Federal Court of Australia
SDCV v Director-General of Security  FCAFC 51
DATE OF ORDER:
THE COURT DECLARES THAT:
1. Section 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) is a valid law of the Commonwealth.
THE COURT ORDERS THAT:
2. The appeal be dismissed.
3. The applicant pay the respondent’s costs as assessed or agreed.
4. The reasons for judgment of the Court for the orders made today be published only to the respondent and the parties’ lawyers up to and including 4:00pm on 9 April 2021 and, thereafter, unless the Court otherwise orders, to the parties and their lawyers.
5. The parties confer and:
(a) by 4.00 pm on 14 April 2021, or such further time as may be allowed, propose joint or competing redactions to the reasons for judgment published to the parties to give effect to the orders made on 19 November 2020;
(b) by 4.00 pm on 19 April 2021, or such further time as may be allowed, propose joint or competing draft orders if anything additional or different is sought from the draft orders supported by evidence and submissions furnished to the Court by the respondent on 4 December 2020, including any necessary further evidence (open or closed) and any necessary further submissions limited to 3 pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NSD 2144 of 2019
DIRECTOR-GENERAL OF SECURITY
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
order made by:
RARES, BROMWICH AND ABRAHAM JJ
DATE OF ORDER:
28 aPRIL 2021
BY CONSENT, THE COURT ORDERS THAT:
1.1. the Confidential Appeal Book defined by order 9 made 18 June 2020;
1.2. the Confidential Document Bundle defined by order 8 made 24 August 2020;
1.4. the Classified Transcript defined by order 4(a) made 6 November 2020;
1.9. the confidential reasons of the Court (if any); and
1.10. any other matter subject to a certificate issued under ss 39A(8) or 39B(2) of the Administrative Appeals Tribunal Act 1975 (Cth)
2.1. the Judges hearing the appeal;
2.2. the associates and executive assistants of the Judges hearing the appeal;
2.3. necessary officers of the Court holding at least Negative Vetting Level 2 security clearances;
2.4. the respondent and ASIO employees and affiliates;
2.5. the respondent’s legal representatives instructed in the appeal (and such other legal representatives as may be instructed by the respondent);
2.6. Justices and officers of the High Court of Australia in connection with any application for special leave to appeal, or any appeal, from orders made in this appeal;
2.7. members and officers of the Administrative Appeals Tribunal (Security Division) in connection with any aspect of this appeal that is remitted to that Tribunal;
2.8. the person or persons holding at least Negative Vetting Level 2 security clearances who are to prepare the Classified Transcript.
3.1. there be no disclosure, by publication or otherwise, of the identity or any information tending to reveal the identity of the applicant and his spouse;
3.2. the applicant be known as SDCV;
3.3. the applicant’s spouse be known as SDCW; and
3.4. there be no disclosure to persons other than the parties or their legal representatives, by publication or otherwise, of matter marked “REDACTED” in , , , , , , , ,  and  in the version of the Court’s reasons for judgment as published on 28 April 2021.
Provided that this order 3 does not prevent any such disclosure:
3.5. to the applicant, his legal representatives, and his spouse;
3.6. to the persons identified in order 2.
4. Despite orders 1 and 3, the respondent may disclose sensitive information or information subject to order 3 from time to time where necessary or convenient in the performance of his or her functions.
Duration of orders
b) pages 2050-2056 and 2060-2077 of the Confidential Appeal Book, including as reproduced in the Confidential Document Bundle,
5.3. in relation to the information subject to order 3, 40 years from the date of this order.
6. Notwithstanding order 5, the proceeding be relisted on 2 February 2046, or such other date as ordered by the Court, for the purpose of the parties satisfying the Court that it is appropriate to continue order 5 for the balance of the periods provided therein.
Access to documents and storage of documents
7. In the event any person (including the applicant) seeks to access any sensitive information on the Court file at any time, including after the expiration of the suppression orders made by the Court, then before otherwise dealing with the request, the Registrar or the person otherwise dealing with that request, provide reasonable notice of the request to:
7.1. the Director-General of Security (or the successor in title of the Director-General of Security); or
7.2. if there is no successor in title of the Director-General of Security, the Attorney-General of the Commonwealth (or the successor in title of the Attorney-General of the Commonwealth).
8. For the purpose of order 7, the period of notice be a period of no less than 1 week.
9. Until further order, all documents contained on the Court file containing sensitive information:
9.1. are confidential for the purposes of r 2.32(3)(a) of the Federal Court Rules 2011 (Cth) (the Rules);
9.2. are only to be accessed by people to whom the relevant information could be disclosed pursuant to these orders, or the representatives of the organisation or entity referred to in order 9.4;
9.3. must be stored inside two secure bags, with both bags marked with the matter details, the internal bag marked with the highest security classification of the information contained therein, and a copy of these orders contained inside both bags; and
9.4. may be uplifted and stored by an organisation or entity which is approved by the Registrar and is capable of storing the sensitive information in accordance with the Protective Security Policy Framework (or equivalent Commonwealth protective security policy as may be in force at the relevant time).
10. Until further order, pursuant to r 2.31(2) of the Rules, the Respondent be permitted to uplift and store the Judges’ copies of the documents referred to in orders 1.3, 1.5, 1.6, 1.7 and 1.8 when not in use by the Court in accordance with the Undertaking recorded in the orders made 6 November 2020.
11. If either party:
11.1. becomes aware that there is information that has become publicly known, otherwise than by reason of a contravention of order 1 or 3; and
11.2. knows that that information is sensitive information the subject of order 1 or information the subject of order 3,
that party cause the matter to be relisted before the Court within 5 business days, or such longer time as the Court may allow, so that the appropriateness of these orders be able to be considered by the Court.
Vacation of orders
12. Order 11 made 18 June 2020, orders 2, 7, 8, 10, 11, 12 and 13 made 6 November 2020, and order 1 made 19 November 2020 are vacated.
THE COURT NOTES THAT:
13. The Court notes that section 92 of the Australian Security Intelligence Organisation Act 1979 (Cth) prohibits the publication of the identity of an ASIO employee or affiliate. In the event that:
13.1. any document on the Court file is to be disclosed at any time to a person not listed in order 2;
13.2. a prohibition in the nature of that imposed by section 92 continues to operate at the time that disclosure is to occur, and
13.3. the ASIO employee or affiliate in question is not an ASIO affiliate who is one of the respondent’s legal representatives instructed in the appeal;
then information subject to that prohibition be redacted before the document is disclosed.
14. The Court notes that order 1 is made for the purpose of giving effect to s 46(2) of the Administrative Appeals Tribunal Act 1975, and otherwise on the grounds stated in s 37AG(1)(a) and (b) of the Federal Court of Australia Act 1976.
15. The Court notes that order 3 is made on the ground stated in s 37AG(1)(c) of the Federal Court of Australia Act 1976.
1 I have had the benefit of reading the reasons of Bromwich and Abraham JJ and agree with them, but wish to add the following observations on the constitutional issue.
2 The detailed provisions in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for the conduct of a review of a decision of the Director-General of Security to make an adverse security assessment (ASA), pursuant to s 54 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act), delimit the scope of procedural fairness that the Administrative Appeals Tribunal must afford an applicant when challenging the ASA. Relevantly, s 46(2) of the AAT Act provides:
(2) If there is in force in respect of any of the documents a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia or the Federal Circuit Court of Australia shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding. However, this subsection does not prevent the Federal Court of Australia from causing the document to be sent to the Federal Circuit Court of Australia as mentioned in subparagraph (1)(c)(i).
3 Bromwich and Abraham JJ set out the other relevant legislative provisions in their reasons and explained the statutory context. Their Honours also explained that a certificate under s 39B(2) of the AAT Act is conclusive in the conduct of the review in the Tribunal or any appeal to this Court unless an applicant challenges the validity of its making. Thus, it is possible that the ASIO Minister can include material in the certificate that a Court might find, in litigation, would not attract matters of state immunity within the meaning of s 130 of the Evidence Act 1995 (Cth). However, given the grounds on which the ASIO Minister can make such a certificate, such instances should be rare.
4 The Parliament framed the provisions in the AAT Act to provide an applicant with a full merits review of the ASA in the Tribunal, but under a legal structure that seeks to ensure the maintenance of necessary confidentiality and secrecy about matters of Crown privilege or public interest immunity and other subjects of a Ministerial certificate under s 39B(2) of the AAT Act.
5 That structure for the conduct of a review of an ASA in the Tribunal and any appeal to this Court under the AAT Act seeks to ensure that the Executive Government, through ASIO, will be able to preserve the confidential and secret nature of intelligence, which may be relevant to any particular individual who is subject to and seeks to challenge an ASA.
6 The structure modifies the common law in many respects, including by requiring both the Director-General, and, on a review, the Tribunal, to give reasons for the decision each makes in respect of an ASA. There is no rule of common law or principle of procedural fairness that requires an administrative decision-maker to give reasons for a decision made under statute: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 670 per Gibbs CJ, with whom Wilson, Brennan, Deane and Dawson JJ agreed. Hence, although the bases on which an administrative decision will be reviewed by the Court have remained settled, the modern legislative requirement to give reasons has largely displaced the inferential process of review that Dixon J described in Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353 at 360, namely:
Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
7 The applicant for review of an ASA may be in a different position from the usual situation applying to a person aggrieved by an administrative decision. That is because, while knowing of the ASA, in seeking a review of it he or she may have no, or a limited, capacity to know all of the material that was before the decision-maker (the Director-General or, on review, the Tribunal) or the full reasons for the ASA or the Tribunal’s decision, if the ASIO Minister issues a certificate under s 39B(2). That unusual possibility, however, can also exist in judicial proceedings involving, for example, trade secrets, secret processes, confidential information or the identity of an informer, which are traditionally recognised exceptions to the principle of open justice and can provide a basis for denying a party access to critical, relevant evidence in the case. And, as Dixon J discussed in Avon Downs 78 CLR at 360, prior to statutory requirements for administrative decision-makers to give reasons, judicial review of their decisions involved the person aggrieved having to identify by inference how the decision-maker erred.
8 The applicant’s constitutional argument wrongly characterises s 46(2) of the AAT Act as requiring the judicial power of the Commonwealth to be exercised in a manner that is procedurally unfair because he cannot know of material that the Director-General, as the respondent in an appeal on a question of law under s 44, and the members of the Court will have that may, indeed is likely to, be adverse to him.
9 The conceptual problem at the root of the applicant’s argument is that he is invoking a right to appeal to this Court under s 44 of the AAT Act from the Tribunal’s decision on a question of law. The Tribunal’s decision on an ASA results from it following the statutory regime in the AAT Act. In situations where the ASIO Minister has issued a s 39B(2) certificate, that regime requires the Tribunal to engage in both open and closed hearings and to consider evidence and material that is subject to the certificate that can be expected to attract Crown privilege or public interest immunity. Because the Tribunal is performing an executive function, the material on which it can act in accordance with the legislative scheme in the AAT Act, including when acting adversely to a person the subject of an ASA, can include matters covered by a s 39B(2) certificate and public interest immunity.
10 If s 46(2) were not part of the legislative scheme applicable to the review of an ASA, all of the evidence and other material the subject of a s 39B(2) certificate, and the closed reasons of the Tribunal, would be (or at least be highly likely to be) inadmissible into evidence because those relate to matters of state within the meaning of s 130 of the Evidence Act, particularly on the ground in s 130(4)(a) that adducing such evidence would prejudice the security, defence or international relations of Australia, being a ground that mirrors s 39B(2)(a) of the AAT Act. If this material were excluded from evidence on an appeal to the Court under s 44 of the AAT Act, an applicant challenging an ASA would have only the open evidence, material and open reasons on which to argue the question of law, and would be in an evidentiary vacuum as to whatever else was before, and the content of the closed reasons of, the Tribunal.
11 That raises the question of how or why s 46(2) of the AAT Act is necessarily productive of any curial procedural unfairness in this unusual legislative framework. As Lady Arden JSC observed in Pathan v Home Secretary  1 WLR 4506 at 4522 :
Procedural fairness is adaptable to the environment in which it is applied. Procedural fairness does not entail that the decision-maker must comply with a fore-designed set of rules.
12 In the context of the application of the principles of procedural fairness in administrative decision-making, the cases have proceeded on the basis that Kitto J explained in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504, namely, the need to allow:
… full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf Ridge v Baldwin ( 2 WLR 935 at 947;  AC 40 at 73 per Lord Reid]). As Tucker LJ said in Russell v Duke of Norfolk ( 1 All ER 109), in a passage approved by the Privy Council in University of Ceylon v Fernando ( 1 All ER 631 at 637), there are no words which are of universal application to every kind of inquiry and every kind of tribunal: "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth" ( 1 All ER at 117). What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business. What is a fair opportunity to allow the taxpayer in a given case is a question which by its very nature forbids an answer in disregard of the interests of other people.
13 Similarly, in R v Inland Revenue Commissioners; Ex parte Unilever plc  STC 681 at 690, Sir Thomas Bingham MR, with whom Simon Brown and Hutchison LJJ agreed, said, again in the context of administrative decision-making:
The categories of unfairness are not closed, and precedent should act as a guide not a cage.
14 While those decisions did not deal with the constitutional limits on legislative power to condition the requirements of procedural fairness in a court exercising the judicial power of the Commonwealth under Ch III of the Constitution, they illustrate the protean nature of what, in any particular circumstances, is or is not a fair procedure.
15 The situation that the Parliament sought to address by incorporating s 46(2) into the procedure for the Court to follow in hearing and determining an appeal on a question of law under s 44 of the AAT Act involving an adverse ASA, necessarily had to balance the ability of the applicant to challenge an adverse outcome from the Tribunal’s merits review and the evidence that should, or could, not be made available to him curially because of the preclusive effect of a certificate under s 39B(2). That bespoke procedure offers an applicant another path on which to challenge an ASA in addition to his or her right to seek a constitutional writ in the High Court under s 75(v) of the Constitution or in this Court under s 39B(1) of the Judiciary Act 1903 (Cth).
16 In an application for a constitutional writ, the evidence, material and reasons for the Tribunal’s decision would be limited to what was admissible, having regard to the preclusive effect of s 130 of the Evidence Act in relation to matters of state immunity. While it is possible that some material the subject of a certificate under s 39B(2) of the AAT Act might not be found by a Court to attract matters of state immunity in litigation, in the usual course that possibility is unlikely to affect the whole or the significant part of the certificated material. Yet, the consequence that the material that was the subject of matters of state immunity would be inadmissible would not deny the applicant procedural fairness in seeking a constitutional writ to challenge the ASA. That is because the procedural and substantive law of public interest or matters of state immunity constrains what is available as evidence to the parties (including the Commonwealth as a litigant) and the Court in resolving such a matter: cf Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616–618 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ. Even though the confidential or secret material may have been decisive to the administrative decision, and cannot be scrutinised on judicial review, an applicant will be in the same position in seeking to make good a challenge, as Dixon J discussed in Avon Downs 78 CLR at 360.
17 In contrast, a certificate under s 39B(2) could not be conclusive in an application for a constitutional writ. There, the Director-General and the ASIO Minister would still need to establish to the satisfaction of the Court that the material the subject of the certificate fell within the definition of matters of state immunity: Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 32 – per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. The Court can satisfy itself as to whether a claim for public interest or matters of state immunity is well founded, and, if it is, that consequence will handicap at least one of the parties to the proceeding: Graham 263 CLR at 31 –. However, if the applicant does not dispute, or has failed in a challenge to, the validity of the s 39B(2) certificate, and appeals under s 44 of the AAT Act, the certificate will operate to deprive him of any means of access in the appeal to the material that it covers.
18 Thus, in approaching the applicant’s submission that s 46(2) requires the exercise of judicial power in a manner that is necessarily and unacceptably procedurally unfair, it is relevant to consider the nature of the subject-matter of the controversy and any relevant inhibitions on the ordinary requirements of procedural fairness and open justice that otherwise would apply to, or affect the exercise of, judicial power in an appeal directed to challenge the Tribunal’s decision to affirm an ASA on a question of law under s 44 of the AAT Act.
19 The feature of s 46(2) that the applicant says spells invalidity here is that, while the Court and the Director-General will have access to the material the subject of s 46(2) and to the Tribunal’s closed reasons, being a key part of the subject matter and reasoning on which the decision to affirm the ASA was based, he (the applicant) cannot have any access to those and will be less able to make meaningful submissions about them.
20 Here, the applicant has not challenged the validity of the ASIO Minister’s certificates under s 39B(2). That circumstance creates an obvious tension between the need to maintain the confidentiality of the certificated material, one the one hand, and that material’s apparent significance in the decision-making process, on the other. The impact of a valid claim for matters of state immunity in judicial proceedings denies a party from even having access to, or putting in evidence, critical material that is, or may be, adverse to the party, let alone having the forensic ability to challenge or explain it. In HT v The Queen (2019) 374 ALR 216 at 226 , Kiefel CJ, Bell and Keane JJ, with whom Nettle and Edelman JJ agreed with reservations at 231 –, said that at common law the effect of the Crown providing material the subject of a claim for public interest immunity to a sentencing judge which the person to be sentenced could not access would “reduce procedural fairness to nought”. There was a difference between their Honours’ reasoning as to how far modifications to the blanket prohibition on disclosure of confidential information could be made at common law as compared to those that could be made by statute.
