SDCV v Director-General of Security

RARES J: 1 I have had the benefit of reading the reasons of Bromwich and Abraham JJ and agree with them, but wish to add the following observations on the constitutional issue. 2 The detailed provisions in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for the conduct of a review of a decision of the Director-General of Security to make an adverse security assessment (ASA), pursuant to s 54 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act), delimit the scope of procedural fairness that the Administrative Appeals Tribunal must afford an applicant when challenging the ASA. Relevantly, s 46(2) of the AAT Act provides: 46 Sending of documents to, and disclosure of documents by, the Federal Court and the Federal Circuit Court (2) 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. However, this subsection does not prevent the Federal Court of Australia from causing the document to be sent to the Federal Circuit Court of Australia as mentioned in subparagraph (1)(c)(i). 3 Bromwich and Abraham JJ set out the other relevant legislative provisions in their reasons and explained the statutory context. Their Honours also explained that a certificate under s 39B(2) of the AAT Act is conclusive in the conduct of the review in the Tribunal or any appeal to this Court unless an applicant challenges the validity of its making. Thus, it is possible that the ASIO Minister can include material in the certificate that a Court might find, in litigation, would not attract matters of state immunity within the meaning of s 130 of the Evidence Act 1995 (Cth). However, given the grounds on which the ASIO Minister can make such a certificate, such instances should be rare. 4 The Parliament framed the provisions in the AAT Act to provide an applicant with a full merits review of the ASA in the Tribunal, but under a legal structure that seeks to ensure the maintenance of necessary confidentiality and secrecy about matters of Crown privilege or public interest immunity and other subjects of a Ministerial certificate under s 39B(2) of the AAT Act. 5 That structure for the conduct of a review of an ASA in the Tribunal and any appeal to this Court under the AAT Act seeks to ensure that the Executive Government, through ASIO, will be able to preserve the confidential and secret nature of intelligence, which may be relevant to any particular individual who is subject to and seeks to challenge an ASA. 6 The structure modifies the common law in many respects, including by requiring both the Director-General, and, on a review, the Tribunal, to give reasons for the decision each makes in respect of an ASA. There is no rule of common law or principle of procedural fairness that requires an administrative decision-maker to give reasons for a decision made under statute: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 670 per Gibbs CJ, with whom Wilson, Brennan, Deane and Dawson JJ agreed. Hence, although the bases on which an administrative decision will be reviewed by the Court have remained settled, the modern legislative requirement to give reasons has largely displaced the inferential process of review that Dixon J described in Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353 at 360, namely: Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law. (emphasis added) 7 The applicant for review of an ASA may be in a different position from the usual situation applying to a person aggrieved by an administrative decision. That is because, while knowing of the ASA, in seeking a review of it he or she may have no, or a limited, capacity to know all of the material that was before the decision-maker (the Director-General or, on review, the Tribunal) or the full reasons for the ASA or the Tribunal's decision, if the ASIO Minister issues a certificate under s 39B(2). That unusual possibility, however, can also exist in judicial proceedings involving, for example, trade secrets, secret processes, confidential information or the identity of an informer, which are traditionally recognised exceptions to the principle of open justice and can provide a basis for denying a party access to critical, relevant evidence in the case. And, as Dixon J discussed in Avon Downs 78 CLR at 360, prior to statutory requirements for administrative decision-makers to give reasons, judicial review of their decisions involved the person aggrieved having to identify by inference how the decision-maker erred. 8 The applicant's constitutional argument wrongly characterises s 46(2) of the AAT Act as requiring the judicial power of the Commonwealth to be exercised in a manner that is procedurally unfair because he cannot know of material that the Director-General, as the respondent in an appeal on a question of law under s 44, and the members of the Court will have that may, indeed is likely to, be adverse to him. 9 The conceptual problem at the root of the applicant's argument is that he is invoking a right to appeal to this Court under s 44 of the AAT Act from the Tribunal's decision on a question of law. The Tribunal's decision on an ASA results from it following the statutory regime in the AAT Act. In situations where the ASIO Minister has issued a s 39B(2) certificate, that regime requires the Tribunal to engage in both open and closed hearings and to consider evidence and material that is subject to the certificate that can be expected to attract Crown privilege or public interest immunity. Because the Tribunal is performing an executive function, the material on which it can act in accordance with the legislative scheme in the AAT Act, including when acting adversely to a person the subject of an ASA, can include matters covered by a s 39B(2) certificate and public interest immunity. 10 If s 46(2) were not part of the legislative scheme applicable to the review of an ASA, all of the evidence and other material the subject of a s 39B(2) certificate, and the closed reasons of the Tribunal, would be (or at least be highly likely to be) inadmissible into evidence because those relate to matters of state within the meaning of s 130 of the Evidence Act, particularly on the ground in s 130(4)(a) that adducing such evidence would prejudice the security, defence or international relations of Australia, being a ground that mirrors s 39B(2)(a) of the AAT Act. If this material were excluded from evidence on an appeal to the Court under s 44 of the AAT Act, an applicant challenging an ASA would have only the open evidence, material and open reasons on which to argue the question of law, and would be in an evidentiary vacuum as to whatever else was before, and the content of the closed reasons of, the Tribunal. 11 That raises the question of how or why s 46(2) of the AAT Act is necessarily productive of any curial procedural unfairness in this unusual legislative framework. As Lady Arden JSC observed in Pathan v Home Secretary [2020] 1 WLR 4506 at 4522 [55]: Procedural fairness is adaptable to the environment in which it is applied. Procedural fairness does not entail that the decision-maker must comply with a fore-designed set of rules. 12 In the context of the application of the principles of procedural fairness in administrative decision-making, the cases have proceeded on the basis that Kitto J explained in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504, namely, the need to allow: … full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf Ridge v Baldwin ([1963] 2 WLR 935 at 947; [1964] AC 40 at 73 per Lord Reid]). As Tucker LJ said in Russell v Duke of Norfolk ([1949] 1 All ER 109), in a passage approved by the Privy Council in University of Ceylon v Fernando ([1960] 1 All ER 631 at 637), there are no words which are of universal application to every kind of inquiry and every kind of tribunal: "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth" ([1949] 1 All ER at 117). What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business. What is a fair opportunity to allow the taxpayer in a given case is a question which by its very nature forbids an answer in disregard of the interests of other people. (emphasis added) 13 Similarly, in R v Inland Revenue Commissioners; Ex parte Unilever plc [1996] STC 681 at 690, Sir Thomas Bingham MR, with whom Simon Brown and Hutchison LJJ agreed, said, again in the context of administrative decision-making: The categories of unfairness are not closed, and precedent should act as a guide not a cage. 14 While those decisions did not deal with the constitutional limits on legislative power to condition the requirements of procedural fairness in a court exercising the judicial power of the Commonwealth under Ch III of the Constitution, they illustrate the protean nature of what, in any particular circumstances, is or is not a fair procedure. 15 The situation that the Parliament sought to address by incorporating s 46(2) into the procedure for the Court to follow in hearing and determining an appeal on a question of law under s 44 of the AAT Act involving an adverse ASA, necessarily had to balance the ability of the applicant to challenge an adverse outcome from the Tribunal's merits review and the evidence that should, or could, not be made available to him curially because of the preclusive effect of a certificate under s 39B(2). That bespoke procedure offers an applicant another path on which to challenge an ASA in addition to his or her right to seek a constitutional writ in the High Court under s 75(v) of the Constitution or in this Court under s 39B(1) of the Judiciary Act 1903 (Cth). 16 In an application for a constitutional writ, the evidence, material and reasons for the Tribunal's decision would be limited to what was admissible, having regard to the preclusive effect of s 130 of the Evidence Act in relation to matters of state immunity. While it is possible that some material the subject of a certificate under s 39B(2) of the AAT Act might not be found by a Court to attract matters of state immunity in litigation, in the usual course that possibility is unlikely to affect the whole or the significant part of the certificated material. Yet, the consequence that the material that was the subject of matters of state immunity would be inadmissible would not deny the applicant procedural fairness in seeking a constitutional writ to challenge the ASA. That is because the procedural and substantive law of public interest or matters of state immunity constrains what is available as evidence to the parties (including the Commonwealth as a litigant) and the Court in resolving such a matter: cf Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616-618 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ. Even though the confidential or secret material may have been decisive to the administrative decision, and cannot be scrutinised on judicial review, an applicant will be in the same position in seeking to make good a challenge, as Dixon J discussed in Avon Downs 78 CLR at 360. 17 In contrast, a certificate under s 39B(2) could not be conclusive in an application for a constitutional writ. There, the Director-General and the ASIO Minister would still need to establish to the satisfaction of the Court that the material the subject of the certificate fell within the definition of matters of state immunity: Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 32 [63]-[64] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. The Court can satisfy itself as to whether a claim for public interest or matters of state immunity is well founded, and, if it is, that consequence will handicap at least one of the parties to the proceeding: Graham 263 CLR at 31 [60]-[61]. However, if the applicant does not dispute, or has failed in a challenge to, the validity of the s 39B(2) certificate, and appeals under s 44 of the AAT Act, the certificate will operate to deprive him of any means of access in the appeal to the material that it covers. 18 Thus, in approaching the applicant's submission that s 46(2) requires the exercise of judicial power in a manner that is necessarily and unacceptably procedurally unfair, it is relevant to consider the nature of the subject-matter of the controversy and any relevant inhibitions on the ordinary requirements of procedural fairness and open justice that otherwise would apply to, or affect the exercise of, judicial power in an appeal directed to challenge the Tribunal's decision to affirm an ASA on a question of law under s 44 of the AAT Act. 19 The feature of s 46(2) that the applicant says spells invalidity here is that, while the Court and the Director-General will have access to the material the subject of s 46(2) and to the Tribunal's closed reasons, being a key part of the subject matter and reasoning on which the decision to affirm the ASA was based, he (the applicant) cannot have any access to those and will be less able to make meaningful submissions about them. 20 Here, the applicant has not challenged the validity of the ASIO Minister's certificates under s 39B(2). That circumstance creates an obvious tension between the need to maintain the confidentiality of the certificated material, one the one hand, and that material's apparent significance in the decision-making process, on the other. The impact of a valid claim for matters of state immunity in judicial proceedings denies a party from even having access to, or putting in evidence, critical material that is, or may be, adverse to the party, let alone having the forensic ability to challenge or explain it. In HT v The Queen (2019) 374 ALR 216 at 226 [34], Kiefel CJ, Bell and Keane JJ, with whom Nettle and Edelman JJ agreed with reservations at 231 [55]-[56], said that at common law the effect of the Crown providing material the subject of a claim for public interest immunity to a sentencing judge which the person to be sentenced could not access would "reduce procedural fairness to nought". There was a difference between their Honours' reasoning as to how far modifications to the blanket prohibition on disclosure of confidential information could be made at common law as compared to those that could be made by statute. 