Federal Court of Australia

MJZP v Director-General of Security [2026] FCAFC 127

ORDERS

THE COURT ORDERS THAT:

1.    The questions listed for separate hearing by the orders made on 2 December 2025 and 8 May 2026 (the validity of certificates questions) be answered as follows:

(a)    Q1: “No”.

(b)    Q2: “No”.

2.    The applicant have leave to file a further amended notice of appeal from a tribunal in the form annexed to its interlocutory application filed on 7 May 2026.

3.    The question referred to in the orders made on 8 May 2026 as the “Refusal of Consent Question” be answered “No”.

4.    The applicant have leave to raise the additional grounds of appeal and additional questions of law set out in the annexure to its written submissions in reply filed on 17 July 2026.

5.    The proceedings in NSD1056/2023 and NSD1692/2025 be dismissed.

6.    The applicant pay the respondents’ costs of the appeal as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    INTRODUCTION

1    This is an appeal from a decision of the (then) Administrative Appeals Tribunal (the Tribunal) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The questions for determination in the appeal include important questions of law relating to national security, the rights of persons who are the subject of adverse security assessments and the administration of justice. Determination of the appeal has involved consideration of sensitive information, with the result that non-publication orders were made in September 2025 preventing, inter alia, the disclosure of the applicant’s identity. Additionally, it has been necessary for us to review classified materials that are not permitted to be disclosed to the applicant and its legal representatives. We have drafted these reasons so as not to disclose any of these matters. We have not found it necessary to write separate “closed” reasons.

2    The applicant is a carriage service provider within the meaning of s 87 of the Telecommunications Act 1997 (Cth) (the Telecommunications Act). On 28 June 2021 the first respondent, the Director-General of Security (the Director-General), furnished an adverse security assessment (ASA) to the second respondent, the Minister for Home Affairs (the Minister), under s 38A of the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act). The ASA recommended that the Minister give a direction under s 315A of the Telecommunications Act requiring the applicant to cease supplying carriage services in Australia.

3    The applicant applied to the Tribunal on 6 August 2021 for a review of the ASA under s 54(1) of the ASIO Act and sought a stay on the ASA. The Director-General indicated he did not oppose the stay being granted if the application for review was heard within four to six months. On 24 August 2021, the Tribunal made an order staying the operation of the ASA until its review was finalised.

4    It is common ground that the Tribunal was required to conduct that review in its Security Division and in accordance with Division 4 of Part IV of the AAT Act. Relevantly, for the purpose of such a review, ss 39A and 39B of the AAT Act empowered the “ASIO Minister” (who is also, and was at all relevant times, the Minister for Home Affairs) to certify that certain information was not to be disclosed to anyone (including the applicant) other than the members constituting the Tribunal. The Minister issued four written certificates under ss 39A(8) and 39B(2) (collectively, the certificates) in relation to certain documents and/or information (the certificated materials). The result was that the proceeding before the Tribunal was conducted partly in closed session and the applicant and its representatives were not present for those parts of the hearing or allowed access to the certificated materials.

5    The first three certificates were issued by the Honourable Karen Andrews MP, who was then the relevant Minister, and the fourth certificate was issued by the Honourable Clare O’Neil MP, who had by that time become the relevant Minister.

6    On 23 August 2023, the Tribunal affirmed the decision under review and gave both open reasons and confidential reasons for doing so. The confidential reasons refer in some detail to the certificated materials and have not been made available to the applicant or its legal representatives.

7    This proceeding was commenced by the filing of a notice of appeal from a tribunal on 19 September 2023. As mentioned earlier, it was commenced under s 44(1) of the AAT Act. The AAT Act has since been repealed. However, the powers of the Court in this appeal continue to be governed by s 44 of the AAT Act: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), Sch 16 item 25. We will refer to provisions of the AAT Act in so far as they continue to apply to this proceeding in the present tense.

8    We note that, after this appeal was commenced, its hearing was delayed pending the resolution of an application by the applicant for a special case to be heard in the High Court. That application was dismissed in August 2025: MJZP v Director-General of Security [2025] HCA 26; 99 ALJR 1108 (MJZP HCA).

9    The applicant’s grounds of appeal were largely set out in its amended notice of appeal filed on 8 December 2025 (the notice of appeal). Grounds 1A to 1E in the notice of appeal raised questions as to whether the applicant had been denied procedural fairness because the certificates, which had been acted upon by the Tribunal so as to deprive the applicant of access to relevant material, were invalid (the validity of certificates questions).

10    On 7 May 2026, the applicant filed an interlocutory application seeking leave to amend the notice of appeal further so as to raise a further question for determination referred to as the refusal of consent question. The parties agreed that certain preliminary questions, including whether the applicant should have leave to raise the refusal of consent question, should be heard and determined prior to the hearing of the other questions in the appeal. On 8 May 2026, the Court made orders including the following.

2.    On or before 19 May 2026, the applicant must file and serve a document identifying any mechanisms that it will contend should be adopted in the present case to provide procedural fairness in relation to matter that has been certificated under ss 39A(8) and 39B(2) of the [AAT Act].

3.    The following matters be heard and determined by the Full Court in Sydney on 27 and 28 July 2026, with an estimate of two days:

3.1.    which, if any, of the mechanisms identified by the applicant pursuant to Order 2 should be adopted in the present case;

3.2.    the Validity of Certificates Questions;

3.3.    the applicant’s interlocutory application dated 7 May 2026; and

3.4.    subject to the outcome of the applicant’s interlocutory application dated 7 May 2026, the Refusal of Consent Question.

11    The document filed by the applicant on 19 May 2026 pursuant to order 2 above set out proposed procedural fairness mechanisms as follows.

2.    First, the Court should direct the respondents to give the applicant the “gist” of the certificated matter, so far as it is possible to do so without disclosing the certificated matter.

3.    Secondly, the mere filing of the certificated matter by the respondents does not mean that that matter is in evidence in this proceeding. Rather, the certificated matter must also be tendered by the respondents and admitted into evidence by this Court.

4.    When the respondents seek to tender the certificated matter contained in the Confidential Appeal Book, the Court should indicate that the certificated matter will be admitted only if the respondents provide the certificated matter to:

4.1    the applicant’s legal representatives, on a confidential basis; or

4.2    alternatively, a “special counsel”, being a member of counsel with an appropriate security clearance.

5.    Thirdly, if the Court does not impose any condition on the admission of some or all of the certificated matter, then it ought to consider whether some or all of that evidence should be excluded (pursuant to the implied power of the Court to prevent an abuse of process or the power in s 135 of the Evidence Act 1995 (Cth) [Evidence Act]) or the subject of a use limitation under s 136 of the Evidence Act.

(Original emphasis.)

12    The issues identified in order 3 of the orders made on 8 May 2026 were the subject of oral submissions on 27 and 28 July 2026.

13    On 6 August 2026 during a hearing, we informed the parties of our conclusions on the preliminary questions as follows.

This is just to let the parties know what the decisions are in respect of the relevant questions from the last hearing. The Court grants leave for the applicant to file an amended notice of appeal containing the grounds identified in the in the interlocutory application dated 7 May 2026 and the additional grounds identified in the schedule to its written submissions in reply.

In respect to the first two questions that were referred initially, the answer to each question is “no”. In respect to the new three questions that arise out of the amended grounds, the answer to each of those questions, to (a), (b) and (c) is “no”.

The Court concluded that the material before the Tribunal is not required to be tendered in this Court before the Court can consider the material in relation to the application before it. The Court also is not going to order any of the procedural mechanisms sought by the applicant.

The reasons for those decisions will be in the final judgment.

14    The remaining issues in the appeal, which constituted the applicant’s substantive grounds challenging the reasoning of the Tribunal, were heard on 17 August 2026.

15    Part 2 of these reasons mentions relevant features of the statutory framework in which the Tribunal’s decision came to be made. Parts 3, 4 and 5 set out our reasons for the conclusions that we conveyed to the parties on 6 August 2026. Part 6 set outs our reasoning in relation to the remaining aspects of the appeal which were heard on 17 August 2026.

16    For the reasons set out below the appeal must be dismissed.

2    THE APPLICABLE STATUTORY FRAMEWORK

17    The questions raised for determination in the appeal require an assessment of the interaction between the Telecommunications Act, the ASIO Act and the AAT Act at the relevant time.

2.1    The Telecommunications Act

18    The Telecommunications Act provides, among other things, that a person who supplies, or proposes to supply, a listed carriage service to the public using a network unit is to be a carriage service provider for the purposes of that Act: s 87(1). Subject to the terms of the applicable legislative instrument, a carriage service provider is thereby authorised to supply various forms of carriage services to the public: s 88.

19    Part 14 of the Telecommunications Act (which is headed “National interest matters”) includes, in Division 5, provisions conferring power on the Minister to give written directions to carriage service providers. Relevantly here, s 315A provides as follows.

315A Direction if use or supply of carriage services prejudicial to security

(1)    If:

(a)    a person who is a carrier or carriage service provider proposes to use, or uses, for the person’s own requirements or benefit, or proposes to supply, or supplies, to another person, one or more carriage services; and

(b)    the Home Affairs Minister, after consulting the Prime Minister and the Minister administering this Act, considers that the proposed use or supply would be, or the use or supply is, as the case may be, prejudicial to security;

the Home Affairs Minister may give the carrier or carriage service provider a written direction not to use or supply, or to cease using or supplying, the carriage service or the carriage services.

(2)    A direction under subsection (1) must relate to a carriage service generally and cannot be expressed to apply to the supply of a carriage service to a particular person, particular persons or a particular class of persons.

Direction to be given after adverse security assessment

(3)    The Home Affairs Minister must not give a carrier or carriage service provider a direction under subsection (1) unless an adverse security assessment in respect of the carrier or carriage service provider is given to the Home Affairs Minister in connection with this section.

Copy of direction to be given to ACMA

(4)    The Home Affairs Minister must give the ACMA a copy of any direction under subsection (1).

Compliance with direction

(5)    A person must comply with a direction given to the person under subsection (1).

Definitions

(6)    In this section:

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

20    As will be apparent from subsections (1) and (3), the power to give a direction under s 315A arises if (a) the Minister has been provided with an ASA “in connection with this section”, and (b) the Minister (after conducting the relevant consultations) considers the relevant use or supply would be “prejudicial to security”.

21    Section 315A(6) picks up the definition of “security” in s 4 of the ASIO Act, which is as follows:

security means:

(a)    the protection of, and of the people of, the Commonwealth and the several States and Territories from:

(i)    espionage;

(ii)    sabotage;

(iii)    politically motivated violence;

(iv)    promotion of communal violence;

(v)    attacks on Australia’s defence system; or

(vi)    acts of foreign interference;

whether directed from, or committed within, Australia or not; and

(aa)    the protection of Australia’s territorial and border integrity from serious threats; and

(b)    the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).

2.2    The ASIO Act and ASAs

22    The Director-General is the holder of a statutory office created by s 7 of the ASIO Act. Under s 8(1) of that Act, ASIO is under the control of the Director-General.

23    The furnishing of security assessments by the Director-General to Commonwealth agencies is governed by the ASIO Act. Section 37(1) of the Act provides that the functions of ASIO include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.

24    An ASA is defined by s 35(1) of the ASIO Act to mean 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.

25    Section 37(2) of the ASIO Act requires an “adverse or qualified security assessment” to be accompanied by a statement of the grounds for that assessment (which is deemed to be part of the assessment) and requires that statement to contain:

all information that has been relied on by [ASIO] in making the assessment, other than information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security;

26    Section 37(5) provides that no proceedings, other than an application to the Tribunal under s 54 of the ASIO Act, are to be brought in any court or tribunal in respect of the making of an assessment or anything done in respect of an assessment in accordance with the Act.

27    Section 38A of the ASIO Act applies specifically where adverse or qualified security assessments relate to the Telecommunications Act or the security of critical infrastructure, including where an assessment is given to the Minister in connection with s 315A of the Telecommunications Act. Section 38A(2) and (3) provide as follows.

(2)    Within 14 days after receiving the assessment, the Minister must give to the assessed person a notice in writing, to which a copy of the assessment is attached, informing the assessed person of the making of the assessment and containing information, in the form prescribed for the purposes of subsection 38(1), concerning his or her right to apply to the Tribunal under this Part.

(3)    If the Minister is satisfied that the assessment contains any matter the disclosure of which would be prejudicial to the interests of security, then the Minister must exclude that matter from the copy provided under subsection (2).

