where the applicant proposed an order that the respondents provide the “gist” of the certificated materials
where the applicant proposed that conditions be imposed on the tender of certificated materials or that the certificated materials be excluded
Quick Take
1Section 46(1) of the AAT Act is not merely a mechanical transmission provision: it places the entire relevant record of the Tribunal before the Federal Court for the purpose of determining questions of law on appeal under s 44, without the need for formal tender by a party, by analogy with the historical writ of certiorari and consistent with the appellate character of the proceeding.
2The principle in NBMZ — that an administrative decision-maker must understand and have regard to the legal consequences of a decision — is confined to consequences that are direct, immediate and statutorily prescribed; it does not extend to indirect or contingent consequences such as the potential effect of a ministerial certificate in a future appeal proceeding that may or may not eventuate.
3Section 39B(11) of the AAT Act is both a duty and a source of power enabling the Tribunal to receive information in closed session and exclude a party where disclosure would be contrary to the requirements of security, even in the absence of a ministerial certificate under s 39B(2), and the content of procedural fairness obligations in that context is shaped by the practical exigencies at hand.
