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Federal Court of Australia - Full Court |
Last Updated: 28 July 2009
FEDERAL COURT OF AUSTRALIA
Hussain v Minister for Foreign Affairs [2008] FCAFC128
CORRIGENDUM
SYED
MUSTAPHA HUSSAIN v MINISTER FOR FOREIGN AFFAIRS and DIRECTOR-GENERAL OF
SECURITY
VID 1169 OF 2007
WEINBERG, BENNETT AND EDMONDS
JJ
15 JULY 2008 (CORRIGENDUM 18 JULY
2008)
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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VID 1169 OF 2007
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY THE
PRESIDENT THE HON JUSTICE DOWNES, DEPUTY PRESIDENT FORGIE AND
MEMBER
PERTON
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BETWEEN:
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SYED MUSTAPHA HUSSAIN
Applicant |
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AND:
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MINISTER FOR FOREIGN AFFAIRS
First Respondent DIRECTOR-GENERAL OF SECURITY Second Respondent |
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JUDGES:
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WEINBERG, BENNETT AND EDMONDS JJ
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DATE:
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15 JULY 2008
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PLACE:
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MELBOURNE
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CORRIGENDUM
This is a corrigendum to the judgment handed down on 15 July 2008 by Weinberg, Bennett and Edmonds JJ.
1 Par [45] delete the words "as it ought to have been". The para now reads
"45. Section 46(1) mandates that the Tribunal shall send to this Court all documents that were before it, irrespective of the requirements of s 39B(3). As intimated to Mr Burnside during the course of argument, had this Court been provided with the closed material, the applicant would have been in a position to press ground 2.4 rather than abandoning it."
2 Par [46] delete the whole paragraph and replace with the following:
"46. The failure of the applicant’s legal representatives to inquire whether the Tribunal had sent all documents that were before it to this Court in connection with this proceeding, pursuant to s 46(1), and to arrange for that material to be put before us, has led to ground 2.4 being abandoned."
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I certify that the preceding two (2) numbered paragraphs are a true copy of
the Corrigendum to the Reasons for Judgment of the Honourable
Justices Weinberg,
Bennett and Edmonds.
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Associate:
Dated: 18 July 2008
FEDERAL COURT OF AUSTRALIA
Hussain v Minister for Foreign Affairs [2008] FCAFC 128
ADMINISTRATIVE LAW – appeal from a
decision of the Administrative Appeals Tribunal affirming decisions to cancel
Australian passport and issue
adverse security assessment in relation to
applicant under Australian Security intelligence Organisation Act 1979
(Cth) – whether in conducting review of decisions the Tribunal erred in
law in preventing applicant’s legal representatives
from having access to
all of the evidence and submissions made by the respondents in reliance on
security certificates issued by
the Attorney-General under ss 36, 39A and
39B of the Administrative Appeals Tribunal Act 1975 (Cth) where no issue
was taken before the Tribunal as to the validity of the certificates – no
error in law in Tribunal failing
to disregard certificates – any challenge
to validity of certificates could not give rise to a question of law amenable to
resolution by the Court under s 44(1) of the Administrative Appeals
Tribunal Act 1975 (Cth) – abandonment of ground of appeal due to
failure of applicant’s legal representatives to require Tribunal to send
all documents before it to the Court under s 46(1) of the Administrative
Appeals Tribunal Act 1975 (Cth) – failure of the applicant’s
legal representative to challenge the Attorney-General’s decision to issue
the
certificates under the Administrative Decisions (Judicial Review) Act
1977 (Cth), s 39B of the Judiciary Act 1903 (Cth), or
s 75(v) of the Commonwealth Constitution
CONSTITUTIONAL LAW
– challenge to constitutional validity of ss 39A and 39B of the
Administrative Appeals Tribunal Act 1975 (Cth) where Tribunal presided
over by Ch III judge – whether mandated procedures are incompatible with
powers and functions
of a Ch III judge – Tribunal’s powers and
functions – administrative not judicial – nature of appointment
– persona designate with consent – no incompatibility in the present
case – whether security certificates invalid
on their face – no
condition of validity beyond Attorney-General’s certification of his
opinion.
Administrative Appeals Tribunal Act 1975
(Cth), ss 19(2)(baa), 21AA, 33, 36, 39A, 39B, 43, 44(1), 46, 54
Administrative Decisions (Judicial Review) Act 1977
(Cth)
Australian Passports Act 2005 (Cth), ss 14, 22
Australian
Security Intelligence Organisation Act 1979 (Cth), s 37, 54(1), 54(2), 61,
Part IV
Federal Court of Australia Act 1976 (Cth), s 43
Federal
Court Rules 1979 (Cth), O 53 r 3
Judiciary Act 1903 (Cth), s
39B
Commonwealth Constitution, s 75(v), Ch III
TNT Skypak International (Aust) Pty Ltd v
Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 cited
Australian
Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
cited
Birdseye v Australian Securities and Investments Commission
(2003) 76 ALD 321 cited
Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR
522
005 542 512 Pty Ltd (Controller Appointed) v Commissioner of
Taxation [2007] FCA 861 cited
Price Street Professional Centre Pty Ltd
v Commissioner of Taxation [2007] FCAFC 154; (2007) 243 ALR 728 cited
Comcare v
Davies [2008] FCA 393 referred to
Federal Commissioner of Taxation v
Raptis (1989) 19 ALD 726 referred to
Chen v Minister for Immigration
& Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 referred
to
Repatriation Commission v Warren [2008] FCAFC 64; (2008) 101 ALD 222
considered
Kuswardana v Minister for Immigration and Ethnic Affairs
(1981) 35 ALR 186 referred to
Federal Commissioner of Taxation v
Perkins (1993) 26 ATR 8 referred to
Tefonu Pty Ltd v Insurance and
Superannuation Commissioner [1993] FCA 412; (1993) 44 FCR 361 referred to
Peacock v
Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256 referred to
Comcare v
Fiedler [2001] FCA 1810; (2001) 115 FCR 328 referred to
Ferriday v Repatriation
Commission (1996) 69 FCR 521 referred to
Perpetual Trustee Co
(Canberra) Ltd v Commissioner for ACT Revenue [1994] FCA 1150; (1994) 50 FCR 405 referred
to
Thomas v Repatriation Commission (1994) 50 FCR 112 referred
to
Traljesic v Attorney-General (Cth) [2006] FCA 125; (2006) 150 FCR 199
referred to
R v Kirby; Ex parte Boilermakers’ Society of Australia
(1956) 94 CLR 254 applied
R v The Trade Practices Tribunal; Ex
parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 cited
R v Quinn;
Ex parte Consolidated Foods Corporation [1977] HCA 62; (1977) 138 CLR 1 cited
Brandy
v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245
cited
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24
ALR 577 applied
Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57
applied
Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348
applied
Wilson v Minister for Aboriginal and Torres Strait Islander
Affairs (1996) 189 CLR 1 considered
Kable v The Director
of Public Prosecutions (NSW) (1996) 189 CLR 151
considered
Nicholas v R [1998] HCA 9; (1998) 193 CLR 173
cited
Fardon v Attorney-General for the State of Queensland (2004)
223 CLR 575 cited
Forge v Australian Securities and Investments
Commission (2006) 228 CLR 45 cited
K-Generation Pty Ltd v Liquor
Licensing Court [2007] SASC 319; (2007) 99 SASR 58 considered
Thomas v Mowbray
[2007] HCA 33; (2007) 237 ALR 194 considered
Gypsy Jokers Motorcycle Club Inc v
Commissioner of Police [2008] HCA 4; (2008) 242 ALR 191 considered
O’Donoghue
v Ireland [2008] HCA 14; (2008) 244 ALR 404 considered
Vasiljkovic v The Commonwealth
[2006] HCA 40; (2006) 227 CLR 614 considered
Burnett v Director of Public
Prosecutions (2007) 153 NTR 1 considered
David Syme & Co Ltd v
General Motors-Holden’s Ltd [1984] 2 NSWLR 294 cited
Applicant
VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous
Affairs [2005] HCA 72; (2005) 225 CLR 88 cited
Conway v Rimmer [1968] UKHL 2; [1968] AC
910 cited
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
cited
Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; (2004) 148
A Crim R 74 cited and considered
R v Khazaal [2006] NSWSC 1061
cited
Alister v R [1984] HCA 85; (1984) 154 CLR 404 considered
Navarolli v Director of Public Prosecutions (Vic) (2005) 159
A Crim R 347 cited
Director of Public Prosecutions v Vu
(2006) 14 VR 249 cited
Dalton v New South Wales Crime Commission
[2006] HCA 17; (2006) 227 CLR 490 cited
Director of Public Prosecutions (Cth)
v Kainhofer (1995) 185 CLR 528 cited
Huddart Parker and Co Proprietary
Limited v Moorhead [1909] HCA 36; (1909) 8 CLR 330 cited
The State of New South Wales
v The Commonwealth [1915] HCA 17; (1915) 20 CLR 54 cited
Mistretta v United States
[1989] USSC 9; 488 US 361 (1989) referred to and cited
Perrett v Commissioner of
Superannuation (1991) 29 FCR 581 cited
Shelton v Repatriation
Commission [1999] FCA 181; (1999) 85 FCR 587 cited
French R S, "Executive Toys
– Judges and Non-Judicial Functions" (Paper presented at the District
Court Judges conference, Joondalup,
Western Australia, 11 April
2008)
Winterton G, "The Separation of Judicial Power as an Implied Bill
of Rights" in Lindell G (ed), Future Directions in Australian Constitutional
Law (1994)
SYED MUSTAPHA HUSSAIN v MINISTER FOR FOREIGN
AFFAIRS and DIRECTOR-GENERAL OF SECURITY
VID 1168 OF
2007
WEINBERG, BENNETT AND EDMONDS JJ
15 JULY
2008
MELBOURNE
THE COURT ORDERS THAT:
1. The application be dismissed.
2. There be no order as to
costs.
Note: Settlement and entry
of orders is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY THE
PRESIDENT THE HON JUSTICE DOWNES, DEPUTY PRESIDENT FORGIE AND
MEMBER
PERTON
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BETWEEN:
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SYED MUSTAPHA HUSSAIN
Applicant |
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AND:
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MINISTER FOR FOREIGN AFFAIRS
First Respondent DIRECTOR-GENERAL OF SECURITY Second Respondent |
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JUDGES:
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WEINBERG, BENNETT AND EDMONDS JJ
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DATE:
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15 JULY 2008
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PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
THE COURT:
1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") affirming two anterior decisions: first, a decision of the first respondent ("the Minister") pursuant to ss 14 and 22 of the Australian Passports Act 2005 (Cth) ("the Passports Act") to cancel the applicant’s passport ("the passport decision"); and second, a decision of the second respondent ("the Director-General") to issue an adverse security assessment in relation to the applicant pursuant to Part IV of the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act") ("the assessment").
2 The applicant appeals to this Court in its original jurisdiction on the grounds outlined in his amended notice of appeal dated 14 January 2008. First, that in conducting its review function in respect of the passport decision and the assessment, the Tribunal erred in law in preventing the applicant’s legal representatives from having access to all of the documentary evidence, oral evidence, and legal submissions made by the Minister and the Director-General. Secondly, in the alternative, that the security certificates issued by the Attorney-General under ss 36, 39A and 39B of the AAT Act are invalid to the extent that they denied access. Thirdly, in the alternative, that ss 36, 39A and 39B of the AAT Act are invalid in purporting to deny that access.
BACKGROUND
3 The applicant, Mr Syed Mustapha Hussain, was born in the United Kingdom on 21 April 1985 and arrived in Australia with his family in 1991. He was granted Australian citizenship in 1993.
4 The applicant attended King Khalid Islamic College in Melbourne until his final year before attending a state high school. In 2003, he enrolled in a course leading to the degree of Bachelor of Medical Science at La Trobe University, Melbourne. He studied there for one semester before he obtained a scholarship to study at the Islamic University of Medina, Saudi Arabia. He commenced his studies in Saudi Arabia on 3 October 2003. On 9 June 2005, he returned to Australia for holidays with the intention that he would return to Saudi Arabia on 4 September 2005 to complete his studies.
