SDCV v Director-General of Security & Anor [2022] HCATrans 20 (21 February 2022)

Last Updated: 23 February 2022

[2022] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S70 of 2021

B e t w e e n -

SDCV

Applicant

and

DIRECTOR-GENERAL OF SECURITY

First Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH

Second Respondent

Application for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY, MELBOURNE AND BRISBANE

ON MONDAY, 21 FEBRUARY 2022, AT 11.29 AM

Copyright in the High Court of Australia

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR C.L. LENEHAN, SC appears with MR T.M. WOOD for the applicant. (instructed by Parish Patience Immigration Lawyers)

MR P.D. HERZFELD, SC appears with MS M.F. CARISTO for the respondents. (instructed by Australian Government Solicitor)

GAGELER J: Mr Herzfeld, the Court would be assisted by hearing from you first.

MR HERZFELD: Yes, your Honours. I should say at the outset we do not oppose the extension of time that is required, but we do oppose a grant of special leave for two reasons. The first is that this matter is an inappropriate vehicle for any challenge to the validity of section 46(2) of the AAT Act, and can I explain that. As your Honours know the matter arises from an adverse security assessment of the applicant by ASIO, and he sought merits review of that assessment in the Tribunal, and the Tribunal then affirmed ASIO’s assessment.

In the Tribunal the Act required the DG to put before the Tribunal all relevant material even it was subject to public interest immunity, but the Tribunal had before it certain material that was the subject of certificates by the relevant Minister as being of such a nature that its disclosure would be contrary to the public interest, because it would prejudice the security of Australia, and there was no challenge by the applicant to the validity of those certificates, either before the Tribunal or by way of judicial review.

The effect of those certificates.....was that the Tribunal could review the material, but neither the applicant nor his representatives could, and the applicant could not be present in the Tribunal when the material was being adduced or submissions about it were being made. Again, there was and is no challenge to the validity of those provisions of the Act concerning the effect of these certificates in the Tribunal.

On the disposition of the appeal to the Federal Court, section 46 of the Act applied, and it had two effects. If your Honours would please look at the provision at application book page 144, your Honours will see that first of all subsection (1)(a) required the Tribunal to transmit all the material before it to the Federal Court and that was expressly despite, relevantly, subsection 39B(3). So, the court had before it both the open Tribunal material as well as all of the material which the Tribunal had before it that was the subject of the ministerial certificates – which your Honours will recall, the Director-General had been required to put before the Tribunal notwithstanding public interest immunity.

Then, secondly, subsection (2) of the Act required the Court to – and I am quoting here:

do all things necessary to ensure that the matter is not disclosed –

to any other person. Then, having reviewed all of that material – both open and the subject of the certificates, the Federal Court dismissed the error of law appeal. The applicant’s only interest in the challenge to section 46(2) is insofar as it improves his prospects of success on his error of law appeal to the Federal Court, but there is insufficient prospect that it will do so to warrant a grant of special leave.

EDELMAN J: Mr Herzfeld, if the applicant is right and the Federal Court was not entitled to have regard to that material without affording him procedural fairness, then he has not had the hearing to which he was entitled in the Federal Court. How is this an inappropriate vehicle to consider the validity of provisions where the applicant has not had the hearing on his case to which he is entitled?

MR HERZFELD: Because his position could only ever be worse, ultimately, in the disposition of that appeal, and that is for this reason. The material the subject of the certificates would inevitably have been the subject of a public interest immunity claim on national security grounds, and that, as your Honours know, is a well‑established head of public interest immunity which, in a civil proceeding like this, would almost invariably have meant that the material was not available either to the applicant or to the Court on the error of law appeal. That would have worsened his position on the appeal.

So, take, for instance, his ground that the Tribunal’s conclusion was not open on the evidence. Because of section 46, the applicant was able to invite the Full Court to determine this ground on the whole of the material before the Tribunal, not just the open material, and the Full Court, as your Honours know, unanimously concluded there was ample evidence to support the Tribunal’s conclusion.

