MJZP v Director-General of Security & Anor

[2024] HCATrans 93

[2024] HCATrans 093

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 FRIDAY, 13 DECEMBER 2024, AT 9.59 AM

(Continued from 12/12/24)

Copyright in the High Court of Australia

GAGELER CJ:   Mr Solicitor, before you resume your argument from where you left off yesterday, there are a few questions that I would like to ask.  You may need to take them on notice.  They arise primarily out of your embracing of paragraph 302 of the judgment in SDCV.  They raise some constructional questions and procedural questions and, perhaps, general law, I am not sure.  The easy question, to start with, is would it be possible for an applicant to commence two proceedings in the Federal Court, one under section 39B of the Judiciary Act, the other under section 44 of the AAT Act, and then simply to have those two proceedings heard concurrently by the one judge?

The next series of questions arise in this way.  As I understand the construction of section 46 for which you now contend, you have an appeal that is instituted under section 44, you have the transmission of the T documents by the tribunal to the court under section 46(1).  Those documents are in the custody of the court but they are not before the court on the appeal unless tendered in evidence, their tender is a matter of choice by the parties.

As I understand your case, the applicant can chance his or its arm and tender the whole or part of the documents blind – that is a choice for it – or the respondent can seek to tender the whole or some part of the T documents, and, faced with that tender, as I understand it, the court can reject the tender of the documents or make the receipt of the documents on the tender conditional on the documents being provided to counsel or other legal representatives of the applicant.  I understand you to embrace that view.

So, the question is:  on what basis would the tender be rejected?  It was put to you that section 135 of the Evidence Act may be a basis.  That would involve weighing the probative value of the document in issue against the prejudice to the applicant, the prejudice being the inability of the applicant to see it, test it or make submissions about it.  What is not clear to me is whether the ability to reject or make the tender conditional goes so far as to say that the court has an inherent power to reject admissible evidence if that is necessary to safeguard the fairness of its process.

That, perhaps is implicit in what you were saying, but you may have another basis upon which you would be saying that the court has this ability.  As you know, at common law, it seemed to be a debatable question whether such a power exists, but perhaps you are embracing it, perhaps you are embracing it in this particular context; I do not know.  They are, essentially, the questions.

MR DONAGHUE:   Thank you, your Honour.

GORDON J:   There may be some others.

GAGELER CJ:   They are my questions – there might be some others.

MR DONAGHUE:   Taking them in the order in which your Honour the Chief Justice puts to me, the proposition that concurrent proceedings might be commenced and heard concurrently is one that, in my submission, would create considerable procedural confusion as to what precise rules were applying in that procedure, because you, in the 39B proceeding, would, if it were really being run concurrently, you would have to do a public interest immunity process in relation to the material, and if that public interest immunity claim was upheld then the material could not be received by the court, but then, in the parallel proceeding, there would be, by reason of the 46 procedure, a way in which it could be received by the court, so the court would appear to have inconsistent obligations.  So, the way we have conceived this is that you have a choice between the procedures, but because the procedures are different and there is a different set of forensic benefits and disadvantages in the two kinds of procedure, you have to choose.

GAGELER CJ:   You elect.

MR DONAGHUE:   You elect.

GAGELER CJ:   If you do one, you cannot do the other.

MR DONAGHUE:   Subject to this, that, as I understand Justice Steward’s reasons in the part of the judgment that you are referring to, in the event that the court – foreshadowing the later questions – does decide to reject the tender of the 46 documents, it can then say, I am not taking in the documents via that procedure, but – my language, rather than your Honours’ – one can revert, in effect, to the usual procedures of the court, so that if the Court says, well, I am not accepting the 46 material, but if a coercive process is then used to try to obtain these documents, an ordinary public interest immunity process can play out.

Now, that, in reality – and I perhaps skated over this too quickly yesterday – but normally, in our submission, the reason that a party might elect to the 44‑46 procedure is because they want the material to go into evidence.  That is the benefit that they get from it.  So, ordinarily, one would not expect the applicant to be enthusiastic about the idea that the material’s admission might be rejected, because it has then lost the forensic benefit that it sought.

But where it might bite, as we see the process playing out, is where the court has concerns, looking at the 46 material, about whether it really is prejudicial to security or whether it is very prejudicial to security, because in that kind of situation, if the Minister has over‑certified, the court might say to the Minister:  you cannot be confident you are going to win a public interest immunity process, I am going to say to you I am not accepting the tender of 46 documents, you can give this material conditionally to the counsel for the party or to the party under 46 if you want me to accept its tender, or I am going to reject its tender and throw you on the tender mercies of the PII procedure, in which case the material will either be held to be subject to PII and not received by the court, or the PII claim will be rejected and everyone will get it.

So, it creates a possibility of something of a merged procedure of the kind that your Honour puts to me, all in the section 44 and 46 case.  That is what I embraced yesterday, arising out of Justice Steward’s analysis.  As to your Honour’s second question about transmission, the way that I have presently been conceding this procedure is reflective of what I understand to be the Federal Court’s practice in matters of this kind, which is that the T documents are transmitted.  Some judges regard them as in the court book and then constituting the record before, and they do not go through an admission process, but some judges, as Justice Steward mentioned yesterday, do require tender of the T documents.

So, I have not been perceiving – and I may need to take instructions about this – section 46 as mandating that the court do one or other of those things.  It is enough, I think, for my submission, to accept that it is open to a judge in the Federal Court to adopt the procedure of requiring the tender of the material so that it is all in evidence, in a formal sense.  That, I apprehend, is enough, because if the judge can say, I require you to tender the material, that gives the judge the option of then proceeding via the mechanism that I have just addressed your Honours on.

GLEESON J:   Mr Donaghue, is the practice – the former that you described – does that not involve treating the T documents as exhibit A in the proceedings?

MR DONAGHUE:   I think effectively, yes, your Honour.  I am not sure that it is always actually, in reality, treated in that way, it is just treated, as I think Justice Edelman put to me yesterday, as the record upon which the appeal is being conducted as being before the court, but I think, analytically, one could say, well, it is you are treating it all as in evidence.  And as I say, usually, in the large majority of cases, in my submission, there will not be any question that that is what the applicant wants.

