Balancing act: procedural fairness and protecting the public interest – exploring statutory non-disclosure provisions

By Arielle Zinn and Alana Meaney

The application of non-disclosure provisions and public interest immunity (PII) principles highlight competing considerations of procedural fairness and protecting the public interest. On one hand, the public demands the government do everything possible to keep the community safe, which might mean withholding certain information. On the other hand, procedural fairness requires that a party affected by a process has access to the material used in decision-making and an opportunity to be heard. This is an entrenched and fundamental principle of legal process and open justice.

This tension raises questions about the circumstances and mechanisms through which the legislature or common law principles can legitimately authorise the withholding of relevant information from parties in court proceedings. What happens when legislation allows for non-disclosure of material to a party whose interests are implicated or potentially implicated in a particular proceeding?

What is required by procedural fairness?

Broadly, procedural fairness means that when public powers are exercised, basic procedural rights are provided to individuals who may be adversely affected. The ‘fair hearing rule’, one of the two essential elements of procedural fairness, requires a decision-maker to give a person an opportunity to be heard before making a decision affecting their interests.

What is a statutory non-disclosure provision and how does it reconcile with procedural fairness?

  • A statutory non-disclosure provision is a provision that restricts the disclosure of certain information. These provisions operate as an exception to the general presumption in favour of disclosure, usually because public interest, national security or privacy reasons are deemed a priority over fairness to an individual.
  • Although procedural fairness can legitimately be infringed upon by statutory non-disclosure provisions, given the importance of the rights contained within the hearing rule, legislation that seeks to exclude those rights is viewed strictly.
  • Recently, the High Court grappled with the question of whether a legislative scheme for non-disclosure was consistent with procedural fairness in SDCV v Director-General of Security (2022) 405 ALR 209. The court upheld the validity of s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth), which required the Federal Court to do all things necessary to ensure that material subject to a non-disclosure certificate was not disclosed. The court found concerns about the statutory validity of legislation infringing upon procedural fairness are resolved by considering whether the legislation causes practical injustice, which depends on all the circumstances of the case.

PII principles

Information might also be protected under the PII doctrine at common law and in evidence statutes, which give rise to the same tensions between affording procedural fairness and competing public interests.

A claim for PII is generally brought under the relevant Evidence Act (either state, territory or Commonwealth). For example, under the Evidence Act 1995 (NSW), section 130(1) requires a court to prevent evidence being adduced if the public interest in admitting the evidence is outweighed by the public interest in preserving its secrecy or confidentiality.

The PII claim is determined by well-established common law principles, which dictate that production of documents is not required if their disclosure would be injurious to the public interest, despite their relevance and admissibility. This balancing act entails the court weighing the public interest in withholding information or document production against the public interest in ensuring the courts, in administering justice, have access to the relevant evidence.

This is no easy feat and can be a complex task involving a multitude of competing considerations. This was clear in Madaferri v The Queen [2021] VSCA 1, where the Court of Appeal considered a claim for PII made by the Chief Commissioner of Victoria Police. Mr Madaferri had sought to obtain documents from the Chief Commissioner because he believed his former solicitor was a police informer and therefore did not receive independent legal advice.

The court conducted ‘the balancing act’, accepting the unchallenged evidence about the importance of police informers and the concern that revealing their identity may deter other people from coming forward to assist police. However, the court also recognised at least part of the documents could substantially assist Mr Madaferri in his proceedings and that the public interest in the proper administration of justice would typically favour informing a client of a breach of their lawyer’s duty. The court concluded the documents were not protected by public interest immunity.


Non-disclosure provisions and claims of public interest immunity can, by their nature, restrict the extent to which a decision-maker or party can access material that may be relevant to the case at hand. This raises procedural fairness concerns and, particularly, compliance with the ‘fair hearing rule’. It will be a matter for the decision-maker, usually a court, to conduct the ‘balancing act’ by weighing the competing considerations and deciding how sensitive material should be dealt with.

We’ll explore these issues further in the next instalment of our 2024 Administrative Law webinar series on 13 June.


Nicola Johnson

Nicola has extensive subject matter expertise in administrative law, advising Commonwealth agencies on complex legal issues and the conduct...

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