5 During his return to Australia, the applicant was interviewed by officers of the Australian Security Intelligence Organisation ("ASIO") in August 2005. Soon after, he was notified that his passport had been cancelled by the Minister and his application for a new passport was refused.
6 That decision was based on an adverse security assessment made by ASIO. The assessment concluded that if the applicant travelled overseas, there would be a significant risk that he would participate in, or support others involved in, politically motivated violence and thereby prejudice the security of Australia or a foreign country.
7 On 28 September 2005, the applicant made an application for review of the passport decision and the assessment before the Tribunal.
8 After the applications for review were lodged, the Attorney-General issued a certificate dated 6 February 2006 under s 39A(8) and s 39B(2)(a) of the AAT Act and another supplementary certificate dated 3 September 2007. The certificates restricted the disclosure of substantial material adverse to the applicant at the hearing since the Attorney-General had certified that its disclosure would be contrary to the public interest as it would prejudice the security or defence of Australia.
9 On 8 November 2007, the Tribunal decided to affirm the passport decision and the assessment based on information contained in the closed material: [2007] AATA 1931.
10 The applicant now appeals to this Court.
THE LEGISLATIVE FRAMEWORK
11 The decision of the Minister to cancel the applicant’s passport was made pursuant to ss 14 and 22 of the Passports Act. Section 14 sets out the circumstances in which an Australian citizen should be refused an Australian passport in order to prevent that person from engaging in harmful conduct. Section 14 relevantly provides:
"(1) If a competent authority suspects on reasonable grounds that:(i) might prejudice the security of Australia or a foreign country; or (ii) might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or (iii) might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or (iv) might constitute an indictable offence against this Act; or (v) might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister’s determination; and(a) if an Australian passport were issued to a person, the person would be likely to engage in conduct that:
(b) the person should be refused an Australian passport in order to prevent the person from engaging in the conduct; the competent authority may make a refusal/cancellation request in relation to the person.
...
(2) If a competent authority makes a request under subsection (1), the Minister may refuse to issue the person an Australian passport.
(3) In this section:
competent authority:
(i) a person who has responsibility for, or powers, duties or functions in relation to, the circumstance under a law of the Commonwealth, a State or Territory (other than a person who is specified in a Minister’s determination as not being a competent authority in relation to the circumstance); or (ii) a person specified in a Minister’s determination as a competent authority in relation to the circumstance; or(a) in relation to a circumstance mentioned in subsection (1) that relates to Australia, means:
(i) an officer within the meaning of paragraph (a), (b) or (c) of the definition of officer in subsection 6(1); or (ii) an employee of the Commonwealth who is specified in a Minister’s determination as a competent authority in relation to the circumstance; or (iii) an agency (within the meaning of the Financial Management and Accountability Act 1997) that is specified in a Minister’s determination as a competent authority in relation to the circumstance."(b) in relation to a circumstance mentioned in subsection (1) that relates to a foreign country, means:
12 In addition, s 22 of the Passports Act authorises the Minister to cancel an Australian passport if a competent authority makes a refusal or cancellation request in relation to the person. Section 22 relevantly provides:
... (d) a competent authority makes a refusal/cancellation request in relation to the person; or (e) if the document is an Australian passport--the Minister becomes aware of a circumstance that would have required or permitted the Minister to refuse to issue an Australian passport to the person because of section 8, 11 or 17, had the Minister been aware of the circumstance immediately before the document was issued; or ..."(1) The Minister may cancel an Australian travel document.
(2) Without limiting subsection (1), the Minister may cancel an Australian travel document that has been issued to a person if:
(g) circumstances specified in a Minister’s determination exist."
13 The decision of the Director-General to issue an adverse security assessment in relation to the applicant had been made pursuant to Part IV of the ASIO Act. Section 37 of the ASIO Act provides for ASIO to furnish adverse or qualified security assessments and states that:
"(1) The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.
(a) shall contain all information that has been relied on by the Organisation 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; and (b) shall, for the purposes of this Part, be deemed to be part of the assessment.(2) An adverse or qualified security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement:
(3) The regulations may prescribe matters that are to be taken into account, the manner in which those matters are to be taken into account, and matters that are not to be taken into account, in the making of assessments, or of assessments of a particular class, and any such regulations are binding on the Organisation and on the Tribunal.
(4) Subject to any regulations made in accordance with subsection (3), the Director-General shall, in consultation with the Minister, determine matters of a kind referred to in subsection (3), but nothing in this subsection affects the powers of the Tribunal.
(5) No proceedings, other than an application to the Tribunal under section 54, shall 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 this Act."
14 Sections 36, 39A and 39B of the AAT Act each provides, in part, that the Attorney-General can certify in writing that the disclosure of information concerning a specified matter or the disclosure of any matter contained in a document in proceedings before the Tribunal would be contrary to the public interest by reason that such disclosure would prejudice the security of Australia.
15 The procedure at certain hearings in the Security Appeals Division of the Tribunal is governed by s 39A of the AAT Act. Section 39A states that:
"Review of security assessmentParties(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.
Director-General of Security must present all relevant information(2) The parties to the proceeding are the Director-General of Security and the applicant, but the Commonwealth agency to which the assessment is given is entitled to adduce evidence and make submissions.
Member may require parties to attend etc.(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(4) The presidential member who is to preside, or is presiding, at the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings.
Right of parties etc. to be present(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.
(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 to which the assessment was given.
Security/defence certificate(7) The Director-General of Security or a person representing the Director-General, and a person representing the Commonwealth agency to which the assessment was given, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.
(8) The Minister administering the Australian Security Intelligence Organisation Act 1979 (the responsible 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 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.
(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 responsible Minister consents.(9) If such a certificate is given:
... Protection of identity of person giving evidence(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.
Evidence and submissions(11) If the Director-General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director-General of Security is not revealed.
(12) The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Director-General of Security and any evidence or submissions that the Commonwealth agency to which the assessment was given may wish to adduce or make.
(13) The Tribunal must next permit the applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal.
(16) If: (a) a party presents his or her case to the Tribunal; and (b) after that case has been presented, the other party adduces evidence; and (c) The Tribunal thinks that, because of evidence adduced by the other party, the first-mentioned party should be further heard;(14) The Tribunal may, on its own initiative and at any stage of the proceedings, invite a person to give evidence, or cause a person to be summoned to give evidence.
(15) If a person invited or summoned to give evidence under subsection (14) is an officer or employee of the Australian Security Intelligence Organisation or of the Commonwealth agency to which the assessment was given, subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director-General of Security or that agency, as the case may be.
Dismissal of application (18) If the applicant fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application;the Tribunal must give the first-mentioned party an opportunity of adducing further evidence but must not give to the applicant any particulars of any evidence to which a certificate given under subsection (8) relates.
(17) A member of the Tribunal may ask questions of a witness before the Tribunal and the presidential member presiding may require a witness to answer any such question.
a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the security assessment."
16 Furthermore, s 39B of the AAT Act provides that certain documents and information subject to an Attorney-General’s public interest certificate are not to be disclosed in proceedings before the Security Appeals Division of the Tribunal. Section 39B relevantly states that:
"Scope(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.(1) This section applies to a proceeding in the Security Appeals Division to which section 39A applies.
Attorney-General may issue public interest certificate
(2) If the Attorney-General 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) 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.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:
Disclosure of information etc. (5) If: (a) the Attorney-General 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 presidential member presiding is satisfied that the interests of justice outweigh the reason stated by the Attorney-General;(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).
the presidential member may authorise the disclosure of the information, or of the contents of the document to, the applicant.
What presidential member must consider in deciding whether to authorise disclosure of information etc.
(a) the presidential member must take as the basis of his or her consideration the principle that it is desirable, in the interest of ensuring that the Tribunal performs its functions effectively, that the parties should be made aware of all relevant matters; but (b) the presidential member must pay due regard to any reason stated by the Attorney-General in the certificate as a reason why the disclosure of the information or of the contents of the document, as the case may be, would be contrary to the public interest.(6) In considering whether information or the contents of a document should be disclosed as mentioned in subsection (5):
...
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.
...
Certificate lodged under subsection 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 Attorney-General 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."
THE ATTORNEY-GENERAL’S CERTIFICATES
17 The Attorney-General issued the first security certificate dated 6 February 2006 pursuant to s 39A(8) of the AAT Act. The certificate stated that:
"I, Philip Maxwell Ruddock, the Attorney-General for the Commonwealth of Australia and the Minister administering the Australian Security Intelligence Organisation Act 1979, hereby certify pursuant to paragraph 39B(2)(a) of the Administrative Appeals Tribunal Act 1975 (‘the Act’) that disclosure of the contents of the documents or, where relevant, parts of the documents described in the Schedules hereto, and the Schedules, would be contrary to the public interest because the disclosure would prejudice security. I further certify, pursuant to subsection 39A(8) of the Act, that evidence proposed to be adduced and submissions proposed to be made by or on behalf of the Director-General of Security concerning the documents, or where relevant, parts of the documents described in the Schedules hereto 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. As the responsible Minister for the purposes of subsections 39A(8) and (9) of the Act I do not consent to a person representing the Applicant being present when evidence described in paragraph 2 above is adduced and such submissions are made. I further certify, pursuant to subsection 36(1) of the Act, that disclosure of the contents of the documents, or where relevant, parts of the documents described in the Schedules hereto, and the Schedules, would be contrary to the public interest by reason that it would prejudice the security of Australia. Dated the 6th of February 2006 Philip Maxwell Ruddock"18 Prior to the hearing in the Tribunal, the Attorney-General issued the second security certificate dated 3 September 2007. That certificate partially revoked and supplemented the earlier certificate, in the following terms:
"I, Philip Maxwell Ruddock, the Attorney-General for the Commonwealth of Australia and the Minister administering the Australian Security Intelligence Organisation Act 1979 (the ASIO Act), hereby: DocumentInterview Report1. Partially revoke my Certificate dated 6 February 2006, issued pursuant to paragraph s39B(2) Administrative Appeals Tribunal Act 1975 ("the AAT Act") to allow the disclosure of the document annexed hereto and marked 'A' otherwise my Certificate dated 6 February 2006 is continued in operation.
Supplementary Documents2. Partially revoke my Certificate dated 6 February 2006, issued pursuant to paragraph s39B(2) the AAT Act, to allow the disclosure to the extent of further information provided in the document annexed hereto and marked 'B' otherwise my Certificate dated 6 February 2006 is continued in operation.
Disclosure of Documents contrary to the public interest3. Certify pursuant to paragraph 39B(2)(a) of the AAT Act that disclosure of the contents of the documents described in the Supplementary Schedule of Documents, and the Schedule itself, would be contrary to the public interest because the disclosure would prejudice security.
Exclusion of Applicant and his Representatives4. Subject to paragraphs 1 and 2 of this Certificate, I certify that pursuant to subsection 39A(8) of the AAT Act, that evidence proposed to be adduced and submissions proposed to be made by or on behalf of the Director-General of Security concerning the documents set out in the various Schedules referred to in the Certificates issued by me in these proceedings and this Certificate 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.
Exclusion of Documents under 36(1) of the AAT Act5. Subject to paragraphs I and 2 of this Certificate, as the responsible Minister for the purposes of subsections 39A(8) and (9) of the Act, 1 do not consent to the Applicant or a person representing the Applicant being present when evidence and or submissions are made in relation to any documents referred to in the Schedules identified in paragraph 5 of this Certificate.
6. I further certify, pursuant to subsection 36(1) of the AAT Act, that disclosure of the contents of the documents described in the Schedules referred to in paragraph 4 of this Certificate, would be contrary to the public interest by reason that it would prejudice the security of Australia."
19 The certificates prevented the disclosure of material adverse to the applicant at the hearing before the Tribunal on the basis that this would be contrary to the public interest.
