Catchwords:

PRACTICE AND PROCEDURE – preliminary question – where the applicant contended that consideration by the Court of certain documents and information that was withheld from the applicant for national security reasons (certificated materials) would be unfair in an adversarial system absent the adoption of specified procedural fairness mechanisms – where the applicant proposed an order that the respondents provide the “gist” of the certificated materials – where the applicant proposed that conditions be imposed on the tender of certificated materials or that the certificated materials be excluded – where neither party sought to tender the certificated materials – whether material before the (then) Administrative Appeals Tribunal (the Tribunal) is before the Court on the appeal by operation of s 46 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) or only upon tender

ADMINISTRATIVE LAW – appeal from a decision of the Tribunal to affirm an adverse security assessment (ASA) furnished under the Australian Security Intelligence Organisation Act 1979 (Cth) – where the ASA recommended the Minister for Home Affairs (the Minister) give a direction under s 315A of the Telecommunications Act 1997 (Cth) (Telecommunications Act) requiring the applicant cease supplying carriage services in Australia – where the Minister issued four written certificates (the certificates) under ss 39A(8) and 39B(2) of the AAT Act in relation to the certificated materials – where the Tribunal proceeding was conducted partly in closed session without the applicant and its legal representatives who were also not permitted access to the certificated materials

ADMINISTRATIVE LAW – validity of the certificates –whether the decisions to issue the certificates were legally unreasonable because the Minister did not form the state of satisfaction required by s 39B(2) on a correct understanding of the law on the material available –whether the Minister misconstrued the statutory task by treating the “public interest” as wholly dependent upon considerations of national security – whether, in forming the requisite state of satisfaction, the Minister considered, or was required to consider, that the applicant and its representatives would be unable to access the certificated materials on an appeal to this Court – whether the Minister purported to retrospectively exercise the power conferred by s 39A(8) of the AAT Act when issuing the fourth certificate

ADMINISTRATIVE LAW – Minister’s refusal to consent – where the Minister refused to consent under s 39A(9)(b) of the AAT Act to the applicant’s representatives being present when evidence was adduced and submissions were made concerning the certificated materials – where the applicant submits the Minister’s decisions lacked an evident and intelligible justification and were legally unreasonable – whether the refusal of consent was legally unreasonable as a result of the Minister failing to consider (a) that any legal representative permitted to be present would be subject to an obligation of non-disclosure and (b) the potential for consent to be given subject to conditions

ADMINISTRATIVE LAW – where the applicant alleges denial of procedural fairness – additional document – where the applicant alleges the Tribunal erred by receiving an additional document and hearing evidence and submissions about it in the absence of the applicant and its representatives – whether s 39B(11) of the AAT Act permitted the receipt of the additional document and exclusion of the applicant and its representatives when no certificate was in place – whether the Tribunal was required to hear the applicant prior to proceeding in closed session on the operation of s 39B(11) – whether there was a “realistic possibility” the applicant was denied a chance of a favourable outcome in respect of the Tribunal’s final decision in the review

ADMININISTRATIVE LAW – where the applicant alleges the Tribunal failed to exercise its jurisdiction to review the ASA – whether the Tribunal conducted a full merits review under s 43AAA(2) of the AAT Act – whether the Tribunal misconstrued and/or misapplied the legal test in s 315A of the Telecommunications Act – whether the reasons of the Tribunal were irrational, illogical and/or unreasonable