Bienstein and Attorney-General (Commonwealth of Australia)
[2008] AATA 330
•23 April 2008
CATCHWORDS – PRACTICE AND PROCEDURE – detailed direction sought by applicant as to nature and extent of searches to be conducted in locating documents within her request – relevance of nature of Tribunal’s role in shaping directions – whether inquisitorial, adversarial or chameleon-like – detailed direction refused.Administrative Appeals Tribunal Act 1975 ss, 33, 33(1AA), 37, 37(1)(a), 37(2), 39(1), 40(1A), 43(2A) and 66(1)
Administrative Decisions (Judicial Review) Act 1977 ss 3(1), 5, 13 and 13(11)
Freedom of Information Act 1982 s 61(1)
Income Tax Assessment Act 1936 s 251JA
Income Tax Assessment Act 1997s 25-5
Migration Act 1958 ss 420(2)(a) and 501(2)
Taxation Administration Act 1953 s 14ZZOAlister v The Queen (1984) 154 CLR 404
Aporo v Minister for Immigration and Citizenship [2008] FCA 102
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; 222 ALR 411; 87 ALD 512
Browne v Dunn (1893) 6 R 67
Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30
Comcare v Maganga [2008] FCA 285
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Drummond v Commissioner of Taxation (2005) 220 ALR 691; [2005] FCA 1129
Green v Minister for Immigration and Citizenship [2008] FCA 125
Haberfield v Department of Veterans’ Affairs as Delegate for Comcare [2002] FCA 1579
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Jovanovski v Telstra Corporation Limited [2008] FCA 465
Kelson v Forward (1995) 60 FCR 39; 39 ALD 303
King v The Queen (2003) 215 CLR 250; 199 ALR 568
Kioa v West (1985) 159 CLR 550; 62 ALR 321
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
NABE v Minister for Immigration [2004] FCAFC 263; (2004) 144 FCR 1
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Re Bashari and Minister for Immigration and Multicultural Affairs [2006] AATA 839
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696
Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788; [2007] AATA 1792
Re Mann and Capital Territory Health Commission (No. 2) (1983) 5 ALN N368
Re Radge and Ors and Commissioner of Taxation (2007) 95 ALD 711; [2007] AATA 1317
Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs); Ex parte ApplicantS154/2002 (2003) 201 ALR 437; 75 ALD 1
Re Wertheim and Department of Health (1984) 7 ALD 121
Sankey v Whitlam (1978) 142 CLR 1
Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383
The Tax Agents’ Board of New South Wales v Martin (1997) 97 ATC 4192
VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 376
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1DECISION AND REASONS FOR DECISION [2008] AATA 330
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/4895
GENERAL ADMINISTRATIVE DIVISION )Re:HELEN BIENSTEIN
Applicant
And:ATTORNEY-GENERAL (COMMONWEALTH OF AUSTRALIA)
Respondent
2007/4896
Re:HELEN BIENSTEIN
Applicant
And:MINISTER FOR JUSTICE AND CUSTOMS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 23 April 2008
Place: MelbourneDecision:On 26 March 2008 the Tribunal DIRECTED that:
on or before 24 April 2008 the respondent file in the Tribunal and serve on the applicant any evidence on which the respondent intends to rely on at the hearing.
S A FORGIE
Deputy President
REASONS FOR DECISION
Mrs Helen Beinstein made requests to each of the Attorney-General and the former Minister for Justice and Customs (Justice Minister) for access to certain documents under the Freedom of Information Act 1982 (FOI Act). In an earlier decision,[1] I affirmed their decisions but, following an appeal to the Federal Court, the matter was remitted to the Tribunal. Following the remittal, Mrs Bienstein made several submissions regarding the conduct of the matter in the Tribunal. As a consequence, I decided that:
(1)it has no power to direct the Attorney-General or the Justice Minister to make a decision;
(2)it has jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Justice Minister i.e. decisions to refuse Mrs Bienstein’s request for access to documents;
(3)the Attorney-General and Justice Minister have a duty to comply with s 37(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents) and, under that section, the time within which they must do so to is extended until 1 February 2008; and
(4)it is under no obligation to order that the directions hearing be recorded.
[1] [2008] AATA 7
2. After Mrs Bienstein withdrew her appeal to the Federal Court regarding these decisions and the Attorney-General and Justice Minister had lodged their T documents, I held a further directions hearing as to the future progress of the case. Mrs Bienstein has asked that the Tribunal make specific directions identifying the particular type of evidence that the Attorney-General and the Justice Minister must produce prior to the hearing. I declined to do so and she has now asked for written reasons.
3. Mrs Bienstein is not entitled to written reasons under s 43(2A) of the AAT Act as the obligation to give written reasons only arises under that provision if I make a decision affirming, varying or setting aside the decision and substituting another or remitting it to the decision-maker. That is to say, it only arises if I make a decision finalising the matter. Section 13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) also entitles a person to ask for written reasons if a decision to which that section applies has been made and the person is entitled to make an application to the Federal Court or the Federal Magistrates Court under s 5. As my decision is a decision of an administrative character made under an enactment within the meaning of s 3(1) of the ADJR Act and as it is not excluded by s 13(11), it is a decision to which s 13 applies. Although I know that Mrs Bienstein is aggrieved by my decision, I have not presumed to attempt to decide whether or not she would be likely to succeed in her challenge to my decision on any of the grounds set out in s 5. Her entitlement to apply under s 5 depends on her being aggrieved by my decision, to which the ADJR Act applies, and not upon her being able to make out one or more of the grounds set out in that section. In my view, Mrs Bienstein is entitled to ask me for written reasons and I am obliged to give them.
