Alpert and Secretary, Department of Defence (Freedom of information)
[2020] AATA 1632
•3 June 2020
Alpert and Secretary, Department of Defence (Freedom of information) [2020] AATA 1632 (3 June 2020)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2020/1689
Re:Stewart Alpert
APPLICANT
Secretary, Department of DefenceAnd
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:3 June 2020
Place:Brisbane
1.Pursuant to subsection 35(4) of the Administrative Appeal Tribunal Act 1975 (Cth) (the AAT Act) the publication or other disclosure of the information contained in document T10.1 of the section 37 T Documents is restricted to:
(a)the Respondent and any officers of the Department of Defence authorised by the Respondent to have access to the information;
(b)the legal representatives of the Respondent;
(c)a Member of the Tribunal as constituted in this proceeding or a member of staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; and
(d)a member of staff of the Tribunal’s recording and transcription provider in the course of the performance of his or her duties as a member of that staff.
2.Pursuant to subsection 37(1AE) of the AAT Act the Respondent is relieved of the obligation to give a copy of T10.1 to the Applicant.
..........................[sgd]..........................................
Member D K Grigg
Catchwords
FREEDOM OF INFORMATION – Confidentiality Order – Legal Professional Privilege – Claim of Legal Professional Privilege – Whether Legal Professional Privileged Waived –– Confidentiality Order GrantedLegislation
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)Cases
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 69 ALR 31
Australian Prudential Regulation Authority v VBN [2005] FCA 1868
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237
Buttigieg v Comcare [2017] AATA 1002
Commonwealth v Vance [2005] ACTCA 35
Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49
Glencore International AG v Commission of Taxation [2019] HCA 26
Grant v Downs (1976) 135 CLR 674
Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378
News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88
OJG Engineering Pty Ltd and Commissioner of Taxation [2019] AATA 4293
Osland v Secretary, Department of Justice (2008) 234 CLR 275
Philip Morris Limited and Prime Minister [2011] AATA 556
Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247
Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728
Rich v Harrington [2007] FCA 1987
Secretary, Department of Justice v Osland [2007] VSCA 96
Waterford v The Commonwealth (1987) 163 CLR 54
Secondary Materials
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissionerunder s 93A of the Freedom of Information Act 1982 (combined November 2019).
REASONS FOR DECISION
Member D K Grigg
3 June 2020
INTRODUCTION
The Respondent seeks an order pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) restricting the disclosure of a document which is relevant to the decision under review.
The Respondent seeks to restrict the publication and disclosure of the document to members and staff of the Tribunal and to the Respondent and its representatives.
The effect of the order requested will be that the Applicant will not be permitted to view the document.
BACKGROUND
The Applicant, Mr Stewart Alpert, is seeking a review of the internal review decision of the Department of Defence (“the Department”) made on 17 August 2018 to refuse access to a document pursuant to section 42 of the Freedom of Information Act 1982 (“FOI Act”).[1] The Department asserts that the document is subject to legal professional privilege. Mr Alpert had made a request for access to documents from the Department pursuant to the FOI Act on 10 June 2018.[2]
[1] T-documents, T4, pages 14-17, Original FOI Decision of the Department of Defence dated 17 June 2018.
[2] T-documents, T3, pages 7-13, Mr Alpert’s FOI request dated 10 June 2018.
Mr Alpert sought internal review of the Department’s decision and subsequently a review by the Office of the Australian Information Commissioner (“IC”).[3] Ultimately the IC’s delegate decided to exercise a discretion to not undertake the review in accordance with s 54W(b) of the FOI Act.[4]
[3] T-documents, T6, pages 37-44, Mr Alpert’s Request for Internal Review dated 30 September 2018; T-documents, T8, page 48, Mr Alpert‘s Request for IC Review dated 17 December 2018.
[4] T-documents, T12, pages 61-66, IC decision not to undertake review under 54W dated 28 February 2020.
On 13 March 2020, Mr Alpert applied to the Tribunal for a review pursuant to section 57A of the FOI Act and advised that the Office of the IC had determined that the decision made by the Department should be referred to the Tribunal for review.[5] Pursuant to the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act (“FOI Guidelines”) at [10.88] – [10.89]:
The Information Commissioner can decline to undertake a review if satisfied ‘that the interests of the administration of the [FOI] Act make it desirable’ that the AAT consider the review application (s 54W(b)).
