhaps, if it is, then I address it in reply.

STEWARD J:   Of course.  Thank you, Mr Lenehan.

GORDON J:   May I ask two practical questions about this second aspect of the third mechanism, which is this implied power to prevent abuse of process by rejecting the admission of relevant evidence.  How does your client engage in that debate?

MR LENEHAN:   Again, my client would be making submissions in the dark.

GORDON J:   Why is that procedurally fair?

MR LENEHAN:   It is not.

GORDON J:   Right.  Second, does it mean that in the court determining whether or not it is going to exercise its implied power to prevent abuse of process that the court moves of its own motion to raise this issue?

MR LENEHAN:   In my submission, in the way that I have developed it, it does, yes.

GORDON J:   Is there any other way possible for it to operate?

MR LENEHAN:   I think not, your Honour.  My client could raise general submissions, not knowing any of the detail about what the court might do and how the court should deal with it, but that would be the extent of its role.

STEWARD J:   The Director‑General might have an obligation in some cases.

MR LENEHAN:   If your Honour extends the model litigant obligation and the obligations that apply using the ex parte analogy, that may be so, yes.

STEWARD J:   Yes.

MR LENEHAN:   Yes, I accept that.

BEECH‑JONES J:   What is the abuse that would trigger the exercise of the supposed implied power?  What are the circumstances in which it could be done?

MR LENEHAN:   Your Honour, it would be a situation in which the court considers that the admission of evidence would result in a greater than reasonably necessary departure from the general rule that we have relied on in putting our case in chief.

BEECH‑JONES J:   How would the court then say:  now then, I have to deal with, effectively, a question of law in judicial review proceedings without the material before the tribunal decision‑maker?

MR LENEHAN:   Your Honour, on this view, there is then Justice Steward’s next step, which is the next mechanism that our friends advance.  That is, a form of conditional tender approach.  The court says to Dr Donaghue’s client, this should be shown to the person in the position of my client.

BEECH‑JONES J:   So, it is only tied to the conditional tender.

MR LENEHAN:   Your Honour, it proceeds through those steps.

GORDON J:   Just so I understand that, you do not understand it to be a separate basis for addressing this issue?  You say it is a step that leads to the fourth.

MR LENEHAN:   As we understand it, they are very much linked.

BEECH‑JONES J:   But does one always follow the other?

MR LENEHAN:   Your Honour, I think that will be how we see the analysis, yes.

BEECH‑JONES J:   Because otherwise the court, in assessing whether this powers the exercise, has to balance whatever is said to be the unfairness against the fact that it has to decide a case without this material.

MR LENEHAN:   Yes, that is so, and there is under that next mechanism a way of dealing with it.  As your Honours have seen, we say that is not limited in the way that our friends say that could contemplate a special advocate procedure.

STEWARD J:   The other alternative is that the applicant would commence judicial review proceedings and revert back to the traditional ways of seeking such material.

MR LENEHAN:   Your Honour, that is so, yes.

STEWARD J:   I am not saying it is a perfect solution.

MR LENEHAN:   No.

BEECH‑JONES J:   But that would be that you would get there without having to extend any law by saying:  I will stay this case – not reject

evidence – I will stay this case as an abuse of process, it has been rendered an abuse of process by the proposed reliance on this material that cannot be seen by the other side.  You would not have to go through any implied power to exclude, you just say, well, this case cannot – which is a more traditional use of abuse of process powers.

MR LENEHAN:   Yes.  Your Honour, that – and both parties point this out – is, of course, the extreme case and results in the defeat of my client’s claim in this particular proceeding.

BEECH‑JONES J:   Is that mechanism 6 that I have just outlined, is it?

MR LENEHAN:   Yes.

GORDON J:   And you complain about that on the basis that the Commonwealth Parliament, having given an avenue for a review, should provide it in a manner which is consistent with the rules which you have identified.  Because what it does, if that is right, is it in effect precludes exercising that right of review.

MR LENEHAN:   Yes, an entirely futile exercise of judicial power, that is so; a cul‑de‑sac.  I think, your Honours, that is what I wish to say about the two topics that the Court asked us to address your Honours on.  Your Honour the Chief Justice asked me before about the documents before the tribunal and the T documents.  Of course, 46(1)(a) imposes a further condition, which is that they are relevant to the appeal, but in this kind of case, of course everything is relevant; the entire record comes to the court.

Unless your Honours have any further questions, those are the further submissions that my client makes on the questions the Court has asked.

GAGELER CJ:   Thank you.  Mr Solicitor.

MR DONAGHUE:   May it please the Court.  Your Honours, can I start by briefly situating the issues with which this further hearing is concerned within the framework of the arguments concerning the validity of 46(2).  I do that because I wish to emphasise that on the Commonwealth’s first two arguments concerning validity, the provision will be valid irrespective of the answer given to the debate that is being had today.

Because we say that, the validity of 46(2) having already been upheld in SDCV, if your Honours declined to reopen that case for the reasons discussed on the last occasion, then you do not need to get into these questions, or if you do grant leave to reopen SDCV but you accept the argument we developed on the last occasion – that, because section 46 is an additional beneficial procedure adding to what a party can do under 75(v) or 39B of the Judiciary Act, it does not cause practical unfairness – then the provision would be valid for that reason, and so you do not get into the construing for validity debate that I am about to come to.

