SDCV v Director-General of Security & Anor

[2022] HCATrans 102

[2022] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S27 of 2022

B e t w e e n -

SDCV

Appellant

and

DIRECTOR‑GENERAL OF SECURITY

First Respondent

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Second Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 8 JUNE 2022, AT 10.05 AM

Copyright in the High Court of Australia

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Thank you, your Honour.  Your Honour Justice Gageler asked me a question yesterday about whether the open and closed reasons were before the Full Federal Court.  The answer is that they were.  Your Honour sees that recorded at paragraph 64 of the Full Court’s reasons on paragraph 42 of the core appeal book where the Court says:

The Court has before it the evidence and submissions that were before the Tribunal, both from the open and closed hearings, and the open and closed reasons.

GORDON J:   Mr Solicitor, in relation to that – this may come as a surprise to some of the Court room – but I actually looked at the Federal Court Rules yesterday and there is an entire division called Division 33.2 that deals with the procedural matters in relation to AAT appeals, which may answer and provide a basis for what you just put in answer to Justice Gageler.

MR DONAGHUE:   Your Honour, I looked at them too.  Is your Honour referring to 33.26 and 33.29 of the Rules?

GORDON J:   More than that really.  One is that a list of the documents comes up from the Tribunal, including those that are the subject to the certificate.  I would be interested to know how 36.2 works in relation to suggestions – for example the inspection of that list, it would seem, would prohibit the Court permitting anyone to inspect them – inspect the list.

MR DONAGHUE:   In my submission, certainly so, in respect of the closed documents.

GORDON J:   We are dealing with the list for the moment.

MR DONAGHUE:   Yes.

GORDON J:   So, there is a list of them.

MR DONAGHUE:   The list of the closed documents is what I meant, your Honour.

GORDON J:   Yes.  Then, you are right about 23 and 26.  It says there is, basically, three parts of the appeal book.  Significantly, I thought, was that Part B is to be what they describe as a complex index of the record where:

The exhibits, affidavits, annexures and transcripts . . . are taken to form part of the appeal book for the appeal but will not be reproduced unless required –

Then Part C is all of:

the exhibits and evidence to which –

reference might be made.

MR DONAGHUE:   Yes, indeed.  So, if the parties, their submissions or chronology refers to a document, then the document itself, in full, is required by the Rules to be included within Part C.

GORDON J:   Section 46(2) would prevent some of that happening?

MR DONAGHUE:   It would prevent that part of the Part C of the appeal book that contains the confidential material – the certified material under 36B from being shown to anyone other than the Court.  But it would not prevent the Director‑General from preparing a confidential appeal book that complies with those requirements to be given to the Court only – and I think that is what happened.

GORDON J:   Thank you, right.

MR DONAGHUE:   As I understand it.

GORDON J:   Then, one other aspect is to complete that, and that would mean, would it not, that it would not be necessary to tender any part of those materials because they are taken to be as part of the record.

MR DONAGHUE:   Your Honour, that is where I rather apprehended that – from the exchange with the Court yesterday – that there might be a difference of opinion, because while it is certainly the case that it would be in the appeal book, whether or not everything that is in the appeal book is taken to be in evidence before the Court in an exercise of original jurisdiction was rather, I thought, the point that Justices Gageler and Steward in particular were raising with me yesterday.  It is certainly before the Court – in the form of the appeal book – but is it in evidence?  That seemed to me to be the debatable question and whether the Rules are capable of changing the answer to that question might be open to question.

EDELMAN J:   Why would the rules not be seen as, in effect, reflecting the very, very old practice where certiorari to remove would remove that core part of the record to the court that is reviewing?  I appreciate that here it is an appeal on ground of law, but there would be no further need to tender the removed record.

MR DONAGHUE:   Your Honour, I am not contending against that proposition, that was the assumption that we made in the Full Court, which is why there was no formal tender of the record on that basis.  We took that view because – for some of the reasons I am going to develop today – for the appeal on the question of law to be meaningful, the record of the Tribunal below has to be before the court, because otherwise it makes no sense.  It would not be possible to conduct the appeal in a meaningful way.  But it is true, as was put to me yesterday, that 46(1) itself does not take that step, it just takes the step of transmitting the documents to the Court, and it does not actually put them into evidence.

If that be necessary, then I accepted yesterday – and it still seems to me, with respect, to be analytically correct – to say that if there is a need for tender, there would be a further step at which the Evidence Act would kick in and it would be possible for an applicant to choose whether or not they sought to object on the grounds of unfair prejudice to the tender of the parts of the record they have not seen.  Of course, it is not the whole record, it is only the parts of the record they have not seen.  In my submission, again, for reasons I will come to, it would be surprising if such an objection were taken, because – for reasons I will come to – it is to the advantage of the appellant to have the full record of the Tribunal before the Court, but they might have, on the construction that says there is a need to tender, there would be that intermediate step.

Your Honours, I had taken the Court, just before the adjournment, to Gypsy Jokers and can I ask your Honours to go back to that case.  It is volume 5 tab 21.  The last thing that I did yesterday was show your Honours the provision that was challenged, which was 76(2), which your Honours saw replicated in paragraph 30 on page 558 of the judgment, and just to remind your Honours what you saw there, because all of the discussion in the analysis I am about to come to is about this provision.  It contemplates that, on an application for judicial review of the decision of the Commissioner of Police to issue a fortification removal order, the Commissioner:

may identify any information provided to the court for the purposes of the review as confidential if –

A condition is met that the:

disclosure might prejudice the operations of the Commissioner of Police –

Then, the:

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

So, a few points about that.  First, it is directly inconsistent with the asserted minimum content principle that Mr Lenehan developed yesterday because it is a legislative provision that says the court uses the information on judicial review and the party does not see it.

KIEFEL CJ:   Mr Solicitor, I think it is also correct to say, also that although procedural fairness was raised in argument, at least as reported in the Commonwealth Law Reports, that was not the way in which the Court – the plurality dealt with the matter.  The principle argument, which was identified there and confirmed in Pompano was really a Kable argument that the section, section 76(2), directed the court as to the manner of the review.  That was the point that was being raised.  So, I am not disagreeing with you; I am agreeing with you that procedural fairness really just was not part of the reasons of the Court.  It was raised but put aside to deal with an essential point which went to the integrity of the court in the Kable way.

MR DONAGHUE:   Your Honour, my submission is that there were two grounds of attack in Gypsy Jokers, a procedural fairness ground and the ground that your Honour just summarised to me.  It is true that the Court’s reasons in Gypsy Jokers focussed more on the second, but in Pompano the plurality said Gypsy Jokers is strong authority also on the natural justice point, but lest it thought that there was not enough discussion of it, there is a further discussion in Pompano to confirm the point ‑ ‑ ‑ 

KIEFEL CJ:   I might be misremembering, but I think Pompano was saying that Gypsy Jokers did not suggest to the contrary about what it was saying about natural justice.  I do not think – I would be interested if you were to identify in the reasons in Gypsy Jokers where it was.

MR DONAGHUE:   Your Honour, I am intending to do just that.  So, if I can take it systematically, I will take you to what Gypsy Jokers said and then I will take you to what Pompano said about what was said in Gypsy Jokers and what it said itself.  But just before I do that – so your Honours will note that, first, that the result – the end result that 76(2) contemplates is the very result that the appellant says is inconsistent with their minimum procedural fairness content.

Second, there is no option there for the court to mould its procedures to balance the public interests in some way.  Parliament has taken that task upon itself, so it is not a case where there is fashioning by the court as to the appropriate procedure, it just says the court can use it and the parties cannot see it.  And that is not a product – not only is there no moulding of procedure by the court, but there is no balancing of the competing public interests by the court.  It is just satisfaction that disclosure might harm the public interest.  That is the only precondition and ‑ ‑ ‑

KEIFEL CJ:   But, Mr Solicitor, critically, there was no – the court was not directed to do anything.  Is that not the point?

MR DONAGHUE:   Well, it was directed not to disclose the evidence to any other person, whether or not a party.  So, it was permitted to use it and it was directed not to disclose it to any other person.

KEIFEL CJ:   Yes, I see.

MR DONAGHUE:   Now, as your Honour the Chief Justice’s question foreshadowed, if one looks at the report of the argument in the Commonwealth Law Reports, particularly on page 535 of the report – this is part of the appellant’s argument – and if your Honours look in about the middle of the page on 535, in the passage leading up to footnote – the first sentence I am going to leads to footnote (12).  It was submitted for the appellant:

A court must conduct itself in accordance with the principles of natural justice.

And if you note footnote (12), you see cited Leeth and Aala, two of the cases our friends rely on for their minimum proposition here:

That is so fundamental to the operation of Ch III courts that failure to accord natural justice involves a derogation from the obligation to act as a “court”.  That is so whether it is a federal court or a State court capable of receiving federal judicial power.  A fundamental aspect of natural justice is that a party who may be affected by a decision should be informed of the case he has to meet and have an opportunity to answer it.  That requires adequate disclosure of the evidence in adversarial proceedings.

It is almost the same as the argument that your Honours have heard in this appeal.

EDELMAN J:   That included arguments about disclosing only the gist rather than all of the detail and so on.

MR DONAGHUE:   As I understand it, your Honour, it is – what you – I am not certain.  I will check whether there was specific reference to gisting, but it was accepted, as I understand it – and, your Honours, I will not read the whole argument, but you can see there were nuances of the way that the procedural fairness argument was put over the balance of that page and the top of the next page – but, effectively, it was said we are being deprived of a proper opportunity to meet the substance of the case that is being made on review, so that would seem to capture the gisting idea.

EDELMAN J:   Well, it might, or the argument might be we are being deprived of the opportunity because we need to have all of the information directly contrary to the words of the provision.

MR DONAGHUE:   Your Honour, in the end, to the extent that disclosure could occur consistently with the prohibition in 76(2), then that disclosure could properly have occurred, and the same point might equally be made at 46(2).  Section 46(2) prevents you from disclosing the certified matter, but insofar as disclosure falls short of disclosing the certified matter, so if you can work around that by disclosing at a sufficiently high level of generality that the certified matter is not actually revealed then that will not be contrary to 46(2) or 76(2).

EDELMAN J:   So you accept the gisting argument, then?

MR DONAGHUE:   Well, it all depends exactly what level of gisting – how precise it has to be.  But, in concept, if it falls short of disclosing the certified matter, then yes.

EDELMAN J:   Was that concession made in the Full Federal Court?

MR DONAGHUE:   I do not believe it was – it came up, your Honour, as I recall.

KEANE J:   The argument that you can not disclose the information by disclosing only the gist of the information was not put.

MR DONAGHUE:   I do not believe that it was, your Honour, and it is really because in the end, as I sought to explain yesterday by reference to the scheme of the ASIO Act, the substance of the area of the adverse security assessment was clearly already known to the applicant in this case.  He knew that he had been adversely assessed because of a concern that he was involved or supported politically motivated violence because of his connections to ISIL and his use of covert phones and matters of that kind.

So, in a sense, that gives you the gist of the evidence – and he had been interviewed about those things by ASIO – he had the gist of the case.  Mr Lenehan’s point is, I actually need the evidence upon which those conclusions were made, and it is hard for a gisting idea to give you the evidential foundation for the conclusions without cutting across the certificates.

GAGELER J:   Mr Solicitor, how can your opponent test that assertion, that he already has the gist of the case, given paragraphs 19 and 20 of the reasons for decision of the Tribunal?

MR DONAGHUE:   Your Honour, I do not suggest that he can test it.  My submission is that, as it was the case in the 76(2) context, that this was a judicial review procedure which contemplates that the court might act on – in resolving a review application on material that cannot be tested by the appellant, or the applicant for review.  If Parliament tried to do in a global basis, then that would obviously be problematic, but where it does it in furtherance of an identified and proper public interest, in my submission, the reconciliation of those public interests has the conclusion that overall the procedure is fair.  Because fairness does not just involve looking at the world through the eyes of the applicant, it involves looking at the world through the eyes of all of the relevant public interests that are properly in play.  That is what we submit this does.

KIEFEL CJ:   Mr Solicitor, does your reliance upon Gypsy Jokers imply an acceptance that this case might be viewed as one as to whether the section directs the court and it should be viewed – it could be viewed in that way, as simply as that?  If it is a case about whether or not there is an impermissible direction?

MR DONAGHUE:   Your Honour, our friends have been very well represented by experienced constitutional lawyers throughout ‑ ‑ ‑

KIEFEL CJ:   I know I have not heard those words from Mr Lenehan, but it is one approach that is open, and it really rises from reliance upon Gypsy Jokers, does it not?

MR DONAGHUE:   Your Honour, in Gypsy Jokers that argument failed.

KIEFEL CJ:   But it failed not the least because the Court determined – held at paragraph 37 that section 76(2) left it to the Supreme Court and not the Commissioner to determine whether any information was prejudicial.

MR DONAGHUE:   In my submission, for reasons I will come to, that is equally true.  I need to be precise.  Whether the statutory precondition that enlivened the exclusion of natural justice was to be decided by the Court in both places, it was an objective jurisdictional fact in Gypsy Jokers as construed.  But validity – if one is looking at this through the lens of procedural fairness, our friends’ complaint is not about the precondition, their complaint is about the procedural outcome.  They say, you can never have a situation where the court acts on evidence that we do not have a fair opportunity to test – that is their proposition.  That proposition cannot be reconciled with Gypsy Jokers no matter what the precondition that enlivens that end result happens to be.

KIEFEL CJ:   Here section 46(2) tells the Federal Court, on one view, that it must do all things necessary to ensure the matter is not disclosed.  Your submissions have been consistently that sections 46(1) and 46(2), if held invalid, must go, because it does not allow the construction of those provisions and any reading down does not allow for anything other than what the words say.

MR DONAGHUE:   Only, your Honour, if there is a valid certificate.  That is the analogy with Gypsy Jokers.  So that – in Gypsy Jokers, the Commissioner of Police identified the information, and that is what triggers the conclusion under 76(2), that the Court can use it and the applicant cannot see it.  Here, the statutory analogy is with the Minister’s certification under 39B – that is what triggers the 46(2) obligation, and the Court does determine the validity of the Minister’s certification, for reasons that I will come to.

KIEFEL CJ:   I see.  Thank you.

MR DONAGHUE:   Before I leave the argument – and I need to get your Honours to what the plurality said – but if your Honours could just turn over to page 536, you will see that Justice Kirby – in the middle of the page after question:

Is there a difference in substance between a party denying a court access to evidence by taking an objection and relying on public interest immunity?

The answer that his Honour was given was:

There is a difference because under 76(2) the Court is not excluding evidence from its consideration in determining the review but is taking the evidence into account –

So, the difference – which we totally accept – was expressly adverted to and recognised in argument, that 76(2) has the Court using information that, under public interest immunity, would be unable to be used by anyone.  Now, if your Honours could then go to the plurality’s reasons at paragraph 21, which I mentioned yesterday is the provision that shows that this State scheme at least purported to have excluded the ordinary judicial review jurisdiction of the Supreme Court.  Then, at paragraph 22, the plurality – in joint judgment of four members of the Court – said:

Something more should be said here respecting what would be involved in the exercise of that general jurisdiction of the Supreme Court in a case such as the present and the absence of the exclusion of the jurisdiction by s 83 –

So, their Honours are comparing the 76 procedure with the ordinary judicial review.  In paragraph 23, in ordinary:

judicial review of a decision of the Commissioner of Police . . . an attempt by an applicant to gain access by discovery or on subpoena to material relied upon by the Commissioner, and thereby support a case of reviewable error –

So the appellant’s attempt to – by discovery or subpoena – to get the evidence so as to make their case, could be expected, as to at least some of that material, to be met by a claim of public interest immunity.  You see at footnote (85), Sankey v Whitlam concerning informers.  A couple of points about that.  One, their Honours were not suggesting that the public interest immunity claim would necessarily succeed over the whole of the relevant material.  They were saying something much less than that.  It could be expected that at least some part of the record would attract a claim of public interest immunity.

The basis for the inference in Gypsy Jokers was far weaker than it is in this case because, as I have already shown your Honours through the ASIO Act provisions yesterday, this debate can only be about material that the Minister or the Director‑General has already concluded would, if disclosed, damage national security.  So, there is a very strong basis here – much stronger than there was in Gypsy Jokers – to infer that any material that has been withheld would be material of a kind that would attract a public interest immunity claim.  Their Honours then go on, in paragraph 24, to consider the effect that that claim would have on the general judicial review jurisdiction.  From the second sentence at 24:

A successful claim to such immunity . . . would have the consequence that the material was not admitted into evidence and would be denied both to the Court and the applicant.  The handicap to which an applicant (and the Court) thereby are subjected –

So, the handicap is not a handicap that the respondent experiences.  Why not?  Because the respondent does not have to prove anything in the judicial review application.  The problem is that the unavailability of the record handicaps the applicant and the court in assessing whether or not the alleged errors have been made.  That handicap is explained by reference to Justice Mason’s observations in Scientology: 

“Intelligence is relevant to security if it can reasonably be considered to have a real connection with that topic, judged in the light of what is known to ASIO at the relevant time.  This is a test which the courts are quite capable of applying.  It is a test which presents a formidable hurdle to a plaintiff and not only because a successful claim for Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument . . . The fact that a successful claim for privilege handicaps one of the parties –

clearly the applicant – as was expressly said before the quote:

to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials.”

So, the Court in paragraph 24 is recognising that, in ordinary judicial review, some part of the record might well have attracted a claim for public interest immunity and that, if that happened, that would handicap the applicants by depriving them of the opportunity to prove error.  Now, having engaged in that counterfactual analysis, the Court then comes to 76 in the next paragraph – in paragraph 25 over the page – the first sentence of which is:

It is against this background that s 76 is to be construed.

So, when our friends say, as they say in writing in paragraph 28 and in their reply in paragraph 12, that the comparison with judicial review is irrelevant, they deny the express reasoning of the plurality that says that that contextual background informs the construction.  Why?  Because as their Honours go on in section 25, the scheme of 76 is to displace what might otherwise have been a claim to public interest immunity by the Commissioner. 

It does that by providing information that is supplied by the Commissioner to the court is subject to limitations upon use and disclosure of the information, so that the schemes – public interest immunity would be a problem for ordinary judicial review.  Section 76 is construed in light of that as a provision designed to displace the operation of public interest immunity by setting up instead a regime whereby the court gets it but nobody else does so that the review can be conducted on that novel basis, but a basis that allows for the effectiveness of the review.  All of that – everything I have just said – is equally true of section 46. 

Now, your Honour Justice Gordon mentioned yesterday as I was rushing through this scheme before the adjournment, that part of this contextually is 76(5) and (6), which you see quoted in the second half of paragraph 26, which allowed:

“(5) The court may decide whether or not the Commissioner of Police could have reasonably held the belief . . . 

(6) If the court decides the Commissioner of Police could not have reasonably had the belief –

could set it aside.  That is really the product of the outcome of the judicial review procedure, rather than the court forming an assessment of whether the precondition in section 76(2) had been met.  But as the Chief Justice put to me, the Court did say something about that in just a moment.  The function in paragraph 28 you see recorded was acknowledged as a “judicial function” that the Supreme Court was performing on review.  In 29 the Court records that:

Section 76(1) proceeds upon the footing that the Supreme Court will have before it the information which the Commissioner took into consideration when issuing the notice.

That is obviously the express effect of section 46(1).  Now, one then comes to paragraph 33, where the condition that enlivens the obligation for the court to use but not disclose – looks at the content of that precondition.  It is:

“if its disclosure might prejudice the operations of the Commissioner of Police”.