28    Division 4 of Part IV of the ASIO Act sets out the rights of a person to seek a review of security assessments. Section 54(1) provides that an application may be made to the Tribunal for a review of an adverse or qualified security assessment. In addition, s 54(2) provides for a review of the findings of the Tribunal (at any time after the completion of a review by the Tribunal) on the ground that “the applicant has fresh evidence of material significance that was not available at the time of the previous review”. Section 61 provides that any findings of the Tribunal shall be treated, to the extent that they do not conform with the assessment, as “superseding that assessment”. Section 64 provides that where the Tribunal has made findings upon a review of the relevant assessment, ASIO shall not make a further assessment in respect of the person concerned that is not in accordance with the Tribunal’s findings except on the basis of evidence which was not available at the time of the review.

2.3    The AAT Act

29    Specific provisions applied to the review of security assessments under the AAT Act.

30    At times relevant to the Tribunal’s review of the ASA in the present case, ss 39A and 39B relevantly provided 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.

Parties

(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.

…

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.

...

Security/defence certificate

(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.

39B Certain documents and information not to be disclosed in Security Division review of security assessment

Scope

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

ASIO Minister may issue public interest certificate

(2)    If the ASIO Minister certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest:

(a)    because it would prejudice security or the defence or international relations of Australia; or

(b)    because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or

(c)    for any other reason stated in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the contents of the document should not be disclosed;

the following provisions of this section have effect.

Protection of information etc.

(3)    A person who is required by or under this Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement, but the Tribunal must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure:

(a)    that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding; and

(b)    in respect of a document produced to the Tribunal—that the document is returned to the person by whom it was produced.

(4)    Subsection (3) does not apply in relation to disclosure to the Director-General of Security or his or her representative if the reason stated in the certificate is the reason referred to in paragraph (2)(a).

Disclosure of information etc.

(5)    If:

(a)    the ASIO Minister has certified in accordance with subsection (2) that the disclosure of information or of the contents of a document would be contrary to the public interest but the certificate does not state a reason referred to in paragraph (2)(a) or (b); and

(b)    the presiding member presiding is satisfied that the interests of justice outweigh the reason stated by the ASIO Minister;

the presiding member may authorise the disclosure of the information, or of the contents of the document to, the applicant.

…

Disclosure of information etc. to staff of Tribunal

(7)    This section does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal’s staff in the course of the performance of his or her duties as a member of the Tribunal’s staff.

Public interest

(8)    This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding.

Copy of document

(9)    If the ASIO Minister has given a certificate under subsection (2) in respect of a document, this section applies in relation to a document that is a copy of the first-mentioned document as if the copy were the original document.

Certificate lodged under section 38A(1)

(10)    For the purposes of this section, if the Director-General of Security, in accordance with subsection 38A(1) has lodged with the Tribunal a certificate of the ASIO Minister given under subsection 38(2) of the Australian Security Intelligence Organisation Act 1979, the certificate is taken to be a certificate certifying to the Tribunal that the disclosure of the information to which the certificate relates would be contrary to the public interest because it would prejudice security.

Duty of Tribunal

(11)    It is the duty of the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.

31    For most purposes, the Tribunal’s decision-making powers were set out in s 43(1) as follows.

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

32    Other provisions in s 43 dealt with the Tribunal’s obligation to give reasons and notification to the parties. Section 43(5A) and (5B) provided for the time when the Tribunal’s decision was to “come into operation” and s 43(6) provided that a decision as varied by the Tribunal or a decision made by the Tribunal in substitution for the primary decision was to be deemed to be a decision of the primary decision-maker.

33    However, s 43 was expressed by subsection (1A) to be “subject to section 43AAA and to subsection 65(3) of the [ASIO Act]”. Section 65(3) is not relevant here, but s 43AAA is relevant. The important provisions of s 43AAA for present purposes were as follows.

43AAA Findings of Tribunal in Security Division review of security assessment

Scope

(1)    This section applies to a review in the Security Division.

Findings

(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 [ASIO Act], 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.

34    The final aspect of the AAT Act that needs to be mentioned is the provisions concerning “appeals” to this Court, which (as noted above) continue to apply to this proceeding. (We have used quotation marks in the previous sentence because proceedings of this kind engage the original rather than appellate jurisdiction of the Court (s 19(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act); SDCV v Director-General of Security [2022] HCA 31; 277 CLR 241 at [8] (Kiefel CJ, Keane and Gleeson JJ) (SDCV HCA); Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [96] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) (Haritos)) but will refrain from doing so elsewhere in these reasons.) We describe these provisions in the present tense because they continue to apply to this proceeding. Section 44(1) provides a right to a party to a proceeding before the Tribunal to appeal to this Court on a question of law from any decision of the Tribunal in that proceeding. The powers of the Court are set out in s 44(4) and (5) as follows:

Powers of Federal Court

(4)    The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(5)    Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

35    Section 44(7) to (10) provide that the Court may make findings of fact in the appeal, as follows:

Federal Court may make findings of fact

(7)    If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a)    the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b)    it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i)    the extent (if any) to which it is necessary for facts to be found; and

(ii)    the means by which those facts might be established; and

(iii)    the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv)    the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v)    the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi)    whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii)    such other matters (if any) as the Court considers relevant.

(8)    For the purposes of making findings of fact under subsection (7), the Federal Court of Australia may:

(a)    have regard to the evidence given in the proceeding before the Tribunal; and

(b)    receive further evidence.

(9)    Subsection (7) does not limit the Federal Court of Australia’s power under subsection (5) to make an order remitting the case to be heard and decided again by the Tribunal.

(10     The jurisdiction of the Federal Court of Australia under subsection (3) includes jurisdiction to make findings of fact under subsection (7).

36    Section 46 of the AAT Act is relevant to the proposed procedural fairness measures (referred to at [11] above). It provides as follows:

46    Sending of documents to, and disclosure of documents by, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2)

Sending of documents to courts

(1)    When an appeal is instituted in the Federal Court of Australia in accordance with section 44 or a question of law is referred to that Court in accordance with section 45:

(a)    the Tribunal shall, despite subsections 36(2), 36B(2) and 39B(3) of this Act, and subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975, and subsection 36L(4) of the Australian Crime Commission Act 2002, cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal or reference relates and are relevant to the appeal or reference; and

(b)    except in the case of an appeal that is transferred to the Federal Circuit and Family Court of Australia (Division 2)— at the conclusion of the proceeding before the Federal Court of Australia in relation to the appeal or reference, the Court shall cause the documents to be returned to the Tribunal; and

(c)    in the case of an appeal that is transferred to the Federal Circuit and Family Court of Australia (Division 2):

(i)    the Federal Court of Australia must cause the documents to be sent to the Federal Circuit and Family Court of Australia (Division 2); and

(ii)    at the conclusion of the proceedings before the Federal Circuit and Family Court of Australia (Division 2) in relation to the appeal, the Federal Circuit and Family Court of Australia (Division 2) must cause the documents to be returned to the Tribunal.

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) of this Act, or subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975, or subsection 36L(2) of the Australian Crime Commission Act 2002, 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 and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) as mentioned in subparagraph (1)(c)(i).

(3)    If:

(a)    the certificate referred to in subsection (2) relating to matter contained in the document does not specify a reason referred to in paragraph 28(2)(a) or (b), 36(1)(a) or (b), 36B(1)(a), or 39B(2)(a) of this Act or subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975, or paragraph 36L(2)(a) or (b) of the Australian Crime Commission Act 2002, as the case may be;

(b)    a question for decision by the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) is whether the matter should be disclosed to some or all of the parties to the proceeding before the Tribunal in respect of which the appeal was instituted or the reference was made; and

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

the court shall permit the part of the document in which the matter is contained to be inspected accordingly.

(4)    Nothing in this section prevents the disclosure of information or of matter contained in a document to an officer of the court in the course of the performance of his or her duties as an officer of the court.

37    It was not submitted that s 46(3) applied in this case. The condition in s 46(3)(a) is not satisfied because each of the certificates invoked the reason in s 39B(2)(a).

3    THE proposed PROCEDURAL FAIRNESS MECHANISMS

38    As noted at [13] above, on 6 August 2026, we informed the parties of our conclusions that s 46 of the AAT Act did not require material that was before the Tribunal to be tendered in the appeal and we were not persuaded that any of the proposed procedural fairness mechanisms should be adopted. What follows constitutes our reasons for those conclusions.

39    The applicant submitted that the use of such mechanisms was fundamental to the Court discharging its functions consistent with maintaining its character as a Chapter III court, not only in affording procedural fairness to the applicant but more broadly in order to promote the interests of justice in an adversarial system of law in the Commonwealth. It was submitted that it would be inconsistent with these principles and integral constitutional and institutional values to permit a position to prevail where the respondents and the Court had access to documents relevant to the determination of the appeal to the exclusion of the applicant and to deprive a party before the Court of the capacity to advocate its case in an adversarial manner.

40    However, it was not submitted that s 46(2) of the AAT Act was invalid. The High Court held by majority that s 46(2) was valid in SDCV HCA and in MJZP HCA an attempt by the present applicant to reopen SDCV HCA was unsuccessful.

41    This part of our reasons assumes the validity of the certificates (as did the parties’ submissions on these issues). If the certificates were not valid, s 46(2) of the AAT Act would not stand in the way of the applicant being given access to the certificated materials for the purposes of the appeal. However, if that were the case, it would also follow that one or more of grounds 1A to 1E of the notice of appeal was made out. That would be a sufficient basis to set the Tribunal’s decision aside without considering the proposed procedural fairness measures; and we would at least incline to the view that the matter should be remitted to the Tribunal and the Minister should have an opportunity to consider whether to issue fresh certificates before the Tribunal hearing resumed (and before the certificated materials were disclosed to the applicant).

3.1    Conditions on the tender of documents or exclusion under s 135 of the Evidence Act

42    These proposals can be considered together as they raise very similar issues. The substance of the proposal for conditions was that the Court should refuse to allow any of the certificated materials to be tendered in the appeal unless that document had been made available on a confidential basis to the applicant’s legal representatives or to a “special counsel” (who would be a member of counsel with an appropriate security clearance). If these steps were taken, the potential unfairness and capacity for the evidence to mislead or confuse that was said to engage the power to exclude evidence under s 135 would fall away. We considered that these proposals did not assist the applicant, for two main reasons.

3.1.1    The construction of s 46 of the AAT Act

43    Conditions or limitations could only have utility (whether pursuant to the Court’s implied power to prevent abuse of process or s 136 of the Evidence Act), and exclusion under s 135 of the Evidence Act would only be possible, if the documents needed to be tendered and admitted into evidence in order to be before the Court in its determination of the appeal. The applicant submitted that s 46 of the AAT Act is a merely “mechanical” provision (providing for the transmission and return of documents) and does not place those documents before the Court as constituted to hear the appeal. It was said that tender and admission into evidence are essential as an ordinary aspect of the adversarial system of justice. We rejected this submission.

44    As a starting point, it is appropriate to note the previous judicial consideration of s 46(1) of the AAT Act. It was considered by the Full Court in SDCV v Director-General of Security [2021] FCAFC 51; 284 FCR 357 (SDCV FFC). There, Rares J (having referred to the position in the Tribunal) said at [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.

45    Bromwich and Abraham JJ said at [160]-[161]:

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).

…

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.

46    On appeal to the High Court, Gageler J described the effect of s 46(1) and (2) in the following way (SDCV HCA at [108]; see also at [126] and [154]):

Section 46(2) of the AAT Act operates against the background of the general requirement of s 46(1). The general requirement is that, upon the institution of an appeal under s 44, the AAT must send to the Federal Court all documents that were before the AAT in connection with the proceeding to which the appeal relates and that are relevant to the appeal. Having been sent to the Federal Court, the documents remain within the custody and control of the Federal Court until the conclusion of the appeal, when the Federal Court must return them to the AAT. The documents in the meantime are available to the Federal Court, and ordinarily to the parties, in the conduct of the appeal so as to be able to be considered by the Federal Court in the determination of the appeal.

47    Gordon J observed at [185] that the “regime for placing the record of the Tribunal proceeding before the Federal Court is akin to the historical use of the writ of certiorari, issued by a superior court to direct that the record of the lower court or tribunal be sent to the superior court for review”, and referred to rules of this Court having the result that “the formal decision of the Tribunal and the reasons for the decision as well as the record of the Tribunal proceeding are effectively lifted up and placed before the Federal Court”.