21 Here, however, s 46(2) maintains the blanket prohibition on access to the certificated material for a person in the applicant's position, but makes that material part of the evidence before the Court on the appeal under s 44. The statutory regime provides for a variation to the requirements of procedural fairness in the particular circumstance where that person appeals from the Tribunal on a question of law relating to an ASA. 22 As Kiefel CJ, Bell and Keane JJ, as well as Gordon J, recognised in HT 374 ALR at 228 [43], 233-234 [64] and 239-240 [87]-[88], a superior court of record has inherent power to tailor its procedures, including adjusting the ordinary application of the rules of procedural fairness and the principle of open justice, to meet a competing demand in the interests of justice requiring it to maintain the confidentiality or secrecy of material like that to which s 46(2) applies. 23 The overriding principle is that the Court must secure that justice is done in the proceeding: Scott v Scott [1913] AC 417 at 437 per Viscount Haldane LC (applied in Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ, Isaacs, Gavan, Duffy, Powers and Rich JJ, and cited by Kiefel CJ, Bell and Keane JJ in HT 374 ALR at 228 [43]). The legislative intent evident in s 46(2) is that the Court will have before it as evidence certificated material, the content of which the applicant cannot know. 24 It is important to appreciate that the Parliament sought to strike a balance in s 46(2) between the national interest in keeping material secret that is covered by a certificate under s 39B(2) (which ordinarily would be inadmissible as evidence because of s 130 of the Evidence Act), but which is likely to have been of significant weight in arriving at or justifying the ASA, on the one hand, and the interests of justice in permitting the Court to consider that material as evidence in deciding an appeal under s 44 of the AAT Act. The means that the Parliament adopted to achieve that balance are unusual, but then so too is the context of the Court reviewing, in an appeal under s 44 on a question of law, the Tribunal's decision to affirm an ASA where s 46(2) enables it to have in evidence the material that would otherwise be inadmissible because it is subject to matters of state immunity. 25 The Parliament sought to modify the common law requirements of the principles of procedural fairness and open justice under s 46(2), by giving the Court, but not the applicant, access to the material covered by the s 39B(2) certificate and the closed reasons of the Tribunal as evidence on the appeal. That was in order to allow the Court to consider, in deciding the question of law on the appeal, all of the evidence that is likely to have been significant in the administrative decisions to make and to affirm on review the ASA, but which, by force of s 46(2), the applicant cannot access in the appeal. 26 The Parliament chose a procedure that is analogous to the general law's established curial procedures for hearing and determining cases involving trade secrets, secret processes or formulae, and confidential information. In those categories of case, routinely, one side will know, but the other will be prohibited from knowing, the evidence of the subject matter of the claim that the Court must determine, namely evidence revealing or proving the secret process, formula or information. Revelation of the secret would destroy its value to the person seeking the court's protection, hence the curial modification of what would otherwise be required by the principles of procedural fairness and open justice. 27 In this way, the principles of procedural fairness and open justice are capable of adapting to preclude one party knowing or having access to crucial evidence in the case against that party, where it is necessary to do so in the interests of justice. Such a course is within the judicial power of the Commonwealth and the inherent power of a superior court of record if it is necessary in the interests of justice. It is also supported by the statutory powers in ss 17(4) and 37AE-37AL of the Federal Court of Australia Act 1976 (Cth). 28 Importantly, the inherent power to exclude the public or to limit access to evidence is conditioned on the Court concluding that it is necessary in the interests of justice to do so. The statutory power is also available where its use is necessary to prevent prejudice to the interests of the Commonwealth, a State or Territory in relation to national or international security: ss 37AF(1) and 37AG(1)(a) and (b) of the Federal Court of Australia Act. 29 Necessity can also warrant a departure from the rules of procedural fairness. For example, a decision-maker, including a judge, who would otherwise be disqualified because of his or her actual or apparent bias, is not disqualified from acting if the result of disqualification would be to disable the decision-maker from performing its statutory function: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 88-89 per Mason CJ and Brennan J, and at 96 per Deane J agreeing. Mason CJ and Brennan J said at 88-89: The rule of necessity permits a member of a court who has some interest in the subject-matter of the litigation to sit in a case when no judge without such an interest is available to sit: Dimes v Proprietors of Grand Junction Canal [(1852) 3 HLC 759 at 787-788 [10 ER 301, at 313]]…. . The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist v Randwick Municipal Council [(1976) 136 CLR 109-110, 112 et seq., 118-119]; Salemi v MacKellar [No. 2] [(1977) 137 CLR 396 at 401, 442]; F.A.I. Insurances Ltd v Winneke [(1982) 151 CLR 342 at 348-349, 362-363]. (emphasis added) 30 Gleeson CJ, McHugh, Gummow and Hayne JJ cited with approval the emphasised passage above in dealing with administrative decision-makers in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343-344 [4]. 31 It was therefore open to the Parliament to enact an unusual procedure that varied the ordinary incidents of the principles of procedural fairness in order to enable the Court, effectively, to hear and determine an appeal under s 44 of the AAT Act on a question of law arising in the Tribunal's review of an ASA. Such a procedure allows the Court to have all of the evidence before it that the Tribunal had, including evidence that the public interest (as reflected in an unchallenged s 39B(2) certificate) requires be kept secret from the applicant and anyone other than the Director-General and the judges. 32 The criterion of necessity that enlivens the Court's power to exclude the public or modify the rules of procedural fairness is objective and has no element of a discretionary judgment: Scott [1913] AC at 437-438; Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30]-[32] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. In Hogan 240 CLR at 664 [30], their Honours said of an analogous power to that now in ss 37AF(1) and 37AG(1)(a) and (b): As it appears in s 50, "necessary" is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish [(1980) 43 FLR 129 at 133; 29 ALR 228 at 234], that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth "suggests Parliament was not dealing with trivialities". 33 Of course, s 46(2) of the AAT Act does not give the Court any power to consider for itself whether to make an order for the use of the procedure that it mandates. But that is in the context where the grounds for the ASIO Minister's certification under s 39B(2) have not been challenged and those grounds reflect that "Parliament was not dealing with trivialities" in conferring the power on the ASIO Minister so to certify. 34 In an appeal on a question of law under s 44 of the AAT Act involving the Tribunal's review of an ASA, the disclosure of material that is the subject of a validly made certificate under s 39B(2) to an applicant for the review, the public or others, would defeat the legislative purpose in allowing the Tribunal to review an ASA on the actual material on which the Director-General acted in making it, and the Court to hear and determine any question of law arising in that review with that material in evidence before it. As French CJ, Gummow, Hayne, Heydon and Kiefel JJ said in Hogan 240 CLR at 667 [42]: However, there should be a different outcome where a relevant s 50 order remains in force or should not have been vacated. The administration of justice by the Federal Court, which is the focus of s 50, certainly includes not only the generally recognised interest in open justice openly arrived at [see K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 520-521 [49]] which is reinforced by the terms of s 17(1), but also restraints upon disclosure where this would prejudice the proper exercise of its adjudicative function. Bowen CJ pointed this out in Australian Broadcasting Commission v Parish [((1980) 43 FLR 129 at 133; 29 ALR 228 at 233]. His Honour went on to describe the litigation in Parish as analogous to a case where confidential information "is the subject matter of the proceedings"; he concluded that it was in the interests of justice that the processes for determination of those very proceedings not destroy or seriously depreciate the value of that subject matter [(1980) 43 FLR 129 at 135; 29 ALR 228 at [235]. (emphasis added) 35 The unusual procedure mandated by s 46(2) is analogous to the above exceptions to the ordinary application of the principles of procedural fairness and open justice, albeit that s 46(2) does not leave open to the Court any power to control whether or not that procedure should apply. 36 The material covered by a properly made s 39B(2) certificate could never be revealed to the applicant who seeks to challenge an ASA because of its inherent nature (reflected in the statutory grounds for making such a certificate) as attracting Crown privilege or public interest immunity, unless a statute otherwise provided. 37 Here, s 46(2) operates as a statutory mechanism that, first, allows the Court to consider as evidence the confidential and secret material on which the Tribunal based its decision, but, secondly, protects that confidentiality and secrecy in the public interest because the grounds for the s 39B(2) certificate reflect matters of state immunity that would make the material inadmissible in evidence except as s 46(2) provides. 38 A person challenging a claim for legal professional or client legal privilege or of public interest or matters of state immunity or, in the usual course, confidentiality for a trade secret, secret process or confidential information, never sees the evidence, document or information the subject of the claim before the Court decides the challenge for the purpose for which it has power to receive as evidence or consider the material the subject of the claim. Yet no one could say that this adjudicative process was a judicial denial of procedural fairness because the challenger cannot know the content of the material to which that person seeks access which may be critical to his, her or its case. That is because the general law gives greater weight to the public interest in protecting the secrecy of that material from destruction by making it public, first, in a claim for matters of state immunity, secondly, in claims for legal professional privilege, and thirdly, in claims for confidentiality (of trade secrets, secret processes and confidential information): Hogan 240 CLR at 667 [42]. That public interest in maintaining confidentiality or secrecy in such cases prevails over the right of one or more litigants to seek or have such evidence available for use in their cases. 39 Here, the s 39B(2) certificates and s 46(2) operate like affidavits that are adduced to prove the existence of those privileges or claim to secrecy. Such affidavits explain the circumstances in which the document or communication the subject of the claim is said to be privileged. And, as in such cases, here the applicant can call evidence and be heard on the basis of the open evidence, information and reasons of the Tribunal and make submissions on the basis of (the admittedly limited) inferences that he can draw about what might be in the s 46(2) material (cf Avon Downs 78 CLR at 360) in support of any argument that the ASA was invalid and the appeal under s 44 should succeed. 40 Accordingly, I am of opinion that the unusual process that the Parliament adopted in s 46(2) of the AAT Act is within its constitutional power. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

