SDCV v Director-General of Security & Anor

[2022] HCATrans 100

[2022] HCATrans 100

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 TUESDAY, 7 JUNE 2022, AT 10.45 AM

Copyright in the High Court of Australia

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MR T.M. WOOD and MR S.N. RAJANAYAGAM for the appellant.  (instructed by Michael Jones, Solicitor)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honours, I appear with MR M.J.H. VARLEY, who appears remotely, and MS M.F. CARISTO for the respondents.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR M.W.R. ADAMS for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor’s Office (NSW))

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with MS J.M. VINCENT on behalf of the Attorney General for the State of Western Australia intervening.  (instructed by State Solicitor’s Office (WA))

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friends, MS F.J. NAGORCKA and MR K.J.E. BLORE, on behalf of the Attorney‑General for the State of Queensland intervening.  (instructed by Crown Law (Qld))

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with MS L.M. FORAN for the Attorney‑General for the State of South Australia intervening.  (instructed by Crown Solicitor (SA))

KIEFEL CJ:   Thank you.  The record should show that Justice Gleeson is sitting remotely.  Yes, Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  Your Honours, I am going to develop our submissions in this way.  First, I am going to say something about the legislative scheme and the way that it was applied here, then I am going to explain the constitutional limitation for which we contend and then I am going to apply that limitation to section 46(2) of the AAT Act and, in the course of doing that, deal with various arguments put against us by our friends and by the interveners.  Finally, I am going to deal with the questions of severance and reading down.

Starting with the legislative scheme, your Honours know that the appeal arises from an adverse security assessment and the adverse security assessment in respect of the appellant was furnished by ASIO under the ASIO Act.  Your Honours have that Act in volume 2 of the joint bundle, behind tab 5.  If I can invite your Honours to look to that Act and within that Act look to section 17, which is at 229 of the joint bundle, you will see there are there various functions of the organisation which is continued in existence by section 6 of the Act.  They include in 17(1)(c) advising relevantly Ministers:

in respect of matters relating to security -

There is then what I will call a further explication of that function in section 37, which appears at 235, and your Honours see section 37(1):

The functions of the Organisation referred to in the paragraph –

I have just been to:

include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.

Now, section 35 defines some of the terms that are used in section 37, and so if I can invite you to go back to that provision starting at page 230.  Your Honours will see there at the bottom of 230:

Commonwealth agency -

relevantly includes a “Minister”.  A few pages over on 232 you will see the notion of “security assessment” is there defined, and it is:

a statement in writing . . . expressing any recommendation, opinion . . . whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person -

That term, “prescribed administrative action”, is also defined.  That is on the preceding page, 231, and it relevantly includes. in paragraph (b):

the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 -

Your Honours will have seen from the judgment that the relevant power here under the Migration Act was the national interest cancellation power in section 501(3) of the Migration Act.  Can I remain with the ASIO Act?  You will see that section 35(1) on page 230 also defines “adverse security assessment” and that relevantly includes – see paragraph (b):

a recommendation that prescribed administrative action –

the term that I have just noted:

be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person. 

So, here, the recommendation was that my client’s visa be cancelled, and I will come back and show you that in the judgment in a moment.  The Act then makes a number of specific provisions for that kind of assessment – an adverse security assessment.  If your Honours go a few pages over to page 235, and section 37, which I have already shown your Honours before, but then move down to subsection (2):

An adverse or qualified security assessment shall be accompanied by a statement of the grounds –

and see paragraph (a), that is required to:

contain all information that has been relied on by the Organisation in making the assessment –

subject to an exclusion:

in the opinion of the Director-General –

where it will be:

contrary to the requirements of security –

We do not understand that exclusory power to have been exercised here, for reasons that I will come to in a moment.  Then 2(b), that statement of grounds is taken to form:

part of the assessment.

Now, a further specific provision in relation to adverse security assessments appears in section 38 over the page on 236, and it is essentially a notice provision which applies where an adverse security assessment is furnished to a Commonwealth agency.  So, section 38(1) requires the agency to whom an adverse security assessment is furnished to give the subject of the assessment a copy of the assessment, which includes the statement of grounds, see again 37(2)(b), but that obligation is then conditioned by other subsections in that same section, that is 32 – relevantly here, 32(2)(b) and (5).  Starting with (2)(b), you will see this is where the ministerial certificates come in:

The Minister may, by writing . . . certify that the Minister is satisfied that:

. . . 

(b)the disclosure to a person of the statement of grounds contained in a security assessment in respect of the person . . . would be prejudicial to the interests of security.

Then subsection (5) has the effect that where such a certificate is given, the copy of the assessment and the statement of grounds cannot contain the certified matters.

The way those provisions operated here are recorded in the judgment below, and if your Honours turn to the core appeal book and page 39, at the top of that page in paragraph 49, you will see there was an adverse security assessment – it is referred to as the Director’s certificate – recommending that the visa be cancelled, which was accompanied by the statement of grounds which, as I have said, is deemed to be part of the assessment, and that is also noted in that part of the judgment.  Then, in paragraph 50, it is noted that that has:

sections omitted in accordance with –

the provision that I have already noted, that is, 38(2)(b):

by reason of a public interest non-disclosure certificate signed by the Minister –

There is a summary there of what was disclosed, that is, the appellant:

had “employed communications security tradecraft practices while engaging with individuals of security concern, including Syria based individuals affiliated with ISIL”.

Your Honours note in passing 52, where it is noted that the appellant:

sought review of the ASA decision –

and then, after that - see over the page at paragraphs 53 and following - there is then a revised statement of grounds furnished to my client, and that reflected a partial revocation of the public interest non‑disclosure certificate by the Minister, on the basis:

that certain information was no longer prejudicial to security.

You can see in that paragraph and in the paragraphs that follow the somewhat more detailed statement of the grounds that were then furnished to my client.

Now, I have noted that my client exercised his rights under section 54 to apply to the Tribunal for review.  The procedure in that review, and then in the Federal Court, is governed by the AAT Act, which your Honours have in volume 1 of the joint bundle.  If I could ask you to look at that, it is behind tab 3.  If I can ask your Honours to look to page 111 of the bundle, or 85 of the reprint, which is section 39A, and when your Honours have it, you will note first 39A(1), if a person applies for a review of an adverse security assessment to the Tribunal:

the Tribunal is to review the assessment in accordance with this section.

Then, moving down to subsection (3), you will see it requires:

the Director‑General of Security to present to the Tribunal all relevant information available to the Director-General,
whether favourable or unfavourable –

Now, that obligation is unqualified, and so it extends to information that was the subject of a certificate given under the provision that I have noted before, that is 38(2)(b) of the ASIO Act.  If your Honours turn over the page and look to 39A(8), you will see that it is a further provision dealing with the certificate, and it provides that:

The ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director‑General of Security . . . are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia.

The Minister, as your Honours have seen from the judgment below, signed four sub-certificates.  That is noted at paragraph 59 of the judgment.  In each case, the Minister stated that the disclosure of the certified matter would be contrary to the public interest because it would prejudice security.  Now, those certificates were also issued under a separate power, section 39B, which I am coming to shortly, but can I, before I get there, note 39A(9) which deals with the consequences of such a certificate being given.  So it provides that:

(a)the applicant must not be present when the evidence is adduced or the submissions are made; and

(b)a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents.

