SDCV v Director-General of Security

SDCV v Director-General of Security - [2022] HCA 32 - HCA 2022 case summary — Zoe

[8]

Constitutional law (Cth) - Judicial power of Commonwealth - Where adverse security assessment of appellant, accompanied by statement of grounds, certified by Director‑General of Security on behalf of Australian Security Intelligence Organisation ("ASA decision") - Where appellant's visa cancelled on character grounds in consequence of ASA decision - Where appellant applied to Administrative Appeals Tribunal for merits review of ASA decision - Where Minister administering Australian Security Intelligence Organisation Act 1979 (Cth) issued certificates under s 39B(2)(a) of Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") stating that disclosure of some of contents of documents relating to ASA decision would be contrary to public interest because disclosure would prejudice security of Australia ("certificated matter") - Where Tribunal provided with certificated matter but certificated matter not disclosed to appellant or appellant's legal representatives - Where Tribunal affirmed ASA decision - Where appellant appealed to Federal Court of Australia pursuant to s 44 of AAT Act - Where s 46(1) of AAT Act allowed Federal Court to have regard to certificated matter in determining appeal - Where s 46(2) of AAT Act provided that Federal Court shall do all things necessary to ensure that certificated matter not disclosed to any person other than member of court as constituted for purposes of proceeding - Where certificated matter not disclosed to appellant or appellant's legal representatives in Federal Court - Whether s 46(2) of AAT Act invalid on basis that Ch III of Constitution precludes making of law that denied party to proceedings in court of federal judicature fair opportunity to respond to evidence on which order of court which finally altered or determined right or legally protected interest of party might be based - Whether s 46(2) of AAT Act invalid on basis that it required or authorised Federal Court to act in manner inconsistent with essential character of court or with nature of judicial power.

[12]

KIEFEL CJ, KEANE AND GLEESON JJ. The appellant's visa was cancelled on character grounds pursuant to s 501(3) of the Migration Act 1958 (Cth) in consequence of an adverse security assessment ("ASA") certified by the first respondent, the Director‑General of Security ("the Director-General"), on behalf of the Australian Security Intelligence Organisation ("ASIO") ("the ASA certificate"). The ASA certificate was accompanied by a statement of grounds, which is deemed part of that assessment and which is required to contain all information that has been relied upon by ASIO in making the assessment, other than information the inclusion of which would, in the opinion of the Director‑General, be contrary to the requirements of security[1]. Together, the ASA certificate and the statement of grounds comprise "the ASA decision".
The ASA decision was authorised under the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). The ASA certificate stated that the appellant had been assessed to be, directly or indirectly, a risk to security[2], and that it would not be consistent with the requirements of security for the appellant to continue to hold his visa, and recommended that his visa be cancelled[3]. The appellant was entitled to be informed that the ASA decision had been made and to be provided with a copy of it, except to the extent that the Minister administering the ASIO Act ("the ASIO Minister")[4] certified in writing that the Minister was satisfied, relevantly, that disclosure to a person of the statement of grounds, or of a particular part of that statement, would be prejudicial to the interests of security[5]. The appellant was provided with a statement of grounds noted to have sections omitted in consequence of a certificate signed by the ASIO Minister under s 38(2)(b) of the ASIO Act ("the public interest non‑disclosure certificate")[6]. Accordingly, the appellant was not to be, and was never, informed of all the information with respect to the ASA decision.
The ASA decision was furnished to the Department of Home Affairs[7]. Subsequently, as noted above, the Minister for Home Affairs cancelled the appellant's visa pursuant to s 501(3) and (6)(g) of the Migration Act, on the basis that the Minister reasonably suspected that the appellant did not pass the character test and was satisfied that the cancellation of his visa was in the national interest. On the same day, the appellant was provided with a notice of visa cancellation and the stated grounds accompanying the ASA certificate[8].
The appellant applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the merits of the ASA decision.
For the purposes of the review by the Tribunal, the ASIO Minister issued certificates under s 39B(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") stating that disclosure of some of the contents of documents relating to the ASA decision would be contrary to the public interest because it would prejudice the security of Australia ("the certificated matter"). The Tribunal was provided with the certificated matter; but it was not disclosed to the appellant or to his lawyers[9].
Further, in order to prevent the disclosure of the certificated matter, the ASIO Minister issued certificates under s 39A(8) of the AAT Act, which had the effect that part of the hearing before the Tribunal was conducted in the absence of the appellant and his lawyers. In the "open" session, the Tribunal heard evidence called by both the Director‑General and the appellant. Evidence was heard in the "closed" session in the absence of the appellant[10]. The Tribunal accordingly wrote two sets of reasons: "open" reasons, which did not refer to the certificated matter and were seen by the appellant and his lawyers; and "closed" reasons, which addressed matters in the "closed" session and were not seen by them[11].
The Tribunal affirmed the ASA decision. The Tribunal's "open" reasons recorded that the Tribunal was not able to form a view on whether the ASA decision was justified based on the evidence led in the "open" session[12]. The reasons continued[13]:

[14]

The appellant appealed against the decision of the Tribunal to the Federal Court of Australia pursuant to s 44 of the AAT Act. The right of appeal under s 44 is confined to questions of law. The appellant raised five substantive grounds of appeal, including a contention that the Tribunal's decision was not open on the evidence before it. The appeal was heard in the original jurisdiction[14] of the Federal Court by a Full Court (Bromwich and Abraham JJ, Rares J agreeing). The Federal Court rejected each substantive ground of appeal, concluding, among other things, that the ASA decision was warranted by the evidence available to the Tribunal[15].
By reason of s 46(1) of the AAT Act, the Federal Court was allowed to have regard to the certificated matter in determining the appeal; but the certificated matter was not disclosed to the appellant or to his legal representatives. In that regard, s 46(2) of the AAT Act provided that 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".
In the course of the appeal to the Federal Court, the appellant also challenged the constitutional validity of s 46(2) of the AAT Act. The Federal Court rejected the constitutional challenge[16], and made a declaration that s 46(2) is a valid law of the Commonwealth.
The appeal to this Court is concerned only with the appellant's challenge to the validity of s 46(2) of the AAT Act. The appellant's contention is that Ch III of the Constitution precludes the making of a law that denies a party to proceedings in a court of the federal judicature a fair opportunity to respond to the evidence on which an order of the court which finally alters or determines a right or legally protected interest of that party might be based, and that s 46(2) is such a law.
As will be explained, there is a fatal artificiality in the appellant's attempt to analyse the effect of s 46(2) without regard to the circumstance that it has no operation independent of s 46(1). Section 46, considered as a whole, does not disadvantage a person in the position of the appellant: it simply offers that person a statutory remedy in addition to the remedies otherwise provided by law, that additional remedy being attended with forensic consequences different from those attending those other remedies. But even if attention is confined to s 46(2) as if it stood alone, it was not apt to occasion practical injustice to the appellant in the determination of his appeal under s 44. In this regard, it is necessary to appreciate the limited statutory rights of the appellant to enter and remain in Australia, the susceptibility of those rights to cancellation upon the making of an ASA, and the undisputed validity, irrespective of any challenge to the ASA decision or its outcome, of the statutory denial of disclosure to the appellant of security‑sensitive information including, on review and appeal, the certificated matter. The rights of a visa holder were always qualified by the statutory process of the executive government to deny the visa holder disclosure of security‑sensitive grounds for the making of an ASA.
It should also be understood that s 46 of the AAT Act applies to an appeal under s 44, which is but one avenue of challenge to the decision of the Tribunal. The appellant might have challenged the Tribunal's decision in proceedings for judicial review under s 75(v) of the Constitution[17] or s 39B of the Judiciary Act 1903 (Cth)[18], and in those proceedings s 46 would have had no application and so the appellant's alleged disadvantage under s 46(2) would have been avoided. Of course, if the appellant had chosen to bring his challenge to the decision of the Tribunal pursuant to one of those avenues, he would not have enjoyed the forensic advantage conferred by s 46(1) because public interest immunity would likely have prevented the use of the certificated matter by the Federal Court[19].
The appellant's argument in this Court is that the vice of s 46(2) of the AAT Act lies in allowing evidence adverse to him to be considered by the Federal Court without his being afforded the opportunity to know and respond to it. But on no view can it be supposed that s 46(2) could be construed such that the appellant might have pursued an appeal under s 44 with the benefit of s 46(1) and shorn of the alleged disadvantage of s 46(2). The appellant's choice of s 44 as the avenue of challenge to the ASA decision reflects a judgment that ss 44 and 46 offered him the best chance of a successful challenge to the ASA decision. No practical injustice was caused to the appellant by reason of his choice of preferred remedy. One cannot maintain the proposition that one has been subjected to a practical impediment by reason of the presence of a known obstacle on the path that one has chosen to pursue.
As to the possibility that the real vice of s 46(2) of the AAT Act lies in its creation of an institutional difficulty for the Federal Court in hearing and determining an appeal pursuant to s 44 by denying the appellant the ability to know and to respond to evidence adverse to him, it is necessary to appreciate that Ch III of the Constitution does not entrench the adversarial system of adjudication and its incidents as defining characteristics of the courts for which it provides[20]. The limitation imposed by s 46 on the ability of a person in the position of the appellant to participate in an appeal on a question of law under s 44 does not, in any way, compromise the functioning or impartiality or independence of the Federal Court.
Before discussing these matters further, it is necessary to summarise the appellant's circumstances, the statutory context in which the appellant's appeal came before the Federal Court, and the reasons of that Court.

[27]

Section 37(5) of the ASIO Act provides that no proceedings, other than an application to the Tribunal under s 54, shall be brought in any court or tribunal in respect of the making of a security assessment, including an ASA, or anything done in respect of a security assessment in accordance with the ASIO Act. Such a review is conducted in the Security Division of the Tribunal in accordance with ss 39A and 39B of the AAT Act.
Pursuant to s 39A(3) of the AAT Act, the Director‑General is obliged to present to the Tribunal all relevant information available to the Director‑General, whether favourable or unfavourable to an applicant.
Section 39A(6) of the AAT Act provides that, subject to s 39A(9), an applicant and a person representing an applicant may be present when the Tribunal is hearing submissions made or evidence adduced by, relevantly, the Director‑General.
Section 39A(8) of the AAT Act 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, relevantly, the Director‑General 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". Section 39A(9) provides that, if such a certificate is given, an applicant "must not be present when the evidence is adduced or the submissions are made"; and "a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents". If a person representing an applicant is present when such evidence is adduced or such submissions are made, it is an offence for the representative to disclose any such evidence or submission to the applicant or to any other person, punishable by two years' imprisonment[33].
The Tribunal must first hear evidence adduced and submissions made by, relevantly, the Director-General. The Tribunal must next permit an applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal[34].
Section 39B of the AAT Act applies to a proceeding in the Security Division to which s 39A applies[35]. Section 39B(2)(a) provides that if the ASIO Minister certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest "because it would prejudice security or the defence or international relations of Australia", the remaining provisions of s 39B have effect. In this regard, s 39B(3) provides that where information has been disclosed or documents have been produced to the Tribunal for the purposes of a proceeding, the Tribunal "must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure", relevantly, "that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding".
Section 39B(7) of the AAT Act provides that s 39B does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal's staff in the performance of his or her duties as a member of the Tribunal's staff.
Section 39B(8) of the AAT Act provides that s 39B excludes the operation, apart from s 39B, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding.
Section 39B(11) of the AAT Act further provides that it is the duty of the Tribunal, even though there may be no relevant certificate under s 39B, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.
Upon the conclusion of the Tribunal's review, it must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment[36]. The Tribunal must cause copies of its findings to be given to an applicant, the Director‑General, the Commonwealth agency, State or authority of a State to which the assessment was given, and the ASIO Minister[37]. However, the Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to an applicant, is not to be given to the applicant or to the Commonwealth agency, State or authority of a State to which the assessment was given[38].

[39]

In respect of the appellant's challenge to the validity of s 46(2) of the AAT Act before the Federal Court, his counsel argued that legislation providing for a determination by a Ch III court must, without exception, ensure that 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[44]. The Federal Court rejected that argument.
Bromwich and Abraham JJ, with whom Rares J agreed[45], proceeded on the basis that it was uncontroversial that Parliament cannot require a court within Ch III of the Constitution 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[46]. Their Honours stated that "it may be accepted that procedural fairness is an essential feature of a Ch III court"[47]. For their Honours, as for this Court, the question was "whether, taken as a whole, the Court's procedures avoid practical injustice"[48].
In this regard, their Honours noted that the only circumstance in which s 46(2) of the AAT Act applies is when an appeal is brought against a decision of the Tribunal on a question of law; the appellant did not suggest that he was, or should have been, entitled to the certificated matter either at the stage at which the administrative decision was made by the Director‑General, or at the stage of merits review in the Tribunal[49]. Their Honours also noted that they were not concerned with a case where the impugned legislation allowed a party to move the Court for an order which affected or altered the rights or interests of a person on the basis of evidence which was not available to the person affected by the order because of public interest and national security issues[50].
Bromwich and Abraham JJ said that the Commonwealth Parliament may validly create a regime in which, for good reason, the court may have access to information that a party affected may not. Their Honours noted that this Court has, on numerous occasions, upheld the validity of legislation which had that very consequence[51]. In their Honours' view, s 46 of the AAT Act could be described, as the legislation was in those decisions, 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"[52].
Their Honours also reasoned that when assessing the validity of s 46(2) of the AAT Act and whether there is a practical injustice, one must do so against the background of the legislative scheme as a whole and the counterfactual situation - that is, the position if s 46(2) did not exist[53]. In relation to these considerations, their Honours said[54]:

[45]

It was common ground in this Court, as it was in the Federal Court[57], that Parliament cannot require a court within Ch III of the Constitution to exercise the judicial power of the Commonwealth in a manner inconsistent with the character of a court or the nature of judicial power. It was also common ground that procedural fairness is an essential feature of a Ch III court and that, as was said by the plurality in Condon v Pompano Pty Ltd[58], the ultimate question is "whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid 'practical injustice'".
The appellant submitted that a law that requires a court to adopt an unfair procedure infringes the limitation identified by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[59] that Ch III of the Constitution precludes the enactment of a law that requires or authorises a court to exercise the judicial power of the Commonwealth "in a manner which is inconsistent with the essential character of a court or with the nature of judicial power". The appellant, while acknowledging that the requirements of procedural fairness are not fixed, argued that there is a "minimum requirement" of procedural fairness such that, if a court is to make an "order that finally alters or determines a right or legally protected interest of a person", the court must afford to that person "a fair opportunity to respond to evidence on which that order might be made"[60]. The appellant submitted that that opportunity may be afforded in different ways, namely allowing the affected person to be given the "gist" of the evidence, to have special advocates appointed to represent a person's interests, or both, as a means to achieve the necessary minimum requirement of procedural fairness.
The critical divergence between the appellant and the respondents is that the respondents argued that the "minimum requirement" of an opportunity to know and respond to adverse material before the Federal Court, insisted upon by the appellant, is not invariably required to prevent practical injustice in an appeal under s 44 of the AAT Act from the Tribunal to the Federal Court.

