Non-Disclosure of Relevant Material and Chapter III: The Tantalising Promise of Due Process Rights Protection by the Australian Constitution in the Gageler High Court Using Separation of Powers Principles

Non-Disclosure of Relevant Material and Chapter III: The Tantalising Promise of Due Process Rights Protection by the Australian Constitution in the Gageler High Court Using Separation of Powers Principles

Recent times have seen an increase in the use of secrecy measures in the context of a legal proceeding, by which a person the subject of legal action may not see or hear evidence being used against them. This is contrary to fundamental characteristics of judicial process, including procedural fairness. This article discusses a recent High Court decision where growing dissatisfaction with the use of such procedures is evident, with three members finding such provisions unconstitutional. The article places these developments within the broader context of the development of Chapter III jurisprudence. The recent decision shows the Court in a phase where it seeks to more robustly apply the separation of powers reflected in Chapter III, with positive implications for liberty. It might also herald the eventual adoption of proportionality analysis in this context.

This article was first published by Thomson Reuters in the Australian Journal of Administrative Law and should be cited as Anthony Gray and Pauline Collins, Non-disclosure of Relevant Material and Chapter III: The Tantalising Promise of Due Process Rights Protection by the Australian Constitution in the Gageler High Court Using Separation of Powers Principles, (2024) 31 AJ Admin L 93. 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.