So what that does is it qualifies the right that those persons would otherwise have to be present during the hearing, which your Honours see is made clear in subsection 6 on page 111.  Now, I mentioned before that the Minister also relied on a separate certification power in issuing the certificates.  That is section 39B, which appears at 114 of the joint bundle, and your Honours note there, first subsection (1):

Scope

(1)This section applies to a proceeding in the Security Division to which section 39A applies.

Then in the next subsection you see the certification power itself, and here the Minister certified that disclosure would be contrary to the public interest because of one of the matters specified in (a), that is:

because it would prejudice security –

We see that again recorded in paragraph 70 of the judgment, and so that is the same matter of relied upon in acting under 39A(8).  Now, what is the consequence of that separate certification?  Your Honours see that dealt with in subsection (3) on page 115.  So, what it does is that it does not excuse a person from complying with a requirement to disclose information or produce a document to the Tribunal for the purpose of the proceeding, for example, the requirement I noted before in 39A(3).  What it instead provides is that the Tribunal must do all things necessary to ensure that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal.

Pausing there, your Honours may note that that provision is in similar terms to the provision which is at the centrepiece of this litigation – that is section 46(2) – to which I will come shortly.  Before I do, can I say what the apparent object is in providing for that separate certification procedure?  We say that is explained by the fact that the two provisions operate on different classes of subject matter.  As I have just said, section 39B(3) operates in a case where a person is required under the AAT Act:

to disclose the information or produce the documents to the Tribunal for the purposes of a proceeding –

So it applies to what I will call mandatory disclosures, including the disclosure required by section 39A(3).  Section 39A(8), in contrast, operates in respect of evidence proposed to be adduced or submissions proposed to be made.  So, it covers what I will call material disclosed voluntarily by the Director‑General.

Now, the way in which that operated here can be seen in the Tribunal’s reasons, and your Honours have that in the core appeal book behind tab 1, and when your Honours have that if I can ask you to look to page 6.  In paragraph 4 the Tribunal notes that the review is governed by the provisions that I have just noted.

Then in paragraphs 5 and 6 it records the fact that evidence was heard in “open session” but also “in closed session in the absence of the applicant”.  The closed session proceedings are the subject of a set of closed reasons, which for your Honours’ reference is issued pursuant to the power in section 43AAA(5) of the AAT Act.  If your Honours then look forward in the Tribunal’s reasons to page ‑ ‑ ‑

KIEFEL CJ:   Mr Lenehan, do you know whether or not the statements were received in evidence during the closed session?

MR LENEHAN:   Your Honour has in mind the statements of grounds?

KIEFEL CJ:   Yes.

MR LENEHAN:   We do not know, I do not think, exactly what was before the Tribunal, but we assume that the statements of grounds were provided to it and were in evidence before it.  Mr Wood reminds me that, of course, the Director‑General was required to provide all such material to the Tribunal.

KIEFEL CJ:   But someone would have to formally tender it for it to have an effect, and that is what we do not know.

MR LENEHAN:   Yes, that is correct.  So I do not think ‑ ‑ ‑

KIEFEL CJ:   Because that affects its status before it – or its classification before it comes to the Court, does it not?

MR LENEHAN:   It does, your Honour.  We assume, but I think it is only an assumption, that such material was before the Tribunal and then that same material is what makes it to the Court.

GORDON J:   Well, there must have been some evidence because when you go to your ground 5 there is a reference in the Full Court’s reasons to closed evidence ‑ ‑ ‑

MR LENEHAN:   Yes.

GORDON J:   ‑ ‑ ‑ which they rely upon in order to support or reject your complaint about the findings not being open on the evidence ‑ ‑ ‑

MR LENEHAN:   Yes, and I was ‑ ‑ 

GORDON J:   ‑ ‑ ‑ and so that they cannot reach that conclusion but by reference to the closed evidence, but we do not know what that closed evidence was.

MR LENEHAN:   No, but I was about to show your Honours where you find that picked up in the reasons of the Tribunal.  That is at page 8, and then over to page 9.  So page 8 at the foot of the page, paragraph 19:

We were not able to form a view on the main question before us, which may be summarised as whether the ASA was justified, based upon the evidence led before us in open session.

We have written closed reasons for decision based upon the classified evidence placed before us and have concluded, based upon that evidence, that the ASA is justified and that the reviewable decision should be affirmed.

So that is where your Honours will find that referred to.  We infer from that, that that material was before the Tribunal and as I say then makes its way to the Court.

GORDON J:   Just so I am clear about that, in the core appeal book at 105 to 106, there is a distinction drawn between classified, unclassified open documents, unclassified partially redacted, but we have no separate index, do we, of that which was closed?

MR LENEHAN:   No, we do not, your Honours.

GORDON J:   Thank you.

MR LENEHAN:   The Solicitor‑General may be able to set you right on that, I am not in a position to do so.  Now, my client then appealed to the Federal Court, pursuant to section 44 of the AAT Act.  If your Honours would look to that provision - it is back in volume 1 of the joint book at page 137 - so, 44(1):

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law –

and then section 44(3) conferred jurisdiction on the Federal Court in respect of such an appeal.  Those provisions then place in context the critical provision which is a few pages over at 146, section 46.  So, your Honours see section 46(1) provides that, on appeal under section 44, despite section 39B(3), the Tribunal shall: 

cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal or reference relates and are relevant to the appeal –

So, back to your Honour the Chief Justice’s question, we assume that that included the certificated material, notwithstanding that we do not know what that is and how it was adduced below. 

Section 46(1)(a) creates an exception to the secrecy provisions that, as your Honours saw before, is imposed on the Tribunal by section 39B(3).  Your Honours then come to the key provision, section 46(2), which concerns the disclosure of documents on section 44 appeals.  It provides that if a certificate is issued in accordance with, relevantly, section 39B(2), then the Federal Court is to do “all things necessary” - and I will come back to the significance of that phrase in relation - when I address severance and reading down:

to ensure that the relevant matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding -

Your Honours can note we have put aside section 46(3).  It provides for a procedure whereby the court can decide to permit inspection in certain circumstances, but it is not applicable here by reason of subsection (3)(a) and that is because it does - the certificates do specify a reason in section 39B(2)(a).  Section 46(4) then provides that section 46 does not prevent disclosure of information contained in a document “to an officer of the court in the course of the performance of his or her duties as an officer of the court”.

I mention this provision because it arises in our friend’s argument on severance in footnote 72 of their written submissions.  This was the reason for providing to your Honours Fernandes 233 FCR 461, a decision of Justice Foster which is not in the joint book. Your Honours hopefully have it. Just to show your Honours paragraph 44(a) – his Honour is here dealing with an argument which you see in paragraph 36:

It was contended on behalf of Dr Fernandes that, because his solicitor and counsel were both “officers of the Court” . . . is generally understood in respect of lawyers who have been admitted to practice by a Court . . . his lawyers fell within the definition of “officer of the Court” in s 46(4) –

That is the submission that his Honour is rejecting in section 44(a), and his Honour there says:

As a matter of statutory interpretation paying due regard to the objects . . . I do not think that the expression “officer of the Court” means or includes any legal practitioner admitted to practice –

What it means instead is, his Honour says:

public servants employed in the Court to assist the judges in performance of their judicial function.