The Court points out that that does not in terms turn upon the satisfaction of the Commissioner.  Instead it is for the:

Supreme Court to determine upon evidence provided to it whether the disclosure of the information might have the prejudicial effect spoken of –

So, in this context it was a jurisdictional fact, would disclosure have an adverse effect on the public interest?  But, as your Honours see in the parenthetical reference in the last four lines, that does not appear to have been critical to the Court’s conclusion because it says even if it was conditioned on the opinion it would have to be:

an opinion formed reasonably upon the material before the Commissioner.

The difference between an objective jurisdictional fact and review of the Commissioner’s satisfaction might matter for the dictation argument – might have been thought to matter for the dictation argument that the Chief Justice summarised to me, but from a procedural fairness point of view, in my submission, it can make no difference at all, because whatever the precondition might be, we are satisfied section 76(2) said in performing the judicial power conferred by section 76 the court can use information that the applicant cannot see, and that was held to be valid for reasons that appear most clearly at paragraph 36 where the Court is not focusing on the direction argument anymore, it is focusing on the second half of section 76, what does it mean to say “the use” –  it is going to be used by the Supreme Court and not otherwise disclosed.  In paragraph 36, from the second sentence, the Court says:

The preferable construction of the words “and is not to be disclosed to any other person, whether or not a party to the proceedings” is that they deny what otherwise would be any standing or entitlement of parties and non‑parties under the usual processes of the Supreme Court in civil litigation to obtain any order or relief whether by way of discovery, subpoena or otherwise, which would entail disclosure . . . However, two points should be made here.

It is the first that is critical here:

The first is that the operation of this legislative regime has an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information in question.

That is the operation that section 76(2) was understood to have.  That particular sentence that I have just emphasised was picked up and endorsed in Pompano and also by six Justices in Graham in passages I will take your Honours to later.  It is an outcome that, having been recognised expressly in terms by the Court, was accepted as valid, the challenge to section 76 failed.

KEANE J:   Mr Solicitor, in relation to that, in paragraph 36 there is the second point, and that is:

that the operation of this provision, like the balance of s 76(2), is conditioned upon the Supreme Court first having determined that disclosure of the information . . . might prejudice the operations of the Commissioner.

At paragraph 31 their Honours have accepted the submission that 76(2) does not render unexaminable by the Supreme Court the decision of the Commissioner.  Is it not significant, then, that in Gypsy Jokers the relevant direction, if it is a direction, to the Supreme Court was one the basis of which was examinable by the Supreme Court, whereas that is a point of difference with section 46(2)?

MR DONAGHUE:   Well, two points, your Honour.  One, in my submission, is not a point of difference because the precondition in 46 is examinable, because the validity of the 39B certificate is examinable in three ways that I will come to later – but it is examinable.  So, if I am right about that, then that point of difference does not exist, and that is the main reason I am going to briefly develop those three ways it can be examined.  But the second points, your Honour, is that in 36, their Honours make two points about the operation of 76(2).  The first is the one I emphasised.  The second, as your Honour says, goes on to emphasis this capacity to examine.  But their Honours then say in the last sentence:

Accordingly, there is here no legislative mandate for dictation to the Supreme Court by the Commissioner –

So, the second point was answering the dictation argument, but there were, as I said, two arguments, a procedural fairness argument and a dictation argument.  And I do not read the second part of that as being directed to the procedural fairness argument.  The second point seems to be explaining why there was not dictation here, because the court had that kind of role.  But there were clearly both procedural fairness and dictation challenges made, as I showed your Honours through the argument when you saw what was put at 535 in particular.

GORDON J:   Do you accept that this regime here is dealing with an earlier point?  It is dealing with a challenge to the certificate, rather than what we are dealing with here in 46(2)?  And, although, you may be right to suggest that the certificate itself is subject here – the 39B certificate is subject to challenge for its validity, are we dealing with an earlier point in time?

MR DONAGHUE:   I do not accept that, your Honour, because in my submission, Gypsy Jokers was a challenge to the constitutional validity of 76(2), which is, in my submission, materially the same as 46(2).  I accept that the condition that enlivened the procedural fairness modification was somewhat different but, for reasons that I am going to seek to develop, not materially different.  But in both cases, the essential point is that the Court rejected a constitutional challenge to the validity of a provision that said on judicial review the court can use information that the applicant cannot see.  And that, at base, is a proposition that our friends say is contrary to Chapter III; and our submission in response to that is, well, if that be right, Gypsy Jokers is wrong, and Pompano is wrong, because they both upheld provisions that allowed that very thing.

GORDON J:   In a different context.

MR DONAGHUE:   Well, with respect, your Honour, no.  In our submission, both are in the context of judicial review of executive decisions made on the basis of confidential information.  That is the context for both of them.  Here – the main difference is that here, section 46 is concerned with a much for confidential process of administrative decision-making than was the situation in Gypsy Jokers.  So, our case is stronger, in my respectful submission, than is Gypsy Jokers’.  Now, I have taken your Honours to the plurality ‑ ‑ ‑

GLEESON J:   Mr Donaghue, can I ask you a question about the nature of the information that is restricted?  In section 37 it speaks about a statement of a grounds of assessment – this is 37 of the ASIO Act:

statement of the grounds for the assessment, and that statement:

(a)shall contain all information  . . . other than information . . . contrary to the requirements of security –

Does that mean that the appellant could be denied a complete statement of the grounds for assessment?

MR DONAGHUE:   Yes, your Honour.

GLEESON J:   Or is there some clear separation between the grounds for the assessment and the information that supports the grounds?

MR DONAGHUE:   No.  If it would be contrary to the requirements of security to tell the applicant the grounds, they could be denied that information as part of the administrative decision‑making process.  But part of the reason I was at pains yesterday to emphasise some of the features of this process is that, as an administrative decision-making process by a national security agency, there are some decisions that ASIO makes that are necessarily secret.  And our friends do not deny that.  They accept that they have not challenged any of the underlying provisions that govern the administrative decision‑making.

So, the question in our submission for the Court is, we have a decision properly made on the basis of secret information.  What then follows when someone seeks judicial review of that decision, can the secrecy be maintained or the mere fact of bringing the judicial review or the appeal on question of law override the steep secrecy that would otherwise justify the secrecy that applies at the administrative level?

So, it can be the case your Honour, and you see this particularly – if your Honour still has the ASIO Act – in 38(2)(a), (2)(b) is the relevant provision here, where the Minister can certify that disclosure of some information would be prejudicial to the interests of security.  But under (2)(a), the Minister can withhold notice of the existence of the adverse security assessment at all if it would be damaging to national security to tell the person that the assessment has been made.

Now in Gypsy Jokers I focussed on the plurality reasons of four members of the Court, but if your Honours go to Chief Justice Gleeson’s judgment, you will see that his Honour engages in a very similar analysis on the point that I have just been addressing.  In paragraph 4 his Honour highlights that 76 concerns:

a limited form of judicial review –

Then, in paragraph 5, his Honour makes five points that we seek to emphasise and upon which we rely.  So, the first that it is obvious:

It is only necessary to state the context and the issue to see that it is likely that judicial review proceedings under s 76 may give rise to problems of confidential information, including . . . police informers –

Two:

Parliament sought to address those problems in s 76(2).  It is, however, important to consider the alternative, especially since it is said that s 76 could operate without s 76(2).

So, his Honour, like the plurality at paragraph 23, is engaging in this counterfactual type comparison.

An alternative would have been to make no specific provisions about confidentiality, but to leave the general law to apply . . . public interest immunity . . . The consequences of success of such a claim is that the information which is subject to the immunity is not available as evidence to be taken into account in deciding the outcome of the proceedings.

So, again, uncontroversial, the PII denies it to parties and the court, but then his Honour emphasises:

In view of the nature of the proceedings –

The judicial review proceedings:

there would almost certainly be cases in which a successful claim for public interest immunity by the Commissioner of Police would have the practical consequence of making it impossible for the Court to exercise the review function contemplated by s 76(1).  The Court would not be able to have regard to some, or perhaps any, of the information on which the Commissioner’s belief was based.  In that event, the application for review may be bound to fail.

So, his Honour is recognising – which, as we say, is clear from the Scientology passage in the plurality at 24 – that the operation of public interest immunity might well – would, in some cases, be bound to be that the application will fail, because the applicant cannot discharge their burden of proof:

Without s 76(2), not only would s 76 have a substantially different practical operation; there would be plainly foreseeable circumstances in which it would have no practical operation at all.

That, his Honour says, produces a result:

so radically different from that which has Parliament enacted –

that there can be no severance.  So, I make that last point just to stop me having to come back here.  But his Honour’s judgment is the only judgment in Gypsy Jokers that dealt with the severance point, and his Honour thought that it was obvious that 76(2) was not severable from 76(1).  All of that, his Honour said, in paragraph 6:

assists to place in proper perspective the appellant’s arguments –

So, that the argument was clearly that the comparison with the way that review would otherwise have functioned but for 76(2) plainly featured in his Honour’s reasons as it did with the plurality.  Justice Crennan dealt with these issues in less detail than the other members of the majority, but your Honours will see from her Honour’s judgment at paragraph 166, a summary of the appellant’s case where her Honour emphasises the number of different limbs to the case that had been advanced against the validity, one of which was – reading from about three lines down:

the appellant contended that the procedure established by s 76(2), whereby information identified as confidential by the Commissioner could not be disclosed to an applicant for judicial review, constituted a denial of procedural fairness.  That procedure was said  . . . to constitute a derogation from its constitutional obligation to act as a court operating in accordance with Ch III –

That was one argument.  Then, second, third, fourth – there were a number of different arguments identified.  One of the things that was in play said to lead to the invalidity of section 76(2) was that procedural fairness argument, as her Honour records.  At 178 of her Honour’s reasons, the analogy with public interest immunity is recognised, and at 182 her Honour makes the observations that Mr Lenehan took your Honours to about validly – Parliament being able to:

validly legislate to exclude or modify the rules of procedural fairness provided there is “sufficient indication” –

and saying that the content:

depends on all the circumstances.

That is an observation that was endorsed by the plurality in Pompano, but I do not need, in this case, to persuade your Honours that it is possible to exclude procedural fairness.  I do not discount that possibility, because it has the support of Justice Crennan and Pompano, but this is not a case where procedural fairness is excluded, it is a case where procedural fairness is modified, in the same way that Gypsy Jokers was characterised by your Honour Justice Gageler in Pompano as a case where procedural fairness is modified.

The appellant in the Federal Court has all of the ordinary attributes and procedures of a Federal Court appeal on a question of law, save that for whatever specific part of the record is subject to a valid certificate under 39B of the AAT Act, they do not get to see that.  But in all other respects, procedural fairness operates as it ordinarily would, and one can see from what happened in the Full Court in this case, that that allows a significant level of participation by the appellant.

EDELMAN J:   Mr Solicitor, what do you mean by procedural fairness being modified?

MR DONAGHUE:   Well, I mean, your Honour, that the way that procedural fairness would apply as a matter of common law – uninterrupted by any statutory provision – can be altered by the Parliament, including by identifying competing interests that require some modification of the procedures that would ordinarily otherwise be adopted.

EDELMAN J:   That may be, to say nothing more than that common law might result in an implication of a particular degree of fairness, and then that degree of fairness can be modified.  But there is a difference between that proposition and saying that procedural fairness can be modified in such a way that that which would be unfair becomes fair.

MR DONAGHUE:   The difficulty, your Honour, is that unfairness is a complicated concept, and if one views it only through the perspective of the applicant for relief, the party to proceedings, it might be said, this is unfair to me, because I am not being made aware of information that is prejudicial to me.  That proposition might be right if there be no countervailing reason for what you are doing, but if there is a countervailing reason for what you are doing, it might be said, it is not ideal, it is not what we would do in a perfect world, but it is the best reconciliation of the competing public interests that we can find.

It is not, in my submission, just for the common law to accommodate those balances – for reasons I will come to in my submission, Parliament can do so as well – and that is what I mean by modification.  Parliament can say, whatever balance the common law would have struck here, between legitimate competing public interests, we the elected Parliament say that this is the proper balance.  In my submission, that is open, and Justice Crennan’s proposition in 182 endorsed by the plurality in Pompano supports that, but, as I hope your Honours have appreciated from most of what I have said this morning, our friends really deal with Gypsy Jokers by focussing just on this paragraph, on 182, and saying, 182 should not be understood to support exclusion of procedural fairness.

The relevance of Gypsy Jokers to this case goes far beyond paragraph 182.  The relevance of Gypsy Jokers is that it rejects a procedural fairness challenge to a very closely analogous statutory regime, and, really, you have heard nothing from our friends to answer that case.  Now, can I take your Honours from there to Condon ‑ ‑ ‑

KEIFEL CJ:   Just before you do, Mr Solicitor, just some points of clarification.  Paragraph 36 of Gypsy Jokers, upon which you rely, deals with the question of that part of section 76(2) which says:

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

which would include the parties.  And I understand you to rely upon the analogy that the Court draws with public interest immunity in saying this is very similar to it, as meaning that it is not such a great departure from normal procedure.

MR DONAGHUE:   I rely particularly on the end of the sentence that says:

but with the difference that the Court itself may make use of the information –

Because it is not so different from public interest immunity, but it is importantly different, in that we accept, as your Honours explained in HT, and as is clear from the other public interest immunity authorities, that where public interest immunity applies, it applies to everyone.  So, the information does not go into evidence, and it is true – as has been said in some of the authorities – that in that way, one cannot see any procedural unfairness arising from public interest immunity because it does not interfere with the quality of arms.  Everybody either can use or cannot use the evidence.  But those words:

but with the difference that the Court itself may make use of the information –

recognise the key departure from public interest immunity in this context, which is that it expressly sees that the court might use information that a party does not see, and it does not find that in any way constitutionally objectionable.  And that is our point.  That should have been, on our friend’s case, constitutionally objectionable, the court using the evidence that they do not see.

KEIFEL CJ:   The court goes on to deal separately with the question of what the words:

“[nor] publicly disclosed in any way” –

Mean; and that was paragraph 37, to which I have referred you earlier.  And that was said to be the critical complaint of the appellant there, that it constituted a direction to the court.  And the Court, at paragraph 44, finds that it does not constitute a:

direction as to the manner of the outcome –

What do you say is the reasoning to that conclusion?

MR DONAGHUE:   To that – so, your Honour, because there were multiple different limbs, as Justice Crennan summarised, to the plaintiff’s case, one sees different paragraphs in this part of the judgment dealing intermittently with different parts of the attack.  As your Honour says, that part of the attack was a direction attack.

KEIFEL CJ:   Well, 37 to 44 deal with the attack upon it being an impermissible direction.

MR DONAGHUE:   Yes.  Not made here in this case, but answered, ultimately, in 44 by saying – by reading the words as not controlling what the court can put in its reasons.  It said it was an:

exhortation and an effort to focus attention by the Court to the prejudicial effect –

of including confidential information in its reasons.  But your Honours construed the provision as not purporting to control what the court could put in its reasons for allowing a review.  And that was why the direction complaint failed.  But I have not focussed on those paragraphs, because there is no direction case put against us, and our friends cannot – that can only have been a deliberate decision, given that the direction case is made expressly in Gypsy Jokers and in many of the other cases in this line, and our friends just did not run it.  They did not run it because it failed and – well, we apprehend they did not run it because it failed, but it is too late now, in our submission, for them to change from the procedural fairness attack to a completely different kind of Kable argument.

Your Honours, can I go on to Condon then, because Condon also very squarely stands in the way of our friend’s case.  It was another case involving a legislative procedure where the court could act on the basis of material that was not disclosed to a party.  Again, like Gypsy Jokers, that regime was challenged on constitutional integrity grounds, and the Court rejected the challenge, holding that the Court could receive and act on evidence that was withheld from a party.  But, unlike Gypsy Jokers, Condon was a harder case than Gypsy Jokers and this case because in the regime at issue in Condon, the secret evidence could be used to support an affirmative order.  That is, the government, the Executive, could move the Court for orders affecting the rights of the person on the basis of evidence that the person did not see.

That is a greater departure from ordinary principles of fairness than is involved in a situation whereby the Executive has no burden of proof but is simply saying to the Court that information upon which an applicant might need to rely in order to succeed on judicial review should not be further disclosed.  Now, even in that somewhat harder context, the validity of the regime was upheld, but it is the fact that there were affirmative orders being sought on the basis of secret evidence that explains the discussion in Pompano about the need to give particulars of the case to be made, for example, or that explains your Honour Justice Gageler’s ultimate decision that the regime was valid because it was possible to stay the application for the orders.  A stay in the context of a regime like Condon protects the rights of the individual.  A stay in the context of a regime like this one, or Gypsy Jokers, harms the rights of the applicant because they cannot succeed in their application for review.

That is an important contextual distinction between the two scenarios, and it means that the various features that our friends relied on in an effort to distinguish Condon do not help, because they are features that are relevant to a regime where orders are sought by the Executive on the basis of secret evidence, not to a judicial review context.  Now, again, there were plurality reasons of four members of the Court, and if your Honours can go to paragraph 97 in the judgment, you will see there the principal issue identified in the second half of paragraph 97.  So, again, there were a whole range of different arguments put, but the main issue was that the:

the institutional integrity of the Supreme Court is impaired because the CO Act permits the Court to receive and act upon material which must not be disclosed to a respondent to an application for a declaration or to any representative of the respondent.

That was the main issue in the case. The two particular provisions that gave rise to that issue were section 10, which your Honours will see set out in paragraph 100, or paraphrased in paragraph 100, which will, in effect, confer power on the Supreme Court to:

declare an organisation to be a “criminal organisation” –

That then had various subsequent consequences. You see, for example, in 101, that once an organisation was a criminal organisation you could apply for control orders about its members, or – et cetera. But the threshold declaration was provided in section 10, and then, if your Honours go on to paragraph 110 near the bottom of the page, about five lines up – again, paraphrasing the regime:

If the Court declares the information to be criminal intelligence, and the information is relied on in support of an application to have an organisation declared a criminal organisation, the Court must (s 78(1)) “order any part of the hearing of the substantive application in which the declared criminal intelligence is to be considered . . . to be a closed hearing” and must (s 78(2)) exclude from that part of the hearing everyone except –

a list of people that does not include the appellant or the appellant’s representatives.  So – and I should, perhaps, just by way of completeness, show your Honours that if you are seeking to find the definition of “criminal intelligence” you find it in paragraph 109 of the Act.  Again, I make the point that the confidential information with which this case is concerned – national security information – more strongly calls for non‑disclosure than the kind of information with which this regime was concerned.

GORDON J:   Does it matter, in relation to the construction of sections 8 and 10, that there were particular provisions which required the Commissioner to disclose so much that is of the evidence and material relied upon, as is summarised by the Court in paragraphs 103 to 105?

MR DONAGHUE:   Those provisions are the provisions to which I was alluding, in general terms, when I said that there was a difference between a regime seeking affirmative orders rather than a judicial review‑type regime.  So, they were provisions that said, while you, the Commissioner, might seek an order based on secret evidence, we are going to require you to tell certain things to the person who might be affected by those orders.  But here, the appellant – the onus of proof questions are reversed and the appellant is not exposed to someone seeking orders against them on the basis of unknown evidence.  So, in my submission, that does not matter.

KIEFEL CJ:   Just in relation to the provisions of the CO Act in Pompano, it is not set out in the discussion of the provisions that you have just referred to, but at paragraph 162, the plurality refers to section 72(2) which, in their reasoning, is said to:

expressly permits the Supreme Court, in exercising its discretion to declare information to be criminal intelligence, to have regard to whether the considerations of prejudice to criminal investigations –

In effect:

“outweigh any unfairness to a respondent”.