21 Here, however, s 46(2) maintains the blanket prohibition on access to the certificated material for a person in the applicant’s position, but makes that material part of the evidence before the Court on the appeal under s 44. The statutory regime provides for a variation to the requirements of procedural fairness in the particular circumstance where that person appeals from the Tribunal on a question of law relating to an ASA.
22 As Kiefel CJ, Bell and Keane JJ, as well as Gordon J, recognised in HT 374 ALR at 228 , 233–234  and 239–240 –, a superior court of record has inherent power to tailor its procedures, including adjusting the ordinary application of the rules of procedural fairness and the principle of open justice, to meet a competing demand in the interests of justice requiring it to maintain the confidentiality or secrecy of material like that to which s 46(2) applies.
23 The overriding principle is that the Court must secure that justice is done in the proceeding: Scott v Scott  AC 417 at 437 per Viscount Haldane LC (applied in Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ, Isaacs, Gavan, Duffy, Powers and Rich JJ, and cited by Kiefel CJ, Bell and Keane JJ in HT 374 ALR at 228 ). The legislative intent evident in s 46(2) is that the Court will have before it as evidence certificated material, the content of which the applicant cannot know.
24 It is important to appreciate that the Parliament sought to strike a balance in s 46(2) between the national interest in keeping material secret that is covered by a certificate under s 39B(2) (which ordinarily would be inadmissible as evidence because of s 130 of the Evidence Act), but which is likely to have been of significant weight in arriving at or justifying the ASA, on the one hand, and the interests of justice in permitting the Court to consider that material as evidence in deciding an appeal under s 44 of the AAT Act. The means that the Parliament adopted to achieve that balance are unusual, but then so too is the context of the Court reviewing, in an appeal under s 44 on a question of law, the Tribunal’s decision to affirm an ASA where s 46(2) enables it to have in evidence the material that would otherwise be inadmissible because it is subject to matters of state immunity.
25 The Parliament sought to modify the common law requirements of the principles of procedural fairness and open justice under s 46(2), by giving the Court, but not the applicant, access to the material covered by the s 39B(2) certificate and the closed reasons of the Tribunal as evidence on the appeal. That was in order to allow the Court to consider, in deciding the question of law on the appeal, all of the evidence that is likely to have been significant in the administrative decisions to make and to affirm on review the ASA, but which, by force of s 46(2), the applicant cannot access in the appeal.
26 The Parliament chose a procedure that is analogous to the general law’s established curial procedures for hearing and determining cases involving trade secrets, secret processes or formulae, and confidential information. In those categories of case, routinely, one side will know, but the other will be prohibited from knowing, the evidence of the subject matter of the claim that the Court must determine, namely evidence revealing or proving the secret process, formula or information. Revelation of the secret would destroy its value to the person seeking the court’s protection, hence the curial modification of what would otherwise be required by the principles of procedural fairness and open justice.
27 In this way, the principles of procedural fairness and open justice are capable of adapting to preclude one party knowing or having access to crucial evidence in the case against that party, where it is necessary to do so in the interests of justice. Such a course is within the judicial power of the Commonwealth and the inherent power of a superior court of record if it is necessary in the interests of justice. It is also supported by the statutory powers in ss 17(4) and 37AE–37AL of the Federal Court of Australia Act 1976 (Cth).
28 Importantly, the inherent power to exclude the public or to limit access to evidence is conditioned on the Court concluding that it is necessary in the interests of justice to do so. The statutory power is also available where its use is necessary to prevent prejudice to the interests of the Commonwealth, a State or Territory in relation to national or international security: ss 37AF(1) and 37AG(1)(a) and (b) of the Federal Court of Australia Act.
29 Necessity can also warrant a departure from the rules of procedural fairness. For example, a decision-maker, including a judge, who would otherwise be disqualified because of his or her actual or apparent bias, is not disqualified from acting if the result of disqualification would be to disable the decision-maker from performing its statutory function: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 88–89 per Mason CJ and Brennan J, and at 96 per Deane J agreeing. Mason CJ and Brennan J said at 88–89:
The rule of necessity permits a member of a court who has some interest in the subject-matter of the litigation to sit in a case when no judge without such an interest is available to sit: Dimes v Proprietors of Grand Junction Canal [(1852) 3 HLC 759 at 787-788 [10 ER 301, at 313]]…. . The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist v Randwick Municipal Council [(1976) 136 CLR 109-110, 112 et seq., 118-119]; Salemi v MacKellar [No. 2] [(1977) 137 CLR 396 at 401, 442]; F.A.I. Insurances Ltd v Winneke [(1982) 151 CLR 342 at 348-349, 362-363].
30 Gleeson CJ, McHugh, Gummow and Hayne JJ cited with approval the emphasised passage above in dealing with administrative decision-makers in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343–344 .
31 It was therefore open to the Parliament to enact an unusual procedure that varied the ordinary incidents of the principles of procedural fairness in order to enable the Court, effectively, to hear and determine an appeal under s 44 of the AAT Act on a question of law arising in the Tribunal’s review of an ASA. Such a procedure allows the Court to have all of the evidence before it that the Tribunal had, including evidence that the public interest (as reflected in an unchallenged s 39B(2) certificate) requires be kept secret from the applicant and anyone other than the Director-General and the judges.
32 The criterion of necessity that enlivens the Court’s power to exclude the public or modify the rules of procedural fairness is objective and has no element of a discretionary judgment: Scott  AC at 437–438; Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 – per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. In Hogan 240 CLR at 664 , their Honours said of an analogous power to that now in ss 37AF(1) and 37AG(1)(a) and (b):
As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish [(1980) 43 FLR 129 at 133; 29 ALR 228 at 234], that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”.
33 Of course, s 46(2) of the AAT Act does not give the Court any power to consider for itself whether to make an order for the use of the procedure that it mandates. But that is in the context where the grounds for the ASIO Minister’s certification under s 39B(2) have not been challenged and those grounds reflect that “Parliament was not dealing with trivialities” in conferring the power on the ASIO Minister so to certify.
34 In an appeal on a question of law under s 44 of the AAT Act involving the Tribunal’s review of an ASA, the disclosure of material that is the subject of a validly made certificate under s 39B(2) to an applicant for the review, the public or others, would defeat the legislative purpose in allowing the Tribunal to review an ASA on the actual material on which the Director-General acted in making it, and the Court to hear and determine any question of law arising in that review with that material in evidence before it. As French CJ, Gummow, Hayne, Heydon and Kiefel JJ said in Hogan 240 CLR at 667 :
However, there should be a different outcome where a relevant s 50 order remains in force or should not have been vacated. The administration of justice by the Federal Court, which is the focus of s 50, certainly includes not only the generally recognised interest in open justice openly arrived at [see K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 520-521 ] which is reinforced by the terms of s 17(1), but also restraints upon disclosure where this would prejudice the proper exercise of its adjudicative function. Bowen CJ pointed this out in Australian Broadcasting Commission v Parish [((1980) 43 FLR 129 at 133; 29 ALR 228 at 233]. His Honour went on to describe the litigation in Parish as analogous to a case where confidential information “is the subject matter of the proceedings”; he concluded that it was in the interests of justice that the processes for determination of those very proceedings not destroy or seriously depreciate the value of that subject matter [(1980) 43 FLR 129 at 135; 29 ALR 228 at .
35 The unusual procedure mandated by s 46(2) is analogous to the above exceptions to the ordinary application of the principles of procedural fairness and open justice, albeit that s 46(2) does not leave open to the Court any power to control whether or not that procedure should apply.
36 The material covered by a properly made s 39B(2) certificate could never be revealed to the applicant who seeks to challenge an ASA because of its inherent nature (reflected in the statutory grounds for making such a certificate) as attracting Crown privilege or public interest immunity, unless a statute otherwise provided.
37 Here, s 46(2) operates as a statutory mechanism that, first, allows the Court to consider as evidence the confidential and secret material on which the Tribunal based its decision, but, secondly, protects that confidentiality and secrecy in the public interest because the grounds for the s 39B(2) certificate reflect matters of state immunity that would make the material inadmissible in evidence except as s 46(2) provides.
38 A person challenging a claim for legal professional or client legal privilege or of public interest or matters of state immunity or, in the usual course, confidentiality for a trade secret, secret process or confidential information, never sees the evidence, document or information the subject of the claim before the Court decides the challenge for the purpose for which it has power to receive as evidence or consider the material the subject of the claim. Yet no one could say that this adjudicative process was a judicial denial of procedural fairness because the challenger cannot know the content of the material to which that person seeks access which may be critical to his, her or its case. That is because the general law gives greater weight to the public interest in protecting the secrecy of that material from destruction by making it public, first, in a claim for matters of state immunity, secondly, in claims for legal professional privilege, and thirdly, in claims for confidentiality (of trade secrets, secret processes and confidential information): Hogan 240 CLR at 667 . That public interest in maintaining confidentiality or secrecy in such cases prevails over the right of one or more litigants to seek or have such evidence available for use in their cases.
39 Here, the s 39B(2) certificates and s 46(2) operate like affidavits that are adduced to prove the existence of those privileges or claim to secrecy. Such affidavits explain the circumstances in which the document or communication the subject of the claim is said to be privileged. And, as in such cases, here the applicant can call evidence and be heard on the basis of the open evidence, information and reasons of the Tribunal and make submissions on the basis of (the admittedly limited) inferences that he can draw about what might be in the s 46(2) material (cf Avon Downs 78 CLR at 360) in support of any argument that the ASA was invalid and the appeal under s 44 should succeed.
40 Accordingly, I am of opinion that the unusual process that the Parliament adopted in s 46(2) of the AAT Act is within its constitutional power.
Dated: 9 April 2021
REASONS FOR JUDGMENT
BROMWICH and ABRAHAM JJ:
41 This is an appeal from a decision of the Administrative Appeals Tribunal to affirm an adverse security assessment (ASA) made by the respondent, the Director-General of Security, on behalf of the Australian Security Intelligence Organisation (ASIO). The ASA was relied upon by the Minister for Home Affairs to cancel the applicant’s visa. That visa cancellation cannot be revoked so long as the ASA remains in place.
Legislative regime for ASA-based cancellation of visas
42 One of the functions of ASIO is to provide advice in respect of security and security assessments to ministers and authorities of the Commonwealth insofar as that is relevant to their functions and responsibilities: see ss 17(1)(c) and 37(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). ASIO is under the control of the Director-General: s 8(1), ASIO Act.
43 Section 35(1) of the ASIO Act defines:
(1) an “adverse security assessment” as meaning, unless there is apparent a contrary intention:
a security assessment in respect of a person that contains:
(a) any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and
(b) a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.
(emphasis added); and
(2) the term “prescribed administrative action” to mean, inter alia, “the exercise of any power, or the performance of any function, in relation to a person” under the Migration Act 1958 (Cth) or any regulation under that Act, including the Migration Regulations 1994 (Cth).
44 Section 501(3) of the Migration Act provides, inter alia, that the minister responsible for the administration of that Act may cancel a visa if that minister reasonably suspects that the visa holder does not pass the character test and is satisfied that the cancellation is in the national interest. Section 501(6)(g) provides that a person does not pass the character test if that person has been assessed by ASIO to be “directly or indirectly a risk to security” within the meaning of s 4 of the ASIO Act. The phrase “directly or indirectly a risk to security” does not appear in the ASIO Act and is not otherwise defined. However, it is readily apparent that not passing the character test for that reason is likely also to satisfy that minister that visa cancellation is in the national interest. If a visa is cancelled under s 501(3), that cancellation decision cannot be revoked so long as the ASA exists, because that minister cannot be satisfied, as required for revocation of a cancellation decision under s 501(3), that the applicant passes the character test: see s 501C(4)(b) of the Migration Act.
Summary of events leading to this appeal
45 The applicant is a citizen of Lebanon. In 2010, he married his wife, an Australian citizen, who is also a cousin. On 13 December 2012, he was granted a Class BS Subclass 801 Partner (Residence) visa, permitting him permanent residence in Australia. On [REDACTED], his application for citizenship was approved.
46 Several of the applicant’s male relatives were connected with an organisation known as the Islamic State of Iraq and the Levant (ISIL). ISIL is specified as a terrorist organisation: see s 102.1 of the Criminal Code and reg 591 of the Criminal Code (Terrorist Organisations – Islamic State) Regulations 2020 (Cth). The applicant was investigated by ASIO as to his contact with relatives in Lebanon and Syria.
47 In [REDACTED], [REDACTED] of the applicant (one of whom was his wife’s [REDACTED]) committed attempted terrorism offences in Australia involving [REDACTED]. The [REDACTED] were subsequently charged, tried, convicted and sentenced to imprisonment. [REDACTED] uncle and a brother of the applicant were involved with ISIL overseas. The applicant was investigated by ASIO as to whether he had any involvement with those terrorism offences. He was not found to have been involved.
48 On [REDACTED], the applicant was advised that his citizenship bestowal ceremony, which is necessary for the conferral of citizenship and had been scheduled to take place on [REDACTED], had been delayed pending consideration of whether his visa should be cancelled.
49 On 14 August 2018, the applicant was assessed to be, directly or indirectly, a risk to security, within the meaning of that expression in s 4 of the ASIO Act. That assessment was reflected in a certificate signed by the Director-General personally on that date. The Director-General’s certificate also stated that it would not be consistent with the requirements of security for the applicant to continue to hold his visa, and recommended that his visa be cancelled. The Director-General’s certificate was accompanied by a statement of grounds. The statement of grounds is deemed to be part of the assessment: s 37(2)(b) of the ASIO Act. Thus the certificate containing the assessment, and the statement of grounds for that assessment, comprise the ASA decision.
50 The statement of grounds that the applicant received was noted to have sections omitted in accordance with s 38(2)(b) of the ASIO Act. That omission of information in the statement of grounds took place by reason of a public interest non-disclosure certificate signed by the Minister in his capacity as the Minister administering the ASIO Act. The statement of grounds at  contained a summary of the overall ASIO assessment that the applicant had “employed communications security tradecraft practices while engaging with individuals of security concern, including Syria based individuals affiliated with ISIL”. This was detailed further at - of the statement of grounds under the subheading “Employment of communications security tradecraft practices”.
51 On 16 August 2018, the ASA comprising the Director-General’s certificate and the partially classified statement of grounds was furnished to the Department of Home Affairs. On 21 August 2018, the Minister cancelled the applicant’s visa upon the basis that he reasonably suspected that the applicant did not pass the character test and was satisfied that cancellation of his visa was in the national interest, exercising the discretion in s 501(3) of the Migration Act as discussed above at . The applicant was furnished with the Notice of Visa Cancellation and the ASA unclassified statement of grounds on 21 August 2018.
52 On 27 August 2018, the applicant sought review of the ASA decision by the Tribunal under s 54 of the ASIO Act. Section s 37(5) of the ASIO Act precludes the bringing of any other proceeding in respect of such an assessment or anything done in respect of such an assessment. Such a review is conducted in the Security Division of the Tribunal, in accordance with provisions specific to that Division, relevantly ss 39A and 39B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
53 On 2 November 2018, a revised unclassified statement of grounds was furnished to the applicant. This followed a partial revoking of the Minister’s public interest non-disclosure certificate upon the grounds that certain information was no longer prejudicial to security. The summary of the grounds for the ASA in the revised statement of grounds was that ASIO assessed that the applicant:
(1) “has support for politically motivated violence (PMV) and the Islamic State of Iraq and the Levant (ISIL)” as detailed further in the revised statement of grounds at -; and
(2) “employed communications security tradecraft practices while engaging with individuals of security concern, including Syria based individuals affiliated with ISIL”, as detailed further in the revised statement of grounds at -.
54 A footnote to the first ground of support for politically motivated violence (PMV) and ISIL noted that ISIL was also referred to as Islamic State (ISIS) and that it was
an Iraq and Syria-based Sunni extremist group and former al-Qa’ida affiliate that adheres to the global jihadist ideology. ISIL follows an extreme interpretation of Islam which is anti-Western, promotes sectarian violence, and targets those who do not agree with its interpretation as infidels and apostates. ISIL is a proscribed terrorist organisation under Australian law.
55 The above summary was noted by the Tribunal in its reasons relating to the ASA decision and is not disputed by the applicant. His challenge was not to do with the aims or objectives of ISIL, but rather took issue with either the assessment that he supported that organisation, or that any such support could, without more, properly ground the ASA.
56 The statement of grounds also records that the applicant’s citizenship ceremony was formally put on hold by the Minister’s Department following the disruption of [REDACTED] linked to ISIL involving certain of his relatives. Several of those relatives were charged, tried and convicted of terrorism offences in [REDACTED]. It was ultimately not suggested that the applicant had any involvement in [REDACTED] those offences.