Now, if that be correct – and the Solicitor-General says that it is – then the appellant’s legal representatives cannot be provided – or could not be provided with the certified material via that mechanism, subject of course to section 15A, which I am coming to at the end of my submissions.

STEWARD J:   Mr Lenehan, do you say that that reason also forecloses the appointment of special counsel by a court?

MR LENEHAN:   Your Honour, we do not.  I am going to address a series of possible reading‑down and severance propositions at the end of these submissions.

GAGELER J:   Mr Lenehan, are you finished with section 46 at this point?

MR LENEHAN:   Yes.

GAGELER J:   Could I just ask a question about the scope?  Section 46(1)(d) is concerned with the transmission of the documents from the Tribunal to the Court, and then subsections (2) and (3) – just using their language – are concerned with disclosure and inspection ‑ ‑ ‑

MR LENEHAN:   Yes.

GAGELER J:   None of that seems to me to contemplate that the documents transmitted are automatically in evidence before the Federal Court in proceedings of this nature.

MR LENEHAN:   That is so, your Honour.

GAGELER J:   How did the documents get into evidence in this case?

MR LENEHAN:   They were tendered by our friends subject to a series of restrictive orders which meant that my client and my team did not see them. 

GAGELER J:   Thank you.

STEWARD J:   Can I ask one more question whilst we are here.  You mentioned before that section 43AAA(5) permitted the Tribunal to give, I think, a redacted reason – or something like that.  Those reasons, no doubt, get supplied to the Federal Court under 46(1), as well as the non‑redacted reasons. 

MR LENEHAN:   Yes, they were, your Honour.  Again, I am a little in the dark because I did not see what I did not see.

STEWARD J:   Then does 46(2) also apply to prevent the court from giving the unredacted reasons to a party?

MR LENEHAN:   Your Honour, we assume – we do not know – that it did for this reason, that it contains certificated material. 

GORDON J:   So, can I just make clear - is that because the way the statutory scheme works it is not so much the document but the matter ‑ ‑ ‑ 

MR LENEHAN:   Yes.

GORDON J:   Is the hook which governs the non‑disclosure or the certification and therefore the non‑disclosure?

MR LENEHAN:   That must be right, your Honour, yes.

GORDON J:   Is it, as I understand it, that the AAT picks up the reference to security in the definition of “security” in the ASIO Act by saying that the security assessment has the same definition in the AAT Act as it does in the ASIO Act?

MR LENEHAN:   Yes.

GORDON J:   So, it builds on that fact that there is a matter referable to security referred to somewhere.

MR LENEHAN:   Yes.

GORDON J:   Thank you.

MR LENEHAN:   Yes, all of that is so.

GAGELER J:   Mr Lenehan, just going back to your earlier answer to my question, are the orders you refer to those at page 99 of the core appeal book?

MR LENEHAN:   Yes, that is correct, your Honour, yes.

GAGELER J:   They are orders made in the exercise of power under the Federal Court of Australia Act, are they?

MR LENEHAN:   Yes.  So, your Honours see how it was that the court did what it understood to be required by the “all things necessary” provision.

GAGELER J:   When these documents went into evidence, was that over the objection of your client?

MR LENEHAN:   Well, my client, as your Honour would have seen, said there was a constitutional difficulty with what was being done.  That was heard in a separate hearing and we failed.  So, we sought to say this procedure cannot be adopted by the Federal Court for the reasons that we are now advancing to this Court.  So, having then failed in that aspect of the case, it followed that we were not permitted to see the material.  There was no other accommodation afforded to us which might have afforded my client procedural fairness. 

GAGELER J:   There was no submission on your part that the admission of the documents was the step in the proceedings that was procedurally unfair?

MR LENEHAN:   Your Honour, I do not think I can say that at the time that Mr Herzfeld sought to tender the documents that I took that objection.  But that was because I had already failed on my constitutional objection, which sought to read – effectively read down or sever the provision in a way that would have done the very thing that your Honour has in mind.

GAGELER J:   Thank you.

MR LENEHAN:   Now, it is not controversial, as we understand it, that the Full Court then relied on that material and, further, that neither my client nor my team had access to it by reason of the orders that have just been noted in section 46(2).  That then leads me to the constitutional limit for which we contend, and we say as introductory remarks, something obvious.  The judicial power of the Commonwealth can, of course, only be exercised by bodies that are courts within the meaning of Chapter III, and those courts cannot exercise non‑judicial power and we say ‑ ‑ ‑ 

EDELMAN J:   Mr Lenehan, just before you get into the constitutional questions, is the assumption on which those submissions are proceeding, that absent any section 15A reading down or disapplication, section 46(2) would require – on its proper interpretation – the court to exclude the material in the way that it did in the orders at page 99?

MR LENEHAN:   Yes.

EDELMAN J:   Why is that necessarily so?  Is that because of “do all things necessary” – that you see “do all things necessary”, and one of the things necessary is the exclusion of this material?

MR LENEHAN:   That is correct, your Honour.  Yes.

EDELMAN J:   Is there any reason why “do all things necessary” would not be read as do all things necessary in the power of the court?

MR LENEHAN:   We enthusiastically embrace that proposition, your Honour, as part of our construction argument.

EDELMAN J   Well, it could not be do things that are not within the power of the court ‑ ‑ ‑ 

MR LENEHAN:   Yes.

EDELMAN J:   If that is so, why would not the powers of the court be the matter, or be an issue that is subject to the usual considerations of procedural fairness?

MR LENEHAN:   Your Honour, we entirely endorse that.  That was the – a point that in a different way we sought to make below as part of our reading down.

GORDON J:   Mr Lenehan, could you please speak up.  I cannot quite hear your response to Justice Edelman, and I would like to hear it.

MR LENEHAN:   I am so sorry, your Honour.  That, of course, was what we sought to say in our reading down/severance argument below, that, effectively, the court should, in whatever way it thought appropriate to afford my client procedural fairness, either disclose the material, disclose the gist of the material, undertake some other procedure that would afford my client procedural fairness.

So, one of the arguments that we had made in writing that I am going to come back to is to pick up on your Honour’s idea that “all things necessary” has to be understood as consistent with the character of the court or the nature of judicial power.  If that is so, we say it is – and this is the point that I ultimately have to get to after I do my validity submissions ‑ ‑ ‑ 

EDELMAN J:   Why is this an ultimate point?  Why is this not your starting point – what provision means absent any reading down?  The question of what it means and how it applies would usually be one which would take into account issues of interpretation and construction, such as sometimes express and clear words are needed before one would construe a provision to require the exclusion of procedural fairness, particularly by a court.

MR LENEHAN:   Yes.  I take your Honour’s point and I apologise.  That should be at the forefront of our submissions.  The reason we have ordered it in the way that we had was that we thought the gateway to that was 15A.  It may be, as your Honour says, the principle of legality of course includes those kinds of institutional values and potentially means that the court – and we say that it should – construe necessary in the way that your Honour has in mind.

EDELMAN J:   But your submission is, effectively, that even if one does not do that, exactly the same exercise would be required by 15A ‑ ‑ ‑

MR LENEHAN:   Precisely.

EDELMAN J:   And that is where you would come to. 