But suppose that the Full Court was limited only to the open material. The applicant would bear the onus of demonstrating that the Tribunal’s conclusion was not open on all of the material before the Tribunal, which included both the open material and the material the subject of the certificates.

But if the Full Court only reviews the open material, even if it concludes that the Tribunal’s conclusion was not open on that open material, the applicant would have failed on appeal because he would be unable to discharge his onus of showing that the material the subject of the certificates did not support the Tribunal’s conclusion, which ‑ ‑ ‑

GAGELER J: This all assumes that the application in respect of public interest immunity would be made in respect of the totality of the closed material and would be successful in respect of the totality of the closed material. This is, from our point of view, speculation upon speculation, is it not?

MR HERZFELD: Well, with respect, the applicant certainly has not put before your Honours as to how his position could be better in any way. So that is not speculation. It is also, with respect ‑ ‑ ‑

GORDON J: Well, can I test that, Mr Herzfeld?

MR HERZFELD: Yes, of course.

GORDON J: One of the things about procedural fairness is that there is no sort of general rule that it should take a particular form, but what we know is that there are certain regimes where the court has its own procedures to mould to address the very thing that you are just addressing. Here, there are no procedures. So, the very thing about which you complain and say they cannot do it, is, arguably, one of the causes of the scheme that we have in front of us.

MR HERZFELD: But there is no suggestion with national security information that there would ever be a regime whereby the person the subject of the adverse security assessment would be able to review that material.

GORDON J: That is not quite right, Mr Herzfeld. I think you may recall, at least in Victoria for some time, there were defence counsel - I put that in a sort of general sense - who were security cleared, and on a condition were given access to some, if not all of the relevant material, to enable them to do two things: one, to understand the allegation being made against their client; and, secondly, to ensure that they were able to provide an answer within the confines of the restrictions and conditions imposed on them.

So, that is another aspect to which – it seems to me your argument is binary, it is A or B, but there is at least a range of items and procedures, both by way of access to information but also the own - court procedures that might be addressed.

MR HERZFELD: Well, as I say, the applicant has not suggested this. What the applicant suggests is, in fact, a reading down or partial disapplication of section 46(2) which, frankly, could never be accepted. Your Honours will see the proposed reading down in the Full Court’s reasons at application book page 50, paragraph 79. Would your Honours turn that up, please? Your Honours will see that what is contended for is the addition – you will see in paragraph 79, there set out in underline what was said to be the constitutionally mandated form of section 46(2) adding:

except to the extent that doing such things would preclude the court from providing a party a fair opportunity to respond to evidence on which an opposing party relies -

and there is simply no way – consistently with principle about the operation of the relevant provision of the Acts Interpretation Act – that section 46(2) can be read in that way. That is not because there is any ‑ ‑ ‑

EDELMAN J: Mr Herzfeld, why is that so? If one starts – and I realise this may be a big assumption – but if one starts with the assumption that courts – as an integral part of the judicial function – need to afford some degree of procedural fairness, and move from that to say, this provision would deprive courts, if read literally, of that ability, then why would one not say the provision only applies insofar as it does not require a court to deprive a person to that degree of procedural fairness?

MR HERZFELD: As your Honour knows, the effect of the relevant provision of the Acts Interpretation Act has to be a process of construction not legislative redrafting and redesign. So even if what your Honour puts to me is possible at the level of principle, the question is how does it cohere with the statutory provision that has actually been chosen?

GAGELER J: Mr Herzfeld, what about this reading? When you turn to section 46(2) and you see that it requires the Court to do “all things necessary”, read in, “consistently with the exercise of judicial power”, I am not even sure if you need to go to section 15A of the Acts Interpretation Act to take that view of a power conferred on a court.

MR HERZFELD: With respect, your Honour, if the consequence is that the Federal Court has material that would otherwise be a subject of a public interest immunity claim and is then in the position of choosing whether to disclose it to the applicant, in our submission that is contrary to the legislative design for this reason. Section 46(1) and (2) are plainly an integrated package whereby the Parliament balanced the desirability of the court seeing national security material on an error of law appeal with the interest of keeping that material from disclosure.