57 In relation to the issue of the applicant’s support for PMV and ISIL, the statement of grounds recorded that he had said in interviews that he had never supported or been affiliated with any group in the Syria/Iraq conflict, including ISIL. However, this was assessed by ASIO as likely involving untruthful answers in an attempt to obfuscate that support because he believed it would have an adverse effect on his citizenship application or ability to continue to hold his visa.
58 In relation to the issue of the applicant employing communications security tradecraft practices while engaging with individuals of security concern, the statement of grounds described how this was said to have taken place. In substance, the applicant was found:
(1) to have used a covert phone other than his personal or work phones, obtained specifically to communicate with a brother based in Syria, using an encrypted messaging app;
(2) also to have used that covert phone to communicate with a relative who was an ISIL leadership figure and to communicate with Australian-based family members of security interest who had been charged and convicted of very serious offences (not found to have involved the applicant);
(3) to have disposed of that covert phone, as he said he had done when interviewed by ASIO because of fears that he may have done something illegal by using it; and
(4) to have provided inaccurate information to ASIO about the existence, use and disposal of the covert phone, and that this demonstrated a heightened security awareness which indicated the communications were likely of security concern.
59 The Minister signed four certificates under ss 39A of the AAT Act, in his capacity as the Minister administering the ASIO Act (ASIO Minister) under s 39B. These certificates operate to deny the applicant and his lawyers access to certain of the evidence and submissions that were before the Tribunal, including by them not being present during parts of the Tribunal hearing while that evidence was given and those submissions were made.
60 Other parts of the hearing were conducted in the presence of the applicant and his lawyer. One witness for the Director-General was cross-examined on an “open” affidavit, and, among others, the applicant, his wife and a Catholic priest provided statements and gave limited oral evidence. The evidence of the priest and key aspects of the evidence of the applicant’s wife were not challenged in cross-examination, with the thrust of the cross-examination being limited, as outlined below in considering ground 2(b).
61 On 2 December 2019, the Tribunal, constituted by two Deputy Presidents and a Senior Member, affirmed the ASA. Two sets of reasons were given: one “open”, and thus seen by the applicant and his lawyers, and one “closed” that has not been seen by them.
62 The Tribunal’s open reasons reflect that it was not able to form a view on the question of whether the ASA was justified based only on the evidence led in open session. These reasons are addressed in more detail below in addressing the grounds of appeal.
63 By an amended notice of appeal dated 16 July 2020, the applicant challenges the Tribunal’s decision. The amended notice of appeal raises five questions of law, and five corresponding grounds of appeal, in relation to the Tribunal’s review of the ASA decision.
64 The Court has before it the evidence and submissions that were before the Tribunal, both from the open and closed hearings, and the open and closed reasons. Given our conclusions we have been able to address the review grounds without explicitly referring to the content of the confidential evidence and submissions, avoiding the need for separate closed reasons. Redactions to this judgment as published beyond the parties are to accord with a non-publication order as to the applicant’s identity.
65 Prior to hearing the appeal, the Court heard a constitutional challenge by the applicant to aspects of the legislative regime applicable to appeals to this Court from reviews conducted in the Security Division, and in particular challenging the validity of s 46(2) of the AAT Act. The Commonwealth Attorney-General intervened, and the respondent adopted the Attorney-General’s submissions. It is convenient to refer to the joint position of the Commonwealth Attorney-General and the respondent collectively as the respondent’s position in that aspect of these reasons. On 6 October 2020, prior to hearing the substantive appeal, the Court advised that the constitutional challenge had been unsuccessful. The parties had no objection to the reasons for that conclusion being given as part of this final judgment. The reasons for the Court’s decision in relation to that challenge appear immediately below, before the grounds of appeal are addressed.
The constitutional challenge
66 As noted above, the applicant sought a merits review of the ASA, pursuant to s 54 of the ASIO Act. The Tribunal’s procedure for that review was governed, in part, by s 39A of the AAT Act, which is relevantly as follows:
39A Procedure in Security Division review of security assessment
Review of security assessment
(1) If an application for a review of a security assessment is made to the Tribunal, the Tribunal is to review the assessment in accordance with this section.
(2) The parties to the proceeding are the Director General of Security and the applicant, but the Commonwealth agency, State or authority of a State to which the assessment is given is entitled to adduce evidence and make submissions.
Director General of Security must present all relevant information
(3) It is the duty of the Director General of Security to present to the Tribunal all relevant information available to the Director General, whether favourable or unfavourable to the applicant.
Member may require parties to attend etc.
(4) A member who is to participate, or who is participating, in the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings.
Proceedings to be in private
(5) The proceedings are to be in private and, subject to this section, the Tribunal is to determine what people may be present at any time.
Right of parties etc. to be present
(6) Subject to subsection (9), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director General of Security or the Commonwealth agency, State or authority of a State to which the assessment was given.
(7) The Director General of Security or a person representing the Director General, and a person representing the Commonwealth agency, State or authority of a State to which the assessment was given, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.
(8) The ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director General of Security or the Commonwealth agency, State or authority of a State to which the assessment was given 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.
(9) If such a certificate is given:
(a) the applicant must not be present when the evidence is adduced or the submissions are made; and
(b) a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents.
(10) If a person representing the applicant is present when evidence to which a certificate given under subsection (8) relates is adduced or submissions to which such a certificate relates are made, the representative must not disclose any such evidence or submission to the applicant or to any other person.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
Protection of identity of person giving evidence
(11) If the Director General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director General of Security is not revealed.
Evidence and submissions
(12) The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Director General of Security and any evidence or submissions that the Commonwealth agency, State or authority of a State to which the assessment was given may wish to adduce or make.
(13) The Tribunal must next permit the applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal.
(14) The Tribunal may, on its own initiative and at any stage of the proceedings, invite a person to give evidence, or cause a person to be summoned to give evidence.
(15) If a person invited or summoned to give evidence under subsection (14) is:
(a) an ASIO employee or ASIO affiliate; or
(b) an officer or employee of the Commonwealth agency, State or authority of a State to which the assessment was given;
subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director General of Security or that agency, State or authority, as the case may be.
(a) a party presents his or her case to the Tribunal; and
(b) after that case has been presented, the other party adduces evidence; and
(c) the Tribunal thinks that, because of evidence adduced by the other party, the first mentioned party should be further heard;
the Tribunal must give the first mentioned party an opportunity of adducing further evidence but must not give to the applicant any particulars of any evidence to which a certificate given under subsection (8) relates.
(17) A member of the Tribunal may ask questions of a witness before the Tribunal and the presiding member may require a witness to answer any such question.
Dismissal of application
(18) If the applicant fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the President or an authorised member may dismiss the application without proceeding to review the security assessment.
67 Also relevant is s 43AAA which is relevantly as follows:
43AAA Findings of Tribunal in Security Division review of security assessment
(1) This section applies to a review in the Security Division.
(2) Upon the conclusion of a review, the Tribunal 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.
(3) The Tribunal must not make findings in relation to an assessment that would, under section 61 of the Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under subsection 37(2) of that Act, taken to be part of the assessment unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.
Copies of findings to be given to parties etc.
(4) Subject to subsection (5), the Tribunal must cause copies of its findings to be given to the applicant, the Director General of Security, the Commonwealth agency, State or authority of a State to which the assessment was given and the ASIO Minister.
(5) 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 the applicant, is not to be given to the applicant or is not to be given to the Commonwealth agency, State or authority of a State to which the assessment was given.
Applicant may publish findings
(6) Subject to any direction by the Tribunal, the applicant is entitled to publish, in any manner that he or she thinks fit, the findings of the Tribunal so far as they have been given to him or her.
Tribunal may attach comments to findings
(7) The Tribunal may attach to a copy of findings to be given to the Director General under this section, any comments the Tribunal wishes to make on matters relating to procedures or practices of the Australian Security Intelligence Organisation that have come to the Tribunal’s attention as a result of a review.
(8) The Tribunal must give the Minister a copy of any comments attached as mentioned in subsection (7).
68 An applicant can ask this Court to examine all of the material that was before the Tribunal, despite the fact that some of that material may not be available to such an applicant: s 44(8), and therefore cannot be made the subject of specific submissions. By some of his grounds, the applicant has taken that approach.
70 Certificates were issued by the ASIO Minister in this case under ss 39A(8) and 39B(2)(a) of the AAT Act, on the ground that the disclosure of the certificated matter would prejudice the security of Australia. As a consequence, the applicant was not entitled to access all of the information that was before the Tribunal and was excluded from parts of the hearing before the Tribunal. The Tribunal was required to “do all things necessary” to prevent disclosure of the matter to any person other than a member of the Tribunal as constituted for the purposes of the proceeding: s 39B(3) of the AAT Act. As noted above, this is an appeal pursuant to s 44 of the AAT Act. Notwithstanding the certificates, s 46(1) of the AAT Act required the Tribunal to send all relevant documents to the Court. Where s 46(2) of the AAT Act applies, as it does in this case because the certificates were issued under s 39B(2), the Court “shall … do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding”. Accordingly, s 46(2) of the AAT Act operates to prevent the disclosure of the certificated matter to the applicant or to his legal representatives.
71 In circumstances where there has been no challenge to the certificate either in the Tribunal or by way of judicial review, the premise for the s 44 appeal is that the information to which s 46(2) applies is material that was properly certificated because the validity of the certificate was never put in issue in the proceedings.
72 The decision to issue the certificate under ss 39A(2) and 39B(2) of the AAT Act could have been the subject of an application for judicial review, pursuant to s 39B of the Judiciary Act 1903 (Cth); Traljesic v Attorney-General (Cth)  FCA 125; 150 FCR 199; and see Minister for Immigration v SZMTA  HCA 3; 264 CLR 421 at . Section 46(2) would not have applied in any such proceeding, and the applicant could have sought production of the certificated material using the ordinary processes of the Court, but subject to any successful claim of public interest immunity. Alternatively, a challenge could have been mounted in the Tribunal that the certificates were invalid and that accordingly, the procedural consequences of the certificates were not engaged. If such a challenge had been made the Tribunal would have been required to form a view with respect to it: SZMTA at -, , and if the Tribunal rejected it, that rejection could have been challenged as part of an appeal on a question of law under s 44: for example see, Hussain v the Minister for Foreign Affairs  FCAFC 128; 169 FCR 241 at -. Neither approach was taken. The presumption of regularity applies. It can therefore be assumed, as it had been by the Tribunal, that the certificates were valid: Hussain at .
Challenge to the validity of s 46(2) of the AAT Act
73 The applicant challenges the constitutional validity of s 46(2) of the AAT Act. In essence, the applicant contends first, that a court exercising the judicial power of the Commonwealth cannot be required (or authorised) to act in a manner that is procedurally unfair; second, that s 46(2) would require such a procedure in the context of this matter, unless read down or severed; but third, that s 46(2) can be read down or severed so as to remain within constitutional limits.
74 The premise of the applicant’s submission is that where a procedure has the capacity to result in the court making an order that finally determines a right or legally protected interest of a person, it must afford that person a fair opportunity to respond to evidence on which that order might be made, citing Gageler J at  in Assistant Commissioner Condon v Pompano Pty Ltd  HCA 7; 252 CLR 38. The applicant submits that was the minimum requirement that must be met for this provision to be valid. The applicant submits the constraint imposed by Ch III of the Constitution admits of some legislative choice as to how, but not whether, procedural fairness is provided in the exercise of a jurisdiction invested in, or a power conferred on, a court. In support of that proposition the applicant relies principally on the observations of Gageler J in Pompano, which it is contended has subsequently been endorsed in HT v The Queen  HCA 40; 374 ALR 216.
It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding.9 This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is made be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case.10 In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it.11 A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made.12
9. Cameron v Cole (1944) 68 CLR 571 at 589;  ALR 130 (Cameron v Cole); Commissioner of Police v Tanos (1958) 98 CLR 383 at 395–6; 65 ALR (CN) 1057; Taylor v Taylor (1979) 143 CLR 1 at 4; 25 ALR 418 at 421; 5 Fam LR 289 at 291 (Taylor v Taylor); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638;  HCA 7 (Condon v Pompano) at .
10. Cameron v Cole at CLR 589; Taylor v Taylor at CLR 4; ALR 421; Fam LR 291.
11. Condon v Pompano at .
12. Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399;  HCA 9 at ; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; 261 ALR 220;  HCA 49 at ; Condon v Pompano at , .
76 The applicant relies on the content of that paragraph and also on certain of the footnote references cited in support of those propositions and reproduced above. In particular, the applicant draws attention to the fact that the footnote to the first sentence included Pompano at , that the third sentence reference was to Pompano at , and that the citations to the final sentence included Pompano at  and , being a reference to paragraphs in the judgment of Gageler J. In addition, the applicant draws attention to the footnote to the second sentence which cited Cameron v Cole (1944) 68 CLR 571, at a passage said to have been applied by Gageler J in Pompano. Reliance is also placed on  in HT, in the judgment of Gordon J, with that passage also citing, inter alia, Gageler J in Pompano at .
77 From that analysis the applicant contends that the observations of Gageler J in Pompano, in particular at  and , should not be disregarded as some form of outlier, but rather should now be understood to explain the approach of all members of the Court in Pompano.
78 The applicant contends that he is relevantly in the same position as the appellant in HT, which was held to constitute a denial of procedural fairness.
79 The applicant submits that if his argument is accepted then s 46(2) could, and ought to be, read down as follows:
Disclosure of documents by courts
(2) If there is in force in respect of any of the documents a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia or the Federal Circuit Court of Australia shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding, except to the extent that doing such things would preclude the court from providing a party a fair opportunity to respond to evidence on which an opposing party relies. …
80 The underlined passage is the addition that the applicant contends reflects how the provision needs to be read, to be valid.
81 The respondent takes issue with the correctness of the premise relied on by the applicant and submits that the approach is not supported by authority. Rather, the respondent submits that, properly read, Gageler J in Pompano and the reasons in HT do not support the proposition contended for. The respondent also directs attention to the context in which this provision exists and submits that is an appropriate consideration against which to determine the issue of practical injustice, and hence the validity of the provision. In particular, in addition to Pompano, reference is made to Gypsy Jokers Motor Cycle Club Inc v Commissioner of Police  HCA 4; 234 CLR 532 and Graham v Minister for Immigration and Border Protection  HCA 33; 263 CLR 1. The respondent submits that in assessing the issue of practical injustice it is appropriate to consider the counterfactual situation: what would occur in this scenario absent s 46 of the AAT Act? The respondent submits that Gypsy Jokers and Pompano squarely confronted the proposition that legislation might create a regime by which a Court has access to information but the applicant does not, with neither authority suggesting that on that basis, the relevant provisions were of doubtful validity. The respondent submits that those cases, and Graham, strongly support the proposition that Ch III does not assign to the courts alone the question of balancing competing public interests and that in s 46 of the AAT Act Parliament has struck that balance in the particular context of the review of national security-related decisions.
82 The respondent submits that if invalid then s 46(2) is wholly invalid and cannot be read down.
83 In reply, the applicant, inter alia, accepted that in considering the issue of practical injustice the Court is entitled to consider the counterfactual situation, but submits it is not able to consider the consequence of that counterfactual. The applicant submits that it should not be assumed that any public interest immunity claim will automatically succeed. Therefore, although the Court can have regard to the fact that but for this legislative scheme there would likely be a claim for public interest immunity, the applicant submits that the Court cannot speculate, and therefore take into account, the potential outcome of that claim. The applicant submits that HT was contrary to the respondent’s proposition. The applicant submits that Gypsy Jokers and Pompano being Kable v Director of Public Prosecutions (NSW)  HCA 24; 189 CLR 51 cases are of little assistance. The separation of judicial power mandated by Ch III does not apply in terms to the States, meaning that there can be no direct application to the State courts of all aspects of the doctrines that have been developed in relation to Ch III. It is permissible for a State legislature to confer non-judicial functions on a State court: Pompano at . The applicant submits that by their nature, such functions may call for the adoption of procedures that are more flexible than those required for the exercise of judicial power: Pompano at . It follows that the fact a State law does not infringe the principles associated with Kable does not conclude the question of whether a like Commonwealth law would be valid: Pompano at .
84 It is uncontroversial that Parliament cannot require a Ch III court to exercise the judicial power of the Commonwealth in a manner that is inconsistent with the essential character of a court or with the nature of judicial power: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ. Legislation which requires a court exercising federal jurisdiction to depart from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III: Thomas v Mowbray  HCA 33; 233 CLR 307 at  per Gummow and Crennan JJ. Relevantly for these proceedings, it may be accepted that procedural fairness is an essential feature of a Ch III court: Pompano at  per French CJ;  per Hayne, Crennan, Kiefel and Bell JJ; , ,  per Gageler J. So much is uncontroversial.