EDELMAN J:   If the statutory presupposition is that it is the equivalent of certiorari to remove, there is no need to tender, it just becomes part of the appellate record or part of the record for the purposes of review.  But if that presupposition or assumption were to make a difference to a constitutional adjudication, and if it were open to say, on the language of the statute and the background of the statute, you could apply 15A so that to require a tender, then one might open up all of these alternative possibilities.

MR DONAGHUE:   I accept that, your Honours, and, really, that is where that line of thought underpins part of the submissions that I made yesterday because, obviously, we are here on a constitutional validity challenge and the constructional questions that have been debated are relevant only insofar as they inform that that kind of analysis.  If your Honours, as Justice Steward did in SDCV, accepted that you could read the provisions as requiring tender and then allowing control of the tender in the way described and that makes it valid, in my submission, you definitely should read it in that way.

As to the basis upon which the material might be rejected, I accepted in answer to Justice Beech‑Jones yesterday that section 135 of the Evidence Act would be an available mechanism, and I presently see no reason to withdraw that answer.  It may be that ‑ ‑ ‑

BEECH-JONES J:   That may involve an assumption about prejudice.  Prejudice is usually associated with danger of misuse, rather than mere the fact – for, say, you cannot cross‑examine – but I hope I have not led you into error.

MR DONAGHUE:   Usually, we are not, in judicial proceedings, concerned with material that one side has not seen at all.

BEECH-JONES J:   Yes.

MR DONAGHUE:   So, it is just an issue that does not normally arise but, in my submission, it is not hard to put it within that framework.  So, in my submission, 135 would be enough ‑ ‑ ‑

GAGELER CJ:   Can I just raise another question about 135.

MR DONAGHUE:   Yes.

GAGELER CJ:   There, you are comparing probative value with prejudice to a party.  It is not apparent to me where high probative value but low national security value material fits into the analysis required by 135.

MR DONAGHUE:   High probative value but low national security value.

GAGELER CJ:   The sort of thing that would not be protected on a PII claim.

MR DONAGHUE:   Yes.

GORDON J:   And by reference – and also a second question about that is that that is a conclusion drawn or a decision made absent any input from the person the subject of the assessment, because they have not seen the material and can make no submissions about either the elements that go into that balancing exercise or the exercise itself.

MR DONAGHUE:   That, your Honour, in my respectful submission, might be the answer, because that is to focus on the prejudice side of the equation and the difficulty in assessing the probative side without knowing – these are some of the points your Honour the Chief Justice made in SDCV, how do you really know how probative the material is in some cases, if you cannot hear from a person who is affected by it?  So, it might be that the court would be able to conclude, in most cases, that the inability to answer, particularly if it is – we are in a situation where the material is possibly of low national security value, it cannot be answered by the party, its probative value is high – that is an interesting point, in the context of the ‑ ‑ ‑ 

GORDON J:   Sorry to interrupt, Mr Solicitor, but it is an interesting point because, at the moment, counsel for the person the subject of the assessment does not know that the information that is being put before the judge is of high probative value for them, as against the other exercise, that it is of low national security value.  So, that is the difficulty.  It is both elements, where there is not the ability to look at it and make submissions about it.

EDELMAN J:   It is an anterior unfairness.  It is the unfairness not in the proceedings themselves, but it is an unfairness in the application concerning section 135.

MR DONAGHUE:   Yes, your Honours.  I do not think I can disagree with any of what your Honours have said to me.

BEECH‑JONES J:   Section 136 does not involve an assessment of probative value.  So, 136 is often used where evidence that is admitted for a non‑hearsay purpose, but could be highly probative if it was admitted for all purposes, is sometimes restricted.  It may depend upon why the respondent says it is all relevant.

MR DONAGHUE:   Indeed.  That was what I was about to say, your Honour, about the interesting question of probative value, is that we are here talking about a particular kind of proceedings:  an appeal on a question of law from a decision below.  Usually, the material will be – probative value in that context is going to be, presumably, probative of error in the decision below.  That would, I think, be the proper way to read it, in that context.  So, if one has material that the court thinks is probative of error in the decision below, it is then trying to form an assessment about whether it can – no, I withdraw that.  I apologise, your Honours.

The question, of course, is one of unfair prejudice in both section 135 and 136, and in our submission, one could bring into that assessment of fairness matters such as the strength of the competing interests and the national security interests.  But, I think, your Honours, that I can ultimately accept what I think your Honour the Chief Justice was suggesting may be implicit in my submissions, that, without abandoning the submission that 135 and/or 136 may well give you a statutory mechanism, if you ultimately got to a point where the court thought, well, I do not have an Evidence Act power to exclude the evidence, but to admit this evidence would be to require the court to adopt an unfair procedure, I find it difficult to see that a Chapter III court would be, nevertheless, required to accept evidence in those circumstances.

GAGELER CJ:   So, this is the functional equivalent of a stay, but just applied in an evidentiary context.

MR DONAGHUE:   Yes.  And one would think it would follow from that, that if, in effect, what has happened is the section 44‑46 appeal has been stayed, I would accept that it would be possible to start again under 39B, so that there would be no – ordinary, as your Honour understands, the difference between the national security as a sword kind of case – Pompano – versus national security as a shield – Gypsy Jokers – is that the stay helps you in the sword case because your interests cannot be affected by a court order made on the basis of material that you have not seen.  A stay, in and of itself, would not be that helpful to a section 44 applicant, but if they can still proceed under 39B ‑ ‑ ‑ 

GAGELER CJ:   That is right, but it is the same source in the inherent power of the court.

MR DONAGHUE:   Yes, yes.

GAGELER CJ:   But it plays out differently, because the stay stops the applicant bringing the proceeding or continuing with the proceeding.  Here, you have a rejection of evidence that the respondent seeks to adduce in response to the applicant’s case.  So, the case goes on, does it not ‑ ‑ ‑

GORDON J:   It does.

GAGELER CJ:   ‑ ‑ ‑ without the evidence.

MR DONAGHUE:   Well, your Honour puts to me that it is the respondent tendering it, but that may often may not be the case.

GAGELER CJ:   No.  Well, assume that it is the case – I am looking at the paragraph 302 scenario.

MR DONAGHUE:   So, your Honour is putting to me that the respondent seeks to tender some classified material.