THE ADMINISTRATIVE APPEALS TRIBUNAL
20 The applicant’s review applications of both the passport decision and the assessment were heard together before the Tribunal. The open hearing commenced on 10 September 2007. The proceedings began with an unidentified ASIO officer giving evidence and being cross-examined after a request had been made by counsel for the Director-General under s 39A(11) of the AAT Act for that course to be adopted. During the course of that morning, the applicant’s counsel and solicitors were directed by the Tribunal to leave the hearing room under the provisions covered by the Attorney-General’s certificates.
21 The open hearing resumed the next morning on 11 September 2007. The Tribunal was provided with a list of questions on behalf of the applicant regarding what had occurred in the closed session and the Tribunal President responded to that list. The applicant was called to give evidence and confirm the statement that he had provided in support of both his applications. He was questioned by counsel for the respondents and also by the Tribunal. Each of the parties made submissions to the Tribunal in the open hearing. At the conclusion of the submissions, the applicant’s counsel and solicitors were directed by the Tribunal to leave the hearing room again to enable the respondent’s counsel to make further submissions.
22 On 8 November 2007, the Tribunal decided to affirm the passport decision and the assessment. The Tribunal had received further affidavit evidence from the respondents to satisfy it that certain information did indeed relate to the applicant. The applicant did not become aware of this fact until after he had received the Tribunal’s open reasons.
23 In their open reasons, the President and Member Perton acknowledged at [27]:
"There is no evidence in the open material to suggest that, if Mr Hussain is permitted to hold an Australian passport, he is likely to engage in military jihad type activities in Iraq. His relations with people who may hold extremist views appear innocent."24 The Tribunal accepted that the disclosure to the applicant and his legal representatives of the certified material was not permitted.
25 In light of the certified material provided by the respondents, the Tribunal concluded that the applicant had not been honest in his responses to questions put to him in the open hearing. It found that it could not place reliance upon the applicant’s statements as to his beliefs and intentions and that it could use doubts as to his credibility to assist in assessing other evidence. The Tribunal suspected on reasonable grounds that, if an Australian passport were issued to the applicant, he would be likely to engage in conduct that might prejudice the security of Australia or of a foreign country.
SECTION 44(1) OF THE AAT ACT – QUESTION OF LAW
26 Section 44(1) of the AAT Act limits appeals from decisions of the Tribunal to this Court to appeals on a question or questions of law.
27 Section 44(1) provides that:
"A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding."28 Order 53 of the Federal Court Rules 1979 (Cth) ("the Rules") regulates the practice and procedure to be followed in respect of appeals from the Tribunal.
Order 53, r 3(2), (3) and (4) provide that: "(2) The notice of appeal shall be signed by the applicant or his solicitor and shall state: (a) the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made; (b) the question or questions of law to be raised on the appeal; (c) the order sought; and (d) briefly, but specifically, the grounds relied upon in support of the order sought. (3) The Court may on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended. (4) On the hearing of an appeal, the applicant shall not, without the leave of the Court, raise any question of law or rely on any ground in support of the order sought other than those stated in the notice of appeal."29 The applicant claimed in Ground 2.2 of his amended notice of appeal that the Tribunal had erred in law in preventing his representatives from having access to all of the documentary evidence, oral evidence, and legal submissions made by the Minister and the Director-General. He based that claim upon a contention that the certificates of the Attorney-General issued under ss 36, 39A and 39B of the AAT Act were invalid, at least to the extent that they denied access. He argued that the certificates were invalid because they were not authorised by these sections and because the certificates themselves imposed on the presidential member of the Security Appeals Division, who happened to be a Ch III judge, a set of constraints incompatible with the judicial function.
30 In reply, the respondents submitted that the validity of the certificates of the Attorney-General could not be called in question in an appeal to this Court pursuant to s 44(1).
31 An appeal "on a question of law" is narrower than an appeal that merely involves a question of law. Where an appeal lies "on a question of law", the subject matter of the appeal is the question or questions of law: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 at 178 per Gummow J. In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, Ryan J noted that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law. His Honour said at 527:
"If the question, properly analysed, is not a question of law no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law."32 A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. In Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321, Branson and Stone JJ observed at [18]:
"In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal."33 In Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522, Branson J (with whom Spender and Nicholson JJ agreed) considered the issue of an appeal on a question of law pursuant to s 44(1) of the AAT Act. Her Honour cited with approval the observations made in the earlier cases above and recognised that the jurisdiction conferred on the Court by s 44(1) is a limited one. It is to hear and determine an appeal ‘on a question of law’ only. Her Honour stated at 527:
"The legislature, by creating a statutory right of appeal to a party to a proceeding before the tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing."34 These observations have been applied in recent cases before this Court: see 005 542 512 Pty Ltd (Controller Appointed) v Commissioner of Taxation [2007] FCA 861 at [18] and Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154; (2007) 243 ALR 728 at [22].
35 In the present case, there is a real issue as to whether the applicant’s contention that the certificates were invalid can be raised under s 44(1). On one view, that section does not allow a decision anterior to that of the Tribunal, taken by another official, to be the subject of an appeal. During the course of argument, Mr Burnside QC, senior counsel for the applicant, sought to clarify his pleading. He submitted that the Tribunal had erred because it ought to have perceived, without any prompting, that each certificate was invalid on its face, irrespective of any questions arising out of the constitutional validity of the provisions authorising their issue. He further submitted that the Tribunal was bound, therefore, to disregard the certificates in the conduct of the hearing.
36 Mr Gageler SC, senior counsel for the respondents, conceded that this ground, as reformulated, might give rise to a question of law. He accepted that an error of law on the part of the Tribunal could be said to have arisen if it had applied the procedures prescribed by ss 36, 39A and 39B in circumstances where a prerequisite to the application of those procedures, a valid certificate, did not exist.
37 Notwithstanding this concession, Mr Gageler submitted that this Court should not entertain Mr Burnside’s reformulated challenge to the validity of the certificates because before the Tribunal it had been accepted by all parties and the Tribunal itself that the certificates were valid. No attack had been mounted upon the validity of the certificates by the applicant’s legal representatives. The presumption of regularity applied. It could therefore be assumed, as it had been by the Tribunal, that the certificates were valid. Mr Gageler submitted that this concession on the part of the applicant before the Tribunal precluded him from relying upon this argument in this Court.
38 Mr Gageler relied on an observation by Flick J in Comcare v Davies [2008] FCA 393 at [21] to the effect that no question of law arose in circumstances where the Tribunal did not resolve an issue or did not make findings of fact and where no such contention was advanced before it. His Honour referred to Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726 at 728, where Gummow J said that "some difficulty" must arise "in finding an ‘error of law’ in the failure in the Tribunal to make a finding first urged in this Court". See also Chen v Minister for Immigration & Multicultural Affairs [(2000) [2000] FCA 1901; 106 FCR 157 at 175–6 per Carr J.
39 In Repatriation Commission v Warren [2008] FCAFC 64; (2008) 101 ALD 222, a Full Court considered whether the Tribunal had been entitled to rely on a concession made before it by counsel for the Repatriation Commission that the evidence satisfied all criteria but one for a veteran’s entitlement to a pension. The Court held that the Tribunal had been entitled to act on the concession; that it needed only to concern itself with that one criterion; and that there was no error of law in failing to satisfy itself independently that the other criteria were satisfied. Lindgren and Bennett JJ (with whom Logan J agreed on this point) outlined at [78] the principles, which their Honours took to be established on the issue. Those principles as stated are:
• The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 194 per Bowen CJ.
• A party to the proceeding is not necessarily precluded from arguing on "appeal" matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances: Kuswardana at 195 per Bowen CJ and at 199 per Fox J.
• Where a concession is made, there must be some difficulty in finding an ‘error of law’ when the contrary of the concession is raised for the first time in this Court: Federal Commissioner of Taxation v Raptis (1989) at 728 per Gummow J.
• A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material: Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J.
• There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation: Tefonu Pty Ltd v Insurance and Superannuation Commissioner [1993] FCA 412; (1993) 44 FCR 361 at 367 per Beazley J.
• Even though the parties may be "able, in practical terms, to narrow the issues by concession ... even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision ... on all relevant aspects of the matter before it": Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256 at [23];
• A concession "does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions": Peacock at [23]; and see Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328 at 337 – 338.
40 In Warren, Lindgren and Bennett JJ observed at [78] that the Court will more readily permit a matter to be raised for the first time on an appeal from the Tribunal where:
(a) the matter is a pure question of law, such as a question as to the validity of a regulation: see Kuswardana at 195; Tefonu at 367; or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation: Ferriday v Repatriation Commission (1996) 69 FCR 521 at 527–528 per Lee J;(b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself: see Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue [1994] FCA 1150; (1994) 50 FCR 405 at 418-419 per Wilcox J; such as a shared misapprehension as to the applicable law: cf Thomas v Repatriation Commission (1994) 50 FCR 112 at 120 per Beazley J; or
(c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual: see Kuswardana.
41 In the present case, Mr Gageler submitted, the applicant’s legal representatives did not contend before the Tribunal that the validity of the certificates was a material fact to be determined. As the presumption of regularity applied, the Tribunal was fully justified in relying upon what was tantamount to a concession made by the applicant’s legal representatives to the effect that the certificates were valid. If Mr Gageler’s submission is correct, as we think it is, the Tribunal could not have erred in law in failing to disregard the certificates. It would follow that any challenge to the validity of those certificates could not give rise to a question of law that is amenable to resolution by this Court under s 44(1).
SECTION 46 OF THE AAT ACT – SENDING OF DOCUMENTS TO THE COURT
42 The applicant claimed in Ground 2.1 of his amended notice of appeal that the Tribunal had erred in law in preventing his representatives from having access to all of the documentary evidence, oral evidence, and legal submissions made by the Minister and the Director-General.
43 At the outset of the hearing of this appeal, we informed the applicant’s legal representatives that we had not received any of the material referred to in the certificates of the Attorney-General and that we had not read the closed decision of the Tribunal.
44 During the course of argument, Mr Burnside noted that an additional Ground 2.4 had been included in the appeal book but accepted that it was not a "live ground" before this Court. Ground 2.4 claimed that the Tribunal’s decision was against the evidence and the weight of the evidence. He submitted that, on the face of s 39B(3) of the AAT Act, this Court was prevented from seeing the closed material, irrespective of how central it might be to a ground couched in such terms. This suggestion was subsequently recognised by Mr Burnside to be incorrect in light of s 46(1) of the AAT Act, which provides:
(a) the Tribunal shall, despite subsections 36(2), 36B(2) and 39B(3), 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 (b) except in the case of an appeal that is transferred to the Federal Magistrates Court -- 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 Magistrates Court: (i) the Federal Court of Australia must cause the documents to be sent to the Federal Magistrates Court; and (ii) at the conclusion of the proceedings before the Federal Magistrates Court in relation to the appeal, the Federal Magistrates Court must cause the documents to be returned to the Tribunal.""(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:
45 Section 46(1) mandates that the Tribunal shall send to this Court all documents that were before it, irrespective of the requirements of s 39B(3). As intimated to Mr Burnside during the course of argument, had this Court been provided with the closed material, as it ought to have been, the applicant would have been in a position to press ground 2.4 rather than abandoning it.
46 The failure of the applicant’s legal representatives to require the Tribunal to send all documents that were before it to this Court in connection with this proceeding, pursuant to s 46(1), has led to ground 2.4 having to be abandoned.
FAILURE TO USE ADJR, S 39B OR S 75(V) TO CHALLENGE CERTIFICATES
47 It follows from what we have said that the Attorney-General’s decision to issue the two security certificates is not amenable to review by this Court under s 44(1) of the AAT Act. Nevertheless, it remains a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), s 39B of the Judiciary Act 1903 (Cth) and s 75(v) of the Commonwealth Constitution. It is to these provisions that we now turn.
48 The applicant’s legal representatives have not at any stage challenged the actual decision of the Attorney-General to issue the certificates. They could have brought an application before this Court under the ADJR Act or for prerogative relief challenging that decision. In determining any such application, the Court might or might not have ordered disclosure of the certified material to the applicant or his legal representatives.