The issue, in our submission, arises.  The precise questions of construction and the mechanisms that we outlined in our post‑hearing submissions arise on the further alternative argument, which is that your Honours find that 46(2) can cause practical injustice.  Then the question is:  but does it do so only to an extent that is reasonably necessary for the achievement of a legitimate and competing public interest?  So, it is only if your Honours reach that part of the argument that these issues become critical.

Of course, we accept that your Honours would ordinarily construe a provision first, then assess its validity, but here, of course, that issue is complicated by 15A of the Acts Interpretation Act and the Residual Assco principle, which mean that one cannot completely separate these steps.  So, the appropriate methodology, in our submission – and our friends appear to agree with this in paragraph 8 of their post‑hearing submissions – we submit your Honours would start with identifying what your Honour has considered to be the proper construction of section 46(2), leaving aside any question of validity.

Your Honours would then take that construction and test the validity of the provision against Chapter III, and if the provision is valid, then that is the end of the inquiry.  Your Honours do not, and your Honour the Chief Justice explained this in your judgment in NAAJA (2015) 256 CLR 569– which I will not take your Honours to – at 76, you do not construe to avoid constitutional doubt, you construe to avoid constitutional invalidity.

If, on the ordinary construction, the provision would be valid for either of our two primary arguments, then that is the end of the inquiry.  But if your Honours were to conclude that the provision would not be valid on either of those two bases, then you come back to the construction of the provision and you ask:  are there alternative constructions that are reasonably open?  If there are, you then ask whether, on those alternative constructions, the provision would be valid.  If so, you must adopt that construction according to 15A and Residual Assco.

We submit, and as Mr Lenehan has already developed, that within that analytical framework at the first step – what is the ordinary proper construction of the provision – we agree with the submissions that Mr Lenehan has put, that the certiorari construction, to adopt your Honour the Chief Justice’s construction, is the ordinary and best construction of the provision.  If your Honours were to construe the provision in that way, only the first two of the mechanisms we identified in our submissions would operate.  That is, the own motion review of the certificate and the disclosure of the substance, or the gist of the measure.  The other four, in our submission, would not be necessary in order to preserve the validity of the provision, and so your Honours would not get to them.

But if your Honours find that the certiorari construction, developed as it has been by Mr Lenehan this morning, is the preferable construction but is invalid, then your Honours would come back to the question of construction and, in our submission, you would then conclude that Justice Steward’s construction from SDCV is a reasonably open one and, in our submission, on that construction the provision is valid because mechanisms 3 to 6 are also available.  That is, in our submission, the framework of how the parts fit together.

I do not think that, in light of what is fallen from our friends this morning, I need to say much further in support of the certiorari construction as the preferable ordinary construction.  I was going to take your Honours to much the same material that Mr Lenehan did:  your Honour Justice Gordon and your Honour Justice Edelman’s judgments in SDCV explaining the certiorari analogy, and your Honour the Chief Justice’s comments that Mr Lenehan has mentioned, and 44(7) and (8) of the AAT Act.

GAGELER CJ:   Mr Solicitor, did the plurality in SDVC also proceed on the certiorari construction, or is it not so clear?

MR DONAGHUE:   In my submission, your Honour, they did not resolve that question.  I think where their Honours come closest to addressing the matter is at paragraph 41 of their reasons, and they note the debate that had emerged as to whether the provision is “merely machinery” or not and then say, four lines down:

It is not necessary to pursue this question further.

So, it was left open by the plurality.  So, certainly, we say SDCV is not an authority against either of the constructions that are being debated.  There is, in the three dissenting reasons, reasoning in favour of the mechanical view, and in the reasons of the plurality the point is left open.  Your Honour Justice Steward affirmatively favoured the non‑mechanical view.

BEECH-JONES J:   The balance of the reasons just proceeds on the assumption that the certificated material is before the judge and not available, and disclosing the essence is not able to be undertaken.

MR DONAGHUE:   At least on the basis that it can be before the judge.  It is not clear if it is “is” or “can be”, but I think their Honours say it can be, and that, yes, disclosing the gist would not be enough, and then – determinatively, we say – their Honours reason, because it is an additional and beneficial procedure, it does not cause practical injustice and therefore it is valid.  That is why I say, if your Honours accept that reasoning, 15A and Residual Assco do not cut into the construction exercise, because the provision is valid without needing to go there.

In terms of the question, really, there being a high level of agreement between us, but an area where we differ is that the plaintiffs say that the third step that I have outlined, where the court would return, if it finds on the primary construction the provision is invalid, to look for an alternative construction, our friends say, no alternative construction is reasonably open, notwithstanding Justice Steward’s reasoning in SDCV.  There, we depart.

If your Honours go back to 46 of the AAT Act, we make the perhaps obvious point that when one focuses on the actual language of 46(1)(a) and (b), it looks rather mechanical.  So it says:

the Tribunal shall . . . cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceedings to which the appeal or reference relates –

and then, in (b):

at the conclusion of the proceeding before the Federal Court . . . cause the documents to be returned –

So, while we accept that, read in context, the purpose of these provisions supports the certiorari reading, if the provision would be invalid on that reading, in our submission, that text does not create any substantial barrier to your Honours finding that, because you must construe the provision to be valid if it can be construed in that way, that you treat it only as mechanically requiring the documents to be sent to the court, leaving open the question of what then happens to them once they have been sent to the court and, in particular, leaving open the operation of the normal rules in what is an original jurisdiction matter in the Federal Court.