Factual context 70 Certificates were issued by the ASIO Minister in this case under ss 39A(8) and 39B(2)(a) of the AAT Act, on the ground that the disclosure of the certificated matter would prejudice the security of Australia. As a consequence, the applicant was not entitled to access all of the information that was before the Tribunal and was excluded from parts of the hearing before the Tribunal. The Tribunal was required to "do all things necessary" to prevent disclosure of the matter to any person other than a member of the Tribunal as constituted for the purposes of the proceeding: s 39B(3) of the AAT Act. As noted above, this is an appeal pursuant to s 44 of the AAT Act. Notwithstanding the certificates, s 46(1) of the AAT Act required the Tribunal to send all relevant documents to the Court. Where s 46(2) of the AAT Act applies, as it does in this case because the certificates were issued under s 39B(2), the Court "shall … do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding". Accordingly, s 46(2) of the AAT Act operates to prevent the disclosure of the certificated matter to the applicant or to his legal representatives. 71 In circumstances where there has been no challenge to the certificate either in the Tribunal or by way of judicial review, the premise for the s 44 appeal is that the information to which s 46(2) applies is material that was properly certificated because the validity of the certificate was never put in issue in the proceedings. 72 The decision to issue the certificate under ss 39A(2) and 39B(2) of the AAT Act could have been the subject of an application for judicial review, pursuant to s 39B of the Judiciary Act 1903 (Cth); Traljesic v Attorney-General (Cth) [2006] FCA 125; 150 FCR 199; and see Minister for Immigration v SZMTA [2019] HCA 3; 264 CLR 421 at [19]. Section 46(2) would not have applied in any such proceeding, and the applicant could have sought production of the certificated material using the ordinary processes of the Court, but subject to any successful claim of public interest immunity. Alternatively, a challenge could have been mounted in the Tribunal that the certificates were invalid and that accordingly, the procedural consequences of the certificates were not engaged. If such a challenge had been made the Tribunal would have been required to form a view with respect to it: SZMTA at [18]-[19], [112], and if the Tribunal rejected it, that rejection could have been challenged as part of an appeal on a question of law under s 44: for example see, Hussain v the Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241 at [36]-[37]. Neither approach was taken. The presumption of regularity applies. It can therefore be assumed, as it had been by the Tribunal, that the certificates were valid: Hussain at [37].

