Where certificated matter not disclosed to appellant, is Section 46(2) of AAT Act invalid on basis that Ch III of Constitution precludes making of law that denied party to proceedings in court of federal judicature fair opportunity to respond to evidence?
SDCV v Director-General of Security [2022] HCA 32 (12 October 2022)
Intro:-
This is an appeal from the Full Court of the Federal Court of Australia.
Facts:-
The appellant is a citizen of Lebanon. He married his wife, who is an Australian citizen, in 2010. On 13 December 2012, the appellant was granted a Class BS Subclass 801 Partner (Residence) visa. He made an application for Australian citizenship.
Several of the appellant's relatives were connected with an organisation known as the Islamic State of Iraq and the Levant ("ISIL"), which was, and remains, specified as a terrorist organisation. In a summary of the statement of grounds for the ASA certificate, ASIO described ISIL as:-
"an Iraq and Syria‑based Sunni extremist group and former al‑Qa'ida affiliate that adheres to the global jihadist ideology. ISIL follows an extreme interpretation of Islam which is anti‑Western, promotes sectarian violence, and targets those who do not agree with its interpretation as infidels and apostates."
Some of the appellant's relatives were convicted of and sentenced to imprisonment for attempted terrorism offences committed in Australia. ASIO investigated the appellant as to whether he was involved in those terrorism offences but he was not found to have been involved. Nevertheless, the appellant was advised that his citizenship bestowal ceremony, which was necessary for the conferral of his citizenship, had been delayed pending consideration of whether his visa should be cancelled.
The ASA decision and the cancellation of the appellant's visa
As noted above, on 21 August 2018, the appellant's visa was cancelled, the ASA decision having been furnished to the Department of Home Affairs on 16 August 2018. Pursuant to ss 37(2)(a), 38(1), 38(2)(b) and 38(5) of the ASIO Act, a person the subject of an ASA is to be informed of the grounds for the ASA and given all the information relied upon in making it, except to the extent that the Director‑General, acting reasonably and under a correct understanding of the law, concludes that such disclosure would be "contrary to the requirements of security"; or the ASIO Minister is satisfied that disclosure "would be prejudicial to the interests of security". Parts of the statement of grounds that accompanied the ASA certificate were deleted in accordance with s 38(2)(b) of the ASIO Act. These deletions were consequent upon the public interest non‑disclosure certificate signed by the ASIO Minister.
It is to be noted that statutory rights as a visa holder are subject to cancellation upon the making of an ASA, in respect of which the visa holder is to be kept uninformed of security‑sensitive information bearing upon its making. So long as the administrative decisions concerning the non‑disclosure of that information are valid, an ASA may be made, and the rights of a visa holder to enter and remain in Australia may be cancelled, on the basis that such information must not be disclosed to the subject of an ASA. Any claim by a visa holder to vindicate his or her rights as such must necessarily proceed subject to the prohibition on disclosure of security‑sensitive information.
The application to the Tribunal
As noted above, the appellant sought review of the merits of the ASA decision by the Tribunal pursuant to s 54 of the ASIO Act. Pursuant to ss 39A and 39B of the AAT Act, the review was conducted in the Security Division of the Tribunal constituted by two Deputy Presidents and a Senior Member.
The appellant was subsequently furnished with a revised statement of grounds, in consequence of a partial revoking of the public interest non‑disclosure certificate upon the grounds that certain information was no longer prejudicial to security. This statement recorded that the appellant: had support for politically motivated violence and ISIL; and employed communications security tradecraft practices while engaging with individuals of security concern, including Syria‑based individuals affiliated with ISIL.
In relation to the appellant's alleged support for politically motivated violence and ISIL, the revised statement of grounds recorded that the appellant had said in interviews that he had never supported or been affiliated with any group in the Syria/Iraq conflict, including ISIL. ASIO's assessment was that these statements were likely to have involved untruthful answers, because the appellant believed it would have had an adverse effect on his citizenship application or his ability to continue to hold his visa.