MR DONAGHUE:   So that, your Honour, is another example of a different variation on the precondition that can give rise to the statutory consequence.  I accept that that precondition ‑ ‑ ‑

KIEFEL CJ:   It was important in Pompano, clearly.

MR DONAGHUE:   It is important in some respects, your Honour, in that it is important to understanding the full practical effect of the regime in Pompano that there was that role for the Court.  But the reasoning that I am about to take your Honours to expressly rejects the minimum condition‑type argument that your Honours are hearing.  So, while the Gypsy Jokers regime is a very close analogue to section 46, the Condon regime is not, for various reasons, including the reasons your Honour the Chief Justice just put to me.  But the reasoning, in my submission is import.  If your Honours could go – you see that, particularly, starting at 116 under the heading:

The foundation of the case for invalidity –

Your Honours, I should, perhaps, just note before going to that, that your Honours will see in 114 a rejection of a severance argument, which I will refer back to at the end of my submissions.  But both Chief Justice Gleeson in Gypsy and the plurality in Condon did not accept that one could sever the secrecy provisions that I have just identified to your Honour from the balance of the regime.  Now, in 116, from the third line:

The arguments that the CO Act’s provisions dealing with criminal intelligence render s 10 invalid, though expressed in various ways, depended upon one central proposition: that Ch III of the Constitution puts beyond the legislative power of a State any enactment that would permit a State Supreme Court to decide a disputable issue by reference to evidence or information of which one party does not know and to which that party can have no access whether personally or by a representative.

The proposition admitted of no exception.

That proposition was expressly rejected by the Court at paragraph 120, for reasons that then followed, but if your Honours could focus particularly on 118:

That revelation of criminal intelligence could reasonably be expected to have consequences contrary to the public interest was treated as irrelevant to the issue of validity –

equally so here, we respectfully submit, by our friends:

The argument for invalidity asserted that in deciding any dispute a State Supreme Court must always follow an adversarial procedure by which parties (personally or by their representatives) know of all of the material on which the Court is being asked to make its decision.  Otherwise, so it was asserted, there would be such a departure from procedural fairness that the institutional integrity of the Supreme Court would be impaired.

Our friends, I think, tried to avoid being tarred by that brush by saying, we are not making an absolute argument.  But in the end, they are.  Their argument leaves, as the argument in Condon left, no room for the competing public interest in preserving national security to deprive them of an opportunity to answer the evidence upon which the adverse security assessment is based.  They accepted perhaps you could, in extreme cases, have ways of answering it, which did not involve full disclosure of all of the evidence, that is the special counsel type of argument your Honours heard.  But, ultimately, they say one way or another they must have an opportunity to answer all of the material – all of the evidence upon which the decision is based.  They leave out of account – as is stressed by the plurality at 118 – the role that competing public interests might have in telling you what procedural fairness actually requires.  Now, there is then ‑ ‑ ‑

EDELMAN J:   There is a bit of slide in that submission.  There is a difference between a submission that they must have an opportunity to answer a submission and the point that is made in 118, which is that they must always know of – and the italicised word “all” of the material.  I do not think at any stage the applicant, or the appellant in this Court, has made a submission that their client was entitled to know of all of the material.  In fact, I think they expressly disclaimed the suggestion that they were entitled to know of all the material.

MR DONAGHUE:   Your Honour, quoting paragraph 26 of our friend’s written submissions, they say:

it is sufficient to state that one of those minimum requirements –

of procedural fairness:

if a court is to make an “order that finally alters or determines a right or legally protected interest of a person”, the court must afford to that person “a fair opportunity to respond to evidence on which that order might be made”.

EDELMAN J:   Indeed, but that does not require the person know of all of the material.

MR DONAGHUE:   Well, they must have an opportunity to answer all of the material, a fair opportunity to answer all of it.

GORDON J:   We had discussion and debate with Mr Lenehan about what constituted fair, which has, as you rightly put, identified a number of potential mechanisms for dealing with it.

MR DONAGHUE:   But that ultimately was exploring options for different ways of answering all of the evidence, in my submission.  That was what was being put.

EDELMAN J:   Precisely, which is different from knowing all of the material.

MR DONAGHUE:   I accept that there is some difference there, your Honour, but, in my submission, the point that I am seeking to draw from this – and, in my respectful submission, the point that the plurality was making in summarising their rejection of the case was that part of the assessment of what procedural fairness required turns upon other public interests, which reduce what procedural fairness would otherwise require.

Once one recognises that in the context of section 46, in my submission, one has gone a long way to support the validity of section 46, because this is a regime about very sensitive information, national security classified information, much more sensitive than was in issue in the other cases.  The public interest in its non‑disclosure, in my submission, cannot reasonably be doubted, so the question is, how does that intersect with the so‑called minimum requirements that our friends advance?

Now, your Honours will see at 123 through to 125 some discussion of how the Kable principle intersects with Chapter III requirements of a Federal court, and you have at 123, near the top of the page, on page 89, a recognition of the need to reject the proposition that:

the Constitution “permits different grades or qualities of justice” –

citing Justice Gaudron in Kable.  It is then recognised that:

it follows that “the Parliaments of the States –

Well, I do not need to read the balance of that, of paragraph 123.  But paragraph 124, the second point halfway down, accepts as we of course accept that:

the repugnancy doctrine “does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III”.

Our friends emphasise that, but we ask your Honours to read on to paragraph 125, because:

Something more must be said about the second and third points.

The second point being the one that I just read:

Independence and impartiality are defining characteristics of all of the courts of the Australian judicial system.

I will not read the sentences that follow on that page, but I rely upon them.  Then at the top of the next page the plurality is saying:

In this respect, clear parallels can be drawn with some aspects of the doctrines that have developed in relation to federal courts.  But because the separation of judicial power mandated by Ch III does not apply in terms to the States, and is not implied in the constitutions of the States, there can be no direct application to the State courts of all aspects of the doctrines that have been developed in relation to Ch III.

So, in my submission, what their Honours are there saying, having rejected the idea of different grades or notions of justice, is that you cannot just directly just pick up and translate from one context to the other.  Why not?  Because, as the third line on page 90 says, there is no separation of powers.  That means that some aspects of the doctrines at Chapter III level are helpful, but some aspects are not.

The inquiry has to be, in our submission, as to whether the absence of separation of powers at State level provides a principal basis for treating State and Federal courts differently.  If it does, then there is a difference.  But if it does not, then one can properly draw upon parallels between the two doctrines.  So, while it is true to say – as the plurality say in the middle of paragraph 126:

the conclusions reached in this matter cannot be directly translated and applied to the exercise of judicial power of the Commonwealth –

That is a long way short of saying that those principles are irrelevant, that the discussion in this case is irrelevant to the principles at the Commonwealth level.  We respectfully contend that the separation of powers at State level provides no reason of principle why State court exercising judicial power – State or Federal – should be held to a lower standard of procedural fairness than a Federal court exercising judicial power.  In both cases, they should follow a procedure that avoids practical injustice to the parties and there is no reason why the fact that State courts can exercise non-judicial power means that any different tests should be applied to them.  If your Honours then go on to 139, jumping over – there is a discussion of a number of the prior authorities that I do not need to take your Honours to.  There is a heading, then,

The case for invalidity –

And it said:

Invalidity was said to follow from the requirement that the Supreme Court exclude the respondent organisation and its representatives from the hearing –

That was said to be:

a radical departure from accepted judicial process –

Then, at 148, over a couple of pages, you see a counterfactual analysis of the same kind as you saw in Gypsy Jokers:

If, in litigation not governed by the CO Act, a party sought to adduce evidence of information that would meet the definition of criminal intelligence, the Commissioner may very well be able to resist its production on public interest immunity grounds.

Not certainly, not that they definitely would, not that all of the material would necessarily be covered, but that such a claim could very well be made:

the court could examine documents not shown to one party . . . if that objection were to be upheld, the material could not be received in evidence.

That is obviously true:

But in a case of the kind just described, it would be the Commissioner who would seek to keep the information secret.  The CO Act seeks to permit the Commissioner to use it.

So, again, the court is recognising that the purpose of this regime was to allow a party to use information that public interest immunity would have otherwise stopped them using.  That was held to be permissible.  Why?  Because the relevant requirements of procedural fairness were able to be modified, having regard to the competing public interest.  The court turns immediately, after having said that, to Gypsy Jokers, discusses the background of Gypsy Jokers, and then, in paragraph 151, we come to the point your Honour the Chief Justice was raising with me, which was it is said in 151 that:

The validity of s 76(2) was challenged primarily on the ground that it imposed an impermissible legislative direction –

And that:

The challenge failed.

But then, in 152, it is acknowledged that the appellant in Gypsy Jokers had also submitted that by allowing only the Court to have access, that 76(2) was beyond power because it was repugnant to and inconsistent with the continued institutional integrity of the Court.  Justice Crennan, with whom the Chief Justice agreed, explicitly rejected the submission.  The plurality said, and then their Honours quote the sentence I emphasised, paragraph 36:

comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information –

The Court said:

The plurality said nothing to indicate that s 76(2), by allowing only the Court to have access to the confidential information, might, on that account, to be of doubtful validity.  Rather, the plurality’s conclusion in Gypsy Jokers proceeded from an acceptance that, as Crennan J rightly pointed out, “Parliament can validly legislate to exclude or modify the rules of procedural fairness”.

Now as I have said, I do not need to go so far as exclusion in this case, but that is the endorsement of her Honour’s statement that I was referring to earlier.  At 153:

Gypsy Jokers points firmly against accepting the central proposition advanced by those advocating invalidity –

So, that is there a reference to the argument that is being discussed, particularly at 152, the second argument, the procedural fairness argument:

But lest it be said that the point was not dealt with expressly by a majority of the Court in Gypsy Jokers, it is well to explore the issue further.

And it is in that context that the particular, critical observations at 156 and 157 that your Honours discussed with our friends yesterday were made.  So, it is in the context of further explaining or reinforcing the holding in Gypsy Jokers which has already been recognised as pointing firmly against the appellant’s argument.  The Court develops the analysis and reaches, at 156 and 157, what we submit is the ratio on the reasoning:

procedural fairness –

At 156:

does not have immutably fixed content.

The concern is:

to avoid practical injustice”.  To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but . . . requires close analysis of all aspects of those procedures –

Then 157, critically, returning to my opening theme about 116 and 118 reasons, about the role of competing public interests.  The general rule is that the:

opposing parties know what case an opposite party seeks to make and how that party seeks to make it.

But:

the general rule is not absolute.  There are circumstances in which competing interests compel some qualification to its application. . . . the question is whether, taken as a whole –

Taking into account those competing public interests, the proceeding avoids practical injustice.  That, we submit, is the law.  That is the test that should properly be applied to assess the validity of section 46, recognising that in both Gypsy Jokers and in Condon, applying that test, procedures that allow a court to rely on evidence that one of the parties does not see have been held not to involve invalidating practical injustice.  Really, that is a state of the laws that – with great respect to our friends – they just have not met.  Most of the submissions that I have made so far this morning are about parts of the authorities that your Honours have not heard anything from the appellant about.  They squarely stand in the way of acceptance of their case.

GORDON J:   At paragraph 137, the Court addresses the domino method, the constitutional method, and warns against it, and then identifies – consistent with the passage you have just taken to us, in 157 – the need to look at the all of the relevant regime in place without slicing and dicing what has gone before.  Is that what they then do in 158?  That is, identify with precision what is the scheme they have got in front of them?

MR DONAGHUE:   Yes, your Honour.  From 158 going forward, their Honours are – as I hope frankly conceded earlier – dealing with the regime that is quite different from section 46, because it is more extreme in the sense that it allows the Executive to go to a court and say, make declarations that allow me to seek control orders, and do not tell the person who I seek the orders against anything about parts of the evidence upon which I rely.  Those features of the regime are different.

But that cannot be said of Gypsy Jokers.  The point I have tried to make by comparing these two cases is that Gypsy Jokers was a judicial review regime with the provision relevantly indistinguishable from 76(2).  It decided the point and, if there be any doubt that it decided the point, Condon returns to it and says, if there be any doubt that it decided the point, this is the proper analysis.  So, the Court has grappled squarely with the validity of a provision like 76(2).  I am not engaging in a domino‑type analysis.  I am saying, here is an indistinguishable legislative provision that has been upheld and that, if one applies the same constitutional standard of avoiding a procedure that is practically unfair, then these cases stand as authority that supports the validity of 46(2).  I note I need to come to your Honour Justice Gageler’s reasons, but I note the time, your Honour.

KIEFEL CJ:   Yes.  The Court will take its morning break.  The Court will adjourn for fifteen minutes.

AT 11.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.35 AM:

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Thank you, your Honour.  If your Honours still have Pompano, volume 3, tab 11, could you turn to Justice Gageler’s reasons at paragraph 177 on page 105?

KIEFEL CJ:   Just before you go there, the principal reason – I think you have accepted that the regime – the statutory regime in Pompano is quite different from what we are looking at here.  There were three points that the plurality made about the denial of procedural fairness, two of which directly related to provisions – at paragraphs 162 and 163 - section 72(2) which we discussed earlier which allowed the Court to weigh considerations of unfairness – and the second at paragraph 163 was the holding that the respondent was not denied knowledge of what the allegations were made against him.  That is the reference to the particulars in the information which the statute required.  We are not in that territory at all, are we, Mr Solicitor?

MR DONAGHUE:   We are not - in relation to the third point we are not because there is no case being made by the Director‑General.

KIEFEL CJ:   But you say we might be in relation to the second because the appellant here does know the case that is being made against him.  It is just the information – secret information – that is being kept.

MR DONAGHUE:   Part of the information is being kept ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ insofar as there is an affirmative conclusion reached about its prejudice to security.  That is right.

KIEFEL CJ:   Yes ‑ ‑ ‑

MR DONAGHUE:   But I would also seek to emphasise in relation to the 72(2) point, your Honour, that the question of the role of the court in respect of the precondition – whether it be finding an objective jurisdictional fact or balancing competing public interests – is plainly of relevance in the context of whether or not Parliament is directing the court to act in particular ways because the greater the decisional freedom of the court in relation to the precondition, the weaker the direction argument. 

But, even in a section 72(2)‑type scenario, there would be cases where the court would conclude that the damage to the public interest from disclosure outweighs the fairness to the applicant.  In a case where the court reaches that conclusion, the consequence under the Pompano regime is that if the court does then exercise judicial power on the basis of evidence that the court sees and the applicant sees, and the respondent does not see in that regime.  So, the outcome is an outcome – from a procedural fairness point of view – that our friends say you can never have.  However you get there – whatever the precondition is – it is the outcome that our friends complain about.

KIEFEL CJ:   Where were you taking us to in Justice Gageler?

MR DONAGHUE:   In Justice Gageler’s reasons at 177.  This is really our friend’s case.  The first point that we would emphasise is that your Honour is avowedly speaking in this paragraph about all courts in Australia – the Supreme Court and every other court in Australia:

Procedural fairness has a variable content but admits of no exceptions.  A court cannot be required by statute to adopt a procedure that is unfair.

Then, the sentence upon which our friends particularly rely:

A procedure is unfair if it has the capacity to result in the court –

making final orders, et cetera:

without affording that person a fair opportunity to respond to evidence on which that order might be made.

Now, if that sentence is to be understood, “a fair opportunity” to be made, as saying something different to what is said by the plurality in 156 and 157, then our respectful submission is that the law as stated by the plurality represents the present law of Australia on this point.  But, in our submission, it is not plain, reading your Honour’s judgment as a whole, that when your Honour refers to “a fair opportunity”, your Honour means what the appellants suggest that you mean.  I say that for this reason, that in paragraph 188 of the judgment, in the middle of the paragraph, your Honour embraced the proposition that:

Procedural fairness requires the avoidance of “practical injustice” -

the same formulation as is used at 157 by the plurality.  At 190, your Honour discusses Gypsy Jokers and does not suggest that Gypsy Jokers was wrongly decided.  Instead, your Honour explains Gypsy Jokers as a case that turns on modification for procedural fairness.  So, your Honour characterised section 76(2), we respectfully submit, correctly as a provision like section 46(2) that modifies the rules of procedural fairness and that notwithstanding the fact that, as I have sought to explain this morning, section 76(2) operated in such a way that the court might decide a judicial review application on material of which the affected person had no notice.

GORDON J:   Do you take issue with the last sentence in paragraph 188 of Justice Gageler’s reasons?

MR DONAGHUE:   Of paragraph 188?  Well, your Honour, it all depends on what the words “a fair opportunity” means.  In my submission, the paragraphs I am about to come to suggest that those words do not exclude competing public interests from bearing on the content of a fair opportunity.  I say that not just because of what your Honour said about Gypsy Jokers at 180, but at 192 your Honour explains why:

Suggestions that there are exceptions to procedural fairness . . . are unfounded.  The suggested exceptions are more apparent than real.

Then your Honour gives a number of examples.  About seven or eight lines up from the bottom, one of the examples given in this instance is where:

specific evidence given to a court is withheld from a party to protect commercial confidentiality, to protect the safety of a witness or an informant, or for some other reason sufficiently supported by the interests of justice.  All are examples of modifications or adjustments to ordinary procedures, invariably within an overall process that, viewed in its entirety, entails procedural fairness.

So that suggests that the fair opportunity to respond to evidence can take account of those public interest immunity type cases.  Then 193 discusses a number of the comparative authorities which predate the one I am going to take your Honours to, and your Honour says at the end of that paragraph:

Questions of that nature –

which is the balance in national security cases:

are best left for . . . concrete cases . . . while other interests may be balanced in fashioning a procedure appropriate to the context, the processes of a court, viewed as a whole, can never be unfair.

But leaving the matter to a concrete case might – this might be that case, your Honour.  Finally, at 195, your Honour accepts that:

Chapter III . . . admits of legislative choice as to how, not whether, procedural fairness is provided.  The legislative choice as to how procedural fairness is provided extends to how procedural fairness is accommodated, in a particular context, to competing interests.

So one sees that the same acknowledgment of the relevance of competing interests that the plurality accepted at 157 at a number of places in your Honour’s judgment and so we respectfully submit that there is not on the point upon which this case turns an important difference between the reasons but if we are wrong in that respect then we would urge the Court to adopt the approach of the plurality.

Your Honour’s discussion ‑ Justice Gageler’s discussion of the role of legislation in identifying the balance between competing public interests foreshadows an argument that was made by the Minister and accepted by the Court in Graham that in situations where on judicial review the court is confronted by competing public interests the Parliament does not have to – or the Constitution does not require the Constitution to leave to the court the task of moulding its procedures. 

There was some discussion yesterday as to whether the vice in section 46(2) was that Parliament stated the rule rather than leaving it to the court to work out how to balance the competing public interests.  In my submission, Chapter III does not require the courts to be the sole arbiter of how public interests legitimately intention are to be resolved and one can instead see, as one sees in this regime, Parliament turning its mind quite precisely to that balance. 

Your Honours will recall that I showed you the provisions in the certificates that say you can certify national security information, Cabinet information, any other information that may attract public interest immunity, and Parliament then said to the Tribunal, if it is national security or Cabinet information you cannot balance the competing public interest, but if it is other categories of public interest then you can.

I have not taken your Honours to it yet but you see the same thing in section 46 where Parliament has drawn distinctions between different kinds of public interest in non‑disclosure and treated them in different ways.  In our submission, to fully accept the importance of procedural fairness to individual litigants in a court is not inconsistent with recognising the very great importance of preventing disclosure of information that might harm national security, including potentially the lives of people who are involved as informants or others but also important relationships between Australia and its intelligence partners.

