SDCV v Director-General of Security

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HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

SDCV  APPELLANT

AND

DIRECTOR-GENERAL OF SECURITY & ANOR            RESPONDENTS

SDCV v Director-General of Security

[2022] HCA 32

Date of Hearing: 7 & 8 June 2022
Date of Judgment: 12 October 2022

S27/2022

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

C L Lenehan SC with T M Wood and S N Rajanayagam for the appellant (instructed by Michael Jones, Solicitor)

S P Donaghue QC, Solicitor-General of the Commonwealth, with M J H Varley and M F Caristo for the respondents (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with M W R Adams for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

J A Thomson SC, Solicitor-General for the State of Western Australia, with J M Vincent for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

G A Thompson QC, Solicitor-General of the State of Queensland, with F J Nagorcka and K J E Blore for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

M J Wait SC, Solicitor-General for the State of South Australia, with L M Foran for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. KIEFEL CJ, KEANE AND GLEESON JJ. The appellant's visa was cancelled on character grounds pursuant to s 501(3) of the Migration Act 1958 (Cth) in consequence of an adverse security assessment ("ASA") certified by the first respondent, the Director‑General of Security ("the Director-General"), on behalf of the Australian Security Intelligence Organisation ("ASIO") ("the ASA certificate"). The ASA certificate was accompanied by a statement of grounds, which is deemed part of that assessment and which is required to contain all information that has been relied upon by ASIO in making the assessment, other than information the inclusion of which would, in the opinion of the Director‑General, be contrary to the requirements of security[1]. Together, the ASA certificate and the statement of grounds comprise "the ASA decision".

  2. The ASA decision was authorised under the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). The ASA certificate stated that the appellant had been assessed to be, directly or indirectly, a risk to security[2], and that it would not be consistent with the requirements of security for the appellant to continue to hold his visa, and recommended that his visa be cancelled[3]. The appellant was entitled to be informed that the ASA decision had been made and to be provided with a copy of it, except to the extent that the Minister administering the ASIO Act ("the ASIO Minister")[4] certified in writing that the Minister was…

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Details
Case
[2022] HCA 32
Decision Date

CaseChat Overview and Summary

The appellant, SDCV, challenged an adverse security assessment made by the Director-General of Security, which led to the cancellation of his visa on character grounds. The appellant sought merits review of this assessment before the Administrative Appeals Tribunal (AAT). The Minister, citing national security concerns, issued certificates under s 39B(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), preventing the disclosure of certain information related to the security assessment to the appellant or his representatives. The AAT affirmed the security assessment. The appellant then appealed to the Federal Court of Australia.

The central legal issues before the High Court of Australia concerned the constitutional validity of s 46(2) of the AAT Act. Specifically, the appellant argued that this provision, which prohibited the disclosure of certificated matter to parties in an appeal to the Federal Court, was invalid. The grounds for this argument were that it denied a party a fair opportunity to respond to evidence that could determine their rights or interests, thereby infringing Chapter III of the Constitution, and that it required or authorised the Federal Court to act inconsistently with the essential character of a court or the nature of judicial power.

The High Court rejected the appellant's arguments. The Court reasoned that s 46(2) of the AAT Act, when considered alongside the forensic advantage conferred by s 46(1) (which allowed the Federal Court to consider the certificated matter), did not cause practical injustice. The Court held that Parliament was entitled to strike a balance between competing public interests, including national security and the rights of individuals, and that there was no constitutional imperative for such balancing to be conducted solely on a case-by-case basis by the courts. The Court noted that the appellant had a choice of remedial procedures, and the chosen procedure, while having limitations, was not practically unjust compared to the alternatives.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, KEANE AND GLEESON JJ
That s 46 of the AAT Act stands or falls in its entirety highlights the artificiality of the appellant's complaint, and helps to demonstrate that s 46(2) was not apt to cause him any practical injustice in the determination of his appeal to the Federal Court. That is because the effect upon his appeal of the forensic consequences of s 46(2) cannot be considered separately from the forensic advantage conferred by s 46(1): one comes with the other. To the extent that the benefit of s 46(1) may be thought to outweigh the limitation imposed by s 46(2) so that a person in the position of the appellant chooses to pursue an appeal under s 44 rather than the other available avenues of challenge, no practical injustice is suffered. There is only the choice of a remedial procedure that is less advantageous for an appellant than it might have been, but, nevertheless, more advantageous for an appellant than the alternatives, none of which can sensibly be said to be practically unjust. Each alternative remedy is simply what the law provides, that being indisputably a matter for the Parliament. The choice of remedy was a matter for the appellant.Case‑by‑case decisions – by the court? The appellant argued that s 46(2) of the AAT Act operates impermissibly in a "blanket" fashion to deny an appellant information about the case against him or her, whereas cases involving trade secrets or confidential information proceed on a case‑by‑case analysis by a court of what fairness requires in the particular case before that court, with the appropriate procedure being moulded by the court itself. The appellant argued that, in considering a claim for public interest immunity, a court must, in each case, engage in a balancing exercise which takes into account both whether any harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld[124]; in contrast, s 46(2) does not allow for this case‑by‑case balancing of competing interests by the Federal Court. Rather, the appellant argued, s 46(2) precludes the Court from tailoring an order to ensure "basic procedural fairness"[125]. [124]Alister v The Queen (1983) 154 CLR 404 at 412. [125]HT v The Queen (2019) 269 CLR 403 at 426 [52]. 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. Indeed in Nicholas v The Queen[126], this Court rejected the contention that "only the courts may determine what the public interest requires" in balancing competing considerations relating to the protection of the integrity of the court's processes and the pursuit of other objectives within legislative power[127]. [126](1998) 193 CLR 173.[127]Nicholas v The Queen (1998) 193 CLR 173 at 272 [233]. See also 197 [37], 203 [55], 239 [167]. 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. Disclosure of the information on which an ASA has been made, or even the "gist" of that information, is apt to enable the identification by the person the subject of an ASA of the sources of information adverse to his or her interests. Parliament was entitled to proceed on the basis that, given the security context in which that information is provided, the human sources of that information will be willing to co‑operate with the authorities only on the basis of assurances that their identities, and the information that may identify them, would be kept confidential.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, KEANE AND GLEESON JJ

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