GAGELER CJ:   Yes.

MR DONAGHUE:   The court says no, I reject it; and the case goes on, meaning the case is proceeding on less than the full evidentiary record that was before the tribunal, I think, on that hypothesis.

GAGELER CJ:   Correct.

MR DONAGHUE:   Perhaps, your Honour, but that is not going to help the applicant to a great extent, because they will be unable to discharge their burden of proof in relation to some grounds, like ground 5.

GORDON J:   Why not?  If there is no skerrick of evidence available, because nothing has been tendered, then the question which will arise is whether or not that decision was reasonable in the circumstances, and that is the scenario that has been put to you.

MR DONAGHUE:   Your Honour, one does not draw an adverse inference – a Jones v Dunkel‑type inference – against the Director‑General for failing to tender national security classified material, because there is a clear explanation for that failure.  So, in the scenario as I understand that your Honour is putting to me:  the material is classified; the Court is saying, I will not admit it unless you disclose it to counsel; and the Director‑General might say no, because, for example, the risk to an informer or the risk to a source is too great.

In that scenario, the rejection of the tender does not cast doubt on the national security justification, so one cannot infer that there is nothing there, it is just that there is a hole in the evidentiary record.  In my submission, the better solution is to say, if 44‑46 is not going to be allowed to – is not going to produce a satisfactory outcome where the condition is accepted, it would be better, in effect, to stop that proceeding and fall back on public interest immunity.

GAGELER CJ:   What is the mechanism for that to occur?  Would the Director‑General then be seeking a stay of the proceeding on the basis that the Director‑General cannot present the case that he or she wants to in that proceeding?

MR DONAGHUE:   As I understand what Justice Steward was saying in 304 through to about 307, it was that the court would say, well, I am not going to allow you to proceed on the section 44‑46 material, but the proceeding is still on foot, and the court could use its ordinary processes to say, well, I am now going to issue a subpoena for the same material, and PII can play out in the resolution of the production of documents under that subpoena, for example.  That would be one possibility.

The other possibility would be to stay the section 44 appeal and for the applicant to commence a new proceeding, but I understand that Justice Steward’s solution did not involve a new proceeding, it just involved, in effect, drawing a line under the section 46 procedure and reverting to usual procedure, to normal procedures.  I hope I am not verballing his Honour.

EDELMAN J:   There would still remain the problem, though, of the gap, would there not?  Even if, for example, the court were to stay the proceeding of its own motion – because presumably the applicant would not apply for a stay, if it is the application, and the respondent may not wish to apply for a stay because no Jones v Dunkel inference would be drawn against it – if the court unilaterally were to order a stay because of its concern about the protection of the integrity of its processes, there would still be the problem that, in circumstances where the appeal raised an error that was not a jurisdictional error, the applicant would lose any ability to proceed.

MR DONAGHUE:   To the extent that there actually are any errors of law that are not jurisdictional errors.

GLEESON J:   It would be helpful if you could identify an example at some point.

MR DONAGHUE:   I do not think I can, your Honour.  There are, I think, judgments in this Court that have suggested that it is very hard to do so, I cannot – we have given this some thought – I cannot think of a credible example of such a thing.  As to whether there would be still be a gap, to the extent that there is ‑ ‑ ‑

EDELMAN J:   The examples would be of the errors of law on the face of the record that were non‑jurisdictional, would it not?

MR DONAGHUE:   But there are almost no errors of law that are non‑jurisdictional.

EDELMAN J:   I think examples of that were considered in Probuild and Maxcon.

MR DONAGHUE:   My recollection was, in Probuild, your Honour the Chief Justice said there is almost no difference anymore, I hope I am remembering that correctly.

EDELMAN J:   The Chief Justice in Probuild abolished the distinction, but I am not sure the rest of the Court did.

MR DONAGHUE:   If it would assist your Honours, I can take that on notice and try to identify some examples, but our submission is that – and it is obviously not a problem raised in this appeal, because Mr Lenehan has accepted that this distinction is not relevant to his case.  In my submission, part of what your Honours are putting to me, and that really goes to what we would apprehend would be a reasonably unusual and extreme situation, and I say that for this reason, because where an applicant is content not to proceed, or to the possibility that they might proceed to establish their grounds of review without the whole record that was before the tribunal, they should use section 39B.  That would what be a well‑advised applicant would do, and then require public interest immunity to be fought out in the ordinary way and then they could try to establish their grounds of error.

Usually, in our submission, the advantage to be gained by the 44‑46 procedure is an advantage which would mean that the applicant would not wish the court to exclude evidence in the way that I have been discussing with your Honours this morning, and so we are concerned, really, only with the situation where the court wants to exclude the evidence or thinks that doing so is, presumably, important to the fairness of the proceeding.  And that seems to be, with respect, really only likely to be the case if the court is seeking to exert pressure upon the Director‑General to justify the certificate in relation to particular materials.

The other thing I should perhaps add is to repeat a submission that we made in SDCV that was, I think, not considered by any member of the majority, rejected by your Honour Justice Gordon, and accepted by your Honour Justice Edelman as a theoretical possibility, which was that, in our submission, as in SZMTA, where one has a certificate like the ministerial certificate under 39B, which has direct implications for the obligation of the court itself under section 46, if the court – that the court is entitled to look at the validity of that certificate of its own motion and, in doing so, is entitled, in our submission, to require the Director‑General to make submissions on that topic.

So, another way of tackling the problem of the court thinking the certificate does not justify the proceeding that is being brought is to say, well, I need you to satisfy me that this certificate satisfies the preconditions in 39B(2) of the Act.  And, just as the Court accepted in SZMTA that there, the secretarial certificates that were affecting the material that was to be passed under 438 of the Migration Act was a matter where the tribunal could form its own view but ultimately only a court could decide whether or not those preconditions were met – I am referring, here, to paragraph 18 of SZMTA – in our submission, there is nothing to stop the same thing happening here.

So, none of these submissions are to say that 46(2), where it validly applies, where there is a valid certificate, imposes an inflexible obligation on the court, but there has to be a valid certificate and, even where there is a valid certificate, there are the things that can be done, as Justice Steward identified, that do not involve disclosure of the certificated matter but that may still reduce unfairness.  I think, your Honour, that is all I have.