[46]

As to the appellant's reliance upon Chu Kheng Lim as the foundation of his argument, it is to be noted that the passage from Chu Kheng Lim quoted above focussed upon the exclusivity of the constitutional function of Ch III courts to adjudge and punish criminal guilt. That passage was a step in the reasoning to the conclusion that Ch III "precludes the enactment ... of any law purporting to vest any part of that function [namely the adjudgment and punishment of criminal guilt] in the Commonwealth Executive"[61]. Chu Kheng Lim did not suggest that the content of procedural fairness, characteristic of a Ch III court, is fixed by a "minimum requirement"; and it cast no doubt on the proposition that the requirements of procedural fairness are "adaptable to the environment in which it is applied"[62]. Nor does any subsequent decision of this Court establish that there is a "minimum requirement" of procedural fairness applicable to all proceedings in a Ch III court. As will be seen, those statements of high authority are to the contrary.
The question whether practical injustice may be caused to a litigant is not to be resolved by reference to fixed rules as to the "minimum requirement" of procedural fairness that apply in every case in which the judicial power of the Commonwealth is engaged. Whether practical injustice may be occasioned to a litigant depends upon the nature of the proceedings and the rights and interests at stake[63]. So, in the adjudgment and punishment of criminal guilt, a person's liberty may, speaking generally, be taken away only in judicial proceedings involving observance of all the procedural safeguards that attend a criminal trial; but there is no support in the decided cases for the view that the requirements of procedural fairness that attend a criminal trial are also guaranteed by Ch III in relation to an appeal to a court as an adjunct to a statutory regime under which statutory rights depend upon administrative decisions. Indeed, it is salutary to acknowledge that, as French CJ said in Pompano, even in a criminal proceeding, where the claim to the full gamut of procedural protections of the accused in the interest of fairness is at its strongest, the accused may be denied disclosure of information that may lead to the identification of an informant. In that regard, French CJ said[64]:

[56]

True it is that Gypsy Jokers was concerned with State legislation, and was decided on the basis of the principles in Kable v Director of Public Prosecutions (NSW)[84], whereas the impugned legislation here is a Commonwealth law and no reference to Kable is necessary to explain why the implications of Ch III of the Constitution are engaged. But there is no principled basis to distinguish between State and federal courts as components of the federal judicature in relation to their institutional obligations to accord procedural fairness. The Kable doctrine is derived from the requirement of Ch III that State courts must conform to the description of a court in Ch III in order to fulfil their role as potential repositories of federal jurisdiction and as part of the integrated court system in Australia; and as Gaudron J said in Kable, "there is nothing anywhere in the Constitution to suggest that it permits of different grades or qualities of justice, depending on whether judicial power is exercised by State courts or federal courts created by the Parliament"[85].
It may be noted that s 46(2) of the AAT Act applies only when there is in force a valid certificate in accordance with, relevantly, s 39B(2) of the AAT Act. In Hussain v Minister for Foreign Affairs[86], Sagar v O'Sullivan[87] and Traljesic v Attorney‑General (Cth)[88] it was recognised that a person adversely affected by an ASA is entitled to seek judicial review of the decision to issue such a certificate. The appellant did not seek to challenge the validity of the ASIO Minister's certificates issued under s 39A(8) or s 39B(2) in the Federal Court or otherwise[89]. In addition, as Bromwich and Abraham JJ observed[90], the appellant could have argued before the Tribunal that the certificates of the ASIO Minister were invalid as an improper exercise of an administrative discretion, and that, accordingly, ss 39A and 39B were not applicable to the review before the Tribunal.
The circumstance that a person in the position of the appellant may test the validity of a certificate of the ASIO Minister in any of these ways forecloses one argument that might have been advanced, but was not pursued in this Court, against the validity of s 46(2)[91]. That argument might have been to the effect that legislation which purported to direct the courts as to the manner and outcome of the exercise of their jurisdiction would be apt impermissibly to impair the character of the courts as independent and impartial tribunals[92]. Section 46 of the AAT Act does not purport to direct the Federal Court to act upon an unexaminable opinion of the ASIO Minister as to whether disclosure of certificated matter would be contrary to the public interest because, relevantly, it would prejudice security or the defence or international relations of Australia[93]. But where there is no challenge to the decision to issue a certificate, no question can arise as to the lawfulness of the denial of disclosure to a person in the position of the appellant of security‑sensitive information (at the time of the making of an ASA) or certificated matter (at the review before the Tribunal). The bringing of an appeal to the Federal Court does not change that state of affairs.

[66]

The appellant is a non‑citizen. His rights to enter and remain in Australia depend on his holding a valid visa under the Migration Act[113]. Other statutory provisions circumscribe those rights: in particular, the appellant was liable to have his visa cancelled under s 501(3) of the Migration Act in consequence of the making of an ASA under the ASIO Act[114]. Any entitlement of the appellant to disclosure of information with respect to an ASA was statutory; under statute, it could be denied by decisions of officers of the executive government where those officers considered that the public interest in Australia's security required non‑disclosure of that information[115]. It is undisputed that, apart from s 46(2) of the AAT Act, the denial of disclosure to the appellant of security‑sensitive information, including the certificated matter, was effected lawfully. And that was so irrespective of any challenge to the validity of the ASA decision and of the outcome of that challenge. The appellant's rights were always circumscribed by the denial of disclosure of security‑sensitive information pursuant to unchallenged administrative decisions made under unchallenged laws. The statutory provisions that allowed the appellant to challenge the ASA decision in the Tribunal maintained that state of affairs in consequence of the certificates issued by the ASIO Minister under the AAT Act.
The right of appeal to the Federal Court is itself a creature of statute. On the appellant's appeal under s 44 of the AAT Act, s 46(2) maintained the position regarding non‑disclosure of security‑sensitive information relating to the ASA decision, while s 46(1) allowed the Federal Court to consider all of the material that was before the Tribunal in reviewing the ASA decision and which was relevant to the appeal. The Federal Court was thereby enabled to decide the appeal before it on the same material as that on which the Tribunal proceeded[116].
In considering the rights and interests of the appellant that were at stake in his appeal, it must be appreciated that he was, at all times, denied disclosure of the certificated matter by the laws regulating his presence in Australia. It may be observed that the statement by Gageler J in Pompano on which the appellant's argument relied presupposes that the rights the protection of which are at stake in the proceeding in question are different from the "right" to bring that proceeding. The unfairness which is to be avoided is the loss of those rights otherwise than by a fair judicial process. In the present case, the only right of the appellant that was relevantly at stake in the appeal to the Federal Court was his right to hold his visa or, more precisely, his right to hold his visa unless he had been the subject of a valid ASA[117].
The appellant's right to hold his visa free of the consequences of an erroneous ASA was subject to the qualification that an ASA was to be made with him having no access to security‑sensitive information relating to the ASA. The lawfulness of that qualification upon the appellant's rights has not been challenged. The determination of the appeal without disclosure of the certificated matter reflected the substance of the appellant's rights to access that material, that is to say, that he was by law denied disclosure. The Federal Court's duty to "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" meant that the appellant had no right to disclosure of security‑sensitive information relating to the ASA decision; and whether he was entitled to hold his visa free of the consequences of an erroneous ASA was to be determined on that footing.
The denial of an opportunity for the appellant to know the totality of information that justified the making of the ASA decision was an incident of the statutory regime under which the appellant was permitted lawfully to enter and remain in Australia. The statutory regime under which he was present in Australia as a visa holder denied him that information when the ASA decision was made. That was also the case before the Tribunal. There is no question that this state of affairs was lawfully imposed. Section 46(2) of the AAT Act maintained that state of affairs on the appeal to the Federal Court.
The appellant suffered no practical injustice in the determination of his appeal to the Federal Court without either him or his lawyers having access to the certificated matter. He suffered no loss of rights by reason of being denied full disclosure because his right to hold a visa unless he was the subject of a valid ASA was circumscribed by the requirement that he not be informed of security‑sensitive information in relation to that decision. Indeed, it would be "productive potentially of injustice and absurdity" if the Federal Court were to allow the appeal and remit the matter for determination by the Tribunal "on a basis different from that which the [Tribunal] had quite rightly adopted and been required to adopt when first considering the matter"[118].

[67]

The same conclusion may be reached by considering more closely the operation of s 46 of the AAT Act as a whole.
The appellant attacked the reasoning of the Federal Court[119] that s 46(2) did not cause practical injustice to the appellant because, if s 46(2) did not exist, the certificated matter would still have been covered by public interest immunity and so would have been unavailable to the Court. The appellant argued that, in the absence of s 46(2), if a claim for public interest immunity were upheld, the certificated matter would not be available to either party or to the Court. On that basis, the appellant would not be subject to the alleged forensic disadvantage of being denied the opportunity to know and respond to the certificated matter that was available to the Federal Court. The appellant's argument is flawed in its focus upon the operation of s 46(2) as if it has an operation independent of s 46(1).
Had the appellant challenged the validity of the ASA decision by judicial review proceedings under s 75(v) of the Constitution or s 39B of the Judiciary Act immediately upon the making of that decision, there can be no doubt as a practical matter that those proceedings would have been heard and determined on the footing that the certificated matter could not be disclosed to the appellant for the purposes of those proceedings[120]. Nothing in the legislative regime which provided, validly, for the making of the ASA decision altered the position that the law required that the certificated matter not be disclosed to the appellant on appeal to the Federal Court. Section 46(2) of the AAT Act confirmed that this state of affairs was not altered by the operation of s 46(1) in relation to an appeal under s 44.
It is clear, as a matter of statutory construction, that s 46(2) of the AAT Act has no operation independently of s 46(1), and so one cannot begin to answer the question whether the determination of the appellant's appeal to the Federal Court involved practical injustice by focussing exclusively on s 46(2) as if it does. When one considers the operation of s 46 as a whole, it is readily apparent that it confers an additional remedy upon a person in the position of the appellant but does not alter the state of affairs under which that person is lawfully denied disclosure of security‑sensitive information.
As noted above, s 46 of the AAT Act applies to an appeal to the Federal Court under s 44, which provides an alternative to the constitutionally entrenched avenue of judicial review in s 75(v) of the Constitution[121] and the further statutory avenue of judicial review under s 39B of the Judiciary Act[122] as a means of challenge to an ASA. On one hand, pursuing one of those avenues would have avoided the procedural disadvantage identified by the appellant. On the other hand, neither of those avenues would have included the advantage assured to the appellant by s 46(1), in having the certificated matter placed before the Court. Without s 46(1), a person in the position of the appellant might struggle to make out the error for which he or she contends before the Federal Court[123], especially in a case such as the appellant's where one of the asserted errors was that the Tribunal's decision was not open on the evidence before it. Section 46(1) thus provides a forensic benefit to a litigant in the position of the appellant.
It cannot be supposed that, if this Court were to hold that Parliament may not validly call upon a Ch III court to entertain an appeal under s 44 of the AAT Act which is affected by s 46(2), it would follow that a person in the position of the appellant could proceed with the appeal free of the forensic "disadvantage" imposed by s 46(2) but with the forensic advantage of s 46(1). If s 46(2) is invalid by reason of its inconsistency with Ch III, then s 46 is invalid in its entirety. The provisions of s 46 cannot have been intended to operate otherwise than as a package: in this regard s 46(2) makes no sense at all without s 46(1). The courts have no power to engage in a rewriting of s 46 to alter its intended effect.
If s 46 of the AAT Act were invalid in its entirety, it is, as a practical matter, distinctly unlikely that the Federal Court would ever be able to consider information precluded from disclosure by certificates issued by the ASIO Minister on an appeal under s 44. Public interest immunity could be expected to prevent the use of such information by the Federal Court. As a practical matter, it is safe to say that, in the appellant's case, there is no good reason to think that the certificated matter could have been disclosed to the Federal Court in the absence of s 46(1).
The choice of an alternative avenue of challenge under s 75(v) of the Constitution or s 39B of the Judiciary Act would not have offered the forensic advantage provided by an appeal under s 44 of the AAT Act; but it would have obviated the forensic "disadvantage" that is said to be the basis of the appellant's argument in this Court. That being so, it is difficult to accept that the avoidable consequences of s 46(2) caused him any practical injustice. The appellant chose the remedy that carried the benefit of s 46(1) available only on the terms contained in s 46(2).
That s 46 of the AAT Act stands or falls in its entirety highlights the artificiality of the appellant's complaint, and helps to demonstrate that s 46(2) was not apt to cause him any practical injustice in the determination of his appeal to the Federal Court. That is because the effect upon his appeal of the forensic consequences of s 46(2) cannot be considered separately from the forensic advantage conferred by s 46(1): one comes with the other. To the extent that the benefit of s 46(1) may be thought to outweigh the limitation imposed by s 46(2) so that a person in the position of the appellant chooses to pursue an appeal under s 44 rather than the other available avenues of challenge, no practical injustice is suffered. There is only the choice of a remedial procedure that is less advantageous for an appellant than it might have been, but, nevertheless, more advantageous for an appellant than the alternatives, none of which can sensibly be said to be practically unjust. Each alternative remedy is simply what the law provides, that being indisputably a matter for the Parliament. The choice of remedy was a matter for the appellant.

[68]

The appellant argued that s 46(2) of the AAT Act operates impermissibly in a "blanket" fashion to deny an appellant information about the case against him or her, whereas cases involving trade secrets or confidential information proceed on a case‑by‑case analysis by a court of what fairness requires in the particular case before that court, with the appropriate procedure being moulded by the court itself. The appellant argued that, in considering a claim for public interest immunity, a court must, in each case, engage in a balancing exercise which takes into account both whether any harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld[124]; in contrast, s 46(2) does not allow for this case‑by‑case balancing of competing interests by the Federal Court. Rather, the appellant argued, s 46(2) precludes the Court from tailoring an order to ensure "basic procedural fairness"[125].
The appellant's argument cannot be accepted. No decision of this Court supports a constitutional imperative that the balance of competing public interests in litigation must always be left to be struck on a case‑by‑case basis by a court. Indeed in Nicholas v The Queen[126], this Court rejected the contention that "only the courts may determine what the public interest requires" in balancing competing considerations relating to the protection of the integrity of the court's processes and the pursuit of other objectives within legislative power[127].
Nor does Ch III give rise to a constitutional impediment to the Parliament deciding that s 46(2) of the AAT Act was necessary or appropriate to maintain the balance of the competing public interests struck by the provisions in the ASIO Act limiting the appellant's rights to disclosure of security‑sensitive information. Disclosure of the information on which an ASA has been made, or even the "gist" of that information, is apt to enable the identification by the person the subject of an ASA of the sources of information adverse to his or her interests. Parliament was entitled to proceed on the basis that, given the security context in which that information is provided, the human sources of that information will be willing to co‑operate with the authorities only on the basis of assurances that their identities, and the information that may identify them, would be kept confidential.
In Gypsy Jokers[128], the plurality approved the following remarks of Deane J in Australian Broadcasting Commission v Parish[129]:

[74]

The appellant argued that a court's institutional integrity hinges on its possessing, and maintaining, the essential characteristics that mark it apart from other decision‑making bodies, and a law which purports to remove those characteristics altogether will therefore infringe the Chu Kheng Lim principle. Section 46(2) of the AAT Act does not require the Federal Court to act in a way that is inconsistent with the essential characteristics of a court. Chapter III of the Constitution precludes the imposition by the Parliament upon the courts of the federal judicature of the "grossly unjudicial chore" of determining an appeal by a process inconsistent with the due exercise of judicial power[133]; but the task of the Federal Court under s 44 is not rendered unduly complex or difficult by s 46(2). Nor is the integrity of the Federal Court affected by s 46(2).
In Graham v Minister for Immigration and Border Protection[134], this Court was concerned with a challenge to the validity of s 503A(2) of the Migration Act. The effect of s 503A was that if a certain category of confidential information was communicated to the Minister for Immigration and Border Protection, the Minister could not be required to divulge or communicate that information to a court, a tribunal, a parliament or parliamentary committee, or any other body or person[135].
The plaintiff in Graham argued, relevantly, that s 503A(2) was invalid under Ch III of the Constitution on the basis that it required a federal court to exercise judicial power in a manner which was inconsistent with the essential character of a court or with the nature of judicial power[136]. In particular, the plaintiff submitted that it is an essential function of courts to find facts relevant to the determination of rights in issue, and that s 503A(2) prevented the courts from doing so, thereby constituting an impermissible interference with their function[137]. It is to be noted that the majority in Graham (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) rejected that submission, holding that s 503A(2) was valid, except to the extent that s 503A(2)(c) operated to prevent the Minister for Immigration and Border Protection 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[138].
Importantly for present purposes, the majority in Graham recorded a submission by the parties defending the validity of the legislation 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"[139]. Their Honours stated that 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"[140].
Their Honours went on to observe that "[t]he fact that a gazetted agency and the Minister may control the disclosure of information does not affect the appearance of the court's impartiality"[141]. And so, in the instant case, the impartiality and independence of the Federal Court is not affected by the maintenance of the limitations on the appellant's entitlement to disclosure of the certificated matter.

[75]

The appellant advanced an alternative argument to the effect that s 46(2) of the AAT Act may be only partially invalid. This alternative argument proceeded on the basis that s 15A of the Acts Interpretation Act 1901 (Cth) requires s 46(2) to be read down to comply with the constitutional limitation. In this regard, it was argued on behalf of the appellant that s 46(2) should be read as if it provided to the effect that the Court "shall ... do all things necessary in the due exercise of judicial power to ensure that the [certificated] matter is not disclosed to any person ..."; the point being that, read in this way, s 46(2) would afford an appellant the minimum opportunity to know and respond to the evidence adverse to him or her, and s 46(2) would be valid. Alternatively, the appellant argued that any operation of s 46(2) that exceeds the constitutional limit be severed or disapplied. The argument concluded that if s 46(2) cannot be read down or disapplied, as the appellant suggested, then it is wholly invalid.
The reading of the statutory text proposed by the appellant is not open. For good or ill, it is clear that the intention of s 46(2) of the AAT Act is to ensure that there be no disclosure of the certificated matter save as permitted by the other provisions of s 46. The terms of s 46 are clear beyond peradventure that the only exceptions to the express requirement of s 46(2) are expressly stated in the other provisions of s 46.
It should also be said that s 46 of the AAT Act cannot be construed to allow the appointment of special counsel to whom the matter the subject of ministerial certificates might be disclosed. Section 46(4), which allows disclosure to an "officer of the court", does not contemplate the appointment of special counsel to whom disclosure of such matter might be made so as to overcome the effect of s 46(2). As Foster J rightly held in National Archives of Australia v Fernandes[142], when one pays due regard to the objects and purposes of the AAT Act, and of s 46 in particular, one cannot understand the expression "officer of the court" in s 46(4) as including "any legal practitioner admitted to practice by an appropriate Court in Australia ... [T]he expression ... is meant to refer to public servants employed in the Court to assist the judges in the performance of their judicial function."
In addition, the appointment of special counsel to represent a person in the position of the appellant, as urged on the appellant's behalf, would not resolve the practical consequences otherwise occasioned by s 46(2). As the plurality noted in Pompano, special counsel to whom the certificated material was disclosed "could not, without disclosing the existence or content of the information ... ask [the appellant] to comment on what the lawyer had been told. The lawyer could assemble no ammunition to launch an attack upon the veracity of a confidential source alleged to have provided [certificated matter] without disclosing that source's existence"[143].