That is, if either party wants to rely on the material, they have to tender it, under section 48 – or it is documentary material.  That, your Honour Justice Steward explained as an available construction – your Honour’s preferred construction, at paragraphs 282 to 286 – and we submit that if your Honours need to construe the provision in that way for it to be valid, that construction is open.

EDELMAN J:   That 15A point was not raised in SDCV, was it?

MR DONAGHUE:   I think your Honour is correct.  The only 15A point was about whether you could sever 46(2) from 46(1), and the Court said, no, you cannot – they stand or fall together.  But this debate – there was, as the plurality recorded in the passage that I just mentioned in answering the Chief Justice – there was a debate that I think emerged in argument for the first time about the mechanical versus non‑mechanical construction of the provision, but no one said, as I recall:  construe it as mechanical only to save validity under 15A.  I do not think that was raised.

Our friends, with respect, have not really explained why, given the apparently mechanical language of 46(1), the construction that Justice Steward adopted is not reasonably open.  We submit that that construction has some parallels with the way the Court approached the provision that was in question in K‑Generation (2009) 237 CLR 501 – again, I will not go there – particularly at paragraph 77 in Chief Justice French’s reasons and at paragraph 148 in the plurality.

GAGELER CJ:   Mr Solicitor, this debate is really a debate, is it not, about T documents generally.  I mean, 46(1) applies to all T documents.

MR DONAGHUE:   Yes.

GAGELER CJ:   The AAT has been going an extremely long time, there have been thousands of these appeals.  Perhaps there is just no standard practice that has emerged as to how the T documents are to be dealt with.  Is that right?

MR DONAGHUE:   I think, your Honour, there was some discussion of this at the last hearing, if I recall directly, and the suggestion by some of your Honours who were members of the Federal Court – which certainly accords with my own past experience – that there is inconsistent practice.  So, very, very commonly, no one tenders the T documents, it is just assumed that they are available to the court to conduct the review.  They are there in the appeal book that the Federal Court Rules require there be, and no one ever turns their mind to it.

But, from time to time, you do get a judge or a particular case that says well, I want you to tell me specifically what is in issue and tender the relevant parts of the T documents.  I recall one occasion where a senior Federal Court judge said:  at the end of this process, I am going to tear out of the appeal book all of the documents that have not been specifically tendered and not regard them as before me.  So, that is certainly something that sometimes happens in the Federal Court.

GAGELER CJ:   So, if we are reading down subsection (1) to save the validity of subsection (2) – I am not saying we cannot do it, but it is very much a tail wagging the dog scenario.  Subsection (2) cases are a very, very small part of the subject matter that is governed by subsection (1).

MR DONAGHUE:   That is true, your Honour.  It may depend whether one reads the provision, on the certiorari reading, as authorising the court to have regard to the whole record or as requiring the court to have regard to the whole record.  If it is only the former, then that would accommodate the divergent practice in the Federal Court.  But even if your Honours did read – I think it is fair to say this is not a topic that occupies a great deal of intellectual attention, ordinarily.  In the conduct of these matters, everyone just assumes that you need to have regard to the record that was before the tribunal.

If your Honours held that you do need to tender the material because of the reading down approach, that would require, perhaps, a change in practice, but not a complicated one – everyone would just have to stand up at the start of an appeal under 44 and say:  I tender the T documents.

STEWARD J:   Can I ask you a question, Mr Solicitor.  On your construction and Mr Lenehan’s construction of section 46(1), at what point are the documents in evidence?  You might be aware of this, but if, as a judge, you hear one of these cases and it is docketed to your docket, the T documents emerge in boxes at some point and sit in a corner somewhere until the case is heard.  When are they mandatorily before the court and in evidence?

MR DONAGHUE:   On the primary construction that we both urge, there is no – and this derives some support from 44(7) and (8) – there is a distinction drawn between having regard to the record before the tribunal on the one hand and admitting further evidence.  So, you do not actually – they are treated as in evidence automatically, on the primary construction.  So, what we submit, that they are ‑ ‑ ‑

STEWARD J:   Is that from the moment they reach the court as an institution, even before that the matter is docketed to a judge?

MR DONAGHUE:   I would say, your Honour, on a purposive reading of this, from the moment that the matter is assigned to the members of the court, they are available to be considered by the court in resolving the appeal on the question of law that has been put before the court – on our primary construction.

STEWARD J:   I understand.

GAGELER CJ:   One problem with the primary construction – again, one does not normally drill into section 46(1)(a) quite so much – but you basically have the tribunal determining relevance before the court, if the court is just required to accept whatever is sent by the tribunal.

MR DONAGHUE:   That, your Honour, is, I think, why one might prefer to read the provision as authorising the court to have regard to the whole record but not requiring it to do so.  So, there are cases where – and the case that I mentioned to you, your Honour, was an example of this – where the T documents were voluminous and the legal issues raised on the appeal were quite confined and specific, and the judge said:  why should I have in evidence before me a vast body of material that I will need to get across and have regard to, I want the parties to identify what material is relevant to the questions raised by the appeal and to identify that specifically.