85 The question is whether, taken as a whole, the Court’s procedures avoid practical injustice: Pompano at . That said, given the Court is addressing a novel procedure which is said to deny procedural fairness, attention must be directed to questions of fairness and impartiality: Pompano at . The issue that then arises is as to the context in which those considerations are to occur.
86 Properly characterised, the applicant’s submission entails absoluteness. The applicant’s submission that, at the very least, to be valid the legislation must provide procedures that ensure a person whose right or interest may finally be altered or determined by a court order has a fair opportunity to respond to the evidence on which that order might be based, as put, admits of no exception. So much was demonstrated by the applicant’s responses to questions posed during the hearing in respect to the issue of severability in this case. The breadth and uncompromising nature of the proposition contended for and relied on is reflected in the applicant’s submission that if the Court views the material and considers it is relevant to the matter before the Court then the applicant is entitled to see the material, and that it is only if the nature of the material is anodyne that it does not need to be provided. The submission is that, applying  and  of Gageler J’s reasons in Pompano, the principal focus is the fairness to the applicant. The applicant’s acknowledgement during submissions that something less than all the evidence (for example a summary, or the gist of the evidence etc.) may be given depending on the circumstance, does not deny the absoluteness of his position. That is because underlying the submission is an irreducible proposition that the party is entitled to a fair opportunity to respond to the material, and therefore must have the evidence or so much of it as is necessary to enable such an opportunity to respond to it. Implicit in the applicant’s submission is the proposition that some members of the High Court in Pompano have changed their position since Pompano, to reflect that of Gageler J and that they have done so not expressly, but by referencing passages of their reasons in subsequent decisions to the reasons of Gageler J in Pompano. That submission ought not to be accepted.
87 Before addressing why that is so, it is appropriate to refer in some detail to the authorities relied on by each party.
88 Given the applicant’s reliance on Pompano, it is appropriate to commence there.
89 In Pompano the Court was concerned with s 10 of the Criminal Organisation Act 2009 (Qld) (CO Act) which empowered the Queensland Supreme Court, on application of the Commissioner of Police, to make a declaration that a particular organisation was a “criminal organisation”. The matter came before the High Court as a special case stated, with the questions recited in the judgment of French CJ at .
90 The plurality, Hayne, Crennan, Kiefel and Bell JJ, summarised the principal issue, as argued, as whether s 10 of the CO Act was invalid because the procedures prescribed by the CO Act for the Supreme Court to decide whether to make a declaration impaired the institutional integrity of that Court as a Ch III Court insofar as it was capable of exercising federal jurisdiction. The principal submission was that the institutional integrity of the Supreme Court was impaired because the CO Act permitted the Court to receive and act upon material which must not be disclosed to a respondent to an application for a declaration or to any representative of such a respondent. The material that must be kept from the respondent is referred to in the CO Act as “criminal intelligence”, which is information that relates to actual or suspected criminal activity. The CO Act provided that such information must be kept from a respondent if the Supreme Court declared it to be criminal intelligence and that a declaration could not be made unless the Court was satisfied that disclosure of the information could reasonably be expected to prejudice a criminal investigation, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person’s life or physical safety: Pompano at -. Although two subsidiary issues were raised, it is the principal issue which has particular relevance to the matter now before this Court.
91 All members of the Court in Pompano found the scheme in the CO Act to be valid.
92 The plurality in Pompano summarised the case for invalidity at -:
 There is a more fundamental reason why consideration of the arguments alleging invalidity does not call for these questions to be answered. The arguments that the CO Act’s provisions dealing with criminal intelligence render s 10 invalid, though expressed in various ways, depended upon one central proposition: that Ch III of the Constitution puts beyond the legislative power of a State any enactment that would permit a State Supreme Court to decide a disputable issue by reference to evidence or information of which one party does not know and to which that party can have no access whether personally or by a representative.
 The proposition admitted of no exception. …
93 The plurality in Pompano rejected that proposition at . One of the reasons given for rejecting that proposition is at  where the plurality observed (emphasis in original):
That revelation of criminal intelligence could reasonably be expected to have consequences contrary to the public interest was treated as irrelevant to the issue of validity. The argument for invalidity asserted that in deciding any dispute a State Supreme Court must always follow an adversarial procedure by which parties (personally or by their representatives) know of all of the material on which the Court is being asked to make its decision. Otherwise, so it was asserted, there would be such a departure from procedural fairness that the institutional integrity of the Supreme Court would be impaired.
94 The plurality then recited the applicable principles at -, and considered previous authorities at -.
95 Relevant to the respondent’s submission we note that in doing so, the plurality referred, inter alia, to the relevant principles having their roots in Ch III, including that the Constitution does not permit different grades or qualities of justice, citing the position of State Courts: at , citing Fardon v Attorney-General (Qld)  HCA 46; 223 CLR 575 at -; Kable at 103 per Gaudron J.
96 We also note that the plurality considered the counterfactual situation, as to what would have occurred if litigation was not governed by the CO Act. If a party sought to adduce evidence of information that would meet the definition of criminal intelligence, the plurality recognised that the Commissioner may very well have been able to resist its production on public interest immunity grounds: at . The plurality observed that the legislation did not provide for the reception of evidence that would otherwise be irrelevant or inadmissible but rather provided for the admission of evidence which would otherwise not be adduced: at .
 The appellant in Gypsy Jokers also submitted that, by allowing only the Court to have access to information which was found to be properly claimed as confidential, s 76(2) was beyond power because it was repugnant to or inconsistent with the continued institutional integrity of the Court. Crennan J (with whom Gleeson CJ agreed) explicitly rejected this submission. The plurality said of the provision only that it had “an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information in question”. The plurality said nothing to indicate that s 76(2), by allowing only the Court to have access to the confidential information, might, on that account, be of doubtful validity. Rather, the plurality’s conclusion in Gypsy Jokers proceeded from an acceptance that, as Crennan J rightly pointed out, “Parliament can validly legislate to exclude or modify the rules of procedural fairness”.
 The decision in Gypsy Jokers points firmly against accepting the central proposition advanced by those advocating invalidity of the CO Act. …
98 The plurality then discussed the relationship between procedural fairness and judicial power and at  observed:
Consideration of other judicial systems may be taken to demonstrate that it cannot be assumed that an adversarial system of adjudication is the only fair means of resolving disputes. But if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court’s procedures for resolving the dispute accord both parties procedural fairness and avoid “practical injustice”.
99 And finally as to the approach, at  the plurality stated:
When it is said, as it was in this case, that there has been a departure from hitherto accepted forms of procedure and thus a departure from accepted judicial process, the significance of providing for some novel procedure must be measured against some standard or criterion. Consideration of the continued institutional integrity of the State courts directs attention to questions of independence, impartiality and fairness. In cases where it is said that the courts have been conscripted to do the Executive’s bidding, the principal focus will likely fall upon questions of independence and impartiality. But that is not and was not said to be this case. Where, as here, a novel procedure is said to deny procedural fairness, attention must be directed to questions of fairness and impartiality. Observing that the Supreme Court can and will be expected to act fairly and impartially points firmly against invalidity.
100 Gageler J upheld the validity of the provision on a narrower basis of reasoning than that of the plurality, being that the Court retains the power to stay a substantive application if unfairness becomes manifest: Pompano at .
101 The applicant’s argument is dependent on the reasoning of Gageler J, in particular at  where his Honour stated:
My view, in short, is that Ch III of the Constitution mandates the observance of procedural fairness as an immutable characteristic of a Supreme Court and of every other court in Australia. Procedural fairness has a variable content but admits of no exceptions. A court cannot be required by statute to adopt a procedure that is unfair. A procedure is unfair if it has the capacity to result in the court making an order that finally alters or determines a right or legally protected interest of a person without affording that person a fair opportunity to respond to evidence on which that order might be made.
102 And at  (omitting footnotes):
While the characteristics of a court as an independent and impartial tribunal defy exhaustive definition, there is no novelty in the proposition that those characteristics include that the court not be required by statute to adopt a procedure that is unfair. Procedural fairness requires the avoidance of “practical injustice”. It requires, at the very least, the adoption of procedures that ensure to a person whose right or legally protected interest may finally be altered or determined by a court order a fair opportunity to respond to evidence on which that order might be based.
103 Gageler J also observed at - (omitting footnotes):
 There should be no doubt and no room for misunderstanding. Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court. “[A]brogation of natural justice”, to adopt the language of the explanatory notes to the Bill for the COA, is anathema to Ch III of the Constitution.
 Chapter III of the Constitution admits of legislative choice as to how, not whether, procedural fairness is provided in the exercise of a jurisdiction invested in, or power conferred on, a court. Procedural fairness can be provided by different means in different contexts and may well be provided by different means in a single context. The legislative choice as to how procedural fairness is provided extends to how procedural fairness is accommodated, in a particular context, to competing interests.
 The limits of that legislative choice need not, and therefore ought not, now be explored. In particular, it is not now necessary or appropriate to determine the extent, if at all, to which the avoidance of practical injustice in a particular context might necessitate “[c]onfrontation and the opportunity for cross-examination”. Resolution of that issue is not foreclosed either by the description in Bass of judicial process as requiring parties to have an opportunity “to challenge the evidence led against them” or by the particular holdings in Gypsy Jokers, K-Generation and Wainohu.
104 It is the reasons at  and  which are said now by the applicant to represent the position of the High Court by virtue of the decision in HT. And, as noted above, the effect of the applicant’s submission is that Gageler J’s reasons in Pompano represent an absolute position. To understand why that is said to be so it is necessary to turn to a consideration of HT.
105 HT is a criminal case which concerned a Crown appeal against the sentence imposed by the sentencing judge. In that context an issue arose about the non-disclosure to the parties of a document which had been provided to the judge for the purposes of sentencing which concerned the level of assistance to the authorities an offender, who was a police informer, had provided. The document contained evidence relating to the appellant’s assistance to the authorities and the evaluation by the police of the assistance given. The content of the document was relevant to a number of factors to be taken into account in the sentencing process: s 23(2) and (3), Crimes (Sentencing Procedure) Act 1999 (NSW). The procedure of providing the document to the sentencing judge but not to the offender or her legal representatives occurred on the basis that public interest immunity applied so as to prevent the production of the document to the offender. The Court concluded in this regard that there had been a denial of procedural fairness. HT concerned the application of common law principles rather than the application of any statutory provision.
106 As referred to above at , the reasons of the plurality in HT at  are central to the applicant’s submission. However, that said, the reasons of the plurality must be considered in context and include the observation at  that:
Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise.
107 The plurality considered tailoring orders, observing at  that “[it] should not be assumed that procedural fairness should altogether be denied in order that sensitive information be kept confidential”. The plurality recognised at  that “[a]lthough there have been statements that the variable nature of procedural fairness means that it may in some circumstances be reduced to nothingness” it concluded that it was difficult to conceive of a case such as the present where orders could not be tailored to meet the competing demands. The plurality at  discussed the fact that it is well known that the courts have modified and adapted the content of the general rules of open justice and procedural fairness in particular kinds of cases, referring to examples including non-publication orders, and the procedures adopted in cases dealing with issues such as wardship and trade secrets. The plurality concluded that this case did not fall within those categories, and that in cases such as the one under consideration it was difficult to accept that orders could not have been tailored to meet the concerns: at -.
… But once it is accepted that there are certain classes of cases where a departure from the general rule may be justified for good reason, it makes it difficult to suggest that the court lacks jurisdiction to vary the basic principles of open and natural justice or to say that the proper administration of justice may not require it. The trade secrets cases in particular show that the general rule is not absolute. Consistently with the general rule of the common law regarding fairness in the conduct of proceedings, the concern of the courts is to avoid practical injustice.
In the absence of statutory authorisation, however, we are less sanguine than their Honours as to how far courts may go to protect the confidentiality of sensitive information provided to a sentencing judge to equip the judge to undertake the sentencing exercise mandated by s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the C(SP) Act”). Plainly enough, as this matter demonstrates, the competing needs of ensuring that sentencing judges are fully informed of the matters prescribed by s 23(2) of the C(SP) Act and ensuring that the confidentiality of sensitive information is not compromised calls for a detailed legislative solution…
110 As noted above, the applicant also relies on the observations of Gordon J in HT at , which it submits, by reference to the footnotes cited in support, is to the same effect as the plurality at . At  her Honour observed:
Procedural fairness lies at the heart of the judicial function. It requires a court, making an order that finally alters or determines a right or legally protected interest, to afford to the parties a fair opportunity to test and respond to evidence upon which the order might be made. In other words, a court must provide each party before it an opportunity to be heard, and to tender evidence and advance arguments relating to its own case and to answer the case put against it…
111 Gordon J discussed the nature of public interest immunity and confidentiality orders: HT at -. Her Honour stated at - (citations omitted):
 Whether information is relevant depends on the nature of the proceeding and the issues. As it is for the court to provide each party before it an opportunity to be heard, and to tender evidence and advance arguments relating to its own case and to answer the case put against it, it is for the court to ensure that each party has, so far as is practicable, access to information on which the court is asked to act.
 There are limits. As Lord Dyson JSC said in Al Rawi v Security Service:
“[T]he court’s power to regulate its own procedures is subject to certain limitations. The basic rule is that (subject to certain established and limited exceptions) the court cannot exercise its power to regulate its own procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice.”
 But, within the confines of those limits and the particular circumstances of the case, the court’s task of ensuring that each party has, so far as is practicable, access to information on which the court is asked to act remains essentially practical.
112 It is appropriate at this stage to refer to two further authorities on which the respondent relies, Gypsy Jokers and Graham.
113 Gypsy Jokers, like Pompano, is a case that concerned the application of the principles in Kable. The validity of s 76 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act) was in issue. The legislative scheme is summarised conveniently at - in the judgment of the plurality, Gummow, Hayne, Heydon and Kiefel JJ. The legislative scheme was also summarised by Gleeson CJ.
114 In broad terms the legislation authorised the executive government to order the making of alterations to, or the carrying out of work on, buildings (e.g. including health, sanitation, considerations of local amenity, or lack of permission under laws relating to planning and development). The orders with which the CCC Act were concerned were narrower, affecting a certain kind of property right, and involving the erection and maintenance of heavy fortifications on premises. Where the premises are suspected of being used by people involved in organised crime, there is a power to order removal of the fortifications, with such removal facilitating access to the premises by law enforcement agencies: at . Section 76 provided for a limited form of judicial review by the Supreme Court of fortification removal notices issued by the Commissioner of Police under s 72(2) of the CCC Act. A notice required a reasonable belief by the Commissioner of Police that the subject premises were heavily fortified and were habitually used as a place of resort by people reasonably suspected to be involved in organised crime. Under s 76(1), the question on review is whether the Commissioner of Police could reasonably have had that belief: at .
115 In that context Gleeson CJ observed in Gypsy Jokers at  (citations omitted):
It is only necessary to state the context and the issue to see that it is likely that judicial review proceedings under s 76 may give rise to problems of confidential information, including information that would reveal the identity of police informers or compromise current police investigations. Parliament sought to address those problems in s 76(2). It is, however, important to consider the alternative, especially since it is said that s 76 could operate without s 76(2). An alternative would have been to make no specific provision about confidentiality, but to leave the general law to apply. Claims for public interest immunity against disclosure of information of the kind just mentioned are well known. The consequence of success of such a claim is that information which is subject to the immunity is not available as evidence to be taken into account in deciding the outcome of the proceedings. In view of the nature of the proceedings for which s 76(1) provides, and the issue in those proceedings, there would almost certainly be cases in which a successful claim for public interest immunity by the Commissioner of Police would have the practical consequence of making it impossible for the Court to exercise the review function contemplated by s 76(1). The Court would not be able to have regard to some, or perhaps any, of the information on which the Commissioner’s belief was based. In that event, the application for review may be bound to fail. Without s 76(2), not only would s 76 have a substantially different practical operation; there would be plainly foreseeable circumstances in which it would have no practical operation at all. A provision such as s 7 of the Interpretation Act 1984 (WA) cannot be applied to produce a consequence so radically different from that which Parliament has enacted.
116 Gleeson CJ agreed that the appeal should be dismissed for the reasons given by Crennan J, and the above are part of some of the additional comments expressed by his Honour: at .
117 The plurality in Gypsy Jokers, Gummow, Hayne, Heydon and Kiefel JJ, approached the validity issue from the same perspective. Having summarised the legislative scheme, the plurality said it was necessary to consider what would be involved in the exercise of that general jurisdiction of the Supreme Court in a case such as the present absent these provisions: at . The plurality then addressed a claim for public interest immunity it expected would be claimed, and the handicap that would be faced by the applicant and the Court if the claim was successful. In doing so, it made reference to observations by Mason J in Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 61, which were made when dealing with matters of national security: at . Immediately thereafter the plurality stated at :
It is against this background that s 76 is to be construed. The scheme of s 76 is to displace what otherwise might have been a claim to public interest immunity by the Commissioner of Police. Section 76 does so by providing that information supplied by the Commissioner to the Supreme Court is subject to limitations upon use and disclosure of that information where the Supreme Court is satisfied disclosure might prejudice the operations of the Commissioner.
