Plaintiff M47/2012 v Director General of Security & Ors; Plaintiff S138/2012 v Australian Security Intelligence Organisation & Ors

These cases concerned applications for judicial review of decisions made by the Director-General of Security and the Australian Security Intelligence Organisation (ASIO) to refuse to issue security assessments for the plaintiffs. The plaintiffs, who were asylum seekers, had been detained in immigration detention facilities. The dispute arose because ASIO's refusal to issue security assessments meant that the plaintiffs could not be granted a protection visa, and therefore remained in immigration detention indefinitely. The applications were heard by the High Court of Australia.

The central legal issue before the High Court was whether the plaintiffs were entitled to procedural fairness in relation to ASIO's decision to refuse to issue a security assessment. Specifically, the court had to determine whether the plaintiffs had a right to be informed of the adverse information that led to the refusal and to be given an opportunity to respond to it, notwithstanding the national security considerations that ASIO argued justified confidentiality. The court also considered the scope of the *Administrative Decisions (Judicial Review) Act 1977* (Cth) in relation to decisions made by ASIO.

Hayne J, in his reasons, found that the plaintiffs were entitled to procedural fairness. His Honour held that while ASIO's functions were unique and involved national security, this did not entirely displace the requirements of procedural fairness. The plaintiffs had a legitimate expectation that ASIO would consider their applications for security assessments in accordance with the law, which included affording them a hearing. This entitlement to procedural fairness meant that the plaintiffs should have been informed of the general nature of the adverse information and given an opportunity to respond, even if the specific sources or details of that information could not be disclosed due to national security concerns. The court concluded that the failure to provide this opportunity constituted a breach of the duty to afford procedural fairness.