In relation to the appellant's alleged employment of communications security tradecraft practices while engaging with individuals of security concern, the revised statement of grounds recorded that the appellant was found:
(1) to have used a covert phone obtained specifically to communicate with his brother based in Syria, using an encrypted messaging app;
(2) also to have used that covert phone to communicate with a relative who was an ISIL leadership figure and to communicate with Australian‑based family members of security interest who had been convicted of very serious offences (as noted above, the appellant was not found to have been involved in those offences);
(3) to have disposed of that covert phone, as the appellant said he had done when interviewed by ASIO, because of fears that he may have done something illegal by using it; and
(4) to have provided inaccurate information to ASIO about the existence, use and disposal of the covert phone, and that this demonstrated a heightened security awareness which indicated that the communications were likely of security concern.
As noted above, the appellant's application to the Tribunal was unsuccessful. The Tribunal's "open" reasons record that it was not able to be satisfied whether the ASA decision was justified on the evidence led in open session, but that it was so satisfied based upon the evidence before it in the closed session.
The legislative framework for the proceedings in the Tribunal
Section 37(5) of the ASIO Act provides that no proceedings, other than an application to the Tribunal under s 54, shall be brought in any court or tribunal in respect of the making of a security assessment, including an ASA, or anything done in respect of a security assessment in accordance with the ASIO Act. Such a review is conducted in the Security Division of the Tribunal in accordance with ss 39A and 39B of the AAT Act.
Pursuant to s 39A(3) of the AAT Act, the Director‑General is obliged to present to the Tribunal all relevant information available to the Director‑General, whether favourable or unfavourable to an applicant.
Section 39A(6) of the AAT Act provides that, subject to s 39A(9), an applicant and a person representing an applicant may be present when the Tribunal is hearing submissions made or evidence adduced by, relevantly, the Director‑General.
Section 39A(8) of the AAT Act provides that the ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of, relevantly, the Director‑General are "of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia".
Section 39A(9) provides that, if such a certificate is given, an applicant "must not be present when the evidence is adduced or the submissions are made"; and "a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents". If a person representing an applicant is present when such evidence is adduced or such submissions are made, it is an offence for the representative to disclose any such evidence or submission to the applicant or to any other person, punishable by two years' imprisonment.
The Tribunal must first hear evidence adduced and submissions made by, relevantly, the Director-General. The Tribunal must next permit an applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal.
Section 39B of the AAT Act applies to a proceeding in the Security Division to which s 39A applies. Section 39B(2)(a) provides that if the ASIO Minister certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest "because it would prejudice security or the defence or international relations of Australia", the remaining provisions of s 39B have effect. In this regard, s 39B(3) provides that where information has been disclosed or documents have been produced to the Tribunal for the purposes of a proceeding, the Tribunal "must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure", relevantly, "that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding".
Section 39B(7) of the AAT Act provides that s 39B does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal's staff in the performance of his or her duties as a member of the Tribunal's staff.
Section 39B(8) of the AAT Act provides that s 39B excludes the operation, apart from s 39B, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding.
Section 39B(11) of the AAT Act further provides that it is the duty of the Tribunal, even though there may be no relevant certificate under s 39B, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.
Upon the conclusion of the Tribunal's review, it must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment. The Tribunal must cause copies of its findings to be given to an applicant, the Director‑General, the Commonwealth agency, State or authority of a State to which the assessment was given, and the ASIO Minister. However, the Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to an applicant, is not to be given to the applicant or to the Commonwealth agency, State or authority of a State to which the assessment was given.
The legislative framework for the proceedings in the Federal Court
Section 44(1) of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to the Federal Court, on a question of law, from any decision of the Tribunal in that proceeding. The Federal Court "shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision"[39]. In particular, the Federal Court may make "an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again ... by the Tribunal in accordance with the directions of the Court"[40]. The Federal Court may make findings of fact in certain circumstances[41]. For those purposes, the Federal Court may have regard to evidence given in the proceeding before the Tribunal, and may receive further evidence[42].