EDELMAN J:   Mr Solicitor, before we move from Pompano, is that submission consistent with the way the Solicitor‑General put the submissions in Pompano at page 44 and the final paragraph of the submissions of the then Solicitor‑General?  If it is inconsistent, do you then depart from that position?

MR DONAGHUE:   Page 44?

EDELMAN J:   Page 44 of the Commonwealth Law Reports.  The sentence beginning with “The outer limits of a Parliament’s power”.

MR DONAGHUE:  

is compelled not to act fairly -

In my submission, it comes back to the same point that what fairness requires is to be determined bearing in mind the competing interests.

EDELMAN J:   I was focusing more upon the removal of flexibility, such as in the submission that you are making about national security not permitting any balancing in any circumstance under the ASIO Act.

MR DONAGHUE:   As I understand what the learned then Solicitor is recorded as having submitted is that the legislation cannot deprive the Court of flexibility to such a degree that it is required – compelled to act unfairly.  I would accept that that is so, but I would not accept that to remove flexibility that does not compel unfairness is problematic.

I will not, in light of the time of the Court that I am taking, spend long on Graham, but I would ask your Honours to go very briefly to Graham just to note that – Graham (2017) 263 CLR 1 is at volume 5, tab 20. The questions that the Court answered appear at the end of the report on page 80, one of which was a challenge to the validity of 503A – which Mr Lenehan showed you – whether it was invalid in whole or in part on a number of possible grounds, one of which, a., was that it required:

a Federal court to exercise judicial power in a manner which is inconsistent with the essential character -

The Court answered that by saying it:

is invalid to the extent only that [it] would apply to prevent the Minister from being required to divulge or communicate information to this Court -

It validly operated therefore to require disclosure to other persons including the applicant for review.  There were some differences in the arguments that were put, and I am not, in light of the time, going to try to take your Honours through all of that.  But, if your Honours would note in the joint reasons of six members of the Court at paragraph 33, at the bottom of 22, there is an acceptance of the point made in one of the paragraphs of Gypsy Jokers that I have already emphasised this morning concerning the handicap that might be posed to a party.  That does not mean that the Court will not exercise its jurisdiction.  It will just:

arrive at its decision on less than the whole of the relevant materials.  This may occur where there has been a successful claim for public interest immunity –

Again, what we submit is an uncontroversial possible operation of public interest immunity to handicap an applicant in judicial review was acknowledged.  At paragraph 34, you see recorded Mr Walker’s submission that one of the reasons 503A was invalid was because it stopped the courts from balancing the competing interests.  It said it departed too much from traditional methods and standards that govern public interest immunity because 503A mandated a rule.  In response, it was submitted that while:

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

In our submission, what you see in section 46 is - in section 46(1) - Parliament – to use words of Gypsy Jokers – displacing the law of public interest immunity because of the capacity that that law would have to interfere with the efficacy of an appeal on a question of law from the Security Division and in balancing against that displacement of public interest immunity in subsection (2), a protective regime to prevent the increased efficacy of the appeal from coming at a cost of unacceptable damage to the public interest.  Parliament has balanced the competing public interests in those provisions and, in my submission, consistently with paragraph 35 of Graham, that was a course that was open to it consistently with Chapter III. 

Indeed, it might be said that it is surprising to find an objection to Parliament doing that because in cases such as Al Rawi in the United Kingdom, the problem was, according to the Supreme Court in that case, that the common law did not allow the courts to fashion their own closed material procedure - that was something that Parliament needed to do. 

Your Honour Justice Edelman, together with Justice Nettle in HT, made a somewhat similar point in that case.  You said this is not something the courts can do, this is a problem that cries out for a legislative solution to the kind of problem that arose in that case.  Here, you have one in section 46, Parliament having taken responsibility for the balance that has been struck and, in my submission, that does not contravene Chapter III. 

Now, if I could move then from the authorities – the constitutional authorities – to the three key reasons that we submit that, viewed as a whole, this scheme does not involve practical injustice.  They are – I will not summarise them because they are the three reasons you see in paragraphs 9, 10 and 11 of our written outline.  I will develop each one, starting with the point that I have foreshadowed about the role of the Court in relation to the threshold condition that enlivens the operation of 46 (2), that being the validity of the certificate. 

If one looks just at the language of 46(2), in our submission, it is not difficult to read that section as saying that where it refers to there being:

in force in respect of any of the documents a certificate in accordance with subsection . . . 39B(2) –

that that certificate must be a valid certificate.  It is easy as a matter of construction to reach that conclusion.  That being so, in our submission if there is a legal defect in the certificate, then the procedure that is mandated – both in the Tribunal by 39A and B and in the court by section 46(2) – would not engage. 

There are three ways in which the validity of the certificate under 39B might be tested.  The appellant accepts two of them – and I do not think they are controversial, so I will be very brief on those.  The first is that there is no reason why an applicant cannot seek judicial review of a certificate.  Indeed, there is no reason why, under the AD(JR) Act, the applicant cannot seek a statement of reasons for the certificate because there is no exclusion in Schedule 1 or 2 of the AD(JR) Act that would prevent that.

The possibility of judicial review of a significant certificate was acknowledge by the Full Federal Court in Hussain’s Case – which I will come to in a few minutes – at paragraphs 47 to 49.  There are, in fact, a couple of examples – reported examples of such challenges – Traljesic 150 FCR 199, Justice Rares – and another is, more recently, Kim v Attorney‑General (2013) 215 FCR 228. So, obviously, that can happen, and the appellant does not dispute it.

An alternative – a second way – is that the applicant in the Tribunal could take the course that our friends did not take here and could submit that the certificates are invalid because, for some reason, they do not comply with the legal limits on the Minister’s power to certify under 39B(2)(a).  If the applicant said that to the Tribunal, then the consequence would be that the Tribunal would have to form an opinion about the force of that proposition in order to attempt to comply – or to mould its behaviour to the legal requirements because if the certificate is valid, it has to follow the procedures that 39A and B mandate and if the certificate is invalid, then it does not have to follow those procedures.

That submission, we contend, is directly supported by your Honour’s reasons in Minister for Immigration v SZMTA (2019) 264 CLR 421 – admittedly, in a different context but about a very similar provision. If your Honours could turn to that briefly, it is volume 6, tab 31. If your Honours start when you have that at paragraph 17, on page 437, you can see the section.

STEWARD J:   So, which tab is it?

MR DONAGHUE:   Sorry, your Honour, at tab 31, volume 6, at paragraph 17.  This is the provision that was being construed – section 438(1) – and if your Honours look at 438(1) it is very similar to 39B.  So that the Minister certifies:

in writing, that the disclosure of any matter contained in the document . . . would be contrary to the public interest –

There, instead of expressly saying and “national security”, it says:

for any reason . . . that could form the basis for a claim by the Crown in right of the Commonwealth –

So, obviously, it includes all the PII grounds, including national security.  It is a statutory certification power based upon a view of disclosure being contrary to the public interest.  That is exactly the same language you see in 39B.  What the Court said about that, at 18 and 19, is that:

Whether or not the section applies … depends on whether one or other of the preconditions … is met … Whether or not such a precondition is met in respect of a document or information is in turn a question of jurisdictional fact as to which the Secretary and the Tribunal must each in practice form a view in order to attempt to comply with the section but which can be authoritatively determined only by a court –

So, the Tribunal and the Secretary had to form a view about the validity of the certificate, and the precondition was, as is explained in 19:

met if the Minister, acting within the bounds of reasonableness and on a correct understanding of the law, has certified –

the matter.  So, as we would read that judgment, if the appellant had said in the Tribunal, we contend that the certificate is not valid, and that you do not have a right to exclude us from the hearing and you do not have a right to withhold these documents from us, the Tribunal would have had to form its own view about whether the Minister – acting within the bounds of reasonableness and on a correct understanding of the law – had made a valid certificate.  If – the Tribunal’s decision on that point would not have been authoritative, but in order to try and act lawfully it would have been entitled to say, well, I think my legal obligations are that I cannot exclude you because the certificate has not been validly made.

The last – and I think our friends accept everything that I have just said to your Honours – last – and this one is contentious but this is the most important point – in our submission, returning to section 46, section 46 imposes an obligation on the Court to do all things necessary to ensure that a matter is not disclosed.  It is, in our submission, entirely consistently with the position of the Tribunal itself – which cannot be in a better position than the Court in that regard – if the Court does not think that there is a valid certificate in place, then the Court would be entitled, of its own motion, to raise the validity of the certificate, because the Court – not for the purpose of determining whether or not the Tribunal made an error, but for the purpose of determining its own obligations in the proceeding before it, because it should not withhold information from the applicant unless it thinks that section 46 lawfully requires it to do so.

So if, for example, the Federal Court has received all the material under 46(1), looks at it, and thinks that the Minister acting reasonably and on a correct understanding of the law could not have formed a view that the disclosure of this information would damage national security, then the Court would be entitled to say to the Minister, well, I am troubled by the validity of this certificate, I want you to make submissions to me about why this certificate is valid.  I want you to put on evidence to explain the case you say in support of the validity of this certificate, and if at the end of that process I am not satisfied that the certificate is valid, then I cannot act as section 46 would otherwise require, because the Court conforming its own behaviour to the legal limits would say; well, I can only exclude people if a valid certificate engages the statutory provision.  Our friends dispute what I have just put to your Honours, notwithstanding the manifest advantage that it would give them, this being – I respectfully submit – an example of a submission made contrary to the immediate interests of the party to try to produce invalidity.

If the Court can do what I have just described, then it obviously has a critical role – very much akin to the role that your Honour was identifying in Gypsy Jokers – in deciding whether or not the statutory precondition is satisfied or not.  The Court gets to look at the material itself, look at the certificate, and say; am I persuaded that the Minister, acting lawfully and reasonably, certified that the disclosure of this information would damage the public interest?  It is only if the Court concludes yes to that question that anyone gets excluded.

Our friends suggest that the submission that I have just made is inconsistent with Hussain.  Hussain your Honours will find in volume 9, tab 43, it is (2008) 169 FCR 241. The issue in Hussain was rather different.  It was whether or not it could be a ground of appeal from the AAT showing an error of law by the AAT that the Tribunal had not considered of its own motion the validity of the certificates.  The Court said – in my respectful submission, unimpeachably – that if no one asked the Tribunal not to act in accordance with the certificates, then the Tribunal was entitled to treat the certificates as valid.  It cannot have made an error of law by proceeding on the presumption of regularity.

The Court could not set aside a decision of the Tribunal based on the invalidity of the certificates if the point had not been taken below.  That is what Hussain decided.  But Hussain said nothing about whether the court could form a view about its own obligations under 46(2).  And it cannot have said anything about that because – and if your Honours could turn to paragraph 43, you will see this – for reasons that were never explained, the Tribunal had not actually sent the closed material to the Court in Hussain, notwithstanding section 46(1).  It did not have the material.

So, as you see recorded in paragraph 43, the Court said, well, we do not have it.  And there had been a ground of review advanced that the Tribunal’s decision was against the weight of the evidence and – but the Court said, well, because we do not have the material, it is impossible for us to evaluate that ground.  And the consequence was that it was abandoned by the appellant, as you see recorded at paragraph 45.  But because the Court actually never had the material, no question of how the Court should mould its own behaviour or whether it needed to mould its own behaviour under section 46 arose in Hussain.  So, Hussain does not stand in the way of our proposition that, as a matter of the interpretation of section 46(2), it can only impose an obligation on the court if the court is prepared to act in accordance with the certificate, which it will not do if it thinks that the certificate is not valid.

STEWARD J:   Mr Solicitor, what do you mean when you say, “not valid”?  Are you saying “not valid” on judicial review grounds or may the court, given that it has got all the material, actually assess whether something would prejudice security?

MR DONAGHUE:   No, your Honour.  In my submission, one, the certificate will be valid if – drawing on the language from SZMTA on materially identical legislative provision:

the Minister, acting within the bounds of reasonableness and on a correct understanding of the law –

That is the phrase from paragraph 19 – so, that would be the question the Full Court would ask itself.

GAGELER J:   So, Mr Solicitor, the Full Court gets the certificate.  If there is nothing on the face of the certificate that suggests that there is an issue, are you suggesting that the Full Court can or should always, or in a particular case, go on and made further investigations for itself if no issue is raised?

MR DONAGHUE:   Your Honour, it does not just get the certificate, it gets all the documents as well.

GAGELER J:   Yes.  So, in every case it tests the certificate against the documents?  Is that what you are suggesting?

MR DONAGHUE:   Well, no, I am suggesting that it could.  I am suggesting that in any case where – because the court will have all of these documents, unredacted, the whole set, and it will then have a certificate from the Minister saying, I think these parts of these documents would damage the public interest if they were disclosed.

If the court sees nothing to cause it alarm in that respect I am not suggesting it has a duty, but I am submitting that if the applicant asked it to or if the court of its own motion considered that it was necessary for it to form a view about that question then it must be able to do so, because it must be entitled to decide how section 46 requires it to act.  It could not shut its eyes to that question.  But if no one raises the point I am not suggesting there is an affirmative obligation to go further.

It does provide – those three mechanisms that I have together identified are all ways in which the court can be confident that in circumstances where section 46 requires particular material, some subset of the record to be withheld from the applicant, that subset of the record is material where there is a good reason in the public interest to withhold it, because that good reason is capable of being tested in all the three ways that I have identified.

So that, when one is weighing in the balance the competing public interests that inform the content of procedural fairness, one has on the non‑disclosure side a weighty public interest capable of being tested in the way that I have identified.  That is my first point, as in – that is what I want to say about paragraph 9.

Paragraph 10 of the outline is to apply the kind of counterfactual analysis testing the regime you see in 44 and 46 against what would happen without section 46.  Now, one can adopt as a comparator there either a section 44 appeal as it would operate if section 46 had never been enacted or one can adopt as the comparator a judicial review proceeding under 75(v).  The analysis would be materially the same because in both cases, as you have seen in Gypsy Jokers, Chief Justice Gleeson at 5, the plurality at 23 to 25, and in Pompano at 148, the Court accepted that contextually it was critical context to the interpretation of the provision that caused information to be withheld from one of the parties to look at how it would have worked, what the legal position would have been if it were not for the 46(2) type provision.

To try to illustrate that, your Honours, by way of a real‑world example, can you go to a decision of Justice Tracey in Plaintiff M46 v Minister, volume 9, tab 49 (2014) 139 ALD 277, which is a case where this very kind of issue came up. There have been a number of cases in the Federal Court where there has been judicial review sought either of adverse security assessments or of ministerial decisions based on adverse security assessments.

This case is a ministerial decision based on an adverse security assessment, which your Honours can see at paragraph [1] and [2], so it was a visa cancellation on character grounds – or I think, actually, a refusal of grant a visa on character grounds as you see in paragraph [2] based on an adverse security assessment from ASIO, and judicial review was sought of the Minister’s decision.  Sagar v O’Sullivan, which you will see discussed in this case is an example of direct judicial review of the adverse security assessment.

So, this is – I am going to this to illustrate the proposition that you see in Gypsy Jokers about how public interest immunity would interplay with judicial review in a case of this kind.  What had happened, as you see at paragraph [12], is that the applicant sought discovery.  A list of documents was provided, one of which was:

the “final appreciation” prepared by ASIO which recorded the Director‑General’s reasons for making the adverse security assessment –

So that document was discovered, but then when an application for inspection of it was made, the Commonwealth claimed public interest immunity and that claim was upheld, as is recorded in paragraph [13] for reasons that his Honour then goes on to address.

The evidence in support of it is summarised in paragraph [17], two affidavits from the Director‑General, one open and one confidential affidavit.  The open affidavit is summarised in paragraph [20] and particularly from half-way down the page, the fourth bullet point, you will see the evidence that was given about security assessments and the kind of information that is included within a final appreciation document:

(a)the precise details of ASIO’s assessments;

(b)the investigative process . . .

(c)the security issues . . .

(d)the source of information . . .

(e)the methods used . . .

(f)any gaps in ASIO’s intelligence holdings –

All of that kind of information is the kind of information that we are talking about in documents of this kind.  The Director-General then – this is all in the open affidavit – explained that it was imperative that final appreciations be comprehensive to enable accurate security assessments to be made, and then there is a quote at the top of the next page from the affidavit, where the Director-General gave evidence that, in his opinion:

If any information were to be withheld from the Final Appreciation as a result of a concern that, if such information was included, the information might thereafter be disclosed, that would impair ASIO’s capacity to give accurate advice to government and my capacity to make appropriate decisions –

It was submitted on behalf of the applicant in that case, summarised at [23] through to [25], that this was a case where the interests of disclosure outweighed the public interest in non-disclosure, including because of the effects the tension was having on his health.  He contended, as you see at the end of [23] that, if necessary, disclosure should:

be limited to his counsel or, alternatively, to independent counsel subject to appropriate undertakings.

He submitted, as you see at the end of [24], that:

it was critical to establishing . . . jurisdictional error.

Justice Tracey accepted in [25], as I have submitted here, that the applicant had already had a considerable amount of information about the basis for the adverse security assessment.  His Honour then goes on, and helpfully reproduces parts of most of the relevant authorities, to consider those submissions.  There is a long quote at paragraph [27] from Sagar v O’Sullivan.  At the start of that quote, in paragraphs [84] and [85] of the internal quote, discussing authorities in this Court concerning the approach that the court should take where decisions involve national security interests and the care that the court should exercise there.  In [86], quoting from Scientology, and at [88] recognising that:

The cautious approach which is reflected in these decisions has a number of implications for the exercise of the power of judicial review of decisions which, it is claimed, have been based on intelligence and other sensitive information.

The first is that the courts will give “very considerable weight” to the agency’s view –

Citing Alistair.  In [28], Conway v Rimmer, I will not read, but we rely on that passage.  And then [29], Justice Brennan in Scientology:

discovery would not be given –

By which it has been held his Honour meant, inspection:

against the Director-General [of ASIO] save in the most exceptional case.  The secrecy of the work of an intelligence organisation which is to counter espionage, sabotage, etc is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice –

And his Honour’s conclusion at [30]:

What these authorities amply demonstrate is that, where public interest immunity claims are made in respect of information relating to national security and the claims are supported by proper material, the public interest in non-disclosure will normally outweigh any competing public interest.

His Honour then goes on to note a line of authorities in the Federal Court. – this is at [31] through to [32] – where is has been accepted that ASIO final appreciations – adverse security assessment reasoning, in effect – falls within a class of documents that attracts public interest immunity.  Justice Sundburg so held in Parkin v O’Sullivan; Justice Besanko agreed in SBEG v Secretary; and Justice Tracey himself agreed in paragraph [32].  So, there are a number of cases upholding the argument that this kind of category of document, as a class, attracts public interest immunity.  His Honour then at [37], referencing back to Justice Sundberg’s holding in Parkin, recognises that upholding the claim:

in respect to a centrally relevant document in a case such as the present may have serious consequences for the applicant, not least that the applicant is deprived of a means of establishing jurisdictional error –

That is the point Chief Justice Gleeson made in paragraph 5 of Gypsy Jokers and that the plurality made at paragraph 24.  And that is what then happened, if one – I will not take your Honours through the reasoning on the grounds, but because the final appreciation was not in evidence, the various judicial review grounds could not be proved and failed.  That case that I have just taken your Honours very briefly through was applied by the Full Federal Court in a case we have not given your Honours, but it is BSX15 v Minister (2017) 249 FCR 1, particularly at 16 and 18, where the Full Court said that:

The effect of public interest immunity –

claim was to make an unreasonable ground:

“very difficult if not impossible to establish”.