MR LENEHAN:   Yes, so by either of those routes my client succeeds.  Does that answer your Honour’s question?

EDELMAN J:   Yes.

GAGELER J:   Mr Lenehan, just a factual question.  Did you seek to understand the gist of the information that was received into evidence by the court?  Did you seek some order?  Was there some procedural step that was taken?

MR LENEHAN:   That begins the point of our constitutional submissions, your Honour.  So, one of the ways that we said that procedural fairness could be afforded to my client was through the notion of “gisting”. 

KEIFEL CJ:   I am sorry, through the notion of?

MR LENEHAN:   Of “gisting” - so with a “g”.  That my client could receive some – not the entirety of the material, but some summary of the classified material.

GORDON J:   Is that in addition to what is set out in the statement of grounds that appears earlier in the reasons for the judgment of the Tribunal?  So there are, in effect, three stages.  There was a statement of grounds provided to your client which arguably set out the substance of the claims being made to you by reference to two categories, and then particular aspects of those two categories of conduct:  burner phones, et cetera.

MR LENEHAN:   Yes.

GORDON J:   This was something in addition to that to enable you to understand what was the evidence – the closed evidence, in general terms – that was said to support the findings.

MR LENEHAN:   Correct.  As we understand it – and, again, we are in the dark – underlying that was a further body of material which our client was prevented from having.

GORDON J:   Yes.  So, in response to Justice Gageler’s question, when you said you sought the “gist” of that, the “gist” was in addition to what you had already been given in order to understand the closed evidence?

MR LENEHAN:   Yes.  I am sorry, I have not been sufficiently clear.  Yes.

GORDON J:   Thank you.

MR LENEHAN:   It is the gist of what it was that we did not see.

GORDON J:   That was part of your constitutional challenge as an option available to the court.

MR LENEHAN:   Yes.

GORDON J:   It was rejected on the grounds that 46(2) compelled it not to do it.

MR LENEHAN:   Yes, because 46(2) was understood to mean what it says on its face, which was understood to prevent us from ‑ ‑ ‑

GORDON J:   I know you will probably come to this.  When you read the reasons for decision of the Federal Court, there was an argument put, and at least an assumption of availability of exclusion as distinct from modification of procedural fairness, which arguably may have underpinned the reasoning of their Honours.

MR LENEHAN:   Yes.

GORDON J:   I have to ask the Solicitor.  I do not understand that exclusion is now put when I read the outline of oral argument.  I might be wrong about that.  Are you going to address that issue?

MR LENEHAN:   I am, your Honour, because we are ‑ ‑ ‑

GORDON J:   I will be quiet.

MR LENEHAN:   Yes.  Your Honour should not be quiet.  Your Honours, this is not in the book, but prompted by your Honours’ questions, what we put at the tail end of our written submissions on the constitutional point was this:

If there is in force in respect of any of the documents a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia or the Federal Circuit Court of Australia shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding.

Then we said that the way that the court should read that is except to the extent that the doing of such things would preclude the court from providing a party a fair opportunity to respond to evidence on which an opposing party relies and that was the reading down that was protected by the court.

Now, before Justice Edelman’s timely question, I was about to launch into the bit that I should have done after addressing that question – and that is, what is the constitutional limit that we rely on?  Essentially, we are drawing on a proposition that was recognised by Justices Deane and Toohey in Leeth – which your Honours have in volume 6, at tab 29, page 1711 of the book.  If I could ask your Honours to turn to that? 

GORDON J:   What is the page of the report, please?

MR LENEHAN:   Page 486, your Honour.  This, of course, is in the course of dealing with the legal equality submission but what their Honours say is then picked up in later authorities – including Lim – which I am coming to.  If your Honours look to the bottom of the page, you see footnote (64) – a familiar passage from Boilermakers’, that is:

Chapter III of the Constitution “is an exhaustive statement of the manner in which the judicial power the Commonwealth is or may be vested . . . No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with [its] provisions”.

Then, this point is made:

Those provisions not only identify the possible repositories of Commonwealth judicial power.  They also dictate and control the manner of its exercise.  They are not concerned with mere labels or superficialities.  They are concerned with matters of substance. 

That then leads to this conclusion in the sentence beginning “Thus”:

Thus, in Ch. III’s exclusive vesting of judicial power of the Commonwealth in the “courts” which it designates, there is implicit a requirement that those “courts” exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially.

While your Honours have Leeth, would you also note page 470 – which is in the joint judgment of Chief Justice Mason, Justice Dawson and Justice McHugh.  That is at 1695 of the joint book of authorities.  Their Honours there anticipate the very argument that we present here – that is:

It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non‑judicial requirement inconsistent with the exercise of judicial power, but the rules of natural justice are essentially functional or procedural –

The requirement that those bodies must exhibit the essential attributes of courts and observe the essential requirements of the curial process, of course then have – or give rise to a corresponding limitation on the legislative power of the Commonwealth Parliament.  That limitation was recognised in Polyukhovich – which your Honours have in volume 7 of the bundle.  It is at page 607 of the report or 2010 of the joint bundle.  In about the middle of that page, Justice Deane says this:

the Parliament cannot . . . infringe the vesting of that judicial power in the judicature by requiring that it be exercised in a manner which is inconsistent with the essential requirements of a court or with the nature of judicial power.

Picking up his notion in Leeth.  Similar statements, as your Honours have seen from our written submissions, were made in the judgments of Justice Toohey at page 689, and also Justice Gaudron at pages 703 to 704.  Their Honours used a slightly different notion.  They focused on inconsistency with the nature of judicial power rather than with the essential characteristics of courts. 

We have given your Honours ‑ but I do not need to take you to it – Professor Wheeler’s lucid explanation of the differences between those two ideas and their theoretical underpinning.  Can I summarise what Professor – and so I will say where that is in the bundle, it is in volume 11, tab 58.  But can I summarise her explanation in this way.  Professor Wheeler says Justice Gaudron’s approach reflects “the second limb of the separation doctrine”, and so:

a function not exercised in accordance with the judicial process is not judicial power and thus . . . cannot be exercised by a federal court or invested . . . in a state court –

by the Commonwealth Parliament.  In contrast, she says, Justice Deane’s formulation insofar as it refers to essential characteristics of courts reflects the first limb of the separation doctrine, that is federal judicial power cannot be exercised by bodies other than courts identified in section 71.  But there is an obvious overlap between those two approaches, as is apparent from Justice Deane’s reference to inconsistency with the nature of judicial power.

Now, Justice Deane’s articulation of that limitation on legislative power is, as I have said, taken up in Lim, and the passage that we have in mind is sufficiently set out in our written submissions at paragraph 16, and it is the notion that the grants of legislative power contained in section 51 of the Constitution do not:

extend to the making of a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.

That proposition – see our footnote 16 – is then cited with approval in later authorities.  Your Honours have seen that we rely upon both aspects of that constraint, that is, we say, first, procedural fairness is an essential characteristic of a court and also the judicial power of the Commonwealth includes as one of its dimensions – to use the language that your Honour Justice Gageler and Chief Justice French used in TCL – has one of its dimensions the observance of the rules of procedural fairness.

