SDCV v Director-General of Security [2022] HCA 32

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

SDCV APPELLANT

AND

DIRECTOR-GENERAL OF SECURITY & ANOR RESPONDENTS

SDCV v Director-General of Security

[2022] HCA 32

Date of Hearing: 7 & 8 June 2022

Date of Judgment: 12 October 2022

S27/2022

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

C L Lenehan SC with T M Wood and S N Rajanayagam for the appellant (instructed by Michael Jones, Solicitor)

S P Donaghue QC, Solicitor-General of the Commonwealth, with M J H Varley and M F Caristo for the respondents (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with M W R Adams for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

J A Thomson SC, Solicitor-General for the State of Western Australia, with J M Vincent for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

G A Thompson QC, Solicitor-General of the State of Queensland, with F J Nagorcka and K J E Blore for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

M J Wait SC, Solicitor-General for the State of South Australia, with L M Foran for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

SDCV v Director‑General of Security

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