49 During the course of argument, Mr Burnside acknowledged that the applicant could have sought relief of this nature against the Attorney-General’s decision, referring to a decision of Rares J in Traljesic v Attorney-General (Cth) [2006] FCA 125; (2006) 150 FCR 199. He submitted, however, that this should not dictate the outcome of the present application before us. Mr Gageler also accepted that the applicant could have challenged the Attorney-General’s decision to issue the certificates, and that a consequence of any such challenge might have been disclosure of the certified material.
50 However, Mr Gageler submitted that the failure of the applicant’s legal representatives to challenge the decision of the Attorney-General to issue the certificates (as distinct from the decision of the Tribunal to act upon them) meant that the appeal to this Court had to fail. He submitted that it was not open to the applicant to rely upon an alleged error of law on the part of the Tribunal relating to the supposed invalidity of the certificates when no such contention had been advanced during the course of the hearing. Section 44(1), upon its proper construction, could not be engaged. Moreover, this was not the type of case in which a new point that was not raised before the Tribunal could be entertained in this Court. This proceeding was therefore necessarily doomed to fail. For the reasons set out earlier, we think that there is substance in that submission.
THE CHALLENGE TO CONSTITUTIONAL VALIDITY
51 If we are wrong in our conclusion that, for the reasons given above, the applicant’s attack upon the conduct by the Tribunal of its review function does not give rise to a ground of appeal under s 44(1) of the AAT Act, it becomes necessary to consider Mr Burnside’s primary submission, namely, that ss 39A and 39B (and possibly s 36 as well) are constitutionally invalid.
52 These provisions, which relate to the procedures to be followed by the Security Appeals Division of the Tribunal in appeal hearings, are said to allow for significant interference by the Attorney-General, as the relevant Minister, in the outcome of such hearings. Such interference, it is argued, cannot be tolerated in relation to the processes of a body, the Tribunal, over which a Ch III judge may preside.
53 Mr Burnside put the incompatibility argument in two ways.
54 First, he noted that the effect of these provisions was to deny his client any opportunity to hear or respond to the case put against him. The security certificate issued pursuant to s 39A(8), and the public interest certificate issued pursuant to s 39B(2), deprived the applicant of any opportunity to explain or address the material that had led to either or both of the decisions that had been challenged. This meant that the Ch III judge, who sat as a member of the Tribunal, had participated in what was said to be little more than a charade. Such involvement could only damage public confidence in the integrity of the court system.
55 Second, Mr Burnside submitted that because the Attorney-General determines whether a particular disclosure will prejudice security or the defence of the nation, there is no room under these provisions for the exercise of any discretion by the Tribunal as to whether the interests of justice would be served by disclosure to the applicant. This means that the executive exercises a degree of control over the procedure and outcome of the proceeding that is incompatible with the role of a Ch III judge in that process.
56 As a subset of the second of these submissions, there is an attack on the provisions because of their failure to specify the basis upon which the Attorney-General forms his or her opinion regarding the effect that disclosure of the material would have. The Attorney-General may form a binding opinion for the purpose of issuing a certificate without reference to any particular considerations. This is said to result in a lack of transparency. It has the effect of asking the Tribunal to rubber stamp the Attorney-General’s decision without entitling it to undertake the sort of balancing exercise that would be expected of any genuinely independent body acting judicially.
THE TRIBUNAL’S POWERS AND FUNCTIONS
57 It has been inferred from the structure of our Constitution, especially in light of its resemblance to the United States model, that it implements a legal separation of legislative, executive and judicial power. However, the existence of responsible government means that the doctrine of the separation of powers is not as complete as it is in the United States.
58 It is a fundamental principle of our constitutional system that federal judicial power cannot be exercised by any body other than a court. The judicial power of the Commonwealth is vested exclusively in the High Court, and other Federal courts established pursuant to s 71, together with State courts invested with federal jurisdiction pursuant to s 77(iii). Federal courts are confined to the exercise of federal judicial power or power incidental or ancillary thereto: see R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
59 The requirement that federal judicial power be vested exclusively in courts (the tenure and remuneration of whose judges are constitutionally protected) was established early on and is uncontroversial. The second limb, confining federal courts to the exercise of judicial power, was established by Boilermakers and its application has been highly controversial. According to Professor George Winterton, in his essay, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in G Lindell (ed), Future Directions in Australian Constitutional Law, Federation Press (1994), 185-208, it was adopted:
"... to protect the independence of federal judges, who must determine the legality of action by the political branches, by freeing them from the supposedly contaminating influence of involvement with government policy and other non-judicial issues."60 Professor Winterton, and a number of other commentators, regard this second limb of Boilermakers as both unnecessary and having caused great inconvenience.
61 Since Boilermakers, there has been ongoing debate about the appropriate characterisation of certain functions as either judicial or administrative: see, for example, R v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 411; R v Quinn; Ex parte Consolidated Foods Corporation [1977] HCA 62; (1977) 138 CLR 1; Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.
62 It is well settled that the Tribunal is an administrative and not a judicial body. Its functions are wholly administrative in character, though it is obliged to act judicially. In Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577, the Full Federal Court confirmed at 584 that the general functions conferred on the Tribunal are "plainly administrative". Bowen CJ and Deane J (with whom Smithers J relevantly agreed) noted that the adoption by the Tribunal of some court-like processes did not transform the nature of its functions. Their Honours, in a joint judgment, said at 584:
"Neither the fact that the Tribunal possesses certain procedural powers ordinarily enjoyed by courts nor the fact that the Tribunal is authorized to decide questions of law arising in proceedings before it means that, in performing these administrative functions, it is exercising judicial power ..."63 Their Honours went on to say at 585 that the constitution of the Tribunal by a presidential member, who also held office as a Federal Court judge, did not alter the administrative character of the Tribunal’s functions.
PERSONA DESIGNATA
64 That Ch III judges can validly be appointed to exercise certain non-judicial functions has also been authoritatively settled, although the practical application of this principle is less certain. What is clear is that the appointment of judges to the Tribunal falls within its scope. In Drake, the Court confirmed that Federal Court judges could – consistently with the requirements of Ch III – be appointed as presidential members of the Tribunal. Bowen CJ and Deane J emphasised that such an appointment occurred in the judge’s personal capacity. It did not involve vesting a Ch III court with any administrative functions, or indeed any functions at all. Although holding office as a Federal Court judge was one of a number of specified qualifications for becoming a presidential member, the Court was clear that the functions were conferred on the judge personally. The joint judgment said at 584:
"There is nothing in the Constitution which precludes a justice of the High Court or a judge of this or any other court created by the Parliament under Ch III of the Constitution from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi judicial in their nature. Such an appointment does not involve any impermissible attempt to confer upon a Ch III court functions which are antithetical to the exercise of judicial power. Indeed, it does not involve the conferring of any functions at all on such a court."65 The reasoning in Drake was approved by the High Court in Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57. There the majority (Gibbs CJ, Wilson and Dawson JJ) confirmed that judges could be appointed as designated persons to perform non-judicial functions. In particular, the majority noted, at 68, that the appointment of judges to be presidential members of the Tribunal was an example of a valid non-judicial function that could be performed by a Ch III judge.
66 In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, the High Court reaffirmed its earlier and long-standing view that there was no impediment to the appointment of Ch III judges as presidential members of the Tribunal. The majority stated at 17-18:
"...where a judge is appointed as a presidential member of the Administrative Appeals Tribunal, the function of deciding applications must be performed independently of any instruction, advice or wish of the Executive Government. The Tribunal must give what it considers to be the correct or preferable decision. And that is so even in those cases where government policy is a relevant factor for consideration and the powers of the Tribunal are limited to the affirming of, or recommending the reconsideration of, the decisions of a Minister." (Footnotes omitted.)67 These cases establish definitively that the Tribunal’s regular functions are administrative in nature, and that Ch III judges can be validly enlisted to perform them, provided, of course, that they consent to accept appointment. Neither of these propositions is in issue in this application. What is in issue is whether the provisions under challenge require a Ch III judge, albeit acting persona designata, to participate in a process that is incompatible with the nature of his or her judicial responsibilities. In that regard, it is necessary to consider whether the procedures laid down by these provisions have the effect of requiring Ch III judges, who preside in such cases, to act as mere adjuncts of the executive, thereby calling into question the independence of the judiciary. The basic principle is that of the strict separation of powers. The dividing line between acceptable and non-acceptable conferrals of non-judicial functions upon judicial officers will often be difficult to determine.
68 In answer to a question from the Court, Mr Burnside acknowledged that Ch III judges had been permitted to serve as presidential members of the Tribunal since its inception. However, he submitted that this had nothing to do with the doctrine of persona designata. He was mistaken in that regard. The cases discussed above demonstrate not only that such judges can serve in that capacity, but also that they are able to do so because they are appointed as designated persons, and not in their capacity as judges.
69 In that regard, it should be noted that the persona designata doctrine has developed essentially as a mechanism for avoiding the separation of powers restrictions on the use of federal court judges for non-judicial functions.
INCOMPATIBILITY
70 Incompatibility operates as a constraint upon the doctrine of persona designata. It is to that notion of incompatibility that we now turn.
71 An examination of the cases demonstrates that, while the idea of incompatibility is familiar, its application to different factual situations is not. While it is entirely clear that Ch III judges can validly be appointed to sit as members of the Tribunal, it is far from clear what other types of functions they may validly perform. It is necessary to examine the case law to determine what indicia and tests have been laid down to determine where the dividing line lies.
72 It will then be necessary to examine, once again, the legislation in question in this case and the functions that it requires be performed by the Security Appeals Division of the Tribunal.
73 In Hilton v Wells, the High Court considered the validity of legislation empowering Federal Court judges to issue telephone interception warrants. The question in that case was whether the power was conferred upon the Federal Court, as such, or upon the judges individually as designated persons.
74 The majority held that, although the power in question was expressed to be conferred on "a judge", there was no power conferred upon the Federal Court. Accordingly, the relevant provision did not offend Boilermakers. Their Honours emphasised that the question was ultimately one of construction. It involved looking at the type of power that was to be conferred upon the judge and, in particular, whether it should be characterised as judicial or administrative.
75 Mason and Deane JJ, in dissent, observed that although it was a settled principle that certain functions could be conferred upon a judge personally, the application of this principle was less certain. Their Honours were particularly concerned by the fact that the function of issuing warrants was conferred on all judges of the Federal Court "indiscriminately". They said at 81:
"There are compelling reasons why the Court should strictly maintain and apply established principle by insisting upon a clear expression of legislative intention before holding that functions entrusted to a judge of a federal court are exercisable by him personally."76 Following Hilton v Wells, the Telecommunications (Interception) Act 1979 (Cth) was amended and the relevant powers were specifically conferred on "eligible judges". The amended legislation was tested before the High Court in Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348. The Court was unanimously of the view that the Act, as amended, intended to entrust the functions in question to judges as designated persons, and not to the courts of which they were members: see Brennan CJ, Deane, Dawson and Toohey JJ at 362, McHugh J at 374-375 and Gummow J at 389. The remaining question was whether there was some limitation or qualification on the use that could be made of the concept of persona designata which rendered the new provisions constitutionally invalid.
77 In Grollo v Palmer, Brennan CJ, Deane, Dawson and Toohey JJ (drawing in particular upon the dissenting judgment of Mason and Deane JJ in Hilton v Wells) noted that functions entrusted to judges acting persona designata still had to be compatible with Ch III and the doctrine of the separation of powers. They said at 364-365:
"The conditions thus expressed on the power to confer non-judicial functions on judges as designated persons are twofold: first, no non-judicial function that is not incidental to a judicial function can be conferred without the judge's consent; and, second, no function can be conferred that is incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power ("the incompatibility condition"). These conditions accord with the view of the Supreme Court of the United States in Mistretta v United States where the Court said:‘This is not to suggest, of course, that every kind of extrajudicial service under every circumstance necessarily accords with the Constitution. That the Constitution does not absolutely prohibit a federal judge from assuming extrajudicial duties does not mean that every extrajudicial service would be compatible with, or appropriate to, continuing service on the bench; nor does it mean that Congress may require a federal judge to assume extrajudicial duties as long as the judge is assigned those duties in an individual, not judicial, capacity. The ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch’."
