Security and Fairness in Australian Public Law

Abstract

Security concerns have always raised troubling rule of law questions about the weighing of competing public interests in national security, fairness to affected individuals, the accountability of administrative decision-makers, and public confidence in the openness of justice before the courts. This chapter examines two particular legal contexts in which national security issues have generated serious concerns about the fairness of administrative decisions and/or judicial review proceedings in Australia: (1) the diminution of procedural fairness to ‘nothingness’ in certain security decisions by the Australian Security Intelligence Organisation (ASIO), and (2) the invocation of public interest immunity (also known as Crown privilege) to preclude the admission into evidence of security information. In either case the result may be that an affected person may not know the essence of the case against them, rendering them unable to effectively challenge the executive’s claims and its adverse administrative decisions.

Independent merits or judicial review of decisions is also severely curtailed by the potential absence of relevant information or evidence, further degrading fairness and accountability. In this context, this chapter also reflects on the proper role of the judiciary in scrutinizing security issues and ensuring fairness. It argues that Australian courts have sometimes been unjustifiably deferential to the executive when security is invoked and have chosen (rather than being compelled by the legislature) to unnecessarily sacrifice fairness to individuals. This chapter contrasts the Australian approach with that taken in comparable liberal democracies where binding human rights principles apply to security decisions. It demonstrates how a human rights approach results in a more discriminate and proportionate weighing of competing public interests in security and fairness, in contrast to the blunt Australian approach which can extinguish fairness to protect security.

Keywords: security, procedural fairness, public interest immunity, ASIO, judicial review

JEL Classification: K10, K30