So, the counterfactual that was contemplated by the plurality and Chief Justice Gleeson in Gypsy Jokers is completely borne out by practical illustrations of what happens in the real world, in the Federal Court, when people seek to review adverse security assessments.  Public interest immunity claims are made, parts of the record will be documents that fall within a class, and the balance between the public interest in non‑disclosure of those documents and the administration of civil justice will, to quote Justice Tracey:

normally outweigh any competing public interest.”

So, you can see, just as this Court accepted in Gypsy Jokers why Parliament might have thought that an appropriate way to proceed was to displace all of that by enacting section 46(1) and (2), so that instead of having a situation where an applicant cannot achieve meaningful review because public interest immunity stands in their way, you instead have a novel procedure.  I accept it is different from usual, but as your Honours said in Pompano at 157, where you have a novel procedure, you ask the question: is it practically unfair?

Here, what is being substituted for the kind of procedure that you see in M46 is a procedure where, instead of colliding with public interest in nondisclosure and PII that makes it very difficult if not impossible to establish grounds of review, you have an effective means of review, a novel procedure which displaces public interest immunity and replaces it instead with 46(2).  That legislative answer is an answer that was derived almost from first principles by the UK Supreme Court confronting very similar problems, and if I could ask your Honours to go to that case because, in my submission, their reasoning is very helpful on this point.  It is Haralambous v Crown Court at St Albans. It is volume 10, tab 50, 2018 AC 236.

The relevant judgment was given by Lord Mance on behalf of the entire court.  You can see at paragraph 11 of the judgment a summary of the issues that the court was confronting, and there were five.  I will try not to trouble your Honours unnecessarily with the detail of some of this, but basically the questions involved issues around the withholding of information both at the level of the administrative decision-making stage – there the issue of warrant, here the issue of an adverse security assessment – and then later, on judicial review of the same decision, if the original decision – the administrative decision – was entitled to be made on the basis of secret evidence.  So, issue (i) was whether the magistrates’ court, on the ex parte application – that is exercising what we would call administrative power – can the magistrates’ court rely on information which, in the public interest, cannot be disclosed to the subject of the warrant? 

So, the equivalent here would be, can the Tribunal properly rely on information that is not disclosed to the applicant in making an adverse security assessment, and our friends do not dispute it.  Here, the Court held that the Magistrates Court could act on undisclosed information.  Then, issue (i) was, if yes, to issue (i), in judicial review of that decision, is it permissible for the Court to have regard to the evidence upon which the warrant was issued without disclosing it to the subjects?  So, the link between the permissible procedure at an executive level and the permissible procedure on judicial review with the issued raised as issue (ii).

Issue (iii) is a complication in that – and this might take your Honours back to Smethurst – but this is a particular procedure where if a warrant is invalid and documents would have to be returned, it allows the Court – under section 59 – to make an order that they do not need to be returned if the Court is satisfied that a fresh warrant could be immediately be issued.  So, it is just a way of allowing the Executive to hang on to the documents, and the Court had to put itself in the shoes of the original warrant issuer.  So it was, again – issue (iii) basically is a form of first instance administrative decision and issue (iv) is the correlative of issue (ii) – again, about judicial review.

So, basically, you compare issues (ii) and (iv).  They both involve a question of, can the Court look at information that is not disclosed to the subject of a warrant if the warrant was itself lawfully issued on the basis of information that was not disclosed to the subject of the warrant – that is, does the secrecy regime flow through?  The answer that the Court gave to issue (i) was, yes, the Court can act on information that is not disclosed.  The Court then dealt with issues (ii) and (iv) – which are the relevant ones here – together, starting from paragraph 44.  You see the heading:

Issues (ii) and (iv) – the position regarding closed material on judicial review –

The Court says:

It is convenient to take these two issues together –

Their Honours then summarise the arguments.  Mr Summers, at paragraph 45, who was acting for the applicant said that – and reading the second part of the paragraph – because the Court on judicial review – he said:

the inability of the court on judicial review to conduct a closed material procedure and to look at material withheld from the claimant must mean that the warrant or section 59 order is set aside, if the material disclosed does not itself justify the warrant or order.

That is the kind of exchange I had with your Honour Justice Gordon yesterday about whether you just conduct the review on the basis of the information the Court can see.  That was the argument that Mr Summers made.  The answer put against that was to the opposite effect.  It was said, from the fourth line down:

If the court on judicial review is required . . . to forego any sort of closed material procedure, there will be no basis upon which any person affected can complain that the issue of the warrant –

That is, they will not be able to discharge their burden of proof.  That was the two sides of it.  But that situation caused the respondent to say, a better answer would be to allow the Court to look at the closed material – effectively, to do what the Court here is expressly authorised to do by 46(2).

You then see a helpful collection – discussion of authorities, which I will not take your Honours right through, but starting with Rossminster, where the House of Lords had held in 1980 that where the material which had been before the person who issued the warrant was not before the judicial review court, then there was simply no way to show error.  That is what the court have held in Rossminster – the same situation that Chief Justice Gleeson recognised in paragraph 5 of Gypsy Jokers and that Justice Tracey recognised – you just lose, because you cannot disclose the burden of proof.  Paragraph 48 summarises Rossminster helpfully.  The approach was:

(i) to treat the onus as being on the applicant for judicial review to establish –

Error:

(ii) to treat the applicant as unable to satisfy this onus, in circumstances where the original decision‑maker had access to material withheld on public interest grounds –

This results from the presumption of irregularity, and then there are a number of other cases discussed over the next couple paragraphs that apply the same approach, which I will not trouble your Honours with.  At 52, your Honours can see the Supreme Court recognising that:

The result reached in the Rossminster line of authority is unattractive, in that it is in some circumstances capable of depriving judicial review of any real teeth.

And that, it was put, is why it is better to allow the court to adopt a closed material procedure – the section 46 option.  The Court then considers at 53 whether Al Rawi is a barrier to that, and ultimately concludes that it is not.  Having drawn an analogy with its prior – this is paragraph 54, in Bank Mellat – where the Supreme Court had held that where the court below could use a closed material procedure, then even though the Supreme Court itself was not authorised to use that procedure, it must, as a matter of logic, be able to follow the same procedure as had been followed in the court below.  So it implied a power to adopt a closed material procedure in order to ensure that an appeal was effective.

Your Honours can see quite a helpful identification on page 270 at paragraph B within paragraph 54, of the five possible permutations or combinations, if you cannot use the closed material procedure.  The five options were, if you cannot use closed material:

(a) the appeal could not be entertained . . . (b) the Supreme Court could consider the closed material in open court, or (c) the court could determine the appeal without looking at the closed material . . . or (d) the court would be bound to allow the appeal or (e) the court would be bound to dismiss the appeal –

All of those options were identified in the balance of that paragraph and the next paragraph as patently unsatisfactory.  You can see at the end of 55:

each can be seen to be as unsatisfactory in relation to judicial review as in relation to an appeal in Bank Mellat.

I will not read your Honours the reasons why.  Then the Court’s conclusion appears over the page, at paragraphs 57 and 59.  The differences between judicial review and the appeal in Bank Mellat are acknowledged but it is then said, speaking of judicial review:

it would be self-evidently unsatisfactory, and productive potentially of injustice and absurdity, if the High Court on judicial review were bound to address the matter on a different basis from the magistrate or Crown Court, and, if it quashed the order, to remit the matter for determination by the lower court on a basis different from that which the lower court had quite rightly adopted and been required to adopt when first considering the matter.

Now, when your Honours read “lower court’ there, you should read “administrator”, that is the court issuing a warrant.

GORDON J:   Where is that being read from, Mr Solicitor?

MR DONAGHUE:   What I just read, your Honour?

GORDON J:   Yes.

MR DONAGHUE:   The second half of paragraph 57, or really the middle of paragraph 57.

GORDON J:   Thank you.

MR DONAGHUE:   Paragraph B to C.  The reason it is self‑evidently absurd  ‑  perhaps to develop an example I gave your Honour Justice Gordon yesterday – is if a decision is properly lawfully made by the Tribunal below on the basis of information provided by an informer to a security agency, and that is the sole basis for the decision, so there are other things put forward but they are not found persuasive by the Tribunal.

Then on appeal the court sees all the material that the Tribunal did not find persuasive, but does not see the information from the informer, if the court conducts judicial review and says, well, there was no basis in the evidence for this decision, because I can look only at the open material, and quashes the decision, it will then be sent back to the administrator, who will make exactly the same decision again, because the administrative decision‑maker is entitled to look at the informer’s evidence.

So, they will keep saying you are a risk to security, and the court on review will keep saying I see no basis for this decision and there will just be an absurd and infinite loop.  It makes no sense for the review court to review the decision on anything other than the same record that is before the administrator, because that is the only way you have effective review and that is what the court here is saying in paragraph 57.  So, you see at paragraph 59:

the only sensible conclusion is –

This is the third line of 59:

is that judicial review can and must accommodate a closed material procedure, where that is the procedure which Parliament has authorised in the lower court or tribunal whose decision is under review.

Then skipping down to H:

I consider that the scheme authorised by Parliament for use in the magistrates’ court and Crown Court –

here the Tribunal:

combined with Parliament’s evident understanding and intention as to the basis on which judicial review should operate, lead to a conclusion that the High Court can conduct a closed material procedure on judicial review –

Then his Lordship adds for completeness:

even before judicial review was regulated by statutory underpinning, I would also have considered that parallel considerations pointed strongly to a conclusion that the present situation falls outside . . . Al Rawi case and that a closed material procedure would have been permissible on a purely common law judicial review.

In other words, his Honour would have, as a matter of common law procedure, have adopted a procedure that is exactly the same as section 46(2) mandates.  It is not practically unfair.

GAGELER J:   What is the procedure you had in mind?  I mean – closed material procedure, what are the incidents of that procedure?

MR DONAGHUE:   The incidents of the procedure are that the Court can see the material upon which the administrator was authorised to act, even though it was withheld from the applicant.

GAGELER J:   The applicant will never get to see it?

MR DONAGHUE:   Never get to see it.   At the end of the discussion of gisting in the next part of the judgment ‑ ‑ ‑

GORDON J:   I was going to say – is it not subject to qualification of that consideration?

MR DONAGHUE:   There is then a discussion of gisting – although that was a different basis of objection to the adoption of the closed material procedure – and in the discussion of gisting, your Honours will see at paragraph 62, recognition in:

both the European Court of Human Rights and the Supreme Court that there are circumstances where it may be in the public interest be legitimate to withhold even the gist of the material relied on –

Then at the end of 63:

the circumstances did not give rise to a right to gisting, when important countervailing interests of state security made it impossible to disclose the information without undue prejudice.

So, yes, maybe gisting is necessary in some circumstances, but to answer your Honour Justice Gageler, there would be circumstances where even gisting cannot occur.  That really takes me back to an answer I gave Justice Edelman earlier, which is that gisting is fine, as long as it does not actually reveal the matter that is the subject of the 39B certificate.  If it goes so far as to reveal that matter, then it is inconsistent with section 46(2) and cannot be done.

GAGELER J:   I am just wondering whether it is really issue (v) that is the critical issue in this case for us to be considering, rather than issues (ii) and (iv)?

MR DONAGHUE:   In my respectful submission, it is not, your Honour, because what our friend’s complaint is essentially about is the proposition that their judicial review application might be decided on the basis of information that they do not see.  That complaint is the same as the complaint that was made underpinning issues (ii) and (iv).  I did not take your Honours to the argument, but you can see the argument ‑ ‑ ‑

EDELMAN J:   I do not think that is their submission.  Their submission is that a decision might be made on the basis of information to which they have not had a fair opportunity to respond.  I raised this with you before.  There is a difference between a fair opportunity to respond to material, and knowledge of all the contents of the material itself.

MR DONAGHUE:   I accept that that difference exists, your Honour, but in the end I am seeking to focus on the language of the provision, the validity of which is in issue, and, frankly, to recognise that there might be circumstances where, under 39B(2), the Minister has lawfully and properly concluded that you just cannot disclose anything about this information to a person.  And, in, my submission, that is valid because it is an accommodation of the – and the Supreme Court would have accepted that it was valid because they said in the paragraphs I have just taken your Honours to that sometimes gisting is not necessary, if national security considerations support that conclusion.

GORDON J:   What about paragraph 61?  This is in the context of gisting, because it starts with:

open justice should prevail to the maximum extent possible.

Which is basically the appellant’s argument here:

Any closed material procedure “should only ever be contemplated or permitted by a court if satisfied, after inspection and full consideration –

We do not have that here.

MR DONAGHUE:   No.  But then you have 62 on the other hand.  So, the ‑ ‑ ‑

GORDON J:   But this is dealing – this is dealing with the interaction of human rights, because this is in the context of – it starts by reference to the fact that – somewhere I read – is this a case which article 6 of the Convention applies?  We have got to read it in that context, I accept, and therefore that is why references to the Convention cases are considered.  But if you strip it back and look at the starting proposition ‑ ‑ ‑

MR DONAGHUE:   Your Honour, the UK law on this topic is quite involved, and it draws distinctions between cases – for example, and you can see that in some of the authorities cited in 61, between cases that affect the liberty of a person and cases that do not.  So, there is a higher gisting requirement in liberty cases than in other requirements.  We would not accept that the section 46 regime necessarily has anything to do with liberty interests.  Here, the applicant in this case is not a refugee.  He is not someone where there is any removal imperative, he is a permanent partner visa holder that was cancelled.  So, at least as far as I am aware, there are not protection claims in play.

As we read 61 and 62, that they are concerned with a separate question that – issues (ii) and (iv) are about the court’s procedure:  can, as a matter of procedure, the court proceed on the basis of a record that includes information that does not get given to the other party?  The answer:  yes.

There is then a separate question as to, well, given that we are proceeding in that way, can we do other things to alleviate any possible unfairness?   And the answer is sometimes yes, sometimes no, depending on the extent of the competing public interests.  But as we understand the complaint in this case, notwithstanding what your Honour Justice Edelman puts to me, our friends are not content with the proposition that this procedure can – that section 46(2) can operate as long as they are given the gist of the certificated material in a way that does not disclose the certificated material.

EDELMAN J:   It depends what you mean by “disclose the material”, and I think you rightly submitted earlier there are levels of generality involved in gisting.  I find it very difficult to understand how any circumstance could arise where it is not possible to disclose the nature of the argument, or the gist of the nature of the argument, even at a very, very high level of generality.  The question might just be, in the circumstances of the case, what is the appropriate level of generality to which the gist can be disclosed?

MR DONAGHUE:   Your Honour, I do not disagree with that at all, because as long as one gets the level of generality right, section 46 evidently does not stop you doing it, as long as what you do does not get too precise so as to impinge upon the confidentiality of the material that has been certified.

EDELMAN J:   The lowest level of generality, or the highest level of specificity, would be to give all of the information itself ‑ ‑ ‑

MR DONAGHUE:   Which would obviously impugn the certificate, yes.

EDELMAN J:   But you can have slightly higher levels of generality that might not reveal the critical nature of the information.

MR DONAGHUE:   I agree with that, your Honour.  But that is not the debate about the validity of 46(2) – that is a debate case by case to be resolved about how much gisting can occur without infringing 46(2).

EDELMAN J:   But if that is the proper construction of section 46(2), that is not what happened here.

MR DONAGHUE:   Well, our friends did not suggest that you could.  My learned junior has turned this up in answer to the questions earlier, and, as we identify the submissions below, it was – they proceeded on the basis that section 46(2) prohibited gisting, and they then sought to distinguish HT and Pompano on that basis.  But it is not a problem from a validity perspective for the reasons I have sought to touch on.  Your Honours, I am conscious of how long I have taken with this.  Can I, without taking your Honours to it, commend to your Honours the decision of the US Court of Appeals for the 9th Circuit in In Re National Security Agency Telecommunications Records Litigation, which I think we have given your Honours the reference to in paragraph 11 of our outline. It is in volume 9, tab 44.

It is a decision about a statutory regime in the US that, in circumstances where there was a certificate from the Attorney‑General that disclosure would national security, it required the court to proceed ex parte in closed court and the court not to permit even the particular subsection it was acting under, let alone the certificating material.  It was challenged on due process grounds in the US, and the challenge was rejected for reasons that included, and you see this, really, particularly – the most relevant part of the judgment is 903 to 904 because the court recognised that the scheme improved the position of an applicant in comparison to the position they would have been in if the State had invoked what in the US is called state secrets privilege.

So, there is a very distinct parallel in the US approach to the approach in Haralambous and in Gypsy Jokers.  And while we of course accept that the constitutional framework in all of those countries is different, we submit that the fundamental underlying concerns – procedural fairness to litigants in a court on the one hand, national security on the other hand – are intentioned in the same way as they are there and are accommodated in the same way as section 46 accommodates them.

Finally, your Honours, can I turn to severance – and I will do this before lunch.  Our submission, I hope, has demonstrated why we contend that subsections (1) and (2) form part of an inseverable scheme.  Public interest immunity is displaced by (1) only because there is a compensatory protection provided by (2), and to remove the protection while retaining the displacement is to produce a result that is completely, radically different from what Parliament enacted – such that, when a similar submission was put to the High Court in Gypsy Jokers, Chief Justice Gleeson dismissed it in about two sentences, on the basis that, obviously, it would produce a radically different outcome.  That is at the end of paragraph 5 of his Honour’s reasons.

In Condon, at 114, the Court likewise said that a submission on severance – or that severance was not only not advanced, but not available – we submit, and, therefore, that validity had to be determined on the basis that disclosure was not possible.  In our submission, when one looks at section 46, some provisions your Honours have not focussed on, 46(3), you see an equivalent to the distinction that I drew your Honours’ attention to earlier in relation to the Tribunal in 39B – in that, Parliament in subsection (3) says, if there is a certificate that:

does not specify a reason referred to in –

relevantly:

39B(2)(a) –

that is, if there is a certificate that does not specify national security – and:

a question for decision . . . is whether the matter should be disclosed to some or all of the parties . . . and

(c)the court decides that the matter should be so disclosed;

the court shall permit the part of the document . . . to be inspected –

That is, Parliament has turned its mind to this question and has said, for all public interests other than national security, the Court can balance and decide on disclosure if it thinks that it is appropriate.

What our friends ask your Honours to do by their proposed reading down is to say, do not worry about that, insert an equivalent provision that allows courts to balance and disclose in relation to national security as well.  It is directly inconsistent with the line that Parliament has drawn in 46(3).  It involves, effectively, to read the provision as our friends read it, and here we are a little bit impeded by the fact that quite a number of different reading downs have been advanced, so it is said we will read it so that it is subject to whatever is necessary to be consistent with the essential characteristics of a court.

That is a nightmare for a Federal Court judge to have to determine, case by case, how that constitutional criterion applies in each instance.  Your Honour Justice Edelman put:  what about consistently with procedure fairness, and Mr Lenehan embraced that.  So, there is a number of various possible reading downs that are on the table, the very variety of them points against the idea that there is a sufficiently certain reading down available that would produce a stable and valid outcome.

In our submission, this is a case where 15A just cannot say either subsection (1) or subsection (2), if your Honours find that subsection (2) does not mean what it says, because one of the well‑accepted limits on 15A is that it cannot apply where partial validation would produce a result where the operation of the remaining parts of the law is changed.  Your Honours said that in the Industrial Relations Act Case 187 CLR 416 at 502.