To allow a person – the subject of an adverse security assessment – to see national security material would be directly contrary to that legislative design. That is particularly so if whether the person sees it is subject to what is suggested there of a vague standard of fairness. That is completely alien to a legislative design which involves bright lines.

Your Honours can see the bright lines, the court can see all the material but no one else can see any of it and to read in an exception based on fairness into the uncompromising terms of section 46(2) would involve legislative redesign and ‑ ‑ ‑

EDELMAN J: Mr Herzfeld, it would not necessarily require that, if the thing necessary for the court to do is not to use the material if it did not – and not to rely on the material in any way if it cannot disclose it to the applicant or a representative of the applicant.

MR HERZFELD: But that again is contrary to the legislative design of section 46(1), which is to provide the material to the court, and so our point is that ‑ ‑ ‑

EDELMAN J: No, it is not, Mr Herzfeld. It is no more contrary to it in than in Gypsy Jokers – it could be said to be contrary to it that the court was entitled to use it. Nothing is said about how the court is to use it, or what things the court is to do. The court may simply decide that if it can never afford procedural fairness it will never rely upon the material.

MR HERZFELD: Substitute the bright lines of subsections (1) and (2) for an implied exception which will apply in – to pick up the applicant’s language – the vague circumstances of fairness – in our submission is contrary to the legislative design so that one can discern an intention that if this provision did not apply in its terms it ought not apply at all, and it would be left to the common law of public interest ‑ ‑ ‑

GORDON J: Mr Herzfeld, assume for the moment that it does have the bright lines. The question is whether or not it is constitutionally valid.

MR HERZFELD: Yes.

GORDON J: The question is whether or not on your construction you can exclude procedural fairness. That is the ultimate submission you are making. You are saying that Parliament can come along and exclude a particular aspect – critical aspect, one might argue – of procedural fairness. That is the question that this application opens, does it not?

MR HERZFELD: Your Honour, before I come to that, which is effectively the merits of the appeal, what I was seeking to demonstrate ‑ ‑ ‑

GORDON J: I do not think it is merit, Mr Herzfeld – I am sorry. I think it is the ultimate consequence or ultimate outcome of the submission you have just put to us. It is very easy to sit and say, there is bright line, parliamentary intention. Assuming that is right, and there may be debate about that, but let us just take it to its logical conclusion – that is your ultimate contention.

MR HERZFELD: Yes. All I was saying, the point I was seeking to make, and the first reason we opposed special leave, is that the successful challenge of this provision will not lead to this reading down, and therefore will not ultimately assist the applicant on the error of law appeal.

EDELMAN J: I think, Mr Herzfeld, the point that Justice Gordon is making to you is that if you are right about the submission, special leave becomes much more important because then the effect is that what Parliament has done is Parliament has directed the courts to act in a way which is, on one view, procedurally unfair.

MR HERZFELD: Your Honour will appreciate that we contest that characterisation, but the ultimate point would be that it does not assist this applicant in the disposition of his error of law appeal and so it is an inappropriate vehicle to consider the validity of the provision.

GAGELER J: Mr Herzfeld, in your submission, would there ever be an appropriate vehicle?

MR HERZFELD: There may be people who are in quite different positions. So there may be people who have challenged certificates, there may be a person whose grounds are different in such a way that it is discernible that their position would be improved by the material the subject of certificates not being available before the court, but as I say, it has not been demonstrated at all by the applicant how his position could be improved other than by this proposed reading down which, in our submission, would never be accepted.

But can I then move on to the second reason we oppose a grant of special leave, which is that the prospects would be insufficient. Your Honours will appreciate that, without repeating everything in the Full Court’s reasons, or in our submissions, may we make these points? First, as stated in his special leave application at paragraph 6, the applicant would invite this Court to reconsider Gypsy Jokers, Pompano and Graham if special leave were granted, and that is an explicit concession that those authorities stand against the applicant’s success.