48    Edelman J said at [243]:

Section 46(1) of the AAT Act is a modern version of such a removal mechanism. On an “appeal” under s 44, the Tribunal is required by s 46(1)(a) to “cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal … relates and are relevant to the appeal”. It was by this means that the documents in this case were before the court. Whether or not they were tendered by one of the parties, or incorporated into an “appeal” book, the documents formed part of the record for review by the court.

49    It is true that their Honours were in dissent in the result. However, the statements set out above do not contradict any principle common to the reasoning of the majority. In MJZP HCA at [12], Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ identified the ratio of the earlier case as follows:

s 46(2), in its application to documents in respect of which there is a certificate in accordance with s 39B(2), did not infringe Ch III of the Constitution because, as the Commonwealth submitted in the present case, “even where s 46(2) of the AAT Act prevents the Federal Court from providing an applicant with any means to respond to material subject to a certificate … , it is not contrary to Ch III because it forms an inseverable part of an additional avenue for review that is beneficial (when compared to the other available avenues of review), and therefore causes no practical injustice”.

50    The only member of the Court in SDCV HCA who said anything directly inconsistent with the observations we have set out above (and supportive of the applicant’s argument) was Steward J, who considered that s 46(2) left room for the Court to adopt measures to ensure procedural fairness: at [287]-[306]. Kiefel, Keane and Gleeson JJ at [41] noted that there had been argument as to whether s 46(1) and (2) were “merely machinery whereby the record of the proceedings in the Tribunal was transmitted to the Federal Court” and said that it was “not necessary to pursue this question further”. Their Honours therefore did not express any disagreement with the statements by members of the Full Court set out above, or of the minority justices, on this issue.

51    We respectfully agree with those observations. Two particular aspects of s 46 and its statutory context point to their correctness.

52    First, ss 44 and 45 of the AAT Act created new statutory review mechanisms, additional to the judicial review mechanisms that existed under the general law: an “appeal … on a question of law” and a “reference” of a “question of law arising in a proceeding before the Tribunal” (emphasis added). Those sections gave effect to a recommendation “that the Court should be invested with supervisory jurisdiction over” what became the Tribunal: see Haritos at [116] referring to the report of the Kerr Committee: Commonwealth Administrative Review Committee, Report of the Commonwealth Administrative Review Committee (Parliamentary Paper No 144, 1971) at [247].

53    Under ss 44 or 45, the task of the Court is the determination of questions of law requiring resolution in a proceeding before the Tribunal; that is, questions arising on the evidence and submissions before the Tribunal. The proper resolution of such questions requires that the Court have before it the whole record of the Tribunal proceeding, or at least so much of that record as is “relevant to the appeal or reference” (s 46(1)(a) of the AAT Act). A decision made by reference only to such material as the parties chose to (or were able to) tender would risk deciding a different question of law to that which arose in the Tribunal proceeding.

54    Consistently with this position, the Court’s fact-finding role in an appeal under s 44 is limited: see eg Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; 241 CLR 320 at [19] (French CJ, Gummow and Bell JJ); Haritos at [114]. That limited scope is reflected in s 44(7), which permits the Court to make findings of fact “not inconsistent with findings of fact made by the Tribunal”. For that purpose, s 44(8) provides that the Court may “have regard to the evidence given in the proceeding before the Tribunal” and “receive further evidence”. As the respondents submitted, that formulation presupposes that the evidence given before the Tribunal will be before the Court.

55    Second, s 46(1) applies to all s 44 and s 45 applications; it is not limited to cases in which a party who seeks to have the Court consider material forming part of the Tribunal’s record is prevented from obtaining that material and tendering it. It is not clear why Parliament would have expressly provided for all relevant material to be sent to the Court by the Tribunal, if the purpose was only for the Court to store the material for the duration of the appeal or reference and return it to the Tribunal (under s 46(1)(b)) at the end. A much more natural reading is that the intention of s 46(1) was to place that material before the Court so that it could be considered in determining the identified question or questions of law.

56    On the other hand, in an appeal or reference that involves certificated materials (as in the present case), s 46(2) requires the Court (as a juristic entity) to prevent disclosure of that material but makes an exception for “a member of the court as constituted for the purposes of the proceeding”. The express provision for the material to be disclosed to the judicial officer(s) determining the proceeding provides a further textual indication consistent with the purpose of the provision being that the Court have before it all documents relevant to the determination of the appeal or reference.

57    Contrary to the applicant’s submission based on GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 32; 280 CLR 442 at [19] (Kiefel CJ, Gageler and Jagot JJ) (GLJ), the determination of questions solely by reference to evidence tendered by the parties is not a universal hallmark of Australia’s integrated federal judicial system. The observations in GLJ concerned the roles of the judge and the parties to a trial and were made in the context of an appeal from a decision refusing to stay a personal injury proceeding as an abuse of process. Certiorari, directing the record of an inferior court to be sent to a superior court for review (see eg Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 at [276] (Hayne J)), is a historical example to the contrary of any such universal proposition about the adversarial system. Certiorari for error of law “on the face of the record” has not entirely disappeared from Australian law: see eg Craig v South Australia (1985) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) and Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 264 CLR 1 at [60]-[78] (Gageler J). The analogy between that procedure and a s 44 appeal (drawn by Gordon J in SDCV HCA at [185]) is not exact, but it illustrates that a statutory provision calling for the entire record of an administrative tribunal to be placed before a court exercising supervisory jurisdiction has historical antecedents familiar to Australian lawyers. The exercise of appellate jurisdiction in Australian courts, which usually proceeds by reference to the material before the court below and without the need for formal tender (except in a case where “further evidence” is received: see eg s 27 of the Federal Court Act), is another example of adversarial justice not limited to evidence adduced by the parties. The fact that s 44 of the AAT Act created a review mechanism that was expressly described as an “appeal” is not irrelevant to the construction of s 46; it indicates that Parliament envisaged a procedure analogous to an appeal properly so called.

58    Similarly, the nature of proceedings under ss 44 and 45 is an answer to the point made by the applicant that there is no scope to assess the admissibility of documents if they are automatically before the Court as a result of being transmitted under s 46(1)(a). In a proceeding concerned with whether the Tribunal has erred in law in its decision, or with answering a question of law arising in a proceeding in the Tribunal, documents are “admissible” (in that they are relevant to answering the identified questions of law) by reason of having been before the Tribunal. Even for the purpose of the Court making its own findings of fact under s 44(7), s 44(8) expressly authorises regard to be had to “the evidence given in the proceeding before the Tribunal”.

59    Finally, the principle of legality does not require a different conclusion. The majority reasoning in SDCV HCA entails that s 46 should be seen as part of a statutory regime of judicial review that exists in addition to remedies under the general law: SDCV HCA at [13] and [79]. On that footing, s 46(2) is not a curtailment of any pre-existing right. Further, as was observed in Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [314] by Gageler and Keane JJ (quoting Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; 199 CLR 321 at [43] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ)), the principle of legality has limited utility as a principle of construction where the very purpose of the provision in question is to curtail the right said to be infringed:

The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.

60    Section 46(1), therefore, is not merely “mechanical”. The transmission of the Tribunal’s record to the Court has the effect of placing that material before the Court for the purpose of deciding the questions of law raised by the appeal.

61    This does not, of course, prevent the Court from receiving other material as evidence to the extent that it is relevant. Section 44(7) and (8) of the AAT Act expressly envisage the Court making findings of fact and allow it to “receive further evidence” for that purpose. Such evidence could include evidence bearing upon whether the Tribunal failed to afford procedural fairness, including by acting in accordance with certificates purportedly issued under ss 39A(8) or 39B(2) that are alleged to have been invalid. The present case is an example. By consent, we had before us material relating to the making of the certificates that was not in evidence before the Tribunal.

3.1.2    Lack of utility

62    The applicant bears the onus of demonstrating that the Tribunal fell into error. Assuming (contrary to our conclusion above) that the certificated materials needs to be tendered in order to be considered by the Court, if that material – including gaps or silences in it – is to be relied on to prove error by the Tribunal, it would normally be up to the applicant to tender it. The applicant could not object to its own tender of the certificated materials; and requiring things to be done by the respondents, as a condition on the admission of documents tendered by the applicant, would make no sense.

63    At the hearing King’s counsel for the respondents informed the Court that he did not wish to tender the certificated materials. There was some discussion of whether model litigant principles required the respondents to place the material before the Court. However, those principles do not give rise to substantive legal rights or detract from the substantive rights of the Commonwealth and its agencies (and, in so far as they reside in the Legal Services Directions made under s 55ZF of the Judiciary Act 1903 (Cth), s 55ZG(3) provides that non-compliance cannot be raised in a proceeding other than by or on behalf of the Commonwealth): see eg Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345 at [240] (Heydon J). Additionally, counsel did not refer us to any case in which those principles have been understood to require a government litigant to assist the other side in making out its case.

64    Even if it were open to the Court to take some step that would require the respondents to tender the certificated materials, how we would do that while simultaneously imposing a condition on that tender (or excluding the material under s 135 of the Evidence Act) was not explained. The only solution to that conundrum would seem to be to order the respondents to tender the documents and to provide them to the applicant’s legal representatives (or a special counsel). The applicant did not press for such orders, and it is hard to see how they could be made in the light of the duty imposed on the Court by s 46(2) of the AAT Act.

3.1.3    Further discretionary considerations

65    For completeness we note that, in addition to the fundamental difficulty that the respondents do not wish to tender the documents (making the imposition of conditions pointless), there are further reasons why, as a matter of discretion, we would not have imposed the conditions sought by the applicant.

66    First, as to the suggestion of a special counsel being appointed, we respectfully agree with the following statement by Keifel CJ, Keane and Gleeson JJ in SDCV HCA at [99]:

the appointment of special counsel to represent a person in the position of the appellant, as urged on the appellant’s behalf, would not resolve the practical consequences otherwise occasioned by s 46(2). As the plurality noted in Pompano, special counsel to whom the certificated material was disclosed “could not, without disclosing the existence or content of the information ... ask [the appellant] to comment on what the lawyer had been told. The lawyer could assemble no ammunition to launch an attack upon the veracity of a confidential source alleged to have provided [certificated materials] without disclosing that source’s existence”.

(Citation omitted.)

67    Second, disclosure to the lawyers for the applicant would give rise to a risk of inadvertent disclosure to their client (or to others): eg, see Traljesic v Attorney-General of the Commonwealth of Australia [2006] FCA 125; 150 FCR 199 at [22]-[25] (Rares J) (Traljesic); Jackson v Wells (1985) 5 FCR 296 at 307-308 (Wilcox J) (Jackson). That is not a reflection in any way upon the integrity of the applicant’s lawyers. As explained by Wilcox J in Jackson:

The applicants would, no doubt, have felt more satisfied that the documents were rigorously examined by the court if their counsel had been given the opportunity to take the court through the documents. But, in the end, I rejected the proposal. It involves a number of problems. Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely commonsense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure.

68    Further, disclosure to legal representatives would have limited utility if those representatives could not take instructions on the contents of the documents.

3.2    Gisting

69    As explained above, the applicant proposed in the alternative that the Court should direct that the respondents provide the applicant with the “gist” of the certificated materials, so far as it was possible to do so without disclosing the certificated materials. Reliance on this mechanism does not depend on the applicant’s constructional argument in respect to s 46(1) and (2).

70    During the hearing of the preliminary issues the applicant provided the terms of the order it sought, which was as follows.

1.    On or before 28 August 2026, the respondents:

1.1.    are to review the certificated matter, for the purpose of ascertaining whether the gist of any of the certificated matter can be provided to the applicants, a legal representative for the applicants and/or a special counsel;

1.2.    are to file and, subject to suitable protections for any confidential material, serve:

1.2.1.    any evidence explaining the process the respondents have undertaken pursuant to order 1.1; and

1.2.2.    if the respondents have concluded that the gist of any of the certificated matter can be provided, a document containing that gist.

2.    The matter be listed for a case management hearing on the first date convenient to the Court after 7 September 2026.

71    This represented something of a change of position on the part of the applicant. Rather than seeking an order that the respondents provide it with the gist of the certificated materials, the applicant now sought to have the respondents conduct a review of the certificated materials and file further evidence. Had orders along these lines been made, the hearing date fixed on 17 August 2026 would have been lost and a fresh hearing date would have had to be found.