We do not contend that the provision prevents a court from proceeding in that way.  So, our – perhaps this maybe is a slight difference between me and my friends on the certiorari reading, but it is sufficient, we say, that the court may proceed, is authorised to proceed by having regard to the entirety of the record if it chooses to do so, as is the ‑ ‑ ‑ 

STEWARD J:   Does that mean it can refuse to consider some documents, particularly those that are the subject of a certificate?  Mr Lenehan says no.  What do you say?

MR DONAGHUE:   That then – yes, I have ‑ ‑ ‑

EDELMAN J:   There is a very, very fine line between saying you have an authority to consider the documents, whether you want to or not, and you have the ability to say, I refuse to consider some of these documents.

MR DONAGHUE:   Yes.  That is so and perhaps there is, in the submission that I have just made, some blurring of the two constructions that are in play, and I apologise for, perhaps, introducing some confusion in that respect.

GORDON J:   On your first preferred construction, where the file, the record, is sent up to the court, your position is that, having – it has been sent up in its entirety in the way it is – the judge who then says, listen, I want it removed with precision so I have better identification of the things within the record that you want me to have regard to, is a case management mechanism which is not inconsistent with the first proposition.

MR DONAGHUE:   It is a case management mechanism rather than an admission into evidence and exclusion into evidence – I respectfully embrace that, your Honour.  And on our first construction, that is all you can do.  If the provision is invalid on that construction, and one moves into starting to exclude material on other grounds, then we accept that that is possible on the alternative construction and that 15A renders that construction open, but not otherwise.

GAGELER CJ:   On the certiorari construction, is the Evidence Act relevant at all?

MR DONAGHUE:   To the receipt of the material?

GAGELER CJ:   To the T documents.

MR DONAGHUE:   No, your Honour, on the certiorari construction.

GAGELER CJ:   There is no question of relevance, there is no question of prejudice.  It just all goes in.

MR DONAGHUE:   It goes in because it was – like the material that was the subject of an administrative decision before a Minister goes in, on those grounds – it is the foundation for the decision that was made, and it does not need to pass through the lens of the Evidence Act in order to go ‑ ‑ ‑

BEECH‑JONES J:   That case does pass through, it is just has a relevant – the relevance – it gets through 55(1) of the Evidence Act because the fact that it was before the Minister when the decision was made is usually relevant to the grounds of review.

MR DONAGHUE:   Indeed.

BEECH‑JONES J:   There can be forensic contest in judicial review cases.  There is still an Evidence Act being applied, it is just that I suspect everyone is doing it subconsciously, are they not?

MR DONAGHUE:   Even if it never gets tendered, which is usually the case.

BEECH‑JONES J:   Often, it never gets tendered because it is maybe not relevant to the grounds of challenge.

MR DONAGHUE:   But, as your Honour says, it usually will be relevant to the grounds of challenge, because it will be part of the record, and the record will normally inform whether the alleged errors were made or not.  It is possible the way it intersects – although I accept, immediately, that the fit is not perfect – that it may intersect with section 52 of the Evidence Act which is headed:

Adducing of other evidence not affected

This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.

So, that kind of provision would accommodate the certiorari‑type procedure within the framework of the Evidence Act.

There were, I think, two things two things I needed to say on the construction point before moving to the powers to exclude.  One was the suggestion by our learned friends both orally and in writing that there is some kind of preliminary point – and large point, it was said – about the Federal Court’s power to admit evidence without it being disclosed to the opposing party.

In our submission, there is nothing in that point.  The submission runs together two different concepts, being the power to admit relevant evidence – which, as your Honour Justice Beech‑Jones pointed out, is just something that a court can do, and it does here under section 48 of the Evidence Act – and the separate question of whether or not there is a lawful basis to withhold the evidence from a party once the evidence has been admitted.

Obviously, you could not do the latter unless you had a lawful basis to do so.  Once the evidence is going in, in a court proceeding, it will need to be disclosed to the parties unless there is a lawful basis not to do so.  There are a variety of such bases – the trade secret‑type cases provide one illustration.  The evident purpose of section 46(2) is to provide such a lawful basis.  The question is whether 46(2) is valid.

So, we do not need – we do not fall over because of the absence of some sort of composite power to admit evidence without disclosing it.  There is a power to admit, and the question is, then:  is there a lawful basis to withhold?  That is the debate that is being had in this case.

The other point that I should briefly address is the point that was in a footnote in our friends’ submissions and developed orally this morning about asserted model litigant obligations on the Director‑General.  Your Honour Justice Steward, in the passage our friends referred to, did not do more than leave that point open.  The passage that your Honours were taken to in the plurality reasons, quoting the Full Federal Court below, was addressed to a totally different question – it was addressed to submissions being made about material that the applicant had not seen.  It was in that context that an analogy was drawn with the obligations of an ex parte kind and model litigant obligations were mentioned.  It was not in the context of tender.

In our submission, there is no basis at all for suggesting that the model litigant rules effect such a fundamental change of the adversarial process that the government party has to tender material upon which they do not wish to rely that could have been tendered by the other party.  That is what is being said against us, because here, as we submit will very commonly be the case, if the applicant for review wants the court to have regard to the full body of material that was before the tribunal, they can tender it, because it is available to the court under 46(1) and all they need to do is to say to the court, on this hypothesis, where tender is necessary – so, on the alternative construction – they just need to say:  we tender the certificated material.  Now, they have not seen it.  I accept that that is so.  But they may ‑ ‑ ‑

GORDON J:   Is that not the problem?