Submissions 73 The applicant challenges the constitutional validity of s 46(2) of the AAT Act. In essence, the applicant contends first, that a court exercising the judicial power of the Commonwealth cannot be required (or authorised) to act in a manner that is procedurally unfair; second, that s 46(2) would require such a procedure in the context of this matter, unless read down or severed; but third, that s 46(2) can be read down or severed so as to remain within constitutional limits. 74 The premise of the applicant's submission is that where a procedure has the capacity to result in the court making an order that finally determines a right or legally protected interest of a person, it must afford that person a fair opportunity to respond to evidence on which that order might be made, citing Gageler J at [177] in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38. The applicant submits that was the minimum requirement that must be met for this provision to be valid. The applicant submits the constraint imposed by Ch III of the Constitution admits of some legislative choice as to how, but not whether, procedural fairness is provided in the exercise of a jurisdiction invested in, or a power conferred on, a court. In support of that proposition the applicant relies principally on the observations of Gageler J in Pompano, which it is contended has subsequently been endorsed in HT v The Queen [2019] HCA 40; 374 ALR 216. 75 The applicant submits that central to his case is the passage at [17] of HT where the plurality, Kiefel CJ, Bell and Keane JJ, observed: 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.9 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.10 In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it.11 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.12 9. Cameron v Cole (1944) 68 CLR 571 at 589; [1944] ALR 130 (Cameron v Cole); Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-6; 65 ALR (CN) 1057; Taylor v Taylor (1979) 143 CLR 1 at 4; 25 ALR 418 at 421; 5 Fam LR 289 at 291 (Taylor v Taylor); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638; [2013] HCA 7 (Condon v Pompano) at [156]. 10. Cameron v Cole at CLR 589; Taylor v Taylor at CLR 4; ALR 421; Fam LR 291. 11. Condon v Pompano at [157]. 12. Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 at [56]; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; 261 ALR 220; [2009] HCA 49 at [39]; Condon v Pompano at [177], [188]. 76 The applicant relies on the content of that paragraph and also on certain of the footnote references cited in support of those propositions and reproduced above. In particular, the applicant draws attention to the fact that the footnote to the first sentence included Pompano at [156], that the third sentence reference was to Pompano at [157], and that the citations to the final sentence included Pompano at [177] and [188], being a reference to paragraphs in the judgment of Gageler J. In addition, the applicant draws attention to the footnote to the second sentence which cited Cameron v Cole (1944) 68 CLR 571, at a passage said to have been applied by Gageler J in Pompano. Reliance is also placed on [64] in HT, in the judgment of Gordon J, with that passage also citing, inter alia, Gageler J in Pompano at [177]. 77 From that analysis the applicant contends that the observations of Gageler J in Pompano, in particular at [177] and [188], should not be disregarded as some form of outlier, but rather should now be understood to explain the approach of all members of the Court in Pompano. 78 The applicant contends that he is relevantly in the same position as the appellant in HT, which was held to constitute a denial of procedural fairness. 79 The applicant submits that if his argument is accepted then s 46(2) could, and ought to be, read down as follows: Disclosure of documents by courts (2) 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, except to the extent that doing such things would preclude the court from providing a party a fair opportunity to respond to evidence on which an opposing party relies. … 80 The underlined passage is the addition that the applicant contends reflects how the provision needs to be read, to be valid. 81 The respondent takes issue with the correctness of the premise relied on by the applicant and submits that the approach is not supported by authority. Rather, the respondent submits that, properly read, Gageler J in Pompano and the reasons in HT do not support the proposition contended for. The respondent also directs attention to the context in which this provision exists and submits that is an appropriate consideration against which to determine the issue of practical injustice, and hence the validity of the provision. In particular, in addition to Pompano, reference is made to Gypsy Jokers Motor Cycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 and Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1. The respondent submits that in assessing the issue of practical injustice it is appropriate to consider the counterfactual situation: what would occur in this scenario absent s 46 of the AAT Act? The respondent submits that Gypsy Jokers and Pompano squarely confronted the proposition that legislation might create a regime by which a Court has access to information but the applicant does not, with neither authority suggesting that on that basis, the relevant provisions were of doubtful validity. The respondent submits that those cases, and Graham, strongly support the proposition that Ch III does not assign to the courts alone the question of balancing competing public interests and that in s 46 of the AAT Act Parliament has struck that balance in the particular context of the review of national security-related decisions. 82 The respondent submits that if invalid then s 46(2) is wholly invalid and cannot be read down. 83 In reply, the applicant, inter alia, accepted that in considering the issue of practical injustice the Court is entitled to consider the counterfactual situation, but submits it is not able to consider the consequence of that counterfactual. The applicant submits that it should not be assumed that any public interest immunity claim will automatically succeed. Therefore, although the Court can have regard to the fact that but for this legislative scheme there would likely be a claim for public interest immunity, the applicant submits that the Court cannot speculate, and therefore take into account, the potential outcome of that claim. The applicant submits that HT was contrary to the respondent's proposition. The applicant submits that Gypsy Jokers and Pompano being Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 cases are of little assistance. The separation of judicial power mandated by Ch III does not apply in terms to the States, meaning that 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. It is permissible for a State legislature to confer non-judicial functions on a State court: Pompano at [125]. The applicant submits that by their nature, such functions may call for the adoption of procedures that are more flexible than those required for the exercise of judicial power: Pompano at [195]. It follows that the fact a State law does not infringe the principles associated with Kable does not conclude the question of whether a like Commonwealth law would be valid: Pompano at [126].