Can I say, we have looked overnight at the Hospital Contribution Fund Case that your Honour the Chief Justice mentioned yesterday.  As your Honour would recall, it is that discussion that is the source of the four John factors, and it expressly referred to John as the source of those factors.  The discussion is interesting in giving an explanation of what at least Chief Justice Gibbs had in mind as to what those factors mean – the “stream of authority” idea, the inconvenience idea – but in the course of addressing the four John factors I have said what I would seek to say, so unless your Honour has specific questions arising out of that discussion, I do not seek to add to it.

The other thing I would seek to add, really, by way of completion of the submissions I made yesterday about the practical injustice part of the case, before moving to the alternative argument, is just to remind your Honours of the decision of the United Kingdom Supreme Court in Haralambous [2018] AC 236, I will not take you to it. I mention it for this reason, that Haralambous contains, in my submission, an informative discussion of the problem of judicial review in a context where the decisions under review are decisions that are entitled to be made on the basis of material that is withheld by a person affected – there, search warrants in particular.

The court conducts what, in my submission, is an illuminating discussion of the problem that arises if the record before the court on judicial review is not the same as the record that was validly authorised to contain material below that was not shown to a person who was affected by it.  At the end of that discussion, Lord Mance on behalf of the court concludes at paragraph 59 that:

the only sensible conclusion –

with respect to judicial review of decisions where:

Parliament has authorised the lower court or tribunal –

to adopt what, in the United Kingdom, is called a “closed material procedure”, is that the court can see the same material as the primary decision‑maker could see.  So, the problem that now confronts your Honours is obviously not unique to Australia.  There has been a lot of law about this in the United Kingdom, and, particularly in the context of judicial review, where the court landed is that to have effective judicial review, you need to be able to do the very thing that section 46(2) entitles you to do.  In our submission, if that is right, it points rather strongly against the conclusion that that regime is a source of practical unfairness.

Can I turn to the alternative submission.  This is an argument that arises, notwithstanding the submissions I made yesterday about the general significance of choices to procedural fairness and the specific significance of the choice in this case between the 46 procedure and the 39B procedure, if, despite those things, your Honours conclude that 46(2) does cause practical injustice.  If your Honours form that view, then, in our submission, the question is:  is the provision nevertheless justified because it is reasonably necessary for the achievement of a legitimate purpose – reasonably necessary, meaning, in this context reasonably appropriate and adapted.

That, I think, is consistent with your Honour Justice Edelman’s analytical framework in SDCV at 218 and 238 in particular, and it is an analysis provisionally favoured by your Honour the Chief Justice at 138, although you did not decide the point because it had not been argued.  The plaintiffs here accept – or the plaintiff accepts that the purpose pursued by 46(2), protecting, preventing the disclosure of information that would prejudice the security of Australia, is a legitimate and compelling purpose.  In those circumstances, we urge your Honours not to decide whether the “compelling” part of that formulation is essential.

GORDON J:   Could you explain what that means?

MR DONAGHUE:   We accept that there must be a legitimate purpose in order to justify a departure from – to justify practical unfairness.  Whether that legitimate purpose also has to be compelling will depend very much upon what “compelling” means, whether all of the existing scenarios in which a court can act on material not shown – the trade secrets cases, the liquidator examination cases, all of those – whether those are compelling purposes or not might be important in a future case.  Because it is not important in this case, because it is accepted that national security is a compelling purpose, we submit that your Honours should not entrench that requirement.

GORDON J:   Is that a submission which just says:  do not define “compelling”?

MR DONAGHUE:   It is either do not decide finally that “compelling” is required, or do not confine its outer boundaries.  But if one does not know what it means, in my submission, it does not add, and it is not in issue in this case, but at least what your Honour Justice Gordon puts to me – in my submission, you do not need to decide if the purpose needs to be compelling or not, because it is not in contest.

The argument that I apprehend that I am now meeting is really an argument that because section 46(2) creates an inflexible rule not permitting variation depending on the relevance of the information to the issue or the degree of prejudice to national security that would from disclosure, it is for that reason not reasonably appropriate and adapted to the identified purpose.  That, certainly, is what your Honour the Chief Justice held in SDCV and your Honour Justice Gordon held in SDCV and, ultimately, I think your Honour Justice Edelman also held, though finding the matter more finely balanced.

Our submission in response is therefore directed to establishing that if what I can call the “standardised rule”, whether it is open to Parliament in the particular context that is now before the Court to enact a standardised rule responding to the risk of prejudice to national security, accepting that the standardised rule to which I am referring does not prevent the constructional issues that were discussed yesterday.

GAGELER CJ:   So, it is no longer standardised, is it?

MR DONAGHUE:   Well, it is standardised when it applies.  When it applies, it does not allow disclosure of the information, but what it applies to prevent is perhaps narrower than at first appears.

GAGELER CJ:   Or more flexible.

MR DONAGHUE:   More flexible in that it does not exclude some ways of the court responding to – ways of responding to the problem that do not involve disclosure of the certificated matter, though, so it is standardised in that sense, but not as restrictive as would otherwise be the case.  What it does not allow is balancing on a case by case basis by the court.  And really, I think, ultimately, many of our friends’ submissions come down to saying, as we understand them, that there has to be a safety valve of case by case balancing by the court, or the rule will go too far and, in our submission, that is not right.

The reason we submit that it is not right is that, as your Honours have acknowledged, now, on a number of occasions, where the balance lies between competing public interests is not exclusively a matter for the courts.  Can I make that submission efficiently by reference to SDCV, if your Honours could go back to that, volume 7, tab 49, in the plurality reasons.

EDELMAN J:   But this is not competing public interest.  This is a competition between a public interest and a private interest.

MR DONAGHUE:   The public interest being the interests of the litigant?

EDELMAN J:   Yes.

MR DONAGHUE:   I accept that is one way of characterising it, but in the context of a challenge to the validity of the provision, I put it in the way that I did because the challenge is said to be advanced on the basis that 46(2) requires the court to act in a way that is inconsistent with this essential character of a court.  So, there is a public interest dimension to it, the public interest in fair judicial procedures and courts maintaining their essential characteristics.