(Footnotes omitted.)
78 Their Honours went on to discuss in more detail the second condition, which they labelled "incompatibility", as follows at 365:
"The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth. So much is implied from the separation of powers mandated by Chs I, II and III of the Constitution and from the conditions necessary for the valid and effective exercise of judicial power."79 In the end, the majority in Hilton v Wells were satisfied that the conferral of the power to issue telephone interception warrants did not infringe either of the two conditions stipulated. They noted that many of the features of issuing warrants were contrary to normal judicial processes. These included the fact that applications for such warrants were made ex parte, the identity of the judge was not disclosed, and no reasons were given. Moreover, the decision involved essentially an unreviewable exercise of executive power to authorise a future clandestine gathering of information. Nonetheless, the majority held that it was precisely these features that made judges so suited to the task of issuing warrants. Their Honours said, at 367:
"In other words, the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other."THE HIGH COURT IN WILSON AND KABLE
80 The incompatibility exception to the persona designata doctrine came before the High Court again shortly thereafter in two landmark cases: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (discussed briefly above at [66]) and Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 151. In both these cases, the Court found that the impugned legislation infringed the requirements of Ch III and, in doing so, the Court seemingly expanded the notion of incompatibility. However, as the remainder of this part shows, although there have been a number of attempts to invoke the incompatibility exception after Kable, these have generally been unsuccessful.
81 Wilson concerned the validity of s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). That section enabled the Minister to nominate a person to provide a report to allow him to make a declaration in relation to a "significant Aboriginal area". A majority of the High Court found the appointment of Justice Mathews, a judge of the Federal Court, to be incompatible with her role as a Ch III judge. Accordingly, the provision had to be read down so as to exclude the nomination of all Ch III judges.
82 Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ noted, at 8, that it was "undoubted" that there was a "constitutional restriction on the availability of Ch III judges to perform non-judicial functions". Their Honours cited with approval the discussion of the "incompatibility condition" that had been developed in Grollo v Palmer. They noted that the category of incompatibility relied upon in Wilson was "public confidence in the integrity of the judiciary". To determine whether the legislative scheme gave rise to such incompatibility their Honours proposed a three-step test. They said at 17:
"The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears. Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter ‘any non-judicial instruction, advice or wish’). If an affirmative answer does not appear, it is clear that the separation has been breached. The breach is not capable of repair by the Ch III judge on whom the function is purportedly conferred, for the breach invalidates the conferral of the function. If the function is one which must be performed independently of any non-judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds -- that is, on grounds that are not confined by factors expressly or impliedly prescribed by law?" (Footnotes omitted.) "In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. An obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office under Ch III, for many persons at various levels in the executive branch of government are obliged to observe those requirements. But, conversely, if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion."84 Their Honours concluded that Justice Mathews’ nomination, and the reporting function conferred by s 10, were incompatible with her holding office as a Ch III judge. The report to be prepared, in their Honours’ view, was "no more than a condition precedent to the exercise of the Minister’s power to make a declaration" (emphasis added). The reporting function was essentially political and there was no requirement whatsoever for the reporter to act independently.
85 Justice Gaudron, in a separate judgment, agreed that s 10 must be read down to exclude Ch III judges. In her Honour’s view, the reporting function, if performed by a judge acting persona designata, gave "the appearance that the judge is acting, not in any independent way, but as the servant or agent of the Minister".
86 Justice Kirby, though in dissent in Wilson, usefully encapsulated a number of the factors that are relevant when considering whether there is incompatibility in the present case. His Honour observed at 47-50:
• There was a clear divorce, in law, and in appearance, between Justice Mathews’ appointment as a judge of the Federal Court on the one hand and her appointment as a reporter on the other;
• The duties of reporter were not imposed upon the Court;
• Although Justice Mathews was described as "Justice" in the documentation relating to her inquiry, that was nothing but a normal courtesy commonly observed in Australia;
• At no time did Justice Mathews concurrently perform duties as a federal judge and as a reporter;
• The minister did not appoint Justice Mathews as reporter until her consent was first signified;
• The actual duties of a reporter were closer to those of the holder of a judicial office than, say, the duties of an "eligible judge" in providing telephone interception warrants, which the High Court had previously upheld as compatible;
• Far from the provision of a report damaging the federal judiciary, or Justice Mathews personally, the Australian community would feel much more comfortable that the task of reporting was being performed by a judge with nothing to gain or fear by the discharge of the accepted duty;
• A report of this nature would be in complete harmony with a century of unbroken experience during which numerous reports on troublesome and controversial subjects had been provided to the Executive Government by appointed judges, federal and state; and
• While it was true that most of the functions of a reporter would be carried out in private, the same was often true of royal commissions and other inquiries. It was always so in the case of "eligible judges" issuing warrants.
87 His Honour recognised (at 49) that opinions might differ as to the desirability or seemliness of a federal judge accepting appointment as a reporter. He recalled the controversy that had surrounded the use of federal judges as members of the Tribunal, when it was first established, bearing in mind its role of reviewing Ministerial decisions on matters of policy. He concluded that far from eroding public confidence in the integrity of the federal judiciary as an institution, and the independence of its members, the use of federal judges had ensured the impartiality of the Tribunal, its compliance with the law, and its high reputation among members of the community.
88 The decision in Wilson was followed several days later by the decision in Kable, which arguably extended the scope of the incompatibility doctrine even further. Although Kable concerned, specifically, the application of that doctrine to State courts rather than Ch III judges acting persona designata, the High Court provided further guidance in relation to it. A majority of the Court held that legislation authorising the New South Wales Supreme Court to make orders for preventive detention was invalid.
89 When analysing whether the functions in question infringed Ch III, Gaudron J referred firstly to what has come to be known as the "Chameleon doctrine", stating at 106:
"It is well settled that some functions take their character from the way in which they are to be exercised and, thus, from the body on which they are conferred. Accordingly, some functions which are not essentially judicial in character are, nonetheless, properly characterised as judicial if conferred on a court." (Footnotes omitted.)90 Her Honour went on to explain that functions of this character could be conferred upon courts if they were not "repugnant to or inconsistent with the exercise by those courts of the judicial power of the Commonwealth".
91 In order to determine whether the particular legislative scheme compromised the integrity of the courts, her Honour stressed the need to maintain public confidence in the judiciary, saying at 107:
"The integrity of the courts depends on their acting in accordance with the judicial process and, in no small measure, on the maintenance of public confidence in that process. Particularly is that so in relation to criminal proceedings which involve the most important of all judicial functions, namely, the determination of the guilt or innocence of persons accused of criminal offences. Public confidence cannot be maintained in the courts and their criminal processes if, as postulated by s 5(1), the courts are required to deprive persons of their liberty, not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that on the balance of probabilities, they may do so. ... Public confidence in the courts requires that they act consistently and that their proceedings be conducted according to rules of general application." (Footnotes omitted.)92 Justice McHugh also emphasised the importance of this consideration, saying at 116:
"One of the basic principles which underlie Ch III and to which it gives effect is that the judges of the federal courts must be, and must be perceived to be, independent of the legislature and the executive government. Given the central role and the status that Ch III gives to State courts invested with federal jurisdiction, it necessarily follows that those courts must also be, and be perceived to be, independent of the legislature and executive government in the exercise of federal jurisdiction. Public confidence in the impartial exercise of federal judicial power would soon be lost if federal or State courts exercising federal jurisdiction were not, or were not perceived to be, independent of the legislature or the executive government." (Footnotes omitted.)93 Wilson and Kable represent the high point in the development by the High Court of the notion of incompatibility. As previously indicated, attempts in later cases to invoke this principle have generally been unsuccessful. The current view seems to be that the principle is of limited application.
94 In Nicholas v R [1998] HCA 9; (1998) 193 CLR 173, the High Court was concerned with s 15X of the Crimes Act 1914 (Cth). That section provided that on a prosecution for illegal importation of narcotic goods, the fact that a law enforcement officer committed an offence in importing the goods was to be "disregarded" provided that certain conditions were met. It was argued on behalf of the appellant that the section was invalid because it governed the determination by a trial judge of the admissibility of evidence of an illegal importation.
95 Chief Justice Brennan regarded the law as a "law governing the admission of evidence and therefore a law governing procedure", which had no effect upon the judicial function of fact finding or the judicial power to be exercised in determining guilt. His Honour observed at [37]:
"... It is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court’s opinion as to the justice, proprietary or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a court’s opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court’s opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts’ repute as the administrator of criminal justice."96 In Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, a case concerning the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the issue was whether a provision that empowered the Attorney-General to apply to the Supreme Court for an order requiring the continued detention of a prisoner after the expiry of his or her sentence violated Kable. McHugh J said at [43] that Kable was a decision of "very limited application". Indeed, his Honour went on to say that the combination of circumstances that gave rise to the perception in Kable that the Supreme Court of New South Wales might be acting in conjunction with the New South Wales Parliament and the executive government to keep Mr Kable in prison was "unlikely to be repeated".
97 In Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, the issue was whether the appointment of a former judge of the Federal Court as an acting judge of the Supreme Court of New South Wales for successive terms of twelve months, pursuant to s 37 of the Supreme Court Act 1970 (NSW), fell within the Kable principle and violated Ch III. The Court held that that there was no incompatibility and that the appointment was valid. In dissent, Kirby J noted that Kable had often been invoked, but had only been applied in one other case, by the Court of Appeal in Queensland. He referred to a description of the doctrine as being one that was "under-performing". A similar point was made by Duggan J in K-Generation Pty Ltd v Liquor Licensing Court [2007] SASC 319; (2007) 99 SASR 58 at [24], a case to which we shall return.
98 In Thomas v Mowbray [2007] HCA 33; (2007) 237 ALR 194, the issue to be determined was the constitutional validity of various provisions of the Criminal Code (Cth). Division 104 concerned control orders. The power to make such an order was given to an "issuing Court". This was defined to mean the Federal Court, the Family Court or the Federal Magistrates Court.
99 The power to make control orders was clearly conferred upon those courts and not upon the judges acting persona designata. As such, the power had to be judicial power or a power incidental thereto. The object of Div 104 was to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act. An interim control order of the kind with which Thomas v Mowbray was concerned could be requested only with the Attorney-General’s written consent. The person requesting that consent had to consider, on reasonable grounds, that the order sought would substantially assist in preventing a terrorist act, or suspect on reasonable grounds that the person in relation to whom the order was sought had provided training to, or received training from, a listed terrorist organisation. The Court could grant such an order if satisfied on the balance of probabilities that each of the obligations, prohibitions, and restrictions to be imposed was reasonably necessary for, and reasonably appropriate and adapted to, the purpose of protecting the public from a terrorist act.
100 Importantly, a control order could be made without giving the person, the subject of that order, a right to be heard. There was no provision for any hearing, at which the person in question could participate, in connection with the making of such an order. The subject of the order, once made, had to be served with a copy of the order but there was no requirement that the material filed in support be also served. The only recourse available to the subject of the order was to apply to the issuing Court to have it revoked. That application could be made only after the order had been served and appropriate notice given to the Commissioner of the Australian Federal Police.
101 The Court was empowered to revoke the control order if, at the time of the application, it was satisfied that there would not be sufficient grounds on which to make the order. However, until revocation, the control order would remain in force. Accordingly, what the section contemplated was a fresh application for revocation, one upon which the person seeking revocation would no doubt carry the onus. Critically, the applicant seeking revocation would have no statutory right to know the basis upon which the original order was made.
