No “minimum requirement” of procedural fairness applicable to all court proceedings

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

Is there a “minimum requirement” of procedural fairness applicable to all proceedings in a Chapter III court? No, according to a narrow majority of the High Court.

Where there is a constitutional challenge to legislation altering rules of procedural fairness, the test is whether that legislation causes practical injustice. In SDCV v Director-General of Security [2022] HCA 32, the High Court held that this test is not resolved by reference to any “minimum requirement” of procedural fairness in every case engaging Commonwealth judicial power. Whether practical injustice arises will depend upon the nature of the proceedings and the rights and interests at stake.

Facts: visa cancellation following adverse security assessment on undisclosed grounds

Visa cancellation

SDCV’s visa was cancelled under s 501(3) of the Migration Act 1958 (Cth) based on an adverse security assessment certified by the Director-General of Security. That certificate was accompanied by a statement of grounds, which together formed the Decision.

The statement provided to SDCV had sections omitted pursuant to a certification that disclosure would be prejudicial to the interests of security. SDCV was never informed of the certificated matter.

Decision affirmed on merits review

The Minister issued two certificates under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for the purposes of merits review, which had the effect that:

1.     the Tribunal was given all relevant information, but the certificated matter was not disclosed to SDCV: ss 39A(3) and 39B(2)(a);

2.     part of the Tribunal hearing was conducted in a closed session without SDCV: ss 39A(8) and (9).

In open reasons, the Tribunal concluded the Decision was justified based on the “classified evidence”. Separate closed reasons were not provided to SDCV.

Appeal dismissed by Federal Court

The appeal to the Federal Court under s 44 of the AAT Act was heard by the Full Court, which had access to all documents that were before the Tribunal. However, the Court was required under s 46(2) of the AAT Act to “do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding”. During the proceeding, SDCV unsuccessfully challenged the constitutionality of s 46(2).

Issue in the High Court: is s 46(2) of the AAT Act invalid?

SDCV argued that Ch III of the Constitution precludes a law that denies a fair opportunity to respond to evidence on which a final order might be based: [11]. Section 46(2) was said to be such a law. The critical issue was whether a “minimum requirement” of an opportunity to know and respond to adverse material is required to prevent practical injustice: [52].

Result: s 46(2) of the AAT Act is a valid law

By a 4:3 majority, the High Court held that s 46(2) was not contrary to Ch III. Chief Justice Kiefel and Justices Keane and Gleeson gave one set of reasons (plurality) and Justice Steward concurred in the result.

The plurality rejected any “minimum requirement” of procedural fairness and instead considered the nature of the proceedings and the rights and interests at stake: [54]. The plurality concluded there was no practical injustice, having regard to five topics:

1.     Denial of material an incident of the statutory regime: it was undisputed that, apart from s 46(2), withholding the material was effected lawfully. Section 46(2) simply maintained that status in the Court: [69]-[74].

2.     Forensic advantage conferred by s 46: if s 46(2) was invalid, there was no good reason to think the certificated matter could have been disclosed to the Court. If an alternative challenge under s 75(v) of the Constitution or s 39B of the Judiciary Act 1903 (Cth) was pursued, public interest immunity could be expected to prevent disclosure: [75]-[83].

3.     Permissible to deny information in a “blanket” fashion: primary responsibility for balancing the competing interests of open justice and national security rests with the Parliament and Executive: [84]-[90]. It does not need to be done on a case-by-case basis by a court.

4.     The impartiality of the Federal Court was not affected by it maintaining the limitations on disclosure: [91]-[95].

5.     Not open to read down s 46(2):the clear intention of s 46(2) is to prevent disclosure of the certificated matter save as permitted in s 46: [96]-[99].

Justice Steward agreed there is no baseline requirement of procedural fairness in every case. However, there are narrow circumstances where a court may deny a fair opportunity to respond to adverse evidence: [269].

Unlike the plurality, Justice Steward considered that s 46(2) left it open to the Federal Court to:

1.     order that the gist of information be disclosed: [291];

2.     appoint a special advocate to examine certificated material and closed reasons and make independent submissions: [295]; and

3.     require that certificated material be shown confidentially to an appellant’s lawyers: [302].

If those avenues were unavailable, his Honour may have concluded that s 46(2) was invalid: [308].

The three dissenting Justices concluded that s 46(2) was invalid but supported different tests:

1.     Justice Gageler supported a “constitutional minimum”: legislation cannot require a court to adopt a procedure that may result in a final order without affording the adversely affected party a fair opportunity to respond to evidence on which the order might be made: [150]. Section 46(2) compels the Court never to disclose information irrespective of its relevance and degree of prejudice to security: [152].

2.     Justice Gordon supported a “general rule” that a party will know what case is made against it and how it is made: [176]. Section 46(2) excludes procedural fairness for a whole class of case by removing the ability of the Court to respond to potential practical injustice: [178].

3.     Justice Edelman accepted that it is procedurally unfair to deprive a person of the right to be heard on any significant issue that might affect a final result. For legislation to be constitutionally invalid, the institutional integrity of a court must be substantially impaired. The absence of a power of the Court to consider the interests of an appellant when refusing disclosure or appoint a special advocate to represent their interests was fatal to s 46(2): [222].