Consideration 84 It is uncontroversial that Parliament cannot require a Ch III court to exercise the judicial power of the Commonwealth in a manner that is inconsistent with the essential character of a court or with the nature of judicial power: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ. Legislation which requires a court exercising federal jurisdiction to depart from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III: Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [111] per Gummow and Crennan JJ. Relevantly for these proceedings, it may be accepted that procedural fairness is an essential feature of a Ch III court: Pompano at [67] per French CJ; [156] per Hayne, Crennan, Kiefel and Bell JJ; [177], [188], [194] per Gageler J. So much is uncontroversial. 85 The question is whether, taken as a whole, the Court's procedures avoid practical injustice: Pompano at [157]. That said, given the Court is addressing a novel procedure which is said to deny procedural fairness, attention must be directed to questions of fairness and impartiality: Pompano at [169]. The issue that then arises is as to the context in which those considerations are to occur. 86 Properly characterised, the applicant's submission entails absoluteness. The applicant's submission that, at the very least, to be valid the legislation must provide procedures that ensure a person whose right or interest may finally be altered or determined by a court order has a fair opportunity to respond to the evidence on which that order might be based, as put, admits of no exception. So much was demonstrated by the applicant's responses to questions posed during the hearing in respect to the issue of severability in this case. The breadth and uncompromising nature of the proposition contended for and relied on is reflected in the applicant's submission that if the Court views the material and considers it is relevant to the matter before the Court then the applicant is entitled to see the material, and that it is only if the nature of the material is anodyne that it does not need to be provided. The submission is that, applying [177] and [188] of Gageler J's reasons in Pompano, the principal focus is the fairness to the applicant. The applicant's acknowledgement 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, does not deny the absoluteness of his position. That is because underlying the submission is an irreducible proposition that the party is entitled to a fair opportunity to respond to the material, and therefore must have the evidence or so much of it as is necessary to enable such an opportunity to respond to it. Implicit in the applicant's submission is the proposition that some members of the High Court in Pompano have changed their position since Pompano, to reflect that of Gageler J and that they have done so not expressly, but by referencing passages of their reasons in subsequent decisions to the reasons of Gageler J in Pompano. That submission ought not to be accepted. 87 Before addressing why that is so, it is appropriate to refer in some detail to the authorities relied on by each party.

