Yesterday the High Court delivered its decision in MJZP v Director-General of Security & Anor [2025] HCA 26.
The Court unanimously rejected the plaintiff’s submission that s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) was invalid on the basis that it infringed Chapter III of the Constitution because it required the Federal Court to depart from the “general rule” of procedural fairness more than is reasonably necessary to protect a compelling and legitimate public interest.
Section 46(2) applies to an appeal bought in the Federal Court from the Administrative Appeals Tribunal (AAT) (now the Administrative Review Tribunal) on a question of law from certain proceedings. Where such an appeal is brought, s 46(1) of the AAT Act required the AAT to send the Federal Court all documents that were before it relevant to the appeal. Section 46(2) of the AAT Act provided that the Federal Court must “do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding” if there was a certificate certifying that disclosure of the matter would be contrary to the public interest. In the plaintiff’s case the “ASIO Minister” had issued three certificates certifying that the disclosure of information with respect to certain matters, and the disclosure of the contents of certain documents, would be contrary to the public interest including “because it would prejudice security or the defence or international relations of Australia”.
The Court held that its decision in SDCV v Director-General of Security (2022) 277 CLR 241 (SDCV), in which a 4:3 majority upheld the constitutional validity of s 46(2) of the AAT Act, was a complete answer to the challenge brought by the plaintiff. It rejected the plaintiff’s primary submission to the contrary and its alternate submission that SDCV should be re-opened and overruled.
The case contains helpful statements about the burden faced by a party seeking to re-open an earlier decision of the Court.
Penelope Bristow appeared for the Commonwealth led by the Commonwealth Solicitor General and Mark Hosking instructed by the Australian Government Solicitor. Megan Caristo appeared for the Attorney General for the State of NSW, who intervened in the proceedings, instructed by the Crown Solicitor for NSW.