72    The respondents accepted that, in an appropriate case, it may be possible to communicate something useful about certificated materials without disclosing the certificated materials themselves or otherwise prejudicing the public interest that the certificates invoke. However, they submitted that there had already been a significant process undertaken and significant material disclosed to the applicant. It was submitted that it was not apparent that there was anything more that could be disclosed by way of summary of the certificated materials that would: (a) assist the applicant in prosecuting its appeal, so as to mitigate any prejudice it faces in being denied that material; and (b) not tend to disclose the certificated materials.

73    There had already been significant disclosure to the applicant of the conclusions the Director-General drew from the certificated materials.

(a)    In July 2021 (before the application to the Tribunal) ASIO provided to the applicant an unclassified statement of grounds (USOG). This was a reproduction of the statement of grounds (required by s 37(2) of the ASIO Act) that had been provided to the Minister as part of the ASA (referred to as the CSOG), with the material whose disclosure the Minister had determined (on ASIO advice) would be prejudicial to security removed.

(b)    In December 2021, while preparing material to be lodged with the Tribunal, ASIO briefed the Minister that it had become aware that some material covered by the first certificate was publicly available. In January 2022 the first certificate was partly revoked so as to allow disclosure of some further passages of the CSOG and a revised USOG was provided to the applicant.

(c)    In September and October 2021 and June 2022 the Director-General lodged with the Tribunal bundles of unclassified documents and a bundle of redacted documents as well as the certificated materials. This plainly reflected judgments by officers in ASIO as to what could be disclosed to the applicant without prejudice to security.

(d)    The main witness for the Director-General in the Tribunal, Edwin McNamara (an assumed identity), deposed two classified affidavits and two unclassified affidavits across October and December 2021 and March 2022. The latter described its purpose as “to explain, as far as possible in an unclassified document, the basis of ASIO’s ASA”. Mr McNamara was cross-examined in open session.

74    Each of these processes involved judgments about the conclusions ASIO considered should be drawn from the certificated materials (ie, its gist) and the extent to which those conclusions could be conveyed to the applicant without causing prejudice to security. Our own review of the underlying documents did not suggest any reason to conclude that ASIO’s judgments were excessively restrictive or not genuinely made.

75    The applicant did not identify anything that a further process of gisting would add. During the hearing, when we pressed senior counsel for an indication of what further information was sought, the example given related to identifying the sources of information in the confidential material rather than the substance of material. That is not gisting of the material. Disclosure of confidential sources is usually very high on the list of information that security agencies wish to prevent, for obvious reasons. We therefore held concerns that a further gisting would either produce no result or tend to cause disclosure that would be contrary to the public interest.

76    Importantly, also, the orders proposed during the hearing were burdensome and would have required the hearing of the appeal to be further delayed. These orders should have been sought much earlier in the light of the history of the matter. No proper explanation was provided for the timing of the orders being sought, particularly given that this case had been case managed to ensure its disposition in a timely manner because of the delay that had already occurred. We note that while the proceeding remains unresolved the ASA is stayed and the Minister therefore cannot consider giving a direction under s 315A. The orders sought would further delay this proceeding for no apparent purpose. In circumstances where the ASA was furnished in August 2021, further delay of the final hearing was not to be tolerated.

4    the validity of the certificates

77    The validity of certificates questions were as follows.

Q1.    Are any or all of:

(a)    the certificate dated 19 January 2022 (First Certificate);

(b)    the further certificate dated 19 January 2022 (Second Certificate);

(c)    the certificate dated 21 April 2022 (Third Certificate); or

(d)    the certificate dated 28 July 2022 (Fourth Certificate);

issued by the Minister for Home Affairs (Minister) under ss 39A(8) and 39B(2) of the Administrative Appeals Tribunal Act 1975 (Cth) invalid, in whole or part, on the ground of legal unreasonableness?

Q2.    Is the Fourth Certificate, insofar as it was issued by the Minister under s 39A(8), invalid, in whole or part, because the Minister asked herself the wrong question?

78    As noted earlier, we informed the parties on 6 August 2026 that each of these questions would be answered “No”. As a consequence of those answers, grounds 1A to 1E of the notice of appeal must be rejected.

79    The applicant’s challenge to the certificates involved two broad contentions:

(a)    each of the certificates was invalid on the ground that the Minister’s decision to issue it was legally unreasonable (paragraph (a) of each of grounds 1A to 1D); and

(b)    the Minister asked the wrong question in issuing the fourth certificate, because the only document to which it related had already been tendered in a closed hearing and Mr McNamara had been asked questions about it (paragraph (a) of ground 1E).

4.1    The legal unreasonableness contentions

80    In its written submissions in chief, the applicant did not develop the argument but effectively invited the Court to review the certificated materials to determine whether the decisions to issue certificates were each legally unreasonable. However, in its written reply submissions the applicant sought to develop two more specific arguments in support of the assertion of legal unreasonableness. These were in truth new grounds of appeal. Anticipating that that point would be made about them, the applicant set out proposed new grounds 1J to 1P in an annexure to the reply submissions which it sought leave to raise. The new grounds were:

(a)    each of the certificates was invalid in so far as it relied on s 39B(2) because the Minister addressed the question whether disclosure of the relevant documents would be contrary to the public interest on an incorrect understanding of that concept (paragraph (a) of each of the new grounds 1J to 1M); and

(b)    each of the first, second and third certificates was invalid in so far as it relied on s 39B(2)(a) and (b) because the Minister failed to consider part of the legal consequences of issuing the certificate, namely its effect on the rights of the applicant in an appeal under s 44 of the AAT Act (paragraph (a) of each of the new grounds 1N to 1P).

81    We decided on 6 August 2026 that leave should be granted to amend the notice of appeal so as to raise these grounds but that they should be rejected.

4.1.1    Paragraph (a) of each of grounds 1A to 1D: the original legal unreasonableness grounds

82    As to the initial complaint, it is settled that the threshold for establishing legal unreasonableness is high and it is not a finding lightly made: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33] (Allsop CJ, Besanko and O’Callaghan JJ) (Djokovic). It has been observed that “the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [133] (Crennan and Bell JJ). The ultimate question has been framed as whether the satisfaction of the relevant state of affairs or matter was “not based on findings or inferences of fact supported by logical grounds, such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material”: Djokovic at [35] quoting Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [52] and [173].

83    For the purpose of s 39A(8) of the AAT Act, the Minister was empowered to issue a certificate if she was satisfied that the evidence proposed to be adduced, or submissions proposed to be made, in respect of an ASA was of such a nature that its disclosure would be “contrary to the public interest because it would prejudice security or the defence of Australia”. For the purpose of s 39B(2), the Minister could issue a certificate if she was satisfied that “disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document would be contrary to the public interest” because, among other things, “it would prejudice security or the defence or international relations of Australia”.

84    As already mentioned, the Minister received briefing notes from ASIO in respect of each of the first three certificates but did not issue reasons for issuing, them. Following a request under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Minister was provided with briefing notes from ASIO and a draft statement of reasons for the fourth certificate, which she signed on 30 August 2022 (Minister’s reasons).

85    The materials briefed to the Minister in respect of each of the certificates were provided to the applicant’s solicitors pursuant to an order made by the Court on 19 September 2025 and filed as an “open hearing book” prior to the hearing on 27 July 2026. (Technically, they were “further evidence” under s 44(8)(b) of the AAT Act.) These materials were not limited to the briefing notes. The Minister was also provided with the underlying documents and information that formed the subject matter of each certificate. It may be readily inferred that the Minister based her decision not only on the contents of the briefing notes but upon a review of the documents that were itemised in the confidential schedules attached to each certificate.

86    Having reviewed the unclassified materials and the certificated materials that were before the Minister, we were not satisfied that the Minister’s decisions to issue the certificates were legally unreasonable. The contents of the certificated materials left us comfortably satisfied that:

(a)    as to each body of material, it was open to the Minister to be satisfied of the matters referred to in ss 39A(8) and 39B(2)(a); and

(b)    the decisions to issue certificates in respect of these materials were within the Minister’s area of decisional freedom under ss 39A(8) and 39B(2).

87    The evidentiary foundation for the issuing of the certificates included the briefing notes referred to above and the certificated materials. Those briefing notes reflected the assessment of the Director-General and ASIO officers who are trained to identify information the release of which would increase threats to security or impede ASIO’s capacity to perform its functions in advance of the nation’s security interests. The Minister received specific advice and recommendations as to why disclosure of the relevant material would prejudice the nation’s security interests. Having reviewed the briefing notes and the certificated materials, as we have already noted, we are comfortably satisfied that the Minister’s decision did not lack an evident or intelligible justification.

4.1.2    Paragraph (a) of each of new grounds 1J to 1M: the Minister misunderstood the law (by treating the public interest issue as depending wholly on the requirements of security)

88    The applicant contended that each of the certificates was invalid because it was legally unreasonable in that the Minister misunderstood the law by treating the public interest as being wholly dependent on national security.

89    The applicant accepted that the Minister’s consideration of the public interest involved a broad evaluative judgment. The applicant further accepted that the interests of national security were important aspects of the public interest as reflected in s 39A(8) and also the related and separate interests specified in each of s 39B(2)(a) to (c). However, it was submitted that it should be inferred that the Minister considered only these factors in assessing the public interest in issuing each of the certificates under ss 39A(8) and 39B(2) and proceeded on the basis that these factors were determinative.

90    In support of these contentions, the applicant submitted that the scope of the Minister’s consideration of the public interest could be inferred from the briefing notes provided to the Minister by the Director-General, which focussed only on the interests of national security. It was submitted that neither the briefing notes nor any of the other materials disclosed that the Minister took into account other factors relevant to an assessment of the public interest, including the public interest in promoting the administration of justice in a procedurally fair way, the interests of the adversarial system of justice and the principle of legality. It was said that each of these interests was undermined where a party to litigation and its representatives were deprived of access to relevant documents and information necessary to challenge a decision of a Minister.

91    We rejected these contentions.

92    It was not in dispute that an assessment of the public interest involves (Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336 at [39] (French CJ, Crennan and Bell JJ), [127] (Gageler J); see also at [62] (Hayne J)):

a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’.

(Citations omitted.)

93    Consistently with this understanding, Rares J said in Traljesic at [26]-[27] (where it was argued that the Minister had taken into account an irrelevant consideration in issuing a certificate under ss 39A and 39B of the AAT Act):

The subject matter, scope and purpose of each of sections 36, 39A and 39B indicate that the Minister has an unconfined discretion to have regard to what he, as a high officer of the Executive, considers is in the public interest and may prejudice the security of Australia: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at p. 40 per Mason J [(Peko-Wallsend)]; Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at pp. 49-50.

I am of opinion that one cannot read any of those sections in a way which confines the considerations which the Minister is able to take into account in forming a view as to whether or not a certificate should be issued only to considerations that are able to be substantiated in relation to risk. This is particularly so where what is being looked at in the sections is the disclosure of, in effect, information and the ability to safeguard the spread of information which up to the time of the grant of the certificate has been regarded as confidential for, what are not challenged in these proceedings to be, good reasons.

94    The converse argument (that the Minister had failed to take into account a mandatory consideration) arose in Kim v Attorney-General of the Commonwealth [2013] FCA 902; 215 FCR 228. There, Foster J said at [99]:

Neither s 39A nor s 39B of the AAT Act enumerates any factors that the Attorney-General is required to take into account when exercising the power to issue certificates pursuant to ss 39A(8) and 39B(2) and the power to withhold consent for the purposes of s 39A(9)(b). Where a statute gives no express indication of the criteria by which a decision is to be made, the decision-maker is permitted to consider any matter that he or she in good faith decides might be relevant. It is for the decision-maker to determine what he or she regards as relevant and the relative weight to be given to the selected factors. The only restriction imposed upon the decision-maker in selecting the relevant criteria is that which may be dictated by the subject matter, scope and purpose of the legislation.

95    At [101], Foster J accepted the Attorney-General’s submission that:

it will normally be for the decision-maker, in light of the matters placed before him or her by the parties, to determine which matters he or she regards as relevant and the comparative importance to be afforded to matters which he or she so regards.

96    In the light of these statements, it can be accepted that the Minister would have asked herself the wrong question if she had understood the public interest criterion to preclude consideration of any issue other than prejudice to security. On the other hand, there would be no error if the Minister had made an assessment that prejudice to security was the only issue of significance in the circumstances that arose. Indeed, each of the provisions in issue here demands a focus on the question of prejudice to security: the test to be applied under ss 39A(8) and 39B(2)(a) of the AAT Act is whether disclosure would be “contrary to the public interest because it would prejudice security” (emphasis added).