102 Despite the seemingly non-judicial flavour of these provisions, the High Court by majority (Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ, Kirby and Hayne JJ dissenting) held that Div 104 was valid. Their Honours concluded that the provisions under challenge contained criteria which were sufficiently definite so as to be susceptible to strictly judicial application. They raised for consideration issues of fact and questions of construction. They also involved the application of well-known legal standards, such as the terms "reasonably necessary" and "reasonably appropriate and adapted". There was no Ch III impediment to validity.
103 Thomas v Mowbray represents only one in a line of High Court cases that seem to have departed from some of the broader statements of principle contained in Kable.
104 The most recent consideration by the High Court of the doctrine of incompatibility is to be found in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 242 ALR 191. The case concerned a provision of the Corruption and Crime Commission Act 2003 (WA), which enabled the Supreme Court of Western Australia to review decisions by the Commissioner of Police to issue what were described as fortification warning notices. Section 76(2) related to the non-disclosure of information in the review proceedings before the Supreme Court.
105 All members of the Court agreed that the starting point in determining constitutional validity was to construe the section in question. The majority, with Kirby J dissenting, adopted a construction which essentially avoided examining the constitutional issue.
106 In a joint judgment, Gummow, Hayne, Heydon and Kiefel JJ held that, as a matter of construction, it was for the Supreme Court to determine, on the evidence before it, whether the disclosure would have the requisite prejudicial effect. It was not, as Wheeler JA in the Court of Appeal had held, as a matter of construction, up to the Commissioner of Police to determine "unilaterally" whether the materials were to be disclosed. Thus, it could not be said that the Supreme Court was constrained in the independent performance of its review function. The joint judgment implied, though without considering the question in detail, that if the alternative construction were adopted, the section might be invalid.
107 Chief Justice Gleeson and Crennan J, in separate judgments, agreed that it was for the Supreme Court to decide whether the claim for confidentiality should be upheld. According to Gleeson CJ, s 76(2) did "not empower the Commissioner of Police to dictate anything". Crennan J said, at [174]:
"Section 76(2) does not expressly or impliedly dictate a procedure to be followed. Nor does it authorise the commissioner, according to his opinion, to give directions to the court, or to determine for the court the satisfaction of the condition, or basis, for exemption from disclosure. The second part of s 76(2) will only operate to exempt information from disclosure if the judge is satisfied as to the condition or basis upon which the commissioner’s claim of confidentiality rests. It is for the judge to determine conclusively whether disclosure of the information might prejudice the operations of the commissioner."108 Unlike the other judges in the majority, Crennan J went on to discuss the alleged denial of procedural fairness brought about by s 76. Her Honour compared the statutory modification of procedural fairness in the section with the common law doctrine of public interest immunity. She noted at [179] that in public interest immunity claims the Court was required to balance:
"... the public interest in the administration of justice and the disclosure of all relevant material against the need to exempt certain information from disclosure so as to avoid some particular injury or prejudice to a specified public interest such as national security, or ... combating and reducing the incidence of organised crime."109 Her Honour also noted that, in such a ruling, the Court could look at information that was not disclosed to both parties. She discussed two examples of federal legislation that illustrated the point that relevant evidence was not always made available to both parties. Crennan J concluded that the statutory modification of procedural fairness in s 76 was "indistinguishable from the modification of procedural fairness which can arise from the application of the principles of public interest immunity".
110 Prior to the High Court’s decision in Gypsy Jokers, the Supreme Court of South Australia considered a similar issue in K-Generation. The issue in that case was whether s 28A of the Liquor Licensing Act 1997 (SA) was invalid as impermissibly interfering with the exercise by the South Australian Liquor Licensing Court of its judicial power in circumstances where that Court was capable of being invested with federal jurisdiction.
111 The Liquor Licensing Court is constituted by a Licensing Court judge or some other District Court judge or former District Court judge with authority to exercise the jurisdiction of the Court (see s 14). Section 28A of the Act provides that certain material (classified by the Commissioner of Police as "criminal intelligence") cannot be disclosed to any person except the Minister, a court, or a person to whom the Commissioner of Police authorises its disclosure. If an application for a licence is refused, and the decision is made on the basis of classified information, the licensing authority is not required to provide any grounds or reasons for the decision, other than to observe that to do so would be contrary to the public interest (s 28A(2)).
112 Justice Duggan (with whom Vanstone J concurred) held that the provision was valid. His Honour acknowledged that the legislature intended to make "inroads" into the requirements of procedural fairness by introducing s 28A. He said at [68]: "The legislation unequivocally authorises the licensing authority to have regard to information which is not available to an applicant." He concluded that the Kable principle did not invalidate s 28A as, despite the exclusion of an aspect of the common law natural justice hearing rule, the applications were still addressed "in a judicial manner". He added at [70]-[71]:
"The licensing authority must decide whether to grant or revoke a licence or deal with the other applications referred to in s 28A. In doing so, it is required to consider all material placed before it. In the event that the Commissioner of Police provides classified material, the court or Licensing Commissioner must assess all the information before it and is not bound to act on any ‘criminal intelligence’ supplied to it. Despite the fact that classified information cannot be tested or addressed by the other party, it is within the power of the licensing authority to determine its weight and, in appropriate cases, have regard to the fact that it may be unreliable suspicion or hearsay. It would also be entitled to have regard to the fact that the material has not been tested in any way. In these respects the authority acts in an independent manner. There is nothing in the procedure which leads to the creation of a close connection between the licensing authority and the executive. Nor is any inroad made into the independence of the licensing authority when determining the merits of an application resulting from ‘any instruction, advice or wish of the Legislature or Executive Government’." (Footnotes omitted.)113 His Honour concluded at [73]:
"In summary, therefore, I am of the view that the enactment does not impose on the Licensing Court a procedure which is constitutionally incompatible with its status as a court which is a potential repository of federal jurisdiction. Furthermore, the legislation does not require a District Court judge to perform a non-judicial function. Even if the function could be described as non-judicial, it is not of such a nature as to be constitutionally incompatible with the role of a District Court judge."114 Justice Gray dissented, holding that s 28A was constitutionally invalid. The denial of natural justice which it entailed was crucial to his Honour’s reasoning. He commented at [182]:
"Affording a person whose rights will be affected by a court's decision an opportunity to respond to adverse claims is so fundamental to a fair hearing that legislation which requires a court invested with federal jurisdiction to exercise judicial power without affording this aspect of the natural justice hearing rule is inconsistent with the integrated federal judiciary established by Ch III of the Constitution. The operation of the Liquor Licensing Act involved the independent judiciary in incompatible activities, cloaking injustices with the semblance of judicial propriety."115 We note that special leave to appeal from this decision was granted by the High Court on 23 May 2008.
116 In O’Donoghue v Ireland [2008] HCA 14; (2008) 244 ALR 404, the High Court reaffirmed the use of the doctrine of persona designata as the method by which the second limb in Boilermakers could be accommodated. The case involved separate challenges by two appellants and one applicant, in unrelated proceedings, to the validity of certain provisions of the Extradition Act 1988 (Cth). These challenges failed. Chief Justice Gleeson emphasised that the function of deciding whether a person was eligible for surrender was administrative. That function was conferred on a magistrate in his or her personal capacity and was not a function that the magistrate was obliged to accept. The central issue in the case concerned what was said to be an impermissible attempt by the Commonwealth Parliament unilaterally to impose a duty upon a holder of a state statutory office. That argument failed.
117 A similar challenge to the validity of the Extradition Act had been mounted in Vasiljkovic v The Commonwealth [2006] HCA 40; (2006) 227 CLR 614. There it was held that the provisions of the Act, and the particular regulations under consideration, which allowed a magistrate to commit a person to await surrender without finding that there existed a prima facie case that the person had committed an extradition offence, did not involve an exercise of judicial power and did not offend the separation of powers inherent in the structure of the Constitution.
118 In neither O’Donoghue nor Vasiljkovic was it suggested that the powers being exercised persona designata were in any way incompatible in the relevant Kable sense.
119 A final illustration of the approach currently being taken to incompatibility can be found in the decision of the Northern Territory Court of Appeal in Burnett v Director of Public Prosecutions (2007) 153 NTR 1. In that case, the validity of ss 46(2), 49(4) and 154(1) of the Criminal Property Forfeiture Act 2002 (NT) was considered. The provisions allowed for ex-parte applications and, importantly for present purposes, imposed procedures relating to the non-disclosure of certain materials. Despite this, the Court of Appeal held the legislation to be valid.
ARE THE PROCEDURES UNDER SS 39A AND 39B INCOMPATIBLE WITH FEDERAL JUDICIAL POWER?
120 The Security Appeals Division of the AAT is created by s 19(2)(baa) of the AAT Act and hears applications to the AAT pursuant to ss 54(1) and (2) of the ASIO Act. It is required by s 21AA of the AAT Act to be constituted by three members, one of whom must be a presidential member. Presidential members include, but are not limited to, Ch III judges. The procedure in the Security Appeals Division is governed, in part, by s 33, which is the general procedure provision, and, in part, by the specific procedure set out in s 39A. Section 39A distinguishes in a number of ways the procedure to be followed in the Security Appeals Division from the general procedure adopted by the AAT.
121 As previously indicated, s 39A(2) provides that the parties to the appeal will be the applicant and the Director-General. Subsection (3) provides that the Director-General must present to the Tribunal all relevant information available to him or her, whether favourable or unfavourable to the applicant.
122 Subsections (8) and (9) are of particular relevance to this application. Subsection (8) provides that the Minister may, by security or defence certificate, certify that certain evidence or submissions of the Director-General are of such a nature that their disclosure would be contrary to the public interest because it would prejudice security or the defence of Australia. Subsection (9) provides that when such a certificate is made, the applicant cannot be present during the adducing of the evidence or the making of the submissions and that the applicant’s representative cannot be present during either of these stages unless the Minister consents.
123 Section 39B complements ss 39A(8) and (9). It provides that certain documents and materials are not to be disclosed in proceedings before the Security Appeals Division if the Minister issues a public interest certificate in respect of the documents and material. There are three grounds under s 39B(2) on which the Minister may issue a certificate, but only the first is relevant to this proceeding, namely, that the disclosure would prejudice security or the defence or international relations of Australia.
124 In relation to that ground, the Tribunal has no role in determining whether the material or information can be disclosed to the applicant in the proceeding. In relation to a certificate issued under the third ground (for any other reason stated in the certificate that could form the basis of a claim for public interest immunity), if the presidential member is satisfied that the interests of justice outweigh the reasons stated by the Minister, he or she may authorise the disclosure of the information, or the contents of the document, to the applicant.
125 The decision to be made by the Security Appeals Division is governed principally by s 43 of the AAT Act, which is the general provision relating to the Tribunal’s decisions on review. Section 43(1) provides that for the purposes 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. Pursuant to s 61 of the ASIO Act, the findings of the Tribunal supersede the security assessment. However, that section is subject to s 43AAA of the AAT Act, which applies to findings of the Security Appeals Division. Subsection (3), in particular, places certain constraints on the Security Appeals Division’s findings by prohibiting the Tribunal from making findings that would supercede the information relied on by the Minister in reaching his security assessment, as prescribed by s 37(2) of the ASIO Act. The Tribunal’s findings may only supercede information relied on by the Minister where 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.
126 The authorities make it clear that the first step in determining the constitutional validity of any law is to construe the statute under challenge. Where an interpretation can be taken that avoids rather than leads to a conclusion of invalidity, such an approach should be preferred (Gypsy Jokers, per Gummow, Hayne, Heydon and Kiefel JJ at [11]).
127 Neither s 39A, nor s 39B of the AAT Act, indicates a legislative intent to give the Tribunal any discretion in relation to whether to accept the Minister’s certificate. Once such a certificate has issued, the provisions state in clear terms that the Tribunal is not to disclose any of the material that is the subject of the certificate.
128 This is in contrast to the legislation in Gypsy Jokers. As explained above at [106], the majority of the Court in that case held that the particular wording of s 76(2) of the Corruption and Crime Commission Act 2003 gave to the Supreme Court of Western Australia the role of determining whether the relevant information might prejudice the operations of the Commissioner of Police. In that way, the section did not have the effect that the issue of a removal notice by the Commissioner imposed a procedural outcome or prejudiced the independence of the Court’s decision-making.