THE SUBMISSIONS
4. A central issue in this case relates to the adequacy of searches undertaken by the Attorney-General and the Justice Minister to locate the documents identified in Mrs Bienstein’s request. On their behalf, Mr Bennett advised that he proposed to lodge further affidavits regarding the searches that had been made for the documents. In response, Mrs Bienstein said that affidavits that stated that the deponent had supervised searches would be inadequate. They should be sworn by persons who had actually conducted the searches and who had proper information technology (IT) knowledge. As she later wrote to the Tribunal when requesting reasons, Mrs Bienstein required me to make a direction that the persons swearing the affidavits had to give detailed evidence as to the:
“1.Data, data storage and data management and retrieval systems in use by the respondent;
2.Decisions as to the way the searches would be conducted, including search terms and physical access;
3.A paper trail of the actual searches conducted, including screen dumps and reports, these to be included as objective evidence among the T-documents;
4.Reasoned argument why the respondent believes (and wants us to believe) where are no more documents to be found …”[2]
[2] Letter to Tribunal from applicant dated 26 March 2008 at 2.
5. I declined to make detailed directions in these terms and gave a general direction that:
“…on or before 24 April 2008 the respondent file in the Tribunal and serve on the applicant any evidence on which the respondent intends to rely on at the hearing.”
REASONS
6. Generally, when an application is made to the Tribunal for review of a decision, neither party carries a burden of proof but that is not always the case. Applications to review decisions refusing to give access in accordance with a request under the FOI Act are an example of those instances in which one party or the other does carry a burden of proof. When giving directions in such cases, the fact that there is a burden of proof is a matter that is very much in my mind for it may influence the nature of the directions I give. So too is the role of the Tribunal. Is it an inquisitorial body that should always direct the material that comes before it? Is it an adversarial body that is more content to await what the parties bring to it so that it may adjudicate upon it or is it something in between the two?
7. I will begin, though, with the major feature that most, if not all, applications share. That feature is that the outcome of the Tribunal’s review will be that it makes a decision that it regards as the “correct or preferable decision”. That this is to be the outcome of any review has its roots in the statement made by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs[3] when they said that the Tribunal’s task is to decide:
“... whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”[4]
[3] (1979) 24 ALR 577; 2 ALD 60
[4] (1979) 24 ALR 577; 2 ALD 60 at 589; 68 per Bowen CJ and Deane J and 599; 77 per Smithers J
8. The Tribunal’s task is not to enquire whether the decision-maker made an error in making the decision. That is the task of courts under the ADJR Act if it is a decision to which that legislation applies and a person affected by the decision wants to question the process. Generally, the Tribunal’s task is not to adjudicate upon whether the decision-maker is able to defend the decision.[5] The task of the Tribunal is to determine the correct process it should follow, follow it, ascertain the law that is applicable and the issues that are relevant, consider the evidence and make findings of fact that are based on that evidence and relevant to the issues, ascertain the decision or range of decisions that can correctly be made in light of the law and the facts and, if more than one, choose the decision that is the preferable decision.
[5] Re Mann and Capital Territory Health Commission (No. 2) (1983) 5 ALN N368 as set out and adopted in Re Wertheim and Department of Health (1984) 7 ALD 121 at 154
9. In Drake v Minister for Immigration and Ethnic Affairs[6] Bowen CJ and Deane J commented on the Tribunal’s function in carrying out its role when they distinguished its role from that of a court:
“ The function of the Tribunal is … an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative decision in a given case or, where a decision has been lawfully made in pursuance of permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify that particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which an administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists …, that regard must be had to the relevant considerations, and that matters ‘absolutely apart from the matters which by law ought to be taken into consideration’ must be ignored …”[7]
[6] (1979) 24 ALR 577; 2 ALD 60
[7] (1979) 24 ALR 577; 2 ALD 60 at 539; 68-69
10. As their Honours make clear in this passage, the Tribunal is not limited to the evidence and material that was before the decision-maker. Consistent with this view, Parliament has made provision for the Tribunal to have all the relevant material before it. It has done so in the AAT Act when, for example, it requires that the decision-maker lodge with the Tribunal two categories of documents. Only one document falls in the first category and that is a statement of reasons that is prepared in accordance with s 37(1)(a). The second category includes every other document or part of a document that is in the decision-maker’s possession or under his or her control and is relevant to the review of the decision by the Tribunal.