I will come back to that shortly.  Can I first say something about the way we put our case by reference to that constraint and the Kable principle, which partly responds to a number of points that are made by our friends for the interveners.  Insofar as the constraint identified in Lim, drawing on Justice Deane’s formulation, requires attention to the essential characteristics of a court, it obviously resonates with the Kable principle.  Your Honours know that the settled test for infringement of that principle is whether the law purports to confer on a State court a power or function which substantially impairs the court’s institutional integrity.  A number of our friends for the interveners point to that aspect, which, for example, you see in Emmerson at paragraph 40.

We say that in turn directs attention to the concept of institutional integrity.  We say that concept was explained in Forge, which your Honours have in volume 4 of the authorities, at tab 19, where – and I am looking at page 76 of the report and 984 of the bundle, in paragraph 63.  You will see in that paragraph, after reference to Kable, Bradley and Fardon, it said:

the relevant principle is one which hinges upon maintenance of the defining characteristics of a “court”, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court.  It is to those characteristics that the reference to “institutional integrity” alludes.  That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision‑making bodies.

Now, we have given specific reference to later endorsements of that explanation in footnote 2 of our reply, including to TCL at paragraph 100 in the context of federal courts.  That explanation grounded in the text – the word “court” as appears in Chapter III – means that in that way both the constraint from Lim, which we rely on, and the Kable principle can be said to be founded on a recognition that the judicial power of the Commonwealth can only be invested in institutions sufficiently distinct from the other arms of government to answer the description of “courts”.

So it follows that a law that purports to abrogate the essential characteristics of “courts” – as that term is used in Chapter III of the Constitution – will be invalid.  It follows that, in order for a body to answer the constitutional expression “court”, it must possess certain essential characteristics, and that proposition applies irrespective of whether the body owes its existence to Commonwealth, State or Territory law.  By that means, the Constitution thereby insures that the judicial power of the Commonwealth will always be exercised by a court that possesses institutional integrity.

Can I immediately say, reflecting a point that is well made by our friends for Queensland that your Honours will have noted in paragraph 9, it may be the case that the notion of essential characteristics operates, I will say, more stringently when applied to a federal court created by the Parliament under section 71.  Now, the logic of that argument, which we embrace, is this:  unlike a court of a State, a federal court can only be vested with the judicial power of the Commonwealth, or power that is incidental to that power.  While that power has been notoriously difficult to define, it has itself – in authorities that I am coming to – been understood as carrying requirements as to the process by which the judicial function is exercised.

Those requirements, of course, overlap with some of the matters identified in the Kable Case’s as the essential characteristics of a court; including, for example, open and public inquiry, and, more relevantly for my purposes, the requirement afford procedural fairness.  So, as our friends for Queensland rightly say, a federal court will, by definition, be required to exhibit those characteristics because only powers of that nature can be vested in it.  That is why, as I observed earlier, there is an overlap between the two distinct aspects of the legislative constraint identified in Lim, drawing on Justice Deane’s formulation.

In contrast, as our friends for Queensland point out, the capacity of courts to – the capacity of the State legislatures to vest non-judicial power in State courts, and perhaps also the point that your Honour Justice Gordon recently noted in Benbrika, the fact that the judicial power of the Commonwealth is a narrower concept than judicial power more generally may suggest that somewhat greater modifications can be tolerated to the essential characteristics of those courts under the institutional integrity test.  As our friends for Queensland also observe, that is one way that one can understand the apparent conundrum, I will call it, posed by the two propositions that are often noted in the Kable cases.

So, on the one hand, as your Honours well know, there are repeated caveats, including in Gypsy Jokers and Pompano, to the effect that the result reached in those cases may not dictate a similar result in the case of a Commonwealth law.  But, on the other hand, there is the proposition, first stated in Kable itself and repeated many times, which our friends for the Commonwealth rely on in paragraph 26, that the Constitution does not admit of different grades or different qualities of justice. 

As our friends for Queensland observed, the second proposition – and we embrace this – is properly understood as focused on the exercise by State and federal courts of Commonwealth judicial power.  That does not necessarily mean that a State court must, when performing other tasks, meet all of the requirements associated with the process by which Federal judicial power is exercised.

Now, your Honours may not need to delve too far into those ideas because we say we are entitled to succeed on the approach taken in the Kable cases, which I am going to come back to.  But to the extent that we need to, we say that that conclusion is more readily reached here when what is involved is a section 71 Federal Court.  So, with that introduction to the principle that we rely on – so that first step is to identify the limitation on legislative power at a high level of generality.

Our second step, although I think it is less controversial – well, it seems to be common ground between us – is to identify the relevant essential characteristic or dimension of Federal judicial power that section 46(2) purports to abrogate, and of course we say that characteristic is procedural fairness.  That procedural fairness is an essential characteristic of courts, it is established by a number of authorities which we have cited in our written submissions at paragraph 20.  They include ‑ ‑ ‑

EDELMAN J:   Mr Lenehan, you may be right to say that it is important to distinguish between the two different limbs, the limb that is concerned with procedural fairness as an essential aspect of the court, and the other limb which is concerned with procedural fairness as a defining aspect of judicial power, but is it right to say, as some of the judgments had said, that it is impossible to exercise judicial power in a way that is procedurally unfair?

MR LENEHAN:   We say yes, your Honour.

EDELMAN J:   So that even if the nature of the power being exercised contained every other aspect which would identify it as judicial rather than as an executive or administrative or legislative power, it would have to be identified as administrative if it did not contain a requirement of procedural fairness?

MR LENEHAN:   If we are right, that must be so, your Honour, yes.

EDELMAN J:   Could it not be said, though, that it remains judicial power, but it is judicial power being exercised in an unjudicial way and therefore it could not be exercised in that way by a court?

MR LENEHAN:   Yes, your Honour, I would adopt that formulation, yes.  I was about to refer to Pompano, just to note that all six justices accepted there, of course, that procedural fairness is an essential characteristic of a court and that, as we understood it, is accepted by our friends for the Commonwealth – see paragraph 17 of their written submissions.  Picking up on Justice Edelman’s question, I am going to stick to separating out these two ideas.  It follows from the fact that procedural fairness is an essential characteristic of courts that, as I just explained by reference to Forge, Parliament cannot validly remove it.

So, while Parliament can undoubtedly exclude the rules of procedural fairness in relation to administrative decision‑makers – this returns to your Honour Justice Gordon’s question about the approach of the court below – it cannot exclude the rules of procedural fairness in relation to courts.

So we say from that, that the – we call it obiter statement to the contrary by Justice Crennan in Gypsy Jokers at paragraph 182, needs to be approached with considerable caution, and we say, as your Honour Justice Gageler noted in Pompano that her Honour’s statement there must be taken to be obiter because ultimately she explained that the impugned provision there affected a modification rather than an exclusion of procedural fairness.  But we say that an exclusion of procedural fairness is not permissible by reason of the essential characteristics aspect of our argument.  Then we say that the position must be a fortiori as regards federal courts because of the point I mentioned before concerning judicial power, the second aspect of the Lim constraint.

Just to show your Honours an example of where that is identified, it is the case I mentioned before, TCL, which is volume 7, tab 35, and in that report, page 553, and paragraphs 26 and 27 – this is in the reasons of Chief Justice French and your Honour Justice Gageler – so at paragraph 26, the point is made by reference to Boilermakers’, that Chapter III prevents:

conferral … on a Court … of any function that is not within or incidental to judicial power of the Commonwealth.