MR DONAGHUE:   In my submission, it is not, your Honour, because the reason that they may be in the 44, 46 procedure rather than judicial review is that they might think that to succeed, they want the court to see the whole body of the material that was before the Security Appeals Tribunal.  And it might be the case – it commonly is the case – that that material includes some highly classified material that, in the public interest, cannot be disclosed to them.

So, they have the option of saying to the court:  I know this is not perfect, but I would like you, the court, to look at this highly sensitive material and make sure it really does support the conclusion that the tribunal has reached.  And if they want to do that, they can tender the material.

GORDON J:   Do you accept that is sort of fighting with one hand tied behind your back, at least?

MR DONAGHUE:   Well, it is not what procedural fairness would ordinarily require, but if the party wants to proceed on the basis that the court cannot know what the highly classified material is, it can proceed in that way.  Now, it is impeded in that circumstance as well, but there is no lack of procedural fairness.  The court is only ‑ ‑ ‑

EDELMAN J:   It would be impeded in an equivalent ground to unreasonableness – to an unreasonableness‑type ground.  Would it be impeded in any other grounds?

MR DONAGHUE:   Often not, your Honour, and this is the point that I was seeking to make.  So, an applicant might – and this case provides as reasonable illustration of it, if I may, if your Honours still have the special case book available.  There are five grounds – you can see the grounds from 126 of the special case book – and the first four of them appear to be grounds that our friends contend that they can make good without the certificated material.  Indeed, your Honour Justice Steward asked a question about this at the hearing on the previous occasion, and Mr Lenehan said ground 5 is the one we said we could not run.

STEWARD J:   My understanding, Mr Solicitor, is on this question of practical injustice, you do not answer it in this case by just looking at what is happening in the Federal Court, you are answering it in the context of there having been provided full merits review in the AAT, which would not otherwise have existed.

MR DONAGHUE:   That is so.

STEWARD J:   You have to answer that question in the entire context.

MR DONAGHUE:   Precisely, your Honour.  Having provided that mechanism, there is then necessarily, constitutionally, a mechanism for judicial review; that has to be there.  Here, Parliament has gone further than that and said, in addition to that, I will also give you a mechanism where the court can have regard to this material that may well attract public interest immunity, and it is that additional step that is said to cause practical unfairness, and that is why our primary answer is, looked at as a whole, as your Honour Justice Steward puts to me, it is not practically unfair.

We submit that if your Honours engage in a thought experiment of, just for the moment, assuming no ground 5 and see an applicant who runs grounds 1 to 4 here and chooses not to tender the T documents, or chooses not to tender the certificated matter, the proposition that, as a model litigant, the Director‑General has to do so, thereby creating the very departure from the general rule that is said to create the practical unfairness that brings us here is, we submit, without any foundation.

What would happen in that situation is the applicant does not tender the material, the Director‑General may well also choose not to tender the material, and the appeal would be determined on the four grounds on the basis of the material that was before the court.  It is only if either of the parties in an adversarial proceeding regard it as in their own interests to tender the material that your Honours get to a question of exclusion, and as we have said in writing, and I do not think our friends deny, if the applicant chooses to tender the certificated material, it obviously would not be excluded under either abuse of process or 135, the court would respect the applicant’s forensic decision to have the court be able to rely upon that material.

So, in practice, the question arises if the Director‑General is seeking to tender material against the applicant that the applicant has not seen, and that is the practical context in which the question arises:  is there a power to exclude, under either 135 or under the implied power, to prevent an abuse of process?  That is where we submit that question bites.  If I can turn, then, to those powers ‑ ‑ ‑ 

GAGELER CJ:   Can I just ask one question, to round out the choice of the construction of section 45(1).  If it is to be read in what has been called the mechanical way, or the subpoena way, you say you get there through a reading‑down exercise, I think.  Is there a difference, practically, between the Residual Assco reading down and the section 15A reading down?

MR DONAGHUE:   Not that we can detect.

GAGELER CJ:   Which was would you go first?  Residual Asco first?

MR DONAGHUE:   Because I think they are the same, your Honour ‑ ‑ ‑

GAGELER CJ:   Yes – it does not matter?

MR DONAGHUE:   ‑ ‑ ‑ I do not think it matters, in my submission.  What one needs to do is to give the words, in effect, no more than their literal meaning.  So, when it says, “cause the documents to be sent” and “cause the documents to be returned”, that is all it requires – on the alternative reading.  So, one is left with the ordinary rules of evidence, on this alternative construction.

As to the existence or otherwise of the power to exclude, if necessary – so, these submissions I am about to make are directed to the availability of what we have called “mechanism 3”.  Obviously, if mechanism 3 is not available, then mechanism 4 is also not available.  But, contrary to what Mr Lenehan said, mechanism 3 might operate even if mechanism 4 does not.  Mechanism 3 is the power to exclude where necessary, either under 135(a) or to prevent an abuse.

If that power exists, then mechanism 4 simply recognises that the court might say to the Director‑General – who, on this hypothesis, has sought to tender the material – I cannot admit that material because it will involve an abuse or unfairness under 135(a), but if you did particular things – such as disclosed it to counsel for the applicant – that would address the unfairness that enlivens the power to exclude.  That is all that the condition of tender involves.  But it is always, on our submission, then a question of whether the Director‑General will take those steps.