118 As recognised by the plurality, s 76(1) proceeds upon the footing that the Supreme Court will have before it the information which the Commissioner took into consideration when issuing the notice: at .
119 The plurality observed at  that the legislative regime had an outcome comparable with that of the common law in respect to public interest immunity, with the difference that the Court itself may make use of the information in question. The provision is also conditioned upon the Supreme Court having determined that disclosure of the information, identified by the Commissioner, might prejudice the operations of the Commissioner. Thus, there is “no legislative mandate for dictation to the Supreme Court by the Commissioner of the performance of its review function”.
120 Finally, referring to the judgment of Crennan J at - (citations omitted):
 Here, under statutory provisions permitting a claim not unlike a claim for public interest immunity, the Supreme Court, but not the appellant had produced to it, for inspection by it, all of the material relied on by the Commissioner.
 The appellant’s particular complaints alleging a want of procedural fairness were that it did not have access to material adverse to it and the Court was deprived of the benefit of its submissions on such material. Parliament can validly legislate to exclude or modify the rules of procedural fairness provided there is “sufficient indication” that “they are excluded by plain words of necessary intendment”. Whether the obligation to accord procedural fairness is satisfied will always depend on all the circumstances. For example, in a joint judgment of five members of this Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, it was recognised, by reference to Sankey v Whitlam and Alister v The Queen, that courts “mould their procedures to accommodate what has become known as public interest immunity”.
 The statutory modification of procedural fairness achieved by s 76(2) (including any effect on the giving of reasons) is indistinguishable from the modification of procedural fairness which can arise from the application of the principles of public interest immunity.
121 This is the passage cited by the plurality in Pompano, recited above at .
122 We note also that Crennan J expressly said at  that her reasoning is not to be taken to decide whether the Commonwealth Parliament could validly enact legislation analogous to s 76(2).
123 Finally, turning to Graham, which involved a consideration of s 501(3) and s 503A(2) of the Migration Act 1958 (Cth), and proceeded by way of a special case stated. The question relevant to these proceedings is the first, which was in these terms at :
Are either or both of s 501(3) and s 503A(2) of the [Migration Act] invalid, in whole or in part, on the ground that they:
a. require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or
b. so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?
124 Section 503A as at the time Graham was decided, relevantly provided:
(1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C:
(a) the officer must not divulge or communicate the information to another person, except where:
(i) the other person is the Minister or an authorised migration officer; and
(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; …
(b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);
(c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and
(d) if the information was communicated to an authorised migration officer—the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.
125 The effect of s 503A(2) is to deny the court evidence upon which the Minister’s decision was based.
126 The majority in Graham (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Edelman J agreeing as to the first sentence, but otherwise in dissent) answered the question as follows:
Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.
127 This reflects the issues argued before the Court in Graham. It is the first issue that is of relevance to these proceedings.
 The plaintiff argues that the line between permissible regulation and impermissible interference is to be ascertained from the common law. Whether a law crosses the line depends upon the extent to which it requires a court to depart from “the methods and standards which have characterised judicial activities in the past”. Those relevant methods and standards, the plaintiff submits, are those of the common law relating to confidentiality and public interest immunity. As to the latter, the fundamental principle recognised in Sankey v Whitlam is that admissible evidence can be withheld “only if, and to the extent, that the public interest renders it necessary”. It is the duty of the court to balance the competing public interests, not the privilege of the executive. That requires the court to enquire into the facts, to ascertain the nature of the State secret. The essential difference between relevant evidence being withheld by reason of public interest immunity and by reason of s 503A(2) is that in the case of the former, the courts determine whether that should occur.
 The Minister and the Attorney-General of the Commonwealth submit that, as a matter of policy, it may be accepted that admissible evidence should be withheld only if and to the extent the public interest requires it, but that there is no constitutional principle which requires the courts to be the arbiter of that question. This submission should be accepted to the extent that the question of where the balance may lie in the public interest has never been said to be the exclusive preserve of the courts, nor has it ever been said that legislation may not affect that balance. Whether the Constitution permits legislation to deny a court exercising jurisdiction under s 75(v) the ability to see the evidence upon which a decision was based is another matter.
129 The majority in Graham went on to observe at  that the plaintiff’s argument derived no support from cases such as Gypsy Jokers, K-Generation Pty Ltd v Liquor Licensing Court  HCA 4; 237 CLR 501 and Pompano.
130 That said, the majority observed that in respect to the Minister’s attempt to rely on the analogy between the legislative regime and public interest immunity, the analogy was incomplete. In the latter scenario the Court has the ability to weigh and has weighed, the public interest in non-disclosure of the particular information against the interests of justice in the particular circumstances of the case before it and has made an assessment that the former outweighs the latter: at -. Moreover, the majority observed the analogy relied on by the Minister to statutory secrecy provisions held by the High Court to withstand constitutional challenge in other contexts was misplaced, stating at  (citations omitted):
… The statutory scheme considered in Gypsy Jokers was described in that case as having “an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information”. In that case, as in K-Generation and South Australia v Totani, the secrecy provisions in question did not prevent the reviewing court having access to the information on which the administrative decision under review was based.
131 At  the majority concluded that:
The problem with s 503A(2)(c) is limited to its application to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, and to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the Act, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant. The problem then lies in the inflexibility of its application to withhold the information from the reviewing court irrespective of the importance of the information to the review to be conducted. To the extent that it so operates, the provision amounts to a substantial curtailment of the capacity of a court exercising jurisdiction under or derived from s 75(v) of the Constitution to discern and declare whether or not the legal limits of powers conferred on the Minister by the Act have been observed.
132 The majority concluded that although s 503A(2)(c) was invalid, it was only to the extent that it operates as described above, but its invalid application is severable: at . The reference in s 503A(2)(c) to a “court” must be read to exclude the High Court when exercising jurisdiction under s 75(v) of the Constitution, and this Court when exercising jurisdiction under s 476A(1)(c) and (2) of the Migration Act, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant. It concluded that s 503A(2) was not otherwise invalid, and nor was s 501(3): at .
133 There is an issue between the parties as to the extent, if any, of the overlap between the arguments in Graham and those by the applicant in this case. The applicant submits that there is no “tight analogy” between the two cases, because it was not part of the applicant’s argument in Graham that there was some legislatively required failure to provide a full procedural fairness scheme. The applicant submits that there was no cause for the Court to consider whether s 503A was also invalid for the reason now advanced by the applicant in this proceeding. The respondent takes issue with that contention and submits that there is significant overlap between the issues argued in each case, although acknowledges the Court in its reasons did not address, at any length, some aspects of those arguments. The respondent submits that nonetheless those arguments must necessarily have been rejected having regard to the way the questions were answered.
134 As is apparent from the questions recited above at , there were two issues raised in the first question, the second of which raised the invalidity of the provisions on the ground that they “so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure”. The Court’s answer to that first question, that the provision is invalid to the extent only that it would apply to prevent the Minister from being required to divulge information to this Court when exercising jurisdiction under s 75(5), necessarily was the answer having considered both issues. It would be expected that each aspect of the question would have been addressed by the parties, and the record of the argument recorded in the Commonwealth Law Reports reflects that is so. For example, it included, inter alia, a submission that the applicant in a proceeding for judicial review was denied access to the protected information which is not offset by any protections of the type discussed in Pompano, and that the scope for practical injustice is manifest citing Pompano. The argument as recorded appears at least to be very similar to that in this case. That said, it does appear that in the reasons at  ff, the whole of the argument was not developed, and other aspects are not expressly engaged within the reasons. It is important to be mindful of that limitation. Nonetheless, given the terms of the answer to the question, the arguments must, as the respondent submitted, have been rejected.
135 We return to the submissions advanced in this case.
136 First, assuming for the purposes of argument that Gageler J’s reasons in Pompano reflect the absolute position contended for by the applicant, a proper reading of HT does not support the interpretation the applicant contends for. Paragraph 17 of HT, which is heavily relied on by the applicant, includes the express qualification “as a general rule”. Once it is accepted that the principle admits of a circumstance where the rule does not apply, it is not absolute. It is not to be assumed, as the applicant’s argument must, that those words do not have meaning because of the footnote references to Gageler J in Pompano. Indeed, the plurality in HT at , recited above at , expressly recognised that once that is accepted, “it makes it difficult to suggest that the court lacks the jurisdiction to vary the basic principles of open and natural justice or to say that the proper administration of justice may not require it”. It is therefore difficult to see how the reasoning in HT could be sensibly interpreted as prohibiting the Parliament from enacting legislation that moderated the content of procedural fairness, particularly in circumstances where there are counterbalancing national security considerations.
137 Indeed, the passage at  of HT is consistent with the language used by the plurality in Pompano which referred to the “general rule” and that that rule is not absolute: Pompano at . As the plurality in Pompano observed, if legislation provides for novel procedures which depart from the general rule the question is whether, taken as a whole, the court’s procedures afford procedural fairness and avoid “practical injustice”: Gageler J at .
138 The passage in the reasons of Gordon J on which the applicant relies, read in context, also does not admit of an absolute proposition. Rather, considering the common law position there under consideration Gordon J observed that it was for the court to ensure each party “so far as it is practical, access to information on which the court is asked act”: at , emphasis added, and see .
139 As is plain from the passage recited above at  from Nettle and Edelman JJ, their Honours did not accept an absolute position. Moreover, the reasons reflect an acceptance of the possibility of legislation to govern the particular circumstances of that case. There is no suggestion that such legislation would necessarily, and for that reason alone, be invalid if it were to restrict access of the documents to the offender.
140 Second, it must also be recognised that, as is apparent from  of HT, the plurality were addressing the circumstance of a “person against whom a claim or charge is made”, and in context described in  above. That is not this case, nor the circumstance in which s 46(2) applies. This is the applicant’s appeal against the decision of the Tribunal on a question of law: s 44, and this is the only circumstance in which s 46(2) applies. It is not suggested by the applicant that he would be entitled to the material he now seeks at the stage at which the administrative decision was made or during the merits review in the Tribunal. Rather, the consequence of the submission is that this entitlement to the material would only arise after an applicant has appealed from the Tribunal, where the nature of the appeal is limited and he bears the onus of establishing the grounds.
141 Unlike HT, Gypsy Jokers, Pompano and Graham, there is no party moving this Court in this case to have an order made which affects or alters the rights or interests of a person, on the basis of evidence which is not revealed to the applicant because of public interest and national security issues. That is a distinguishing feature between the legislative regimes considered in the relevant authorities and that under consideration in this matter. Clearly, moving a court on such evidence is different from and can properly be characterised as ordinarily a more extreme case, than material which was before the Tribunal on a merits review being provided to this Court for an applicant’s appeal on a question of law.
142 This distinction affects the consideration of those authorities. To take an example: in relation to Pompano, the applicant draws attention to the observations of the Court as to the significance of particulars being provided by the Commissioner to the respondent. The applicant places emphasis on the absence of a similar feature with comparable effect in this regime. However, the provision of particulars was part of the legislative scheme in the context of the Commissioner being the moving party, who was applying to the Court to get control orders over the respondents, which is a very different position than that addressed by this regime. It is difficult to see how the provision to a respondent of particulars or the gist of the evidence on which an order sought is based could be relevant other than in the context of a regime where one is moving the Court on the basis of secret evidence.
143 Third, HT was not a constitutional case, but rather, the discussion occurred in the context of the application of common law principles. The reasons do not reflect on or detract from the proposition that “Parliament can validly legislate to exclude or modify the rules of procedural fairness”: Gypsy Jokers at - per Crennan J, accepted in Pompano at  as the premise behind Gypsy Jokers. Rather, Nettle and Edelman JJ appear to contemplate that a legislative solution could exist which ensured that the confidentiality of the material is not compromised. We note also that although the plurality at - rejected the respondent’s submission that there were other statutory power sources for the orders in HT, because of the terms of the legislation relied on, it was not suggested there could not be such a legislative power.
144 Fourth, the respondent accepts that decisions applying the Kable doctrine, of which Gypsy Jokers or Pompano are two, cannot be directly applied to the exercise of the judicial power of the Commonwealth. The applicant submits that the respondent’s reliance on these cases is to be treated with caution. This is said to be at the very least because of the uncontroversial proposition that it is permissible for a State legislature to confer non-judicial functions on a State court, and such functions may call for the adoption of procedures that are more flexible than those required for the exercise of judicial power: Pompano at  and  respectively.
145 That said, in this case the issue arises as to the obligation to act in a procedurally fair manner. It cannot be suggested that there are two standards of justice or different standards of justice between the Federal and State courts: see for example: Pompano at ; and Wainohu v New South Wales  HCA 24; 243 CLR 181 at  per Gummow, Hayne, Crennan and Bell JJ. Indeed, the passage in  of Gageler J’s reasons in Pompano on which the applicant relies is that the “Supreme Court and every other court in Australia” is to apply that standard.
146 It was in that context that the respondent submits that the Kable cases are of assistance, as both State and Federal courts must act in a way that is procedurally fair, but both courts can depart from ordinary judicial procedures in circumstances where that is required and to the extent that that is required to accommodate competing public interest.
147 Plainly, care must be taken to ensure that when considering the principles referred to therein attention is paid to the context in which the issues that fall for consideration arose in those cases.
148 Parliament might have the capacity to create a legislative regime with the consequence that a court has access to information but the affected person does not, without such a regime necessarily, for that fact alone, being invalid. Legislation which had that very consequence was the issue which confronted the Courts in Gypsy Jokers and Pompano, with there being no suggestion of invalidity of the relevant provision on that account.
149 As observed in Graham at , the statutory scheme considered in Gypsy Jokers was described in that case as having “an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information”. That description could similarly be given to the legislative regime in this case. As in Gypsy Jokers, K-Generation and South Australia v Totani  HCA 39; 242 CLR 1, the secrecy provisions in this case do not prevent the reviewing court having access to the information on which the administrative decision under review was based.
150 Fifth, a proper reading of Graham also supports that conclusion. Section 503A of the Migration Act excluded the court and the applicant having access to certain material. As the passages recited above at -, and the answer to the question before the court reflects, the only issue as to the validity of the provision was that the Court was denied access to the material. The provision was only invalid to that extent, and accordingly was only read down to that extent. That conclusion was to the question asking whether s 503A was consistent with the essential character of the Court. Given the language in , and the answer to the question, there is no support in the reasons for the applicant’s submission that the Court could then provide the material to counsel for the applicant. The arguments advanced in Graham in respect to the position of the applicant’s access to the material must necessarily have been rejected.
151 As the respondent correctly submits, Graham supports the proposition that Ch III does not assign to the Courts alone the question of balancing competing interests in a context such as national security.
152 Sixth, it follows that to the extent that Gageler J is said to be expressing an absolute position in Pompano at , , that approach cannot be reconciled with cases such as Gypsy Jokers or Graham. Gageler J was a member of the majority of the Court in Graham.
153 Moreover, in other aspects of his judgment in Pompano, particularly at  to , Gageler J gives examples of courts moulding or adapting their procedures where there are competing public interests in play. This reflects the variable content of procedural fairness; a procedure may be fair in one context where justified by sufficient public interest, but not in another absent such considerations.
154 Seventh, in assessing the validity of s 46(2) and whether there is practical injustice, the Court does so against the background of the legislative scheme, but is also entitled to consider the counterfactual situation. That is, the position in these circumstances if s 46(2) did not exist: see for example Gypsy Jokers at ,  and Pompano at . The applicant ultimately accepted as much, although took issue with the respondent’s submission that given the nature of the material being that of national security, any public interest immunity would generally fail. That submission cannot be accepted. In Gypsy Jokers at , Gleeson CJ observed, with respect correctly, that given the nature of the material there would almost certainly be cases where a claim for public interest immunity would succeed, and if it did, the consequences that flowed from that. A similar approach was adopted by the plurality observing inter alia at  referring to observations by Mason J in Church of Scientology at 61 which were made when dealing with matters of national security:
… Intelligence is relevant to security if it can reasonably be considered to have a real connexion with that topic, judged in the light of what is known to ASIO at the relevant time. This is a test which the courts are quite capable of applying. It is a test which presents a formidable hurdle to a plaintiff and not only because a successful claim for Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument – that there is no real connexion between the intelligence sought and the topic. The fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials.
Consideration of the legislative scheme
155 As we noted earlier in these reasons at , it is necessary to return to the legislative scheme in which s 46(2) of the AAT Act appears.
156 The legislative scheme provides prescriptive detail which governs the nature of the merits review function that Parliament has chosen to confer on the Tribunal in relation to such assessments. That regime is one that does not have all of the ordinary features of a review in the Tribunal. It is a regime in a context where Parliament has chosen to (but it did not have to) confer a merits review. Given that the regime relates to the review of security assessments, the conferral of a merits review obviously brings with it the potential risks of disclosure of sensitive material, including national security material.
