Full Court Minute Books

Case S27/2022

SDCV v. Director-General of Security & Anor

Case No.

S27/2022

Case Information

Lower Court Judgment

09/04/2021 Federal Court of Australia (Rares, Bromwich and Abraham JJ)

[2021] FCAFC 51

Catchwords

Constitutional law – Judicial power of Commonwealth – Ch III of Constitution – Validity of s 46(2) of Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) – Where appellant subject to adverse security assessment (ASA) by Australian Security Intelligence Office (ASIO) – Where appellant sought review of ASA by Administrative Appeal Tribunal (AAT) – Where s 39A(8) of AAT Act provided ASIO Minister may certify evidence proposed to be adduced or submissions proposed to be made by Director-General of Security are of such nature that disclosure be contrary to public interest – Where s 39B(2)(a) of AAT Actprovided ASIO Minister may certify disclosure of information in certificate, or disclosure of contents of document, would be contrary to public interest – Where ASIO Minister issued certificates under ss 39A(8) and 39B(2)(a) of AAT Act – Where AAT affirmed ASA decision – Where, when appealed to Federal Court, AAT obliged under s 46(1) of AAT Act to send documents before AAT to Court – Where, because certificates in force in respect of certain documents, Federal Court required by s 46(2) of AAT Act to do all things necessary to ensure matter not disclosed to person other than a member of Court – Where Federal Court determined s 46(2) of AAT Act valid and proceeded to determine appeal grounds adversely to appellant while having regard to submissions and evidence to which appellant did not have access by reason of s 46(2) – Whether s 46(2) of AAT Act denies appellant procedural fairness – Whether s 46(2) is invalid by reason of Ch III of Constitution in that it requires Federal Court to act in procedurally unfair manner – Whether decisions in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532;  Assistant Commissioner Pompano v Condon Pty Ltd (2013) 252 CLR 38; or Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 should be qualified or overruled.

Documents*

21/02/2022 Hearing (SLA, Canberra)

07/03/2022 Notice of appeal

11/04/2022 Written submissions (Appellant)

11/04/2022 Chronology (Appellant)

06/05/2022 Written submissions (First Respondent)

06/05/2022 Written submissions (Second Respondent)

17/05/2022 Written submissions (Attorney-General of the State of Queensland intervening)

18/05/2022 Written submissions (Attorney-General for the State of New South Wales intervening)

18/05/2022 Written submissions (Attorney-General for the State of Western Australia intervening)

18/05/2022 Written submissions (Attorney-General for the State of South Australia intervening)

24/05/2022 Reply

07/06/2022 Hearing (Full Court, Canberra)

07/06/2022 Outline of oral argument (Appellant)

07/06/2022 Outline of oral argument (Respondents)

07/06/2022 Outline of oral argument (Attorney-General for the State of New South Wales intervening)

07/06/2022 Outline of oral argument (Attorney-General for the State of Western Australia intervening)

08/06/2022 Hearing (Full Court, Canberra)

08/06/2022 Outline of oral argument (Attorney-General of the State of Queensland intervening)

08/06/2022 Outline of oral argument (Attorney-General for the State of South Australia intervening)