11. When filed, the two categories of documents form a foundation of material which is built upon by the parties during their preparation for a conference, a directions hearing or for any mediation or conciliation process and, should the matter not be settled beforehand, a hearing. The parties may produce material voluntarily or they may be required to do so by a direction of the Tribunal made under s 33 or, in the case of the decision-maker, under s 37(2). Quite apart from any obligation to do so as a model litigant,[8] the decision-maker’s obligation under s 33(1AA) underlines his or her obligation to produce all relevant material. That is an obligation to “… use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.” One or other or both of the parties may also choose to ask the Tribunal to issue a summons using its power under s 40(1A) of the AAT Act. A summons requires a person to appear before the Tribunal to give evidence, to give evidence and produce books, documents or things in that person’s possession or control and that are identified in the summons or simply to produce books and the like.
[8] A reference to being a model litigant is a reference to the “... old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, ... [which is] elementary ...”. It is equally applicable to courts and public administrators who share a concern in securing good administration and so in maintaining public confidence in the integrity of administrative government: Kelson v Forward (1995) 60 FCR 39; 39 ALD 303 at 66; 326-327 per Finn J. They are reflected also in the Legal Services Directions (Directions) issued on 1 September 1999 by the Attorney-General and applying generally to legal work or to Commonwealth legal work being performed, or to be performed, in a particular manner.
12. The procedure of the Tribunal is a matter for its own discretion[9] but I do not think that quality gives it any power to obtain material or to direct others to produce it. Section 33(1)(c) of the AAT Act is a different matter. It provides that the Tribunal may inform itself on any matter in such manner as it thinks fit and is not bound by the rules of evidence. The licence that s 33(1)(c) gives to the Tribunal is not without its limitations, though. This is not the case to explore them but I note that one of them is found in s 39(1) of the AAT Act. It requires the Tribunal to give every party to a proceeding a reasonable opportunity to present his or her case and to inspect, and make submissions upon, any documents to which the Tribunal proposes to have regard in reaching a decision. This obligation complements its general obligation to adopt “fair procedures which are appropriate to and adapted to circumstances of the particular case”.[10]
[9] AAT Act, s 33(1)(a)
[10] Kioa v West (1985) 159 CLR 550; 62 ALR 321 at 585; 347 per Mason J
13. My reference to the Tribunal’s powers raises the question of their extent. In order to attempt to answer that question, I have looked to a selection of authorities that have addressed the nature of the Tribunal and its proceedings. Those authorities often address the question in terms of whether a body is adversarial or inquisitorial or in terms of the difference between making an administrative decision and a judicial decision.
14. I will begin with the proposition that is sometimes put that the Tribunal’s proceedings are inquisitorial in nature. I refer, for example, to the judgment of Tamberlin J in Green v Minister for Immigration and Citizenship[11] where he said:
“41 Although the observation of the Tribunal at [66] concerning Mr Green’s failure to call certain witnesses could be construed adversely to Mr Green’s case, there is no indication that those persons could have provided material to assist his case. On the other hand, however, having regard to the fact that the Tribunal’s proceedings areinquisitorial in nature and the observations in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308 are not applicable, there is no indication in this case that any particular adverse inference was drawn or suggested on the basis of the fact that the witnesses did not give evidence orally and that the omission to ask them to do so rested with Mr Green (and not on the Tribunal).”
[11] [2008] FCA 125 at [41]
15. His Honour did not cite any authority in support of his statement that the Tribunal’s proceedings are inquisitorial. At first sight, his decision appears to be at odds with his earlier judgment in The Tax Agents’ Board of New South Wales v Martin.[12]In that case, Tamberlin J considered an appeal from a decision by the Tribunal setting aside a decision to refuse to register Mr Martin as a tax agent under the Income Tax Assessment Act 1936 (ITA Act). The Board submitted on appeal that the Tribunal had emphasised in its reasons Mr Martin’s prior registration as a nominee. In view of that, it continued, the Tribunal should have specifically alerted the Board to the importance that it attached to the issue and invited the Board to provide a response. Quite apart from his view that Mr Martin’s Statement of Facts and Contentions had already put the Board on notice, Tamberlin J observed:
“ The proceedings before the AAT are adversarial in nature. The AAT is under no obligation to disclose or to call back parties to make submissions as to the reasoning process which it has decided to adopt after the hearing has closed and after if has commenced to consider the evidence and has embarked on its reasoning process in relation to the submissions made by the parties. See the helpful discussion of cases cited in Judicial Review of Administrative Action, Aronson and Dyer (1996) at 541-548.