[5] T-documents, T1, pages 1-4, Mr Alpert’s Application for Review dated 13 March 2020.
The IC advised the Department that it considered the legal issue of implied waiver of legal professional privilege, raised by Mr Alpert, as complex and one that would require the use of considerable resources. The Office of the IC concluded that “…it is in the interests of the administration of the FOI Act that this review be closed and the applicant be provided the opportunity of applying directly to the AAT for review”.[6]
[6] T-documents, T11, pages 56-60, IC Notice of Preliminary Review dated 29 October 2020.
On 24 April 2020, as part of the preparation for the review by the Tribunal, the Department, in accordance with its obligations under section 37 of the AAT, lodged documents relevant to the review (the “T Documents”). The T Documents contained a redacted version of document number T10.1 (“document T10.1”). The Department applied, pursuant to section 37(1AF) of the AAT Act, for an order under section 35(4) that disclosure of document T10.1 be restricted. The Department submits that T10.1 is subject to legal professional privilege as it concerns the request for and advice from a legal officer of the Department.
Mr Alpert opposes the Department’s request for a section 35(4) order in relation to document T10.1 on the grounds that:
(a)legal professional privilege was waived by the Department; and
(b)procedural fairness and principles of natural justice require that the document should be made available to him.
The Department claims that document T10.1 is an “exempt document” which is subject to legal professional privilege which it contends it has not waived.
Prior to the interlocutory hearing held on 11 May 2020, the parties exchanged their respective outlines of submissions.
LEGAL PRINCIPLES
Legal Professional Privilege – General Principles
Legal professional privilege is a substantive right giving rise to an immunity from being compelled to produce a document evidencing confidential communications about legal matters between lawyers and clients: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49.
The High Court explained the rationale behind legal professional privilege in Glencore International AG v Commission of Taxation [2019] HCA 26 (“Glencore”), at [10], as follows: “The rationale for legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client”.
Documents which are the subject of legal professional privilege are exempt from production by court process or statutory compulsion: Grant v Downs (1976) 135 CLR 674.
Pursuant to section 42 of the FOI Act, a document which would be privileged from production in legal proceedings on the ground of legal professional privilege is an “exempt document”, unless the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
An “exempt document” is one which does not need to be given to a requesting party under the FOI Act and includes documents exempt under Part IV of the FOI Act which includes documents subject to claims of legal professional privilege.[7]
[7] See Freedom of Information Act 1982 (Cth) ss 4 and 31A. .
The power of the Tribunal to make an order restricting the publication or disclosure of a document derives from section 35 of the AAT Act. Section 35(4) of the AAT Act provides:
(4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
The FOI Act sets out what matters the Tribunal must have regard to when considering whether to make an order under section 35(4) of the AAT Act. Section 63(1) of the FOI provides relevantly as follows:
(1) In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975 , the Tribunal must:
(a) have regard to:
(i) the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate;
…
(Emphasis added)
CONTENTIONS
Is Document T10.1 subject to legal professional privilege?
The Department described document T10.1 as follows: [8]
T10.1 comprises:
a. an email requesting legal advice from an officer of the Department of Defence to the Directorate of Administrative Law and Advisings, Office of Defence General Counsel, Defence Legal (Directorate) in relation to whether the exempt document that is now the subject of the applicant’s Tribunal application is exempt from release under s 42 of the Freedom of Information Act 1982 (FOI Act). The email carries the delimiter ‘Sensitive: Legal’.
b. an email in reply from a Defence legal officer within the Directorate, providing the legal advice sought. This email also carries the delimiter ‘Sensitive: Legal’.
[8] Respondent’s submissions in reply dated 8 May 2020.
Tamberlin DP QC in Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728 (“Ransley”) summarised the common law test which applies to section 42 of the FOI Act and the assessment of whether a document is exempt from disclosure (for the purpose of the FOI Act) on the grounds of legal professional privilege as follows:
[10] The test to be applied under section 42 of the Act is that which applies under the common law which involves:
(a) examination as to whether there is a lawyer client relationship;
(b) whether the document in question was created for the dominant purpose of giving or receiving legal advice or for use in actual or anticipated litigation;
(c) whether the advice is independent; and
(d) whether the advice is confidential.