Section 46(1)(a) of the AAT Act provides relevantly that when an appeal is instituted in the Federal Court in accordance with s 44:
"the Tribunal shall, despite subsections 36(2), 36B(2) and 39B(3) of this Act, ... 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".
Section 46(2) of the AAT Act provides relevantly:-
"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 ... certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia ... shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding."
In the course of the hearing of the appeal in this Court there was some discussion of whether s 46(1) and s 46(2) were merely machinery whereby the record of the proceedings in the Tribunal was transmitted to the Federal Court. It is not necessary to pursue this question further. It is sufficient to say that these provisions determined what material might be before the Federal Court and what material the appellant and his lawyers might see. As noted earlier, the Federal Court had before it the evidence and submissions that were before the Tribunal, from both the "open" and "closed" sessions, as well as the Tribunal's "open" and "closed" reasons[43].
Section 46(3) of the AAT Act provides relevantly:
"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 ... as the case may be;
(b) a question for decision by the Federal Court of Australia ... 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 ...; 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."
Section 46(4) of the AAT Act provides that "[n]othing in [s 46] prevents the disclosure of information or of matter contained in a document to an officer of the court in the course of the performance of his or her duties as an officer of the court".
Issue:-
Is s 46(2) of AAT Act invalid on basis that Ch III of Constitution precludes making of law that denied party to proceedings in court of federal judicature fair opportunity to respond to evidence on which order of court which finally altered or determined right or legally protected interest of party might be based?
Consideration:-
The appellant is a non‑citizen. His rights to enter and remain in Australia depend on his holding a valid visa under the Migration Act. Other statutory provisions circumscribe those rights: in particular, the appellant was liable to have his visa cancelled under s 501(3) of the Migration Act in consequence of the making of an ASA under the ASIO Act. Any entitlement of the appellant to disclosure of information with respect to an ASA was statutory; under statute, it could be denied by decisions of officers of the executive government where those officers considered that the public interest in Australia's security required non‑disclosure of that information. It is undisputed that, apart from s 46(2) of the AAT Act, the denial of disclosure to the appellant of security‑sensitive information, including the certificated matter, was effected lawfully. And that was so irrespective of any challenge to the validity of the ASA decision and of the outcome of that challenge. The appellant's rights were always circumscribed by the denial of disclosure of security‑sensitive information pursuant to unchallenged administrative decisions made under unchallenged laws. The statutory provisions that allowed the appellant to challenge the ASA decision in the Tribunal maintained that state of affairs in consequence of the certificates issued by the ASIO Minister under the AAT Act.
The right of appeal to the Federal Court is itself a creature of statute. On the appellant's appeal under s 44 of the AAT Act, s 46(2) maintained the position regarding non‑disclosure of security‑sensitive information relating to the ASA decision, while s 46(1) allowed the Federal Court to consider all of the material that was before the Tribunal in reviewing the ASA decision and which was relevant to the appeal. The Federal Court was thereby enabled to decide the appeal before it on the same material as that on which the Tribunal proceeded.
In considering the rights and interests of the appellant that were at stake in his appeal, it must be appreciated that he was, at all times, denied disclosure of the certificated matter by the laws regulating his presence in Australia. It may be observed that the statement by Gageler J in Pompano on which the appellant's argument relied presupposes that the rights the protection of which are at stake in the proceeding in question are different from the "right" to bring that proceeding. The unfairness which is to be avoided is the loss of those rights otherwise than by a fair judicial process. In the present case, the only right of the appellant that was relevantly at stake in the appeal to the Federal Court was his right to hold his visa or, more precisely, his right to hold his visa unless he had been the subject of a valid ASA.