If the Director‑General does not take those steps, then one imagines the court would exclude the material under mechanism 3.  So, the submissions I am making now are all on our alternative construction, and we submit that on the Residual Assco or 15A construction of section 46, it would be open under both of those mechanisms in some cases – not in all cases, but in some cases – to exclude.

EDELMAN J:   What does section 135 add to the power to exclude to prevent an abuse?  In other words, if there are two abilities to exclude the evidence and 135 comes with all of the complications that have been raised with you, what does 135 add?

MR DONAGHUE:   Nothing, your Honour.  That is why I have ordered them as I have, and my submission was going to be, if you accept that the power to avoid abuse would allow exclusion of the evidence, that is all you need and you do not need to engage with the complications under 135 that your Honour raised with my friends.

GORDON J:   Can I ask, just before you do that, you said “in some cases”.

MR DONAGHUE:   Yes.

GORDON J:   What does that mean?

MR DONAGHUE:   Starting with abuse, if I may, your Honour, our friends say – and you can see this conveniently articulated in paragraph 28 of their supplementary submissions, their contention that, ultimately, in substance, we accept is that the power to exclude as an abuse would arise:

if the admission of evidence would result in a departure from the general rule to an extent greater than reasonably necessary to protect a –

they say “compelling” which we dispute, but:

legitimate public interest –

because:

it would be incongruent with the normative structure of the legal system.

So, they do not submit that any departure from the general rule would be an abuse of process.  The submission is that a departure from the general rule that goes further than is necessary for a legitimate purpose would be an abuse of process.  So, that accommodates a zone of circumstances where material is not disclosed to the applicant but that non‑disclosure is reasonably necessary for a legitimate purpose.

GAGELER CJ:   Mr Solicitor, would that be a convenient time for the break?

MR DONAGHUE:   Of course, your Honour.  Yes.

GAGELER CJ:   Thank you.

AT 11.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

MR DONAGHUE:   Your Honours, can I turn then to our submissions in support of the proposition that an available mechanism by which a court can respond to an abuse of process is by excluding evidence, and can I endeavour to support that submission by reference to the foundational decision of this Court in Jago v The District Court of New South Wales (1989) 168 CLR at 23. Your Honours will find that in volume 2 of the supplementary book of authorities, behind tab 6.

BEECH-JONES J:   What was the tab, again?

MR DONAGHUE:   Tab 6 in the supplementary book, in volume 2.  So, this case was of course concerned with permanent stay in circumstances of considerable delay, but there are some observations made particularly in the judgment of Chief Justice Mason and Justice Gaudron that, in our submission, support the proposition that steps short of a stay may be the appropriate course in order to avoid an abuse.  Can I take your Honours to just a few pinpoint passages, starting at page 31 in the judgment of Chief Justice Mason, where his Honour says, at about point 4 of the page:

Once it is recognized that the courts may order that criminal proceedings be stayed for the purpose of preventing injustice to the accused caused by undue delay, it necessarily follows that other orders may be made in cases of undue delay for that purpose.  There is no reason to confine the discretionary power of the courts by arbitrarily stipulating that a stay is the only proper remedy for undue delay.

Then, over the page, in the passage to which Mr Lenehan referred – it is about point 7 on page 32, a few lines down the last paragraph – his Honour says:

But it is important to bear in mind that the court may mould its order to meet the exigencies of the particular case.

BEECH-JONES J:   This is all in the context of the prosecution becoming unfair.

MR DONAGHUE:   Yes.

BEECH-JONES J:   To be analogous here, the proceeding instituted by the plaintiff has to become unfair because of evidence tendered by the respondent.

MR DONAGHUE:   By the Director‑General.  That is the premise.

BEECH-JONES J:   That the proceeding becomes unfair for that reason?

MR DONAGHUE:   That is ‑ ‑ ‑

BEECH-JONES J:   You say, well, that is the premise we do not accept on the first limb of that case.

MR DONAGHUE:   That is right.

BEECH‑JONES J:   I understand.

MR DONAGHUE:   We submit, your Honour, you will never get to any of this.

BEECH‑JONES J:   Yes, I understand.

MR DONAGHUE:   But if you do, then on that premise we submit that – and we do submit that the ultimate remedy of the permanent stay is one of our mechanisms – mechanism 6, as your Honour put to my friend – but here I am submitting that there is also a step short of staying the whole of the appeal under 44, which is to allow that appeal to go forward but to reject the tender of the certificated material by the Director‑General, if that would cause the proceeding to become unfair, and ‑ ‑ ‑

GORDON J:   Just so I am – sorry, just to go back to this.  So, the premise is the proceeding institute has become unfair, because on one category of case where the Director‑General seeks to tender the certificated of material.  That is the only area where this is operating.

MR DONAGHUE:   Yes, because if the applicant has sought to tender it, it will be because they have made the forensic choice that it will help them establish their grounds.  If they have not made that forensic choice and the Director‑General is then seeking to rely upon material against them that they cannot see, then the premise is that that might generate unfairness of the kind that would enliven this power.  If the premise is accepted – and as I said to Justice Beech‑Jones, we do not accept it, but if the premise is accepted, then we contend that the exclusion is available, and the last passage in Chief Justice Mason’s judgment that I direct your Honours attention to is at the top of page 34:

a permanent stay should be ordered only in an extreme case –

And then in the next paragraph:

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences” –

That passage that I just read was picked up by plurality in GLJ recently, at paragraph [48].  So, is there nothing the trial judge can do in the conduct of the trial to leave against its unfair consequences?