Then, in paragraph 27, your Honour and the Chief Justice identified a number of dimensions of that power, acknowledging that it:

defied precise definition.

Amongst those is the passage that I mentioned before, that is –

Another dimension concerns –

This is in the middle of paragraph 27:

the process by which the function is exercised:  involving an open and public inquiry (unless the subject matter necessitates an exception), and observance of the rules of procedural fairness.

Referring in footnote (95) to – amongst other authorities – Bass, also Aala.  A similar point is in fact made many times in the authorities, and we have collected – hopefully helpfully – some examples in footnote (33) of our written submissions‑in‑chief, including Bass, Ebner, and Kuczborski.

Now, despite accepting that procedural fairness is an essential characteristic, the respondents simultaneously contend that it can be excluded altogether.  You see that in paragraph 21 of their written submissions which, as your Honour Justice Gordon says, also seems to have informed the approach of the Federal Court below.  We say those two propositions are irreconcilable and that the latter proposition is correct.  That appears in particular from the passage in Forge to which I took your Honours before.  As was explained in that passage, a court’s institutional integrity hinges on it possessing, also maintaining, the essential characteristics that mark it apart from other decision‑making bodies.

So if a law purports to remove that characteristic altogether, excludes it, it is no longer relevantly distinguishable in that respect, and it will therefore infringe the Kable principle in the case of a State or Territory court, or the Lim principle in the case of a federal court.  In the case of a federal court, it will also – and this is your Honour Justice Edelman’s point I think – render the exercise of power other than judicial power – to use the term that your Honour used in Benbrika, it become unjudicial.

Now, this does not mean, and my client does not say, that procedural fairness cannot be modified to accommodate competing interests.  On the contrary, as I am going to come to explain, there are many ways of modifying the rules of procedural fairness to accommodate, within a court, those sorts of competing interests.

KIEFEL CJ:   You do not challenge what was said in the joint judgment in Pompano at paragraph 157, then?

MR LENEHAN:   No, and your Honour, I am going to come back and explain why specifically.

KIEFEL CJ:   Thank you.

MR LENEHAN:   Our point is that procedural fairness cannot be excluded altogether.  So that then leads to this question, how does one distinguish between a law that purports to that, exclude procedural fairness altogether, and a law that merely purports to modify it?  In our submission, a law purports to exclude procedural fairness when it purports to remove what we have described as one of the minimum or, to use, I think Professor Stellios’ term, baseline requirements of procedural fairness. 

Now, we are not seeking to, and it is not necessary to, identify every irreducible minimum requirement of procedural fairness that must be exhibited by a court.  Your Honours have seen that we rely on one, which I am now going ‑ ‑ ‑

EDELMAN J:   Part of the difficulty, Mr Lenehan, may be in the expression “modifying procedural fairness”.  On one view, procedural fairness is a binary thing.  Either a procedure is fair or it is not fair.  The expression “modifying procedural fairness” is really just saying that there may be greater fairness afforded by some procedures than others, but they are all still procedurally fair.

MR LENEHAN:   Your Honour, there is certainly a continuum, but we say at some point one moves from modification to exclusion.

EDELMAN J:   But why is the continuum not really just one of when one moves from a procedure that is fair to one that is unfair.  There are degrees of fairness, but we do not care about degrees of unfairness, because once it is unfair then it is not fulfilling, on your submission, the essential characteristics of a court.

MR LENEHAN:   Yes, your Honour, I accept that.  So the point of unfairness is then the point at which we say the limitation cuts in, and we identified that by reference to what is said in HT and Justice Gageler’s reasons in Pompano which are picked up there.

KIEFEL CJ:   Well, you cannot be agreeing with paragraph 157 of Pompano, if you are going that far.  You can come to it if you like, but what is said there is that there are some:

circumstances in which competing interests compel some qualification to its application.

That is the application of procedural fairness.  What it is attempting to do is to:

avoid “practical injustice”.

That is what procedural fairness ends up being, the avoidance of practical injustice, not words.  It is not just concerned with what a word means.  It is a very practical concept.

MR LENEHAN:   Yes.

KIEFEL CJ:   So its content may differ, but so long as practical injustice is avoided, procedural fairness is maintained.

MR LENEHAN:   Yes.

KIEFEL CJ:   That is what is said in Pompano at 157.

MR LENEHAN:   That is so, and Justice Gageler makes a similar point in his reasons in Pompano referring also to practical injustice.  But we say the point, to pick up ‑ ‑ ‑

KIEFEL CJ:   I understand your submission to be that there is no attempt – there is no procedural fairness - no attempt to qualify it in any respect.  It is completely negated in this case.  I understand that to be your point.

MR LENEHAN:   Yes.

KIEFEL CJ:   But I am just saying that if you are going to go on the path of language and binary opposition, you are going to clash with Pompano and you will have to say what you are going to adopt, or not, about what is said in Pompano.

MR LENEHAN:   Can I come to that a little later?

KIEFEL CJ:   Yes.

MR LENEHAN:   But I am not shying away from the point that your Honour rightly asked me to address.  So our submission on this point starts from the recognition that an important element in the institutional characteristics of courts in Australia is the capacity to administer justice in accordance with the common law system of adversarial trial.  That is recognised, for example, in Forge and, while there are exceptions to that rule, this case is not one of them.  That notion of the adversarial system of a trial comprises, we say, certain necessary components.

One such component was recognised by this court in HT, which your Honours have in volume 5 at tab 23, if I could ask your Honours to turn to that.

EDELMAN J:   To – which tab was that?

MR LENEHAN:   I am sorry, your Honour, it is tab 23, and it is paragraph 17, which is at 416 of the CLR and 1285 of the joint book.  And so, this is in the reasons of, your Honour the Chief Justice and Justice Bell and your Honour Justice Keane.  The first point that is made in that paragraph is that –

It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding.

There are then, cited in footnote (16), four cases.  The first three concern the principle of construction, that when a statue confers power to destroy or prejudice a person’s rights or interests, the principles of natural justice regulate the exercise of that power.  But the last authority is to the joint reasons in Pompano and points, we say, to a more fundamental source of that obligation insofar as it applies to a State court through Kable, because that is the passage in which the joint reasons in Pompano identify procedural fairness as an essential characteristic of a court.  Now, the plurality goes on in the second sentence to identify the nature of that obligation:

This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is made be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case.

I will come back to this – that is essentially where we say the line is drawn, and the accompanying footnote refers to a passage from Cameron, which was taken up by your Honour Justice Gageler in Pompano in your analysis there.  Now, in the next sentence, the plurality in HT goes on to identify a:

general rule –

not an invariable rule, namely:

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

That is where the passage that your Honour the Chief Justice referred to before, 157 in Pompano, is cited.  Then, in the final sentence, it is said:

A party can only be in a position to put his or her case –

That is, the obligation identified in the second sentence:

if the party is able to test and respond to the evidence on which an order is sought to be made.