…
It was a matter clearly flagged by Mr Martin as important and should have been addressed by the Board before the AAT. It is too late now to suggest that the AAT should have given the Board yet a further opportunity to address on this question. Substantial weight must also be given to the consideration that litigation should be brought to finality and in a timely framework and that this case concerns an administrative decision in an area where efficient, inexpensive and prompt determination is especially important.”[13]
[12] (1997) 97 ATC 4192
[13] (1997) 97 ATC 4192 at 4,200 A more recent case addressing an issue raised after the conclusion of the Tribunal’s hearing is Jovanovski v Telstra Corporation Limited [2008] FCA 465 per Gyles J
16. It needs to be remembered that s 251JA of the ITA Act provides that “The Board shall register the applicant as a tax agent if the applicant satisfies the Board …” of the matters it proceeds to specify. Tamberlin J regarded this section as imposing a burden of proof upon Mr Martin.[14] I will return to this as I believe it has some significance. Before doing that, I note that there are occasions on which the Federal Court has referred to authorities relating to the Refugee Review Tribunal to support a proposition that the Tribunal is either an inquisitorial body or, at the very least, a body in which reference to principles drawn from adversarial proceedings, have no legitimate place. That is not to say that the same result in substantive terms is not achieved. It is achieved through the application of concepts of procedural fairness rather than by means of rules of evidence or the principles underpinning the rules of evidence as they apply in adversarial proceedings.[15]
[14] (1997) 97 ATC 4192 at 4,199
[15] Haberfield v Department of Veterans’ Affairs as Delegate for Comcare [2002] FCA 1579 at [58] -[59] per Sackville J
17. An example is found in Comcare v Maganga,[16] in which Bennett J considered whether the Tribunal had denied procedural fairness to Comcare by refusing it access to summonsed documents and so denying them the opportunity to refer to them when cross-examining the applicant. In doing so, her Honour referred to any place that the rule in Browne v Dunn[17] may have in the Tribunal:
“ Comcare challenges the Tribunal’s decision to refuse leave to inspect the summonsed documents. The alleged deficiencies in the cross-examination of Mr Maganga are not relevant to these grounds. Further, the asserted obligation on the part of Comcare to put these matters to Mr Maganga is misplaced. In Re Ruddock; Ex parte ApplicantS154/2002 (2002) 201 ALR 437, Gummow and Heydon JJ (with whom Gleeson CJ agreed) referred (at [55]) to the rule in Browne v Dunne and noted at [56] that ‘...the rule has no application to proceedings in the tribunal ... administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures’. Their Honours went on to note that the rule in Browne v Dunne had no application to proceedings in the Refugee Review Tribunal (at [57]), see also Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]). In Lawrance v Centrelink (2005) 88 ALD 664 Hely J referred toS154/2002 and found that the rule in Browne v Dunne has no application to proceedings in the Tribunal (at [31]). Regardless, it is evident from the cross-examination that did take place, that credit was strongly in issue and that Mr Maganga’s version of events in relation to the 1997 injuries was challenged.
It is also misplaced to argue that Comcare’s cross-examination of Mr Maganga was not affected by the Tribunal’s decision to deny access to the summonsed documents. If a denial of procedural fairness can be shown, a court should not refuse relief unless it is confident that the breach could not have affected the outcome (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [104] per McHugh J, citing Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145). In this case, it cannot be shown that the Tribunal’s decision not to allow Comcare access to the summonsed documents did not ultimately affect the outcome of the decision. Comcare submits that cross-examination is ‘at its most effective’ when the evidence of a witness is able to be confronted by documents (Hayes at 326-327). This argument has force in circumstances where credit is, as here, the issue in consideration. The Tribunal’s refusal of access to the summonsed documents potentially denied Comcare the opportunity to cross-examine Mr Maganga effectively. In these circumstances it cannot be said that Comcare’s cross-examination was insufficient or that Comcare chose not to cross-examine Mr Maganga on certain issues going to credit.”[18]
[16] [2008] FCA 285
[17] (1893) 6 R 67
[18] [2008] FCA 285 at [28]-[29]
18. In Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs); Ex parte ApplicantS154/2002,[19] the High Court considered whether the Refugee Review Tribunal (RRT) had misled the applicant or failed to give her a reasonable opportunity to deal with its concerns about her claim that she had been raped while in police custody in Sri Lanka. She had not raised it at an earlier hearing before the RRT. Gummow and Heydon JJ, with whom Gleeson CJ agreed, referred to s 420(2) of the Migration Act 1958 (Migration Act). Section 420(2)(a) is very similar to s 33(1)(c) in so far as it provides that the RRT is not bound by the rules of evidence. It also adds that it is not bound by technicalities or legal forms. Section 420(2)(b) does not find an equivalent in the AAT Act. It provides that the RRT “must act according to the substantial justice and the merits of the case.” Their Honours said:
“… The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate.[20] Further, as was emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[21] administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.
Accordingly, the rule in Browne v Dunn has no application to proceedings in the tribunal. Those proceedings are not adversarial, but inquisitorial; the tribunal is not in the position of a contradictor of the case being advanced by the applicant… The tribunal member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The tribunal member has no “client”, and has no “case” to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client's cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial tribunal member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out; it was not part of the function of the tribunal to seek to damage the credibility of a witness in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.”[22]
[19] (2003) 201 ALR 437; 75 ALD 1
[20] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628; [49]
[21] (1996) 185 CLR 259; 41 ALD 1 at 282; 16
[22] (2003) 201 ALR 437 at 450-451
19. Three things are interesting about this passage. The first is that the authority supporting the statement that administrative decision-making is different from that in the courts was concerned with the nature of the decision-making undertaken by a Minister’s delegates. Reference was not made to this Tribunal. In any event, it is difficult to equate the process of administrative decision-making by a delegate or by the RRT, which does not accommodate features of the adversarial system such as unfettered legal representation of the parties and examination and cross-examination of witnesses, with the Tribunal, which does. I would not want to suggest that the High Court attempted to do so for a reading of Minister for Immigration and Ethnic Affairs v Wu Shan Liang[23] shows that it was the RRT, and not the Tribunal, that was in its mind.