GORDON J:   Just so I am – and I keep going back to it – you really have two buckets on this for analysis.  One bucket is where the applicant has to tender without looking at it and must just make a forensic decision without the ability to look at it, and then the second is – and it has its own problems, which we have discussed and you have given your answers to those – where the Director‑General seeks to tender the evidence, and you say in those circumstances there is this ability to carve out.

MR DONAGHUE:   Yes.  Probably, to be slightly more precise, if the Director‑General tenders and the applicant objects, that would be how the issue would arise.

GORDON J:   And that is the point I was seeking to raise.  How do they know to object, because they cannot see it?

MR DONAGHUE:   Well, they had formed a forensic judgment that they do not want to put the material into evidence in order to establish their grounds of appeal.

GORDON J:   Without having seen it.

MR DONAGHUE:   Without having seen it, but perhaps because they have advanced grounds like grounds 1 to 4 that I showed you before – alleging legal errors that you can see from the open reasons, so they might have formed that judgment – then the Director‑General says, hold on, I want to put all of this material in.  The applicant might say, well, I object to that in that scenario.  Then we are in this debate.

EDELMAN J:   The circumstance where the applicant chooses to tender the material knowing that the applicant will not get to see it, is that effectively a waiver of procedural fairness?

MR DONAGHUE:   Your Honour will recall, on the last occasion, I made some submissions on this topic, that procedural fairness usually does accommodate choices of that very kind.  So, that was part of my submission about why there was no practical unfairness under this mechanism, because we are only in that territory at all because the applicant has chosen the 44 path rather than the judicial review path.

If the applicant thinks, for example:  I cannot conceive of any way there could be a persuasive security case to be made against them, they could commence a judicial review proceeding, seek a notice to require the production of the relevant material and fight the PII claim.  If the Commonwealth loses the PII claim, then all of the material will be available to the applicant in the judicial review proceeding and everything can be looked at.  So, you only have this imbalance, really, in a case where there is a security justification for keeping the material out of the hands of the applicant who has had the merits review proceeding that Justice Steward mentioned and can get judicial review, but not on the complete record, because the public interest in procedural fairness is not the only relevant public interest.

Another relevant public interest is preventing damage to national security, and that might be a very serious public interest in some of these matters.  You can image a case where an Australian source embedded in a foreign government has provided information that is relied upon to make an adverse security assessment.  It might jeopardise the life of that person and the flow of the significant information they are giving to the Australian community to disclose it to the applicant who might in fact be a person who is a source of the foreign government.

So, that competing public interest is a very real one and we do not shy away from the fact that there are cases where that public interest is more important than procedural fairness in the judicial review proceeding; it outweighs it.  That is the judgment that Parliament made in enacting 46(2).  Can I complete the references to Jago by asking your Honours to go to Justice Gaudron’s reasons at page 77 where, at the top of the page, her Honour says, from the first line:

The limited scope of the power to grant a permanent stay necessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied.

Then, in the last full paragraph on the same page:

Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused.

BEECH‑JONES J:   Sorry, what page point?  I missed that.

MR DONAGHUE:   That was 77, your Honour.

BEECH‑JONES J:   Thank you.

MR DONAGHUE:   First at the top and then at about point 7.  There are, as our friends pointed out in their written submissions, quite a number of intermediate appellate court authorities that they cite in paragraph 25 of their outline that have recognised the existence of a discretionary power separate and additional to what I, if I may, call the Lee discretion, the Bunning v Cross discretion and the Christie discretion – or sections 90, 137 and 138 of the Evidence Act – an additional discretionary power to exclude admissible evidence in order to ensure that – I think they are all criminal cases – that an accused receives a fair trial.

Your Honours in another case my friends have relied on, Police v Dunstall (2015) 256 CLR 403 – I will not take your Honours to it – cited those cases, those intermediate appellate court cases, but did not need to decide whether or not that discretion existed, particularly in circumstances where both of the parties were joined in contending that the discretion does exist. So, that case, like this case, was a case in which the parties joined in saying that the power exists. Justice Nettle wrote separately in Police v Dunstall, and at paragraph 59 his Honour said:

There should be no doubt that there is such a discretion.

So, his Honour was confident.  The rest of the Court left the point open, but there are the intermediate cases.

BEECH-JONES J:   Mr Solicitor, have any of them held that there is a power, firstly, to exclude such evidence, post‑Evidence Act, outside the express powers given in the Evidence Act?

MR DONAGHUE:   Yes, your Honour.  So in Haddara, for example, which was in the Victorian Court of Appeal, which is one of the cases that is cited in Dunstall and by our friends, Justices Redlich and Weinberg in a joint judgment expressly held that there was such a power, at paragraphs 16 and 50, and that it survived the Evidence Act, at paragraph 12.

BEECH-JONES J:   Have any ever held it applicable in a circumstance where it is evidence adduced by the responding party?