129 Sections 39A and 39B do not lend themselves to such a construction. As previously noted, s 39A(8) states that the Minister "may, by signed writing, certify ... 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". The issue of such a certificate is clearly a matter for the Minister, and for him alone. Once the Minister has issued a certificate, s 39A(9) states in mandatory terms that the applicant must not be present at the relevant part of the hearing and that the applicant’s representative may only be present with the Minister’s consent. It would be difficult to find implicit in these words any discretion to be exercised by the Tribunal. Instead, it is clear that the applicant’s presence, and that of his representative, in the relevant part of the hearing is entirely dependent on the Minister’s determination.
130 Similarly, the wording of s 39B does not lend itself to a construction that gives the Tribunal any discretion in relation to the material that is the subject of the Minister’s certificate. The only exception is a certificate issued pursuant to s 39B(2)(c), which is not relevant to this proceeding.
131 Nor do the provisions provide for any explanation by the Minister as to the basis of his opinion. The Minister is not obliged, in terms, to turn his or her mind to any particular considerations in forming an opinion as to whether the disclosure of evidence and/or submissions (s 39A) or material and/or documents (s 39B) would be contrary to the public interest on any of the grounds available to the Minister. Nor can there be seen in the words of s 39A any requirement to take into account any particular matters in considering whether to give consent to the presence of the applicant’s representative in the closed hearing. Put simply, the Tribunal is left to comply with a certificate, the effect of which is to change radically the nature of the proceeding, with almost no explanation given as to the reasons for such a course.
IS THERE INCOMPATIBILITY IN THE PRESENT CASE?
132 Given that the construction of ss 39A and 39B does not allow for an outcome such as that reached in Gypsy Jokers, it is necessary to consider the constitutional validity of the provisions so construed.
133 As discussed above, Ch III judges are routinely appointed to the Tribunal as designated persons without any thought that this might infringe either Wilson or Kable. Judges who serve on the Tribunal are always required to give their consent to doing so. It is inconceivable that any judge who is a member of the Tribunal would be required to act as a presiding member of the Security Appeals Division if that judge were uncomfortable about doing so. This meets the first condition in Grollo v Palmer, as Mr Burnside correctly acknowledged.
134 However, Mr Burnside relied primarily upon the second condition. He submitted that it would erode public confidence in the integrity of the judiciary, and in the notion of judicial independence, if Ch III judges were to participate in a process governed by provisions such as ss 39A and 39B.
135 It is important to identify the procedural differences that result from the issue by the Attorney-General of a certificate that might take a judge’s performance of such a function outside the realm of compatible non-judicial roles. The specific features of the hearing that result from the issue of such a certificate are that the applicant will not know the case against him or her or have the opportunity to respond to that case. Hypothetically, the applicant may have a complete answer to an allegation made against him or her but the Tribunal will never learn of that answer. The Tribunal is not in a position to test any evidence led against the applicant. Moreover, where the applicant’s representative is not present because the Attorney-General has refused consent pursuant to s 39A(8), the applicant is denied even the most basic right to have his or her case heard. Perhaps most notably, the Tribunal is bound to abide by the Minister’s certificate without having independently balanced the competing demands of justice and the public interest in the particular case.
136 Mr Gageler freely acknowledged during the course of argument that a hearing of this nature could not be characterised as fair. However, he submitted that it was settled law that the common law principles of natural justice could be overridden by statute provided that the legislature had evinced a clear intention to do so.
137 Mr Gageler went further and submitted that there were circumstances in which the right to be heard could be abrogated by the legislature even in judicial proceedings. Similarly, there were circumstances in which not all parties to a proceeding would be given access to documents, which were available to others. Parliament could override the common law right to reasons and the right to have orders published where confidentiality or the public interest so required. Parts of judgments could, for example, be withheld from publication: David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294. So too could the names of parties: see, for example, s 91X of the Migration Act 1958 (Cth). See also the discussion by Crennan J in Gypsy Jokers at [187]–[189] of federal statutes that modify the rights of parties to gain access to information.
138 Public interest immunity is perhaps the most common example of the capacity of the judicial process to limit rights to a fair trial in the public interest: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 98. It should be noted, however, that in those instances where the courts have been willing to restrict a party’s rights in proceedings, that restriction almost always results from an independent balancing by the court of the relevant interests and circumstances of the case. A notable exception is K-Generation Pty Ltd.
139 In finding that immunity attaches to certain material, it is the court’s duty to balance the public interest in non-disclosure against the public interest in the court having access to sufficient information to enable justice to be done: Conway v Rimmer [1968] UKHL 2; [1968] AC 910. The court in this process may look at the contested documents to the exclusion of the party seeking them: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1. The court may in some instances also rely on documents that are the subject of immunity in the determination of litigation to the exclusion of one or more of the parties to the litigation: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; (2004) 148 A Crim R 74 and R v Khazaal [2006] NSWSC 1061.
140 There is an important distinction between the operation of public interest immunity and the provisions under challenge in the present case. A claim for public interest immunity is almost always subject to a balancing exercise by the court, not by an officer of the executive. More importantly, documents that are protected by public interest immunity are not ordinarily able to be used in the underlying litigation for the benefit of either party. In contrast, material protected by the Attorney-General’s certificate can be deployed in the hearing against the applicant.
141 In Alister v R [1984] HCA 85; (1984) 154 CLR 404, the issue was whether a judge dealing with a claim of public interest immunity should inspect the documents in question so that the task of balancing the national security with the interests of justice could properly be performed. The majority held that the trial judge had erred in setting aside a subpoena without first inspecting the documents, since the interest of the applicants in obtaining any report made to ASIO by an informer and key witness outweighed the public interest that would ordinarily require ASIO investigations to be kept secret.
142 Wilson and Dawson JJ dissented, but the following passage from their joint judgment is consistent with the reasoning of the majority. Their Honours said at 436-437:
"It is clear that in making the claim to immunity the Minister does not purport himself to form any view as to the strength of the competing public interest. He cannot be expected to do so. His function is to make a claim in the interests of security, that being the matter which falls within the range of his ministerial responsibility. His duty is to assist the court by expressing the claim that he makes with as much specificity as the circumstances will allow. Unlike the relevant court, he is not seized of the issues in the trial and is not in a position to assess the possible impact which non-disclosure of the documents may have on that trial: cf Conway v Rimmer, per Lord Reid." (Footnotes omitted.)143 Nicopoulos v Commissioner for Corrective Services concerned a solicitor who practised primarily in criminal law. The Commissioner for Corrective Services had given a direction under cl 105 of the Crimes (Administration of Sentences) Regulation 2001 (NSW) that the plaintiff be prevented from entering any correctional centre, based in part upon confidential intelligence concerning alleged misconduct on the solicitor’s part. At the hearing, the Commissioner sought to have three confidential affidavits read without disclosing their content to the plaintiff. The Commissioner relied on s 130(1) of the Evidence Act 1995 (NSW), which created a discretion allowing, but not requiring, the Court to exclude evidence where the public interest in confidentiality outweighed disclosure. The Commissioner submitted that, even though confidentiality outweighed disclosure in that case, the evidence should nonetheless be admitted and acted upon but that the Court should preclude the plaintiff from having access to it.
144 On review, Smart AJ held that the Court had power to admit, and thus consider, the evidence in the confidential affidavits without giving the plaintiff access to that evidence. His Honour held that it would be against the public interest in the ongoing detection of crime, and the maintenance of security and order in the prisons, for the operational systems of the Commissioner to be revealed. As such, it was not in the public interest that the plaintiff or his counsel be given access to the affidavits or even a summary of what they contained. However, their contents should still be taken into consideration.
145 The right to be heard has recently been considered in the context of certain sections in the Confiscation Act 1997 (Vic) relating to applications for restraining orders. The question in both Navarolli v Director of Public Prosecutions (Vic) (2005) 159 A Crim R 347 and Director of Public Prosecutions v Vu (2006) 14 VR 249 was whether the statute permitted the Director of Public Prosecutions to apply to the Court ex parte, without giving notice to the person against whom such orders were sought. In both cases, the Court of Appeal affirmed the right of the Director to do so, although it stressed the need for there to be compelling reasons for adopting that course.
146 What emerges from these authorities is that courts are cautious in denying any party to a judicial proceeding the opportunity to be heard or to know the case against that party. Nonetheless, there are circumstances in which the requirements of natural justice can be overridden. The fact that ss 39A and 39B operate to deny an applicant for review procedural fairness does not of itself demonstrate that a Ch III judge, acting as a designated person, cannot preside over such a review.
147 The real question is whether the statutory power conferred upon the Attorney-General to grant certificates under ss 39A and 39B vests in him or her the power to control the proceedings, or to direct the Tribunal as to the manner and outcome of the exercise of its jurisdiction, so that it would be inappropriate for a Ch III judge to have any involvement in what is occurring.
148 Gypsy Jokers is only of limited assistance in that regard. As previously noted, the majority in that case did not deal definitively with the incompatibility issue. However, as also discussed earlier, their Honours did indicate that, had the relevant section given the Commissioner of Police the power to determine "unilaterally" that materials were not to be disclosed, it might have resulted in a finding of incompatibility.
149 The remarks of the majority in Wilson regarding incompatibility in the specific context of the Tribunal are worth repeating. Their Honours said at 17-18:
"...Similarly, where a judge is appointed as a presidential member of the Administrative Appeals Tribunal, the function of deciding applications must be performed independently of any instruction, advice or wish of the Executive Government. The Tribunal must give what it considers to be the correct or preferable decision. And that is so even in those cases where government policy is a relevant factor for consideration and the powers of the tribunal are limited to the affirming of, or recommending the reconsideration of, the decisions of a minister. Thus, in the first deportation case to come before the tribunal, Brennan J pointed out:‘The legislature clearly intends that the tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive (see Pt II of the Act). Its function is to decide appeals, not to advise the Executive. The remedies which it awards may be limited or large, but the remedies are incidental to the decision at which it arrives. The decision of the Tribunal in the particular circumstances of each case is therefore to be resolved according to its opinion as to the merits of that case. It forms that opinion after considering the views of the decision-maker, but it is not bound by those views. Whenever the tribunal is constrained or elects to remit a matter for reconsideration in accordance with its recommendations (see s 43(1)(c)(ii)) its function is discharged when the decision to remit is made. It is not concerned to ensure that its recommendation is carried into effect. The legislature, in creating a right of appeal to the Tribunal, no doubt intended that the successful exercise of the right should not be unjustifiably frustrated by subsequent administrative action, but the remedy, if any, is reserved for the courts or the parliament -- not this Tribunal. The Tribunal decides the appeal: it is left to the Executive to implement the decision.’
Independence from the Legislature and the Executive Government in the sense thus explained is essential to the constitutional compatibility of performing a non-judicial function with the holding of office as a Ch III judge."(Footnotes omitted; emphasis added.)
150 It is a good question whether the Attorney-General’s certificate mandating non-disclosure can be characterised as an instruction by him to the Tribunal and, if so, whether that compromises the integrity of a Ch III judge who participates in the process even as a designated person.
151 Having given this matter careful consideration, we would answer that question "no" on both counts. We are not persuaded that the provisions under challenge are invalid. A Ch III judge who presides in a Security Appeal Division review is not, as is plain on the authorities, doing so as a judicial officer. The function is conferred persona designata. It is an administrative function. It is no less compatible with the exercise of judicial power than many other purely administrative functions that Ch III judges routinely exercise. For example, judges both Federal and State have over the years commonly issued various kinds of warrants, including search warrants and telephonic interception warrants. More recently, they have been entrusted to make preventative detention orders and the like. They have served as royal commissioners and headed up boards of inquiry.
152 Justice Phillips, while a judge of the Federal Court, served as Chairman of the National Crime Authority. Justice Woodward, while a judge of this Court, was also head of ASIO. Sir Owen Dixon, the acknowledged author of the majority judgment in Boilermakers, served as ambassador to the United States while on leave as a judge of the High Court.