[11] The relevant principles are set out in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Esso Australian Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1989) 201 CLR 49 and cases there referred to.
Legal professional privilege will apply to in-house counsel communications provided there is the necessary independence in the provision of legal services.[9] The Department’s in-house counsel was providing advice to an officer of the Department in their legal capacity .There was no contention raised that legal professional privilege may not apply to document T10.1 on the basis that it was advice requested and received from an in-house counsel.
[9] See Rich v Harrington [2007] FCA 1987; Waterford v The Commonwealth (1987) 163 CLR 54 and Commonwealth and McCormack v Vance [2005] ACTCA 35 at [23]-[24].
It is clear from an inspection of document T10.1 that is was produced for the dominant purpose of requesting and providing independent legal advice between lawyer and client.
The FOI Guidelines note, citing Ransley, at [14], that the Tribunal takes a broad approach and that it would be a rare occurrence that one would find that a communication between a lawyer and client was not protected from disclosure on the grounds of legal professional privilege.[10]
[10] Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioners under s 93A of the Freedom of Information Act 1982 (combined November 2019) at [5.134].
At the interlocutory hearing Mr Alpert did not dispute that such a document would, on creation, be capable of attracting legal professional privilege.
The Tribunal finds that document T10.1 is a communication that would be subject to legal professional privilege.
Did the Department Waive Legal Professional Privilege?
Legal professional privilege may be waived either explicitly or implicitly: Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and at 493; 43 per Deane J.
The test for whether a party can be said to have impliedly waived legal professional privilege is known as the “inconsistency test”. In Mann v Carnell [1999] HCA 66; 201 CLR 1;168 ALR 86; 74 ALJR 378 (“Mann”) at [34], Gleeson CJ, Gaudron, Gummow and Callinan JJ said:
Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect…considerations of fairness may be relevant to a determination of whether there is such inconsistency
(Emphasis added)
The fact that the privilege holder did not intend to lose the benefit of the privilege does not matter.[11] It is the conduct of the privilege holder, and the context of the disclosure that are relevant: Mann, at [29].
[11] See Philip Morris Limited and Prime Minister [2011] AATA 556, at [126].
Mr Alpert referred the Tribunal to the Full Federal Court decision in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 (“Bennett”), where Tamberlin J states at [5]:
In the present case it is evident from the letter of 28 September 1999, which was written by the Australian Government Solicitor to the solicitors for Mr Peter Bennett, that the substance of the advice for the Australian Government Solicitor was conveyed in a context which did not attract an obligation of confidentiality in relation to the letter. It is apparent that the substance and effect of the advice was being communicated in order to emphasise and promote the strength and substance of the case to be made against Mr Bennett.
His Honour continues at [6]:
…. In my view, it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion.
In Bennett (at [68]), Gyles J (Tamberlin J agreeing) held that it was "... well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege”.
In Bennett, the disclosure was from the Australian Government Solicitor to Mr Bennett’s solicitor in circumstances where no confidentiality was maintained.
Mr Hyland, representing the Department, urged the Tribunal to exercise some caution in relation to Bennett. Mr Hyland gave the following reasons:
… it is a NSW Court of Appeal's decision and in particular I would urge some caution around paragraph 71 where the Full Court – the Court of Appeal it quoted from Bennett and in my submission while Bennett is not wrong necessarily, in the sense that Bennett hasn't been directly overruled, Bennett effectively suggested that in any circumstance where the gist of legal advice is disclosed, privilege is waived, and that is not the test.
I agree with Mr Hyland. It was noted in Osland v Secretary, Department of Justice (2008) 234 CLR 275 (“Osland”) (at [34]) that the Court of Appeal in Secretary, Department of Justice v Osland [2007] VSCA 96 noted at that what Gyles J said in Bennett “did not express a rule of general principle”.[12] The Court in Bennett still clearly stated that the appropriate principles to be applied are as set out in Mann. Each case needs to be determined on its own merits and Mann and Osland are the leading High Court authorities on the issue.
[12] Secretary, Department of Justice v Osland [2007] VSCA 96, at [29].
With the above principles in mind I turn to consider the conduct of the Department.
Document T10.1 was disclosed by the Department to the Office of the IC in a response to a request as follows.