[76]

The appellant was lawfully denied the right to know the totality of information which led to the making of the ASA decision under unchallenged laws and unchallenged administrative decisions directed to the preservation of confidentiality in the interests of national security. Section 46(2) of the AAT Act was consistent with the statutory provisions establishing the rights of the appellant to enter and remain in Australia. Moreover, s 46(2) did not affect the integrity of the Federal Court in the independent and impartial performance of its functions.
An appeal under s 44 of the AAT Act, to which s 46 applies, is additional to the available remedies under s 75(v) of the Constitution or s 39B of the Judiciary Act. As a practical matter, any "disadvantage" to the appellant occasioned by s 46(2) would have been avoided by the choice of proceedings under these other remedies. But such a choice would have denied the appellant the forensic advantage offered by s 46(1) in having the certificated matter provided to the Court. Section 46(2) operated inseparably from s 46(1) to provide the appellant with forensic advantages different from those otherwise provided by law. The appellant, having chosen to pursue the remedy that afforded those advantages, suffered no practical injustice.
The decision of the Federal Court was correct.
The appeal to this Court should be dismissed. The appellant should pay the costs of the appeal to this Court.
GAGELER J. The question in this appeal is of a kind which has arisen in numerous national jurisdictions on numerous occasions since the notorious events of 11 September 2001. To what extent is the ordinary principle that a party to litigation is entitled to know the evidence relied on against them capable of legislative modification in the interests of national security?
Questions of that kind have been addressed in the United States under the rubric of the constitutional guarantee of "procedural due process"[144]. They have been addressed in Canada by reference to constitutionally enshrined "principles of fundamental justice"[145]. In the European Union[146], and in the United Kingdom[147], they have been addressed by reference to the human right to a "fair hearing".
In Australia, a question of that kind engages Ch III of the Constitution. In particular, it engages the requirement of procedural fairness, which "lies at the heart of the judicial function"[148]. Procedural fairness is essential to the exercise of the judicial power of the Commonwealth[149]. Observance of procedural fairness is an essential characteristic of any "court" capable of being invested by the Commonwealth Parliament with the judicial power of the Commonwealth[150].
The precise question in the appeal is to be addressed within that constitutional frame of reference. The question concerns s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") in its application to a document containing information disclosure of which has been certified by the Minister administering the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Minister") under s 39B(2)(a) of the AAT Act to be contrary to the public interest "because it would prejudice security or the defence or international relations of Australia". The question is whether s 46(2), in that application, operates to require the Federal Court of Australia to adopt a procedure that is unfair when exercising the judicial power of the Commonwealth to hear and determine an appeal on a question of law from a decision of the Administrative Appeals Tribunal ("the AAT") under s 44 of the AAT Act.
Section 46(2) of the AAT Act operates against the background of the general requirement of s 46(1). The general requirement is that, upon the institution of an appeal under s 44, the AAT must send to the Federal Court all documents that were before the AAT in connection with the proceeding to which the appeal relates and that are relevant to the appeal. Having been sent to the Federal Court, the documents remain within the custody and control of the Federal Court until the conclusion of the appeal, when the Federal Court must return them to the AAT. The documents in the meantime are available to the Federal Court, and ordinarily to the parties, in the conduct of the appeal so as to be able to be considered by the Federal Court in the determination of the appeal.
Where triggered by the ASIO Minister's prior certification under s 39B(2)(a) of a document sent to the Federal Court by the AAT under s 46(1), s 46(2) requires that the Federal Court "do all things necessary to ensure that the [certified information] is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding". Disclosure "to an officer of the court in the course of the performance of his or her duties as an officer of the court" is specifically permitted by s 46(4). The requirement to ensure non-disclosure is otherwise unqualified. There may be some flexibility as to the means adopted. There is no flexibility as to the outcome to be achieved: the wholesale preclusion of disclosure of any part of the certified information to any other person, including any party to the appeal as well as any legal representative of any party to the appeal[151].
That blanket proscription of disclosure of certified information will not be a problem for a party to the appeal who is already aware of the certified information and is already aware that the certified information had been in a document before the AAT in connection with the proceeding to which the appeal relates. That party will have the benefit of knowing that the information will automatically be available to the Federal Court on the hearing of the appeal and will be able to tailor submissions on the appeal accordingly. Typically, that party will be a respondent before the Federal Court. Typically, that party will be an executive officer of the Commonwealth.
Depending on the issues in the appeal and on the degree of relevance or perceived relevance of the certified information to the resolution of those issues, the blanket proscription may well be a problem for a party to the appeal who is unaware of the information. By force of the proscription, that party will never know the information despite it being able to be considered by the Federal Court in the determination of the appeal. Typically, that party will be an applicant before the Federal Court. Typically, that party will be an individual.
My opinion is that the blanket proscription by s 46(2) of the AAT Act of disclosure of information certified under s 39B(2)(a) of the AAT Act renders the process by which the Federal Court is to hear and determine an appeal under s 44 of the AAT Act procedurally unfair.
To explain that opinion, I will say something more about the nature of an appeal under s 44 of the AAT Act and about the parameters of the inquiry to be undertaken in considering whether s 46(2) renders the process by which the Federal Court is to hear and determine such an appeal procedurally unfair. I will address the minimum content of procedural fairness as an aspect of a judicial process. I will then explain, in a manner responsive to various arguments of the respondents and interveners, why s 46(2) results in the process by which the Federal Court is to hear and determine an appeal failing to meet that minimum content.

[77]

The Commonwealth Parliament can invest the judicial power of the Commonwealth in the Federal Court only through the conferral under s 77(i) of the Constitution of federal jurisdiction with respect to a "matter" of a kind described in s 75 or s 76 of the Constitution. The constitutional term "matter" is broad[152]. The term encompasses subject-matters appropriate for the exercise of judicial power which do not involve a controversy about existing legal rights or obligations[153].
That said, a controversy between parties about existing legal rights or obligations is the paradigm[154]. "The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion."[155]
The federal jurisdiction conferred on the Federal Court by s 44 of the AAT Act to hear and determine an appeal on a question of law from a decision of the AAT is a conferral of judicial power to hear and determine a matter within that paradigm. Although styled an "appeal", the federal jurisdiction conferred is original jurisdiction[156]. The original jurisdiction is conferred under s 77(i) of the Constitution with respect to a matter arising under the AAT Act, being a matter of a kind described in s 76(ii) of the Constitution.
The terms in which that original federal jurisdiction is legislatively conferred by s 44 of the AAT Act make plain that the jurisdiction is invoked by one party to a proceeding before the AAT (typically, an individual aggrieved by the primary decision which was reviewed by the AAT and in turn by the decision of the AAT on the review[157]) raising against another party to that same proceeding before the AAT (typically, the executive officer of the Commonwealth who made the primary decision which was reviewed by the AAT[158]) a controversy as to whether the decision made by the AAT on the review[159] was materially affected by an error of law[160]. The duty of the Federal Court on the hearing and determination of the appeal[161] is limited to resolving the controversy so raised, and the power of the Federal Court to make final orders in the appeal[162] is limited to the making of orders appropriate to reflect that resolution[163]. To facilitate performance of that duty and the exercise of that power, the Federal Court is given ancillary jurisdiction to find facts supplementary to those which were found by the AAT in making the decision under appeal[164]. But neither the principal jurisdiction to hear and determine the appeal nor the ancillary jurisdiction to find additional facts requires or permits the Federal Court to engage in a process that is directed to anything other than the quelling of the controversy between the parties before it about existing legal rights.
Whether the Commonwealth Parliament could invest the Federal Court, or any other court, with federal jurisdiction to determine the lawfulness of an administrative decision made under Commonwealth legislation outside the paradigm of that court being called upon to quell a controversy between parties about existing legal rights is a large question. The question has not been argued and need not be resolved in order to answer the specific question in this appeal.
Were the question ever squarely to arise for consideration, the impact of moving outside the paradigm on the independence of the judiciary underpinned by Ch III's separation of the judicial power of the Commonwealth would need to be examined. Within a constitutional system built on the understanding that "the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive"[165], the perception if not the actuality of judicial independence would be called into question were the function of a judge reviewing the legality of administrative action to merge into that of an auditor or an ombudsman. To adopt an observation made by Isaacs J in New South Wales v The Commonwealth[166] and endorsed by the majority in R v Kirby; Ex parte Boilermakers' Society of Australia[167], were a court to have an active duty to "watch the observance of ... laws, to insist on obedience to their mandates, and to take steps to vindicate them if need be", "its essential feature as an impartial tribunal would be gone, and the manifest aim and object of the constitutional separation of powers would be frustrated".
The AAT, and the executive officer of the Commonwealth who made the primary decision reviewed by the AAT so as to become a party to the proceeding before the AAT, are situated by the AAT Act in an administrative continuum[168]. The administrative continuum ends with the AAT. The Federal Court is not part of it.
The function performed by the Federal Court when hearing and determining an appeal under s 44 of the AAT Act is the quintessential judicial function of exercising judicial power to quell a controversy between the parties to an administrative process about the lawfulness of the resultant administrative decision. The judicial function performed by the Federal Court is adjudicative, not procuratorial. The judicial process engaged in by the Federal Court in the performance of that judicial function is adversarial, not inquisitorial.

[79]

That brings me to the parameters of the inquiry to be undertaken in considering whether s 46(2) of the AAT Act renders the process by which the Federal Court is to hear and determine an appeal under s 44 procedurally unfair.
The respondents argue that a broad and pragmatic inquiry is warranted. They argue that s 46(2) cannot be divorced from s 46(1) and that s 46 cannot be considered in isolation from s 44. They say that the provisions together constitute a legislative package by means of which a peculiar statutory jurisdiction is conferred on the Federal Court with its own peculiar process. The respondents argue that it is the fairness of the package as a whole which needs to be assessed. They argue that the fairness of the package as a whole can only be assessed having regard to the alternatives available to a party seeking to challenge the lawfulness of a decision of the AAT.
The respondents point out that, absent an appeal under s 44 of the AAT Act, a party to a proceeding before the AAT seeking to challenge the lawfulness of its decision would be relegated to applying for judicial review of the decision on the basis of jurisdictional error either in the original jurisdiction conferred on this Court by s 75(v) of the Constitution or in the equivalent original jurisdiction conferred on the Federal Court under s 77(i) of the Constitution by s 39B(1) of the Judiciary Act 1903 (Cth). On any application for judicial review, that party would bear the onus of proving the facts necessary to establish that the decision of the AAT is affected by jurisdictional error. To discharge that onus of proof, the party would be able to invoke the compulsory processes of the court to obtain production of the documents that had been before the AAT. An attempt by the party to do so would likely be met by a claim of public interest immunity if and to the extent that a document contained information disclosure of which might be considered by a responsible executive officer of the Commonwealth to prejudice security or the defence or international relations of Australia. That claim of public interest immunity from production would not inevitably be upheld by the court in whole or in part on a balancing of considerations. But to the extent the claim was upheld by the court, it would result in the document containing the information being withheld from the party and also from the court. Not only would the party be handicapped in discharging the onus of proof, but the court would "arrive at a decision on something less than the entirety of the relevant materials"[169].
The respondents go on to point out that the jurisdiction to hear and determine an appeal on a question of law legislatively conferred on the Federal Court by s 44 of the AAT Act is not confined to an error of law which has resulted in jurisdictional error. To that extent, the jurisdiction conferred by s 44 of the AAT Act is broader than the jurisdiction conferred by either s 75(v) of the Constitution or s 39B(1) of the Judiciary Act[170].
What is more, the respondents point out, a party invoking the additional jurisdiction conferred on the Federal Court by s 44 of the AAT Act is relieved of the need to invoke compulsory processes to obtain the production of documents and to run the gauntlet of a claim for public interest immunity. That is because s 46(1) ensures that all documents that were before the AAT and that are relevant to the appeal will automatically be available to the Federal Court on the hearing of the appeal. For that considerable procedural benefit, so the argument goes, the party pays the small price imposed by s 46(2). The price is that, if certified by the ASIO Minister under s 39B(2)(a), the information contained in those documents will not be disclosed to that party.
Taking the downside of s 46(2) together with the upside of s 46(1), the respondents argue, a party to a proceeding before the AAT who wants to challenge the lawfulness of its decision is better off with an appeal under s 44 of the AAT Act than without an appeal under s 44 of the AAT Act. The party has not lost any right to challenge the lawfulness of the decision under s 75(v) of the Constitution or s 39B(1) of the Judiciary Act. The party has gained an additional and more expansive right to challenge the lawfulness of the decision by a dedicated streamlined process. Being no more than an incident of the process by which that additional and more expansive right to challenge the lawfulness of the decision is exercised, the respondents argue, the requirement of s 46(2) of the AAT Act occasions no "practical injustice".
I cannot accept that mode of analysis. The with-jurisdiction-and-without-jurisdiction comparison proffered by the respondents is to my mind beside the point. It can be no answer to an argument that a process required to be followed in the purported exercise of jurisdiction is unfair to say that something is better than nothing.
Chapter III of the Constitution does not admit of "grades or qualities of justice"[171]. "The circumstance that [an institution] has been established by legislation as a court means that any jurisdiction conferred on it is necessarily conditioned by the requirement that it observe procedural fairness in the exercise of that jurisdiction."[172]
The Commonwealth Parliament is not constitutionally required to confer any federal jurisdiction on any court under s 76 or s 77 of the Constitution. But whatever federal jurisdiction it chooses to confer is constitutionally incapable of being exercised by a court other than in accordance with a judicial process. Procedural fairness is a requirement to be observed within a judicial process.
At least where a matter with respect to which jurisdiction is conferred is within the paradigm of a controversy between parties about existing legal rights, procedural fairness requires that each party to the controversy be afforded a fair opportunity to be heard in the course of the judicial process by which that controversy gets resolved. That involves being afforded a fair opportunity to be heard in relation to the facts to be found, in relation to the ascertainment of the applicable law, and in relation to the application of that law to the facts.
The expression "practical injustice" is appropriately used as a synonym for procedural unfairness[173]. What is important to bear in mind in using that synonym, however, is that the practical injustice referred to is procedural injustice. Gleeson CJ coined the expression in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam[174]. His Honour there described a procedural irregularity in the process by which an administrative decision was made as having occasioned no "practical injustice" in circumstances where "[t]he applicant lost no opportunity to advance his case"[175].