[23] (1996) 185 CLR 259; 136 ALR 481; [1996] HCA 6
20. The second thing that is interesting about the passage in the judgment in Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs); Ex parte ApplicantS154/2002 is that, while it is said that the RRT is inquisitorial, it is also said that it is the RRT’s role to decide whether the applicant’s claim had been made out and not to seek to damage the credibility of her story. If a process is inquisitorial, it might be thought that, even subject to an obligation to act fairly, the person making the decision must also act as the prosecutor[24] or at least in a more enquiring fashion. As the process was explained by Tom Thawley in Adversarial and Inquisitorial Procedures in the Administrative Appeals Tribunal:[25]
“… the inquisitorial system, which is often said to typify litigation processes in many non-common law-based developed nations …, involves the court or judge controlling and conducting the fact collection process, the examination of witnesses and the identification of issues. … Central to the effective operation of such a system is that each party is represented by an advocate whose role is to suggest to the decision-maker the applicable and appropriate legal issues and the existence and whereabouts of supportive evidence. The concern of such a system is for the decision-maker to form a view as to the truth and proper determination of the matter before her or him. Thus, the decision-maker will call evidence and hear submissions of law until he or she is satisfied that the decision is correct on all the facts (not, as in adversarial systems, only on the facts presented).”[26]
[24] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[25] (1997) 4 AJAL 61
[26] (1997) 4 AJAL 61 at 63
21. The third thing that is worthy of note about the passage is its reference to its not being part of the RRT’s role to seek to damage the credibility of the applicant’s story in the manner of a cross-examiner. It is difficult to reconcile the rejection by the majority of the argument that the applicant had been denied procedural fairness when the RRT did not explore the applicant’s claim of rape in any fashion at all. It could be understood that it is a very sensitive issue to explore but, given that the RRT did not accept that the claim was true, it is difficult to understand that it was not required to at least to suggest to her that it did not accept her word and give her the opportunity to present further material or to elaborate upon her claim if she could.
22. No doubt the difficulty I have with their Honours’ judgment is due to my own lack of understanding but it is compounded when I have regard to the approach taken by Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in the later case of Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[27] When reviewing a decision made by the Minister refusing protection visas to the applicant and his partner, the RRT had regard to an unsolicited, but not anonymous, letter that the Minister’s Department had received. The RRT did not tell the applicant of the letter or of the allegations it made about his having been a supporter of, and working for, the government of Eritrea. Their Honours considered the tension between maintaining the confidentiality of the author of the letter and the need to afford procedural fairness to the applicant. They noted that the decision whether to refuse or grant a visa was a decision given to the Executive by the Migration Act and that the RRT was exercising executive, rather than judicial power. They said:
“ It follows from this second proposition that the steps the Tribunal was bound to take in order to afford procedural fairness are not necessarily to be identified with the steps that should be taken by a court deciding a matter by adversarial procedures[28]. Nonetheless, it must be recognised that just as courts mould their procedures to accommodate what has become known as public interest immunity[29], so too the content of the Tribunal’s obligation to accord the appellant procedural fairness may be informed by those same considerations. No doubt care must be exercised in transposing what is said in the context of adversarial litigation about public interest immunity and its application to those who inform police about criminal activity to the wholly different context of inquisitorial decision‑making by the Executive where the subject‑matter of the information imparted was not that someone had committed a crime in Australia. Nonetheless, in identifying what the Tribunal had to do in order to give the appellant procedural fairness, it is necessary to recognise that there is a public interest in ensuring that information that has been or may later be supplied by an informer is not denied to the Executive government when making its decisions[30].
…
What is important to notice in the present case, however, is first, that information was supplied confidentially to the Department by someone who sought to remain unknown to the appellant, and secondly, that the information bore on whether the appellant was entitled to a protection visa. The Tribunal was not an independent arbiter charged with deciding an issue joined between adversaries. The Tribunal was required to review a decision of the Executive made under the Act and for that purpose the Tribunal was bound to make its own inquiries and form its own views upon the claim which the appellant made. And the Tribunal had to decide whether the appellant was entitled to the visa he claimed.
The information which was contained in the letter was relevant to that inquiry and it could not be ignored by the Tribunal. The Tribunal was able to put the information aside from consideration in its reasons only because it reached the conclusion, on other bases, that the appellant was not entitled to a visa. But that step, of putting the information in the letter aside from consideration, could not be taken before reaching the conclusion that the application should be refused. It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well‑founded fear of persecution for a Convention reason.”[31]
[27] (2005) 225 CLR 88; 222 ALR 411; 87 ALD 512
[28] National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 315 per Gibbs CJ; Allars, "Neutrality, the Judicial Paradigm and Tribunal Procedure", (1991) 13 Sydney Law Review 377.
[29] Sankey v Whitlam (1978) 142 CLR 1 at 42‑43 per Gibbs ACJ, 95‑96 per Mason J; Alister v The Queen (1984) 154 CLR 404 at 412 per Gibbs CJ.
[30] cf Alister v The Queen (1984) 154 CLR 404.
