SDCV v Director-General of Security: Procedural Fairness and the Ability to Decide a Matter Based on Secret Evidence Not Disclosed to a Party or their Legal Team

SDCV v Director-General of Security: Procedural Fairness and the Ability to Decide a Matter Based on Secret Evidence Not Disclosed to a Party or their Legal Team

With changes afoot in the judges sitting on the High Court later in 2023, this article addresses a hope for a future change enabling greater protection of fundamental rights of an individual to know the accusations and evidence against them. The decision in 'SDCV', by a slim majority of one, validated the challenged law in section 46(2) of the 'Administrative Appeals Tribunal Act 1975' (Cth). This precluded the right of SDCV or his legal team from knowledge of the evidence against him. This article documents the decision and reasoning of the High Court in this case. It sets forth the basis for concern in such national security situations.

This article was first published by Thomson Reuters in the Australian Law Journal and should be cited as Pauline Collins & Anthony Gray, 'SDCV v Director-General of Security': Procedural fairness and the ability to decide a matter based on secret evidence not disclosed to a party or their legal team, (2024) 98 ALJ 57. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at https://www.thomsonreuters.com.au/en-au/contact.html. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.