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Writer's pictureStuart Jeffery
Oct 22, 2022

Common(wealth) Knowledge #20: National security vs natural justice

Updated: Apr 7, 2023

What national security can teach us about administrative law.

In a democratic society, an important principle is that people should have processes to challenge adverse decisions made against them by the government. Yet this principle has its limitations, because although people can have those decisions reviewed, they shouldn’t unnecessarily interrupt the ability of the government to govern. In SDCV v Director-General of Security [2022], the High Court of Australia considered whether there is a minimum standard of procedural fairness, also known as natural justice, owed by executive decision-makers to those adversely affected by their decisions.


Administrative law is the body of principles and procedures by which the executive government is supervised to ensure that it makes the right decisions and considers the interests of affected Australians when it makes those decisions. Unsurprisingly, the courts play a central role in this. The judicial review power of the courts was examined in Common(wealth) Knowledge #11, and is also relevant here. However, although it has historically been the only tool in the administrative law toolkit since the 1970s other tools have been added.


Ombudsman review allows for the independent investigation of complaints about unjust executive actions. While ombudsmen can’t remake the decision in question, they can offer recommendations, and the power and influence of government ombudsmen mean that these recommendations are listened to and implemented.


Another aspect of administrative law is freedom of information requests. The media and private citizens can submit requests to the government to access documents held by the government. These requests are generally granted, though there are some exceptions, such as for national security and intelligence documents.


Merits review is the final major form of administrative law. Whereas the separation of powers means that courts can only investigate unjust decisions, and cannot remake decisions, as that is an executive power, merits review doesn’t have such limitations. It straddles the divide between the executive and the judiciary. This means it can investigate any allegation of unfair decision-making and has the executive power to remake the original decision in question. As with judicial review and ombudsman, states and territories have their own merits review bodies, while the Commonwealth has the Administrative Appeals Tribunal (AAT).

One reason why these other avenues for review are so important is that they prevent the courts from being bogged down in paperwork and mundane cases, which stop them from being efficient. The phrase often used here is ‘opening the floodgates.’ Therefore, for a person to apply for judicial review they must prove that they are ‘adversely affected,’ as per Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012), at para [66]. In contrast, for merits review the standard in Section 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is lower, without an ‘adverse’ requirement, although it must be higher than that of ordinary members of the public. And there is no standard for ombudsmen or freedom of information requests.


Somewhat unsurprisingly, migration decisions are one of the most common types of decisions heard by tribunals and courts. In these cases, the anonymity of the complainant is important, so their name often isn’t used in court. Instead, it is replaced by a series of letters and numbers. SDCV v Director-General Security is no exception. The downside to this is that a series of numbers and letters aren’t as easy to remember as a name, making it harder to remember case names.


This case involves both merits review and judicial review. SDCV had their visa revoked by Peter Dutton, as Minister for Home Affairs, on the advice of Mike Burgess, the Director-General of Security of the Australian Security Intelligence Organisation (ASIO), because SDCV was deemed to be a security risk. SDCV was a Lebanese man who married his cousin, an Australian citizen, in 2010. His family was involved with Islamic State, with several convicted of terrorism offences. He used a covert phone to talk to his relatives in Islamic State, one of whom was an Islamic State leader, and then he lied to ASIO about the phone. Given this, ASIO advised that his visa be revoked, shortly before his citizenship ceremony was due to happen. ASIO provided the Minister with a formal certificate of their advice, along with the reasoning behind it. SDCV went to the AAT, arguing that this was unfair, but the AAT upheld the actions of the Minister and the Director-General.


SDCV appealed to the Full Court of the Federal Court of Australia, meaning three judges heard the case, under Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). He argued that there were legal errors with the AAT’s finding, and also that some statutory provisions were unconstitutional. He succeeded on none. Given that the courts can only hear cases about unjust decisions, as they are the judiciary, it is necessary to find legal errors to appeal to the Federal Court from the AAT. SDCV then appealed to the High Court, which also ruled against him. Although much of this case was about constitutional questions, those are too complex to cover in an article of this length.


Both the Federal Court and the High Court used the issue of national security to frame the question of procedural fairness. Procedural fairness seeks to ensure that decision-makers follow fair procedures in coming to their decision. There are two limbs to procedural fairness: the fair hearing rule and the rule against bias. The latter was the focus of Common(wealth) Knowledge #11, whereas the former is relevant here.


Key to procedural fairness is a requirement that the decision-maker gives ‘proper, genuine and realistic’ consideration to the interests of the adversely affected persons, and any submissions those persons make to the decision-maker. In Carrascalao v Minister for Immigration and Border Protection (2017), [44], there must be “an active intellectual process” here. In other words, the consideration shouldn’t be casual or without any real effort or focus. On the other hand, decision-makers shouldn’t be expected to spend so much time on this that the process becomes drawn out and becomes a burden. This is especially the case with merits review done by the AAT, where there is a focus on efficiency and timeliness. As the High Court said in Minister for Immigration v Wu Shan Liang (1996), [30], the consideration does not need to be done “minutely and finely with an eye keenly attuned to the perception of error.”


Although this may look like a minimum requirement, it isn’t. It is just a test to determine what is required. Courts have always agreed that what the affected person is owed must depend on the circumstances. Among the procedural rights that can be granted are the right to comment or rebut adverse material, know all the facts of the case against the person, the right to a lawyer (in merits review, at least), the right to cross-examination, the right to be given reasons for the decision, etc. Here are some examples:


O’Rourke v Miller (1985): If there is no reason to doubt the evidence given by witnesses, there is no need for cross-examination.


WABZ v Minister for Immigration (2004): Legal representation in merits review will depend on whether the person can understand the issues and proceedings, if they can understand and communicate in the language of the Tribunal, how legally complex the case is, etc.


Re Refugee Review Tribunal; Ex parte Aala (2000): There is no universal rule that every thought and reason that comes into the decision-maker’s head must be told to the person.


Of course, one issue, in this case, was whether there was a right to know all the facts and evidence against the person. In their joint judgment, Kiefel CJ, Keane and Gleeson JJ, at [56], quoted Gypsy Jokers Motorcyle Club Inc v Commissioner of Police (2008), which referred to VEAL v Minister for Immigration (2005) as evidence that public interest will come into play. In that case, the court said that requests for confidentiality do not overrule procedural fairness, but that public interest considerations can influence it. National security falls under the public interest umbrella. Given the potential terrorist threat posed by SDCV, the public interest consideration of needing to protect the public from a potential terrorist outweighed the right to know all of the facts in order to be able to rebut/challenge all the facts.


Kiefel CJ, Keane and Gleeson JJ, at [69], pointed out that SCDV undermined his own rights by lying to ASIO about the phone. The only reason that ASIO could give the advice to the Minister is if SCDV acted in such a way that would suggest to a reasonable person that he may pose a national security risk. In turn, this allowed the Minister to revoke the visa, as SCDV is not a citizen, and therefore falls under the aliens power of Section 51(xix) of theAustralian Constitution. The aliens power was the focus of Common(wealth) Knowledge #6 and #10.


The decision in SCDV v Director-General of Security affirms the general principle that there is no ‘one size fits all’ approach to procedural fairness. The types of issues and facts involved in administrative law cases are simply too broad for a common threshold to work effectively. Instead, courts and tribunals should continue to apply the flexible principles of procedural fairness to cases as the facts of those cases require.


Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.


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Sources:

O’Rourke v Miller (1985) 156 CLR 342; [HCA] 24.

SDCV v Director-General of Security (2021) 284 FCR 357; [2021] FCAFC 51.

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