97    The Minister was not required to give reasons for the decisions to issue the certificates and did not give any reasons for the first three of those decisions. So far as those decisions are concerned, the only evidence of what the Minister took into account is the briefing notes provided to her by ASIO and their attachments. Each of the briefing notes recommended the issue of a certificate and set out the basis for that recommendation under a heading “ASIO’s rationale and process for recommending you issue a non-disclosure certificate – prejudice to security”. However, the fact that prejudice to security was the concern that led ASIO to suggest issuing a certificate is not a proper basis to infer that that was the only issue the Minister considered in forming a view about the public interest. Each of the briefing notes expressly described the effects of the certificates that ASIO was proposing, including that the certificated materials would be provided to the Tribunal but not the applicant (under s 39B(3)) and that the applicant would be excluded from the hearing in so far as it concerned evidence and submissions about certificated materials (under s 39A(9)). The Minister’s attention was therefore drawn to the effects that the issue of the certificates would have on the proceeding in the Tribunal and the applicant’s ability to participate in that proceeding; the briefing note did not suggest that these were irrelevant matters. It is therefore more likely than not that the Minister gave some thought to whether those effects were a factor that should affect her assessment of the public interest.

98    In relation to the fourth certificate in so far as it was issued under s 39B(2), the Minister’s reasons said:

I understood that by giving such a certificate the Tribunal would be required to do all things necessary to ensure that the information or contents of the document would not be disclosed to anyone other than the presiding members of the Tribunal and their staff (s 39B(3) and s 39B(7)). I understood this meant that the classified document would continue to be withheld from [the applicant] and its legal representatives.

99    In relation to the fourth certificate in so far as it was issued under s 39A(8), the Minister’s reasons said:

I understood that by giving such a certificate:

a.    [the applicant] must not be present when the evidence is adduced or the submissions are made in respect of the document; and

b.    a person representing [the applicant] must not be present when the evidence is adduced or the submissions are made in respect of the classified document unless I consent (s 39A(9) of the AAT Act).

100    The Minister’s stated rationale for deciding to issue the fourth certificate was that disclosure of the classified document “would be contrary to the public interest because it would prejudice security”. That statement reflects the wording of s 39B(2)(a). It identifies the factor that led the Minister to the conclusion that she reached (a factor expounded in more detail in the paragraphs preceding it) but is not inconsistent with the Minister having considered whether there were other factors that pointed in a different direction (including the effects of the certificate to which the Minister had expressly referred). Nothing in the briefing note or the reasons suggests an understanding that prejudice to security was the only permissible consideration.

4.1.3    New grounds 1N to 1P: the Minister did not consider legal consequences (first to third certificates)

101    The applicant contended that the Minister’s decisions to issue the first to third certificates were legally unreasonable as the Minister did not consider the legal consequences of those decisions to the extent that they were made under s 39B(2) of the AAT Act. Specifically, the applicant submitted that the Minister did not consider that an immediate and practical legal consequence of the decisions would be to deprive the applicant and its legal representatives of access to the relevant documents and information not only in the proceeding before the Tribunal but in any appeal to this Court (by reason of s 46(2) of the AAT Act).

102    The applicant accepted that s 39B(2) did not contain an express requirement for the Minister to consider the legal consequences of a decision made under those provisions, but submitted that there was nevertheless such an obligation by parity of reasoning from the decision of the Full Court in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (NBMZ). It was submitted that the obligation arose because the legal consequences formed “part of the legal framework in which the decision is made” (Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ) (Taulahi)), such that the requirement to consider those consequences was an implied limitation on the power in s 39B(2)(a) arising from the subject matter, scope and purpose of the AAT Act.

103    NBMZ concerned an application for judicial review of a decision to refuse to grant a protection visa on character grounds under s 501 of the Migration Act 1958. The applicant had been found to be a refugee and therefore, so the Full Court held, could not be removed from Australia and would therefore be in immigration detention indefinitely as a consequence of the refusal of the visa. Failure to take that consequence into account was held to constitute jurisdictional error. Allsop CJ and Katzmann J said at [17] that the prospect of indefinite detention was a matter that “could not lawfully be overlooked”, for the “reasons given above and for the reasons given by Buchanan J”. Their Honours had observed earlier at [6], citing Peko-Wallsend at 39 (Mason CJ) and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at [71] (Kiefel and Bennett JJ) (Huynh), that the “subject matter, scope and purpose of the Act may also require that certain considerations be taken into account” and that “one of those considerations is the statutory (that is, legal) consequences of visa refusal”. Buchanan J at [178] said that the prospect of indefinite detention was “not a matter which could be overlooked, disregarded or allowed to pass without comment”.

104    Mandatory “considerations”, in the Peko-Wallsend sense, are best understood as issues or factors that the applicable legislation expressly or by implication requires to be weighed in the balance by a decision-maker. The duty to take a consideration into account must be found in the provisions defining the relevant statutory power rather than the circumstances of the particular case (see eg Foster v Minister for Customs [2000] HCA 38; 200 CLR 442 at [23] (Gleeson CJ and McHugh J) (Foster)). Neither the general concept of “consequences” nor the likely consequences of an exercise of power in particular factual circumstances fits comfortably within this conceptual framework.

105    The decision in NBMZ can also be understood as an expression of the duty to give “proper, genuine and realistic consideration to the merits of the case”, first articulated by Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 and referred to in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [26] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (SZJSS). In other contexts this formulation has been criticised as potentially encouraging a slide into impermissible merits review (see eg SZJSS at [30]). However, properly understood, it captures the duty of an administrative decision-maker to engage with the merits of a case rather than perfunctorily or unthinkingly applying a general policy. In NBMZ at [151]-[153] Buchanan J referred to this aspect of SZJSS and to his own reasons in another case decided on the same day, NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44, and continued:

As a result of that discussion I concluded that Huynh does not detract from the principle distilled in SZJSS that it is not permissible to ignore the merits of a particular case in order to give effect to a rule or policy. The merits of a particular case may or may not extend to consideration of the conduct which causes a visa applicant to fail the character test ... Furthermore, it will always be necessary, in my respectful opinion, to proceed upon a proper understanding of the statutory scheme and the legal consequences for the applicant of the decision to be made about the visa application.

106    This was part of the reasoning of Buchanan J with which Allsop and Katzmann JJ agreed in NBMZ at [17]. It is a more satisfactory explanation of the holding in NBMZ than one based on relevant “considerations” and expresses the principle for which the case should be understood to stand: ie, that identifying the immediate and direct legal effects that a proposed decision will have on an affected person’s rights and having some regard to those effects is a necessary part of the role of an administrative decision-maker. The Full Court in Taulahi at [84] aptly identified the “fundamental principle” for which NBMZ stands as follows:

in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation.

107    To the extent that the consequences of an administrative decision are “direct”, “immediate” and “statutorily prescribed”, we agree that it is essential for the decision-maker not only to think about them but to understand them correctly: that is part of the correct understanding of the law to be applied that is necessary to the exercise of statutory powers. However, we do not consider that NBMZ (or the body of case law of which it forms part) supports the proposition that a decision-maker falls into error by failing to predict and take into account potential consequences of the decision that are indirect, contingent or debatable.

108    It is here that the applicant’s reliance on NBMZ runs into difficulty. The principle for which that case stands would make the certificates liable to be set aside for jurisdictional error if the Minister had decided to issue them while being unaware of, or paying no regard to, the effects that the certificates would have in the proceeding in the Tribunal. These were their “direct and immediate statutorily prescribed consequences”. However, the evidence provides no support for a contention that the Minister ignored these consequences and it was not submitted that she did so. NBMZ does not, on our reading, support a more extended duty to consider “consequences” that would encompass the effect of the certificates in an appeal proceeding in a different forum which might or might not occur. Such consequences are indirect, or, put another way, are at least contingent on the outcome of the review before the Tribunal and whether one or other party exercises a right of appeal. The argument that the Minister erred by failing to consider the legal consequences of issuing the certificates which might potentially arise at some future point in time arising from the operation of s 46(2) was therefore rejected.

109    We note that the respondents also submitted that, in any event, the evidence did not establish a failure by the Minister to take account of the effect of the certificates on a potential appeal proceeding. In the light of the conclusions we have reached, it is unnecessary to consider that argument.

4.1.4    Ground 1E: the fourth certificate: asking the wrong question

110    The background to the issue of the fourth certificate was that, as part of the ongoing obligation to provide relevant material to the Tribunal under s 39A(3) of the AAT Act, counsel for the Director-General handed up an additional confidential document (the additional document) during the closed session of the Tribunal hearing (between 20 and 24 June 2022). The treatment of that document will be considered further below. The fourth certificate was issued on 28 July 2022, after the additional document had been put before the Tribunal and the hearing had concluded.

111    The point that was made in the applicant’s written submissions was as follows.

But the power in s 39A(8) is limited to evidence “proposed to be adduced” and submissions “proposed to be made”. It follows that the power may only be exercised on a forward-looking basis, before the relevant evidence is adduced and submissions are made. The circumstances in which the Fourth Certificate were made indicate that the Minister asked herself the wrong question in making that certificate, and therefore committed an error of law.

(Emphasis in original.)

112    The respondents’ answer to this submission was that, properly understood, the fourth certificate was indeed “forward-looking” in its rationale and its intended effect and involved no error.

113    The applicant’s written reply submissions suggested that, if the certificate was not intended to be retrospective, it was invalid for a different reason: that there was no evidence of any intention at the time of the certification to adduce any further evidence or make any submissions about the additional document. King’s counsel for the respondents objected to an argument of this kind being raised so late in the appeal, especially in circumstances where evidence might potentially have been adduced (and counsel themselves might be the potential source of such evidence). In his oral submissions in reply, senior counsel for the applicant said:

But can I move on to section 39A of the AAT Act …? Subparagraph 8, and the proposed issue. We do not contend the proposed is an objective jurisdictional fact. Your Honours don’t need to worry about that one. We do say that it (sic) the Minister nevertheless erred in her construction of the proposed. So that’s not an objective jurisdictional fact point. That’s a more conventional judicial review point.

114    The argument that was then developed was as follows.

What you cannot avoid is that - and I don’t think this is actually really disputed - is that it is a forward-looking conception. It’s a proposal to do something which has not yet occurred. You can’t propose to do something you did yesterday. You proposed to do it yesterday maybe, but you don’t propose to do it today.

115    This, as we understood it, was a return to something very close to the applicant’s original argument.

4.1.4.1    A forward-looking conception

116    There is nothing on the face of the fourth certificate or in the Minister’s reasons or the briefing materials to indicate that the Minister was attempting to protect the additional document from disclosure retrospectively. Rather, the fourth certificate expressly certified that disclosure of the contents of the document (relevantly to s 39A(8) of the AAT Act) and of evidence and submissions concerning its contents (relevantly to s 39B(2)) “would be contrary to the public interest”, which can only be read as views expressed as at the date of the certificate (28 July 2022). There was nothing retrospective about this certification.

117    ASIO’s rationale in seeking the certificate (which it did on 19 July 2022) was identified in the briefing note to the Minister as that “[s]uch a certificate will ensure that the document continues to be protected, including if the Tribunal decision is appealed to the Federal Court” (emphasis added). Consistently with that focus on future protection, the Minister expressed the understanding in her reasons set out above at [98].

118    The Minister’s reasons also noted that she had decided under s 39A(9) of the AAT Act not to provide consent to the applicant or its legal representatives being present when evidence was given or submissions made about the additional document. This indicates that, in circumstances where the Tribunal had reserved its decision, the Minister was attentive to the possibility that the hearing might resume and the additional document might be the subject of further evidence or submissions in the future. That prospect had been specifically raised in the briefing note.

119    These passages make it clear that, in issuing the fourth certificate, the Minister was not purporting to provide a retrospective legal foundation for what had already happened in relation to the additional document. The respondents did not suggest before us that the certificate had retrospective effect, a point to which we will return later. Rather, in so far as the certificate relied on s 39B(2) of the AAT Act, it sought to prevent future disclosure of the additional document to the applicant; and, in so far as it relied on s 39A(8) (and was accompanied by a refusal of consent under s 39A(9)), it was directed toward the possibility that the contents of the additional document might need to be canvassed in further evidence or submissions. In other words, it had the forward-looking character demanded by the applicant’s initial submission.