153 It is difficult to imagine, in the light of Wilson and Kable, that appointments of this kind would be made today. However, they illustrate the flexibility that historically has attached to the appointment of judges to various executive positions. As Gleeson CJ noted in Thomas v Mowbray, powers relevantly similar to those given by Div 104 of the Criminal Code traditionally have been, and are, exercised by the judiciary. His Honour said of such powers at [17]:
"They are not exclusively or distinctively administrative. To decide that such powers are exclusively within the province of the executive branch of government would be contrary to our legal history, and would not constitute an advance in the protection of human rights."154 The point can be clearly made simply by considering the position that prevails in this Court. A number of current judges of the Court occupy roles as Tribunal members, acting as designated persons. In addition, they serve on other administrative bodies such as the Australian Competition Tribunal, the Copyright Tribunal, and the Defence Force Discipline Appeal Tribunal. Two judges of this Court are members of the Court of Arbitration for Sport. Several judges are members of the Australian Law Reform Commission.
155 Even apart from persona designata, there are functions conferred upon courts as such that might be regarded as purely administrative. One example is the power to require a person to answer questions or produce documents pursuant to the examination procedure under Pt 5.9 of the Corporations Act 2001 (Cth). Justice French, writing extra-judicially, has recently commented that such examinations seem to "stand well to one side of the core of the judicial function". They are purely investigative, designed to assist the relevant regulator, or liquidator, or administrator. Nonetheless, as his Honour points out, they have a considerable ancestry, tracing back to the first bankruptcy statute in England in 1842. See generally, French RS, "Executive Toys – Judges and Non-Judicial Functions", a paper delivered to the District Court Judges conference in Western Australia on 11 April 2008. In addition, such functions have been recognised by the High Court as appropriate for Ch III judges to perform, being incidental to the function and traditional supervision exercised by the Court in winding up: Gould v Brown [1998] HCA 6; (1998) 193 CLR 346 at 388.
156 The investigative functions sometimes vested in courts were also considered by the High Court in Dalton v New South Wales Crime Commission [2006] HCA 17; (2006) 227 CLR 490. That case concerned the validity of s 76 of the Service and Execution of Process Act 1992 (Cth). The section was upheld by analogy with the traditional administrative and investigative functions exercised by the courts since well before federation in relation to matters of insolvency and the like.
157 The "chameleon" doctrine to which we referred earlier has also been invoked to enable courts to exercise powers which, when wielded by administrative agencies, are regarded as non-judicial. An example is the power to review the decision of a magistrate who exercises a purely administrative function when considering eligibility for surrender under the Extradition Act 1988 (Cth). The function becomes judicial when exercised by a judge: Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528.
158 As we have repeatedly stressed, Boilermakers establishes conclusively that the judicial power of the Commonwealth can only be exercised by a Court composed of judges with the tenure for which Ch III provides: Huddart Parker and Co Proprietary Limited v Moorhead [1909] HCA 36; (1909) 8 CLR 330; The State of New South Wales v The Commonwealth [1915] HCA 17; (1915) 20 CLR 54 had earlier arrived at the same conclusion. More controversially, Boilermakers also establishes that the Parliament cannot create a tribunal, which exercises both judicial and non-judicial powers, notwithstanding that some of its members may be appointed consistently with Ch III of the Constitution.
159 This second limb of Boilermakers has been gradually watered down because it has come to be seen as resulting in inconvenience and because it is difficult to draw a clear line between judicial and non-judicial functions. The associated question, namely to what extent a purely administrative function can be conferred upon a Ch III judge not sitting as a judge but as persona designata, has also given rise to great difficulty.
160 The doctrine of persona designata has been much criticised. It has been described as a device and also as a fiction. It is not for this Court to go behind the numerous High Court decisions that have approved the doctrine and invoked it to uphold what might otherwise be seen as a breach of the second limb of Boilermakers. Plainly, the ability of Parliament to confer non-judicial power on a Ch III judge as a designated person, as distinct from the court to which that judge belongs, has the potential to undermine that aspect of Boilermakers. The notion of incompatibility can be invoked to balance that danger.
161 In Mistretta v United States [1989] USSC 9; 488 US 361 (1989) (as cited in the extract from Grollo v Palmer at [78]), the Supreme Court formulated a similar doctrine to explain the limits of what federal judges could be asked to do. The Court said that the ultimate inquiry was "whether a particular extra-judicial assignment undermines the integrity of the Judicial Branch".
162 One can readily see how, in some cases, this might be so. There might be such a permanent and ongoing commitment to the performance of non-judicial functions as to impede the proper performance of judicial functions by the judge in question. Occasional sittings of the Security Appeals Division do not fall into that category.
163 A procedure that may be repugnant if required of a court will not necessarily be unacceptable if required of an administrative body or tribunal. Such bodies may be required, as is the Tribunal, to take into account Government policy. Courts do not act in that way. Chapter III judges who serve on the Tribunal, acting in their personal capacity, are in a quite different position to that of Justice Mathews in Wilson.
164 Justice French observed in his recent paper that:
"The boundary line dividing functions compatible with the exercise of a federal judicial commission and functions incompatible is not informed by any particular coherent body of principle."His Honour added that the role of judges on the Tribunal was regarded as compatible because, institutionally, it was independent of both the legislature and the executive.
165 There is plainly a danger that judges will have certain functions conferred upon them as designated persons so that the Government can benefit from the veneer of impartiality that they bring to the task in politically sensitive or controversial areas. If the perception arises that a judge is acting as a tool of the executive, respect for the court and the rule of law will be diminished.
166 However, we doubt that ordinary members of the community would regard a Ch III judge who presides over an appeal to the Security Appeals Division of the Tribunal as having compromised his or her integrity merely by following the procedures laid down in ss 39A and 39B. The Tribunal operates independently of the executive. In this case, it had the capacity to overturn both the passport decision and the assessment. It operated under a statutory regime, whereby the rules of procedural fairness had been specifically abrogated by the legislature, but for reasons that the legislature must have clearly regarded as compelling. The Security Appeal Division deals with matters of great importance and sensitivity. It should not be forgotten that the Attorney-General, as first law officer of the Commonwealth, is charged with the vital task of protecting the community from the threat of terrorism, and that much of the information relevant to that task will be highly confidential. Further, the individual judge may exercise his or her discretion whether or not to preside over such an appeal.
167 The solution adopted by Parliament represents a compromise. Like all compromises, it is imperfect. Reasonable minds may differ as to the desirability or otherwise of provisions such as ss 39A and 39B.
168 There is much to be said for having a judge exercise the vital task of reviewing ASIO assessments and decisions by the relevant Minister to refuse or cancel passports. The only alternative is to have that task performed by those who may not have the same level of experience or skill in evaluating evidence. Worse still, they may be beholden to the Government in some way while judges are secure in their tenure and remuneration.
169 That is not, however, the question before this Court. We are concerned with the applicant’s contention that Ch III judges who participate in the process of review by the Security Appeals Division are so compromised by doing so that they cast doubt upon the integrity of the courts to which they belong. The authorities to which we have referred, apart from Wilson and Kable, and the long tradition of Ch III judges assuming non-judicial tasks (albeit as designated persons), lead us to conclude that the applicant’s contention must be rejected.
170 We note that issues similar to those raised by the applicant were considered and resolved in K-Generation. In that case, a majority of the Court were satisfied that the legislation in question, which contained provisions similar in some respects to those under challenge here, did not offend the incompatibility doctrine. K-Generation concerned a court of a state, the Liquor Licensing Court, which might conceivably be the repository of federal judicial power. It had nothing to do with administrative tribunals, the members of which might include Ch III judges. The finding of the majority that the provisions under challenge did not offend Kable supports our conclusion that similar provisions, albeit operating in a very different context, are valid.
171 Even if we were satisfied that K-Generation was wrongly decided, the present case would be readily distinguishable. As we have already indicated, procedures that no court should be obliged to follow may be tolerable when laid down to govern administrative hearings. Greater latitude will be accorded to administrative decision-makers in that regard. The applicant’s challenge to the validity of ss 39A and 39B must fail.
THE APPLICANT’S CHALLENGE TO THE FORM OF THE CERTIFICATES
172 Mr Burnside contended that even if his constitutional challenge failed, the Tribunal erred in law by not rejecting the certificates which, he submitted, were invalid on their face. We have already addressed this argument in terms of its availability under s 44(1) of the AAT Act. We now turn to consider it briefly on its merits.
173 The only basis upon which this contention rested was an argument that it was implicit in the legislation that the Attorney-General had to spell out, in some detail, the matters that he had taken into account in arriving at his decision to issue the relevant certificates. It was submitted that the certificates had to set out the Attorney-General’s reasons as a condition for validity.
174 The analogy seems to be with warrants. It is clearly established at common law that a warrant will be bad on its face if it does not set out the basis upon which it was issued.
175 There is no common law analogue in relation to certificates issued under ss 39A and 39B. The very purpose for which such certificates are granted would be thwarted, or at least jeopardised, if the Attorney-General were required to identify the factors that led to his decision to issue those certificates. Had Parliament intended to impose additional conditions of validity beyond the Attorney-General’s certification of his opinion, it could have done so. The fact that it did not impose such conditions suggests strongly that it regarded any such requirement as inappropriate.
176 Finally, we note the statutory obligation that rests upon the Director-General to place before the Security Appeal Division any material that might assist the applicant in resisting the assessment. It would be naïve to think that this is a complete answer to what is otherwise a system that is inherently unfair to an applicant. Nonetheless, it is a responsibility that should be taken with the utmost seriousness.
ORDERS
177 It follows that the application must be dismissed.
178 The parties have filed written submissions regarding costs. The respondents submit that costs should follow the event and that the applicant should pay their costs of and incidental to the appeal. The applicant submits that there should be no order as to costs.
179 The power to award costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) is discretionary. In the past, this Court has held that there may be a sound basis for departing from the usual principle that costs follow the event in particular appeals from the Tribunal. The applicant submits that by making no order as to costs, the wider public interest in promoting sound administrative decision-making will be served. He says that his challenge to the validity of ss 39A and 39B raised issues of public importance. By implication, he relies upon the fact that the passport decision involved a fundamental freedom, which could almost be described as the liberty of the subject.
180 The respondents submit that the award of costs is in the discretion of the Court and is broad and unconfined. However, it is a discretion that must be exercised judicially and according to principle. They say that costs are routinely awarded against appellants who unsuccessfully challenge decisions of the Tribunal under s 44(1) of the AAT Act.
181 In Perrett v Commissioner for Superannuation (1991) 29 FCR 581, a Full Court of this Court observed that in deciding whether to make an order for costs in such an appeal, the Court should bear in mind the result but also take into account the reasonableness of the applicant in bringing the appeal and the general importance of the clarification of the law that the appeal entailed. Similar views were expressed in Shelton v Repatriation Commission [1999] FCA 181; (1999) 85 FCR 587.
182 In our view, this appeal from the AAT was not without any reasonable prospect of success. The Court arrived at its conclusion only after extensively reviewing the authorities and carefully considering each of the competing contentions. Some of these contentions were finely balanced. The law may have been clarified in the course of deciding this case.
183 In the end, a combination of factors has led us to conclude that there should be no order as to costs. Sections 39A and 39B are new and represent a significant departure from procedures normally followed before the Tribunal. They have been the subject of only limited judicial consideration. There is a wider public interest in having the question of their validity determined. The applicant’s challenge to these provisions, though ultimately unsuccessful, was reasonable. Mr Gageler properly conceded that the process mandated by these provisions was unfair and that fact, together with the consequences for the applicant of being denied his freedom to travel, justifies the challenge that was brought. Taken together, these factors warrant a departure from the usual order as to costs. Accordingly, there will be no order as to costs.
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Solicitor for the Appellant:
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Buxton & Associates
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Counsel for the Respondents:
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Mr S. Gageler SC with Dr S.P. Donaghue
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Solicitor for the Respondents:
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Australian Government Solicitors
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/128.html