Footnote 19 then refers to three constitutional law authorities, that is Bass, International Finance, and Justice Gageler’s reasons in Pompano.  Now, your Honour Justice Gordon recognised a very similar proposition to that which appears ‑ ‑ ‑

KIEFEL CJ:   Just before you go there, are you going to deal with paragraph 18 of HT, because HT was essentially concerned with criminal procedures and sentencing procedures, and the fact that they could actually be adapted – it was concerned with, as it says there, whether procedures could:

be adapted to meet difficulties which may arise in a particular case.

There, with sensitive criminal information.

MR LENEHAN:   Your Honour, I have seeking to make clear that we accept ‑ ‑ ‑

KIEFEL CJ:   You accept all of that.

MR LENEHAN:    ‑ ‑ ‑adaption and we accept there would have been ‑ ‑ ‑

KIEFEL CJ:   But you say that this is not such a case?

MR LENEHAN:   Yes.

EDELMAN J:   Do you rely upon the second or the third proposition in paragraph 17, or both?

MR LENEHAN:   We rely on – we say that the second sentence identifies the obligation, and then the final sentence, that is really our minimum requirement.

EDELMAN J:   So, you rely upon the general rule that the closing parties will need to know what case the opposite party seeks to make?  Or the final proposition, that a party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made?

MR LENEHAN:   The final proposition, and the way we put is fairly respond.  So in asserting that word, I am accepting that the general rule is what it says – a general rule, and it can be departed from.

EDELMAN J:   Does that put your case higher than it needs to be put, though?  If, for example, a decision‑maker does not seek to base the decision – or the court’s decision – upon any submission that is made by the party with access to the evidence, there may be questions as to whether that involves a denial of procedural fairness.  But this case is one where it is not merely the failure to have an opportunity to respond to the points that are put, it is also a failure to be able to address matters that were relevant to the decision by the court.

MR LENEHAN:   Yes.  I accept that, your Honour.  At the end of the day, when I make my way through the series of Kable Cases, we say that your Honours can just see that this is a very different case in which exclusion is the only conclusion.

GAGELER J:   Mr Lenehan, I thought your case was not that the procedural unfairness was your inability to lead any of the section 46 material in‑chief.  I thought that your case was to the effect that procedural fairness set in at the point when the material was tendered against you, adduced and received into evidence and you could have no access to it and know nothing about it.  Is that too simplistic?

MR LENEHAN:   No, no, that is so. 

GORDON J:   Then the consequence of that is, picking up paragraph 17 and 18 to which the Chief Justice took – is the inability under 46 for the court to mould its own procedures to address that very issue.

MR LENEHAN:   Yes.

GORDON J:   That is where the practical injustice aspect – if you look at it through those lenses – comes alive.  So, you need both bits.

MR LENEHAN:   Yes.

GORDON J:   Here you do not have any of the ability for the court – absent whether it is construction on Justice Edelman’s approach or reading down – to have the court mould its own procedures to deal with what you identify as the practical injustice to which Justice Gageler has just given birth.

GAGELER J:   So section 46 is not really about the record at all, it is about part of the record, you say?

MR DONAGHUE:   It is about part of the record, a particular part of the record that has been certified as having a particular consequence.  But the rest of the proceeding is exactly as it would ordinarily be in the Federal Court.

GAGELER J:   How do the reasons get to the Federal Court?  Just in the same way, they are tendered, are they, by ‑ ‑ ‑

MR DONAGHUE:   I think they are just tendered, your Honour, yes.  They have to be given subject to the redaction provisions your Honour might have seen in 43AAA.

GAGELER J:   So what are called the closed reasons, I think, were just really part of the reasons that were the subject of a direction.  Is that the way it works?

MR DONAGHUE:   So, if your Honour could go back to 43AAA on 107 of the AAT Act and look at subsections (4) and (5).  So subject to (5), the Tribunal must give copies of its findings to the applicant and the Director‑General and the affected agency, so you start with – and then (5) allows particular directions to be made not to disclose particular parts, so I think that is consistent with what your Honour put to me.  That is the closed reasons, is the reasons that are subject to the subsection (5) direction.

STEWARD J:   Does not the applicant under the rules have to attach a copy of the decision given to him or her?

MR DONAGHUE:   I believe that that is so under the Federal Court Rules, yes

STEWARD J:   That is how you get your decision?

MR DONAGHUE:   That is how the open reasons would get there ‑ ‑ ‑

STEWARD J:   Yes, that is correct.

MR DONAGHUE:   ‑ ‑ ‑ and the Director‑General I think would have to tender the closed reasons.

STEWARD J:   Yes.

GAGELER J:   Were they in evidence before the court here?

MR DONAGHUE:   I will confirm that but I believe they were, your Honour, yes.  But it did appear that the procedure was viewed perhaps more like a normal appeal where the whole record below would have been so that it does not look like there was a process of tender and objection that was gone through.

GAGELER J:   Are you taking some procedural point about the failure to object?

MR DONAGHUE:   I am not, your Honour, I am just trying to grapple with the construction that I do not think either of the parties had really grappled with before about how one gets from being in the hands of the court under 46(1) to enter into evidence and it has not really been grappled with before now, I do not think.

Your Honours, can I move to the question of the applicable principles, and Mr Lenehan spent a while on this this morning but actually there is a high level of agreement between the parties in relation to many of the submissions he developed and we really only part quite some way along the road.  So, if your Honours turn up our friend’s submissions and go to paragraph 18, there are submissions that ‑ ‑ ‑

GORDON J:   Where are we, Mr Solicitor?

MR DONAGHUE:   Sorry, the appellant’s submissions on pages 6 to 7, page 18, basically developing by reference to some of the cases you were taken through - Leeth, Lim, this morning Kable - there being requirements for courts – all courts, Commonwealth, State and Territory cannot be deprived of the essential characteristics of the court.  We take no issue with that proposition. 

At paragraphs 19 through to 22 it is submitted that procedural fairness is an essential characteristic of a court and both because of the characteristics of a court and because procedural fairness is an aspect of judicial power or some combination of those two considerations, again we take no issue with that. 

It is agreed in paragraph 23 of our friend’s submission that the requirements of procedural fairness are not fixed.  The content of the rules may vary according to the circumstances.  They are directed to the avoidance of practical injustice.  We agree about that as well.

The point of departure really comes at the question of the analysis of what is required or involved in avoiding practical injustice and perhaps, more specifically, the role that can properly be taken into account of competing public interests in determining the content of that standard.  As I will come to when I get to Condon - actually I will take your Honours to it. 

If you have the appellant’s submission, if you go to paragraph 26, this is the point that featured very heavily in Mr Lenehan’s submissions this morning and it is the point where, depending on exactly how one understands some of the language used, there might be a departure between the parties because the appellant says that while the concern is with practical injustice he also says – while he accepts that the context of procedural fairness is variable he says there is a minimum requirement if the court makes an:

“order that finally alters or determines a right or legally protected interest of a person” –

the court must afford a fair opportunity to respond to the evidence on which the order might be made, quoting your Honour Justice Gageler in Condon.

On one view of it, that is different from what one sees in paragraphs 156 and 157 of Condon and Pompano and if it is different then we submit that the plurality position should be adopted.  But, for reasons that again I will develop, much may turn upon exactly what your Honour Justice Gageler meant by the words “a fair opportunity to respond” and how that concept interacts with the competing public interests that might affect the content of procedural fairness and certainly, aspects of your Honour’s judgment that our friends did not go to, following the passage that they did, suggest that your Honour accepted that competing public interests do play a role in identifying the content of procedural fairness.