But if your Honour views it in the way that you did, I do not think it changes my submission, because the balance between those interests is not exclusively a judicial one.  In particular, the Parliament may enact laws that strike that balance, and the fact that Parliament strikes the balance differently to the way that the court might have done so is not itself a reason for invalidity.

Your Honours said that very thing in Graham, which I will come to in a moment – or a passage in Graham quoted by the plurality.  If your Honours have SDCV, your Honours can see on page 278, paragraph 85, under a heading:

Case‑by‑case decisions – by the court?

that the plurality rejected that there had to be such decisions made.  So, in paragraph 85:

The appellant’s argument –

which was an argument that 46(2) does not allow for case‑by‑case balancing and was therefore invalid:

The appellant’s argument cannot be accepted.  No decision of this Court supports a constitutional imperative that the balance of competing public interests in litigation must always be left to be struck on a case‑by‑case basis by a court.

There is discussion of Nicholas.  At 86:

Nor does Ch III give rise to a constitutional impediment to the Parliament deciding that s 46(2) of the AAT Act was necessary or appropriate to maintain the balance of the competing public interests struck by the provisions in the ASIO Act limiting the appellant’s rights to disclosure of security‑sensitive information.

So, that is picking up your Honour Justice Steward’s point, and your Honour said something very similar in 311 of your Honour’s judgment.  Then, in quoting Graham at paragraph 94 of SDCV, recording that the Court in Graham accepted:

a submission by the parties defending the validity of the legislation that “as a matter of policy, it may be accepted that admissible evidence should be withheld only if and to the extent that the public interest requires it, but that there is no constitutional principle which requires the courts to be the arbiter of that question”.

And then accepting a submission that:

where the balance may lie in the public interest has never been said to be the exclusive preserve of the courts, nor has it ever been said that legislation may not affect that balance”.

Clearly here, in our submission, section 46(2) is a provision of that kind, and in our submission, it cannot be impugned just on the basis that it does not allow judicial balancing, case by case, that it enacts the standardised rule in the more limited sense that I have addressed.  We submit that there are five reasons, which I can address quite briefly, as to why your Honours should accept that 46(2) and that the balance that Parliament has thereby struck is reasonably necessary to achieve the legitimate and, if necessary, compelling purpose that is accepted.

The first reason is that, as it applies to the review of adverse security assessments by ASIO, the matter before the Court, it is applying to a particular category of case where the potential prejudice to national security is particularly obvious and, indeed, has been accepted by the Federal Court as constituting a class claim for public interest immunity purposes, because we are talking of the disclosure of information to the very people who are most likely to pose a risk to national security – to people who ASIO has assessed warrant the receipt of an adverse security assessment.  So, we are speaking of an acute category where the public interest in non‑disclosure is apparent.  In our submission, for that reason, a standardised rule in that context is, if it is ever to be justified, most likely to be justified there.  We submit that that is ‑ ‑ ‑ 

BEECH-JONES J:   So, is the contrast with, say, Alister v The Queen where someone is on trial and it is the security assessment of a Crown witness?

MR DONAGHUE:   Someone else, yes, that is right.  Now, we defended, in writing, the standardised rule in part by reference to the capacity that that gives to ASIO in particular to give some assurances to the sources of its information about the non‑disclosure of those sources, and our friends say in response that that, well, you cannot give assurances of that kind because you accept that there is a 39B procedure where you would need to make public interest immunity claims and that already stops you giving any assurances as to confidentiality.

That is true up to a point, but only up to a point, because in the context of public interest immunity claims in civil proceedings about the non‑disclosure of adverse security information, as the cases collected by Justice Tracey in the passage that I took your Honours to yesterday show, the authorities say that almost never, only in an extraordinary case, will the balance come down in favour of disclosure of information of that kind.

GORDON J:   Can I just raise one point about that.  That is right, I think it has to be read in context.  I am going to move away from security and just deal with general public interest immunity claims at the moment, but we all know that there is inevitably a claim made and then there is a process of – “filleting” is the wrong word ‑ ‑ ‑

MR DONAGHUE:   I understand what your Honour means, yes.

GORDON J:   I do not like these words in these cases, but you can choose whatever words you want to do it – giving rise to, ultimately, a narrowing of either a category or a class or a descriptor of conduct.  So, when one has these decisions in these cases dealing with PII, most of them, at least from my experience, have involved that process.  It may not alter your submission, but I think where it says “almost always” or “always”, it has to be read in the context of the process that, at least in my experience, inevitably preceded it, either – and not in court.

MR DONAGHUE:   And not in court.  That is what I was about to add.  It is certainly true of the – in my submission and in my experience, it is true of the claim as resolved by the court that there is almost never disclosure of national security information.  I am not aware of a case where there has been, in review of an adverse security assessment.  It is true that sometimes, too filleted or narrowed, the claims might be, but that is because it is recognised, under a process of, perhaps, the pressure of litigation or scrutiny, that sometimes claims are not formulated as precisely or tightly as they should have been originally.  But the point that I am really seeking to make is that there is a profound difference between that context, where, if the public interest immunity claim is upheld, pursuant to well‑settled rules, which mean that it usually will be over the material over which the claim is pressed, nobody gets to use the material.

What the position would under section 46, absent the standardised rule, is that the question would be, if the material is given to the court to use in a review and there is no 46(2) – there is no standardised rule against disclosure – the court is instead given a discretion as to whether fairness requires the material to be disclosed, what principle would the court adopt?  Would it be the usual PII rule, or would the fact that the court is now using information not known to one of the parties, generating the very procedural unfairness that brings us before the Court now, change the balance?

In my submission, your Honours can readily apprehend a situation where a trial judge in the Federal Court is saying, well, it is one thing, with public interest immunity, I am not acting on material that the other side does not know, but now that I am acting on material that the other side does not know, I think I need to do something to make sure that this procedure is fair to that person.  The approach that the court would take to disclosure in that circumstance – whether it disclosed to counsel, whether it disclosed to parties and counsel – how it would work is just unknown.

In our submission, what 46(2) is doing is Parliament is saying, in the particular context of this particular category of information, we will remove that uncertainty by legislating the rule, that is where the standardised rule kicks in.  And in our submission, it is important, for the reasons that we have given, to have that certainty for the security agencies.

