Clement v Comcare [2011] FCA 404

Clement v Comcare [2011] FCA 404

The Act did not apply to the appeal proceedings because the Attorney-General had not given notice under s 6A(1). Properly construed with reference to the relevant extrinsic materials, s 6A triggers the operation of the Act in civil proceedings, so the appellant's purported s 38D notice was a nullity and the Court had no basis to adjourn under s 38D(5) or convene a hearing under s 38A.

Jurisdiction
Australia
Judgment Date
21 April 2011
Procedural Posture
Appeal From the Administrative Appeals Tribunal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / Interlocutory Motions Seeking an Adjournment Under S 38 D(5) and a National Security Information Hearing Under S 38 a of the National Security Information (criminal and Civil Proceedings) Act 2004 (cth)
Outcome
The motions for an adjournment and for a national security information hearing were refused, and a declaration was made that the Act has no application unless the Attorney-General gives notice under s 6A(1).
Legal Topics
['application of the National Security Information (criminal and Civil Proceedings) Act 2004 (cth) to Civil Proceedings' 'whether S 6 a Triggers the Operation of the Act in Civil Proceedings' 'adjournment Under S 38 D(5)' 'national Security Information Hearing Under S 38 A' 'use of Extrinsic Materials in Statutory Interpretation']
['practice and Procedure' 'administrative Law' 'national Security Information'] ['application of the National Security Information (criminal and Civil Proceedings) Act 2004 (cth) to Civil Proceedings' 'whether S 6 a Triggers the Operation of the Act in Civil Proceedings' 'adjournment Under S 38 D(5)' 'national Security Information Hearing Under S 38 A' 'use of Extrinsic Materials in Statutory Interpretation']

Case Brief

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Procedural Posture

Appeal From the Administrative Appeals Tribunal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / Interlocutory Motions Seeking an Adjournment Under S 38 D(5) and a National Security Information Hearing Under S 38 a of the National Security Information (criminal and Civil Proceedings) Act 2004 (cth)

Legal Issues

  1. 1 ['Whether the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) applied to the appeal proceedings without notice from the Attorney-General under s 6A(1).' 'Whether the Court was required to adjourn the appeal proceedings under s 38D(5) after the appellant purportedly gave notice under s 38D(1).' 'Whether the Court had power to convene a national security information hearing under s 38A.']

Ratio Decidendi

The Act did not apply to the appeal proceedings because the Attorney-General had not given notice under s 6A(1). Properly construed with reference to the relevant extrinsic materials, s 6A triggers the operation of the Act in civil proceedings, so the appellant's purported s 38D notice was a nullity and the Court had no basis to adjourn under s 38D(5) or convene a hearing under s 38A.

Court Disposition

The motions for an adjournment and for a national security information hearing were refused, and a declaration was made that the Act has no application unless the Attorney-General gives notice under s 6A(1).

Orders

  • ['The appeal proceedings not be adjourned pursuant to s 38D(5) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).' 'A national security information hearing not be convened under s 38A of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).' 'The Act...