4.1.4.2    Jurisdictional fact?

120    Had the additional argument raised in the written reply submissions been maintained, we would have rejected it on the existing evidence. This argument proceeded on a narrow reading of the word “proposed” in s 39A(8) of the AAT Act in which, as we understood it, s 39A(8) could only have been engaged when there was a concrete intention on the part of the Director-General to adduce evidence or make submissions in respect of particular documents or information. That reading would have rendered s 39A(8) impractical in circumstances where there was always potential for the issues to evolve in the light of changes in the parties’ positions or questions from the Tribunal and (as in fact happened here) further documents could come to light that were required to be provided to the Tribunal. The Tribunal might not have been willing to grant adjournments in order for further certificates to be sought from the Minister, and Parliament is unlikely to have intended that sensitive material would be deprived of the protection of a certificate as a result of the intention to tender it having been formed part way through a hearing. In context, if the references to “evidence proposed to be adduced” and “submissions proposed to be made” were understood to identify jurisdictional facts, they should be understood to extend to any evidence or submissions whose potential introduction was in contemplation in a review.

121    The recommendations in the briefing note for the fourth certificate, which the Minister “Approved”, included the following.

That, if you are satisfied disclosure of the contents of the document at Attachment B would be contrary to the public interest, you:

•    pursuant to s 39B(2) and s 39A(8) of the Administrative Appeals Tribunal Act 1975 (AAT Act) sign a public interest non-disclosure certificate; and

•    pursuant to s 39A(9) of the AAT Act, not consent to [the applicant]’s representatives being present at any further hearing when evidence and submissions are made concerning the content of the document the subject of the certificate.

This will mean that the document will continue to be withheld from the applicant … and its legal representatives, including if the AAT’s decision is appealed to the Federal Court.

(Emphasis added.)

122    This makes it clear that one of the things ASIO had in contemplation when it sought the fourth certificate was that there might be further hearings of the Tribunal at which the contents of the additional document might need to be canvassed.

5    THE refusal of consent question

123    The refusal of consent question was framed in the orders made on 8 May 2026 as follows.

Are any or all of the Minister’s decisions, pursuant to s 39A(9)(b) of the [AAT Act], to refuse consent for persons representing the applicant to be present when evidence was adduced and submissions were made in relation to the matters the subject of the s 39A(8) part of the:

i.    certificate dated 19 January 2022 (First Certificate);

ii.    further certificate dated 19 January 2022 (Second Certificate); or

iii.    certificate dated 21 April 2022 (Third Certificate); or

iv.    certificate dated 28 July 2022 (Fourth Certificate);

invalid on the ground of legal unreasonableness?

124    That question was to be answered only if the leave to amend sought in the interlocutory application of 7 May 2026 were granted. As noted earlier, we informed the parties on 6 August 2026 that leave would be granted and the question would be answered “No”. The four refusals of consent by the Minister were not invalid for the reasons contended by the applicant, and the applicant was therefore not denied procedural fairness for the reasons set out in grounds 1J to 1I.

125    As noted above, s 39A(9) of the AAT Act provided that, where the Minister gave a certificate under s 39A(8) in relation to evidence and submissions, (a) the applicant was not to be present when the evidence was adduced and the submissions made and (b) a person representing the applicant was not to be present when the evidence was adduced or the submissions made unless the Minister consented.

126    The first, second and third certificates record that, when they were issued, the Minister also refused to consent to the applicant’s legal representatives being present when the evidence and submissions the subject of those certificates were to be adduced and made.

5.1    The applicant’s arguments

127    The applicant submitted that the Minister’s decisions in this respect were required to be made reasonably. It was submitted that the Minister’s decisions lacked an evident and intelligible justification and were thereby legally unreasonable for the following two reasons.

(a)    The briefing notes provided to the Minister in respect of the first three certificates failed to draw attention to s 39A(10) of the AAT Act, and it should therefore be inferred that the Minister failed to consider the effect of that provision. Section 39A(10) made it an offence for a person representing the applicant, who is present when evidence to which a certificate under s 39A(8) relates is adduced or submissions to which such a certificate relates are made, to disclose any such evidence or submission to the applicant or to any other person. It was submitted that, as the applicant’s representatives before the Tribunal were Australian lawyers (including King’s Counsel), the legislative proscription would have been effective to prevent the applicant’s representatives from disclosing the certificated materials.

(b)    Even if the Minister regarded unconditional consent as inappropriate, consent could have been granted on a conditional basis that would have permitted the applicant’s legal representatives to be present without unduly compromising the requirements of security. For instance, the Minister could have given consent on the condition that the applicant’s legal representatives obtain security clearances or enter into confidentiality arrangements with the Commonwealth. There was no evidence that the Minister considered whether to grant consent on such a conditional basis.

128    The applicant accepted that the position was somewhat different in respect of the fourth certificate because the Minster gave reasons which explained why she refused consent for the applicant’s legal representatives to be present when evidence was adduced and submissions were made in relation to the additional document. However, the applicant submitted that these reasons neither adverted to the effect of s 39A(10) nor addressed the possibility of conditional consent. As a result, it was said that the Court should infer that there was no evident rational foundation for the decision.

5.1.1    The arguments went nowhere

129    These submissions necessarily assumed that the underlying certificates were valid (in that, if the certificates were not legally effective, none of these issues would arise). The submissions also tended to assume that the refusal of consent under s 39A(9) of the AAT Act constituted the affirmative exercise of a power to deny the applicant’s legal representatives a right to be present that they otherwise would have enjoyed. That is not so for the following reasons.

(a)    The right of the applicant and its representatives to be present when the Tribunal was hearing evidence and submissions was confirmed by s 39A(6) but expressly made subject to s 39A(9).

(b)    Section 39A(9) provided that, where particular evidence or submissions were the subject of a certificate, (a) the applicant “must not be present” and (b) the applicant’s legal representative “must not be present … unless the ASIO Minister consents”.

(c)    The default position, therefore, was that the applicant’s legal representatives were excluded from the relevant parts of the hearing by s 39A(9)(b). A positive act of consent by the Minister was needed for that exclusion to be removed.

130    These aspects of the structure of s 39A had at least the following consequences in respect of the material covered by the first, second and third certificates.

131    First, there was no statutory provision for applications for consent and consequently no duty imposed on the Minister to decide such applications. The Minister’s refusals of consent in the present case therefore did not change, or determine, any legal rights of the applicant or its representatives. So, for example, they did not render the Minister functus officio and did not prevent the question of consent being revisited at any time while the proceeding in the Tribunal remained on foot. Moreover, to question the “validity” of the refusals asks the wrong question, in that there was no decision by the Minister purporting to affect legal rights: it would have been meaningless, for example, to seek certiorari to “quash” a refusal to grant consent.

132    Second, even if the applicant’s submissions were correct, it was not the case that its legal representatives had a right to be present which the Tribunal erroneously denied. They had no such right unless and until consent was given. Indeed, even if it were shown that the Minister was bound to grant consent in the circumstances of the case and unlawfully failed to do so (which the applicant did not go so far as to submit), it would not follow that the Tribunal had erred in any way: absent consent from the Minister, the Tribunal was required to exclude the applicant’s representatives from the hearing and did not breach any requirement of procedural fairness by doing so.

133    The position is different in respect of the fourth certificate because it was issued after the hearing at which the additional document was discussed. No certificate was in place at that time (and therefore no question of consent arose under s 39A(9) of the AAT Act). As noted earlier, the respondents did not submit that the fourth certificate operated retrospectively. Consequently, neither the fourth certificate nor the associated refusal of consent had any bearing on the legality of what transpired on that occasion. Nor was there any later hearing from which the applicant’s legal representatives were excluded in reliance on the fourth certificate. The Minister’s refusal of consent associated with the fourth certificate therefore had no relevance to any question as to whether the Tribunal complied with its procedural fairness obligations.

5.1.2    The arguments should be rejected in any event

134    We have attempted above to encapsulate the applicant’s submissions as they were put in writing. The respondents’ response was, in essence, that the matters referred to (ie, the potential comfort provided by s 39A(10) and the potential of conditional consent) were not, on the proper construction of s 39A(9), mandatory considerations. In his oral reply, senior counsel for the applicant said that he was not relying on a “considerations” argument in the Peko-Wallsend sense but on legal unreasonableness. He identified the species of unreasonableness being alleged by reference to ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [18] (Kiefel CJ, Bell, Gageler and Keane JJ) (ABT17), where the issue of reasonableness was identified as turning on “when if at all compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of those powers might compel the Authority to adopt” a particular course.

135    Their Honours went on at [19] to observe that the answer to that question was to be found in recognising that “[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made” (quoting Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [91] (Gageler J)). ABT17 was thus concerned with the potential for the final decision of an administrative review body to be vitiated by an unreasonable use of (or, in that case, failure to use) one of its procedural powers.

136    The present case is different in that the final decision of the Tribunal was attacked on (relevantly here) procedural fairness grounds, with the denial of procedural fairness said to flow from the invalidity of anterior decisions by a third party (the Minister). It was necessary to the applicant’s argument that one or more of these anterior decisions – the refusals of consent – be invalid, in the sense of lacking legal effect; and the source of that invalidity was said to be unreasonableness. That unreasonableness was said to inhere in the reasoning underlying the refusals, not in the procedures that led to them. ABT17 has nothing to say here.

137    Rather, the genre of unreasonableness with which we are presently concerned is that which was described by Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [2]-[13], which involves a conclusion of unreasonableness either “after the identification of jurisdictional error for a recognised species of error” or an “‘outcome-focused’ conclusion without any specific jurisdictional error being identified” (at [6] citing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [44]). The basis for such an “outcome-focused” conclusion can be expressed in many ways, and Allsop CJ warned against over-categorisation and the use of rigid formulae, but it necessarily involves the decision-maker trespassing outside their area of decisional freedom by making a decision that can be described in terms such as arbitrary, capricious, disproportionate or lacking an evident and intelligible justification.

138    Here, the applicant did not advance any submission based on a “recognised species of error” – in particular, senior counsel steered away from the recognised relevant “considerations” ground based on Peko-Wallsend. He did not submit that the two factors referred to in the applicant’s submissions (the effect of s 39A(10) of the AAT Act and the potential for conditional consent) were matters that the AAT Act required the Minister to take into account in deciding whether to grant consent. In the light of the subject matter of the discretion and the broad terms in which it was framed, we would have rejected such a submission. In our view, if the Minister was not required as a matter of law to take these matters into account, a failure to do so could not, without more, constitute an error vitiating the decision (cf Foster, above).

139    Adding the epithet “unreasonable” does not change that position: BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; 298 FCR 609 at [147]-[151] (Bromwich and Kennett JJ). It was necessary for the applicant to show that the Minister’s decision, in the circumstances of the case, had some quality (eg arbitrariness or lack of evident justification) that justified its characterisation as unreasonable in an “outcome-focused” sense. Three things can be said about this.

140    First, the refusals of consent were not obviously disproportionate or illogical responses to the circumstances with which the Minister was presented. In issuing the certificates, the Minister had accepted advice that disclosure of the certificated materials and of evidence or submissions about it would be contrary to the public interest because it would prejudice security. Exclusion of the applicant’s representatives from the parts of the hearing in which certificated materials were tendered or discussed was the default position under the statute.

141    Second, in Traljesic, where the applicant sought review of a decision to issue a certificate under ss 39A and 39B of the AAT Act, Rares J rejected contentions that the Attorney-General had erred in considering the risk of inadvertent disclosure of sensitive information either in granting a certificate or in refusing consent under s 39A(9). His Honour referred at [23]-[26] to earlier cases where this had been discussed. One of these was Jackson, the relevant passage of which is set out above at [67]. The points made by Wilcox J in that passage (and endorsed by Rares J) meant that there were sound reasons for the Minister to be extremely cautious about allowing the applicant’s legal representatives to be exposed to any of the certificated materials even assuming that those representatives were conscientious and assiduous in adhering to any non-disclosure obligations imposed on them. The matters to which the applicant pointed (the effect of s 39A(10) and the potential for imposing conditions on consent) were therefore not so obviously compelling as to make the refusal of consent unreasonable. Indeed, to some extent, s 39A(10) cut both ways. As noted in Traljesic at [28]-[29], the fact that a legal representative who was permitted to be present under s 39A(9) could not take instructions from their client about the certificated materials would significantly limit the utility of their being present.