GAGELER CJ:   I do not want to keep going back to this, I am finding it hard to reconcile that submission with your embracing of paragraph 302 and the possibility of the rejection of the evidence.

MR DONAGHUE:   That possibility does not mean that, for example, if ASIO gets information that is relevant to an adverse security assessment through sharing from one of its intelligence partners, for example, and that partner wants an assurance that it will not be disclosed – it is highly relevant to the security assessment – the fact that the Court might not receive it does not make it more likely to be disclosed, so it does not have an effect on the capacity to give the assurance that 46 underpins.

It does have ramifications for how the procedure plays out in terms of the effectiveness of the review.  But all I am addressing at the moment is the purpose of the standardised certainty, rather than the case by case balancing – case by case balancing which, in what I am trying to say, is the case by case balancing where the Court can use the material cannot be assumed to be the same as the case by case balancing in a public interest immunity context, that is my point, in a nutshell.

The other four reasons – that is the first of my five reasons.  Of the other four, the second reason I have already addressed, which is the capacity of the court itself of its own motion to review the certificate, which we submit bears on the assessment of whether this whole regime – the standardised rule – is reasonably necessary for the legitimate purpose.

The third reason really goes to the questions of tailoring.  So, your Honours will have noted, in section 46 of the Act, section 46(3).  We do not, of course, suggest that section 46(3) applies in this case – it does not.  But what section 46(3) shows is that in enacting this regime, Parliament has drawn a distinction between different kinds of public interest, so that – your Honours might recall, from section 39B(2) of the AAT Act – a certificate can be given on the basis of “prejudice” to:

security or the defence or international relations –

In (b), disclosure of Cabinet material; (c), “any other reason” that would give rise to a PII claim.  What section 46(3) then does is recognise the distinction that is between those categories.  So, there is a standardised rule for (a), prejudice to security and international relations documents.  There is not a standardised rule for the Cabinet material and the other PII material, where there is balancing permitted by the court.

So, in looking at this question of how Parliament has responded to the public interest in play, it is a nuanced regime.  It creates a rule for the national security information.  But, in our submission, even though subsection (3) does not apply in this case, your Honours are looking at a challenge that will, if successful, invalidate section 46.  In my submission, the tailoring should not be disregarded.

Fourth, and very briefly, in terms of necessity, this is a procedure that applies only to an appeal on a question of law under section 44.  So, of course – as is central to my argument – it does not apply to section 39B review under the Judiciary Act, but also, picking up on the point

your Honour Justice Beech‑Jones asked very early in this case:  does the kind of proceeding matter?  It does.  When you are looking at whether Parliament has enacted a reasonably necessary standardised rule, if this were saying you can conduct a criminal trial and convict someone based on information they have not seen, that would obviously be a far different case to the present.  Again, it is a tailoring kind of point:  it is a particular kind of procedure directed to a particular kind of decision.

Finally, for all of the reasons that have now been discussed at some length, involving gisting and the matters that your Honours have raised with me this morning, the standardised rule, while standardised within its area of operation, should not be understood to have a wider operation than it has.  We have, as your Honours understand, embraced various constructional matters that, if accepted, support the conclusion that the rule, properly construed, is reasonably necessary for the purpose that it pursues.

All that remains to be said is to record the agreement of the parties, consistently with the holding of the plurality and Justices Gageler, Gordon and Edelman in their separate reasons in SDCV that if section 46(2) is invalid, section 46 as a whole is invalid.  There is no contest between us about that, but that is obviously an important matter in terms of the practicalities.

Unless the Court has any further questions, those are our submissions.

GAGELER CJ:   Thank you.  The Solicitor‑General of Queensland.

MR DEL VILLAR:   Your Honours, I propose to deal with two broad issues, the first being whether SDCV forms part of a stream of authority with Gypsy Jokers and Pompano, a matter that has been dealt with to an extent by my learned friend the Solicitor‑General for the Commonwealth, and I simply want to make a few submissions to buttress those submissions.  The second is the application of the proportionality test on the assumption – and I stress, on the assumption – that the Court finds such a test is required, having regard to our primary submission being that it is not required and that the test is one of practical injustice.

Your Honour the Chief Justice yesterday pointed out that a case could be in a stream of authority without the detailed reasoning in the case compelling a particular result and that, your Honours, was said at transcript line 1047.  That proposition was accepted by counsel for the plaintiffs, and it is an important proposition, and the acceptance is important here.  In our submission, your Honours, SDCV is such a case.  It builds on the principles that had been elucidated in Pompano and Gypsy Jokers.

Now, can I deal at once with the suggestion in the plaintiff’s reply at paragraph 10 that leave should be sought to reopen Gypsy Jokers and Pompano to the extent that it is necessary because there is a proposition in those cases contrary to what they submit.  Counsel for the plaintiff did not elaborate on that argument, it is not elaborated in writing and, in my submission, for those reasons alone such leave should not be granted.

During the hearing, counsel for the plaintiffs sought to argue, in essence, that these cases were now outliers, but the very fact that they need or are seeking leave on the proposition that there is something in those cases that stands against them, in my submission, would suggest that if that circumstance is reached, if those cases cannot in fact be distinguished in the way that they have suggested, then leave must be refused, because there would be a stream of authority contrary to what they say.

Your Honours, can I simply add that in SDCV an attempt was made to reopen Gypsy Jokers.  That attempt was refused, with the Chief Justice observing in transcript – and we have provided a reference to this in our oral outline – that the case of Gypsy Jokers was “of long standing”.  It is even more of long standing now.

Can I now deal with the issue of Gypsy Jokers and just take your Honours back to it, because I will need to bring your Honours’ attention to a couple of passages.  Your Honours, Gypsy Jokers is found in volume 7 of the bundle, and it is tab 49.  I am sorry, your Honours, I think I have misled you, it is at tab ‑ ‑ ‑

GORDON J:   Tab 28.