Following Mr Alpert’s request for a review of the Department’s decision, the IC requested that the Department provide the following material:[13]
·the FOI request, and any correspondence that modifies its scope.
·the names and contact details of anyone who was consulted by the Department, formally under ss 15(7), 26A 27A, or informally (including consultations with other government agencies).
·copies of any correspondence between the Department, and anyone who was consulted, including file notes of any relevant telephone conversations.
·a marked up and unredacted copy of the documents at issue in an electronic format. Material which is claimed to be exempt should be highlighted with reference made to the exemption/s applied.
·submissions in relation to the exemptions claimed under s 42, in particular in regards to waiver and any other submissions the Department wishes to make in support of its decision.
[13] T-documents, T9, pages 49-51, Notice of IC Review dated 21 February 2019.
In response to that request the Department provided the following documents to the Information Commissioner by email:[14]
·The FOI request (Attachment A)
·Internal review decision (Attachment B)
·Original version of documents (Attachment C)
·Document released administratively (Attachment D)
·Legal comment regarding the application of s42 to the requested document (Attachment E).
(the “legal comment” document is document T10.1)
[14] T-documents, T10, page 52, Department of Defence’s response to notice of IC Review dated 19 March 2019.
The Department requested that “the attached documents …not [be] shared, including with the applicant” and marked the email “Sensitive: Legal”.
The Department also advised the IC that it did not wish to make any submissions at this time.
The issue here is whether the Department’s disclosure of document T10.1, in these circumstances, is inconsistent with it being permitted to maintain confidentiality in the document.
The Department submits that it:
(a)maintained confidentiality and did not waive legal professional privilege in document T10.1 when it was provided to the Information Commission; and
(b)has consistently sought to maintain confidentiality over document T10.1.
Mr Alpert contends that the Department “…knowingly and voluntarily provided document T10.1 to the Office of the Australian Information Commissioner (the IC) as evidence”.[15]
[15] Applicant’s Submissions dated 30 April 2020.
It is correct that the Department knowingly disclosed document T10.1 to the Office of the IC. It is not clear that it was provided as “evidence”. It was provided as “legal comment” which is more akin to a legal submission. In any event, the fact of disclosure alone is not necessarily sufficient to constitute a waiver of privilege, particularly where confidentiality was maintained.
Mere disclosure alone will not, of itself, amount to a waiver of privilege. Whether waiver has occurred will be a question of fact and degree: Osland at [49].
The Department’s conduct with the IC is no different to its conduct before this Tribunal. It is not inconsistent with a right to claim legal professional privilege.
Mr Alpert also contended that:[16]
Additionally, by providing document T10.1 to the IC, the Respondent has also sought to justify the decision of the decision maker in the IC reviewable decision. This consequentially raises grounds for an issue waiver, which is also commonly referred to as a 'state of mind waiver'.
Where a party pleads that he or she undertook certain action 'in reliance on' a particular representation made by another, he or she opens up as an element of his or her cause of action, the issue of his or her state of mind at the time that he or she undertook such action. The court will be required to determine what was the factor, or what were factors, which influenced the mind of the party so as to induce him or her to act in that way. That is, the party puts in issue in the proceeding a matter which cannot fairly be assessed without examination of relevant legal advice, if any, received by that party. In such circumstances, the party, by putting in contest the issue of his or her reliance, is to be taken as having consented to the use of relevant privileged material, or to put it another way, to have waived reliance on the privilege which such material would otherwise attract (see: Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 156 ALR 634. See also Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at l24l; Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd [2015] VSCA 101 at [34].)
Therefore, due to the Respondent's reliance upon document T10.1, that document would not be privileged from production in legal proceedings.
[16] Applicant’s Submissions dated 30 April 2020.
Issue waiver or state of mind waiver arises where a party’s state of mind becomes relevant to the cause of action. That is where the privileged information affected a party’s state of mind.[17] Issue waiver is not relevant here because the Department is not relying on any intention or state of mind in claiming legal professional privilege. Even if the Department’s state of mind had been relevant, the Department would still need to be found to have acted inconsistently with the maintenance of privilege: Osland.
[17] See Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236, at [48].
Mr Alpert also contended that the disclosure was not a “limited disclosure” as referred to in Osland. In Osland, at [49] the High Court said: “…in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case”.