The authorities 88 Given the applicant's reliance on Pompano, it is appropriate to commence there. 89 In Pompano the Court was concerned with s 10 of the Criminal Organisation Act 2009 (Qld) (CO Act) which empowered the Queensland Supreme Court, on application of the Commissioner of Police, to make a declaration that a particular organisation was a "criminal organisation". The matter came before the High Court as a special case stated, with the questions recited in the judgment of French CJ at [16]. 90 The plurality, Hayne, Crennan, Kiefel and Bell JJ, summarised the principal issue, as argued, as whether s 10 of the CO Act was invalid because the procedures prescribed by the CO Act for the Supreme Court to decide whether to make a declaration impaired the institutional integrity of that Court as a Ch III Court insofar as it was capable of exercising federal jurisdiction. The principal submission was that the institutional integrity of the Supreme Court was impaired because the CO Act permitted 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 such a respondent. The material that must be kept from the respondent is referred to in the CO Act as "criminal intelligence", which is information that relates to actual or suspected criminal activity. The CO Act provided that such information must be kept from a respondent if the Supreme Court declared it to be criminal intelligence and that a declaration could not be made unless the Court was satisfied that disclosure of the information could reasonably be expected to prejudice a criminal investigation, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person's life or physical safety: Pompano at [96]-[98]. Although two subsidiary issues were raised, it is the principal issue which has particular relevance to the matter now before this Court. 91 All members of the Court in Pompano found the scheme in the CO Act to be valid. 92 The plurality in Pompano summarised the case for invalidity at [116]-[117]: [116] There is a more fundamental reason why consideration of the arguments alleging invalidity does not call for these questions to be answered. 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. [117] The proposition admitted of no exception. … 93 The plurality in Pompano rejected that proposition at [120]. One of the reasons given for rejecting that proposition is at [118] where the plurality observed (emphasis in original): 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. 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. 94 The plurality then recited the applicable principles at [122]-[126], and considered previous authorities at [127]-[135]. 95 Relevant to the respondent's submission we note that in doing so, the plurality referred, inter alia, to the relevant principles having their roots in Ch III, including that the Constitution does not permit different grades or qualities of justice, citing the position of State Courts: at [123], citing Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 at [100]-[105]; Kable at 103 per Gaudron J. 96 We also note that the plurality considered the counterfactual situation, as to what would have occurred if litigation was not governed by the CO Act. If a party sought to adduce evidence of information that would meet the definition of criminal intelligence, the plurality recognised that the Commissioner may very well have been able to resist its production on public interest immunity grounds: at [148]. The plurality observed that the legislation did not provide for the reception of evidence that would otherwise be irrelevant or inadmissible but rather provided for the admission of evidence which would otherwise not be adduced: at [148]. 97 The plurality in Pompano referred to the reasoning in Gypsy Jokers in [152]-[153] in these terms (omitting footnotes): [152] The appellant in Gypsy Jokers also submitted that, by allowing only the Court to have access to information which was found to be properly claimed as confidential, s 76(2) was beyond power because it was repugnant to or inconsistent with the continued institutional integrity of the Court. Crennan J (with whom Gleeson CJ agreed) explicitly rejected this submission. The plurality said of the provision only that it had "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". 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, 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". [153] The decision in Gypsy Jokers points firmly against accepting the central proposition advanced by those advocating invalidity of the CO Act. … 98 The plurality then discussed the relationship between procedural fairness and judicial power and at [157] observed: Consideration of other judicial systems may be taken to demonstrate that it cannot be assumed that an adversarial system of adjudication is the only fair means of resolving disputes. But if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid "practical injustice". 99 And finally as to the approach, at [169] the plurality stated: When it is said, as it was in this case, that there has been a departure from hitherto accepted forms of procedure and thus a departure from accepted judicial process, the significance of providing for some novel procedure must be measured against some standard or criterion. Consideration of the continued institutional integrity of the State courts directs attention to questions of independence, impartiality and fairness. In cases where it is said that the courts have been conscripted to do the Executive's bidding, the principal focus will likely fall upon questions of independence and impartiality. But that is not and was not said to be this case. Where, as here, a novel procedure is said to deny procedural fairness, attention must be directed to questions of fairness and impartiality. Observing that the Supreme Court can and will be expected to act fairly and impartially points firmly against invalidity. 100 Gageler J upheld the validity of the provision on a narrower basis of reasoning than that of the plurality, being that the Court retains the power to stay a substantive application if unfairness becomes manifest: Pompano at [198]. 101 The applicant's argument is dependent on the reasoning of Gageler J, in particular at [177] where his Honour stated: My view, in short, is that Ch III of the Constitution mandates the observance of procedural fairness as an immutable characteristic of a Supreme Court and of 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. 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 on which that order might be made. 102 And at [188] (omitting footnotes): While the characteristics of a court as an independent and impartial tribunal defy exhaustive definition, there is no novelty in the proposition that those characteristics include that the court not be required by statute to adopt a procedure that is unfair. Procedural fairness requires the avoidance of "practical injustice". It requires, at the very least, the adoption of procedures that ensure to a person whose right or legally protected interest may finally be altered or determined by a court order a fair opportunity to respond to evidence on which that order might be based. 103 Gageler J also observed at [194]-[196] (omitting footnotes): [194] There should be no doubt and no room for misunderstanding. Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court. "[A]brogation of natural justice", to adopt the language of the explanatory notes to the Bill for the COA, is anathema to Ch III of the Constitution. [195] Chapter III of the Constitution admits of legislative choice as to how, not whether, procedural fairness is provided in the exercise of a jurisdiction invested in, or power conferred on, a court. Procedural fairness can be provided by different means in different contexts and may well be provided by different means in a single context. The legislative choice as to how procedural fairness is provided extends to how procedural fairness is accommodated, in a particular context, to competing interests. [196] The limits of that legislative choice need not, and therefore ought not, now be explored. In particular, it is not now necessary or appropriate to determine the extent, if at all, to which the avoidance of practical injustice in a particular context might necessitate "[c]onfrontation and the opportunity for cross-examination". Resolution of that issue is not foreclosed either by the description in Bass of judicial process as requiring parties to have an opportunity "to challenge the evidence led against them" or by the particular holdings in Gypsy Jokers, K-Generation and Wainohu. 104 It is the reasons at [177] and [188] which are said now by the applicant to represent the position of the High Court by virtue of the decision in HT. And, as noted above, the effect of the applicant's submission is that Gageler J's reasons in Pompano represent an absolute position. To understand why that is said to be so it is necessary to turn to a consideration of HT. 105 HT is a criminal case which concerned a Crown appeal against the sentence imposed by the sentencing judge. In that context an issue arose about the non-disclosure to the parties of a document which had been provided to the judge for the purposes of sentencing which concerned the level of assistance to the authorities an offender, who was a police informer, had provided. The document contained evidence relating to the appellant's assistance to the authorities and the evaluation by the police of the assistance given. The content of the document was relevant to a number of factors to be taken into account in the sentencing process: s 23(2) and (3), Crimes (Sentencing Procedure) Act 1999 (NSW). The procedure of providing the document to the sentencing judge but not to the offender or her legal representatives occurred on the basis that public interest immunity applied so as to prevent the production of the document to the offender. The Court concluded in this regard that there had been a denial of procedural fairness. HT concerned the application of common law principles rather than the application of any statutory provision. 106 As referred to above at [75], the reasons of the plurality in HT at [17] are central to the applicant's submission. However, that said, the reasons of the plurality must be considered in context and include the observation at [18] that: Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise. 107 The plurality considered tailoring orders, observing at [43] that "[it] should not be assumed that procedural fairness should altogether be denied in order that sensitive information be kept confidential". The plurality recognised at [43] that "[a]lthough there have been statements that the variable nature of procedural fairness means that it may in some circumstances be reduced to nothingness" it concluded that it was difficult to conceive of a case such as the present where orders could not be tailored to meet the competing demands. The plurality at [44] discussed the fact that it is well known that the courts have modified and adapted the content of the general rules of open justice and procedural fairness in particular kinds of cases, referring to examples including non-publication orders, and the procedures adopted in cases dealing with issues such as wardship and trade secrets. The plurality concluded that this case did not fall within those categories, and that in cases such as the one under consideration it was difficult to accept that orders could not have been tailored to meet the concerns: at [45]-[46]. 108 Finally, the plurality in HT observed at [46]: … But once it is accepted that there are certain classes of cases where a departure from the general rule may be justified for good reason, it makes it difficult to suggest that the court lacks jurisdiction to vary the basic principles of open and natural justice or to say that the proper administration of justice may not require it. The trade secrets cases in particular show that the general rule is not absolute. Consistently with the general rule of the common law regarding fairness in the conduct of proceedings, the concern of the courts is to avoid practical injustice. 109 Nettle and Edelman JJ, while agreeing with the result, concluded at [56]: In the absence of statutory authorisation, however, we are less sanguine than their Honours as to how far courts may go to protect the confidentiality of sensitive information provided to a sentencing judge to equip the judge to undertake the sentencing exercise mandated by s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the C(SP) Act"). Plainly enough, as this matter demonstrates, the competing needs of ensuring that sentencing judges are fully informed of the matters prescribed by s 23(2) of the C(SP) Act and ensuring that the confidentiality of sensitive information is not compromised calls for a detailed legislative solution… 110 As noted above, the applicant also relies on the observations of Gordon J in HT at [64], which it submits, by reference to the footnotes cited in support, is to the same effect as the plurality at [17]. At [64] her Honour observed: Procedural fairness lies at the heart of the judicial function. It requires a court, making an order that finally alters or determines a right or legally protected interest, to afford to the parties a fair opportunity to test and respond to evidence upon which the order might be made. In other words, a court must provide each party before it an opportunity to be heard, and to tender evidence and advance arguments relating to its own case and to answer the case put against it… 111 Gordon J discussed the nature of public interest immunity and confidentiality orders: HT at [69]-[80]. Her Honour stated at [78]-[80] (citations omitted): [78] Whether information is relevant depends on the nature of the proceeding and the issues. As it is for the court to provide each party before it an opportunity to be heard, and to tender evidence and advance arguments relating to its own case and to answer the case put against it, it is for the court to ensure that each party has, so far as is practicable, access to information on which the court is asked to act. [79] There are limits. As Lord Dyson JSC said in Al Rawi v Security Service: "[T]he court's power to regulate its own procedures is subject to certain limitations. The basic rule is that (subject to certain established and limited exceptions) the court cannot exercise its power to regulate its own procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice." [80] But, within the confines of those limits and the particular circumstances of the case, the court's task of ensuring that each party has, so far as is practicable, access to information on which the court is asked to act remains essentially practical. 