The appellant's right to hold his visa free of the consequences of an erroneous ASA was subject to the qualification that an ASA was to be made with him having no access to security‑sensitive information relating to the ASA. The lawfulness of that qualification upon the appellant's rights has not been challenged. The determination of the appeal without disclosure of the certificated matter reflected the substance of the appellant's rights to access that material, that is to say, that he was by law denied disclosure. The Federal Court's duty to "do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding" meant that the appellant had no right to disclosure of security‑sensitive information relating to the ASA decision; and whether he was entitled to hold his visa free of the consequences of an erroneous ASA was to be determined on that footing.
The denial of an opportunity for the appellant to know the totality of information that justified the making of the ASA decision was an incident of the statutory regime under which the appellant was permitted lawfully to enter and remain in Australia. The statutory regime under which he was present in Australia as a visa holder denied him that information when the ASA decision was made. That was also the case before the Tribunal. There is no question that this state of affairs was lawfully imposed. Section 46(2) of the AAT Act maintained that state of affairs on the appeal to the Federal Court.
The appellant suffered no practical injustice in the determination of his appeal to the Federal Court without either him or his lawyers having access to the certificated matter. He suffered no loss of rights by reason of being denied full disclosure because his right to hold a visa unless he was the subject of a valid ASA was circumscribed by the requirement that he not be informed of security‑sensitive information in relation to that decision. Indeed, it would be "productive potentially of injustice and absurdity" if the Federal Court were to allow the appeal and remit the matter for determination by the Tribunal "on a basis different from that which the [Tribunal] had quite rightly adopted and been required to adopt when first considering the matter".
An additional remedy but no additional right
The same conclusion may be reached by considering more closely the operation of s 46 of the AAT Act as a whole.
The appellant attacked the reasoning of the Federal Court[119] that s 46(2) did not cause practical injustice to the appellant because, if s 46(2) did not exist, the certificated matter would still have been covered by public interest immunity and so would have been unavailable to the Court. The appellant argued that, in the absence of s 46(2), if a claim for public interest immunity were upheld, the certificated matter would not be available to either party or to the Court. On that basis, the appellant would not be subject to the alleged forensic disadvantage of being denied the opportunity to know and respond to the certificated matter that was available to the Federal Court. The appellant's argument is flawed in its focus upon the operation of s 46(2) as if it has an operation independent of s 46(1).
Had the appellant challenged the validity of the ASA decision by judicial review proceedings under s 75(v) of the Constitution or s 39B of the Judiciary Act immediately upon the making of that decision, there can be no doubt as a practical matter that those proceedings would have been heard and determined on the footing that the certificated matter could not be disclosed to the appellant for the purposes of those proceedings[120]. Nothing in the legislative regime which provided, validly, for the making of the ASA decision altered the position that the law required that the certificated matter not be disclosed to the appellant on appeal to the Federal Court. Section 46(2) of the AAT Act confirmed that this state of affairs was not altered by the operation of s 46(1) in relation to an appeal under s 44.
It is clear, as a matter of statutory construction, that s 46(2) of the AAT Act has no operation independently of s 46(1), and so one cannot begin to answer the question whether the determination of the appellant's appeal to the Federal Court involved practical injustice by focussing exclusively on s 46(2) as if it does. When one considers the operation of s 46 as a whole, it is readily apparent that it confers an additional remedy upon a person in the position of the appellant but does not alter the state of affairs under which that person is lawfully denied disclosure of security‑sensitive information.
As noted above, s 46 of the AAT Act applies to an appeal to the Federal Court under s 44, which provides an alternative to the constitutionally entrenched avenue of judicial review in s 75(v) of the Constitution and the further statutory avenue of judicial review under s 39B of the Judiciary Act[122] as a means of challenge to an ASA. On one hand, pursuing one of those avenues would have avoided the procedural disadvantage identified by the appellant. On the other hand, neither of those avenues would have included the advantage assured to the appellant by s 46(1), in having the certificated matter placed before the Court. Without s 46(1), a person in the position of the appellant might struggle to make out the error for which he or she contends before the Federal Court, especially in a case such as the appellant's where one of the asserted errors was that the Tribunal's decision was not open on the evidence before it. Section 46(1) thus provides a forensic benefit to a litigant in the position of the appellant.