MR DEL VILLAR:   Thank you, your Honour.  Your Honours will find the legislation in Gypsy Jokers is extracted at paragraph 151 of her Honour Justice Crennan’s judgment.  If I could invite your Honours to look at that briefly, your Honours will see, there, section 76, and it follows on from what is extracted in paragraph 150, which is section 72(2), so the Commissioner had the power to issue a fortification removal notice, but could only do so if he or she:

“. . . reasonably believes that the premises are —

(a)heavily fortified; and

(b)habitually used –

and so on.  Then there was a limited right of review provided by section 76.  That right of review, as one will notice on page 589 of the report, was basically restricted to the situation where: 

the Commissioner of Police could have reasonably had the belief required by section 72(2) –

and then the relevant provision that was challenged was section 76(2), which sets it out there and provides the:

information so identified is for the court’s use only and is not to be disclosed to any other person –

and so on.  Now, my learned friends have sought to distinguish Gypsy Jokers on several grounds, one of them was that it concerned State legislation.  That particular argument, your Honours, was rejected by all of the judges who considered it in SDCV, and can I give your Honours just the reference, paragraph 58 of the plurality judgment, your Honours will find in volume 7 at tab 49, and it is at page 2881 of the joint bundle of authorities.  It was not pressed, this particular argument, although contained in my learned friends’ written submissions at paragraph 25, and in the reply, at paragraph 9, it was not pressed and, in my submission, affords no basis for distinguishing the case at all.

The other bases on which my learned friends seek to distinguish Gypsy Jokers can likewise be put aside.  Two of those bases, which are referred to our in oral outline at paragraph 4, have been dealt with by my learned friend the Solicitor‑General for the Commonwealth.  I will simply give references to our written submissions – at paragraph 15 and 16 of our written submissions we deal with the attempt to distinguish Gypsy Jokers on the basis that procedural fairness was not, in fact, dealt with by the Court and that there was a balancing exercise required.

Can I deal, then, with what is in 4c of our oral outline, and that is the view that section 76(2) and the use of the words “for the court’s use only” imported a discretion that allowed the court to, effectively, reject the use of material that was unfair.  Now, in my submission, if in fact the construction urged by my learned friend the Solicitor‑General of the Commonwealth is correct, then there is no relevant distinction.  But if it is said that that, by itself, is a basis on which to distinguish Gypsy Jokers, in my relevant submission, that would not be the case either.  Can I ask your Honours to turn to paragraph 5 of the judgment.

GORDON J:   Is this SDCV or ‑ ‑ ‑ 

MR DEL VILLAR:   Gypsy Jokers, your Honour, paragraph 5 of the judgment of his Honour Chief Justice Gleeson.  Your Honour, there his Honour the Chief Justice identifies the problem with which section 76(2) and, in my submission, provisions such as section 46(2), are concerned.  His Honour points out that one has to “consider the alternative”, which is the way that public interest immunity would apply.  His Honour points out:

The consequence of success –

in a claim for public interest immunity is that the evidence is not available to be taken into account, and he points out that that would have the effect, in that relevant scheme, in which it may be “impossible” for the court to actually perform its review function.  In other words, the:

review may be bound to fail.

Now, if one accepts that, your Honour, then the notion that the court can, on this assumption about use, simply refuse to use the material, would have the effect that the review failed.  In my submission, that cannot be a basis upon which Gypsy Jokers can really be distinguished.  Can I deal next with Pompano, which your Honours will find in volume 3 of the authorities, tab 19.

BEECH-JONES J:   Mr Solicitor, what was the nature of the review?  At some point it was ‑ ‑ ‑

MR DEL VILLAR:   It was a review into whether or not it was reasonable.

BEECH-JONES J:   I see.

MR DEL VILLAR:   That is in section 76(2), your Honours.

BEECH-JONES J:   Yes.  So, it is similar but not completely the same as judicial review of the kind in 44(1)?

MR DEL VILLAR:   It is narrower.

EDELMAN J:   But there is nothing inconsistent in Gypsy Jokers with viewing a stream of authority as standing for the proposition that one inquires as to practical unfairness in the sense that the Solicitor‑General has described it and, if there is practical unfairness, one inquires whether or not it is justified.

MR DEL VILLAR:   Your Honour, in my submission, the relevant provision in Gypsy Jokers simply asked the court to determine whether or not there is sufficient – whether or not the description of the material as designated by the Commissioner is satisfied.  There is no sort of public interest immunity‑style balancing at that point, and then it is up to the court, and then it requires the court not to allow the parties to access the material by way of subpoenas and so forth.  The effect of the court saying, well, we are not going to use this material is – as his Honour Chief Justice Gleeson said, it would make it in many cases almost impossible for the particular review to succeed.  In my submission, that therefore cannot be a basis upon which it is said that Gypsy Jokers is a vast improvement over section 46 here.

EDELMAN J:   But that is the “something is better nothing” argument that was considered in terms of whether or not there is injustice in SDCV – and, I mean, that is right or it is wrong, but it is not inconsistent with asking whether or not there is injustice and then asking, if there is sufficient injustice, whether that can be justified on grounds of public interest.

MR DEL VILLAR:   Your Honour I am not suggesting; I am simply trying to indicate that the attempts by my learned friend to distinguish Gypsy Jokers from the effect of the legislation here are not persuasive.  That is all I am getting at.

EDELMAN J:   But that is a different submission.  So, a submission that something is part of a stream of authority looks to what the stream of authority is about.  It is a different submission to say, well, this case factually is indistinguishable from the circumstances before us.  I do not think you are making the latter submission, are you?

MR DEL VILLAR:   I am not saying it is factually indistinguishable, but I am saying that there is a close analogy and that the reasoning underpinning why this law is valid is part of the reasoning which is applied by majority judges in SDCV and which is referred to with approval in Pompano.  That is the point I am really making.  So, when my learned friend says, well, in effect, these cases are outliers, that is not the case.  There is actually a line of authority to support the proposition in SDCV.  That is all I really seek to establish.

Can I just give your Honours the references to Pompano.  There is a discussion of Gypsy Jokers at paragraphs 150 to 153.  Pompano is in volume 3, tab 19 of the authorities.  The conclusion reached in Pompano at paragraphs 156 and 157 is that the test for procedural unfairness and unconstitutionality:

is whether, taken as a whole, the court’s procedures for resolving the dispute accord both parties procedural fairness and avoid “practical injustice”.