142    Third, because reasons were not provided for issuing the first to third certificates or for the refusals of consent associated with them, this was not a case where counsel seeking to defend the decisions was limited to the decision-maker’s reasons as the source for potential justifications (cf eg Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v KFTJ [2026] FCAFC 52 at [47] (Perry, Kennett and Shariff JJ)). The absence of reference to s 39A(10) or the possibility of conditional consent in the briefing notes was not a sufficient basis for an inference that these points did not cross the Minister’s mind. In any event, the question that arose for the purpose of a reasonableness analysis was whether the Minister had a rational justification for the decisions she made, not whether she adverted to factors that might have supported a different decision. As we have noted, the applicant did not mount a case based on a duty to take into account those potentially countervailing factors. Even if those factors never occurred to the Minister, that would not be enough to establish unreasonableness in circumstances where it was open to her not to regard them as compelling.

6    THE REMAINING ISSUES IN THE APPEAL

143    The applicant ultimately did not press grounds 1 and 3 of the notice of appeal. The issues that remain for resolution are therefore:

(a)    whether the Tribunal erred by failing to comply with ss 43 and 43AAA of the AAT Act (ground 2);

(b)    whether the Tribunal addressed the correct issue for the purposes of s 315A of the Telecommunications Act (ground 4); and

(c)    whether the Tribunal failed to address the applicant’s case or made a decision that was legally unreasonable (ground 5).

144    In addition, a further procedural fairness issue in relation to the additional document (paragraphs (b) and (c) of ground 1E, referred to above in connection with the fourth certificate) was the subject of submissions at the resumed hearing. We deal with that issue first.

6.1    The residual procedural fairness issue

145    The briefing note to the Minister seeking the making of the fourth certificate recorded that ASIO had “provided the [Tribunal] with” the additional document during the closed portion of the hearing and that:

ASIO’s Senior Counsel noted—and the AAT accepted—that although the document was not yet covered by a public interest non-disclosure certificate, s 39B(11) of the AAT Act requires the AAT to do all things necessary to ensure the document is not communicated or made available to any person contrary to the requirements of security.

146    The transcript of the confidential hearing reveals that the additional document had only been received by ASIO the previous week. It was handed up to the Tribunal and the respondents’ witness, Mr McNamara, was asked some questions arising from it. Although the Deputy President indicated that the document might be handed back pending the obtaining of a certificate, we have found no reference to that actually occurring.

147    As noted above, the respondents did not submit that the fourth certificate had any retrospective operation. No relevant certificate was in place when these events occurred. Paragraphs (b) and (c) of ground 1E of the notice of appeal allege that, in these circumstances, receiving the additional document and evidence about it in closed session constituted a denial of procedural fairness. The respondents contend that s 39B(11) of the AAT Act provided the foundation for the Tribunal’s approach to receiving the additional document.

6.1.1    Did s 39B(11) permit the Tribunal to receive the additional document (and hear evidence and submissions about it) in the absence of the applicant and its representatives?

148    This issue concerns the relationship between ss 39B(11) and 39A(6) of the AAT Act. Section 39A(6), as noted earlier, provided that the applicant and a person representing the applicant “may be present” when the Tribunal received evidence and heard submissions in a proceeding in the Security Division. It was expressed to be subject to s 39A(9) (which has been discussed above, and which applied only where the evidence being adduced or submissions being made were the subject of a certificate under s 39A(8)).

149    In context, the word “may” in s 39A(6) is to be understood as conferring an entitlement on the applicant rather than conferring a discretion on the Tribunal. Prima facie, therefore, the Tribunal could not receive the additional document in a hearing from which the applicant was excluded. To do so would be contrary to s 39A(6) and the principles of procedural fairness as reflected in the AAT Act, and would be an error of law capable of being the subject of orders in this appeal.

150    The respondents contend, however, that s 39A(6) should also be read subject to s 39B(11). On that understanding, the Tribunal was empowered by s 39B(11) to exclude the applicant (and its representatives) from the hearing when the additional document was received and evidence was given or submissions made about its contents, even though it was not the subject of a certificate when that hearing took place. The applicant resists this contention.

151    Section 39B(11) imposed a duty on the Tribunal “even though there may be no relevant certificate under this section”. Those words referred only to a certificate under s 39B(2) (not s 39A(8)); and s 39B(11) sat within a section that dealt with disclosure of the information supplied to the Tribunal by the Director-General pursuant to s 39A(3) rather than with the conduct of hearings. The opening words of s 39B(11) therefore confirm that the Tribunal was permitted to receive the additional document without providing it or disclosing its contents to the applicant despite there being no certificate in place; however, they do not go very far in resolving a question about the relationship between ss 39B(11) and 39A; ie, whether the Tribunal was empowered to exclude the applicant and its representatives from the hearing while the document was being received and its contents discussed.

152    The operative language of s 39B(11), however, was broad. It required the Tribunal to pursue the aim of ensuring that “information” (not limited to the contents of documents before the Tribunal) was not “communicated or made available” to anyone “contrary to the requirements of security”. The Tribunal was therefore required to make and act upon its own assessment of what “security” required (in contrast to the certification provisions, which involved a judgement by the Minister). The Tribunal was to pursue this aim “so far as it is able to do so”. Contrary to a submission advanced by the applicant, the word “able” (rather than, eg, “permitted”) connotes the practical ability to do things rather than a conferral of power elsewhere in the AAT Act to do them. It therefore indicates that s 39B(11) was a source of power, as well as duty, to prevent the disclosure of information when the “requirements of security” demanded. Steps to prevent the disclosure of information could rationally include excluding a party from the hearing while the information was presented to the Tribunal and questions were asked about it.

153    This understanding is supported by the statutory context and in particular by considerations of practicality. Sections 39A and 39B of the AAT Act, which must be read harmoniously together if possible, fell to be applied in circumstances where the Director-General was required to “present to the Tribunal all relevant information available” under s 39A(3) and that obligation continued during the review. Further information might come to light; new information might be received (as happened here); or additional information might become relevant depending on the arguments raised in the review or outside events while the review was in progress. As noted earlier, it could not be guaranteed that the Tribunal would be prepared to grant adjournments in order to allow further certificates to be sought by the Minister. Parliament is unlikely to have intended that the consequence of the Director-General complying with s 39A(3) would be either repeated adjournments of the review, or the disclosure of information “contrary to the requirements of security” if the Tribunal did not wish to adjourn. The better view is therefore that s 39B(11) empowered the Tribunal (despite s 39A(6)) to receive information in a closed hearing where that was appropriate in order to prevent a disclosure that was “contrary to the requirements of security”.

154    We are satisfied that this is what the Tribunal did. It did not require any specific “order” to be made, at least in circumstances where the Tribunal hearing was already closed.

155    We add for completeness that we do not consider the respondents’ position to be advanced by the submission that protection under s 39B(11) was being sought only on a temporary basis, pending an approach to the Minister under s 39B(2). The duty of the Tribunal to act under s 39B(11) could only be engaged by its satisfaction that disclosure of the contents of the document would be “contrary to the requirements of security”. Whether there was an intention to approach the Minister and seek a certificate in relation to the document does not appear to us to affect that assessment.

6.1.2    Was the Tribunal required to hear from the applicant before proceeding in closed session?

156    Senior counsel for the applicant submitted that, before any step was taken in reliance on s 39B(11) of the AAT Act, it was entitled to be heard as to whether that provision was engaged and whether some step falling short of its complete exclusion from the hearing could be taken so as to comply with the requirements of security. He appeared to accept that the counsel making any such submissions would probably know little or nothing about the contents of the document and might not be able to say very much. The respondents, meanwhile, did not submit that the exercise of power under s 39B(11) was not conditioned by any obligations of procedural fairness, but did point to the recognised principle that “reasons of national security may make it impossible to disclose the grounds on which the executive propose to act”: Leghaei v Director-General of Security [2007] FCAFC 37; 241 ALR 141 at [48] (Tamberlin, Stone and Jacobson JJ) (Leghaei).

157    We accept that the principles of procedural fairness were not excluded in relation to s 39B(11) and the fact that the document in question contained (or at least was said to contain) information whose disclosure was prejudicial to security did not reduce those obligations to “nothingness”: cf Leghaei at [50]-[52]. However, as has been repeatedly stated, the principles of procedural fairness are not set in stone; they are concerned with “practical injustice”: eg, see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]-[38] (Gleeson CJ). Precisely what is required will depend on the circumstances. It is to be recalled that s 39B(11) imposes a “duty” on the Tribunal. How that duty is discharged, especially in the context of matters affecting national security and where the interests of a review applicant are affected, may depend on the exigencies at hand.

158    The applicant submitted that counsel appearing for the applicant could have been afforded an opportunity to be heard on behalf of the applicant and at least have urged the Tribunal to consider with care whether any part of the document (or the gist of the document) could be disclosed to its legal representatives on conditions (for example such representatives having security clearance). Whilst we accept that this opportunity was not given, we do not consider that that amounted to a denial of procedural fairness in the circumstances in which the additional document came to be tendered.

159    There is no practical injustice in this case. It is to be borne in mind that at the relevant time, and consistent with the statutory scheme where the certificates had been issued, the Tribunal was proceeding in a closed session. Having reviewed the additional document, we consider it very clear that the disclosure of its contents to the applicant, or to any persons connected to the applicant (including its legal representatives) would have been contrary to the requirements of security. Hearing submissions from the applicant’s counsel about what should be done under s 39B(11) was therefore very unlikely to have led to any outcome other than what actually occurred. Indeed, we are not certain how the Tribunal could have invited the applicant’s counsel to address whether the document should be accepted for tender in any meaningful way without in some way disclosing aspects of its contents. Given the duty in s 39B(11), and the content of the additional document, the applicant’s suggestions as to what its counsel could have submitted to the Tribunal are self-evidently impractical.

160    Because the receipt of the additional document in the absence of the applicant was authorised by s 39B(11) of the AAT Act, it did not constitute a denial of procedural fairness vitiating the Tribunal’s final decision in the review.

6.2    Ground 2: sections 43 and 43AAA of the AAT Act

161    In its open reasons at [7]-[12] the Tribunal noted certain differences between proceedings in the Security Division and other reviews conducted by the Tribunal. Some of these differences were procedural and arose from ss 39A and 39B of the AAT Act, which are the subject of the grounds discussed above. The Tribunal also observed at [9] that, whereas in most reviews it “does over again” the task of the original decision-maker and has no need to engage with the original decision and its reasons, s 43AAA(2) of the AAT Act called for the recording of “findings” and invited the Tribunal to state its opinion about the correctness or justification of findings recorded in the ASA. At [10] the Tribunal noted the interplay between s 61 of the ASIO Act (which provides that any findings by the Tribunal supersede an original assessment to the extent they are inconsistent with it) and s 43AAA(3) of the AAT Act (which provided that the Tribunal was not to make findings that would have the effect of superseding the ASA unless it says that in its opinion the information in the ASA is “incorrect”, “incorrectly represented” or “could not reasonably be relevant to the requirements of security”). The consequence of these provisions is that the Tribunal was required to engage with the “findings” in the ASA and with whether those findings were correct or justified. This reflects the fact that an ASA is a form of advice provided to a Commonwealth officer or agency, rather than a “decision” in the more usual sense of a decision whether to confer or cancel some legal right or status. At [11] the Tribunal said:

It has been said elsewhere that s 43AAA contemplates us “marking up” the ASA in light of the material before us rather than “doing over” the decision without further regard to the primary document. That is a fair observation although it should be emphasised the review contemplated under s 43AAA is still a full merits review —just one that proceeds in a different way.

162    Next, at [12] the Tribunal noted that “questions” had arisen about whether its statutory task was exhaustively defined by s 43AAA or (on the other hand) s 43 also applied so that it was necessary for the Tribunal to make a decision under s 43(1). Decisions by this Court and the Tribunal supporting the competing views were referred to. The Tribunal then said:

We do not need to resolve that debate here. We will formally make a decision under s 43 in this case although our focus is necessarily on the task required in s 43AAA. As we shall explain below, the scope of the task contemplated in s 43AAA is shaped by the end for which the particular ASA was provided.