Here, the operation of the remaining parts of the law is radically changed because if 46(2) is invalid but 46(1) is not, then material, including perhaps, the most sensitive material that ASIO holds, because it has to give it all to the Tribunal no matter how sensitive it is because of 39A(3), that material would just be given to the court without any protection, no chance to claim public interest immunity and no equivalent statutory protection.  That is not a result that Parliament can reasonably be regarded as having decided to enact.

So, for the reasons given by Chief Justice Gleeson in paragraph 5 in Pompano at 14 and that I have just sketched then, in our submission, if 46(2) is invalid, so is 46(1).  That submission is somewhat different to what we put in writing, in that in paragraph 50 of our written submissions we suggested if 46(2) was invalid, your Honours should just strike out the words “in 1A” despite subsections 36(2), 36B(2) and 39B; but we recognise, on reflection, that that does not work because that would still leave the Tribunal with an obligation to send – that striking out would still leave the Tribunal with an obligation to send all the documents to the court unprotected.  So, I withdraw that submission and contend that if subsection (2) fails, subsection (1) also fails.

We have put in writing that if your Honours think that the section is invalid but it would be saved if special counsel could be appointed, then we would accept that the words of subsection (4) could be stretched, really only because of the presumption that legislation should, if possible, be construed to preserve validity to allow special counsel to come within subsection (4).  Our friends point to Fernandes against that and we – I do not seek to say anything about Fernandes beyond the fact that it was not dealing with special counsel, it was dealing with counsel for the parties.  And while it is difficult to swallow the proposition that lawyers for a party are an officer of the court – an amicus appointed by the court – a special counsel might more readily be able to be brought within the phrasing “officer of the court”, so we withdraw that distinction, but my primary submission is your Honours should not get to any of that because the section is wholly valid.  Unless the court has any ‑ ‑ ‑

EDELMAN J:   Mr Solicitor, just before you sit down, I understand your submissions about (1) and (2), but why are not (3) and (4) also part of the package?  In other words, if (2) is invalid, would it not be the whole section?

MR DONAGHUE:   Sorry.  Your Honour, the whole section goes.  I was focusing on (1) because (1) matters more, but (3) and (4) would have no operation if – I accept that, your Honour.  If the Court pleases.

KEIFEL CJ:   Yes.  Thank you, Mr Solicitor.  The Court will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Solicitor‑General for New South Wales.

MR SEXTON:   If the Court pleases.  I do not want to traverse much of the ground that the Commonwealth has already covered but I should say at the outset that Pompano of course makes clear that there is a general rule and there are exceptions to that general rule.  At paragraph 12 of our written submissions, we deal with our understanding of the way in which those exceptions are identified.

It is true of course that if a litigant cannot generally be afforded procedural fairness, the proceedings must be stayed.  This is also true if an accused cannot receive a fair trial.  But even in such cases, it will be necessary to closely examine the circumstances of a case to determine whether or not a stay is justified.  In cases like this one, rising out of a statutory prohibition on the disclosure to a party of particular information, it can be necessary to analyse the context in which the statutory prohibition has been enacted.

It is clear that there are legitimate instances where material in the possession of one side to litigation may be disclosed to the court but not to the other side.  Various examples have been referred to in some of the written submissions by the respondents and the interveners.

One obvious case, perhaps, is where a claim is made for public interest immunity, and the Court finds it necessary to examine the subject matter of the claim in order to assess its merits.  The claim is upheld, even though the material will not be taken into account, ultimately, by the Court.  One party to the litigation will never see the material, and will obviously have been disadvantaged in making submissions as to the merits of the claim.  It may be that the material in question would have significantly assisted that party’s case, even to the point of being determinative of the result in the proceedings.  Not an exact analogy, of course, your Honours, with the current statutory provision, but it is an instance of what may occur.

One particular aspect of the context in which a statutory prohibition on the disclosure of information is made is the subject matter with which the statute deals, and in this case the statutory prohibition relates to material, the disclosure of which has been certified by the relevant Minister as prejudicial to the security, or defence or international relations of Australia.  The Courts, including this Court, have recognised that national security is a particularly important responsibility for the Federal Government, and we have set out some cases to that effect – paragraphs 20 and 21 of our written submissions.

For the Court to recognise this does not, we would say, involve deference to the judgment of the legislative or executive branches, but it is simply to recognise that broad lines must be drawn in this context, because the national security can be seriously compromised by the disclosure of information and the procedures accordingly reflect a conservative approach to that disclosure.

I wanted to refer to a quote from Lord Hope in Tariq v Home Office. I do not need to take your Honours, it is a short quote but it is at volume 10, tab 54 - noting of course that the UK Supreme Court was considering, amongst other things, European Union law and in circumstances where a special advocate might represent the interests of the person too, and to whose legal representatives the proceedings were closed.  Nevertheless, Lord Hope made a general point, at paragraph 77, when he said:

The right to a fair hearing must ordinarily carry with it the right to have proceedings conducted in open court, with full disclosure by both sides.  But, for the reasons already mentioned, the use of an open procedure where details of the security vetting process are in issue cannot be resorted to without risk to the integrity of the system which in the national interest must be preserved.

And Lord Mance noted, in the same case at paragraph 36, that national security considerations might also, to quote him:

justify a closed material procedure, closed evidence (even without use of a special advocate) and, furthermore, (as in Kennedy itself) a blanket decision leaving the precise basis of determination unclear.

Some of the reasons why it may not be appropriate to use a special advocate are described at paras 34 and 35, there, in a discussion of Kennedy v United Kingdom (2010) 52 EHRR 207, in particular, that it might expose that there had been intelligence gathering and telecommunications interception in relation to a party. But Lord Mance’s broader point was that, subject to the constraints imposed by the European Convention on Human Rights, a range of procedures are justifiable by reference to – with the special demands imposed by the protection of national security.

The Solicitor‑General for the Commonwealth took your Honours in some detail to Haralambous – and I will not repeat that, except to note that, at paragraph 61 of that decision – which is at volume 10, tab 50 – refers to Tariq to establish, as a matter of principle, that special advocates will be involved – at least in the decision of whether a closed material procedure should be held.  But it is worth noting that that paragraph needs to be read in the light of the following paragraph – this is still Lord Mance at paragraph 62, where he said:

On the other hand, it is established by decisions of both the European Court of Human Rights and the Supreme Court that there are circumstances where it may in the public interest be legitimate to withhold even the gist of the material relied on for a decision which a person affected wishes to challenge.

The role of national security in this kind of litigation is also reflected in the United States’ authorities.  Again, noting that the due process clause of the US Constitution does not have any direct equivalent, of course, under our Constitution.  But, we note at the decision in Fares v Smith – which is at volume 9, tab 41, it is a decision of the United States Court of Appeals for the District of Columbia Circuit where the appellants were foreign persons who had been deemed drug traffickers under Federal legislation that allowed such a determination to be supported by classified information submitted ex parte and in camera to a court considering a challenge to the designation of them as drug traffickers.  The consequences of the designation were that the US assets of the persons in question were frozen, could not be dealt with by anyone, and the court noted at 324:

We have countenanced the use of undisclosed classified evidence to form the basis of a designation and freeze an individual’s assets in extraordinary circumstances, where the government’s withholding is justified by “the privilege and prerogative of the executive” in protecting vital national security interests.

That kind of reasoning of course needs to be appreciated in its constitutional context and particularly in the US where the President has a special responsibility for national security in his or her capacity as the Commander in Chief under Article II, Section 2 of the US Constitution.

That being said, the practical question for the court is one that here also involved special considerations in the national security context and the Commonwealth Solicitor‑General also took your Honours to the National Security Agency Case, which is volume 9, tab 44, where the court there said that the circumstances dictated by national security concerns may require the kind of decision that was arrived at.

EDELMAN J:   Mr Solicitor, is there any discussion in any of these American authorities as to whether there is a baseline for procedural fairness in the Fifth Amendment, or what that baseline might be?

MR SEXTON:   Not in either of those decisions, I do not think, your Honour.  I cannot canvas more broadly than that, probably, at the moment – but so far as I am aware, not in those two decisions.

Perhaps one final point, your Honours, because of some discussion this morning about the notion of whether the statutory provision here involves a direction to the court which – so raising the Kable question – in our submission, that is really a false issue in this case.  The only problem that there would be with Kable is, if in effect it was a direction to not accord procedural fairness – and of course the real issue here is whether or not – what is involved in procedural fairness in this case.  But we would note that the relevant provisions do not direct the court to what to make of the material in this particular instance, only for the court to ensure that it is not disclosed to other persons.  So, it seems to us that that notion of direction does not really arise in this particular case.  Unless there is any other matter, your Honours, those are our submissions.

KEIFEL CJ:   Thank you, Mr Solicitor.  The Solicitor‑General for Western Australia.

MR THOMSON:   May it please the Court.  The particular interest of WA is ensuring that Gypsy Jokers and Pompano are not overruled when there has been no proper application to that end.  The submissions which I propose to develop are not based upon there being different grades of justice depending upon whether a State or a Federal court is concerned; our submission is that whether the same judicial function is performed by a State or Federal court, it attracts the same level or equivalent levels of procedural fairness.  However, the levels of procedural fairness may differ according to the type of function.  For example, it may be that greater levels of procedural fairness must be observed where a State or Federal court is determining a term of imprisonment, compared to whether it is deciding to grant an adjournment for a week.

In considering the intersection of Chapter III and the requirements of procedural fairness, it is our submission that the starting point is the statement of principle made by the plurality in Pompano at paragraph 157, and that has obviously been the subject of discussion.  That statement of principle starts with:

a general rule –

Which is:

that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it.

Notes that it is not an absolute rule and that there are circumstances in which it may be qualified, and that there may be different things that apply where there is a novel procedure.  Now, the general statement has not been challenged, as we understand it – expressly, at least – by the appellant.  Can I say that there is a potential language difficulty which we would identify about some of the statements that have been made in previous cases concerning the modification or exclusion of procedural fairness, or the requirements of procedural fairness, and, in our submission, what they mean is the modification or exclusion of the general rule.

That is to say that they are concerned with the standard of procedural fairness, not the existence of a duty of procedural fairness.  And, so understood, you can talk about exclusion or modification of the general rule without having to accept a proposition that there might be a situation where a court is not required to act fairly.  In dealing with the submissions that have been made, can I ‑ ‑ ‑

EDELMAN J:   So, modification of the general rule is acknowledgement that the courts can recognise that Parliament can reduce levels of fairness beyond that which might have ordinarily be recognised to have been implied in legislation.  But that is something different from saying that one would recognise that a procedure which is unfair.

MR THOMSON:   Yes.  The essential characteristic of the Court is the existence of the duty, but the content may be variable, just as I have given in the example between sentencing somebody to a term of imprisonment and an adjournment for a week.

GAGELER J:   One way of framing the issue in the present case is whether the general rule in paragraph 157 can be wholly abrogated in a class of case.  That is to say, if you bring this sort of application, then you will never know what the case the opposite party is putting, in any circumstances. 

MR THOMSON:   There may be a distinction in this respect, that the general rule – can I take a step back, the existence of a duty to act fairly must be an essential attribute of a court, and it cannot be excluded.  But whether that requires – in the context of particular circumstances – the adherence to any part of the general rule is the question that this case raises, and ‑ ‑ ‑

GAGELER J:   But the point is that it is not so much the particular circumstances of the particular case, we are concerned here with the provision that applies automatically, irrespective of the particular circumstances of the particular case – in a category of case, that is, an appeal of this nature.

MR THOMSON:   Yes.  So, in a category of case, I should have said, but the category of case – as in this case – involves very particular questions of national security and perhaps other considerations which might mean that the general rule, as it has been expressed, does not apply to this category of case because the content of the duty of natural justice can be achieved via the means.  Perhaps there is a nuanced difference in the way in which the perspective of these things is viewed.  Your Honour is putting to me the general rule from the perspective of the person who is affected.

It may be that the content of the duty of natural justice no doubt primarily focusses upon that, but also has to have consideration of other matters in a category of case such as this one, which involves national security.

EDELMAN J:   Sorry, I do not understand that.  Are you saying that fairness to an applicant is assessed from the point of view of someone other than the applicant?

MR THOMSON:   The essential attribute is for a court to act fairly – fairly as between everyone between it.

GORDON J:   When you said – as I read – my notes say, the categories, national security and other considerations, what are the other considerations?

MR THOMSON:   In this case, the court ‑ ‑ ‑

GORDON J:   I mean the way you put it, you say, there is an existence of duty to act fairly which, as an essential characteristic of the court, cannot be excluded.  This provision ‑ ‑ ‑

MR THOMSON:   So, the particular matters about this category of case, which we have tried to emphasise in our submissions, are these, that the Federal Court was only carrying out an appellate function.  So, that is a different category of case from where it is performing a trial function.  This goes to the question about the evidence and when it is tendered, and how it comes before the appeal court.

Now, in this particular category of case, as we understand it – and I tread carefully here because this is a Commonwealth matter – but we understand it to be the situation that the exclusion of the evidence occurs at the point before the Tribunal – and that there has been no suggestion that the rules of procedural fairness apply before the Tribunal – that the court is performing an appellate function and therefore it is reviewing whatever has happened before the Tribunal – and by the mechanisms of it now being appealed to the court, it is suggested that the court has to give access to all of the material when that was not required by reason of the legislation before the Tribunal.

That is a particular feature of this case.  In relation to the provisions relating to evidence, as I understand it – and again I am treading carefully – section 44(8) of the AAT Act talks about consideration of the findings of the Tribunal, and it also talks about the making of further findings that are not inconsistent with the findings of the Tribunal on other evidence that is adduced, and there are equivalent rules for the adduction of further evidence.

Now, if this was a question of whether or not certain material could be adduced the first time before the appellate court, there might be different considerations in relation to the standard of procedural fairness compared to the situation which this Court is – where the Federal Court, in this case, finds itself.  Perhaps I can best illustrate it this way:  if the appellant appeals, the rules of procedural fairness require that the material be disclosed to the appellant, and it is within the power of the court then to remit it for further consideration by the Tribunal – can the Tribunal refer to that material, and can the appellant refer to that material before the Tribunal?  It does not seem to make a lot of sense if what can happen is that there can be an appeal, disclosure of the material upon the appeal, and then the remission of the appeal back before the Tribunal where the material cannot be had.

I am sorry, I have got slightly out of order because I was trying to deal with the particular features of this category of case.  In my oral outline of submissions, what I proposed to do was deal with the wider question of the declarations that are primarily sought, which can be dealt with upon a basis of statutory construction or interpretation before questions of constitutional validity arise.  These are the declarations that are sought as the primary orders, and what is suggested by the appellant is that they should be – well, that section 46(2) should effectively have read into it an exception; that is, an exception to achieve procedural fairness, and they have summarised the duty of procedural fairness in the two different declarations that they have put together.

We would start with the proposition that the obvious and plain intention of section 46(2) is to be derived from the fact that it applies to documents certificated under particular provisions, including section 39B.  Those provisions are about protecting the certificated documents from any disclosure at all, and not just preventing disclosure outside a court environment.

The intention that those provisions should operate within a court environment is confirmed by sections 46(4), which exempts disclosure to court officers in the performance of their duties.  So, those provisions are against any implication that the Federal Court, acting as an appeal court, is required to provide procedural fairness.  We would suggest that it is equally against any intention that section 46(2) should operate outside, but not inside, the court environment, and so that there cannot be any implied exception to section 46(2) or disapplication of section 46(2) to accord with the primary declarations that have been sought.

As an additional point, we make the observation that simply seeking the declaration as to the proper construction – or the disapplication – does not, necessarily, lead to the resolution of the appeal in favour of the appellant and, therefore, it becomes hypothetical, because they have not shown – and have not set out to show – that if it is the subject of an exception to provide procedural fairness, that there would, in fact, be a breach of any duty procedural fairness in the present case.

The alternative declaration that has been sought is a declaration as to complete invalidity in relation to section 46(2).  We do start with the proposition that there is no immutable requirement – no immutable minimum requirement – as to the content of a duty of procedural fairness – that seems to be well‑established.  But the fact that there is no immutable minimum requirement has been expressed often as there being no minimum as to the existence of procedural fairness.  Again, we bring into play the distinction between duty, on the one hand, and content of the standard of procedural fairness, on the other hand.

The submission that we make is that there being no immutable minimum requirement relates to standard, not the existence of duty.  The crux of the submissions that appear to have been made relate to a particular expression in Pompano from your Honour Justice Gageler’s judgment where your Honour observed that:

A procedure is unfair if it has the capacity to result in the court making an order that finally alters or determines a right or legally protected interest of a person without affording that person a fair opportunity to respond to evidence –

which might be used against him or her.  That was said in a particular context of the situation in Pompano.  As I have tried to elucidate, the situation here involves the hearing of an appeal.  We would suggest that that is a materially different situation and that the statement that your Honour made was not intended to detract from the fact that it is necessary to achieve practical justice in every case.

GAGELER J:   What is it that makes an appeal materially different?

MR THOMSON:   Yes.

GAGELER J:   What is it about an appeal, in your submission, that makes it materially different?  This is an appeal, in quotation marks, of course.

MR THOMSON:   Because the evidence is set before you get to the appellate process unless there is an application to adduce new evidence.  That is the material difference.

GAGELER J:   I see.

MR THOMSON:   In relation to Gypsy Jokers and Pompano, it is evident that there is a different legislative context in each case from the present one.

KIEFEL CJ:   The Solicitor‑General for the Commonwealth was putting that the legislative provisions in Gypsy Jokers had a close analogy with the present case.

MR THOMSON:   Yes, and indeed there is the question about the operation of 76(2) in the Gypsy Jokers Case and the operation of 39B(2) in this case.

KIEFEL CJ:   Yes.

MR THOMSON:   Clearly, the Court said in Gypsy Jokers that the operation of section 76(2) was a question of objective fact to be tested before the Court.  The Commonwealth has made the submission about section 39B that there is an entitlement to examine the basis for that certificate.  I certainly do not say anything against that, but certainly we would say that even if there is a difference between the two cases the practical justice dependent upon the nature of the appeal does intervene and mean that Gypsy Jokers is a different type of case.

Also, both Gypsy Jokers and Pompano are cases about criminal intelligence, and it is a case – well, it is our submission that the court is perhaps better placed to understand and make assessments about criminal intelligence compared to assessments about national security, and that it is not a surprise that matters of national security should be left for the Attorney‑General to certify and to make decisions about, and that the court should not be involved in those decisions, perhaps because it does not have all of the overall matter before it about national security questions.

There was a submission, I think, that had been made that perhaps in Gypsy Jokers the question of procedural fairness was not really enlivened and that it was really a legislative direction case because of the comments and the way in which Justice Crennan decided parts of the case.  If you look at the summary of the appellant’s case that Justice Crennan provides in her judgment, it identifies that the the lack of procedural fairness is an independent ground.  And if you go through the arguments that were presented by counsel in the Gypsy Jokers case, every counsel presented arguments about a lack of procedural fairness being a reason for or against this being contrary to Chapter III.  So, in our submission, the exact same type of issue that is raised in this case was raised in Gypsy Jokers, and the Court decided that the legislation there was valid.

GAGELER J:   Mr Solicitor, could I just ask a couple of questions about Gypsy Jokers and, in particular, about section 76(2)?

MR THOMSON:   Yes.

GAGELER J:   The provision was in the passive voice and that evoked some criticism from the joint judgment.  When it said that the information was for the court’s use, was the court obliged to take the information into account or just permitted to do so?

