The Australia High Court Wednesday rejected a constitutional challenge to section 46(2) of the Administrative Appeals Tribunal Act (AATA). Section 46(2) provides that the court “shall … do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding”.

The only issue before the High Court was the constitutionality of section 46(2). Under Chapter III of the Australian Constitution, no laws shall be made that deny a party proceedings in a court of federal judicature a fair opportunity or respond to evidence on which an order of the court was based. However, the court ruled that section 46 does not disadvantage a person in the appellant’s position but instead offers them a statutory remedy.

The court concluded that the limitation imposed by section 46 on a person in the appellant’s position to participate in an appeal on a question of law under section 44 of the AATA does not compromise the functioning, impartiality, or independence of the federal court. The court noted:

No practical injustice was caused to the appellant by reason of his choice of preferred remedy. One cannot maintain the proposition that one has been subjected to a practical impediment by reason of the presence of a known obstacle on the path that one has chosen to pursue.

The unnamed appellant in the case is a non-citizen of Australia who was judged to be a risk to national security “directly or indirectly.” On behalf of the Australian Security Intelligence Organization, the Director-General of Security canceled the appellant’s visa on character grounds under section 501(3) of the Migration Act of 1958, and the appellant appealed to the Administrative Appeals Tribunal. The appellant then appealed the Tribunal’s affirmation of the visa cancellation and challenged the constitutionality of section 46(2) of the AATA.