Recent Cases

SDCV v Director-General of Security [2022] HCA 32 (12 October 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)


Catchwords:


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

Words and phrases – “adverse security assessment”, “all things necessary to ensure”, “balancing exercise”, “denial of disclosure”, “essential characteristics of a court”, “fair opportunity to respond”, “forensic advantage”, “gist”, “judicial power of the Commonwealth”, “national security”, “officer of the court”, “practical injustice”, “procedural fairness”, “public interest”, “public interest immunity”, “special advocate”.