MR THOMSON:   So, there being a question that the court could overall have a control of whether there was manifest unfairness in the process ‑ ‑ ‑ 

GAGELER J:   Well, I am just wondering what the provision meant.  Was there any analysis of that, to your knowledge?  And I have a related question, which I might mention now, and that is at paragraph 36, the Court – well, the joint judgment in a passage picked up in Pompano likens the Court’s role in administering section 76 to what a court would do in a public interest immunity case, with the exception that the evidence is – or the material can be before the court.  In a public interest immunity case, of course, the two interests would be balanced.  Was the joint judgment saying there was a balancing exercise involved in section 76(2)?

MR THOMSON:   In terms of section 76(2), its operation – it is plain terms and the Commissioner had to be satisfied of certain things, but the court had itself to be satisfied that if its disclosure might prejudice the operations of the Commissioner of Police, then that fact was satisfied.  So, to that extent, the court is making its own assessment and it is not really balancing anything there - it is just making the assessment - and there is a consequence that flows from it.

But, as I had understood it, the balance is struck by the legislature and, just as if the legislature says in certain legislation you need to have an adjournment of at least X days, and if the court takes the view that that is the appropriate method for achieving natural justice, or procedural fairness, then there is that provision that is in force.  So, in a sense, the balancing exercise has been struck by the legislature, but it is consistent with procedural fairness.  It is not saying that the court is directed to act in a way that is not fair. 

EDELMAN J:   What is being balanced?  Obviously, on one side of the scales it is assumed that the extent of fairness to an applicant is part of the balance, but what is the extent of fairness to an applicant balanced against?

MR THOMSON:   I think I was making the submission that it is not a balancing exercise for the court.  The court just needs to be satisfied here, in the Gypsy Jokers Case, of the jurisdictional fact.  Perhaps balance in that sense that I was just using it meant that the legislature had struck a procedure which was not unfair, having balanced all the interests that might be involved.

Can I say one other thing about your Honour’s question and the analogy with public interest immunity?  In a case of public interest immunity, the relevant information is not before the court, whereas in this type of case here, and in Gypsy Jokers, it is before the court, that actually gives the court a greater opportunity to ensure that it understands that there is no unfairness being committed because it has the actual material before it and can act upon it. Now, it is not disclosed, but that, in itself, is something that may be important in ensuring fairness. Those are our submissions, unless I can assist the Court further.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  The Solicitor‑General for Queensland.

MR THOMPSON:   May it please the Court.  We wish to only orally address one matter as identified in our oral outline, and that is the propositions advanced on behalf of the respondents in paragraphs 24 to 26 of their written submissions.  Before I move to that, there are three introductory propositions which can be accepted.  First, it is the fundamental principle of our system of justice that all courts are obliged to accord procedural fairness.  We rely on HT at paragraph 17 in the plurality of the judgment in that case, and also Pompano at 156 and 157, which have been referred to.  Procedural fairness – to use the words of Justice Gageler in Pompano – is:

an immutable characteristic of a Supreme Court and every other court –

However, procedural fairness rules:

do not have immutably fixed content.

As identified in HT in paragraph 18 of the plurality, the content depends on the function being exercised.  Secondly:

Procedural fairness is not an abstract concept –

it is concerned with:

the avoidance of practical injustice.

Again, HT in paragraph 18.  Thirdly, public interest considerations may compel qualification to the application of procedural fairness, as recognised in paragraphs 156 and 157 of Pompano.  That may involve a form of balancing, recognised by the plurality in HT in paragraph 33, and recognised also in paragraph 71 and 76 to 77 of Justice Gordon’s judgment in HT.  That does not offend the statement in Falzon that questions of proportionality cannot arise under Chapter 3, it is a different balancing exercise, in my submission.

Could we move then to the submission in paragraph 24 of the respondent’s submissions.  Our submission, as identified in our outline, is that the Court should not entrench a principle that there is no distinction between State and Federal courts with respect to their obligation to act in a way that is procedurally fair when exercising judicial power.  If, by that submission, it is intended to convey that there should be no distinction as to the content of the obligation, we would submit that principle should not be accepted.

The reasons advanced by the Commonwealth, in our submission, do not support the establishment of that principle.  Can we first take the Court to the decision of Justice Gaudron in Kable, which the Court will find, relevantly, in joint book of authorities volume 5, case number 26, page 1456 and 1457. 

GORDON J:   What page of the report is that, Mr Solicitor?

MR THOMPSON:   It is on page 103 of the report, please, your Honour.

GORDON J:   Thank you.

MR THOMPSON:   That is the passage in which her Honour there deals with Chapter III not permitting:

of different grades or qualities of justice –

which the Court has been referred to on a number of occasions.  We would invite the Court to read the passage, with respect, commencing at the beginning of the paragraph about a third of the way down the page:

Two other matters of significance emerge from a consideration of the provisions of Ch III.

down to the paragraph which ends on that page with the words:

the judicial power of the Commonwealth.

Her Honour’s point was, in our submission – and the basis of the Kable doctrine is – that there cannot be two grades of Federal judicial power, and we would submit that that is consistent also with the observations of his Honour Justice McHugh at page 115 of the judgment, which, in the joint book of authorities is at page 1468, where his Honour says at the top of the page:

Moreover, the Constitution contemplates no distinction between the status of State courts invested with federal jurisdiction and those created as federal courts. There are not two grades of federal judicial power –

EDELMAN J:   But Justice Gaudron did not conclude that the circumstances of Kable were in Federal judicial power.

MR THOMPSON:   No, your Honour, but the point we make is that the proposition in relation to two grades or qualities of justice is a proposition which holds good for an examination of courts exercising Federal jurisdiction – whether they be Federal courts or whether they be State courts exercising Federal jurisdiction.  It says nothing, in our submission, about whether or not procedural fairness – at least in the context of its content – should be the same with respect to State courts exercising State judicial functions or jurisdiction, or exercising other roles which are conferred upon State courts which are permitted within – I am sorry, your Honour?

EDELMAN J:   It would be odd, though, would it not, to read Justice Gaudron as making, or confining, her remarks in that way in circumstances where her Honour did not see the case before her as one that was in Federal jurisdiction.

MR THOMPSON:   Your Honour, I think, if one looks at the reference to different grades or qualities of justice – about halfway down that second paragraph – the point her Honour is making is a point which is focussed specifically on the position of Federal courts and State courts exercising Federal jurisdiction.

GORDON J:   I had understood the argument that was put was an argument or a debate about the reference to different grades.  It was not a reference to include procedural fairness because the requirement that a court have an essential characteristic – one of which is procedural fairness – does not arise from the separation of powers.

MR THOMPSON:   But, your Honour, the point there ‑ ‑ ‑

GORDON J:   It is not a Chapter III requirement.

MR THOMPSON:   No, your Honour.  The point we are making, I think, is simply focussed on the proposition which is advanced by the Commonwealth in paragraph 24 of their written submissions.

GORDON J:   I see, thank you.

MR THOMPSON:   While I have got Kable, can I take the Court also to the observations of Justice Gummow at page 127 and 128.  We would invite the court to read the final paragraph on page 127, through to the end of that paragraph on the end of page 128, and I will not read it extensively.

Perhaps to come back to the point your Honour made, it is not our submission that one should erode procedural fairness to a point where the Kable principle does not recognise the institutional integrity of the Court.  All we are saying is that – in terms of content – what is required by procedural fairness may be different, and that Kable will accommodate those differences, provided it does not involve impugning the institutional integrity of the Court.  If our submission is not right, then, as identified in paragraphs 125 and 126 of Pompano, the Kable principle would simply reflect what Chapter III requires in relation to the exercise of the judicial power of the Commonwealth.

We would ask the Court to particularly have regard in relation to that submission to the last sentence, which appears in paragraph 125 in Pompano, which is in joint book of authorities volume 3, tab 11 at 426:

More particularly, the notions of repugnancy to and incompatibility with the continued institutional integrity of the State courts are not to be treated as if they simply reflect what Ch III requires in relation to the exercise of the judicial power of the Commonwealth.

Then the two related consequences which are dealt with in paragraph 126 of the joint judgment.  State courts can exercise Commonwealth judicial power, State judicial power, and non-judicial power, and to confine an assessment of the State’s essential characteristics to circumstances where it is exercising judicial power – as we say in our outline, elides the nature of the institution with the nature of the function.  The Kable principle will protect the institutional integrity of the State courts when exercising either judicial or non-judicial power, as recognised by Justice Gageler at paragraph 82 in Benbrika.  In short, in our submission, the Kable principle may tolerate modifications to the content of procedural fairness which may be intolerable in relation to the exercise of Commonwealth judicial power.

We provide an example of that situation in the decision footnoted in our written submissions, footnote 13 on page 5 of the decision of the Victorian Court of Appeal in Re Ross where the Victorian Court of Appeal provided an advisory opinion without engaging in an adversarial process, the analogue to the Criminal Code of Queensland section 672A(b). And what was said in Pompano at 126 that:

it may well be necessary to accommodate the accepted and constitutionally uncontroversial performance by the State courts of functions which go beyond those that can constitute an exercise of the judicial power of the Commonwealth.

As the required content of procedural fairness depends on the function being exercised, the true position, in our submission, is that there is no principal basis to distinguish between State and Federal courts with respect to their obligation to act in a way that is procedurally fair when exercising Commonwealth judicial power, but that does not extend to the position of exercising State judicial power or exercising other functions conferred by the State legislature on State courts.

KEANE J:   Mr Solicitor, the more immediate concern for us in relation to Gypsy Jokers and Pompano is, is it not, that there is no suggestion that the decision in either of those cases turned upon a view about two different grades of judicial power in terms of the requirement of fairness in relation to each.

MR THOMPSON:   That is correct, your Honour.  And as I said in response to ‑ ‑ ‑

KEANE J:   So, you are not propounding a point of difference between your submissions and those of the Commonwealth?

MR THOMPSON:   Only to this extent, we say to the Court, the Court should not entrench a principle that, in terms of procedural fairness, the obligations which are assumed by a court exercising State judicial power are the same as – or there is no relevant distinction between – the obligations of a court exercising Federal judicial power.  That is the only point we wish to address the Court on.

Of course, every case is going to depend on the function – so, in a sense, the proposition in paragraph 24 in the Commonwealth’s submissions is somewhat meaningless, with respect, because in vary rarely the case that one will have correspondance of all functions and facts in both a case involving Federal judicial power and a case involving State judicial power, for all sorts of reasons.  The only reason for making a submission, for example, that A46 might not be invalid as an exercise of a State legislative power is a hypothetical one, because such a situation could never really exist for all sorts of other constitutional reasons.

KEANE J:   Yes.

MR THOMPSON:   Unless there is anything further I can assist the Court with, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  The Solicitor‑General for South Australia.

MR WAIT:   If the Court pleases.  The absolute proposition contended for by the appellant is set to arise by an implication from either the inherent nature of a court, the inherent nature of judicial power, or both.  In this way, the appellant seeks to draw support from both limb 1 and limb 2 of the separation of powers doctrine.

In assessing whether a tribunal maintains its institutional integrity as a court for the purposes of the separation of powers doctrine – so limb 1 – the Kable authorities concerning institutional integrity of State courts are relevant.  That is because the first limb of the separation of powers doctrine and the Kable doctrine each relate to the same structural implication derived from Chapter III, namely, bodies which may exercise Federal judicial power must meet the constitutional description of a court.

It is in this institutionally‑focussed sense that the statement that there is nothing anywhere in the Constitution to suggest that it permits of different grades or qualities of justice should be understood. The Kable doctrine establishes that the institutional integrity of courts must not be substantially impaired.  Considerations of constitutional integrity direct attention to independence, impartiality and fairness of courts.  However, it does not follow that any particular rule of procedural fairness is constitutionally entrenched or mandated by Chapter III.

There are a number of important rules and principles that sustain the institutional integrity of courts, including the open court principle, the duty to give reasons, and the rule against bias.  However, it does not follow that any departure from the rules associated with these principles will necessarily impair institutional integrity, and in South Australia’s submission, the hearing rule should be understood in the same manner.  Whether a departure from the particular aspects of the hearing rule undermines institutional integrity entails an evaluative exercise, the outcome of which depends upon the extent of the departure, the purposes for it as against the functional values of independence, impartiality and – more directly relevant to this case – fairness.

In that evaluative exercise, the presence of competing interests may be relevant.  It is because the ultimate question of whether institutional integrity has been impaired involves an evaluative exercise of this kind that it has been said that critical notions of incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes.

Turning then to limb 2, South Australia submits that in the event that the Court considers that the absolute proposition contended for by the appellants is to be implied from Chapter III, then that absolute proposition would be best explained as derived from limb 2 of the separation of powers doctrine, and not limb 1, for two reasons.

Firstly, the derivation from Limb 2 would avoid the inconsistency with the Kable cases that have been discussed in this matter already – of Gypsy Jokers and Pompano, in particular.  Those cases, of course, being concerned with the institutional integrity of State courts rather than the exercise of judicial power in a manner that is judicial.  Secondly, statements by various members of this Court that assign constitutional significance to procedural fairness do so by tethering procedural fairness, not institutionally to courts, but rather to the exercise of Federal judicial power and the associated notion of the exercise of judicial power in accordance with the judicial process.  The statement of this Court in Bass v Permanent Trustee is one example of such a statement.

It is noteworthy that the absolute proposition contended for by the appellant is articulated in terms that seem to draw upon the notion of judicial power.  The language of that proposition refers to the making of an order that finally determines a right or legally protected interest without affording a fair opportunity.  The appellant’s reply also suggests that limb 2 forms a more stable foundation for the absolute proposition in the event that the absolute proposition is to be drawn at all.

The appellant accepts that there are historical exceptions to the absolute proposition in the form of jurisdictions relating to advice to trustees, approval of settlements by persons under disability and cases concerning children, but the appellant seems to put them to one side because they are said to fall outside of an adversarial paradigm.  It is said that they are not adversarial in the relevant sense, they are protective in nature, and, at least in relation to the jurisdiction to provide advice to trustees, that it does not determine rights.

Now the attempt by the appellant to distinguish the procedures adopted in the exercise of these historical jurisdictions appears to focus not more on the distinction between courts and other tribunals but upon the distinction between the exclusive jurisdiction of quelling controversies in an adversarial-style proceeding on the one hand, and the borderland of judicial power, in which certain peculiar historical functions lie. 

Given that procedures adopted in the exercise of historical protective jurisdictions stand outside the appellant’s absolute proposition, by reference to interests beyond those of the parties to the proceedings, the appellant’s attempt to impugn any departure from the rules of procedural fairness in the protection of the national interest would seem to be unprincipled.  Proceedings in which questions of national interest intrude may also be seen to stand outside the paradigm case of a purely adversarial-style proceeding.  Unless the Court has any questions, they are the submissions of South Australia.

KIEFEL CJ:   Thank you, Mr Solicitor.  Reply, Mr Lenehan?

MR LENEHAN:   Yes, your Honour.  Your Honours, as a preliminary point, can I address the issues that arose during the discussion with both the Solicitor-General and myself yesterday regarding evidence.  We respectfully adopt the analogy that your Honour Justice Edelman drew this morning with what used to be the first aspect of certiorari that is, section 46(1) has, in essence, the idea that there will be called up, for use by the court, as aspect of the record, 46(1)(a) tells you that that aspect of the record that is relevant to the appeal or reference – that, we say, envisages use by the court and so, at the end of the proceeding, see 46(1)(b), the Court then causes that to be returned to the Tribunal.

Can I also, just while I am in that line of country, address your Honour Justice Steward’s question yesterday about 43AAA.  I think your Honours have already picked this up, that that is addressed by the Rules and Rule 33.18…

STEWARD J:   Just in relation to your adoption point of the certiorari process, would that include documents that were put before the Tribunal that the tribunal ruled to be irrelevant?

MR LENEHAN:   The qualification in section 46 is relevant to the hearing of the appeal.  So, I suppose, depending on the particular question of law which is the subject of the appeal, one could envisage that the answer is, yes.

Can I then address the submissions that were really the substance of the submissions that were made this morning?  So, as we understand the case that is now put by the Commonwealth – which may have undergone some refinement – essentially what is put against us is this:  because what is involved is a procedure that I will call – I think this is the submission – is close to a PII procedure, and because it is said that we are better off under that procedure than we would be under, say, section 75(v), there is no practical injustice.  Now, neither limb of that argument, we say, addresses the injustice faced by my client in these particular proceedings and these particular circumstances.

Your Honours recall the point that I made yesterday by reference to Oakley, which tells your Honours that that needs to be where the question is asked – at that level, because – and this was the point I also made yesterday – otherwise one is in the territory of impairing the integrity of the Court in the exercise of that statutorily conferred jurisdiction.  That is what we say cannot be done.  From there, the arguments moves, in particular, to Pompano and Gypsy Jokers.

KIEFEL CJ:   More particularly, in Gypsy Jokers, it was said by the Commonwealth that the analogy with public interest immunity but with the difference that the Court comes to see the documents did not result in invalidity in Gypsy Jokers.  Indeed, it was clearly accepted ‑ ‑ ‑

MR LENEHAN:   Yes.

KIEFEL CJ:    ‑ ‑ ‑that it did not affect the institutional integrity of the Court.  Does the appellant challenge either Gypsy Jokers or Pompano, Mr Lenehan?

MR LENEHAN:   Your Honour, I think I have to come back and say that we do, in light of the submissions that have been made, ask to reopen Gypsy Jokers.

KEIFEL CJ:   It is a bit late in reply, is not it?

MR LENEHAN:   It is.  And I apologise that I am putting the Court in this position.  Can I say, by way of – I will call it excuse, that ‑ ‑ ‑

KEIFEL CJ:   This has always been – this has always been on the cards.  It was acknowledged in your written submissions in the footnotes that in written reply you might deal with it, but you are now dealing with it on day 2 in oral submissions.

MR LENEHAN:   Yes.

KEIFEL CJ:   There is a real question about whether this should be allowed.

MR LENEHAN:   Yes, there is, your Honour.  And so I do have to ask for that leave.  Can we just say this?  And it is true that we flagged that we may need to do so in reply.  When we saw the respondent’s argument – your Honours see in paragraph 31 of the respondent’s written submissions that the argument was put that they derived:

considerable support from . . . Gypsy Jokers –

It has not, as far as we can tell, been said until yesterday that Gypsy Jokers was directly in our path.  Now, I am going to say that it is not.  I am going to say your Honours do not need to go there, but I am leaving open the possibility that your Honours might.

KEIFEL CJ:   We should hear from the Solicitor‑General for the Commonwealth on the question of leave.

MR DONAGHUE:   Your Honour, in short, leave is opposed.  In our submission, it was clear in the argument that we ran in the Full Federal Court and in our written submissions that we rely directly upon Gypsy Jokers and Pompano as authorities that stood in the way of the appellant.  In our submission, it would have framed things differently if the correctness of those cases had been put in issue.  If we need to, we can come back to it and address the reopening criteria, but I said, I think, in two sentences in opening our submissions that the cases had not been challenged, so I focused on whether they were distinguishable.  I did not otherwise address the correctness of those cases, because that was understood to have been something that was not in play.

KIEFEL CJ:   If the appellant was permitted to raise this matter for the first time now, would you require – or would you seek – to be further heard orally on the matter at another date?

MR DONAGHUE:   Your Honour, I would certainly seek to be heard in writing on the matter.

KIEFEL CJ:   In writing.

MR DONAGHUE:   I think that would be sufficient.

EDELMAN J:   The only issue that you would not have addressed, either in writing or orally, is the John criteria, is it not?

MR DONAGHUE:   Yes.

EDELMAN J:   There are no other issues of substance.  I mean, you have taken us pretty thoroughly ‑ ‑ ‑

MR DONAGHUE:   I agree, your Honour.  I have been quite thorough on both of those cases, but I have said nothing about the John criteria, and in my submission they will not be satisfied, so I would seek to be heard on that, but I think I can do that sufficiently in writing.