[83]

That explanation of the content of procedural fairness in an adversarial judicial process within the common law tradition might here and now be said to be a purist view expressed in a less complicated age in a place where the term "judicial" bore no constitutional significance. The explanation might be said to have been an overstatement even then and there. Exigencies of national security and public safety in this century have prompted recognition of the historical truth that judges have in fact taken information undisclosed to one or more parties into account in reaching conclusions in a variety of atypical cases over a long period without the processes in which they have engaged having been thought unjudicial[177].
Nonetheless, the statement of Upjohn LJ reflects the historical norm and continues to reflect the institutional ideal. The statement encapsulates the standard method of application within a judicial process of a standard incident of procedural fairness. Expressed at a level of generality, that standard incident of procedural fairness is that a party liable to be affected by an exercise of power has an entitlement "to put information and submissions to the decision-maker in support of an outcome that supports his or her interests", being an entitlement which "extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker"[178].
The historical norm and institutional ideal are reflected in what was described in HT v The Queen[179] as a "general rule" within "an adversarial system": "that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it". The want of procedural fairness found in HT v The Queen, where a court of criminal appeal had re-sentenced an offender having regard to evidence which was withheld from the offender, was explained in terms of an unjustified departure from the general rule in the circumstances of the case[180].
Condon v Pompano Pty Ltd[181] can be treated as authority for the proposition that a legislated departure from the general rule does not necessarily result in non-compliance with the standard of procedural fairness required by Ch III of the Constitution of a court engaged in a judicial process. How then is the difference between compliance and non-compliance with that standard determined?
There is much to be said for an approach which would require any legislated departure from the general rule to be no more than is reasonably necessary to protect a compelling public interest. That approach might be thought to cohere with the approach favoured in Hogan v Hinch[182] to determining the consistency with Ch III of the Constitution of a legislated departure from "the general rule that judicial proceedings shall be conducted in public"[183]. French CJ often emphasised that open justice and natural justice are closely related aspects of a judicial process[184]. Be that as it may, the appellant does not argue for such an approach. In the absence of argument, I do not propose to explore the approach further.
The argument of the appellant approaches the question from a different direction. The argument posits that the procedural fairness required of a court engaged in a judicial process has a minimum content. For the identification of that minimum content in terms adequate to resolve the precise question in the appeal, the appellant relies on something I said in Pompano. There I said[185]:

[85]

That statement of principle was formulated in the context of considering a procedure in accordance with which evidence undisclosed to a party might be used as a sword in seeking an order against that party. But the principle, if sound, must apply equally to a procedure in accordance with which evidence undisclosed to a party might be used as a shield in resisting an order sought by that party.
I see no reason to resile from the principle as formulated. Of course, a great deal turns on what is taken to be meant by a "fair opportunity". In formulating the principle, I used the expression in the orthodox sense of meaning an opportunity that is fair in the "circumstances of the particular case"[186]. Whether a process is fair in the circumstances of a particular case, as the Full Court of the Federal Court subsequently noted in Shrestha v Migration Review Tribunal[187] with reference to Lam, cannot be determined by reference to a single consideration but depends on "the particular circumstances in which that process occurs, including (but not limited to) the statutory setting, the characteristics of the parties involved, what is at stake for them, the nature of the decision to be made, and steps already taken in the process". A fair opportunity to respond to evidence in the circumstances of a particular case is an opportunity that is fair having regard, amongst other considerations, to the significance of the evidence to the resolution of the controversy before the court and to any competing public interest that might exist in maintaining the secrecy of the evidence.
I did not mean in Pompano to convey that a fair opportunity to respond to evidence could only ever be provided by full disclosure of that evidence to a party. I did mean to convey that an unyielding requirement for evidence that is acted upon by a court to be kept secret has the capacity to result in the denial to a particular party of an opportunity to respond to particular evidence which is fair in the circumstances of a particular case.
Understood in that sense, my statement of principle does not appear to have been contradicted by anything in other reasons for judgment in Pompano.
The judicial process in issue in Pompano was one pursuant to which the Supreme Court of Queensland was empowered to make a control order against a respondent. The Supreme Court could make the control order on the basis of information not disclosed to the respondent if it had declared that information to be "criminal intelligence". The power of the Supreme Court to declare information to be criminal intelligence was to be exercised in advance of the application for the control order and was discretionary. In exercising that discretion, the Supreme Court was expressly permitted to consider whether such prejudice as disclosure might cause to a designated public interest "outweigh[ed] any unfairness to a respondent"[188].
All members of this Court in Pompano reasoned to the conclusion that the judicial process in issue was consistent with Ch III of the Constitution. Hayne, Crennan, Kiefel and Bell JJ reached that conclusion taking the view that fairness to a known respondent was a matter to which the Supreme Court was bound to have regard when deciding whether to declare information to be criminal intelligence[189]. I took the view that the requirement for the Supreme Court to weigh unfairness to a respondent when deciding whether to declare information to be criminal intelligence went a long way towards ensuring that non-disclosure to the respondent would not be unfair, but not quite far enough[190]. My concern was that an assessment made by the Supreme Court, in advance of an application for a control order, that a protected public interest outweighed unfairness to a respondent might turn out to be wrong on the hearing of an application[191]. That concern was assuaged by the inherent jurisdiction of the Supreme Court to stay an application in the event of insurmountable unfairness emerging[192]. French CJ likewise considered that the Supreme Court "would have a discretion to refuse to act upon criminal intelligence where to do so would give rise to a degree of unfairness in the circumstances of the particular case which could not have been contemplated at the time that the criminal intelligence declaration was made"[193].
Thus, all members of the Court in Pompano treated the capacity of a court to be satisfied that non-disclosure of particular information to a particular party would not be unfair as important to the consistency with Ch III of the Constitution of the judicial process in issue. Pompano does not deny the proposition that an inflexible legislative requirement for a court to withhold from a party information on which the court can base an order adverse to that party may be inconsistent with Ch III of the Constitution.
Neither Gypsy Jokers Motorcycle Club Inc v Commissioner of Police[194] nor Graham v Minister for Immigration and Border Protection[195] is authority to the contrary.
Gypsy Jokers was considered in Pompano. As I pointed out in Pompano[196], the statement of Crennan J (with whom Gleeson CJ agreed) in Gypsy Jokers that "Parliament can validly legislate to exclude or modify the rules of procedural fairness"[197] must be read in light of her Honour's conclusion that the provision there in issue[198] effected no more than a "modification"[199]. Moreover, her Honour's conclusion was expressed in terms that "[t]he statutory modification of procedural fairness achieved ... [was] indistinguishable from the modification of procedural fairness which can arise from the application of the principles of public interest immunity"[200]. To similar effect, Gummow, Hayne, Heydon and Kiefel JJ observed that the provision produced "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"[201]. Necessarily implicit in that explanation of the operation of the provision was an understanding that the provision not only left it to the court "to determine upon evidence provided to it whether the disclosure of the information might have the prejudicial effect spoken of"[202] but also permitted the court to balance the prejudicial effect of non-disclosure on the ability of a party to present that party's case[203].
Graham had nothing to say about procedural fairness as an aspect of judicial process. Indeed, no argument about procedural fairness was put or considered in Graham. That is hardly surprising given that the provision there centrally in issue prevented disclosure not only to a party but also to a court[204]. The principle on which Graham turned was that a Commonwealth law cannot impair the ability of the court, through the application of a judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of a power legislatively conferred on an officer of the Commonwealth have been observed in a particular case[205].
For the reasons I set out in Pompano, it should be recognised that a court determining a justiciable controversy between parties cannot be required by statute to adopt a procedure that has the capacity to result in the court making a final order without affording a party adversely affected by the order an opportunity - fair in the circumstances of the particular case - to respond to evidence on which the order might be made. To recognise that constitutional minimum is not to deny the capacity of a legislature to enact standardised rules of procedure by which sensitive information might be received into evidence without being disclosed to a party. The broader and more inflexibly a standardised rule proscribing disclosure is framed, however, the greater must be the danger of breach of the constitutional minimum. At least that is so absent some form of safety valve by means of which the court can ensure either that the adverse order is not made or that disclosure will occur if the court forms the view that non-disclosure is unfair in the circumstances of the particular case.
Observance of the constitutional minimum where a court is authorised by statute to engage in a process of adjudication taking account of information which relates to national security does no violence to the allocation of functional responsibilities inherent in the constitutional separation of the judicial power of the Commonwealth. Subject to regulation by the Commonwealth Parliament[206], functional responsibility for national security undoubtedly lies, as it has always lain, with the Executive Government of the Commonwealth. Yet the onetime notion that "those who are responsible for national security must be the sole judges of what the national security requires"[207] has long been regarded as "too absolute"[208]. Courts can and do weigh considerations of national security when doing so is necessary for the performance of the judicial function. They do so aware of their institutional limitations and of the consequent need for them to adopt a cautious approach[209]. If a court can be trusted to receive national security information into evidence in determining the rights of the parties to a particular case, it is not too glib to say that the court should be trusted to weigh the interests of national security appropriately in considering what fairness to one or more of those parties requires in the circumstances of that case.

[86]

Because it has the capacity to result in the Federal Court having regard to information to which a party has not been afforded an opportunity to respond that is fair in the circumstances of the particular appeal, s 46(2) of the AAT Act in its application to information certified under s 39B(2)(a) renders the process by which the Federal Court is to hear and determine an appeal under s 44 procedurally unfair. The problem with s 46(2) in that operation lies in its rigidity in compelling a court never to disclose the certified information to a party or to a legal representative of a party irrespective of the degree of relevance or perceived relevance of the information to the resolution of an issue in the appeal and irrespective of the degree of prejudice to security or the defence or international relations of Australia that would result from disclosure to that party or legal representative.
The problem of rigidity - of insensitivity to the possibility that some measure of disclosure might be needed to ensure procedural fairness in the circumstances of a particular appeal - is not alleviated by the miscellany of other considerations relied on by the respondents and interveners in argument.
True it is that having automatic access to the whole of the relevant information that had been before the AAT and that is relevant to the appeal through the operation of s 46(1) avoids the unedifying prospect of the Federal Court being forced to determine the appeal on incomplete information. But having access to the whole of the material does not make the procedure by which the Federal Court determines the appeal by reference to that information fair.
The Federal Court in determining the appeal can adjust the weight which it gives to certified information having regard to the circumstance that the information has been withheld from disclosure under s 46(2). But that is not part of the solution. Actually, it is part of the problem. Lord Kerr JSC eloquently explained in Al Rawi v Security Service[210] that evidence insulated from challenge has the potential to mislead. The same is true of evidence insulated from contextual explanation.
The capacity of a party unable to respond to certified information to seek judicial review of the certification decision of the ASIO Minister in this Court under s 75(v) of the Constitution or the Federal Court under s 39B(1) of the Judiciary Act does not solve the problem. The question for either court on an application for judicial review would be limited to whether the certification decision was invalid by reason of jurisdictional error. The court would not itself enter into the merits of whether disclosure would in fact be contrary to the public interest. The court would not have any occasion to consider the impact of non-disclosure on the fairness of the conduct of the appeal. No order the court could make could relieve against the intransigent preclusive effect on disclosure of a valid certification.
The ability of the Federal Court sometimes to disclose the "gist" or substance of certified information without breach of the proscription in s 46(2) might ameliorate the problem in some cases. But it cannot solve the problem in every case. Whether something of use might be disclosed about certified information without disclosing the information itself (and thereby potentially jeopardising security, defence or international relations) is a fine question the answer to which must be highly context specific. The gist might sometimes be able to be given without disclosing the certified information. Not always. And giving the gist might often be enough to allow a fair opportunity to respond. Again, not always.
Nor, it should be added, would the problem of rigidity be solved were the power of the Federal Court to control its own procedure to extend to the appointment of an officer to advocate for the interests of a party unable to respond to certified information. The absolute ban on disclosure to a party or to a legal representative of a party would remain. Whether the power of the Federal Court would extend to the appointment of such an officer is a topic on which I prefer to express no opinion.
Comparison with a "closed material procedure" of a kind judicially fashioned by the Supreme Court of the United Kingdom in R (Haralambous) v Crown Court at St Albans[211] for the purpose of conducting judicial review of a decision based on national security information serves only to highlight the rigidity of s 46(2) of the AAT Act. It was said in Haralambous that "[a]s a matter of principle, open justice should prevail to the maximum extent possible" and that "[a]ny closed material procedure 'should only ever be contemplated or permitted by a court if satisfied, after inspection and full consideration of the relevant material ... that it is essential in the particular case' and should, of course, be restricted as far as possible"[212].
The rigidity of s 46(2) of the AAT Act is further pointed up when its operation is contrasted with the statutory "closed material procedure" for which provision is made in the Justice and Security Act 2013 (UK)[213]. The procedure applies in a particular civil proceeding only where the court itself first declares that the procedure will apply in that proceeding. To declare that the procedure will apply, the court itself must be satisfied not only that disclosure of the material would be damaging to the interests of national security but also that application of the procedure is in the interests of the fair and effective administration of justice in the proceeding[214]. A declaration once made must be kept under review by the court and can be revoked by the court at any time if the court considers that application of the procedure is no longer in the interests of the fair and effective administration of justice in the proceeding[215]. For so long as a declaration remains in force, sensitive material can be withheld from a party only with permission of the court[216]. The entire procedure by which sensitive material considered by a court can be withheld from a party is therefore subject to the control of the court and is tailored to the circumstances of the individual case.
Finally, little assistance is to be gained by looking to the United States. A number of United States Courts of Appeals have rejected facial challenges brought on procedural due process grounds to a number of rigid congressional proscriptions of disclosure of certified national security information able to be considered by a court ex parte and in camera[217]. In so doing, they have applied a balancing test derived from the decision of the Supreme Court of the United States in Mathews v Eldridge[218]. That test does not draw a clear distinction between procedural due process in an administrative process and procedural due process in a judicial process. The manner of its application is therefore of marginal utility in considering the content of procedural fairness as an aspect of a judicial process under Ch III of the Constitution. Noteworthy nevertheless is that the Court of Appeals for the District of Columbia appears to have accepted that a proscription of disclosure of national security information has the potential to result in a denial of procedural due process in its application to the circumstances of a particular case in which a court, having considered the material ex parte and in camera, forms the view that it "cannot discharge its responsibility ... unless a petitioner's counsel has access to as much as is practical of the classified information"[219].

[87]

Being incompatible with Ch III of the Constitution because it renders the process by which the Federal Court is to hear and determine an appeal under s 44 of the AAT Act procedurally unfair, s 46(2) is invalid in its application to information certified under s 39B(2)(a). Being invalid in its application to information certified under s 39B(2)(a), s 46(2) must also be invalid at least in its application to information certified under s 28(2)(a) or s 36(1)(a), which are in terms indistinguishable from s 39B(2)(a).
Section 15A of the Acts Interpretation Act 1901 (Cth) requires 46(2) in those applications to be severed from the remainder of the AAT Act unless and to the extent that the requirement is displaced by a contrary intention appearing in the AAT Act. An intention to the contrary of s 15A exists if and insofar as the AAT Act manifests a positive intention that its provisions are to operate as a whole or not at all[220].
The respondents argue that the AAT Act manifests a positive intention that s 46 is to have no operation if s 46(2) cannot have full operation. I accept that argument. Section 46 operates as an integrated scheme. To sever s 46(2) in its application to information certified under s 39B(2)(a) would give s 46(1) a drastically different practical operation which would run counter to the purpose for which s 46(2) was evidently enacted.
No party or intervener argues that s 46 is inseverable from the remainder of the AAT Act. Section 44 remains unaffected. The compulsory processes of the Federal Court, including by way of subpoena and notice to produce, also remain unaffected. Those processes are available to be used to ensure that documents relevant to an appeal under s 44 that were before the AAT in connection with the proceeding to which an appeal relates, subject to any successful claim to public interest immunity from production and subject to any confidentiality orders which the Federal Court might be persuaded to make, are available to both parties and can also be placed before the Federal Court on the hearing of the appeal.

[88]

I would allow the appeal and make the consequential orders proposed by Gordon J.
GORDON J. This is an appeal from a decision of the Full Court of the Federal Court of Australia, on appeal from a decision of the Security Division of the Administrative Appeals Tribunal ("the Tribunal") under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act").
In the Tribunal, the appellant had unsuccessfully sought merits review[221] of an adverse security assessment given by the Australian Security Intelligence Organisation ("ASIO") under the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). In the Tribunal proceeding, the Minister administering the ASIO Act ("the ASIO Minister")[222], as a member of the Executive, issued certificates under s 39B(2)(a) of the AAT Act on the ground that disclosure of the material the subject of the certificates ("the certified matter") would be contrary to the public interest because it would prejudice the security of Australia[223]. The appellant did not challenge the validity of the certificates.
On the Federal Court proceeding being instituted by the appellant, s 46(1) of the AAT Act required the Tribunal to send to the Court all documents before the Tribunal which were relevant to the appeal, including the certified matter. Section 46(2), however, required the Federal Court to adopt a procedure that allowed the Director‑General of Security and the Court to rely upon the certified matter but prevented any disclosure of that material to the appellant and his legal representatives, thereby denying the appellant any opportunity to respond to the certified matter. One of the appellant's grounds of appeal in the Federal Court alleged that the Tribunal's decision was not open on the evidence. The Director‑General addressed that ground by reference to the certified matter and by reference to submissions to which the appellant could not respond. The Federal Court concluded, on the basis of the certified matter and submissions, that there was ample evidence for the conclusion that the adverse security assessment was justified.
The appellant challenged the validity of s 46(2) of the AAT Act as infringing Ch III of the Constitution on the basis that it denied him procedural fairness. The Full Court of the Federal Court unanimously rejected that challenge. For the reasons that follow, s 46 of the AAT Act is contrary to Ch III of the Constitution and is wholly invalid.