157 Although s 39A of the AAT Act provides a review of security assessments, it is targeted to a particular subject matter, namely, that they are to be reviewed in accordance with this section, recited above at . Section 43AAA of the AAT Act confines the role of the Tribunal in conducting a review of the security assessment. It must record its findings 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. There are constraints on the circumstances in which the Tribunal is entitled to make findings that supersede ASIO’s findings. And there is a bar before the Tribunal can substitute its view for that reached by ASIO. It can only do so if in the Tribunal’s opinion the information is incorrect, incorrectly represented or could not reasonably be relevant for the requirements of security.
158 Despite that risk of exposure of sensitive material, in the AAT Act the Parliament imposed a duty on the Director-General of Security to present to the Tribunal all relevant information available to the Director-General whether favourable or unfavourable: s 39A(3), which ensures that the Tribunal is properly positioned to conduct a meaningful merits review. As a consequence of providing this material the Parliament has dealt with the risks of it being disclosed by enacting the specific regime. Therefore, unlike an ordinary Tribunal proceeding, these proceedings must be in private: s 39A(5), and the persons who can be present are specified: s 39A(6). These include the applicant and his/her representative, subject to the circumstance where the ASIO Minister has certified that the evidence or submission to be made are of such a kind that the nature of the disclosure of the evidence or submission would be contrary to the public interest because it would prejudice the security or defence of Australia, and that evidence is being addressed: s 39A(9).
159 The disclosure of the material can be governed by a certificate issued under 39B of the AAT Act. The ASIO Minister can certify that the disclosure would be contrary to the public interest on the basis that (a) it would prejudice security or the defence or international relations; (b) it would involve disclosure of deliberations or decisions of the Cabinet or a committee of cabinet or the executive council; and (c) any other reason that could form the basis for a non-disclosure claim: s 39B(2). The regime provides for the handling of such material, which varies depending on the basis on which the certificate was issued: s 39B. For example, the catch-all category of (c) could be disclosed by the presiding member where appropriate after balancing the public interest in non-disclosure and disclosure of that information to the other party: s 39B(5). However, in respect to the core categories of public interest immunity, national security, prejudice to defence, and cabinet the regime provides no such capacity as Parliament has mandated that the material not be disclosed where a certificate has been issued on those bases.
160 As Parliament has conferred a merits review regime, there is the capacity for there to be an appeal on a question of law under s 44 or a judicial review under s 39B of the Judiciary Act or s 75(v) of the Constitution. Section 46(2) is in that context to ensure that the material before the Tribunal is before the Court. Nothing in the regime prevents the material being disclosed to an officer of the Court in performance of his or her duties: s 46(4).
161 It is plain that the regime involves significant modifications of the requirements of procedural fairness. That said, the regime is rather nuanced, with different categories of material being addressed according to the basis of the certification, with only the core categories of public interest immunity falling within the mandated non-disclosure. This is in the context where the regime provides that all the material is to be provided to the Tribunal, favourable and unfavourable, and that that material is to be before the Court on appeal. The Court can take that material into account in considering the appeal, albeit without submissions on it from the appellant, he or she having not seen the material. In respect to any submissions on the material by the respondent, either in writing or orally in closed court, it is to be expected that the obligations of the type that apply in ex parte hearings, in addition to the respondent’s model litigant obligations, would apply.
162 This is to be contrasted with what would occur in such a situation absent s 46(2), in the context of this regime. The material before the decision-maker would not be before the Court on any appeal. Such material could be the subject of a subpoena, but inevitably there would be a public interest immunity claim and where those claims are made and supported by cogent material, the claim would ordinarily or likely succeed: Plaintiff M46 v Minister for Immigration and Border Protection  FCA 277; 139 ALD 277 at -; Sagar v O’Sullivan  FCA 182; 193 FCR 311 at -.
163 It is sufficient in that regard to refer to a passage from Church of Scientology at 76 where Brennan J said:
Yet discovery would not be given against the Director-General [of ASIO] save in the most exceptional case. The secrecy of the work of an intelligence organisation which is to counter espionage, sabotage, etc. is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice…. In D v National Society for the Prevention of Cruelty to Children, Lord Simon of Glaisdale observed:
“So the law says that, important as it is to the administration of justice that all relevant evidence should be adduced to the court, such evidence must be withheld if, on the balance of public interest, the peril of its adduction to national security outweighs its benefit to the forensic process…”
Nevertheless, the veil of secrecy is not absolutely impenetrable… But the veil is not penetrated merely by a plaintiff’s deposition that he is not a security risk. That, after all, may be the very matter which is under investigation. Nor is the veil penetrated by showing that initial investigation has failed to reveal that he is a security risk, for one who turns out to be a security risk will often be found to have some depth of cover.
164 The applicant’s submission that the Court is entitled to consider the counterfactual situation, but not the consequence of that counterfactual cannot be accepted.
165 Without the Court having the material as provided by s 46(2) the appellant would likely be in a worse position than he is now. His arguments on appeal would necessarily be limited, and for example, ground 5 which raised the question of “[w]hether the material before the Tribunal reasonably admitted of the conclusions reached by it that the ASA was justified” could not be advanced.
166 Absent the provision for a merits review, the only challenge would be by way of judicial review of the ASA, which would occur without access to the material upon which the decision was based. The material before the decision-maker may be subpoenaed, but if there was a successful claim of public interest immunity, that material would not be before the Court. For the reasons set out above, in the context where the material relates to national security, it can safely be assumed that any claim of public interest immunity would have significant prospects of success.
167 When regard is had to the regime considered as a whole, and the context in which s 46(2) exists, it cannot be contended that an appellant having appealed by way of s 44 from the decision of the Tribunal has suffered a practical injustice such that s 46(2) is invalid.
168 The forgoing are the reasons for rejecting the applicant’s constitutional challenge.
The judicial review proceeding
169 It is well established that where an ASA affects migration status, the judicial review of Tribunal proceedings concerning an ASA decision will entail a close examination of the decision, with there being less scope for a beneficial reading of the reasons given: Jaffarie v Director-General of Security  FCAFC 102; 226 FCR 505 at .
170 The applicant also points out that the Tribunal appears to have understood that ASIO’s function in preparing the ASA was concerned with the prescribed administrative action of the Minister in considering cancellation of the applicant’s visa under the Migration Act, rather than being some more abstract exercise, which is consistent with MYVC v Director-General of Security  FCA 1447; 234 FCR 134 at . It is not in doubt that this was the correct approach.
Ground 1 – misconstruction/misapplication of “directly or indirectly a risk to security”
171 The particulars and submissions upon which the applicant relies in support of this ground of appeal assert that the two stated grounds for the ASA, summarised above at , were insufficient to establish that he, as opposed to someone else, was “directly or indirectly a risk to security” in the requisite sense. That is said to be so by the following reasoning:
(1) The word “security” is relevantly defined in s 4 of the ASIO Act to mean:
(a) “the protection of, and of the people of, the Commonwealth and the several States and Territories from”, per (a)(iii) of the definition, “politically motivated violence”, whether or not it is directed from, or committed within, Australia; and
(b) “the protection of Australia’s territorial and border integrity from serious threats”, per (aa) of the definition.
(2) The phrase “politically motivated violence” is defined in s 4 of the ASIO Act to mean, inter alia and relevantly:
(a) “acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective”, per (a) of the definition;
(b) “acts that are terrorism offences”, per (ba) of the definition; and
(c) acts that are offences under the Crimes (Aviation) Act 1991 (Cth), per (c) of the definition.
(3) The phrase “the protection of Australia’s territorial and border integrity from serious threats” in (aa) of the definition of “security” in s 4 of the ASIO Act is to be given its natural and ordinary meaning: Jaffarie at .
(4) By the application of the natural and ordinary meaning of the word “risk” in the phrase “directly or indirectly a risk to security”, “risk” is used as a noun in relation to a person, such that the assessment is directed to the ordinary sense of such a person themselves being “likely to cause” the relevant injury or damage. The applicant cited by way of example the use of a dictionary definition to that effect in MCLT v Director-General of Security  AATA 1359 at ; FLSZ v Director-General of Security  AATA 5900 at .
(5) Therefore, the applicant had to himself be found to be the source of the risk, in the sense that he needed to be the person likely to cause the feared loss, injury or damage.
(6) For the applicant to constitute the direct or indirect risk, there had to be identified some plausible and objective basis for determining that his support for PMV or the use of those practices rendered him a risk of that kind. In support of this point the applicant relies on the reasoning in Jaffarie at  when the Court was there considering whether there was a proper basis for concluding that an identified risk was serious or substantial, rather than negligible.
(7) No such basis was identified by the Tribunal or any such finding made, and it was not enough for ASIO to establish that the applicant has support for PMV, apparently based upon sharing an ideology of security concern with family members, because that does not, without more, reach the necessary conclusion of being a risk to security. This is submitted to be so because a person may hold obnoxious private opinions without ever acting upon them. On that approach the key issue was whether the applicant was likely to act on such views in the future, with the Tribunal failing to bridge the gap between mere thought and any prospect of resultant action giving rise to a risk.
(8) Similarly, the employment of communications security tradecraft practices falls short of supporting the risk conclusion, because doing no more than using a freely available encrypted messaging system to communicate with family members who were accepted to be in danger in a warzone did not and could not, without more, objectively demonstrate that he presented the necessary risk by some act on his part, as opposed to merely associating with other persons who may have presented such a risk.
(9) What is missing from each ground for the risk conclusion was any identified objective basis for concluding that the applicant himself was likely, directly or indirectly, to act in some way so as to cause PMV or a serious threat to Australia’s territorial and border integrity.
(10) The absence of any attempt to bridge this gap indicated that ASIO, and thus by inference the Tribunal in conducting merits review, erred in misconstruing or misapplying the term “directly or indirectly a risk to security”.
172 The approach to the meaning of “risk” advanced in the applicant’s submissions is said to derive support from the approach taken to the assessment of the risk of reoffending in relation to the refusal of a grant of a visa on character grounds in Anees v Minister for Immigration and Border Protection  FCAFC 28 at - and . In that case, the Full Court determined that it was not open to find the requisite risk on the basis of a contingent situation that had not arisen and had not been assessed as being likely, as opposed to merely being possible in the sense of anything being possible. While Anees is not directly applicable, the applicant submits that it indicates that something more concrete is needed than a nebulous notion of increasing an existing risk by ordinary, innocent and mundane actions, and also indicates that the problems in meeting that standard asserted by the Director-General, as outlined below, are overstated.
173 The Director-General accepts that the phrase “directly or indirectly a risk to security” is to be given its ordinary and natural meaning, but submits that there should be no substitution of the word “risk” as it appears within that phrase with a dictionary definition of “likely to cause”. He submits that this approach obscures the assessment that is required to be made, and suggests some degree of probability which is not inherent in the ordinary meaning of the concept of risk even when used as a noun in relation to a person, let alone a risk that may be indirect as well as direct, and which is to be measured by reference to the wide definition of “security”. On this response, it is not to the point that the word “risk” might have a narrower meaning in a different legislative and factual context, such as in Anees.
174 The starting point for the ascertainment of the meaning of a statutory provision is its text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection  HCA 34; 262 CLR 362 at  citing Project Blue Sky v Australian Broadcasting Authority  HCA 28; 194 CLR 355 at - and -, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue  HCA 41; 239 CLR 27 at  and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. While there are circumstances where dictionary definitions can be referred to in the process of interpreting a provision, a dictionary is not to be regarded as a fortress: Thiess v Collector of Customs  HCA 12; 250 CLR 664 at . Indeed, a definition from a source other than the statute itself, including a dictionary, can be “a distraction or worse”: Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education  FCAFC 117; 206 FCR 92 at .
175 With the above principles in mind, the comprehension and application of the composite phrase “directly or indirectly a risk to security” is not assisted by resort to dictionary definitions for “risk” alone, which imports limitations that are not inherently contextually necessary or appropriate. Nor is it appropriate to limit the scope of the defined meanings of either “security” or “politically motivated violence” when it comes to an exercise in statutory construction which is not to be limited by the facts of the particular case at hand. Also, as was pointed out in Jaffarie at -, too confined a construction of the definition of “security” could set the bar too high, and frustrate the ability of ASIO to properly monitor and assess threats to Australia’s national interests.
176 The word “risk” is a plain enough word in ordinary parlance, especially as it is broadened by reference to “directly or indirectly”. In context, it necessarily contemplates risks that are not direct and therefore which do not readily accommodate the more limited concepts of “but for” causation reasoning implicit in the applicant’s argument. Part of the definition of “security” from the ASIO Act that is relied upon for an ASA is “the protection of, and of the people of, the Commonwealth and the several States and Territories from … politically motivated violence”. As the Director-General submits, the ultimate factual question for the Tribunal was whether the applicant was, directly or indirectly, a risk to the protection of Australia and its people from PMV, in the context of his character test for the purposes of holding a visa enabling him to remain in Australia. His capacity to be a risk does not have to be confined to what he himself might immediately or directly “cause” by his own actions.
177 The notion of impeding protection of Australia and its people is an important part of the risk assessment able to be carried out. Undoubtedly that encompasses any risk that the person concerned will themselves pose a direct causal risk, but it also encompasses someone who may in some way indirectly, materially increase the difficulty of protecting Australia and its people. This includes elevating an existing risk in some way, or in some way materially assisting, enabling or even encouraging or supporting someone who poses a direct risk. This may be so even if the action goes no further than support being known and where actions by others are capable of being influenced in some way. For example, an omission to condemn or dissuade may, in a given context, be just as influential as overtly supportive conduct, even if that is not the present case. That process of assessment is not one for this Court to carry out.
178 It follows that there is no good reason to make a substitution for part of the text in the phrase “directly or indirectly a risk to security”, both by reason that it is the phrase itself that must be construed in the context of the Act as a whole, and it is necessary to have regard to the broad definition of “security” in s 4 of the ASIO Act. Neither the ASA nor the Tribunal’s review of it should be confined to the aspects of the definitions in s 4 of the ASIO Act identified by the applicant as to “security” as summarised at [171(1)] above, nor as to “politically motivated violence” as summarised at [171(2)] above.
179 Thus the reasoning that the applicant contends was required of the Tribunal, namely of identifying a chance of some specific future overt act by the applicant, even by an act of supporting the action of another, so as to make him such a risk, cannot be accepted. It follows that the argument that the Tribunal misconstrued or misapplied the statutory test must fail.
180 In the circumstances outlined above, there is no need to have resort to the Tribunal’s closed reasons, and the evidence and submissions upon which they relied, in order to reject this ground of appeal. The asserted misconstruction or misapplication of the phrase “directly or indirectly a risk to security” is not made out. However, for completeness, the closed reasons and the material referred to by the Tribunal to support them, which we have considered, provide an additional basis for finding no error in the Tribunal affirming the ASA conclusion that the applicant was directly or indirectly a risk to security.
181 This ground of review must therefore fail.
Grounds 2(a) and 4 – failure to give reasons and make findings in relation to the ASA
182 In the Tribunal’s open reasons it expressly stated at , the penultimate paragraph, that it was not able to form a view as to whether the ASA was justified based upon the evidence adduced in the open hearing. In that context these grounds assert that the Tribunal:
(1) did not conduct a lawful review of the ASA because it failed to make findings in its open reasons as to whether the applicant presented a risk to security because he supported PMV or because he employed communications security tradecraft practices while engaging with individuals of security concern, or because of both reasons; and
(2) related to the above, failed to comply with the obligations as to reasons and findings imposed by ss 43(2), 43(2B) and s 43AAA(2) of the AAT Act.
183 The key provisions in the AAT Act that are in contention for these grounds of appeal are as follows:
(1) s 43(2) provides that, subject to ss 35, 36D and 43 itself, the Tribunal “shall give reasons either orally or in writing for its decision”;
(2) s 43(2B) provides that where the Tribunal gives reasons in writing for its decision, those reasons “shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”;
(3) s 43AAA(2), which is specific to a review in the Security Division of the Tribunal, provides that:
Upon the conclusion of a review, the Tribunal 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.
(4) s 43AAA(3) prohibits the Tribunal from making findings in relation to an ASA that would have the effect of superseding any information that is part of the ASA within the meaning of s 37(2) of the ASIO Act unless the Tribunal makes a finding that states that in its opinion the information is incorrect, incorrectly represented or could not reasonably be relevant to the requirements of security.
(5) s 43AAA(5), which gives the Tribunal an express discretionary power to 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 the applicant, is not to be given to the applicant or is not to be given to the Commonwealth agency, State or authority of a State to which the assessment was given”, with such a direction being made in relation to the applicant.
184 The applicant submits that while s 43AAA(2) overlaps with s 43(2), the additional requirement in s 43(2B) still applies to review proceedings in the Security Division, and therefore continues to govern the required content of the Tribunal’s reasons. This is said to include the need to make findings on material questions of fact and refer to the evidence or other material on which those findings were based in the open reasons.