112 It is appropriate at this stage to refer to two further authorities on which the respondent relies, Gypsy Jokers and Graham. 113 Gypsy Jokers, like Pompano, is a case that concerned the application of the principles in Kable. The validity of s 76 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act) was in issue. The legislative scheme is summarised conveniently at [13]-[16] in the judgment of the plurality, Gummow, Hayne, Heydon and Kiefel JJ. The legislative scheme was also summarised by Gleeson CJ. 114 In broad terms the legislation authorised the executive government to order the making of alterations to, or the carrying out of work on, buildings (e.g. including health, sanitation, considerations of local amenity, or lack of permission under laws relating to planning and development). The orders with which the CCC Act were concerned were narrower, affecting a certain kind of property right, and involving the erection and maintenance of heavy fortifications on premises. Where the premises are suspected of being used by people involved in organised crime, there is a power to order removal of the fortifications, with such removal facilitating access to the premises by law enforcement agencies: at [3]. Section 76 provided for a limited form of judicial review by the Supreme Court of fortification removal notices issued by the Commissioner of Police under s 72(2) of the CCC Act. A notice required a reasonable belief by the Commissioner of Police that the subject premises were heavily fortified and were habitually used as a place of resort by people reasonably suspected to be involved in organised crime. Under s 76(1), the question on review is whether the Commissioner of Police could reasonably have had that belief: at [4]. 115 In that context Gleeson CJ observed in Gypsy Jokers at [5] (citations omitted): 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 information that would reveal the identity of police informers or compromise current police investigations. 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). An alternative would have been to make no specific provision about confidentiality, but to leave the general law to apply. Claims for public interest immunity against disclosure of information of the kind just mentioned are well known. The consequence of success of such a claim is that information which is subject to the immunity is not available as evidence to be taken into account in deciding the outcome of the proceedings. In view of the nature of the proceedings for which s 76(1) provides, and the issue in those 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. 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. A provision such as s 7 of the Interpretation Act 1984 (WA) cannot be applied to produce a consequence so radically different from that which Parliament has enacted. 116 Gleeson CJ agreed that the appeal should be dismissed for the reasons given by Crennan J, and the above are part of some of the additional comments expressed by his Honour: at [1]. 117 The plurality in Gypsy Jokers, Gummow, Hayne, Heydon and Kiefel JJ, approached the validity issue from the same perspective. Having summarised the legislative scheme, the plurality said it was necessary to consider what would be involved in the exercise of that general jurisdiction of the Supreme Court in a case such as the present absent these provisions: at [23]. The plurality then addressed a claim for public interest immunity it expected would be claimed, and the handicap that would be faced by the applicant and the Court if the claim was successful. In doing so, it made reference to observations by Mason J in Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 61, which were made when dealing with matters of national security: at [24]. Immediately thereafter the plurality stated at [25]: It is against this background that s 76 is to be construed. The scheme of s 76 is to displace what otherwise might have been a claim to public interest immunity by the Commissioner of Police. Section 76 does so by providing that information supplied by the Commissioner to the Supreme Court is subject to limitations upon use and disclosure of that information where the Supreme Court is satisfied disclosure might prejudice the operations of the Commissioner. 118 As recognised by the plurality, s 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: at [29]. 119 The plurality observed at [36] that the legislative regime had an outcome comparable with that of the common law in respect to public interest immunity, with the difference that the Court itself may make use of the information in question. The provision is also conditioned upon the Supreme Court having determined that disclosure of the information, identified by the Commissioner, might prejudice the operations of the Commissioner. Thus, there is "no legislative mandate for dictation to the Supreme Court by the Commissioner of the performance of its review function". 120 Finally, referring to the judgment of Crennan J at [181]-[183] (citations omitted): [181] Here, under statutory provisions permitting a claim not unlike a claim for public interest immunity, the Supreme Court, but not the appellant had produced to it, for inspection by it, all of the material relied on by the Commissioner. [182] The appellant's particular complaints alleging a want of procedural fairness were that it did not have access to material adverse to it and the Court was deprived of the benefit of its submissions on such material. Parliament can validly legislate to exclude or modify the rules of procedural fairness provided there is "sufficient indication" that "they are excluded by plain words of necessary intendment". Whether the obligation to accord procedural fairness is satisfied will always depend on all the circumstances. For example, in a joint judgment of five members of this Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, it was recognised, by reference to Sankey v Whitlam and Alister v The Queen, that courts "mould their procedures to accommodate what has become known as public interest immunity". [183] The statutory modification of procedural fairness achieved by s 76(2) (including any effect on the giving of reasons) is indistinguishable from the modification of procedural fairness which can arise from the application of the principles of public interest immunity. 121 This is the passage cited by the plurality in Pompano, recited above at [97]. 122 We note also that Crennan J expressly said at [186] that her reasoning is not to be taken to decide whether the Commonwealth Parliament could validly enact legislation analogous to s 76(2). 123 Finally, turning to Graham, which involved a consideration of s 501(3) and s 503A(2) of the Migration Act 1958 (Cth), and proceeded by way of a special case stated. The question relevant to these proceedings is the first, which was in these terms at [7]: Are either or both of s 501(3) and s 503A(2) of the [Migration Act] invalid, in whole or in part, on the ground that they: a. require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or b. so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure? 124 Section 503A as at the time Graham was decided, relevantly provided: (1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C: (a) the officer must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; … (2) If: … (b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b); then: (c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and (d) if the information was communicated to an authorised migration officer - the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person. 125 The effect of s 503A(2) is to deny the court evidence upon which the Minister's decision was based. 126 The majority in Graham (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Edelman J agreeing as to the first sentence, but otherwise in dissent) answered the question as follows: Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant. 127 This reflects the issues argued before the Court in Graham. It is the first issue that is of relevance to these proceedings. 128 The majority in Graham observed at [34]-[35] (citations omitted): [34] The plaintiff argues that the line between permissible regulation and impermissible interference is to be ascertained from the common law. Whether a law crosses the line depends upon the extent to which it requires a court to depart from "the methods and standards which have characterised judicial activities in the past". Those relevant methods and standards, the plaintiff submits, are those of the common law relating to confidentiality and public interest immunity. As to the latter, the fundamental principle recognised in Sankey v Whitlam is that admissible evidence can be withheld "only if, and to the extent, that the public interest renders it necessary". It is the duty of the court to balance the competing public interests, not the privilege of the executive. That requires the court to enquire into the facts, to ascertain the nature of the State secret. The essential difference between relevant evidence being withheld by reason of public interest immunity and by reason of s 503A(2) is that in the case of the former, the courts determine whether that should occur. [35] The Minister and the Attorney-General of the Commonwealth submit that, 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 that balance. Whether the Constitution permits legislation to deny a court exercising jurisdiction under s 75(v) the ability to see the evidence upon which a decision was based is another matter. 129 The majority in Graham went on to observe at [36] that the plaintiff's argument derived no support from cases such as Gypsy Jokers, K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501 and Pompano. 130 That said, the majority observed that in respect to the Minister's attempt to rely on the analogy between the legislative regime and public interest immunity, the analogy was incomplete. In the latter scenario the Court has the ability to weigh and has weighed, the public interest in non-disclosure of the particular information against the interests of justice in the particular circumstances of the case before it and has made an assessment that the former outweighs the latter: at [60]-[61]. Moreover, the majority observed the analogy relied on by the Minister to statutory secrecy provisions held by the High Court to withstand constitutional challenge in other contexts was misplaced, stating at [62] (citations omitted): … The statutory scheme considered in Gypsy Jokers was described in that case as having "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 that case, as in K-Generation and South Australia v Totani, the secrecy provisions in question did not prevent the reviewing court having access to the information on which the administrative decision under review was based. 131 At [64] the majority concluded that: The problem with s 503A(2)(c) is limited to its application to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, and to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the Act, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant. The problem then lies in the inflexibility of its application to withhold the information from the reviewing court irrespective of the importance of the information to the review to be conducted. To the extent that it so operates, the provision amounts to a substantial curtailment of the capacity of a court exercising jurisdiction under or derived from s 75(v) of the Constitution to discern and declare whether or not the legal limits of powers conferred on the Minister by the Act have been observed. 132 The majority concluded that although s 503A(2)(c) was invalid, it was only to the extent that it operates as described above, but its invalid application is severable: at [65]. The reference in s 503A(2)(c) to a "court" must be read to exclude the High Court when exercising jurisdiction under s 75(v) of the Constitution, and this Court when exercising jurisdiction under s 476A(1)(c) and (2) of the Migration Act, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant. It concluded that s 503A(2) was not otherwise invalid, and nor was s 501(3): at [65]. 133 There is an issue between the parties as to the extent, if any, of the overlap between the arguments in Graham and those by the applicant in this case. The applicant submits that there is no "tight analogy" between the two cases, because it was not part of the applicant's argument in Graham that there was some legislatively required failure to provide a full procedural fairness scheme. The applicant submits that there was no cause for the Court to consider whether s 503A was also invalid for the reason now advanced by the applicant in this proceeding. The respondent takes issue with that contention and submits that there is significant overlap between the issues argued in each case, although acknowledges the Court in its reasons did not address, at any length, some aspects of those arguments. The respondent submits that nonetheless those arguments must necessarily have been rejected having regard to the way the questions were answered. 134 As is apparent from the questions recited above at [123], there were two issues raised in the first question, the second of which raised the invalidity of the provisions on the ground that they "so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure". The Court's answer to that first question, that the provision is invalid to the extent only that it would apply to prevent the Minister from being required to divulge information to this Court when exercising jurisdiction under s 75(5), necessarily was the answer having considered both issues. It would be expected that each aspect of the question would have been addressed by the parties, and the record of the argument recorded in the Commonwealth Law Reports reflects that is so. For example, it included, inter alia, a submission that the applicant in a proceeding for judicial review was denied access to the protected information which is not offset by any protections of the type discussed in Pompano, and that the scope for practical injustice is manifest citing Pompano. The argument as recorded appears at least to be very similar to that in this case. That said, it does appear that in the reasons at [29] ff, the whole of the argument was not developed, and other aspects are not expressly engaged within the reasons. It is important to be mindful of that limitation. Nonetheless, given the terms of the answer to the question, the arguments must, as the respondent submitted, have been rejected.