[89]

Two principles underpin the strict separation of Commonwealth judicial power: the judicial power of the Commonwealth may only be exercised by a body that is a "court" within the meaning of Ch III of the Constitution[224] (a "Ch III court") and a federal court may only exercise the judicial power of the Commonwealth or a power incidental thereto[225].
Flowing from Ch III's exclusive vesting of the judicial power of the Commonwealth in Ch III courts and the implication that no Parliament can require a court to act in a manner repugnant to its institutional integrity[226], "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"[227]. While the essential characteristics of a court and the meaning and content of "judicial power" may defy exhaustive and precise definition[228], observance of procedural fairness is both an essential characteristic of a court[229] and an essential incident of the exercise of judicial power[230]. Put simply, "[p]rocedural fairness lies at the heart of the judicial function"[231] - to "act judicially" is to observe the requirements of "procedural fairness"[232]. The "[a]brogation of natural justice" is, therefore, "anathema to Ch III of the Constitution"[233].
The requirement to accord procedural fairness is to be understood as inhering or lying in the very nature of the common law system of adversarial trial administered in Australian courts[234]. Fairness "transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal [and civil] law"[235]. The method of "administering justice" that lies at the heart of the common law tradition[236] requires that courts adopt "a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests"[237]. "[T]he right of a party to meet the case made against him or her"[238] - "to know key elements of the case against them"[239] - is "intrinsic to the integrity of courts"[240] operating in an adversarial system.
It follows that "[n]o court in Australia can be required by statute to adopt an unfair procedure"[241], recognising, of course, that a procedure is "not necessarily unfair because it is less than perfect"[242]. That is so even where the unfair procedure operates to disadvantage an applicant who brings proceedings (including judicial review or equivalent proceedings to enforce the limits on the lawful exercise of administrative power) at their own motion. And it is so irrespective of the fact that the legal rights at issue are statutory and irrespective of the applicant's unchallenged legal status in Australia. With that said, "[t]he rules of procedural fairness do not have immutably fixed content ... '[F]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice'"[243]. Procedural fairness necessarily has a variable content; it can be "provided by different means in different contexts and may well be provided by different means in a single context"[244]. It "is defined by practical judgments about its content and application"[245].
It is unnecessary in this case to traverse the metes and bounds of the sorts of procedures that might transgress the constitutional limitation - that is, by impermissibly abrogating natural justice or reducing the content of procedural fairness to "nothingness"[246]. The essential point is that a legislative procedure, viewed as a whole, cannot validly operate in a way that renders a court unable to respond to potential "practical injustice"[247]. Put differently, legislation cannot deprive a court of "the power to ensure, so far as practicable [and, it might be added, having regard to the particular context of the case], fairness between the parties"[248]. To conclude otherwise would render any limitation derived from Ch III which purported to protect the fairness of the judicial process meaningless. It would be "to construe Ch III ... as being concerned only with labels and as requiring no more than that the repository of judicial power be called a court", which "would be to convert it into a mockery, rather than a reflection, of the doctrine of separation of powers"[249]. As members of this Court have said on many occasions, the concern of Ch III is with substance, not form[250]: it "cannot be evaded by formal cloaks"[251].
As a "general rule" within an adversarial system "opposing parties will know what case an opposite party seeks to make and how that party seeks to make it"[252]. That "general rule" is not "absolute"[253]. It will not always be the case that parties (personally or by their representatives) "know of all of the material on which the Court is being asked to make its decision"[254]. In certain classes of case, a departure from the "general rule" may be justified. Where there is such a departure, how a court moulds its procedures to afford a fair opportunity for a party to respond to the case put by another party varies from case to case and from issue to issue; it depends, among other things, on the particular decision-making context, the competing interests to be balanced, and the rights and interests at stake.
Examples of circumstances where the "general rule" may be modified include: public interest immunity claims[255]; confidential information cases, including trade secrets cases[256]; legal professional privilege claims[257]; receipt of confidential affidavits in support of an application by a liquidator for an examination summons[258]; and cases where gender-restricted evidence is involved in native title claims[259]. Certain cases which are not "adversarial" in the ordinary sense, where the role of the court is "protective", have also justified departures from the "general rule", including: cases concerning children within a statutory jurisdiction that originated from the historical parens patriae welfare jurisdiction[260]; judicial advice proceedings for the purpose of protecting the interests of a trustee and trust[261]; cases invoking the court's power (which is "protective in nature") to approve a settlement claim by a person under a legal incapacity[262]; and applications for approval of representative proceedings, in respect of which the court assumes a "protective role in relation to the interests of class members"[263] "akin to that of a guardian"[264] and not unlike the role of the court in approving compromises on behalf of infants or persons under a legal incapacity[265].
Equally, Parliament may fashion "novel procedures" that balance competing interests in certain classes or categories of case, which depart from or qualify the "general rule"[266], provided that the procedures adopted include adequate safeguards to enable the court to respond to potential "practical injustice"[267] and to ensure, "so far as practicable [having regard to the particular context of the case], fairness between the parties"[268]. In other words, Parliament must ensure that the processes of the court, viewed as a whole, are not unfair. Chapter III courts must retain their ability to protect the fairness of the judicial process whilst recognising that it is implicit within "the notion of 'fairness'" that "sometimes, the rules governing practice, procedure and evidence must be tempered by reason and commonsense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result"[269].
As will be seen, the immediate difficulty is that s 46(2) of the AAT Act impermissibly excludes procedural fairness for a whole class of case by removing the ability of the Federal Court to respond to potential "practical injustice"[270]; it removes the ability of the Court to ensure, "so far as practicable [having regard to the particular context of the case], fairness between the parties"[271]. Section 46(2) purports to "obliterate one of [the] most important attributes"[272] of Ch III courts - the observance of procedural fairness. It cannot do so consistently with Ch III of the Constitution.

[90]

In considering validity, the starting point is the proper construction of s 46(2) of the AAT Act[273]. It is necessary to consider the operation of s 46(2) within the framework of the statutory scheme within which it sits - a regime governing the merits review function conferred upon the Tribunal in relation to security assessments given by ASIO under the ASIO Act[274].
One of the functions of ASIO under the ASIO Act is to provide advice to Ministers and Commonwealth authorities in respect of matters relating to security insofar as those matters are relevant to their functions and responsibilities[275], including furnishing "security assessments"[276] to Commonwealth agencies. An "adverse security assessment" or a "qualified security assessment" must be accompanied by a "statement of the grounds for the assessment", which forms part of the assessment[277]. The statement of grounds must "contain all information that has been relied on by [ASIO] in making the assessment, other than information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security"[278].
Where a security assessment in respect of a person is furnished by ASIO to a Commonwealth agency, the agency must "within 14 days ... give to that person a notice in writing, to which a copy of the assessment is attached, informing him or her of the making of the assessment"[279]. However, if the Minister issues a certificate certifying that they are satisfied that the withholding of notice "is essential to the security of the nation"[280] then s 38(1) does not require a notice to be given[281]; and if the Minister issues a certificate certifying that disclosure of the statement of grounds or a particular part of that statement "would be prejudicial to the interests of security"[282], then the copy of the assessment attached to a notice under s 38(1) "shall not contain any matter to which the certificate applies"[283].
There are two mechanisms available to a person to challenge a security assessment made in respect of them. The first is by seeking judicial review in the High Court under s 75(v) of the Constitution or in the Federal Court under s 39B of the Judiciary Act 1903 (Cth). As the Solicitor-General of the Commonwealth properly accepted, in light of Plaintiff S157/2002 v The Commonwealth[284], s 37(5) of the ASIO Act - which relevantly provides that no proceedings, other than an application to the Tribunal under s 54, shall be brought in any court or tribunal in respect of the making of an assessment - would not prevent review for jurisdictional error.
The second is by seeking merits review under s 54 of the ASIO Act in the Tribunal[285]. Where an applicant seeks merits review under s 54 of the ASIO Act, the Director-General must "present to the Tribunal all relevant information available to the Director-General, whether favourable or unfavourable to the applicant"[286]. However, the ASIO Minister may issue a written certificate certifying that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest: (a) because it would prejudice security or the defence or international relations of Australia; (b) because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or (c) for any other reason stated in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the contents of the document should not be disclosed (a "s 39B(2) certificate")[287]. If a s 39B(2) certificate is given then, subject to s 39B(4), (5) and (7) and s 46, the Tribunal must "do all things necessary to ensure", relevantly, "that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding"[288].
A party to a proceeding before the Tribunal may appeal to the Federal Court, on a question of law, from any decision of the Tribunal in that proceeding[289]. The regime for placing the record of the Tribunal proceeding before the Federal Court is akin to the historical use of the writ of certiorari, issued by a superior court to direct that the record of the lower court or tribunal be sent to the superior court for review[290]. When a party to a proceeding before the Tribunal appeals to the Federal Court on a question of law under s 44(1) of the AAT Act, s 46(1)(a) of the AAT Act states that the Tribunal must, relevantly, "cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal ... relates and are relevant to the appeal". Rules 33.23 and 33.26 of the Federal Court Rules 2011 (Cth) provide that an appeal book in a prescribed form is to be prepared whereby the formal decision of the Tribunal and the reasons for the decision as well as the record of the Tribunal proceeding are effectively lifted up and placed before the Federal Court; indeed, all of the material in the Comprehensive Reference Index - being a complete index of the record of the evidence in the Tribunal - is taken to "form part of the appeal book for the appeal". When the Federal Court proceeding has ended, the Court must "cause the documents" provided to the Court under s 46(1)(a) "to be returned to the Tribunal"[291].
Section 46(2) relevantly provides that "[i]f there is in force in respect of any of the documents a certificate in accordance with [s 39B(2) of the AAT Act] certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court ... 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" (emphasis added). Read in context, "the documents" is a reference to the documents provided to the Federal Court under s 46(1). What the term "matter" captures will depend on the terms of the certificate - for example, whether the certificate attaches a range of documents or simply identifies a particular piece of factual information, topic or issue as the subject of the certificate.
Although the entirety of the relevant record of the Tribunal proceeding must be made available to the Federal Court and may be relied upon by both the Director-General and the Court, the Court is obliged, by reason of s 46(2), not to permit the applicant to inspect any part of the record that is the subject of a s 39B(2) certificate or to order the disclosure of any certified matter, including, for example, an unredacted copy of the Tribunal's reasons insofar as the reasons contain certified matter.
Section 46(3) relevantly provides that if the s 39B(2) certificate "does not specify a reason referred to in [s] 39B(2)(a)", and a question arises as to whether "the matter should be disclosed to some or all of the parties to the proceeding before the Tribunal in respect of which the appeal was instituted", and the Court decides that the matter should be disclosed, then the Court must permit the part of the document in which the matter is contained to be inspected. In other words, the regime varies depending on the basis on which a s 39B(2) certificate is issued. If a certificate is issued under s 39B(2)(a) (on the basis that disclosure would prejudice security or the defence or international relations of Australia) then the Court can never authorise the material to be inspected.

[91]

By forbidding the Court in any and every case from making any certified matter available to the applicant or any representative of the applicant, s 46(2) binds the Federal Court to a procedure that has the potential to result in unfairness[292]. Viewed as a whole, s 46 renders the Federal Court unable to respond to potential "practical injustice"[293]. Put differently, s 46(2) deprives the Federal Court of "the power to ensure, so far as practicable [having regard to the particular context of the case], fairness between the parties"[294]. Insofar as s 46(2) operates in respect of a certificate issued under s 39B(2)(a), it imposes a blanket and inflexible non-disclosure requirement, operating as a strait‑jacket on the Court's ability to minimise or alleviate practical injustice and requiring the Court to act "unjudicially"[295].
Section 46(2) assumes and requires that if a certificate has been issued under s 39B(2)(a) of the AAT Act, the certified matter can never be disclosed to any person[296] (including the applicant and their legal representatives) in any circumstance, notwithstanding that it must be "relevant to the appeal"[297] and despite the fact that it is provided to the Court and may be relied upon by both the Director‑General and the Court. That is, it starts from an assumption "that procedural fairness should altogether be denied in order that sensitive information be kept confidential"[298] and it permits of no exceptions.
Section 46(2) deprives the Court of the power to determine whether procedural fairness, judged by reference to practical considerations arising in a particular case, requires disclosure of any aspect of the certified matter to the applicant or their legal representatives before an order is made, and it deprives the Court of the power to determine the procedure by which the disclosure might be made[299].
Section 46(2) does not modify, or depart from, the "general rule" - that a party has a right to know and meet the case made against them - in a manner that ensures the judicial process, as a whole, is not unfair [300]. It is to the opposite effect: it requires the Court to "do all things necessary to ensure" that the certified matter is not disclosed to any person other than a member of the Court as constituted for the purposes of the proceeding. The express terms and stated purpose of s 46(2) do not permit the Court to refuse to consider relevant certified matter unless that certified matter was disclosed to an applicant or an applicant's legal representatives. Unless s 46(2) is invalid, the Court simply cannot disobey the statutory command. That conclusion is reinforced by the fact that, as the Solicitor‑General of the Commonwealth acknowledged, if the Court was to refuse to consider the certified matter unless it was disclosed to an applicant or an applicant's legal representatives, there would be an "endless loop" - the appeal under s 44 of the AAT Act would be conducted as if the decision‑maker was not entitled to rely on the certified matter, and the Court would allow the appeal and remit it to the Tribunal, only for the Tribunal to again rely on the certified matter and make the same decision. Put simply, it would make no sense to conduct an appeal on a question of law on a different evidentiary record to the evidentiary record upon which the primary decision‑maker relied[301].
In some contexts, depending on the terms of the certificate issued by the Executive, the Court may be able to disclose the gist of the certified matter at a sufficiently high level of generality, such that it would avoid disclosing the "matter contained in the document" within the meaning of s 46(2). Whether that is so will depend not on the degree of sensitivity of the information, but on the level at which the Executive described the certified matter. In at least some cases, the Court must be prevented from disclosing even the gist of the certified matter even where the disclosure would pose a trivial risk to security or the defence or international relations of Australia relative to the prejudice that non‑disclosure would cause to an individual. The Court would be precluded from addressing that practical injustice.
The point of present importance is that the Court is deprived of any capacity to consider and mould its procedures to avoid practical injustice to the parties in a particular proceeding. That deprives the Court of an essential incident of the judicial function and thus an essential characteristic of a court.

[92]

The Director-General and the Attorney-General of the Commonwealth (together, "the Commonwealth") submitted that any want of procedural fairness was irrelevant because, first, providing any form of appeal from a merits review was better than none and, second, an applicant could always seek judicial review of the validity of the certificate. Each argument obscured the proper inquiry.
The jurisdiction of the Federal Court to hear and determine appeals under s 44(1) of the AAT Act from decisions of the Tribunal reviewing a security assessment "is necessarily conditioned by the requirement that it observe procedural fairness in the exercise of that jurisdiction"[302]. Having established a mechanism for seeking merits review of a security assessment (which Parliament did not have to do) and having established an avenue of appeal on a question of law to the Federal Court (which Parliament also did not have to do), the question is whether that regime impairs an essential characteristic of the Court or an essential incident of the exercise of judicial power. The availability and possible forensic advantages or disadvantages of a separate avenue of review (judicial review under s 75(v) of the Constitution or s 39B of the Judiciary Act) - as well as the nature or extent of an applicant's unchallenged legal status in Australia - have no bearing on that question; they are irrelevant to the validity of s 46(2).
The fact that an applicant can test the validity of a certificate issued under s 39B(2) also says nothing about whether the procedure mandated by s 46(2) is practically unjust. While the ability of an applicant (or the Court on its own motion) to consider the validity of a certificate might be relevant in the context of an argument of the kind in issue in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police[303] and K‑Generation Pty Ltd v Liquor Licensing Court[304] to the effect that the independence of the Court was undermined by the Executive controlling or directing the Court, it may be put to one side for present purposes. Judicial review of the validity of a certificate is directed to the process adopted by the ASIO Minister in issuing the certificate - namely, whether the certificate was lawfully issued. Judicial review of the validity of a certificate is not directed to, and cannot address, whether s 46(2) requires the Federal Court "to adopt an unfair procedure"[305] in a particular class of case because, viewed as a whole, s 46(2) renders the Federal Court unable to respond to potential "practical injustice"[306].
Put differently, the ability to review the validity of a certificate - and, if the certificate is valid, the lawfulness of the denial of disclosure to the applicant of security-sensitive information (at the time of the making of the adverse security assessment) or the certified matter (at the review before the Tribunal) - does not change the fact that s 46(2) deprives the Federal Court of "the power to ensure, so far as practicable [having regard to the particular context of the case], fairness between the parties"[307]. The Federal Court is a Ch III court. The question is whether the state of affairs prescribed by s 46(2) is permitted under Ch III. It is not.