185 In turn, this is said to impose an obligation to expose the reasoning process sufficient to enable a party aggrieved by the decision to understand why their case did not succeed, and to decide whether the decision is worth challenging by reason of, for example, an unwarranted finding of fact, or an error of law, citing Wonson v Comcare  FCAFC 76; 377 ALR 596 at - and the cases there cited. An aspect of this argument is that the s 43(2B) obligation still applied to the reasons in the present matter, and could not be met because of the direction by the Tribunal under s 43AAA(5) not to disclose some or all of the reasons to the applicant.
186 The applicant therefore contends that the Tribunal was obliged to do multiple things:
(1) under s 43(2), to give reasons for its decision;
(2) under s 43(2B), to include findings on material questions of fact and a reference to the evidence or other material upon which those findings were based; and
(3) under s 43AAA(2) to make and record findings in relation to the ASA, which may also state an opinion as to the correctness of, or justification for, any opinion, advice or information contained therein.
187 The applicant asserts that these obligations were not discharged by , the final paragraph of the Tribunal’s open reasons:
We have written closed reasons for decision based on the classified evidence placed before us and concluded, based on that evidence, that the ASA was justified and that the reviewable decision should be affirmed.
188 That is said to be because the above sentence does not indicate whether either or both of the stated grounds for the ASA, being support for PMV and ISIL, and the employment of communications security tradecraft practices while engaging with persons of security concern, were found to be justified by the Tribunal. This in turn prevented the applicant from properly understanding the basis on which it concluded that the ASA was justified.
189 The applicant also argues that the statement by the Tribunal in its open reasons at  that the open affidavit of the witness for the Director-General at  states that the assessment of the applicant’s support for PMV and ISIL was also supported by material in his classified affidavit, indicated that the closed evidence was confined to that topic. Therefore the closed evidence did not relate to the employment of communications security tradecraft practices. On that reasoning, it was said to follow that as the Tribunal could only reach a conclusion by reference to the classified evidence, it must not have reached its conclusions in reliance on “communications security tradecraft practices”, which were not the subject of the classified evidence. In the alternative the applicant submits that if the Tribunal was able to reach an overall conclusion that the ASA was justified based on the security tradecraft practices evidence, that reasoning was not explained in the open reasons.
190 The Director-General’s response is that there was no requirement imposed on the Tribunal, in the exercise of its power in s 43AAA(5), to record its findings in its open reasons, to do so by way of a single set of reasons partly redacted, nor to confine the scope of closed reasons to material covered by the Minister’s four non-disclosure certificates. Thus there was no basis for a requirement to state in the open reasons the basis for affirming the ASA, being the gravamen of this aspect of these grounds of appeal. Moreover, the Director-General submits that on a proper reading, the affidavit of his witness does not support the conclusion that the closed reasons were confined to support for PMV and ISIL, as opposed to the topic of communications security tradecraft practice.
191 Each of the submissions by the Director-General should be accepted, with the following caveat. A preliminary question in considering these grounds of appeal is whether the obligation as to the content of reasons contained in s 43(2B) (namely to include findings on material questions of fact and a reference to the evidence or other material upon which those findings were based) continues to apply to review proceedings in the Security Division in light of the presence of s 43AAA(2), requiring the Tribunal to make and record findings in relation to an ASA, including any opinion as to the correctness of, or justification for, any opinion, advice or information contained therein. While not free from doubt, we consider the better view is that the obligation in s 43(2B) endures despite the terms of s 43AAA(2), but the content of the findings of fact made, and the material identified to support them, will inevitably be affected by the terms of s 43AAA(2). That is because any findings on material questions of fact and any reference to the evidence or other material upon which such findings are based are themselves governed by the ultimate findings required to be made by s 43AAA(2).
192 This caveat does not mean that the s 43(2B) obligation had to be met wholly or in part in open reasons, notwithstanding the purpose of meeting that obligation, explained in Wonson, of exposing the reasoning process to an applicant. Such a purpose is necessarily qualified, and may as a practical matter even be substantially eliminated in a given case, by the operation of s 43AAA(5). Specific to the Security Division, this section enables such reasons to be withheld from an applicant in whole or in part, including findings on material questions of fact and any reference to the evidence or other material upon which such findings are based. However, s 43(2B) still requires the process of reasoning to be exposed, and thereby available to this Court in the course of a judicial review proceeding. The supervisory role of this Court is thereby assisted and enhanced by the operation of s 43(2B), including in the present case.
193 Nothing in ss 43(2) or 43AAA(2) of the AAT Act required the Tribunal’s findings to be recorded in open reasons, particularly given the exercise of the express power in s 43AAA(5) permitting the contrary to take place. The power in s 43AAA(5) also cannot not be read in a way that requires the Tribunal to prepare and then redact a single set of reasons. There was nothing wrong with the Tribunal preparing two sets of reasons, one open and one closed. This was a permissible means of giving effect to that direction.
194 Nor does s 43AAA(5), on a plain reading of the passage reproduced at [183(5)] above, require that closed reasons, separate from open reasons, be confined to material that was the subject of the Minister’s four non-disclosure certificates and thereby forbidden from being published to the applicant. Those certificates imposed a minimum level of non-disclosure, but did not preclude the Tribunal’s direction casting a broader restrictive umbrella. It is an independent power, albeit one that facilitates compliance with the prohibition in the Minister’s certificates. A further reason for declining to imply any such restriction, not to be readily found in the express language used in s 43AAA(5), is that it would have the unfortunate consequence of preventing closed reasons from containing material which provides necessary meaningful context or collateral reasoning, which may inhibit the Tribunal’s ability to expose its reasoning process. There is no apparent reason for reading the scope of s 43AAA(5) down in that way.
195 Finally, and for completeness, the applicant’s interpretation of the open affidavit of the Director-General’s witness at  and the Tribunal’s comment about that paragraph in its reasons at  cannot be accepted. Paragraph 75 of the open affidavit was the last of nine paragraphs under the heading “The Applicant’s support for politically motivated violence and ISIL”. The first eight of those paragraphs in the affidavit addressed open evidence. The ninth of those paragraphs stated that this was not the limit of the evidence relied upon by stating, predictively, that “[t]he assessment of the applicant’s support for politically motivated violence and ISIL is also supported by material which will be the subject of a classified affidavit”. The next heading in the affidavit was “The applicant’s employment of communications security and tradecraft practices”, followed by six paragraphs on that topic. While those six paragraphs are silent on whether the applicant’s employment of communications security tradecraft practices were also the subject of the closed affidavit, this is an insufficient basis to infer that they were not.
196 The Tribunal’s reasons at , namely that “[t]he open affidavit of the Director-General’s witness discloses at paragraph 75 that the assessment of the applicant’s support for politically motived violence and ISIL is also supported by material which will be the subject of a classified affidavit” does not go further than reproducing the substance of the open affidavit at . As such it is intractably neutral as to whether the witness’s classified affidavit ultimately did or did not address the applicant’s employment of communications security tradecraft practices. The applicant’s submission to the effect that this evidence establishes that the closed reasons were confined to consideration of the first basis for the AVA, being the applicant’s support for PMV and ISIL, and were not concerned with the second basis for the AVA, being the employment of communications security tradecraft practices, therefore cannot be accepted.
197 The applicant asks the Court to scrutinise the closed reasons to ascertain whether they either expose a defect in the Tribunal’s open reasons, or the legal sufficiency of the Tribunal’s conclusion, that the ASA was justified in relation to the issue of the communications security tradecraft practices. That request was appropriate given the limitations on the material the applicant and his lawyers had access to. We have considered the closed reasons and are satisfied that there was no defect in the closed reasons of the kind identified by the applicant, including that there was no failure to comply with the obligation in s 43(2B), as applied in the context of s 43AAA(2).
198 We do not accept that there was an obligation imposed upon the Tribunal to identify in its open reasons whether or not it concluded that that ASA was justified upon the basis of the applicant being a direct or indirect risk to security because he supported PMV or because he employed communications security tradecraft practices while engaging with individuals of security concern, or because of both reasons.
199 These grounds of appeal must therefore fail.
Ground 2(b) – failure to make findings on unchallenged evidence
200 The Tribunal heard evidence from a Catholic priest and from the applicant’s wife. The substance of this ground is that this evidence was not challenged in cross-examination, and that the Tribunal had an obligation to make findings on such unchallenged evidence. The applicant contends that a range of appellate authority in this Court required the Tribunal to give active consideration to this evidence, and in particular, unchallenged evidence had to be adequately considered in the reasons, and not merely noted or summarised or made the subject of a general assertion that full consideration had been given to material described in global terms, citing Carrascalao v Minister for Immigration and Border Protection  FCAFC 107; 252 FCR 352 at  (said to be in contrast to Minister for Immigration v SZRKT  FCA 317; 212 FCR 99 at -), Minister for Home Affairs v Omar  FCAFC 188; 272 FCR 589 at , DQM18 v Minister for Home Affairs  FCAFC 110 at - and Sullivan v Civil Aviation Safety Authority  FCAFC 93; 226 FCR 555 at .
201 Those authorities indicate that a failure to address particular evidence may constitute an error, but the failure to refer specifically to such evidence does not inevitably lead to that conclusion. It very much depends on content and context, and the question of whether the treatment that it is asserted the evidence should have received could realistically have made a difference, including in this case by reference to evidence that has not been disclosed to the applicant.
202 The priest’s written statement dated 15 January 2019 included evidence that he had been a regular visitor to the [REDACTED] Immigration Detention Centre since about 1997. He gave oral evidence on 5 May 2019, by which time he had known the applicant for about eight months (a reference in his statement to 18 months would seem to be an obvious slip or typographical error on his part).
203 The evidence of the priest in his written statement was that since about September 2018, which was after the applicant had been taken into immigration detention at the end of August 2018 following the cancellation of his visa, the applicant had regularly attended Catholic services and informal gatherings that take place afterwards. His evidence was that the applicant displayed what he believed to be a genuine human interest in the Christian religion, without him ever suggesting that he was thinking of converting from Islam. The applicant struck him as friendly, intelligent and sincere, showing no tinge of sectarian hatred for people of other religions, and no interest in the violent pursuit of any ideological or religious ideals. He had not seen the applicant attend a Muslim prayer group, which was held not far from the Catholic group.
204 The priest also described in his written statement that the allegation that the applicant supports PMV was at odds with his personal assessment. He found it convincing that the applicant used an encrypted messaging service because he was concerned for the welfare of his brother in Syria and there was no other means of communicating with him, and that he had destroyed the phone used for the messaging after his relatives were arrested and charged with terrorism offences because of a fear that he might be thought to be involved. He also found it credible that the applicant passed on an audio recording of a speech or sermon delivered by a relative in Syria to another relative in Australia without listening to it.
205 The priest’s statement was tendered at an open hearing of the Tribunal. He also gave supplementary oral evidence-in-chief that the applicant had sought to be baptised. Counsel for the Director-General did not ask any questions of the priest. The presiding deputy president asked a few questions of no great moment beyond confirming that the priest first got to know the applicant at the detention centre.
206 The applicant’s wife’s statement as relevant to this ground of appeal provided evidence to the effect that she, who was born in Australia of Lebanese descent, met the applicant in Lebanon. They are distant relatives and therefore have relatives in common. She was not sure about his proposal of marriage because she did not want to miss out on education and having a life and career of her own as is usual in traditional Lebanese society. However, he assured her that he wanted her to carry on with her education and career. They got engaged in April 2008 and married in Australia in March 2010.
207 The wife’s statement also set out that in all the time she had known the applicant in Lebanon and in Australia, she had never seen any indication that he could be involved in terrorism or violence of any kind. At the time that he asked her to marry him, other family members and acquaintances tried to tell her and her parents that they should not agree to marriage because he was not very religious, did not go to the mosque or pray, and had Christian friends with whom he went to parties and to the beach and elsewhere. The applicant had continued to have more of an interest in music and enjoying life than in religion. Unlike strict Muslims, the applicant celebrates birthdays. Further, unlike even moderate Muslims who forbid gambling, she had put scratchies (a form of gambling) in birthday balloons for his birthday in 2017.
208 The applicant’s wife said he participates in Christmas celebrations and does not care about other Muslims criticising his behaviour. She said that he had shown an interest in Christianity in immigration detention. She could not believe he was accused of supporting PMV, or that anyone who knew him could think he was interested in any sort of violence, or had any interest in people who call themselves Muslim and just want to hate and kill in the name of the religion, like a relative of both of them who is in Syria and apparently supports ISIL. She was told that he had been sent a sermon given by this relative, but she does not believe he listened to it because he would not have been interested, and had previously deleted such a recording when sent to him by [REDACTED].
209 In relation to the applicant destroying the convert phone when their relatives (including [REDACTED]) were arrested for terrorism offences, she believed that he was scared by the arrests and by being brought in for questioning.
210 The wife’s statement was tendered at an open hearing of the Tribunal. She also adopted a further statement and some photographs. She specifically confirmed various aspects outlined above, providing additional information to similar effect, including that the applicant in his job worked with pork and bacon, which she should have been against as a Muslim herself. She gave oral evidence, including by reference to the photographs, which reinforced her evidence that the applicant was not someone who would ever support PMV or was a religious person, but rather respected her rights to do as she chose, and continued to like music and gambling. Everything about the way she and the applicant lived was “haram”, meaning forbidden or not accepted, in the eyes of the relative referred to above, or three-quarters of her family.
211 The presiding Deputy President asked the applicant’s wife some questions, as did the other Deputy President and the Senior Member, but these mostly do not relate to the aspects of her evidence now relied upon. The presiding Deputy President asked her about the scope of what was “haram”, and to confirm she was present when the applicant had deleted a recording of a sermon sent to him by [REDACTED], with the applicant questioning why [REDACTED] was sending such material to him, describing it in pejorative terms. She was asked whether she had ever heard a sermon by the relative referred to above other than on this occasion in a recording played on a phone. She was also asked about her travels to Lebanon. In answer to a question by the other Deputy President, she said that if anyone in ISIS could get to her or the applicant, they would undoubtedly kill them as low-level Muslims. She said that they (in context, she and the applicant) were very scared of ISIS.
212 Counsel for the Director-General asked the applicant’s wife a limited range of questions in cross-examination, which included her confirming that she had no idea that [REDACTED] was involved in terrorism or [REDACTED] before he was arrested. She described [REDACTED] as praying and being strict about his “appointments with God”, and that he had been on a pilgrimage, contrasting that with not being able to say when she or the applicant had last prayed and that she did not know the five pillars of Islam. She confirmed that [REDACTED] had not objected to the way she dressed.
213 The applicant submits that he relied upon the evidence of these two witnesses to demonstrate that he did not share any “ideology of security concern with his family members”, a phrase extracted from the revised statement of grounds at , which concludes the part dealing with communications security tradecraft practices. In that paragraph, it was recorded that ASIO had considered familial relationships between the applicant and relatives involved in terrorism activity, acknowledging that communications between those individuals was neither unexpected, nor necessarily of security concern. That paragraph goes on to state:
However, on the basis of [the applicant’s] support for PMV and ISIL, his sharing of pro-ISIL material amongst ISIL affiliated family members, his use of the covert phones to undertake communications with individuals of security concern, and his provision of inaccurate information to ASIO in relation to his activities, ASIO assesses it is likely [the applicant] shares an ideology of security concern with his family members and is supportive of ISIL and his Syria-based family members’ activity with ISIL.
214 The applicant submits that had the Tribunal rejected evidence now relied upon as not having been the subject of findings, or found that it was outweighed by other evidence, including evidence not available to him, it would have been easy to have said so without revealing the nature or source of the closed evidence. However, he submits the Tribunal’s open reasons merely noted the evidence and did not adequately link it to the findings. That part of the Tribunal’s reasons is as follows, which the applicant does not contest, as opposed to submitting that it does not go far enough:
 A Catholic priest told us that the applicant has regularly attended services which he has conducted at the place where the applicant has been in detention, and informal gatherings afterwards, and that he gained a good impression of the applicant, and his veracity, and that he does not believe that the applicant supports politically motivated violence.
 The applicant’s wife who is an Australian citizen, born in Australia, and who is a teacher, gave evidence before us. She has been married to the applicant for more than nine years. Until detained, he was in gainful employment. She said he is not a very religious Muslim, and she has never seen any indication that he supports politically motivated violence. He had Christian friends in Lebanon and celebrates his birthday, unlike religious Muslims. In her oral evidence, she said that neither she nor her husband go to the mosque, and that her husband is a fanatic of music and loud speakers, and goes out partying with his mates. She herself wears a head scarf but wears pants and stiletto heels. She says that her husband gives her the confidence to do whatever she likes, that the applicant is not an extremist Muslim, and is open minded about other faiths. She confirmed various aspects of the applicant’s evidence, and said that she and her husband were both “low level” Muslims.
215 The Director-General describes the reference to the evidence of the priest and the applicant’s wife as “unchallenged” as being inapt. That is said to be because, while the contention that the applicant did support PMV was a central aspect of the ASA, and was supported by evidence, the extent of the challenge that was possible has to be assessed in light of the statutory framework for this particular species of judicial review. In particular, the applicant did not have access to all the evidence and the Minister’s non-publication certificates prevented closed evidence being put to those witnesses. The burden of this submission is that the absence of a challenge to the evidence of these two witnesses cannot be properly assessed given those constraints, and therefore cannot be assumed to have the same significance that it might otherwise have.