163    At [39] of its open reasons, the Tribunal described what it had done in its confidential reasons as follows.

We have set out the entire classified statement of grounds in our closed reasons and insert, by way of annotation, our findings in relation to the correctness of, or justification for, the opinions, advice or information contained therein. It is not appropriate for us to reproduce a redacted version of that analysis in the open reasons because doing so may reveal confidential information about the nature of the concerns which cannot be disclosed.

164    At [51] of its open reasons, the Tribunal expressed findings for the purposes of s 43AAA as follows.

In our closed reasons, we have set out the confidential statement of grounds and conducted a line-by-line analysis. We explained our findings in light of the open and closed material. As we explained earlier, it would not be appropriate for us to describe that evidence or even indicate its extent or emphasis (and its extent or emphasis might become apparent even if we were to simply provide redacted reasons). We are satisfied as to the correctness of, and justification for, the opinions, advice and information contained in the ASA. We are not satisfied that any of the information is incorrect, is incorrectly represented or could not be reasonably relevant to the requirements of security.

165    Consistently with [12] of its open reasons the Tribunal also published a formal “decision”, which was as follows.

The Tribunal affirms the decision under review.

166    Ground 2 of the notice of appeal was as follows.

The Tribunal failed to exercise its jurisdiction to review the adverse security assessment because:

(a)    under s 43AAA(2) of the AAT Act, the Tribunal was required to conduct a full merits review of the adverse security assessment, and make its own findings in relation to the security assessment;

(b)    the Tribunal instead limited its task to “checking” whether the opinions, advice or information in the assessment were “correct” or “justified”;

(c)    further and/or alternatively to paragraph (b), the Tribunal purported to exercise its powers in s 43(1) of the AAT Act, which are not available in relation to a review in the Security Division of a security assessment.

(Particular omitted.)

167    As to paragraphs (a) and (b), it is not clear where the reference to “checking” comes from. We have not found any uses of that word in the open reasons. We assume that this was intended to take issue with [11], where the Tribunal referred to “marking up” the ASA. However, no error arises from the Tribunal having observed that this description had been applied to the Tribunal’s task under s 43AAA “elsewhere” (as a way of contrasting it from the Tribunal’s role in other areas) and this was “a fair observation”. In the very next sentence the Tribunal said that it should be “emphasised” that s 43AAA still required a “full merits review”.

168    As to whether that “full merits review” was actually performed, the applicant characterises the Tribunal’s conclusion at [51] (that it was not satisfied any of the findings in the ASA were incorrect etc) as an exercise of the power in s 43AAA(2) (to opine on the correctness or justification of the findings in the ASA) but says that the open reasons do not set out the Tribunal’s own “findings in relation to the security assessment” (so as to comply with the duty in that subsection). This point was not developed at any length in the oral submissions. To the extent that it calls for something more than an assessment of the findings in the ASA, it is inconsistent with the applicant’s submission (recorded by the Tribunal at [24]) that:

the task of the Tribunal is to assess whether the ASA is reasonable (justified), and whether the information on which it is based is reasonably relevant to the requirements of security (correct).

169    Section 43AAA(2) of the AAT Act was somewhat inelegantly drafted, in that it required the Tribunal to “make … its findings”. The expression “its findings” would normally be understood to refer only to the findings the Tribunal actually made; however, a requirement for the Tribunal to make the findings it makes would be nonsensical. We therefore proceed on the basis that s 43AAA was intended to impose a duty on the Tribunal to make, as well as record, findings of a particular kind. Bromwich and Abraham JJ apparently proceeded on this basis in SDCV FFC at [191]. However, the only words in s 43AAA(2) capable of identifying findings that were required to be made were “findings in relation to the security assessment”. A stipulation that the Tribunal was to make findings of that kind added little if anything to the provision in s 39A(1) requiring the Tribunal to “review the assessment”.

170    Ultimately the applicant’s complaint seems to be that, so far as one can tell from the open reasons, what the Tribunal did (and set out in detail in its confidential reasons) was to assess and make findings about the correctness of or justification for the opinions, advice or information contained in the ASA. How this was deficient – for example, what other “findings” the Tribunal was required to make and set out – is not explained; the applicant does not appear to have asked the Tribunal to do more; and, if the only findings that the Tribunal made about the ASA were findings concerning “the correctness of, or justification for, any opinion, advice or information contained in the assessment”, that does not appear to us to involve a failure to make necessary findings for the purposes of s 43AAA(2) (or a failure to conduct a full merits review).

171    Had the Tribunal disagreed to any material extent with conclusions expressed in the ASA, the obligation to “review” the ASA would arguably have required the Tribunal to set out its own findings on those matters so that those findings would supersede the ASA (pursuant to s 61 of the ASIO Act). However, as appears from the open reasons at [51] (and is confirmed by our review of the confidential reasons), the Tribunal, having closely considered the material before it, was satisfied of the correctness of all of the propositions in the CSOG and thus found nothing with which to disagree in the ASA. The duty to review the ASA did not require it to do more than record that conclusion and the reasons for it. We reject these aspects of ground 2.

172    As to paragraph (c), the question whether s 43(1) of the AAT Act applied to a review in the Tribunal’s Security Division does not appear to have been considered by any Court. We were referred to SDCV FFC at [191], where Bromwich and Abraham JJ said that the “better view” was that the general requirements as to the content of a statement of reasons in s 43(2B) endured despite the terms of s 43AAA(2). It is implicit in that conclusion, and plainly textually correct, that s 43(1A) (which provided that s 43 “has effect subject to” s 43AAA) did not entirely exclude the application of s 43 to a review of a security assessment. Section 43(1A) stands in contrast with provisions in the AAT Act which provided that particular sections did “not apply” to a proceeding in the Security Division (ss 19A(2), 19B(4), 19D(3), 28(1AAA)(a), 30(1AA), 30A(1AA), 31(2), 33A(2), 34, 35(6), 36(1AA), 36A(1AA), 36B(1AA), 36C(1AA), 36D(1AA), 37(1AAA), 38(2), 39(2)(a)).

173    Section 43(1A) confirmed that s 43AAA prevailed to the extent that its provisions were inconsistent with those of s 43 (for example, by requiring the Tribunal to “record” its findings s 43AAA(2) would appear to have precluded giving reasons orally (cf s 43(2)); and s 43AAA(5) displaced the general requirement in s 43(3) and (5) to provide the Tribunal’s reasons to all parties). However, none of these modifications suggested an intention that s 43 was to be entirely excluded.

174    One issue that we raised with counsel during oral argument was whether the types of decision permitted by s 43(1) (to affirm, vary or set aside the decision under review) were capable of meaningful operation in the case of a security assessment, which is arguably a form of advice to a decision-maker rather than a decision directly modifying legal rights or duties. In this connection counsel drew our attention to s 315A(3) of the Telecommunications Act (set out above at [19]), which makes the furnishing of an ASA a prerequisite for the exercise of the Minister’s power under s 315A(1). At least in the present case, therefore, the ASA has a clearly identifiable and potentially important statutory effect. Although s 315A(3) is literally expressed in terms of the Minister having been “given” an ASA in connection with the section we consider it at least arguable that, if the Tribunal were to make a decision to “set aside” the ASA before a direction had issued under s 315A(1), the power to give such a direction would no longer be available. Security assessments were therefore exercises of power that at least potentially had effects on rights capable of being “affirmed”, “varied” or “set aside”. This supports the conclusion, which in our view flows from the words of s 43(1A), that s 43(1) was not intended to be excluded. The Tribunal therefore did not exceed its power by publishing a decision “formally” affirming the ASA. This aspect of ground 2 must also be rejected.

175    The respondents also submitted that, if the Tribunal did err in this way, that error was immaterial. It is unnecessary to address this submission given that we have concluded that there was no such error.

6.3    Ground 4: section 315A of the Telecommunications Act

176    Section 315A(1), as the applicant puts it, bifurcates in both paragraphs (a) and (b) by reference to whether the person concerned “proposes” to supply carriage services or actually supplies them. It is submitted that, therefore, in the case of a person who (currently) “supplies” such services, the question posed by paragraph (b) is whether that supply “is” (rather than “would be”) prejudicial to security. On this footing, the applicant submits that the Tribunal asked itself the wrong question. The submission focuses on the open reasons at [22], where the Tribunal said:

The prescribed administrative action in question in this case is the exercise of the power contained in s 315A(1) of the Telecommunications Act. That section permits the minister responsible for ASIO (the Home Affairs Minister in this case) to give a carriage service provider like the applicant a written direction to cease using or providing carriage services if the minister forms the view that the use or supply of the services by that entity is or would be “prejudicial to security”.

(Emphasis in original.)

177    This is said to have been erroneous because, properly understood, the only question in the present case was whether the applicant’s provision of services was prejudicial to security.

178    The short answer to this contention is that at [22] the Tribunal was merely identifying the “prescribed administrative action” for the purposes of its review of the ASA. The question whether the power in s 315A should be exercised was one for the Minister and lay in the future. The Tribunal’s task was to review the ASA and consider whether any of the findings and conclusions set out in it were incorrect, not justified or not relevant to security. To the extent that the Tribunal misdescribed the question to be considered by the Minister, we are unable to discern any way in which this could have infected the performance by the Tribunal of its own function.

179    A further answer is that the expression “prejudicial to security” involves an assessment of risk which is necessarily forward looking. That follows from the definition of “security”, set out above at [21], which revolves around “threats” of various kinds, and the nature of the direction that can be given to a supplier of services under s 315A (to cease providing those services; ie, not to provide them in the future). For the purpose of deciding whether an existing supplier of services should be directed to cease supplying them, there is no practical difference between asking whether its (current and continuing) supply of services “is” prejudicial to security or whether its (future) supply of the same services “would be” prejudicial. Either way the decision-maker must assess, on the basis of current knowledge, whether there is a risk of harm to Australia’s interests if the services continue to be supplied in the future. Another way of arriving at the same position is that any existing supplier of services who intends to continue to supply those services is a person who “proposes” to supply the services for the purposes of s 315A(1)(a).

180    A footnote immediately after the passage from [22] of the Tribunal’s open reasons that we have set out above at [176] referred to an explanation by King’s counsel for the Director-General that concerns about prejudice to security in the present case “might be current or prospective”. Either concern would be capable of justifying a conclusion that the continued supply of services by the applicant “is” prejudicial to security, if that was the applicable test.

181    Ground 4 must therefore be rejected.

6.4    Ground 5: legal unreasonableness

182    Under this ground the applicant alleges that the Tribunal:

(a)    reasoned irrationally or illogically in reaching conclusions of fact and drawing inferences from the material before it;

(b)    failed to have regard to aspects of the case that the applicant articulated before it; and

(c)    made a decision that was legally unreasonable.

183    The first limb of ground 5 was put by reference to a summary of the applicant’s case before the Tribunal contained in its written submissions. To some extent that summary is not accepted by the respondents as an accurate account of what was put before the Tribunal. The applicant recognised that it was impossible for it to make meaningful submissions about what the Tribunal might have failed to consider, or to advance cogent arguments as to why the decision was unreasonable, because that would require engagement with both the confidential reasons and a significant body of evidence and submissions that it has not been able to see. In substance this ground asked the Court to examine the confidential material and consider whether unreasonableness, or failure to engage with the applicant’s contentions, was evident.

184    The sensitive nature of much of the material, together with the obligation imposed on the Court by s 46(2) of the AAT Act, also makes it impossible for us to explain our reasoning on this ground in any detail.

185    In his oral address senior counsel for the applicant pointed to some specific aspects of the open material (not referred to in the written submissions) and handed up a document, described as an aide-memoire, setting out 21 questions which it was submitted the Court should consider in its review of the material. The respondents objected to this document being received at short notice and with no leave having been granted. We decided to receive the document and invite the respondents to file a written response making reference to both the open and the confidential material. This process proved to be useful, particularly in circumstances where the opportunity to hear from the respondents in closed court was truncated by the hearing having run over time.

186    We have considered the evidence and arguments before the Tribunal. We are not satisfied that there was any failure to engage with the applicant’s arguments or that the ultimate decision of the Tribunal was unreasonable. We consider that there was ample evidence to support the conclusions to which the Tribunal came.

187    This ground must therefore be rejected.

7    Disposition

188    The notice of appeal must be dismissed. The same result must also follow in proceeding NSD1692/2025, which was commenced by the applicant in order to challenge the validity of the certificates. The issues in that proceeding were entirely subsumed in the arguments advanced in the appeal.

189    The respondents have sought the costs of the appeal and there is no reason why costs should not follow the event.

Associate:

Dated:    18 September 2026