[2019] AATA 6112

[1992] HCA 64

[1982] HCA 78

[2018] AATA 5900

[2009] HCA 4

[2018] AATA 1359

[2010] HCA 39

[1999] HCA 9

[2014] HCA 12

(1986) 159 CLR 656

(1949) 78 CLR 353

(1963) 113 CLR 475

(1993) 176 CLR 604

(2017) 263 CLR 1

(2019) 374 ALR 216

(1913) 17 CLR 50

(1990) 170 CLR 70

(1976) 136 CLR 109

(1977) 137 CLR 396

(1982) 151 CLR 342

(2000) 205 CLR 337

(2010) 240 CLR 651

(1980) 43 FLR 129

(2009) 237 CLR 501

(1944) 68 CLR 571

(1958) 98 CLR 383

(1979) 143 CLR 1

(2013) 252 CLR 38

(1999) 198 CLR 334

(2009) 240 CLR 319

(1992) 176 CLR 1

(1982) 154 CLR 25

(1997) 187 CLR 384

[2017] FCAFC 107

[1993] HCA 24

[2020] FCAFC 110

[2017] HCA 33

[2010] HCA 21

[2014] FCAFC 102

[2019] FCAFC 188

[2010] HCA 16

[2019] HCA 3

[1963] HCA 41

[2014] FCA 1447

[2011] FCA 182

[2014] FCAFC 93

[2020] FCAFC 76

[2017] HCA 34

[1998] HCA 28

[2012] FCAFC 117

[2000] HCA 63

[2005] HCA 72

[2003] FCAFC 184

[1949] HCA 26

[2017] FCAFC 104

[1913] HCA 35

[2008] HCA 4

[2019] HCA 40

[2008] FCAFC 128

[1996] HCA 24

[1990] HCA 31

[2013] FCA 317

[2014] FCA 277

[2011] HCA 24

[2009] HCA 49

[2009] HCA 41

[1986] HCA 7