KIEFEL CJ:   The court will adjourn briefly to consider the course that it will take.

AT 3.22 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.26 PM:

KIEFEL CJ:   Mr Lenehan, the Court is not minded to hear you in relation to the reopening of Gypsy Jokers or the decision in Pompano.  It would require, at the least, further section 78B notices to all the States and it would require probably considerable argument from the States in relation to the retention, particularly of a decision such Gypsy Jokers, which is of long standing.

MR LENEHAN:   If it please the Court.

KIEFEL CJ:   So just too much is involved to commit to that course.

MR LENEHAN:   Yes – not that it matters but can I make clear that we were not seeking to reopen Pompano, only Gypsy Jokers.

KIEFEL CJ:   Even so, thank you.

MR LENEHAN:   Yes.  Can I then say why we did not need to do that, and that really has three points.  The first is that, as I said yesterday, only two judges in Gypsy Jokers dealt with the procedural fairness point.  The Solicitor‑General then asks your Honours to read the single sentence in paragraph 36, the sentence dealing with public interest immunity, as a considered response and considered rejection of the submission regarding procedural fairness.

Now, our first point is that, read fairly, starting with paragraph 31 of the reasons – sorry, Gypsy Jokers again – it is behind tab 21, and I am looking at 1179.  So, at the forefront of the oral submissions and then the analysis that continues from there up to the end of 36, including, in particular, the end of 36, we say is all directed to direction of the Court, and that is our first point.

The second point takes up what your Honour Justice Gageler put to our friend from WA, or rather the question that your Honour asked of him.  So, looking first at paragraph 35, the rather odd language that your Honour described as the passive voice, the words necessary or appropriate, in our submission, necessarily involves a discretion.

So, then when one reads 36 and sees in, again, the sentence that the Solicitor‑General for the Commonwealth emphasises, and, comparable with that of common law respecting public interest immunity, that must, we say, have in mind that there is that sort of balancing process – is at least one way of reading it, which might have in mind this possibility – the Court could decline to use that material where, applying that sort of balancing test, it would be procedurally unfair.  And so, for that further reason, we would say that Gypsy Jokers does not stand in the way of our argument.

Then the third reason is a reason that I probably should have developed further yesterday by reference to the explanation and discussion of Gypsy Jokers in Pompano, which, again, your Honours have behind tab 11.  And the discussion – your Honours have already seen this a number of times – the discussion at 152 and 153 at 434 of the book.  So, the passage that the Solicitor‑General emphasises is in 152, and it is true that it is there said that what was said in Gypsy Jokers firmly points against accepting the central argument that was being put here.  But of course, that – the first thing is that central argument has to be read in the context of the passage that reveals that argument at 116 and 117, which is an absolute submission.  This was the point that your Honour Justice Edelman made to the Solicitor‑General this morning, it is an argument that is distinctly different from ours, admitting of no exceptions, and requiring that evidence or information is to be accessed, whether either personally by the party or by the representative.

So that is the first point about these passages.  But then, even more importantly, and despite Mr Walker not seeking to reopen Gypsy Jokers in Pompano – Mr Walker would have been far more diligent than I and would have done that at an early stage – the Court says that:

lest it be said that the point was not dealt with expressly by a majority of the Court in Gypsy Jokers, it is as well to explore the issue further.

So, the Court in Pompano sees not difficulty whatsoever with going on to consider even that more absolute form of the argument – a quite different argument to the one I am putting – despite the authority of Gypsy Jokers, which, as I say, Mr Walker did not seek to reopen.

Then, the further point to complete the picture, if your Honours look in Justice Gageler’s reasons on 189 and 190, his Honour is obviously of the same view that the argument that is being put is not foreclosed by that authority.  Can I also say – because the Solicitor‑General spent some time in this passage – what your Honour was dealing there – see 189 – was looking to see whether the proposition that a court cannot be required by a statute to adopt a procedure that is unfair does have admitted exceptions.  There is certainly not an endorsement of the particular reasoning – particularly the reasoning that your Honour in fact identifies as not right, that is, exclusion as opposed to modification.

Can I then deal with Pompano, we understood the Solicitor‑General to at least accept this much, that the scheme in issue in Pompano is a very different scheme, which is a firm and good starting point for us saying that it is distinguishable.  I dealt with this yesterday, it has a number of safeguards, those safeguards are designed to ensure fairness, and in the way that I explained yesterday, they comply with our minimum requirement.  But, in any event – and this is the point I just made – the Court was not there dealing with an argument of the nature we put here.

Now, can I just say something again about our argument?  Your Honours were referred to what we had said in paragraph 26 – if your Honours have our written submissions – and Justice Edelman made the point to the Solicitor‑General that our emphasis is on the second‑last sentence of paragraph 26, “a fair opportunity to respond”.  It is not, to repeat myself, that disclosure of all material is required to a party or their representatives.  If there is any doubt about that, look further down the page to paragraph 29, where we say that very thing:

It does not impose an “absolute” requirement that the affected person be given the evidence that may be used against them.

What it required is what I just said:

“fair opportunity” to respond to the evidence.

Of course, that embraces Justice Gageler in Pompano, but we say is also the way one reads the reasoning of the plurality.  It was also – just while I am dealing with what we have said before – it was also suggested that we had not advanced the submission regarding gisting below.  Can I say, that is wrong, and if your Honours have the core appeal book and look to page 52 ‑ ‑ ‑

KIEFEL CJ:   I am sorry, page?

MR LENEHAN:   Page 52.  This is part of paragraph 86.  You see at the top of page 52, after a reference to Justice Gageler’s reasons in Pompano – that we acknowledge:

during submissions that something less than all the evidence (for example a summary, or the gist of the evidence etc.) may be given depending on the circumstance –

although the Court said that we were still absolutists in the submission that we were advancing.  So, we firmly put that proposition ‑ ‑ ‑

KEANE J:   Did you put it to the Tribunal?  This looks like they are talking about what you put to them.

MR LENEHAN:   Yes.

KEANE J:   To the court.

MR LENEHAN:   Yes.

KEANE J:   But what about the Tribunal?

MR LENEHAN:   No, I cannot – I do not know that that submission was put to the Tribunal.  I suspect that it was not.

KEANE J:   I think the Solicitor’s point was that the Tribunal had not been invited to – or in the proceedings before the Tribunal, no question had been raised about giving the gist of the issue.

MR LENEHAN:   Yes.  I have obviously then misunderstood his submission, and I apologise.  But, can I say that we did say very clearly to the Federal Court that that was a way in which – if the limitation operated the way we said it did, and the provision was then to be read down, that was an available way in which procedural fairness could be afforded to us in the Federal Court.

EDELMAN J:   Would it matter whether you raised it in the Tribunal?  In other words, if you had not raised the gisting point in the Tribunal, but on a proper understanding of the operation of section 46 you were denied procedural fairness, then raising that point for the Full Federal Court would have been sufficient, or not?

MR LENEHAN:   It must have been sufficient, your Honour, because if the argument had been raised in the Tribunal, we would have been met with a very swift answer, because the legislation, as the Solicitor‑General says, points in one way, and the difference in the Federal Court is our point about procedural fairness in the Constitution.

KEANE J:   No.  If you had said to the Tribunal, we are entitled to know the gist of what is said against us, that could then have been addressed.

MR LENEHAN:   Your Honour, that is so, as regards to the Tribunal.  But then – and there is a point there, there is a point, this was taken up by Justice Edelman – there is a point about the level of generality permissible.  So, it is possible that we – it is possible that they may have prompted more.  That is not an avenue that we pursued.  But that then does not deny that when we get to the Federal Court, where procedural fairness is required to be afforded, we have a procedure that effectively shuts us out.

KEANE J:   And before the Federal Court, did you invite the court to look at the closed material and come to its own view as to whether the certificate was valid, in the sense of being within the bounds of reasonableness?

MR LENEHAN:   Your Honour, I did not do that, no.  I am told by my junior that was for a good reason, that was because the Commonwealth said we could not – I could have taken a different view, I did not.  Now, I think I am still with Pompano, and I am ‑ ‑ ‑

EDELMAN J:   Just before you move away from the gisting point, you may wish to come back to this, but could you, either now or at some stage in your reply, address to me precisely what you say the matter contained in the document is?  What is meant in section 46(2) by the “matter contained in the document”?  It seems to me that there have been different assumptions that have been made underlying various different submissions as to precisely what that is.

For example, it may be that the “matter contained in the document” is different from “information . . . contained in a document” which is the phraseology in subsection (4), or it may again be different from section 39B(3) which talks about “the information or the contents of the document”.  What precisely is the applicant’s submission about the meaning of the “matter contained in the document”?

MR LENEHAN:   Your Honour, I might, if your Honour is happy for me to do so, come back to that at the end of my reply while my juniors tell me what I should be saying.

So, I am then back with paragraph 157 of Pompano, and the point – and I sought to make this yesterday, this is also our answer to the submission that is made against us today and yesterday – is that our argument concerning the minimum requirement fits entirely comfortably within paragraph 157.

I accepted yesterday, addressing your Honour the Chief Justice’s question, that the sentence with the words “general rule” are to be understood as in just that way:  it is a rule, but not an invariable one.  And the very next sentence, which the Solicitor‑General did not deal with, explains how that is to be understood, because it is to be understood:

As the trade secrets cases show –

I spent some time on that yesterday.  Those cases show – those cases, and all of the other counter‑examples put forward by our friends and those canvassed by your Honour Justice Gageler make clear that the types of adjustment that are familiar under both the common law and statutory schemes are those which continue to afford procedural fairness in the way that we contend for.  That is, with at least the minimum requirement that we have identified.

As the exchange between your Honour Justice Gageler and our friend from WA indicated, that is approached on the basis that there are circumstances – not entire classes of cases – in which the competing interests may compel some qualification to the application of that general rule.  And that gets back to our point about flexibility and the power of the court to ensure that party in the position of my client is afforded procedural fairness.  And that is what we say is entirely lacking in section 46(2).

KEANE J:   Mr Lenehan, do you accept the first sentence of paragraph 157?

MR LENEHAN:   Yes.  I do, your Honour.

KEANE J:   So, Chapter III is not enshrining the adversarial system?

MR LENEHAN:   No.

KEANE J:   And do you accept that, in addition to that, we should not be worrying ourselves about whether a particular procedure is properly described or characterised as adversarial, or inquisitorial or protective before going on to decide that, having regard to the nature of the subject matter in question, before going on to decide what procedural fairness requires in such a case?

MR LENEHAN:   Your Honour, we do say that where an adversarial process is – as it mostly is in an Australian context – the scheme adopted, that that then brings with it certain incidents.   We say – and this was the passage that I took your Honours to yesterday in Justice Heydon’s reasons in International Finance – it is internally contradictory, then, to exclude procedural fairness from that sort of procedure.

KEANE J:   Because the notion of equality of arms is a necessary implication from an adversarial system.

MR LENEHAN:   Yes.

KEANE J:   That each adversary must have equal arms.

MR LENEHAN:  Yes.  But we do not for a moment say that there are – and the parental cases, the other examples that are thrown up, are examples of non‑adversarial procedures.  We do not say that that detracts from the submissions that we are putting.

KEANE J:   But you also accept that Parliament can provide for non‑adversarial proceedings?

MR LENEHAN:   Yes.

KEANE J:   Consistently with Chapter III?

MR LENEHAN:   We do, but this is not one of them.

KEANE J:   Well, is not the point that it really just depends on what Parliament does provide?  One does not have to worry about labelling it adversarial, or inquisitorial or protective.  One just looks at the case and the nature of the subject matter in question and the procedures that Parliament can provide, and then one asks, is it unfair?  One does not pause in the analysis and say, bingo, it is adversarial, therefore there is an implication from that.  One just looks at what the laws provide and asks, is it unfair?

MR LENEHAN:   Your Honour this is, I think, on any view, an inter partes dispute.

KEANE J:   Yes.

MR LENEHAN:   It is, we would say, an adversarial ‑ ‑ ‑

KEANE J:   And there are many examples of what are undoubtedly inter partes cases where the usual rules about openness or fairness have been changed.  Until recently – relatively recently, in the history of the common law – the considerations of open justice required that the names of the parties be stated.  Now, we are familiar with many, many cases where the names of the parties are anonymised.

In times past, and at the common law, the only case where you could sensibly or lawfully anonymise a party or a witness was, for example, in the case of bribery.  In a prosecution for bribery you could anonymise the complainant because otherwise the very mischief which the proceedings were designed to remedy, that is, proceedings against a blackmailer – a blackmailer, sorry, not bribery – blackmail.  Disclosure of the name of the complainant would damage the complainant.  That consideration justified an intrusion on principles of open justice in what is undoubtedly an adversarial proceeding.  Paragraph 157 in Pompano is saying if you have an adversarial system, then it makes certain assumptions.  But it is saying that they are not absolute.  At the bottom you always have to ask, is the procedure unfair, having regard to the nature of the proceedings.

MR LENEHAN:   Yes, your Honour, we – and I hope I have been sufficiently clear about this – we accept that there can be adjustments to the requirement of procedural fairness, that Parliament can do those things.  But we say that, at some point, there is a line to be drawn, and that line we have identified as what I have been calling the minimum requirement, which we draw from Justice Gageler in Pompano but which, we say, is also really understood as how practical justice is afforded.  We similarly accept, to take your Honour’s example, that other things that have been identified as essential requirements such as open justice, have been able to be varied within limits.  But again, there are limits.  Does that answer your Honour’s question?

I think ultimately, the Solicitor‑General’s submission based on Pompano really boils down to the notion that competing interests will sometimes require attenuation of the general rule for disclosure.  We say, and I hope I have now made this clear, that is not against us.  We fully accept that.

The circumstances, again to pick up the language in 157 that your Honour Justice Gageler noticed before, the particular circumstances can compel some qualification but – the point that I have just made to Justice Keane - there is a limit.  And we say that that limit is accommodated in a permissible and procedurally fair way by means of the various mechanisms that we have sought to highlight which, we say, are in fact illustrated by the examples that Justice Gageler gives in paragraph 192 which, contrary to the Solicitor‑General’s submissions, we say is a paragraph which is entirely consistent, again, with our case.  Can I also, in that same vein, address Haralambous, which is behind tab 50, in volume 10.

KIEFEL CJ:   I am sorry, I did not catch the name of that case.

MR LENEHAN:   Haralambous, your Honour.

KIEFEL CJ:   Thank you.

MR LENEHAN:   So it is the House of Lords case.  If your Honours go back to 2968 – or 272 of the report – your Honour Justice Gageler asked our friend, is it not the issue that arises in these proceedings all about issue (v), not issue (iv).  We say that is exactly right.  We say that paragraph 61 is a paragraph which has direct echoes with the reasoning of this court in HT, and, in particular, the sense that your Honour Justice Gordon noted, the very first sentence of 61 –

open justice should prevail to the maximum extent possible.

And the next sentence –

Any closed material procedure –

I will come back to what that is understood to mean here –

“should only ever be contemplated or permitted by a court if satisfied, after inspection and full consideration of the relevant material as well as after hearing the submissions of the special advocate, that it is essential in the particular case” –

Further, next sentence –

Further, the nature of the issue may require, as a minimum, disclosure of the “gist” of the closed material, to enable the person from whom it is withheld to address the essence of the case against him –

Now, it is true, as the Solicitor‑General indicated, that the Court went on to say – referring to Tariq – that that was not an invariable requirement in all cases.  That is the particular issue that it is addressing her, but, see paragraph 65, and unlike section 46(2):

Every case must of course be considered in the light of its particular circumstances.

That is what we say is forbidden by this statute, and that is why the court has no capacity – unless the statute is read down – to address the unfairness that accrues to my client.

EDELMAN J:   Why is it that?  Why is it prohibited in this statute?  If matter contained in the document is an expression that permits – as the Solicitor‑General accepts – gisting, at least in some cases, why could not matter contained in the document permit gisting in all cases?

MR LENEHAN:   Your Honour, that certainly was not, as we understood, the position taken below.  There was no question that whatever was protected by 46(2) could be the subject of some sort of summary or gist disclosed to my client.

EDELMAN J:   I appreciate that.  I am just trying to understand what the difference is between you and the Commonwealth in this Court?

MR LENEHAN:   There may – I think the Solicitor says that everything that is covered by the certificate is off limits in terms of gisting.

STEWARD J:   No, no, no, that is not quite right.  He said, anything that falls short of a matter could be disclosed.

MR LENEHAN:   Yes.

STEWARD J:   So, the question I would have for you, Mr Lenehan, if that is accepted and right, what is wrong with the validity of the provision?

MR LENEHAN:   Your Honour – and I think this is the answer to Justice Edelman’s question – the matter is to be understood by what is formulated in the certificate.  I am not sure that we have – your Honours, I am starting to wonder whether, to address this question specifically, I do need to have the form and the certificates.

Your Honour, I think the answer is this.  The notion of matter in section 46(2) depends upon the terms of the certificate.  In this case, as far as I recall, that is done by reference to things that are attached to the certificate but are not seen by my side.  So that would then seem to suggest that all of the material that is contained in whatever is attached to the certificate is then unable to be the subject of any summary.

EDELMAN J:   That submission, if it is right, would mean that the Minister, in the process of certifying, has a unilateral power to define the matter and thereby, if they wish, to exclude gisting entirely by defining the matter very, very broadly or at a very high level of generality.

MR LENEHAN:   Yes.  That is so, your Honour.  And that then may be a way of understanding why it was that we were not given a – we were not able to, as I understand it, be given a further summary below in the Federal Court.  Does that also answer your Honour’s question that I said I was going to be ‑ ‑ ‑

EDELMAN J:   Yes, it does.  Thank you.

MR LENEHAN:   Thank you.  That then leaves me with, I think, severance and reading down.  Can I make these short points?  First, we – I understand our friend to say that section 46(4) can be stretched to embrace a special advocate.  And we say – we are not, in fact, at odds with him on that, in terms that we say that either that provision or 46(2) can be construed so as to permit that sort of procedure, but we say, particularly, as regards his submission on 46(4), there is no reason in principle that that could not also include a legal representative, looking at the reasoning of Justice Foster in Fernandes, which – and the only point of distinction his Honour seemed to draw was between public servants employed by a court and all other persons.

So, an amicus appointed by a court and a person who has duties to a court as a legal representative, we, for our part, can see no relevant differences between those persons.  And so, if section 46(4) can be stretched in that way, we say that is another way in which the minimum requirement for which we are contending can be accommodated.  Your Honours have already heard our broader submission on reading down and severance.  The criticisms made of that are that I have, perhaps, embraced too many different ways of putting how that may be done.  I may have embraced a number of formulations, but we say they are all, essentially, the same.  And as to the difficulty of a Federal court applying ‑ ‑ ‑

KIEFEL CJ:   What do they come down to if they are all, essentially, the same?

MR LENEHAN:   Your Honour, we have no difficulty in embracing the notion of subject to procedural fairness.  If your Honours were more inclined to adopt an approach which referred to the inherent nature of judicial power or the essential characteristics of a court, that would not be an impermissible way of applying section 15A.  In fact, the IndustrialRelations Act Case makes that clear.  Reading down or severance can take place by reference clear constitutional limitations.  Of course, one of the limitations in issue in that case was the difficult Melbourne Corporation limitation.  So, we say that is not an answer either.  Unless your Honours have any further questions, those are the submissions in reply of the appellant.

KIEFEL CJ:   Thank you, Mr Lenehan.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.

AT 4.02 PM THE MATTER WAS ADJOURNED