07 Aug 2007

National security decisions and their review by courts

Recent years have seen an increased awareness and discussion of national security issues in Australia. National security concerns arise in relation to many aspects of government administration, including decision making. Two recent decisions of the Federal Court concerning an application by Sheikh Mansour Leghaei provide an insight into the way courts are balancing national security considerations with the right of persons to be given an opportunity to be heard (natural justice) in the administrative decision making context.

Historical approaches to national security cases

Two key 1980s judgments demonstrate the way courts in Australia and the UK have traditionally dealt with decisions relating to national security concerns in the judicial review context. In Church Scientology v Woodward (1982) 43 ALR 587, the High Court was asked to determine whether ASIO could be prevented from conducting an investigation into the Church of Scientology in circumstances where the Church asserted that it did not pose a risk to security. The Court held that that a security agency such as ASIO could be the subject of judicial review proceedings to ensure that it had not acted in excess of its legislative functions. However, the Court acknowledged that practical difficulties would arise in obtaining the information necessary to prove that an agency had acted outside the scope of its powers. The Church was ultimately unsuccessful in its challenge.

In Counsel of Civil Service Unions v Minister for the Civil Service [1985] AC 374 ("CCSU"), the UK House of Lords noted that decisions concerning the balance to be struck between national security concerns and natural justice obligations should generally be made by the executive, rather than the judicial, arm of government. This was on two main grounds: the fact the executive had access to all relevant sensitive information and that the judicial process was not well suited to the review of decision-making in the national security context, ie. if the executive thought that national security should take priority in a particular case, the court would be reluctant to interfere.

The case concerned a decision of the then Prime Minister, Mrs Thatcher, that certain public servants responsible for handling security sensitive information could not be members of any union. The House of Lords found, in effect, that recourse to judicial review could be had when a decision related to national security considerations, but would only be successful where a decision could be shown to be patently ridiculous or entirely unreasonable. In this case, the House of Lords found that employers were not entitled to an opportunity to be heard in relation to Mrs Thatcher's decision.

Both Woodward and CCSU demonstrate that, when it comes to issues of national security, the courts are arguably reluctant to intervene with the decisions of the executive. As the House of Lords noted in a recent decision concerning the review of an administrative decision made in the national security context:

"... such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove."

The Leghaei decisions

The case of Sheikh Mansour Leghaei has attracted significant media attention over the last year. Leghaei’s visa was cancelled after ASIO made a negative security assessment in relation to him and provided the assessment to the Minister for Immigration. Leghaei sought judicial review in the Federal Court of ASIO’s decision to make the adverse security assessment.

In Leghaei v Director General of Security [2005] FCA 1576, Leghaei sought review on the basis that he had not been given notice of the grounds upon which the assessment was to be made and had not been given an opportunity to address or otherwise respond to any adverse matters. The key questions for the Court were:

  • whether ASIO owed Leghaei an opportunity to be heard (natural justice); and
  • if natural justice was owed, what the content of that obligation was.

At first instance, Justice Madgwick noted that natural justice requirements would apply in the absence of express words or plain and unmistakable intendment on the part of Parliament. ASIO argued that the Australian Security and Intelligence Organisation Act clearly evinced such an intention, as it did not require reasons to be given for decisions made, nor did it require ASIO to notify persons that an assessment had even been made. However, Justice Madgwick held that, given the consequences of decisions under the ASIO Act, negating the presumption of procedural fairness required more than indirect negative implications. His Honour held that ASIO was required to afford as much procedural fairness as possible without prejudicing national security.

Justice Madgwick also noted that the Court would have to rely heavily on the views of the executive as to what degree of procedural fairness could be afforded without risking national security. As such, ASIO's procedural fairness obligations could be discharged by evidence that the Director-General had given personal and genuine consideration to whether any information could be disclosed to a person who may be affected by a relevant decision without prejudicing national security. In Leghaei's case, Justice Madgwick was convinced that the requirements of national security reduced the content of the natural justice requirement, in practical terms, to "nothingness". Without the benefit of countervailing expert evidence, he was not in a position to form a contrary view.

Leghaei appealed. On appeal to the Full Federal Court, argument focussed upon the exact content of the natural justice requirement. The Court recognised that in some cases national security may make it impossible to disclose the grounds on which the executive acts so as to allow a person affected to comment. In the present case, the Court held that Justice Madgwick was plainly right to strike the balance in favour of the protection of national security. The Court went on to hold that the approach taken by Justice Madgwick in satisfying himself that the Director-General had given personal genuine consideration to the issues was correct, as was his decision that he was not in a position to form a view contrary to the Director-General.

Sheikh Leghaeui has now applied to the High Court for special leave to appeal and the hearing of that application is pending.

The decisions of Madgwick J and the Full Federal Court in Leghei's case accord with the approach taken by the High Court in Applicant VEAL of 2002 v Minister of Immigration and Multicultural Affairs (2005) 222 ALR 411 in relation to natural justice obligations in circumstances where issues about the sensitivity of information arise. In that case, the Court acknowledged that the confidential nature of information will affect natural justice requirements, which should be moulded to take into account the public interest in maintaining confidentiality in information as appropriate. If special leave to appeal is granted to Leghaei, it will be interesting to note how the Court's approach to natural justice will develop in the specific context of national security.

Natural justice and national security: where to from here?

The Leghaei decisions show that, as a general principle, natural justice requirements continue to apply absent clear and unmistakable Parliamentary intention. In practical terms, where national security considerations arise, this will mean giving proper and genuine consideration to what information, if any, can be released to the person who is the subject of the decision. To the extent that national security is legitimately at risk, information need not be disclosed. The decisions also demonstrate that a balance must be struck between natural justice and national security, given the potentially serious consequences of relevant decisions for those affected and the courts' acknowledgement that they are not well-equipped to make judgments on national security issues.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.