[97]

In Gypsy Jokers[316], the Court upheld the validity of s 76(2) of the Corruption and Crime Commission Act 2003 (WA), a State law challenged on Kable grounds[317]. 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.
Gypsy Jokers does not foreclose the appellant's argument in this case for four reasons. First, only two Justices in Gypsy Jokers squarely dealt with the procedural fairness argument put by the appellant. Only Crennan J, with whom Gleeson CJ agreed[318], expressly rejected that argument[319]. Her Honour concluded that "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'"[320]. Crennan J left open the question of whether the Commonwealth Parliament could enact a provision analogous to s 76(2)[321]. Gummow, Hayne, Heydon and Kiefel JJ did not address the appellant's procedural fairness argument[322]. Instead, their Honours focused on whether there was a "legislative mandate for dictation to the Supreme Court by the Commissioner of the performance of its review function"[323]. Kirby J, in dissent, held that s 76(2) involved "an impermissible legislative direction to the Supreme Court"[324], without separately addressing the appellant's procedural fairness argument.
In this appeal, the Commonwealth asked the Court to read a single sentence of the plurality's judgment - where their Honours stated that "the operation of [the] legislative regime [had] an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself [could] make use of the information in question"[325] - as if it constituted a considered rejection of the appellant's procedural fairness argument. That contention is rejected. Read fairly and in context[326], that observation of the plurality was part of their Honours' analysis of why the legislative regime did not involve a legislative mandate for dictation to the Court by the Commissioner of the performance of its review function.
Second, in considering the second part of s 76(2), which stated that confidential information provided by the Commissioner was "for the court's use only and [was] not to be disclosed to any other person ... or publicly disclosed in any way"[327], Gummow, Hayne, Heydon and Kiefel JJ held that "'use' entails all that is necessary or appropriate for the exercise by the Supreme Court of its jurisdiction to conduct the 'review' identified in s 76(1)"[328]. In other words, their Honours contemplated that the passive voice adopted in the provision necessarily accommodated a discretion - the Court could decline to use material where it would be procedurally unfair. Indeed, this explains why their Honours did not separately address the appellant's procedural fairness argument. It was unnecessary to do so.
Third, while it is true that in Pompano, Hayne, Crennan, Kiefel and Bell JJ said that the decision in Gypsy Jokers "point[ed] firmly against" accepting the central proposition advanced in Pompano as to the invalidity of the impugned provisions in that case[329], that observation must be understood in light of a proper understanding of what that central proposition was. As their Honours explained, 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" because otherwise "there would be such a departure from procedural fairness that the institutional integrity of the Supreme Court would be impaired"[330]. Their Honours observed that that central proposition was "absolute", permitting of no qualification or exception[331]. The procedural fairness argument raised by the appellant in this case is not absolute. That Gypsy Jokers was thought to "point[] firmly against" the procedural fairness argument in Pompano does not, therefore, provide an answer to this case[332].
Fourth, although the respondents in Pompano did not seek leave to reopen Gypsy Jokers, Hayne, Crennan, Kiefel and Bell JJ did not treat Gypsy Jokers as a complete answer to the absolute procedural fairness argument made by the respondents. After considering Gypsy Jokers, their Honours said that "lest it be said that the point was not dealt with expressly by a majority of the Court in Gypsy Jokers, it [was] as well to explore the issue further"[333], following which their Honours went on to consider the absolute argument put by the respondents. Gageler J was similarly of the view that the procedural fairness argument put in Pompano was not foreclosed by Gypsy Jokers[334].

[98]

Nor is anything that was said in Pompano[335] determinative of the validity of s 46(2) of the AAT Act. In Pompano, the Court upheld the validity of provisions in the Criminal Organisation Act 2009 (Qld) that prevented disclosure of declared "criminal intelligence" information to an affected party to certain proceedings.
As the Solicitor-General of the Commonwealth properly acknowledged, the statutory regime in issue in Pompano contained a number of features that are distinguishable from the regime in issue in this case, such that it is not "a very close analogue" of s 46 of the AAT Act. First, in deciding whether to declare information to be "criminal intelligence", the Supreme Court was permitted to have regard to whether the considerations of prejudice to criminal investigations, enabling discovery of the existence or identity of an informer, or danger to anyone's life or physical safety "outweigh[ed] any unfairness to a respondent"[336]. In other words, a balancing exercise was expressly contemplated. Indeed, the plurality held that "[i]n many cases, including those where the respondent to a substantive application is known or can be ascertained, [fairness to a respondent] is a matter to which the Court would be bound to have regard"[337].
Second, the plurality held that the respondents' constitutional challenge had to be determined on the basis of their Honours' construction of ss 8 and 10[338]. On that construction, the Commissioner of the Queensland Police Service was required to "give, in the application for a declaration that an organisation is a criminal organisation, and the affidavits accompanying the application, detailed particulars of what [was] alleged against the respondent organisation and how the Commissioner put[] the case for making a declaration"[339]. The plurality said that, in combination, the provisions required "the Commissioner to tell the respondent the whole of the case which the Commissioner [sought] to make in support of the application for a declaration"[340]. Put in different terms, "the criminal intelligence provisions den[ied] a respondent knowledge of how the Commissioner [sought] to prove an allegation; they [did] not deny the respondent knowledge of what [was] the allegation that [was] made"[341]. Those features of the regime in Pompano are distinguishable from the regime in issue in this case.
Further, and in any event, the Court in Pompano was not concerned with an argument of the kind in issue in this case. As explained above, the argument put by the respondents in Pompano was "absolute"[342].

[104]

The background and legislative provisions are set out in detail in the reasons of Gordon J and those of Steward J. I agree with Gordon J's interpretation of s 46 and with her Honour's reasoning and conclusions that s 46(2) is inseverable from the other provisions in s 46 and cannot be read down. As the appellant conceded in oral argument, this also means that it cannot be disapplied. I also agree with her Honour's reasons for concluding that the question on this appeal is not resolved by the decisions of this Court in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police[348], Condon v Pompano Pty Ltd[349] or Graham v Minister for Immigration and Border Protection[350].
I emphatically agree with Gordon J that the appellant's unchallenged legal status in Australia is irrelevant to this appeal. The threshold at which a court's procedures become instruments of injustice, threatening to compromise substantially the institutional integrity of the court, cannot vary according to the labels assigned to a person by Commonwealth legislation - citizen, permanent resident, or anything else. Those labels cannot be used to create different grades or qualities of justice in the Constitution[351]. Hence, legislation that impairs the institutional integrity of a court by a procedure of gross injustice cannot be saved merely because the injustice is meted out upon a long‑term permanent resident of Australia who has not obtained the statutory status of an Australian citizen.
I agree with Steward J that s 46(2) gives rise to potential procedural unfairness to an appellant. Steward J interprets s 46 as permitting the court to respond to that procedural unfairness in ways including the appointment of a special advocate to represent the interests of an appellant. With great respect, I have concluded that such an interpretation is not open. If it were open, then the validity of s 46(2) would be much more finely balanced.
The remainder of these reasons are concerned with the following steps toward my conclusion:

[110]

In Garlett v Western Australia[352], I explained the nature of the principle that derives from Kable v Director of Public Prosecutions (NSW)[353] as one that is "based upon a presupposition in Ch III of the Constitution that Australian courts, including federal and State courts recognised in Ch III of the Constitution and possessing, or capable of possessing, federal jurisdiction, remain institutions of justice". The Kable principle has been expressed variously as one that is concerned with legislation that affects a court in a manner that is "incompatible with", or "repugnant to", or which "substantially impairs", its "institutional integrity" or role as a repository of judicial power[354]. The ultimate effect of the Kable principle is that there will come a point at which the administration of justice by a court is substantially impaired, either in the formal manner in which judicial power is exercised or in its substantive application, such that the court may no longer be seen as an institution of justice.
The application of the Kable principle has become notoriously difficult to predict. Unmoored from any legal rules, it is a principle dripping with open texture: when is the administration of justice "impaired"? How much impairment is "substantial"? When is the exercise of power "repugnant to" the integrity of a court? What matters are part of the "institutional integrity" of a court?
In relation to procedural fairness, it is not merely the outcome of the application of the Kable principle that is difficult to predict. There is also inconsistency in reasoning. Professor Gray has observed that some of the reasoning in this Court concerning an absolute constitutional limit upon Parliament's power, precluding a denial of procedural fairness by a court, is difficult to reconcile intellectually with other reasoning that would permit such denial in some circumstances. He asserts that if this Court "wishes to depart from its previous positions, it should state so"[355].
On the one hand, members of this Court have said that to require a court to act contrary to procedural fairness "may well" be to require a court to act in a non‑judicial manner[356] and that a "defining characteristic" or "essential attribute" of a court is the application of procedural fairness[357]. Consequently, on this view, the institutional integrity of a court would be "distorted"[358], or a court would act in a manner "repugnant to"[359] the exercise of judicial power, if it no longer exhibited procedural fairness. It has been said that establishing a body as a court by legislation "means that any jurisdiction conferred on it is necessarily conditioned by the requirement that it observe procedural fairness"[360]. It has even been said that the essential character of a court necessitates that a court cannot be authorised to proceed in a manner that does not ensure the right of a party to meet the case against them[361] or "at the very least" ensure a party "a fair opportunity to respond to evidence on which [a court] order might be based"[362].
On the other hand, it has also been said, sometimes even in the same cases, that "the hearing rule may be qualified by public interest considerations"[363] and that open justice has "long been subject to qualifications"[364]. And the results in cases such as Gypsy Jokers[365] and Pompano[366] involve this Court upholding as valid legislation that authorises a court to act in a manner that, at least in some circumstances, will be procedurally unfair.
One way to resolve this tension might be on the basis that procedural fairness must look beyond fairness to a person. On this view, procedural fairness requires either a diluted notion of "fairness between the parties"[367] or some philosophical notion of fairness of "process" abstracted from the individual and the decision‑maker (the "process" being anthropomorphised with a mind capable of making decisions and taking actions[368]). If this view were taken, there might be circumstances in which strong countervailing interests could somehow make it "fair" for a court to order the deportation of a permanent resident of this country, without providing that person with: (i) the determinative evidence against them; (ii) an opportunity to respond to that evidence personally or through a person acting as a representative of their interests; or (iii) the determinative reasons for their deportation. No true notion of fairness could support such a conclusion. That is because fairness is individual. It is not a zero sum game. Its most basic rationale is respect for the human dignity of an individual[369].
The tension should be resolved in a different way. It should be accepted that it is always procedurally unfair, and individually unjust, to deprive a person of the right to be heard on any significant issue that might affect the final result of a proceeding. Nevertheless, for legislation to be constitutionally invalid, the institutional integrity of a court must be "substantially impair[ed]" by the absence of procedural fairness[370]. As Rawls wrote, "[b]y the principle of fairness it is not possible to be bound to unjust institutions, or at least to institutions which exceed the limits of tolerable injustice (so far undefined)"[371]. There will be instances of procedural unfairness where the injustice is tolerable, and the institutional integrity of the court is not substantially impaired, because the procedural unfairness is justified by a compelling countervailing interest and that injustice is the minimum that is reasonably necessary to protect that interest.
Some of those instances might involve circumstances where relevant material held by one party is denied to the other party. As Gordon J explains in her reasons in this case[372], there are exceptional cases where the substantial interest of one person justifies a court derogating from the procedural fairness generally afforded in adversarial litigation to another person: confidential information and trade secrets cases; legal professional privilege claims; a liquidator's application for an examination summons; and gender‑restricted evidence in native title cases. These are circumstances in which a procedure that is less fair, or even potentially unfair, to one party has been repeatedly tolerated. The Solicitor‑General of the Commonwealth was therefore correct to submit on this appeal that "a fair judicial procedure ... is not the only public interest in play". But that is not a licence for a court to be empowered or required to act unfairly in a wholesale manner.
Two points must be made about those exceptional cases. First, none involves the extreme procedural unfairness of: (i) preventing a person, in a case involving serious consequences, from knowing the case against them; (ii) preventing a person from responding to that case personally or through counsel; or (iii) depriving a person of reasons to explain why they lost. Such an extreme circumstance aptly fits the description given by Lord Neuberger of Abbotsbury MR in Al Rawi v Security Service[373] of violating "an irreducible minimum requirement of an ordinary civil trial".
That extreme circumstance contrasts with gender‑restricted evidence in native title cases, where the court can make orders to ensure that the evidence is available to legal representatives or anthropologists of the relevant gender[374]. It also contrasts with trade secrets cases, where, as Lord Dyson JSC observed[375], it is "commonplace to deal with the issue of disclosure by establishing 'confidentiality rings' of persons who may see certain confidential material which is withheld from one or more of the parties to the litigation at least in its initial stages". Indeed, his Lordship added that he was not aware of any trade secrets case in which "one party was denied access to evidence which was being relied on at the trial by the other party".
Secondly, although many of these exceptional cases will involve procedural unfairness, that unfairness is justified by the strength of the countervailing interest and by confining the unfairness to the minimum degree that is reasonably necessary to protect that interest. For instance, in claims for public interest immunity or legal professional privilege, if the claim is upheld, the document cannot be used and no decision can be made adversely to a person in reliance upon the document. Further, even in the process of claiming the privilege, the party making the claim is required to set out, in evidence available to the other party to scrutinise and test, the facts from which the court can assess the basis for the claim of privilege in order to avoid unfairness to the other party[376]. And in public interest immunity claims, the unfairness to a party opposing the claim has sometimes been further mitigated such as by appointment of a special advocate, who might be chosen and paid for, at least in part, by that party[377]. Even in applications that are sometimes non‑adversarial, such as judicial advice to trustees, for reasons of procedural fairness to interested parties, those applications are no longer commonly made ex parte and confidential expert opinions on matters of law are difficult to justify[378].

[111]

In Vella v Commissioner of Police (NSW)[379], four members of this Court said that "the boundaries of the Kable principle are not sharp" and clarity requires that the categories in which the principle applies "must develop in a principled, coherent, and systematic way rather than as evaluations of specific instances". This is particularly apparent in the tensions that have arisen, sometimes within the same cases or even the same judgments, in considering whether a denial of procedural fairness has so "substantially impaired" the institutional integrity of the court that it casts doubt upon its character as an institution of justice.
The starting point must be that, since procedural fairness can be variable in quality[380], the mere fact that a procedure might be improved, or made fairer, is not sufficient to substantially impair the institutional integrity of a court. The procedure must be positively unfair. Some procedures might be less fair than others, or they might exhibit less than "absolute fairness", without crossing the threshold at which they become unfair[381]. Fairness is not a one‑size‑fits‑all concept.
Even procedural unfairness is not sufficient. As explained in the section above, there are exceptional cases which might sometimes involve procedural unfairness to one party but where that procedural unfairness is justified by the need to protect a countervailing interest. But the procedural unfairness must be no more than is reasonably necessary to protect that countervailing interest, and the interest must be sufficiently compelling.
Although it was not put in these terms, there was effectively no dispute on this appeal that the countervailing interests in the three categories of confidentiality set out in s 39B(2) are sufficient to justify some procedural unfairness. Those categories in s 39B(2) include information that, if disclosed, would be contrary to the public interest: (i) because it would prejudice security or the defence or international relations of Australia; (ii) because it would involve disclosure of the deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or (iii) for any other reason that could form the basis for a claim in judicial proceedings of non‑disclosure by the Crown in right of the Commonwealth. Whilst some circumstances in those categories might not involve considerations of great importance, others may. But even where the matter is of great importance, the existence of that strong countervailing interest cannot justify procedural unfairness beyond that which is reasonably necessary to protect the interest. Otherwise, the court would become an instrument of plain and unnecessary injustice.
In forgoing any constraint that would require the minimisation of procedural unfairness, the submissions of the respondents overreached. The respondents' argument was that a countervailing interest set out in s 39B(2) could permit any procedural unfairness under the AAT Act because, if the Commonwealth Parliament had not legislated for an appellant to have a right of merits review and an "appeal" on a question of law, many of those who contested adverse security assessments would fail. This is a submission that the end can always justify the means. In other words, the "gift" to an appellant of an administrative merits review hearing and an appeal on a question of law can justify requiring a court to act in a manner that so substantially impairs its institutional integrity that it may cease to be seen as an institution of justice. Such a submission has never been accepted in this Court. It cannot be accepted on this appeal.
Similarly, it is a simple logical fallacy to treat the existence of some exceptional cases where the court's institutional integrity is not substantially impaired by the denial of procedural fairness as permitting legislation that authorises a denial of procedural fairness in any case at all. Without any constraint limiting procedural unfairness to that which is reasonably necessary to protect a strong countervailing interest, the Kable principle would not even prohibit Parliament from authorising judicial proceedings that treated an applicant for judicial review as though they were attending a dress rehearsal for a clown show.