216 The Director-General submits that in any event, the need to make positive findings depends on the circumstances. Not all evidence is required to be referred to, citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs  FCAFC 184; 236 FCR 593 at . Further, the necessity to make positive findings in order to demonstrate that there has been an active intellectual consideration of material depends on its nature and content, citing Omar at . In that regard, the Director-General’s open closing submissions asserted that the evidence of the priest and the applicant’s wife was of little, if any weight, because:
(1) the priest had no contact with the applicant prior to the ASA, and only limited contact after he was in immigration detention for some eight months, so could not and did not give evidence as to the applicant’s conduct prior to detention;
(2) the fact that the applicant’s wife gave evidence that the applicant did not hold or express the beliefs described in the ASA was not surprising, especially in light of her evidence that she was not aware of [REDACTED]’s terrorist activities, and maintained he was not an extremist like the other relative referred to, yet [REDACTED] was found guilty by a jury of [REDACTED].
217 Thus it was, on the Director-General’s argument, open to the Tribunal to accept the evidence of the priest and the applicant’s wife as far as it went, without that being an impediment to the conclusion reached that the ASA was justified. In the case of the applicant’s wife, her evidence was necessarily limited to what he had chosen to share with her.
218 The applicant responds to the Director-General’s submissions by pointing out that not only was it not put to his wife that she was lying, but it was also not put to her that she may not know certain things about the applicant. The obligation to do at least the latter is not discharged by pointing to the manner in which the Director-General addressed that evidence. The applicant therefore submits that, while it is for the Court to decide whether the combined effect of the open and closed Tribunal reasons is that it met its obligation to give meaningful consideration to that material, such consideration is not apparent from the open reasons.
219 The competing arguments call for a careful consideration of the open reasons first, and then of the combined reasons. The Director-General’s arguments are to be preferred, largely upon the basis that the scope for any challenge to the evidence of the priest and applicant’s wife would have been practically confined to pointing to the obvious limitation to that evidence, as reflecting no more than what the applicant chose to convey to them. Cross-examination to make such an obvious and largely irrefutable point was of little or no real value.
220 While, as mentioned above, a beneficial reading of the Tribunal’s open reasons may not be so readily deployed in a case such as this, it is important to note that the summary of the evidence of the priest and the applicant’s wife at - of the open reasons reproduced above at  contains a concise and reasonably accurate precis of the key aspects of that evidence. In the circumstances, that was a sufficient acknowledgement of that evidence, with no suggestion that it was regarded as untruthful or otherwise not accepted as an accurate statement of what those two witnesses knew about the applicant’s state of mind and the beliefs he held, as opposed to that knowledge necessarily reflecting the complete situation. That is not an unfamiliar situation in litigation more generally. Witnesses can only depose to what they know, including what they have heard, seen, and perhaps perceived and inferred.
221 The appropriate way to read the Tribunal’s summary of this evidence is that it was material that the Tribunal did take into account, and gave some limited weight by referring to it. In context, that evidence contributed to the conclusion that the Tribunal was not able to form a view as to whether the ASA was justified based only upon the evidence led in open session, which necessarily included the evidence of the priest and the applicant’s wife. In that context, and with the benefit of that finding, we are not satisfied that the Tribunal erred by going no further, and not making any positive finding about that evidence, given the limitations on doing so, including the very real limitations in challenging those witnesses by reference to the most salient material upon which the finding that the ASA was justified was based. On the totality of the open and closed reasons, we are satisfied that there was no error in the Tribunal going no further in the open reasons.
222 It follows that this ground of appeal must fail.
Ground 3 – denial of procedural fairness
223 The revised statement of reasons at  contained an ASIO assessment that the applicant likely used the covert phone to receive and pass ISIL material to ISIL-affiliated family members, and provided inaccurate information at security assessment interviews conducted on 28 March 2018 and 6 August 2018 because he was concerned that the content of an audio file that he had received and forwarded to a relative would adversely affect his citizenship application. The audio file in question was a pro-ISIL khutbah or sermon, recorded by an uncle who was an ISIL leader based in Syria. At all times, the applicant has denied listening to the khutbah.
224 The Tribunal’s open reasons on this topic are as follows at :
It was put to the applicant in the first ASIO interview that he had sent his Australian-based uncle an audio file of a pro-ISIL khutbah or sermon praising the Caliphate and Islamic State and asking for martyrdom for God’s sake. The applicant said that he did not send the audio file to his uncle and at times that he did not recall it. During the second interview with ASIO he admitted having had a Samsung phone connected by Wi-Fi and disposed of it after the arrest of Australian relatives. He admitted sending the khutbah to an Australian uncle. The terms of the sermon were found on the uncle's phone and received into evidence before us. The applicant denied that he had listened to the khutbah.
225 During the course of the ASIO interview with the applicant, he was asked about an exchange of text messages with one of his uncles in Australia. The exchange of text messages was read out by the interviewer. The relevant passage is in the open court book. This was the part of the interview in which, as the applicant later admitted, he had lied about not having a third phone, being the covert phone. The text conversation that was contained in the questioning, set out for ease of reading in conversation format by reference to the sender, was as follows:
Uncle: “Hello, uncle, did you send me anything on the second phone?”
Applicant: “Hello, uncle, yes, uncle, open it and listen to it.”
Uncle: “What is that, it is not opening. Okay. It is opened, this is new khutbah.”
Applicant: “Friday, uncle in Ramadan.”
Uncle: “Mashallah, may Allah protect. Did you ask about them?”
Applicant: “Strong mashallah.”
Uncle: “I am listening.”
Applicant: “Hamdullah, they are well, but the situation is a bit hard.”
Uncle: “Of course.”
226 The applicant was cross-examined on the fourth day of the open Tribunal hearing, mostly through an interpreter, about his dissemination of the khutbah, including whether he had listened to it. He was asked about the above text conversation with his uncle, to whom he had ultimately admitted sending the khutbah, by reference to the interview and the above rendering of the text conversation. During the course of that cross-examination, the following questions were asked and answers given, with the transcript of the interview being in front of the applicant (noting he had also been asked about that text conversation earlier that day:
MR HERZFELD: And you then texted him, “Strong. Masha’allah.”
INTERPRETER: I don’t know how – how do you explain the word “strong” in English.
WITNESS: Yeah but, (foreign language spoken).
INTERPRETER: It’s not necessary to use that word – “strong.” It’s enough to say, “Good. Masha’allah.” If God wishes.
WITNESS: (Foreign language spoken) “I’m – I’m all right.” (Foreign language spoken)
INTERPRETER: You can say, “Good.”
WITNESS: (Foreign language spoken) “strong.” I don’t know. I didn’t say “strong.”
INTERPRETER: I didn’t say the word “strong.” You put it here.
MR HERZFELD: So how do you remember you responded?
INTERPRETER: “Good. Thank God.”
WITNESS: But on the Arabic, (Foreign language spoken).
INTERPRETER: “Good. Thank God.” You interpret the word “good” for the word “strong.”
MR HERZFELD: And were you commenting on the khutbah?
INTERPRETER: I’m not commenting about the khutbah in this sentence.
MR HERZFELD: Yes. So [your uncle] says, “Masha’allah, may Allah protect. Did you ask about them?”
MR HERZFELD: And you say, “Strong,” or, “Good”
MR HERZFELD: And you say that that was not about the khutbah. That was answering [your uncle]’s question. Is that right?
227 A short time later, the applicant was asked a number of questions by the presiding Deputy President:
DEPUTY PRESIDENT: Do you remember what it was that you sent him that he was listening to? Do you remember what it was that he was listening to, which you had sent him?
INTERPRETER: I swear to God, I don’t know what in it, I don’t know anything about it.
DEPUTY PRESIDENT: Why did you send it to him?
INTERPRETER: When my brother was talking to me, he told me, “This is a khutbah about Ramadan.” And he told me the Internet shop will close down, and I am leaving now. I have no time to do it. “You send it to my uncle.”
228 After questions from the presiding Deputy President confirming which uncle it was that the audio recording had been sent to, the cross-examination by counsel for the Director-General resumed as follows:
MR HERZFELD: Do you – I withdraw that. When you said, “strong masha’allah”, or “good”, or - - -
WITNESS: I don’t say strong. I don’t say strong. Strong (Foreign language spoken.) in Arabic.
INTERPRETER: Yes, strong means [the phrase ‘Arabic word’ followed by a timestamp appears in the transcript] in Arabic.
WITNESS: When I said on this message, text message, I said (Foreign language spoken.)
INTERPRETER: I got masha’allah, I got – that’s what I said.
MR HERZFELD: And I am suggesting to you that you were commenting on the khutbah.
INTERPRETER: I am commenting on the people he is asking about, not about the khutbah.
229 The cross-examination continued, and it was put to the applicant that it was his next answer that was a response to the question the uncle had asked about other people, rather than this answer. The applicant responded that both the answer he was being cross-examined on and the next answer were in response to his uncle’s question. The applicant again asserted that he had not listened to the khutbah and had not commented upon it in the texts to his uncle. He said that he had not referred to the khutbah as being either “strong” or “powerful”, saying that was what his uncle had said about it. He was then asked further questions by the presiding Deputy President:
DEPUTY PRESIDENT: You see, it was being put to you that these are texts you sent and he sent, and that in a text you sent, it is being put to you, you said, “strong, masha’allah.” See, that’s what’s being put to you, not that he said it, but that you said it.
INTERPRETER: There is a difference between strong and good, masha’allah. And I don’t know how they explained it or they interpreted it.
230 The cross-examination then concluded, and after the luncheon adjournment, the presiding Deputy President asked the applicant to write down the word that he had used in Arabic. Through an interpreter, the applicant said that he had written down the Arabic word corresponding to “good”, which he said was similar to “not too bad” in Australian speech, but also said that he could not remember exactly what word he had written in the text he had sent in 2016. The interpreter rendered what was written into “good, thank God”.
231 The applicant relies upon the references in the passage quoted at  above to the word being used not being “strong” (or “powerful”) and instead to use the word “good”, suggesting that the translation used for the purposes of cross-examination may not have been an accurate rendering of the text message as sent in Arabic. This is said to give rise to a denial of procedural fairness by the applicant not being given access to either a copy of the original text messages as sent, or access to the untranslated original Arabic script of those messages.
232 This ground of review boils down to the proposition that nothing less than provision of the Arabic word used, suggested to mean “strong” or “powerful” based on the translation, or “good” on the applicant’s account, albeit with him saying he did not remember, was sufficient to afford him procedural fairness, and there was no evident reason why that Arabic script could not be provided to him.
233 The applicant also relies upon his solicitor raising this issue during the course of this cross-examination, and also in the applicant’s amended closing written submissions before the Tribunal. The applicant submits that if the original text message (and thus presumably its Arabic script in the alternative) was the subject of one of the Minister’s non-publication certificates, there may be a question as to how it could be that the translated words were able to be used. The short answer to that question is that the applicant was cross-examined by reference to what had been put to him at the ASIO interview.
234 The key doubt raised by the applicant is whether, in the context of the limitations imposed by the applicable restrictive statutory regime where there were both evidence and submissions put before the Tribunal which were not made available to the applicant, he had been given sufficient information to put him a fair position to be able to give any further evidence on the message he had sent and to make meaningful submissions on the question of whether he had listened to the khutbah and commented favourably upon it. In that regard he relies upon Jaffarie at ; and BSX15 v Minister for Immigration and Border Protection  FCAFC 104; 249 FCR 1 at . That is, he submits, the precise words allegedly used to describe the khutbah were in issue and he was therefore denied the opportunity to address that as a possible reason relied upon to affirm the ASA. This submission is maintained in reply to the Director-General’s contrary submissions considered below.
235 The core of the Director-General’s response is to refer to some of the detail that has been summarised above, and to submit that procedural fairness to the applicant could be accommodated by putting to him the substance of the contentions made about the message, citing Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs  HCA 72; 225 CLR 88 at . In VEAL, the Minister’s Department received an unsolicited letter that made allegations against one of two applicants for a protection visa. The letter was provided to the then Refugee Review Tribunal (RRT). The RRT did not tell that applicant about the letter, nor put the substance of the allegations made in it to him, instead stating in its reasons for affirming the refusal of the protection visas that it had been unable to test the allegations and gave them no weight.
236 The High Court in VEAL held that procedural fairness dictated that the RRT had to inform that visa applicant of the substance of the allegations made in the letter before making its decision, but it was not required to provide a copy of the letter or disclose information that may have revealed the identity of the author: see -. Based upon this reasoning in VEAL, the Director-General submits that as the applicant was confronted with the substance of what it was contended that he had written, had the assistance of an interpreter, and, while not remembering precisely what he had written, was given an opportunity to write down the word that he best remembered he had used in Arabic, the requirements of procedural fairness had been met. The Director-General also addressed this issue in closed submissions both orally and in writing.
237 Although it is not possible to identify what the closed material before the Court disclosed, nor necessary to do so in separate closed reasons, it can be observed that the closed submissions and evidence that were before the Tribunal enabled the Court to have a better appreciation of what had taken place in the open hearing, and why. Based only upon the open submissions and the material referred to above, it may be seen that the cross-examiner was willing to use the word “good” that was the applicant’s best recollection of what he had used in Arabic, as well as the words “strong” and “powerful”. All of these words were used as the basis of questions to the effect that, by the text message he had sent to his uncle, the applicant was commenting on the content of the khutbah, which the applicant maintained he had not listened to.
238 The proposition being put to the applicant was that he was commenting on the khutbah, not responding to a question about other people. He was squarely confronted with what was being said against him, namely that he had commented on the khutbah, which undoubtedly was heavily pro-ISIL by reason of the transcript in open evidence, and that to express any view about the khutbah necessarily led to the conclusion that he had listened to it and was supportive of it.
239 The primary point that the applicant was making in his evidence in opposition to that conclusion was that whatever word he had used, it was not directed to the khutbah. It has not been suggested that there was any difficulty occasioned by the use of the translation for the balance of the text message exchange. The question of whether or not what was said in the particular text message was directed to the khutbah, or something else, depended on the context of the adjoining text messages. Either the applicant was commenting upon the khutbah, or he was not. If he was so commenting, that supported an inference that he had listened to it, irrespective of the precise word used. That is sufficient to reject the assertion of a denial of procedural fairness. That obligation did not, in all the circumstances, require more to be done.
240 In any event, consideration of the closed submissions and evidence confirms that, to the extent that what took place might, contrary to the foregoing conclusion, have involved some denial of procedural fairness, this was authorised by the restrictive legislative regime and the way in which the proceedings were conducted before the Tribunal pursuant to that regime. We are additionally satisfied that there was no denial of procedural fairness having regard to that regime, including by considering the closed evidence and closed submissions.
241 This ground of appeal must therefore fail.
Ground 5 – decision not open on the evidence
242 The applicant brings this ground, recognising that it is impossible for him to make meaningful submissions in support of it because that would entail the impossible task of traducing closed evidence and submissions that he has not been permitted to see. In oral submissions for the applicant it was made clear that this ground was intended to assert illogicality or irrationality in the sense explained by Gummow A-CJ and Kiefel J and by Crennan and Bell JJ in their respective joint judgments in Minister for Immigration and Citizenship v SZMDS  HCA 16; 240 CLR 611, of not being based on “findings or inferences of fact supported by logical grounds”, quite properly acknowledging the considerable obstacles to success on such a ground. Correspondingly, the Director-General has addressed this ground solely by reference to the closed material and closed submissions to which the applicant has not been placed in a position to respond. The burden of determining this ground therefore falls on this Court unaided by a contradictor.
243 At the open appeal hearing, senior counsel for the Director-General addressed the Court by reference to the Tribunal’s closed reasons, breaking them into four categories and identifying key material in the closed evidence supporting each category. Each category amounted to findings on what was material to the conclusion that the ASA was justified for both of the reasons relied upon in the revised statement of grounds and each identified the evidence upon which such findings were based. One aspect was then addressed in closed oral submissions in the absence of the applicant and his lawyers. We emphasise that the purpose of this closed hearing was largely to assist the court in navigating and understanding the material.
244 We have carefully considered the evidence thereby identified, placed in the context of the open evidence and submissions, which has also been examined. Each of the four matters individually, and thus all four of them collectively and cumulatively, have a foundation in the evidence that was before the Tribunal that was logically probative of the individual conclusions reached, as well as the collective and cumulative conclusions reached.
245 In short, far from there being no evidence for both the intermediate and ultimate conclusions reached, there was ample evidence. The conclusion that the ASA was justified cannot be vitiated upon this basis.
246 It follows that this ground too must fail.
247 As all of the grounds of appeal have failed, the appeal must be dismissed with costs.
I certify that the preceding two hundred and seven (207) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromwich and Abraham.
Dated: 9 April 2021