Case: Leghaei v Director General of Security [2005] FCA 1576
Outcome: applied
In Leghaei v Director General of Security [2005] FCA 1576 , I considered whether the Australian Security and Intelligence Office (ASIO) had a duty to accord procedural fairness to the subject of an intended adverse security assessment, and held that it did. 95 I venture to repeat what I there said: The principles to be applied in relation to the legislative exclusion of procedural fairness were summarised by Finn J in [State of South Australia v] Slipper [2004] FCAFC 164 ; [(2004) 136 FCR 259] at 279-280 (with whom Branson and Finkelstein JJ agreed at [71] and [148]) and I respectfully adopt the following summary by his Honour: "(i) when a statute confers a power on a public official the exercise of which affects a person's rights, interests or expectations, the rules of procedural fairness regulate the exercise of that power unless those rules are excluded by express terms or by necessary implication...; (ii) a legislative intention to exclude the rules will not be assumed or spelled out from indirect references, uncertain inferences or equivocal considerations...; (iii) an intention to exclude should not be inferred merely from the presence in the statute of rights which are commensurate with some of the rules of procedural fairness...; (iv) while the rules may be excluded because the power in question is of its nature one to be exercised in circumstances of urgency or emergency... urgency cannot generally be allowed to exclude the right to natural justice... although it may in the circumstances reduce its content...'. (Emphasis added, references omitted.) ... There appears to have been no discussion in [a Royal Commission] Report of what rights should exist in relation to the matters occurring prior to any right of review arising, (and before the making of the actual assessment). It is, however, fair to say that Hope J seems to have assumed that the demands of security would necessarily be inconsistent with any express prescription of a right to be heard at first instance. There are problems about the validity of that assumption and, in any case, about using an indirect inference from such silence to ground or support an indirect inference which, admittedly with some degree of force, arises from the Act. Thus, if a person has a feasible right to be told as much of the case as the interests of national security will allow at a review level, then the same right might reasonably be said to exist at the initial assessment stage. Further, the task to be undertaken is not to consider whether there is any clearly positively implied intention that procedural fairness requirements apply; rather, it is to consider whether there is a necessary implication that such requirements do not apply. In this regard, I respectfully agree with Finn J's comment in Slipper at [ 11I]: '... against the background of a clearly recognised need to "strike a balance " between private and societal interests, one would have expected the legislature to have spoken with unmistakable clarity if it was to deny rights of procedural fairness that could otherwise have been made available...'. In my view, the 'unmistakable clarity' that procedural fairness was to be denied under the ASIO Act is lacking. (Emphasis in original.) 96 In my view an analogous approach here is appropriate and calls forth a similar result. 97 There was, in my opinion, a duty to accord the applicant appropriate procedural fairness in all the circumstances. (b) Was the duty complied with? 98 Whatever threat Mr Soh posed to the good order of Villawood and the safety of officers and perhaps others there, it does not appear that there was any effort to segregate him from the other detainees for any part of the 6 days that it took for Mr Nicholls to make his decision and for Ms Symons to carry it out. There was a more secure centre than Villawood, although it was in another State. Given a clear and present threat of going back to gaol, Mr Soh may well have been prepared to go a long distance to avoid that fate, even if his denials should be of no avail. In short, in his particular circumstances, he could reasonably have been given an opportunity to explain why he should not be sent to an actual prison or remand centre. The circumstances did not reduce the content of the duty, which I think existed, to give him procedural fairness to nil, or even close to it. He should have been given a hearing but was not see [79] above.