[115]

Section 46(1) of the AAT Act is a modern version of such a removal mechanism. On an "appeal" under s 44, the Tribunal is required by s 46(1)(a) to "cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal ... relates and are relevant to the appeal". It was by this means that the documents in this case were before the court. Whether or not they were tendered by one of the parties, or incorporated into an "appeal" book, the documents formed part of the record for review by the court.
As Gordon J observes in her reasons, four members of this Court in Gypsy Jokers[386] said that the statutory regime in that case, which provided that tendered material was "for the court's use only", contemplated all that was necessary or appropriate for the exercise of jurisdiction to conduct the review. That regime readily accommodated the ability of the court to refuse to use material that was prejudicial to a respondent due to concerns of procedural unfairness. Similarly, as Gordon J also observes, the statutory regime considered in Pompano[387] expressly contemplated a balancing exercise which took into account any procedural unfairness to the party deprived of the information.
By contrast, the regime in this case contains no provision for the court to consider the interests of an appellant: the statutory presupposition in s 46(2) is that the court will consider the documents. This is unsurprising. It would not mitigate the procedural unfairness occasioned by s 46(2) for a court to refuse to consider s 44 material on an "appeal". Unlike the denial of procedural fairness to a respondent to an application under the legislative regime in Gypsy Jokers, a refusal by a court to consider s 44 material would exacerbate the procedural unfairness to an appellant. In many cases, such a refusal would make it impossible for an appellant, acting with propriety, even to make a submission that an error of law existed in the unredacted reasons for decision. Further, in many cases, it would be impossible for an appellant to demonstrate, or even to identify the existence of, an error of law without the court considering the underlying materials upon which the Tribunal relied.
There is, therefore, no provision in the AAT Act for a court to mitigate the procedural unfairness occasioned by s 46(2) by any measure that has regard to both the interests of the appellant and the importance of the countervailing interest in s 39B(2). There is no power for a court to consider disclosure of some or all of the material by balancing that matter against the potential extreme procedural unfairness to an appellant, even where the public interest involved under s 39B(2) might be trivial, such as a minor aspect of the international relations of Australia or something at the low end of the spectrum of matters that could form the basis for a claim of privilege by the Crown in right of the Commonwealth in the documents. It may be a large step to say that such a trivial countervailing interest supports the non‑disclosure of relevant documents that will never be used against a party. But it is a giant leap to say that such a trivial countervailing interest supports the non‑disclosure of a document that will be used against a party.

[117]

The literal terms of s 39B(2) appear to contemplate that a certificate issued by the ASIO Minister[388] might be expressed in one of two manners. First, the ASIO Minister might certify that the "disclosure of information with respect to a matter stated in the certificate" would be contrary to the public interest because it falls within one or more of the three confidentiality categories. This would extend not merely to the most trivial instances within those categories but to anything "with respect to" those matters. In the context of confidentiality, the words "with respect to" have "a very wide meaning"[389]. They extend to anything that could have the potential to disclose the information. Secondly, the ASIO Minister might certify that "the disclosure of the contents of a document" would be contrary to the public interest because it falls within one or more of the three confidentiality categories.
It was not submitted by any party to this appeal that there was any difference in substance between the two manners in which a certificate under s 39B(2) might be issued by the ASIO Minister. It was implicitly accepted by all parties that a certificate issued in either manner would express the "matter contained in the document" which, by s 46(2), the court must do all things necessary to ensure is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding.
The decision of the ASIO Minister that a matter, however trivial, might fall within one or more of the three confidentiality categories, and the decision of the ASIO Minister as to the level of generality at which the "matter" in the certificate is expressed, will both significantly affect what the court is permitted to disclose. By leaving these powers to the ASIO Minister rather than the court, the court is deprived, without any reason or justification, of two means by which it might otherwise have been authorised to mitigate the extreme procedural unfairness to an appellant caused by the non‑disclosure. This contrasts sharply with at least two ways in which the court might have been authorised to consider the reasonable necessity of the extreme procedural unfairness, and to mitigate it.
First, provision could have been made requiring the ASIO Minister to provide evidence to the court that could justify the certification that a matter falls within a category in s 39B(2). This would have empowered the court to ensure that any procedural unfairness to an appellant is reasonably necessary. Although reference was made in submissions on this appeal to the mechanism of judicial review of a certificate given by the ASIO Minister, that mechanism affords almost no protection to the interests of an appellant. It would be nearly impossible for an appellant to obtain orders on judicial review quashing the certificate, given the likelihood of a claim for public interest immunity over the underlying material. Even making a submission to that effect is one of extreme difficulty[390].
In a submission designed to respond to the near‑impossibility of judicial review of a certificate by an appellant, the Solicitor‑General of the Commonwealth submitted that the court could review the validity of a certificate of its own motion. Although a court would not be required to do so[391], it is theoretically possible that a court might seek to satisfy itself that the certificate was valid, establishing the jurisdictional fact in s 46(2) that "there is in force in respect of any of the documents a certificate"[392]. But even if a court did seek to satisfy itself of that validity, there is little more than a theoretical possibility at the very outer reaches of the realms of remoteness of the court concluding, without any evidence of the practical effect or consequences of the material being disclosed, that there is even a prima facie case that the ASIO Minister had no rational or reasonable basis to issue the certificate.
Secondly, and compounding the first point, the court might have been authorised to disclose to an appellant, after submissions and evidence from interested parties including the ASIO Minister, the gist of the material where that was possible in a way that did not reveal, at the appropriate level of specificity, the "matter contained in the document" that the court (rather than the ASIO Minister) was satisfied required protection.
This way of mitigating procedural unfairness would allow the court to engage in what the Supreme Court of the United Kingdom described as "gisting"[393]. But by leaving the description of the "matter contained in the document", and therefore the decision about the level of generality at which it is expressed, to the ASIO Minister rather than the court, the extent to which any "gisting" is possible under s 46(2) is effectively controlled by the ASIO Minister.
There is, again, little to no ability for the court to mitigate any procedural unfairness where the ASIO Minister has described the material at a high level of generality. The prospect of any review of the generality of the description of "the matter", either by an appellant or by the court of its own motion, is even further removed from the realms of reality than the prospect of any review of the certificate to ascertain whether the material falls within a category in s 39B(2).
It can immediately be accepted that in any regime the importance of "countervailing interests of state security"[394] might sometimes mean that even "gisting" is not possible, resulting in procedural unfairness. But there will be other cases where the force of such interests is not present. The court has little to no authority to mitigate that injustice.

[119]

Another manner in which the procedural unfairness of s 46(2) might have been mitigated is by providing for the appointment of a special advocate to whom disclosure of the certified matter could be made, and who would represent the interests of an appellant, although without the ability to inform an appellant about the content of the certified matter. There would still remain significant procedural unfairness to an appellant due to the limited ability of the special advocate to obtain instructions relating to the material unless, after viewing the material, the special advocate were to make a successful judicial review application to invalidate the certificate and thus remove the legal barrier to disclosure to the appellant of the material. But the availability of a special advocate to represent the interests of an appellant would have been a significant step towards ensuring that the procedural unfairness was no more than is reasonably necessary to protect the countervailing interest.
The Solicitor‑General of the Commonwealth submitted that, if it were necessary to save the validity of s 46, it was open to apply the power in s 46(4) in a manner that extended to appointment of a special advocate. That sub‑section provides that nothing in s 46 "prevents the disclosure of information or of matter 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". Even if, with or without the saving grace of s 15A of the Acts Interpretation Act 1901 (Cth), the application of "an officer of the court" could extend to a special advocate, s 46(4) would still fall short of a regime that could permit the appointment of a special advocate who could represent the interests of an appellant.
It is arguable that an existing statutory regime for the appointment of a special advocate, coupled with either an inherent or a general power of the court to protect its own processes from injustice, could permit the extension of the special advocate regime to related circumstances[395]. It is also arguable that a court has the power to appoint a special advocate for the limited purpose of assisting with issues concerning public interest immunity to establish the admissible evidence or record, rather than the actual deployment of evidence or consideration of the record[396]. But, in the absence of a statutory regime, there is no power for a court to appoint a special advocate to mitigate the procedural unfairness that arises from matters including an inability to access the very record upon which the court is to adjudicate.
The many policy and functional decisions required to create a scheme for appointment of a special advocate in the context of a final judicial adjudication are not matters that can be resolved by a court. Those decisions are the province of the legislature, as can be seen by comparison with the statutory regime for the appointment of a special advocate in the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ("the NSICCP Act").
First, an immediate question that would need to be confronted is who is suitable for appointment as a special advocate? In matters that might involve highly sensitive Commonwealth issues, what level of security clearance is necessary? How is the court to judge the level of sensitivity of the information? How is the court to know whether the special advocate has any conflict of interest that should prevent them from accessing the information?
The NSICCP Act makes careful provision for these issues. A court may only appoint a person as a special advocate if: (i) the person meets any requirements specified in the regulations[397], which include that the person has received relevant training[398], meets the satisfaction of the Attorney‑General[399], is an eligible former judge, an eligible senior counsel or an eligible legal practitioner[400], and is not otherwise disqualified[401]; and (ii) the court has given the parties to the proceedings and the Attorney‑General, and their legal representatives, the opportunity to make submissions about who the court should appoint[402].
Further, in order to avoid the prospect of conflicts of interest, regulations made under the NSICCP Act provide that a special advocate must give the court written notice of all interests that the special advocate has or acquires that conflict, or could conflict, with the proper performance of their functions, or the exercise of their powers[403].
Secondly, what are the boundaries of the role of the special advocate? Can the special advocate take any instructions from the appellant prior to seeing the material? How should communication occur after the special advocate has seen the material? Could the special advocate be the subject of a subpoena to reveal any instructions given by the party whose interests are to be represented?
The NSICCP Act provides for the special advocate to represent the interests of the party in the proceeding, but limits that role to making written and oral submissions, adducing evidence, and cross‑examining witnesses at any part of a hearing in the proceeding during which the party and the party's legal representative are not entitled to be present[404]. The NSICCP Act provides that the special advocate may only communicate with the party and the party's legal representative in written communication approved by the court[405]. The party and the party's legal representative may only communicate with the special advocate in writing, and the party may only do so through their legal representative[406]. But the NSICCP Act also provides that, although the relationship between the special advocate and the party is not that of legal representative and client, legal professional privilege applies[407].
Thirdly, if the special advocate is appointed by the court, who is to pay the fees of the special advocate? And does the special advocate obtain the protection of counsel immunity?
Regulations made under the NSICCP Act provide that the special advocate may charge the Commonwealth in accordance with the Legal Services Directions 2017 (Cth) or at a higher rate as the Attorney‑General approves[408]. They further provide that no action, suit, or proceeding may be brought against a special advocate in relation to anything done, or omitted to be done, in good faith by the person in the performance of their functions or the exercise of their powers as a special advocate[409].

[120]

The Kable principle invalidates legislation where it substantially impairs the institutional integrity of a court such that the court may cease to be seen as an institution of justice. If anything more than lip service is to be paid to that principle, it should apply where a court is required to act in a manner that perpetuates extreme procedural unfairness upon an individual in circumstances where that unfairness is not reasonably necessary to protect a compelling countervailing interest. On the only interpretation of s 46 of the AAT Act which I consider to be open, the extreme procedural unfairness contained in s 46(2) is an unfairness that is plainly beyond that which is reasonably necessary to protect the compelling interests in s 39B(2).
Orders should be made as proposed by Gordon J.
STEWARD J. I agree with Kiefel CJ, Keane and Gleeson JJ that s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") is a valid law of the Commonwealth. Generally, for the reasons given by their Honours, the decisions of this Court in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police[410] and in Condon v Pompano Pty Ltd[411] necessarily foreclose the proposition advanced by the appellant that a "baseline" and elementary standard of procedural fairness exists which must be upheld in every case. It was said that whenever a court is required to make 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, that baseline is offended, and the court thereby acts inconsistently with Ch III of the Constitution[412]. Such a proposition is, with great respect, too broadly expressed. There are narrow circumstances where a court may justifiably deny an applicant a fair opportunity to respond to evidence deployed against them without causing "practical injustice"[413].
I, otherwise, and with very great respect, differ with some parts of the reasons of Kiefel CJ, Keane and Gleeson JJ. Those differences are explained below. In addition, for the reasons that follow, I do not consider that s 46(2), properly construed, necessarily prevents the Federal Court of Australia from affording such a fair opportunity in every case.

[121]

In considering whether the Federal Court could afford a person such as the appellant a fair opportunity to meet adverse allegations, one must commence with the statutory scheme. The Minister administering the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"; "the ASIO Minister") here issued four certificates pursuant to s 39A of the AAT Act. That provision prescribes the power of the Administrative Appeals Tribunal ("the AAT") to review the correctness of security assessments made by the first respondent ("the Director-General") in accordance with Div 2 of Pt IV of the ASIO Act. Section 39A was introduced into the AAT Act by the Law and Justice Legislation Amendment Act (No 1) 1995 (Cth). In general terms, this Act abolished the former Security Appeals Tribunal and transferred relevant functions of that Tribunal to a new Security Division of the AAT. Section 39A was modelled on what was previously s 58 of the ASIO Act[414].
Section 39A was drafted to resolve two potentially conflicting interests. On the one hand, there is the need for an applicant to be afforded procedural fairness. Section 39A serves that objective in various ways: by giving an applicant who has been issued with a security assessment an opportunity for merits review of that assessment by an independent tribunal (s 39A(1)); by imposing a "duty" on the Director-General to present to the AAT "all relevant information available ... whether favourable or unfavourable to" an applicant (s 39A(3)); by giving the AAT the power to require either or both parties to attend or be represented in order to identify the matters in issue or to facilitate the conduct of the hearing (s 39A(4)); subject to a qualification, by giving an applicant a right to be present when the AAT is hearing submissions made or evidence adduced by the Director-General or the governmental agency to which the security assessment was given (s 39A(6)); by giving an applicant a right to adduce evidence and make submissions to the AAT (s 39A(13)); by giving the AAT the right to invite, on its own initiative, a person to give evidence, or to summon a person to give evidence (s 39A(14)); and by obliging the AAT, subject to what follows, to give a party an opportunity to give further evidence where the AAT considers that such a party "should be further heard" (s 39A(16)).
On the other hand, there is the public interest in preserving the secrecy of highly sensitive information in the possession of the Director-General concerning Australia's security. This is reflected in the provisions of the ASIO Act. Section 17(1)(a) of the ASIO Act provides, amongst other things, that a function of ASIO is to "obtain, correlate and evaluate intelligence relevant to security". Section 17(1)(b) provides further that a function of ASIO is also to communicate such intelligence "for purposes relevant to security". However, pursuant to s 18 of the ASIO Act, such a communication can only be made by the Director-General or a person acting with the Director-General's authority; otherwise, it is generally an offence to disclose intelligence gathered by ASIO (s 18(2)). The term "security" is defined in s 4 as follows:

[128]