MR DONAGHUE:   I do not know the answer to that question, your Honour.  I have to accept that we have not found a case that is closely analogous to the situation that your Honours are now considering, but that is because situations in which, in a court, the court can rely upon evidence that is not available to one of the parties are very unusual.  So, it is perhaps not surprising that there are no directly analogous cases.

BEECH-JONES J:   How about a case where something done by the defendant renders the plaintiff’s case an abuse of process?

MR DONAGHUE:   Again, your Honour, I cannot assist your Honour with an example precisely to that effect.  I would note, though, that in Police v Dunstall, in discussing this discretion – or whether this discretion exists – the Court, in the joint judgment of five members of the Court in paragraph 31, pointed out that Cross on Evidence accepts that there is such a residual discretion and then points out that it is hard to think of practical cases where it would be enlivened, where one of the other discretions was not.  In particular, the Christie discretion.  But then says: 

Two examples are suggested as possibly engaging this residual discretion.  The first example is where the weight and credibility of evidence cannot be effectively tested.

That seems to contemplate that something a bit like the situation that arises under 46 might be an occasion that would engage this kind of residual discretion.  It is supported in cases like Haddara that I have mentioned, by

reference to an analogy with the kind of principles discussed in Jago and the passages that I have already identified. 

It seems, as your Honour Justice Edelman put to my friend, like something short of the more extreme remedy of staying the whole proceedings, if it is possible to address the abuse of process by a step short of that.  If that power does exist, we submit it is sufficient to support what we identified in writing as mechanism 3 and, therefore, also mechanism 4.  But even if we are wrong about that, we submit that mechanisms 1, 2, 5 and 6 would be available, and so if you reach the alternative submission, the alternative construction, a combination of those powers of those mechanisms is, in our submission, sufficient to support the validity of section 46(2) on the mechanical construction.

Unless it would assist your Honours for me to do so, I do not propose, orally, to develop 135 because we do not submit, as I said in answer to Justice Edelman earlier, that you need to go to 135 if the power to prevent an abuse of process supports the exclusion of evidence in the way that I have just described.  We accept that 135(a) by itself does not perfectly map onto the constitutional principle.

We have not contended otherwise, but we submit that the fact that it does not map perfectly does not mean that it is irrelevant, because the question is whether all of the mechanisms available together are sufficient to ensure that section 46(2) does not operate to an extent greater than it is reasonably necessary to protect the legitimate competing public interest.  So, 135(a) is one tool in the toolkit that might sometimes assist, whether or not it perfectly maps onto the constitutional principle.

We rely, as I said a moment ago, on the combination of those mechanisms to answer the challenge, if your Honours are against our primary two arguments.  Fundamentally, our submission is that, because we contend that your Honours should accept that even on the certiorari construction these provisions are valid because they do not cause practical unfairness, your Honours do not need to reach the resolution of the power to exclude evidence questions and the other matters that we have been discussing in the hearing this morning.

Unless your Honours have any further questions, those are our submissions.

GAGELER CJ:   Thank you.  Mr Lenehan.

MR LENEHAN:   Your Honours, just a few reply points. As to whether the section 15A question arose in SDCV, can I just give your Honours the reference to the joint reasons of 96 to 97 of SDCV, where it is clear, we say, that the argument put went a little bit further than whether subsections (1) and (2) were severable.  Your Honours will see there that it is recorded that there was an alternative argument to the effect that 46(2):

may be only partially invalid . . . proceeded on the basis that s 15A of the Acts Interpretation Act 1901 (Cth) requires s 46(2) to be read down to comply with the constitutional limitation.

And then various things followed from that.  So, it is true that the precise issue that now arises was not squarely in issue in SDCV, but it went a little broader than, I think, our learned friend suggested and at least went close to what your Honours are confronting here, we say.

In terms of the question, assuming that we are wrong in our construction, and then who tenders, can I – in addition to what I have said about the model litigant obligations and the obligations that apply to a party effectively making it an application in ex parte circumstances – say this point.  Section 48 of the Evidence Act, on our reading, assumes that a party who is seeking to tender material or have that material in their custody or control – and your Honours see that from the difference between 48(1) of the Evidence Act.

So, there are various ways in which a party can adduce evidence of the contents of a document, and it is true that it goes beyond the common law because it allows, now, a document that purports to be a copy in certain circumstances, but then see subsection (4), where the idea is that there may be other ways that:

A party may adduce evidence of the contests of a document . . . that is not available to the party –

And then certain provisions are made in (a) and (b) for that alternative route.  The key thing there is what does “unavailability” mean, and your Honours find that in the dictionary, which in the supplementary joint book is at page 186.  Amongst other things, “unavailability”, see subsection (e), is where the document or thing:

is not in the possession or under the control of the party –

So, in addition to the matters that I have advanced so far, can we say that the Evidence Act itself assumes – contrary to the current situation – that a person in the position of my client actually has either custody or control of the material, and we do not.

I do not wish to say anything about the submissions that the learned Solicitor‑General made on the residual discretion.  Your Honours have

heard that we are in, I think, furious agreement with that aspect of our friends’ submissions.  Therefore, unless your Honours have any further questions, that is what we would wish to say in reply.

GAGELER CJ:   Thank you.  The Court will reserve its decision in this matter and will adjourn until 10.00 am tomorrow. 

AT 11.52 AM THE MATTER WAS ADJOURNED