Now, those paragraphs of Pompano are picked up in the majority judgments in SDCV.  Your Honours will see that particularly at paragraphs 66 and 67; your Honour Justice Steward’s judgment at paragraph 313; and there is an extended discussion of Gypsy Jokers which quotes the relevant paragraphs from paragraphs 55 to 58.  In my submission, it simply cannot be denied that the principles in Gypsy Jokers were built upon in SDCV, so when my learned friends say that Gypsy Jokers and Pompano are sort of outliers, that is not the case.

Your Honours, can I deal finally with the submissions regarding the proportionality test.  Can I make this point.  As we have said in paragraph 6 of our oral outline, the means‑ends testing which has culminated in the most recent decision in YBFZ has never been applied to Kable issues by a majority of the Court.  In my submission, the test in YBFZ, which I apprehend my learned friends build upon, is a test directed to whether or not the character of a law is punitive or not; it is not really a question about the essential characteristics and the extent to which essential character characteristics can be modified.

Can I deal, then, with the last paragraphs in our oral outline about the application of any proportionality test, and, again, I stress, on the assumption that that test is the appropriate one.  Your Honours have seen from Gypsy Jokers some of the difficulties which his Honour Chief Justice Gleeson identified at paragraph 5 in relation to situations where the court would otherwise be left with a public interest immunity argument.

Now, in this context, my learned friends offer a number of possible alternatives that the legislature could have taken.  We have dealt with those in paragraph 9 of our oral outline.  The first seems to be, you go back to public interest immunity.  Given that the purpose of these provisions was to actually ameliorate some of the difficulties that would result from the application of public interest immunity, that simply cannot be said to be a less restrictive way of achieving the same aim.

Then it is said by my learned friends that requiring the ASIO minister to provide evidence for justifying the issue of the certificate might be an alternative, but that would still ensure that the person did not get hold of the material, and it would have the strange consequence, in my submission, that the court would effectively be saying, well, I have looked at other material and I am satisfied that this is all right.  So, that does not obviate some of the problems which my learned friends claims apply to this procedure in section 46.

Finally, the special advocate option.  Special advocates, in short, are not a panacea, and as paragraph 99 of the decision in SDCV makes clear, there are difficulties with attending a special advocate process.

GORDON J:   I think even the Commonwealth accepts it cannot be done, does it not?

MR DEL VILLAR:   I think they accept as a matter of power it cannot be done, but my learned friends are saying this should have been a legislative alternative.  In my submission, given that the plaintiff concedes that Parliament is not required under their test to choose the least restrictive means, there was no requirement to adopt a special advocate process here.

Your Honours, unless I can be of further assistance, those are the submissions for the Attorney‑General for Queensland.

GAGELER CJ:   Yes, thank you.  That takes us, I think, to the Attorney‑General for Western Australia, is that correct?  Mr Solicitor.

MR BYDDER:   May it please the Court.  By way of oral submissions, we propose to advance three primary propositions.  The first is that, in the context of reopening and the fourth factor in John, there has been reliance in Western Australia on the decision in Gypsy Jokers for the purposes of enacting further legislation.

The remaining two primary propositions are directed to the question of proportionality testing.  The first of them is directed to the question of whether proportionality testing is apt to procedural fairness in the absence of practical injustice, and the third proposition looks to where practical injustice exists and whether proportionality is apt in that context, and whether it creates a tension with the essential characteristic of a Chapter III court being to accord procedural fairness.

If I can begin, then, with the first proposition and the bundle of legislative provisions that were provided overnight.  Can I add to that, this morning there has been a further two pages, just to assist, from the State Administrative Tribunal Act, which I will also be relying upon.  In Gypsy Jokers, the provision in question there was construed as empowering the Supreme Court to determine if the information that had been provided would prejudice police operations.  The provisions that have been enacted since that time have made explicit what the provision in the Corruption and Crime Commission Act made implicit.

MR WOOD:   Yes.

EDELMAN J:   One is, even if your primary submission is preferred, or to be the preferred submission, whether you accept or any reason why you do not accept that section 15A might lead the Court to adopt the construction proposed by the Commonwealth – which I think is implicit in your alternative submission, that you think that that is available.  The second point is the force, the gravitational force of precedent as a matter which informs the appropriate interpretation that should be taken, even if that interpretation might not have been one that had been adopted by a majority of the Court in the decision which forms the precedent.

MR WOOD:   I understand, your Honour.

GAGELER CJ:   We will want these submissions before February, and they should be sequential.

MR WOOD:   As in, the Commonwealth proceeds ‑ ‑ ‑ 

GAGELER CJ:   Yes.

MR WOOD:   Yes, I understand.  I will just check, momentarily, with Mr Lenehan, if there are any other matters.  There is nothing further I wish to add, except to say we will liaise with the Commonwealth about the timing of submissions.

GAGELER CJ:   Yes, thank you.  Mr Solicitor, did you want to say something?

MR DONAGHUE:   In terms of – do we correctly understand your Honour the Chief Justice to say we can agree a timetable between us, provided that the submissions by February?

GAGELER CJ:   Yes. 

MR DONAGHUE:   The start of February?

GAGELER CJ:   Yes.

GORDON J:   The first.

MR DONAGHUE:   And do I correctly understand the Commonwealth’s homework to be the questions about confirming in writing, in effect, the submissions that I have already made orally as to the construction, building on Justice Steward’s judgment, plus the Evidence Act and inherent power to reject evidence, but not the subsequent questions that your Honour Justice Edelman asked, is that a correct understanding?

GORDON J:   Well, that is a matter for you, Mr Solicitor, but you might want to address the question of section 15A, I think, because there is a question about application versus meaning, and I would be grateful if the Commonwealth could address that question.

MR DONAGHUE:   I am content to address them all.  Justice Edelman had addressed it to the plaintiff, and I just wanted to understand the ambit of our task.

EDELMAN J:   The more submissions, the better.

MR DONAGHUE:   And that is my final question.  We will be as economical as we can, but are we at large in that respect?

GAGELER CJ:   Yes, but be economical, please.

MR DONAGHUE:   Yes, I understand.  If the Court pleases.

GAGELER CJ:   Very well.  Thank you.  Subject to the receipt of further submissions and anything that might arise from those, the Court will consider its decision in this matter and will adjourn until 3.30 pm on Monday, 3 February 2025.

AT 12.42 PM THE MATTER WAS ADJOURNED