Section 39A of the AAT Act also recognises this public interest. Pursuant to s 39A(5), the hearing of a proceeding concerning the correctness of a security assessment must take place in private. If the Director-General so requests, the AAT must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director-General is not revealed (s 39A(11)). Pursuant to s 39A(9), an applicant and their representative must be excluded from proceedings when certified "evidence" is adduced or certified "submissions" are made to the AAT. Evidence or submissions may be certified if disclosure of such material would be contrary to the "public interest because it would prejudice security or the defence of Australia" (s 39A(8)).
Some observations should be made about these provisions. First, the AAT does not itself decide whether particular evidence or submissions should be certified; rather, that is a matter reserved to the ASIO Minister. Secondly, the scope of what evidence and what submissions may not be disclosed is a matter determined in accordance with what each certificate identifies and describes. Thirdly, the validity of a certificate can be challenged, on judicial review grounds, in a court[416]. A precondition for the lawfulness of a given certificate would be whether the ASIO Minister had acted within the bounds of legal reasonableness and on a correct understanding of the law, in certifying that the disclosure of evidence or a submission would be contrary to the public interest[417]. Where a certificate describes evidence and submissions in only a highly generalised or broad fashion, that may show that the ASIO Minister has misunderstood what is in the public interest for the purposes of s 39A(8). That may be because the boundaries of what evidence and what submissions cannot be disclosed are circumscribed only by what it is in the public interest to keep secret. The validity of a certificate may also be susceptible to challenge before the AAT, even though any opinion formed by that Tribunal concerning that issue would have no binding legal effect. Nonetheless, in determining its procedures under s 39A, the AAT is entitled to form a view as to whether a certificate given by the ASIO Minister is, in a given case, valid[418].
The ASIO Minister also issued certificates pursuant to s 39B(2) of the AAT Act. Section 39B was also inserted into the AAT Act in 1995, and was modelled on what was previously s 59 of the ASIO Act[419]. It is central to this appeal. Like s 39A, s 39B includes rules which promote procedural fairness and rules which protect sensitive material from disclosure. The section only applies to a proceeding to which s 39A applies (s 39B(1)). Unlike s 39A, which applies to "evidence" and to "submissions", s 39B applies to the non-disclosure of "information with respect to a matter stated in the certificate" or the "contents of a document". Pursuant to s 39B(2), the ASIO Minister may certify that disclosure of information or the contents of a document would be contrary to the public interest for one of three reasons: first, because it would prejudice security or the defence or international relations of Australia; secondly, because it would involve disclosure of Cabinet documents and the like; or thirdly, because the information or the contents of the document could be the subject of a claim for public interest immunity.
Consistently with the public interest in maintaining confidentiality over sensitive intelligence held by ASIO, the AAT must "do all things necessary" to prevent disclosure of certified information or the certified contents of a document to anyone other than a member of the Tribunal (s 39B(3)). Even without a certificate, the AAT is obliged to ensure that information is not made available to a person "contrary to the requirements of security" (s 39B(11)). However, consistently with the need to provide procedural fairness, the giving of a relevant certificate does not excuse a person who is required by the AAT Act to disclose information or to produce a document to the AAT (eg pursuant to s 39A(3)) from performing that duty. In addition, if a given certificate does not invoke, as a reason for non-disclosure, either of the first or second reasons set out above, the presiding member may authorise the disclosure of the information, or of the contents of the document, to the applicant, if the member is satisfied that the "interests of justice" outweigh the reason given for non-disclosure (s 39B(5)). In so deciding, the member must have regard to the desirability that the parties should be made aware of all relevant matters (s 39B(6)).
The observations I have made about the certification of evidence or submissions for the purposes of s 39A apply equally to the certification of information or the contents of a document for the purposes of s 39B.
Pursuant to s 43AAA of the AAT Act, the AAT must, generally speaking, make findings about whether a security assessment was correct and then disclose those findings to the applicant, the Director-General, the ASIO Minister, and the Commonwealth agency, State or State authority to which the assessment was given. Section 43AAA(5) empowers the AAT to direct that the whole or a part of its findings are not to be given to the applicant or to the applicable Commonwealth agency, State or State authority. Significantly, it is the AAT that is empowered to decide what findings, or parts thereof, are not to be disclosed. In making such a decision, the AAT must comply with its obligation of non-disclosure in relation to any certified information and the certified contents of any document for the purposes of s 39B(3), as well as its duty in relation to information pursuant to s 39B(11). A finding may, no doubt, be expressed without breaching these obligations because, for example, of the use of highly generalised language.
Pursuant to s 44 of the AAT Act, a party may relevantly "appeal" a decision of the Security Division to the Federal Court. The appeal is generally limited to "question[s] of law"[420]. Pursuant to s 45, the AAT may, with the agreement of its President, refer a question of law to the Federal Court for decision. In either case, pursuant to 46(1)(a), and despite s 39B(2) and (3), the AAT must send to the Federal 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 or reference". Section 46(2) provides that where, relevantly, there is in respect of any of the "documents" a certificate "in force" in accordance with s 39B(2) certifying that disclosure of a "matter contained in the document" would be "contrary to the public interest", the Federal Court shall "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". Section 46(4) creates an exception to this rule for disclosure to "an officer of the court in the course of the performance of his or her duties as an officer of the court". Section 46(3) permits disclosure of a "matter" in circumstances similar to those set out in s 39B(5) as described above.
The following observations about s 46 should be made. First, the reference in s 46(2) to a certificate certifying the non-disclosure of a matter contained in a document is apt to refer to a certificate made pursuant to s 39B(2) that identifies the contents of a document that should not be disclosed. Secondly, the reference in s 46(2) to a certificate "in force" should, in context, be read as a reference to a certificate that has not been withdrawn, or to a certificate the validity of which has not been successfully challenged in a court. Thirdly, s 46(2) does not address the admissibility into evidence of any certified document, or part thereof, in the Federal Court. Nor does it directly seek to interfere with the Federal Court's obligation to conduct a fair hearing. Instead, having been given custody of documents from the AAT, s 46(2) simply prohibits the Court from itself disclosing any certified matters contained in those documents to anyone other than a member or officer of the Court.
Whilst s 44 of the AAT Act refers to an appeal to the Federal Court, and whilst the Federal Court Rules 2011 (Cth) refer to a person filing a "notice of appeal"[421] for that purpose, the Court nonetheless exercises its original, and not appellate, jurisdiction when hearing any such appeal[422]. Upon the filing of a notice of appeal, r 33.18 of the Federal Court Rules then obliges the Registrar of the AAT to lodge with the Registry of the Federal Court "a copy of the decision", a "copy of the reasons" (if any), a copy of the transcript (if any), and a list of the documents sent to the Court pursuant to s 46(1) of the AAT Act. Curiously, in a case where the AAT has redacted its reasons in accordance with s 43AAA(5) of the AAT Act, r 33.18 does not specify whether the decision to be lodged is the redacted copy, the unredacted copy, or both. Pursuant to r 33.23(1), an applicant must file an appeal book, which must include[423]: "the formal decision of the Tribunal and the reasons for the decision"; a "complete index of the record of the evidence in the Tribunal"; a "chronological list of all documents received in evidence"; a "list of the affidavit evidence"; a "list of exhibits"; and the "exhibits and evidence to which the parties refer in the parties' submissions". Pursuant to r 33.24, a Registrar of the Federal Court must settle the index for Part A of the appeal book (dealing with the core set of standard items) as well as for Part B (a comprehensive reference index). These Rules are silent as to how an applicant, even with the assistance of a Registrar of the Federal Court, is to comply with this obligation where s 39B certificates have been issued. However, pursuant to r 33.22, the Federal Court may give directions "for determining what documents and matters were before the Tribunal" and concerning the "contents of the appeal book". In a case where certificates have been issued pursuant to s 39B, this will require the Court to take such steps as it can, consistently with its obligation under s 46(2), to ensure that the record of what was before the AAT is, to the extent the applicant requires it, included in the appeal book.
It does not follow from the foregoing process for the filing of the AAT decision and of an appeal book that the material is thereby before the Court. The preparation of the appeal book conveniently identifies the material the parties wish to rely upon. But if a party wishes to rely upon documents that were before the AAT, then the documents will need to be tendered into evidence. It is the act of tendering the documents and having them adduced into evidence that places them before the Court[424]. That act may be express or, as is sometimes the case with appeals pursuant to s 44 of the AAT Act, it may be implied from the joint conduct of the parties in relying upon the contents of an agreed appeal book.
In that respect, the supply of documents to the Federal Court pursuant to s 46 of the AAT Act is not analogous to the provision by an inferior court to a superior court of the "record" of that lower court in judicial review proceedings. That "record" only comprises the documentation that initiates a proceeding, the pleadings (if any) and the adjudication[425]. It has never included the evidence before the lower court or the transcript (if any)[426].
It follows that the act of supplying documents, including certified documents, to the Federal Court pursuant to s 46 does not result in the Court being obliged to receive them into evidence or otherwise to consider them. Section 46(1) simply provides a means of transporting the documents to the Court, and implicitly thereafter authorises their ongoing custody by the Court until their return to the AAT in accordance with s 46(1)(b). Section 46 otherwise does not oblige the Court to do anything with the documents, save for the obligation of non-disclosure imposed by s 46(2).

[134]

The reference in the foregoing passage to a "closed material procedure" is to a court in judicial review proceedings receiving and considering confidential evidence that cannot be disclosed due to public interest immunity, which is equivalent, in substance, to the procedure provided for by s 46 of the AAT Act. The rationale for such a procedure is to enable judicial review to be "effective" where a lower tribunal or court has considered the very material subject to public interest immunity[432].
The references in s 46(2) to a "matter contained in [a] document" and to "the contents of a document" in s 39B(2) are references not only to what is actually said in a document but also to the substance of what has been said. However, acceptance of the proposition that disclosure of the gist of a certified document might, in a given case, be communicated to an applicant without breaching s 46(2) suggests that a high-level summary of what has been said in a certified document may not constitute disclosure of either the contents of a document or a matter contained in it. For example, the type of activity alleged might be communicated without the need to identify the specifics of what took place, the names of individuals involved, or other like details. Such a generalised disclosure might not be contrary to the public interest.
Having said that, there may be occasions when even disclosing the general nature of an activity might, by reason of its nature, imperil, for example, the safety of a foreign informant. As the Victorian Court of Appeal recognised in Chief Commissioner of Police v Nikolic[433], there is no minimum standard of "gisting" that applies in every case; in some contexts, "the importance of protecting highly sensitive information may have the consequence that the principles of procedural fairness do not require the disclosure of even the substance or gist of that information to the person who is the subject of the decision in question"[434]. Plainly, what might be disclosed would depend on the particular facts and circumstances.
Secondly, both the appellant and the Solicitor-General of the Commonwealth accepted, although with some hesitation, that it was possible for the Federal Court to appoint a special advocate who could examine certified material and unredacted reasons and make independent submissions to the Court. Such an advocate would do so subject to an obligation not to say or do anything that might tend to disclose certified material to an applicant. It was also accepted, however, that this would only be possible if such a special advocate could constitute an "officer of the court" for the purposes of s 46(4) of the AAT Act. In National Archives of Australia v Fernandes[435], Foster J rejected a submission that the phrase "officer of the court" in s 46(4) should include any lawyer acting on behalf of a party. That is plainly correct. But in reaching this conclusion, his Honour decided that the phrase "officer of the court" only referred to "public servants employed in the Court to assist the judges in the performance of their judicial function"[436].
With respect, that construction of the phrase is too narrow. In New South Wales v Public Transport Ticketing Corporation [No 3][437], Allsop P (as his Honour then was) observed that whilst there was no statutory foundation for the appointment of a special advocate in public interest immunity cases, the Supreme Court of New South Wales had an inherent power to do so where disclosure to the special advocate did not injure the public interest and where there existed exceptional circumstances[438]. With respect, that conclusion is correct, although the need for exceptional circumstances in every case may be doubted. The Federal Court has the same inherent power, arising as it does from a court's jurisdiction to do that which is incidental to its judicial function[439]. An independent lawyer appointed by the Court to be a special advocate to assist it in exercising judicial power is an "officer of the court" for the purposes of s 46(4); such a person holds an office, that of special advocate, and does so at the direction of and for the benefit of the Court in the discharge of its duty to afford procedural fairness. That interpretation is more consistent with the constitutional imperative that the Court adhere to the requirement to provide procedural fairness in its exercise of federal judicial power[440].
In Public Transport Ticketing Corporation, Allsop P also usefully explained the procedural fairness dilemma that can arise when a party is denied access to relevant material, and how this can be ameliorated by the appointment of a special advocate. His Honour said[441]:

[141]

Of course, the terms of appointment of a special advocate by an order of the Court would need to be carefully calibrated to the needs of a given appeal. Orders of the kind made in the Public Transport Ticketing Corporation case illustrate this. They included: an order for the nomination of a special advocate; an order for the obtaining of initial instructions from the excluded party before giving the special advocate access to the confidential material; an order that the special advocate not disclose the contents of that confidential material to anyone other than the Court and the relevant State body; an order that the special advocate make submissions to the Court; and an order that the excluded party pay the costs of the special advocate in the first instance[445].
It may also be accepted that the utility of the appointment of a special advocate will depend upon the circumstances of the case. There will be cases where, because disclosure to an applicant of even the gist of the allegations made is not possible, the special advocate will be unable to obtain sufficient instructions from the applicant. There will also be cases where, even with disclosure of the gist of what is alleged, adequate instructions may not be capable of being given. In such cases, the special advocate may be unable to give the court any real assistance. But such possibilities may ultimately and practically prove largely to be illusory given that appeals to the Federal Court pursuant to s 44 of the AAT Act are almost always limited to questions of law; an inability to obtain instructions will often have little practical effect on the capacity of the special advocate to make submissions to the Court about the presence of error. In any event, notwithstanding the difficulties that might arise in a given case, it does not follow that the appointment of a special advocate could never cure any shortcoming in procedural fairness in a given case.
Thirdly, to the extent the Director-General sought to tender documents, whether in whole or part, that were the subject of certification pursuant to s 39B(2), it would be open to the Court to require, as a condition of admission into evidence, those documents, or parts of those documents, to be shown to an applicant's legal representatives on a confidential basis. The Court, cognisant of the ethical obligations owed by an applicant's legal representatives to the administration of justice, has the ability to mould the conditions and restrictions governing the disclosure of certified materials by the Director-General on a case-by-case basis with a view to balancing, to the extent possible, the competing imperatives of national security and procedural fairness[446]. No such direction would involve the Court itself failing to do "all things necessary to ensure" that certified matters in the documents held by the Court pursuant to s 46(1) were not disclosed to another person. The Solicitor-General of the Commonwealth agreed with this proposition. Whether the Director-General, as a model litigant, would be obliged to tender certified documents is not a matter that needs to be decided.
The foregoing is not intended to be an exhaustive list of the means by which the Federal Court could afford a sufficient degree of procedural fairness, or a sufficient reduction in any procedural unfairness, in appeals from the Security Division of the AAT. In respect of each appeal, the Court will need to mould what relief can be given to overcome the disadvantage suffered by the applicant as a result of the provision to the Court, but not to the applicant, of certified material.
If, notwithstanding the aforementioned options, the Court considers that it cannot sufficiently mitigate the disadvantage suffered by the applicant and that to proceed with the appeal without affording the applicant a fair opportunity to respond to the case against them would be productive of practical injustice, it is not compelled to do so. Contrary to what might be assumed, neither s 46(1) nor s 46(2) obliges the Federal Court to adopt a "closed material procedure"[447] in an appeal from a decision of the Security Division of the AAT. As previously explained, s 46(1) provides for the transfer of documents to the Federal Court, and s 46(2) prohibits disclosure of certified material to any person other than a member of the Federal Court. But the provisions do not compel the Court to adopt any other specific course of action[448].
In Al Rawi v Security Service, Lord Kerr of Tonaghmore JSC said of the closed material procedure adopted in the United Kingdom[449]:

[145]

As mentioned, there will be appeals where, by reason of the nature of the certified material, the Federal Court will not be able to provide an applicant with a fair opportunity to respond to the evidence against them by any of the above means. The certified material may be so sensitive that any form of disclosure would be too dangerous. The possibility of such a case, however, of itself does not make s 46(2) an invalid law. That is because this type of appeal, even with its adoption of an unfair procedure, is not inimical to an exercise of federal judicial power.
In that respect, one commences with the observation that some degree of caution should be exercised in drawing implications from the essential nature of judicial power which fetter the exercise of legislative or executive authority. That is because, as Kitto J famously observed, "it has not been found possible to frame an exhaustive definition of judicial power"[452]. Indeed, Sir Owen Dixon, writing extra-judicially, once remarked that the doctrine of the separation of powers was an "artificial and almost impractical classification"[453]. In determining here what is inimical to the exercise of judicial power, one cannot consider the operation of s 46, to the extent that it has inhibited, or even denied, the provision of the usual norms of procedural fairness, in isolation. If an appeal from the Security Division is ultimately and otherwise beneficial to an applicant, justice is not denied but is served. And that is so even though, as Edelman J observes, the resulting procedure adopted by the Court may be seen, in and of itself, to be unfair - indeed, in some cases, acutely so.
The provisions of the AAT Act concerning merits review of security assessments reflect choices made by the Parliament to enhance the rights of applicants who have been the subject of adverse security assessments, whilst at the same time preserving the confidentiality of intelligence held by the Director-General in the public interest. It is a legislative scheme that comprises a carefully balanced solution to conflicting rights and interests and that, when originally enacted in the ASIO Act, was a breakthrough in the common law world. Thus, in the Second Reading Speech for the Bill that became the ASIO Act, the following was noted[454]:

[151]

The provisions of the AAT Act, described above, faithfully implement Hope J's concerns and reflect a measured "trade-off" between the need to protect the security interests of the nation and the benefit of providing independent merits review of security assessments. The resulting legislation is plainly beneficial. It is even more beneficial with the existence of judicial oversight pursuant to s 44 of the AAT Act. Without this regime, a person who has been the subject of an adverse security assessment would have a less effective right of appeal from a decision of the Security Division. That is because it is practically inevitable in such proceedings that the Director-General would successfully claim public interest immunity over certified documents[457], and the Court would be unable to understand fully the reasons of the AAT based on all of the evidence that was before it. Parliament has sought to avoid such an iniquitous result by enacting appeal rights which provide for the possibility of the Court considering all of that evidence. It follows that an appeal from the Security Division of the AAT to the Federal Court - notwithstanding the limitations imposed on the Court by s 46(2) of the AAT Act, which, in a given case, may deprive an applicant of a fair opportunity to respond to adverse evidence - is nonetheless beneficial to a litigant in the position of the appellant. For that reason, the adoption by the Court of such a procedure does not result in an applicant suffering "practical injustice"[458], and is not inconsistent with Ch III of the Constitution. In unadorned terms, the regime is better than nothing. In the context of a clearly recognised public interest in protecting the non-disclosure of highly sensitive intelligence, s 46(2) is a valid and necessary law of the Commonwealth, which forms part of an otherwise beneficial regime.
Edelman J would criticise the foregoing conclusion as an example of an end justifying the means. With respect, that may well be so. But it nevertheless represents an acceptance that in order to provide an applicant in circumstances such as these with a meaningful - as distinct from meaningless - chance of independent review with subsequent judicial oversight, there is a necessary and regrettable cost that may need to be incurred. In this context, that cost does not offend justice.
I agree with the orders proposed by Kiefel CJ, Keane and Gleeson JJ.

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