[31] (2005) 225 CLR 88; 222 ALR 411; 87 ALD 512 at 98-99; 418-419; 519-520
23. A case that was decided between Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs); Ex parte ApplicantS154/2002 and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and that raised the issue of adversarial or inquisitorial in relation to the Tribunal was Drummond v Commissioner of Taxation.[32] Hely J considered an appeal from a decision of the Tribunal affirming an objection decision by the Commissioner of Taxation (Commissioner) to disallow a deduction of $49,550 claimed as the ‘Cost of managing tax affairs’ under s 25-5 of the Income Tax Assessment Act 1997 (1997 Act). Hely J found that the taxpayer had failed to adduce evidence as to the apportionment of the sum between that part of it that he conceded had been referable to advice on questions outside the scope of s 25-5 and that part which properly came within the scope of s 25-5. Consequently, he had failed to discharge the onus imposed by s 14ZZO of the Taxation Administration Act 1953 to show that the assessment was excessive.[33]
[32] (2005) 220 ALR 691; [2005] FCA 1129
[33] (2005) 220 ALR 691; [2005] FCA 1129 at 701; [46]
24. That was enough to decide the matter but Hely J considered a submission that the Commissioner had not put to him, in cross-examination, that the letter did not contain any tax advice relating to his own circumstances. This, the taxpayer submitted, was contrary to the rule in Browne v Dunn. Hely J said that:
“… In oral submissions this point was not pressed in the light of the decision of the High Court in Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs); Ex parte ApplicantS154/2002 (2003) 201 ALR 437 at [55] et seq which suggests that the rule in Browne v Dunn … has no application to inquisitorial proceedings, although there may be room for doubt as to whether proceedings in the AAT bear that character: Tax Agents’ Board of New South Wales v Martin (1997) ATC 4192 at 4200.”[34]
[34] (2005) 220 ALR 691; [2005] FCA 1129 at 702; [47]
25. An approach more akin to that in Tax Agents’ Board of New South Wales v Martin[35] was taken in Aporo v Minister for Immigration and Citizenship.[36] Rares J described the Tribunal’s proceedings that he was examining as adversarial. He did so in the context of an argument put on behalf of the Minister for Immigration and Citizenship (MIC) that the Tribunal was not required to consider the position of Mr Aporo’s nephew and nieces as a primary consideration when reviewing a decision to cancel his visa under s 501(2) of the Migration Act 1958. The argument was put that it was not required to do so because Mr Aporo had not put forward a clearly articulated argument to that effect. The MIC relied on the judgment of Black CJ, French and Selway JJ in NABE v Minister for Immigration[37] but Rares J rejected that case as an appropriate analogy saying:
“ In that case the decision was made in the context of the inquisitorial functions of the Refugee Review Tribunal, unlike here where the proceedings before the Tribunal were adversarial. As the Minister pointed out, it is more difficult to find a jurisdictional error by a decision-maker of failure to address a claim where its procedure is adversarial. In such cases an applicant can be expected to articulate his or her own case, the moreso where the applicant is represented.”[38]
[35] (1997) 97 ATC 4192
[36] [2008] FCA 102
[37] [2004] FCAFC 263; (2004) 144 FCR 1 at 17; [55]
[38] [2008] FCA 102 at [23]
26. Rares J did not decide the case on the basis that Mr Aporo had not raised the issue himself. Instead, he went on to have regard to the fact that witnesses other than Mr Aporo had told the Tribunal of the closeness of his relationship with his nephew and nieces. The issue was clearly before it and it did not consider it. In failing to do so, it had failed to address the issue that it was required by law to address. It had failed to exercise its jurisdiction.
27. A year earlier in Harris v Secretary, Department of Employment and Workplace Relations[39] Gyles J did not take the course preferred by Rares J. He identified, instead, its powers that enable it to be an investigative body but recognised that the choice to use them lay within the Tribunal’s discretion. Gyles J was considering a case in which the Tribunal had affirmed a decision that Ms Harris was not entitled to a disability support pension. The Tribunal was satisfied that she had a present inability to work and that no vocational training would render her fit for work in any capacity available to her. There was evidence that she had been diagnosed as suffering from chronic pain and that it had been treated for a two year period. None of the medical practitioners suggested that she be referred to a pain clinic or that any other diagnosis or treatment was required. Ms Harris’s claim was rejected on what Gyles J understood to be its conclusion that “further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment.”[40] His Honour concluded that its rejection was flawed stating:
“ The AAT stands in the shoes of the Department and is in precisely the same situation as the decision maker. The fact that, as a practical matter, it chooses to conduct quasi-adversarial proceedings and does not have available direct access to medical specialists for the purposes of investigation, does not change the nature of the function being performed by it. The provisions of s 33 of the AAT Act give ample scope for the AAT to arrange investigation of a claim. The decision maker is bound to use his or her best endeavours to assist the AAT to make its decision (s 33(1AA)). The AAT has inquisitorial powers and may exercise them where appropriate. (See, generally, McDonald v Director-General of Social Security (1984) 1 FCR 354.) It is not, of course, every case that will require such measures. In general, an applicant for a benefit must satisfy the decision maker of the necessary criteria. However, cases such as this may demand such an approach (cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169–170; Luu v Renevier (1989) 91 ALR 39 at 49–50). The AAT did not arrange investigations to test the validity of the speculation about each condition. It should have made a decision made on the material before it without taking account of hypothetical third party investigations.”[41]
[39] [2007] FCA 404
[40] [2007] FCA 404 at [17]
[41] [2007] FCA 404 at [19]