While the whole of document T10.1 was disclosed, it was a limited disclosure as it was only provided to the IC and was provided in a context where confidentiality was claimed.
Mr Alpert also contended that there was no exempt material contained within document T10.1. The Tribunal is not at liberty to disclose the contents of document T10.1. It is also not in a position to inform the Applicant whether any attachments were referred to in document T10.1, or whether those attachments, if they exist, are exempt documents. This is not an issue that is before this Tribunal. However, pursuant to s63(1)(b) of the FOI Act the Tribunal does need to “have regard to the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate”.
I find that the Department has acted consistently with maintaining legal professional privilege with respect to document T10.1.
Relevance of procedural fairness
In considering whether to make a confidentiality order under s 35 of the AAT Act, the Tribunal is, pursuant to section 35(5), to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
Section 39 of the AAT Act enshrines the general principles of procedural fairness and natural justice that all parties are entitled to have a reasonable opportunity to present their case and inspect documents. It is important to note however, that section 39 is subject to, among other things, any order that is made under section 35.
Despite the public interest in maintaining procedural fairness, it is also necessary to consider the public interest in upholding legal professional privilege. The High Court in Glencore (at [29]), explained that the public interest in upholding legal professional privilege (by encouraging full and frank disclosure by clients to the lawyers) “is paramount to the more general public interest” of the fair conduct of litigation.
Brennan J put it this way in Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 (“Pochi”), at 273:
...an applicant’s interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: ‘When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.
In News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88 the applicant sought access to a schedule of documents which was said to disclose matters claimed to be exempt under the FOI Act. Part of the hearing before the Tribunal was held in the absence of the applicant and his representative. On appeal the majority of the Full Federal Court held that there had been no denial of procedural fairness and that section 39 is expressly subject to section 35.
Mr Alpert contended that section 37(3) of the AAT Act abrogated any right to claim legal professional privilege and relied on Buttigieg v Comcare [2017] AATA 1002. In that case Deputy President Forgie considered section 37(3) of the AAT Act and noted that if relevant material was subject to legal professional privilege, there is no obligation to disclose it where the party has applied for an order under section 35(4) of the AAT Act, as the Department has done here, and a document would still be exempt from production on the ground that it was subject to legal professional privilege.
See also Australian Prudential Regulation Authority v VBN [2005] FCA 1868 where Ryan J stated at [40]:
I have already indicated...my tentative view that s 37(3) of the Act does not "abrogate" privilege, including legal professional privilege. If, as I think, scope remains for the Tribunal to give effect to legal professional privilege attaching to documents required to be lodged by a decision-maker, a decision which denies that effect has a final impact on what the High Court has identified as a substantive common law right or immunity.
In OJG Engineering Pty Ltd and Commissioner of Taxation [2019] AATA 4293 Deputy President Boyle noted (at [30]) that it is a common occurrence in FOI matters before the Tribunal that the application will not have a copy of the documents that are the subject of the FOI request, but that this “does not mean that there is a denial of procedural fairness, it is simply an obvious necessity given the nature of the application”.
The Department is entitled to seek and be granted an order protecting the right to claim legal professional privilege.
CONCLUSION
The Tribunal finds that document T10.1 is the subject of legal professional privilege and that that privilege has not been waived. The Tribunal considers it appropriate to give directions prohibiting and restricting the disclosure of document T10.1.
DECISION
Pursuant to subsection 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) the publication or other disclosure of the information contained in document T10.1 of the section 37 T Document is restricted to
(i)the Respondent and any officers of the Department of Defence authorised by the Respondent to have access to the information;
(ii)the legal representatives of the Respondent;
(iii)a Member of the Tribunal as constituted in this proceeding or a member of staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; and
(iv)a member of staff of the Tribunal’s recording and transcription provider in the course of the performance of his or her duties as a member of that staff.
Pursuant to subsection 37(1AE) of the AAT Act the Respondent is relieved of the obligation to give a copy of T10.1 to the Applicant.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg.
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Associate
Dated
Date of hearing 11 May 2020 Applicant By telephone Respondent By telephone Solicitor for the Respondent Justin Hyland, Senior Executive Lawyer, Australian Government Solicitor
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