It cannot be supposed that, if this Court were to hold that Parliament may not validly call upon a Ch III court to entertain an appeal under s 44 of the AAT Act which is affected by s 46(2), it would follow that a person in the position of the appellant could proceed with the appeal free of the forensic "disadvantage" imposed by s 46(2) but with the forensic advantage of s 46(1). If s 46(2) is invalid by reason of its inconsistency with Ch III, then s 46 is invalid in its entirety. The provisions of s 46 cannot have been intended to operate otherwise than as a package: in this regard s 46(2) makes no sense at all without s 46(1). The courts have no power to engage in a rewriting of s 46 to alter its intended effect.
If s 46 of the AAT Act were invalid in its entirety, it is, as a practical matter, distinctly unlikely that the Federal Court would ever be able to consider information precluded from disclosure by certificates issued by the ASIO Minister on an appeal under s 44. Public interest immunity could be expected to prevent the use of such information by the Federal Court. As a practical matter, it is safe to say that, in the appellant's case, there is no good reason to think that the certificated matter could have been disclosed to the Federal Court in the absence of s 46(1).
The choice of an alternative avenue of challenge under s 75(v) of the Constitution or s 39B of the Judiciary Act would not have offered the forensic advantage provided by an appeal under s 44 of the AAT Act; but it would have obviated the forensic "disadvantage" that is said to be the basis of the appellant's argument in this Court. That being so, it is difficult to accept that the avoidable consequences of s 46(2) caused him any practical injustice. The appellant chose the remedy that carried the benefit of s 46(1) available only on the terms contained in s 46(2).
That s 46 of the AAT Act stands or falls in its entirety highlights the artificiality of the appellant's complaint, and helps to demonstrate that s 46(2) was not apt to cause him any practical injustice in the determination of his appeal to the Federal Court. That is because the effect upon his appeal of the forensic consequences of s 46(2) cannot be considered separately from the forensic advantage conferred by s 46(1): one comes with the other. To the extent that the benefit of s 46(1) may be thought to outweigh the limitation imposed by s 46(2) so that a person in the position of the appellant chooses to pursue an appeal under s 44 rather than the other available avenues of challenge, no practical injustice is suffered. There is only the choice of a remedial procedure that is less advantageous for an appellant than it might have been, but, nevertheless, more advantageous for an appellant than the alternatives, none of which can sensibly be said to be practically unjust. Each alternative remedy is simply what the law provides, that being indisputably a matter for the Parliament. The choice of remedy was a matter for the appellant.
Conclusion and orders:-
The appellant was lawfully denied the right to know the totality of information which led to the making of the ASA decision under unchallenged laws and unchallenged administrative decisions directed to the preservation of confidentiality in the interests of national security. Section 46(2) of the AAT Act was consistent with the statutory provisions establishing the rights of the appellant to enter and remain in Australia. Moreover, s 46(2) did not affect the integrity of the Federal Court in the independent and impartial performance of its functions.
An appeal under s 44 of the AAT Act, to which s 46 applies, is additional to the available remedies under s 75(v) of the Constitution or s 39B of the Judiciary Act. As a practical matter, any "disadvantage" to the appellant occasioned by s 46(2) would have been avoided by the choice of proceedings under these other remedies. But such a choice would have denied the appellant the forensic advantage offered by s 46(1) in having the certificated matter provided to the Court. Section 46(2) operated inseparably from s 46(1) to provide the appellant with forensic advantages different from those otherwise provided by law. The appellant, having chosen to pursue the remedy that afforded those advantages, suffered no practical injustice.
The decision of the Federal Court was correct.
The appeal to this Court should be dismissed. The appellant should pay the costs of the appeal to this Court.