28. These are but a handful of the cases in which the nature of the Tribunal has been considered. On their face, they have an apparent inconsistency but I think that the inconsistency is generally more illusory than real when regard is had to the role that has been given to the Tribunal by the Parliament. It has been said that:
“The legislature clearly intends that the Tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive … (see Pt II of the Act). Its function is to decide appeals, not to advise the Executive.”[42]
[42] Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ
29. The notion of the judicial model has also been expressed as the Tribunal’s being under a duty to act judicially.[43] Deane J, with whom Fisher J agreed, had considered the Tribunal’s position in the earlier case of Sullivan v Department of Transport:[44]
“… In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner in which they think appropriate. Circumstances may, of course, arise in which a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case. …”[45]
[43] Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383 at 342, 402 per Deane J, with whom Fisher J agreed
[44] (1978) 20 ALR 323; 1 ALD 383
[45] (1978) 20 ALR 323; 1 ALD 383 at 342-343, 402-403
30. I have attempted to give a flavour of the general role of the Tribunal as provided for under the AAT Act. That legislation recognises that particular enactments can modify or extend its role provided, of course, they do not purport to allow it to exercise judicial power. Given that the Tribunal has been given jurisdiction in relation to a vast number of decisions that can be made under well over 400 pieces of legislation, it is important that the Tribunal can adopt the approach that best suits the resolution of the case. In this way, the Tribunal can, while observing the rules of procedural fairness, use its powers under s 33 to take the path required of it to come to the correct or preferable decision. Unlike a true adversarial process, it is not limited to the path of deciding whether the party prosecuting the claim has discharged a burden of proof. It is this quality that can give the Tribunal a chameleon-like quality and make its role somewhat elusive at times. It is a role that is very much determined by the issue it must consider and, in view of the variety of cases and issues it must decide, is much more elusive than that of the RRT with which some seek to compare it.
31. The authorities to which I have referred are illustrative of these points. It can be gleaned from them that descriptions of the Tribunal as inquisitorial, for example, tend to be made in those cases in which the Federal Court has considered that the Tribunal should have questioned the evidence rather than simply accepted what was presented. By contrast, descriptions as adversarial tend to be made in cases considering issues that are more at home in the courts where the proceedings are truly adversarial. Issues in relation to which one party or the other has the burden of proof provide ready examples.
32. Even when it is suggested that the Tribunal is either an inquisitorial or an adversarial body, neither term can be used in its pure sense. In the case of what are said to be its inquisitorial quality, it must be remembered that the Tribunal’s powers are limited to its powers to give directions to the parties, issue summonses and to question witnesses and test the submissions made to it. These are powers enjoyed by courts conducting adversarial proceedings. It may conduct its own researches or draw on the expertise of its members provided it ensures that it gives the parties a reasonable opportunity to address the material that is raised in this way. Unlike truly inquisitorial bodies, though, it does not have investigative powers such as the power to conduct its own searches. In practical terms, it is necessarily limited by budgetary considerations and, if it is of the view that a particular avenue should be explored, is limited to asking the parties to do so and to submit the results of their exploration.[46]
[46] See generally the discussion by former Senior Member Joan Dwyer in Fair Play the Inquisitorial Way (1997) 4 AJAL 5 at 18-22
33. When the Tribunal is described as adversarial in cases in which the Tribunal is required to make the correct or preferable decision, the outcome will never be determined by reference to whether the person making the application has proved the case and so discharged the burden of proof.[47] Generally, there is no such burden. Rather, the reference would generally seem to be made to emphasise the fact that both parties are given the opportunity to present their cases and to test the opponent’s case by cross-examination. They are hallmarks of a proceeding conducted with procedural fairness regardless of whether it is inquisitorial or adversarial.
[47] See Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30 at 424-425; 43 per Brennan J: “Proceedings before the A.A.T may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it...The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.”
34. More important than notions of inquisitorial or adversarial are the issues that the Tribunal must decide.
“ It is well established that an inquisitorial tribunal, such as the Administrative Appeals Tribunal and the Refugee Review Tribunal, is entitled to be guided by the issues the applicant or any other “party” chooses to put before it for its consideration and to have regard to the case put. As was said by the Full Court in Grant v Repatriation Commission [1999] FCA 1629 at [17] – [18]:
“The AAT is entitled to be guided by the issues that the parties choose to put before it for its consideration (Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-489) and is entitled to have regard to the case put (Noble v Repatriation Commission [1997] FCA 1159 at 16). In Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 Brennan J said of the inquisitorial procedure of the AAT:
‘Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it...The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.
An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15]).’”[48]
[48] VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 376 at [18] per Merkel J
35. When the Tribunal is asked to review a decision made by a Minister or an agency declining to give access to a document as requested, the way in which it operates is more akin to adversarial proceedings. I say that because, in so far as it is relevant, s 61(1) of the FOI Act provides that:
“… in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.”
