The limits of secrecy
The High Court has read down a statutory secrecy provision that purported to shield information from production to a court on judicial review. In doing so, it has confirmed that s 75(v) of the Constitution protects more than simply the right to commence proceedings for judicial review.
Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection  HCA 33
Statutory secrecy provisions
Statutory secrecy provisions come in many forms. Amongst the most common are those that aim to protect information by avoiding the travails of common law public interest immunity (“PII”) and its statutory analogue in s 130 of the Uniform Evidence Law.
Typically, PII is claimed by the Executive in response to court-ordered production of information, e.g. the production of documents on discovery or subpoena, or when a witness is asked a question. The fundamental features of PII include:
- there must be a “public interest” in the withholding of the information;
- this is determined by the court (which therefore must see the information); and
- it is determined by balancing the identified public interest against the competing public interest in the administration of justice.
Statutory secrecy provisions depart from these principles. The extent of this departure depends on what information is covered, when the provision operates, whether competing public interests are catered for and what role is afforded the courts.
Graham and Te Puia
In Graham and Te Puia, the Minister, in purporting to cancel the visas of two men on “character” grounds under s 501(3) of the Migration Act, had relied on information “protected” from disclosure under s 503A of the Migration Act 1958 (Cth). The criteria for protection were that the information had been “communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information”, that it had then been communicated to the Minister “for the purposes of the exercise of a power under section 501, 501A, 501B or 501C” and that it was “relevant to the exercise of a power under section 501, 501A, 501B or 501C”. If these criteria were satisfied then s 503A(2)(c) provided that the Minister “must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person”. The Minister had a non-compellable discretion to waive so much of this protection as he wished, by declaring that s 503A did not prevent the disclosure of “specified information”, in “specified circumstances”, to a “specified court”.
The Plaintiff in Graham and the Applicant in Te Puia invoked two strands of authority.
– First, they argued that, in allowing the Minister (who is both a member of the Executive and a party to the proceedings) to control the evidence base in the proceedings, s 503A impermissibly required “the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court” (Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, Brennan, Deane and Dawson JJ, 27).
– Second, they argued that s 503A, “as a matter of practical effect … so curtail[s] … the … ability of applicants to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure” (Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ, .
The High Court rejected the former argument but accepted the latter argument. The plurality, comprising Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ, described s 503A(2)(c) as “blanket and inflexible”. Their Honours continued, at :
 The practical impact … is to prevent this Court … from obtaining access to a category of information which, by definition, is relevant to the purported exercise of the power of the Minister that is under review, and which must for that reason be relevant to the determination of whether or not the legal limits of that power and the conditions of the lawful exercise of that power have been observed. This Court [is] denied the ability to require the information to be produced or adduced in evidence by the Minister irrespective of the importance of the information to the determination to be made and irrespective of the importance or continuing importance of the interest sought to have been protected by the gazetted agency when that agency chose to attach to its communication of information to an authorised migration officer the condition that the information be treated as confidential information.
Section 503A(2)(c) therefore needed to be read down. Their Honours emphasised, at :
The problem with s 503A(2)(c) is limited to its application to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution… To the extent that it so operates, the provision amounts to a substantial curtailment of the capacity of a court exercising jurisdiction under or derived from s 75(v) of the Constitution to discern and declare whether or not the legal limits of powers conferred on the Minister by the Act have been observed.
The High Court has significantly clarified the constitutional limits upon statutory secrecy provisions. These are unlikely to be wholly invalid, even where they give the Executive and/or a party control over the evidence base by reference to criteria that are alien to PII. There may, however, be other, context-specific limitations. One of these is s 75(v) of the Constitution, which, as the High Court observed in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, “introduces into the Constitution of the Commonwealth an entrenched minimum provision of judicial review” in relation to decisions by officers of the Commonwealth (at , Gaudron, McHugh, Gummow, Kirby and Hayne JJ). In this context, at least, statutes that depart from PII principles are liable to be read down. As regards what amounts to a “substantial” curtailment of its judicial review function, the plurality left the matter open, remarking, at :
It is not necessary in this case to further analyse matters of substance and degree which may or may not result in the invalidity of a statutory provision affecting the exercise of a court’s jurisdiction under s 75(v). It may be necessary to do so in the future. In this case the effect of s 503A(2) is effectively to deny the court evidence, in the case of the applicant the whole of the evidence, upon which the Minister’s decision was based. It strikes at the very heart of the review for which s 75(v) provides.