But it is really at the level of the proposition of whether or not there is a minimum requirement that there must always be an opportunity to respond to the evidence on which an order might be based, that we join issue because, in our submission, the correct inquiry is looking at the procedure as a whole.  Is it practically unfair?  For the reasons that I will develop now, tomorrow, we will respectfully submit it is not. 

The proposition that there is an absolute minimum requirement that one must be able to see the evidence relied upon against a party in a court is, for reasons that I will develop again tomorrow, impossible to reconcile with the ratio of Gypsy Jokers and the ratio of Pompano.  The appellant’s answer to those cases, at least in writing, seems to be well, those are State cases concerning State courts. 

That is obviously true, but it is not an answer to the analysis that one sees in either of those cases because it does not explain why the essential characteristics of a State court give procedural fairness a lesser content than the requirement that flows as an essential characteristic of a federal court in the exercise of federal judicial power.  There is, in our submission, no reason why your Honours should accept that State courts need to be less procedurally fair than federal courts.

GORDON J:   Is that because you say that the carve‑out by the plurality in Pompano about the application to Chapter III courts is directed at other aspects?

MR DONAGHUE:   Yes, and I will come to Pompano on those passages, but their Honours acknowledged that, as is obviously true, federal and State courts do not interact with Chapter III in exactly the same way.  But their Honours then explain that sometimes there is a close analogy, and one can usefully derive from the Chapter III cases and sometimes one cannot, depending on the particular context. 

In my submission, when one is concerned with bodies – courts exercising judicial power, there is no reason to distinguish between the two.  That is what Justice Gaudron said in Kable, itself a State case obviously, and although our friends enthusiastically embrace your Honour Justice Gageler in Pompano, including at 177, your Honour in that paragraph and also in 194 expressly did not distinguish between State and federal courts.  Your Honour was expressing principles applicable to “the Supreme Court and every other court in Australia”. 

So, in my submission, even the key passages that our friends are drawing on do not support the idea that a relevant difference exists between those two scenarios.  If that is right, if State courts have to be as procedurally fair as federal courts, and in both contexts it is a question of practical injustice, then our friends cannot succeed unless your Honours overrule Gypsy Jokers and Condon.

GORDON J:   Unless the provisions are distinct.

MR DONAGHUE:   Which they are not, and that is what I am about to take your Honours to.  I see I only have five minutes, but I could usefully perhaps show your Honours the legislation in Gypsy Jokers in the last few minutes remaining, if I may.  Could your Honours go to Gypsy Jokers (2008) 234 CLR at 532, which is volume 5, tab 21. I am just going to show your Honours the legislation that was at issue before going to the reasons, so once your Honours have the case could you go to paragraph 16 on page 554.

The particular administrative decision - here obviously we are concerned with adverse security assessments.  In Gypsy Jokers their Honours were concerned with what were called fortification removal orders which were about removing fortifications from organised crime or bikie premises principally.  The power to make a fortification removal notice was conferred by section 72, which your Honours see set out in paragraph 16:

“The Commissioner of Police cannot issue the fortification removal notice unless . . . the Commissioner of Police reasonably believes that the premises are –

(a)      heavily fortified, and

(b)      habitually used as a place of resort –

by a significant number of people reasonably suspected of involvement in organised crime.  So, the Commissioner had to form a state of mind that included a suspicion, or a belief rather, about the involvement of people in organised crime. 

Over the page on paragraph 17, your Honours can see that the plurality say the Supreme Court is drawn into the scheme by section 76 and the challenge was to 76(2), which I will come to in a minute, and it was said if that challenge were to succeed, a question would have arisen about severance, which only Chief Justice Gleeson addressed and I will come back to that when I get to severance.  At paragraph 21 you will note that, unlike the scheme ‑ ‑ ‑

GORDON J:   Before you get there, you have 19, which is the reference to Electric Light where they explain that:

subject to contrary provision, this conferral of jurisdiction is to be understood as bringing with it the usual incidents ‑ ‑ ‑

MR DONAGHUE:   I entirely embrace that, your Honour.  Nothing I am saying is inconsistent with that.  My focus is ultimately going to be on the equivalence between 76(2) which was upheld, and 46(2) in this case.  Paragraph 21 records that, unlike the position here, the ordinary judicial review jurisdiction that would there in Western Australia have been conferred by section 83, had been excluded.  So, the idea was that you could only seek review under the bespoke section 76 judicial review procedure, not under the ordinary procedure. 

This case was, of course, decided pre‑Kirk so it might now be thought that that focus was wrong and that there would have been an equivalent capacity to seek judicial review.  But that is not a basis to distinguish this case.  Certainly, at the time that their Honours decided Gypsy Jokers, the Court was content to uphold section 76 even if it did operate to the exclusion of ordinary judicial review.  For that reason, we submit that our case is even stronger than Gypsy Jokers because, here, section 46 does not take away from the pre‑existing rights whereas in Gypsy Jokers, it was thought that section 76 did. 

Then, you see the key provisions at paragraph 26 – and I am going to come back to the reasoning – at 22 to 25. But, if your Honours go to paragraph 26 you will see the conferral of review jurisdiction. So, where a fortification removal order had been made, the owner or interested person may, within seven days, apply to the Supreme Court for a review of whether the Commissioner of Police could have reasonably had the belief required by section 72. So, it was a particular species of judicial review based upon whether the Commissioner of Police could have held the belief. Then, over the page to 76(2), paragraph 30 ‑ ‑ ‑

GORDON J:   Will you come back to 5 and 6?

MR DONAGHUE:   I will.  I am just trying to show your Honours the key features before I run out of time.  In paragraph 30:

“The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if

its disclosure might prejudice the operations of the Commissioner of Police, and information so identified is for the court’s use only and is not to be disclosed to any other person, whether or not a party to the proceedings -

So, you had Supreme Court judicial review of the state of mind of the Commissioner and the Commissioner could identify information which, if validly so identified – and I will come that – but the endpoint was the court could use it and the parties could not.

GORDON J:   But it was subject to the court having the power in 5 to review and go behind the belief.

MR DONAGHUE:   It was subject to the court being able to be satisfied that the precondition was meant – that is right.  I will come to the analogy with section 46, your Honour, tomorrow.  But my point is this.  Where implied – assuming a valid certificate had been made in any given case – the endpoint was the court can have the evidence and the applicant cannot.  That is the thing that is said by our friends to be contrary to the minimum requirement of procedural fairness. 

In Gypsy Jokers – with only Justice Kirby dissenting – this Court held that provision was valid.  Condon had an equivalent provision and, again, this Court held it was valid.  So, there is no minimum – absolute rule that you cannot have a judicial review proceeding where the court acts on material that cannot be disclosed to one of the parties.  Both of those cases hold that you can.  In my submission, for reasons that I will come to, there is no proper basis to distinguish either of them.  I accept what your Honour Justice Gordon puts to me as one possible argument for distinction – and I undertake to deal with it tomorrow.  If that is a convenient time, your Honours.

KIEFEL CJ:   Yes, thank you.  The Court will now adjourn until 10.00 am tomorrow.

AT 4.19 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 8 JUNE 2022