36. As Gleeson CJ said in King v The Queen:[49]
“The point of an onus of proof is to identify the party who is obliged to establish a fact, and who will bear the legal consequences of failure to do so.”[50]
[49] (2003) 215 CLR 250; 199 ALR 568
[50] (2003) 215 CLR 250; 199 ALR 568 at 258; 574 per Gleeson CJ
The imposition of a burden of proof means that, unlike the normal case, the Tribunal’s task is to adjudicate upon whether or not the decision-maker is able to defend the decision.[51] When the decision is to refuse access to documents which have been identified but which have been determined to be exempt under Part IV of the FOI Act, the person seeking access will be entitled to a decision in his or her favour if the agency or Minister cannot discharge that burden. When, as in this case, the request has been refused on the basis that the agency or Minister does not have the documents, failure to discharge the burden will not lead to the person’s being given access to any documents for none has been located. The practical result of a failure to discharge the burden will be a more thorough search for any documents meeting the request and, if they are located, a consideration of whether they should be released or exemption claimed for them.
[51] See Re Bashari and Minister for Immigration and Multicultural Affairs [2006] AATA 839 at [30]-[51] and ReRadge and Ors and Commissioner of Taxation (2007) 95 ALD 711; [2007] AATA 1317 at 716-717; [20]-[21] in which I explained what is usually the case when no burden of proof applies.
37. That, then, is the issue to be resolved in this case and it is the background against which I should decide the breadth of the directions I make. That background is not influenced by whether the Tribunal is properly described as inquisitorial or adversarial.[52] Therefore, should the Attorney-General and the Justice Minister fail to establish the facts required to support their decisions that they do not have the documents sought by Mrs Bienstein, their decisions must be set aside. The practical effect of that decision will be that they will have to conduct the searches again.
[52] In this regard, I agree with the comment made by Downes J, President, and Deputy President Groom when they said in Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788; [2007] AATA 1792 at 791-792; [15]-[19]
38. In view of my analysis, it seems to me that this is not a case in which it is the proper role of the Tribunal to direct the Attorney-General or the Justice Minister to produce their evidence in any particular form. Given that I am not in a position to know their current record keeping practices, it is not appropriate for me to frame directions that have the effect of emphasising one type of search over another or emphasising some key words over another. That emphasis would be implicit from the directions proposed by Mrs Bienstein for their emphasis was upon electronically stored records but I would expect paper records to be checked quite apart from any other form of storage that comes within the definition of “document” in s 3(1) of the FOI Act.
39. Given that a burden of proof lies upon the Attorney-General and the Justice Minister, it is very much in their hands as to what they produce to satisfy that burden just as they would were this a truly adversarial proceeding in a court. It is not a case in which I am seeking the correct or preferable decision as is required when the matter under consideration requires the application of principles that could be described as more akin to those of an inquisitorial body than of an adversarial body. What I must ultimately decide is whether the decision the Attorney-General and that of the Justice Minister was “justified or that the Tribunal should give a decision adverse to the applicant.” That is required by s 66(1) of the AAT Act.
40. I would not want to make a direction addressing a particular aspect of record-keeping lest that suggest that I would be satisfied that the burden is necessarily discharged were they to produce evidence in accordance with the direction. That would be unfair to them but also to Mrs Bienstein. She is entitled to have them attempt to discharge their burden by providing full and comprehensive evidence. Neither she nor I can dictate what will amount to sufficient evidence in advance. That is not to say that she and I did not have a detailed conversation with Mr Bennett during the directions hearing about the detail of the evidence that would need to be led or the types of places in which it may be located. We did and I think that such discussions are consistent with the more informal function of the Tribunal to assist both parties in order to reach a satisfactory outcome.
41. Informal suggestions and discussions are one thing but directions are another. When a burden of proof is involved and the person charged with that burden is in the best position to know, in this case, the record-keeping processes, I do not think it proper to attempt to dictate at the outset the detail of the type of evidence that they will lead in order to discharge their burden. The matters that Mrs Bienstein would have me direct them to do are matters that she will no doubt explore in cross-examination of their witnesses. That is the proper time to test the evidence and Mr Bennett is quite properly on notice that the evidence he leads will be thoroughly tested. Having heard and tested the evidence, there may be scope for giving directions as to further searches to be made if there are obvious omissions in it and it is apparent that the burden is not established. Rather than setting aside the matter and remitting it for further searches to be made, it may be that the hearing is adjourned and further searches directed. The latter approach may or may not be a more cost effective approach. If adopted, directions would be able to be formulated from a foundation of information as to the relevant record-keeping systems rather than from what is currently for me a base of speculation. It would be an illustration of a chameleon-like slide from a hearing with an adversarial emphasis to one with a more inquisitorial emphasis in the one matter.
42. For the reasons I have given, I refused to make a detailed direction as sought by Mrs Bienstein and, instead, made a direction in more general terms.
I certify that the forty two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Jayne Haydon AssociateDate of Hearing 26 March 2007
Date of Decision 23 April 2008
Representative for the Applicant unrepresented
Representative for the Respondents Mr M Bennett
Director, FOI Section
Attorney-General’s Department
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