No basis has been articulated to think that they were wrongly decided. Gypsy Jokers and Pompano support the proposition that legislation such as that impugned here would be valid if enacted by a State Parliament and, so, as the applicant would have it, State courts can be less procedurally fair than the Federal Courts contrary to the repeated statements by this Court that there are not two standards or grades of justice.

EDELMAN J: Mr Herzfeld, was there anything said in Gypsy Jokers about how the court would or should use the material? The legislation said that the court could use it. Was there anything said in any of the judgments about how the court must use it, in other words, whether the court must rely upon the material?

MR HERZFELD: The whole premise of the cases was that the court would be able to use the material. So, the cases cannot be distinguished on the basis of suggestion that in some cases the court would not use the material. Certainly, in Graham, which was the other case I wanted to mention, and which the applicant says would be challenged, this Court disposed of the provision at issue in a way which is entirely consistent with this provision in a Chapter III context. As your Honours know, the provision in ‑ ‑ ‑

GORDON J: The difficulty about Graham, Mr Herzfeld, is that was withholding information from the court. It was an entirely different issue.

MR HERZFELD: But, with respect, your Honour, the provision was challenged on a broader basis, and the only thing that the court said was wrong with the provision was the withholding of the material from the court. This Court did not say there was anything wrong with withholding the material from the party, and so the provision at issue here coheres entirely with what the Court in Graham said was the permissible operation of the provision.

The second thing is this. The applicant accepts, in his special leave application at paragraph 25, the correctness of the Full Court’s consideration of the question of practical injustice, that is procedural fairness, by reference to the position a person like.....would have been in but for the impugned provision. That is supported both by Gypsy Jokers and Pompano.

For the reasons I have already explained, the position of such a person would be worse, having regard to the operation of common law or Evidence Act public interest immunity. So, section 46 overall improves such a person’s position, as evidenced by the fact that the applicant could maintain a ground such as that the Tribunal’s conclusion was not open on the evidence before it. Without the ability to ask the Federal Court to
review all the material before the Tribunal, such a ground simply could not be maintained. So, in assessing whether there is exclusion or denial of procedural fairness, that practical reality of the counterfactual has to be considered.

The third point is this. The procedure which section 46 establishes does not depart to a significant degree from things that one sees in everyday proceedings. Take this example. On the applicant’s case, it would be constitutionally impermissible for the Federal Court to determine a claim for a declaration that certain documents are protected by legal professional privilege if, as is common and orthodox, the court inspected the documents without revealing them to the opposing party.

As your Honours know, the content of the documents themselves are often the most important thing in determining that privilege claim, and in a claim for a declaration that the documents are privileged, which might be made in answer to a statutory production notice – final authority – or as happened in AWB v Cole, the Royal Commission – on the applicant’s case the Federal Court could not determine that claim by inspecting the documents without revealing them to the applicant. That is a radical suggestion unsupported by authority.

GAGELER J: Thank you, Mr Herzfeld. The Court will adjourn momentarily to consider the course it will take.

AT 11.50 AM THE MATTER WAS ADJOURNED

UPON RESUMING AT 11.54 AM:

GAGELER J: We do not need to hear from you, Mr Lenehan.

MR LENEHAN: May it please the Court.

GAGELER J: There will be an order that compliance with the time limited by rule 41.02.1 be dispensed with, and there will be a grant of special leave to appeal.

Gentlemen, would this be likely to be a two-day case allowing for the intervention of Attorneys‑General? Mr Herzfeld first.

MR HERZFELD: Yes, thank you, your Honour. It might not take up the full two days although cases sometimes expand to fill the time allowed, but it may well go more than one day if there are interventions.

GAGELER J: Mr Lenehan?

MR LENEHAN: Yes, your Honour, we agree with that estimate.

GAGELER J: Thank you.

The Court will now adjourn until 10.00 am on Tuesday, 8 March.

AT 11.55 AM THE MATTER WAS CONCLUDED