Commissioner of Taxation v Pham
[2013] FCA 579
FEDERAL COURT OF AUSTRALIA
Commissioner of Taxation v Pham [2013] FCA 579
Citation: Commissioner of Taxation v Pham [2013] FCA 579 Parties: COMMISSIONER OF TAXATION v VAN QUAN PHAM, MAI THANH PHAM and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 436 of 2013 Judge: KATZMANN J Date of judgment: 13 June 2013 Catchwords: ADMINISTRATIVE LAW – Administrative Appeals Tribunal – judicial review –Administrative Appeals Tribunal granted non-publication order – application by Commissioner to quash order – whether discretion to grant order should be exercised when pending criminal proceedings related to the same subject matter – whether failed to take into account relevant considerations or took into account irrelevant considerations – whether Tribunal failed to take into account the applicants’ rights to invoke the privilege against self-incrimination – whether Tribunal required to consider whether order would prevent or hinder the Commissioner and officers of the ATO from performing their statutory obligations and if so, whether Tribunal failed to do so – whether no evidence to justify findings that applicants intended to adduce evidence which would tend to incriminate them, that the right to remain silent and the privilege against self incrimination would be effectively removed and that the defence in the criminal proceedings would be compromised – whether Tribunal exceeded its jurisdiction by making non-disclosure order – consideration of prejudice to applicant – jurisdictional error – no evidence – findings of fact not supported by the evidence. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 35(2)(b)
Evidence Act 1995 (Cth) s 128
Judiciary Act 1903 (Cth) s 39B
Taxation Administration Act 1953 (Cth) Pt IVC, Sch 1 Div 355Cases cited: Anderson v Director-General of the Department of Environment and Climate Change (2008) 163 LGERA 400; [2008] NSWCA 337
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559; [2008] FCAFC 164
Buck v Bavone (1976) 135 CLR 110
Brown v Federal Commissioner [2001] FCA 276; 47 ATR 143
Caratti v Federal Commissioner (1999) 42 ATR 714; [1999] FCA 1296
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
HIA Insurance Services Pty Ltd (2010) 241 CLR 390
John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291Logwon Pty Limited v Warringah Shire Council (1993) 33 NSWLR 13
McMahon v Gould (1982) 7 ACLR 202
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
National Companies & Securities Commission v Bankers Trust Australia Ltd 24 FCR 217
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328
R v Director of Serious Fraud Office; ex parte Smith [1993] AC 1
Re Applicant QT (2004) 81 ALD 473
Reece v Webber (2011) 192 FCR 254
Reid v Howard (1995) 184 CLR 1 Ministerfor Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231
Soliman v University of Technology, Sydney (2012) 207 FCR 277
Sorby v The Commonwealth (1983) 152 CLR 281
Turner v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 237
Zhang v Canterbury City Council (2001) 51 NSWLR 589GL Davies, “The Prohibition against Adverse Inferences from Silence: A Rule without Reason? ‑ Part 1” (2000) 74 ALJ 26
M Aronson & M Groves, Judicial Review of Administrative Action (5th ed, Law Book Co, 2013)Date of hearing: 30 May 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 66 Counsel for the Applicant: Mr M Wigney SC with Mr B Kasep Solicitor for the Applicant: Australian Taxation Office Counsel for the First and Second Respondents: Mr A O’Brien Solicitor for the First and Second Respondents: Streeton Lawyers Solicitor for the Respondents: The Second Respondent filed a submitting notice.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 436 of 2013
BETWEEN: COMMISSIONER OF TAXATION
ApplicantAND: VAN QUAN PHAM
First RespondentMAI THANH PHAM
Second RespondentADMINISTRATIVE APPEALS TRIBUNAL
Third Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
13 JUNE 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Order (b) made by the third respondent on 21 January 2013 be quashed.
2.The third respondent hear and determine according to law the applications of the first and second respondents for an order under s 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) that the applicant and the third respondent not publish any of the evidence given before the third respondent or of the contents of documents lodged with or received in evidence by the third respondent
THE COURT NOTES THAT:
3.The applicant has agreed to pay the costs of the first and second respondent.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 436 of 2013
BETWEEN: COMMISSIONER OF TAXATION
ApplicantAND: VAN QUAN PHAM
First RespondentMAI THANH PHAM
Second RespondentADMINISTRATIVE APPEALS TRIBUNAL
Third Respondent
JUDGE:
KATZMANN J
DATE:
13 JUNE 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This application is concerned with the scope of the power to make non-publication orders conferred on the Administrative Appeals Tribunal by s 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). The questions raised on the application arise in the context of a review of decisions made by the Commissioner of Taxation when the taxpayers seeking the review are facing criminal charges based on the same facts and when the hearing of the review is to be conducted in private.
Background
After an audit of their taxation affairs the Commissioner concluded that Mr and Mrs Pham had deliberately understated their taxable income in four financial years. Consequently, the Commissioner issued them with “notices of amended assessment” for each of those years together with “notices of assessment of shortfall penalty”. Mr and Mrs Pham objected to the assessments, but on 14 September 2012 the Commissioner disallowed all their objections. The Phams then sought review of the Commissioner’s decisions in the Administrative Appeals Tribunal pursuant to Pt IVC of the Taxation Administration Act 1953 (Cth) (“Administration Act”).
Before the applications for review came on for hearing, Mr and Mrs Pham were committed to stand trial in the District Court of New South Wales on charges of obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code 1995 (Cth). The charges arise out of the Phams’ alleged involvement in a money laundering scheme. It is common ground that there is a substantial overlap between the facts giving rise to the charges and the “taxable facts” of the impugned taxation assessments, that is to say the facts that disclose a taxable income (Bailey v Federal Commissioner (1977) 136 CLR 214 at 217).
Both the impugned taxation assessments and the criminal charges are concerned with the Phams’ roles in a company, D & S Clothing Manufacturers Pty Ltd (“D & S Clothing”), of which they were the sole directors and shareholders. According to a summary of the Crown case prepared by the Australian Federal Police, Mr and Mrs Pham were involved with the promoters of a false invoicing money laundering scheme which allowed legitimate business owners to make subcontracting deductions for work that did not take place. The Crown alleges that the scheme was devised for the sole purpose of facilitating the avoidance of tax. It claims that Mr and Mrs Pham made false declarations on the tax returns for D & S Clothing for the financial years 2007, 2008, 2009 and 2010 by claiming income tax deductions and GST input tax credits on account of non-existent subcontracting expenses. It alleges that by those false declarations the Phams have defrauded the Commissioner of more than $2.2 million in tax. The subcontractors (so-called) are alleged to be “shell companies” used to channel profits from D & S Clothing to the Phams.
In view of the pending criminal trial, Mr and Mrs Pham applied for orders that the Tribunal hearing take place in private, that the Tribunal not publish any of the evidence or documents lodged with the Tribunal or publish in its reasons for decision either their names or the names of their witnesses. The Phams did not suggest that they had any apprehension that the Commissioner might attempt to improperly publicise the Tribunal proceedings. Rather, they claimed that the orders were necessary to protect their rights to silence in the criminal proceedings. Their position was that, absent a prohibition or restriction on the publication of evidence in particular, their rights to remain silent would be “negated” because the Commissioner could pass on any information they might disclose to the Director of Public Prosecutions (“DPP”).
The Tribunal upheld the Phams’ application. It made three orders: first, that the proceedings be held in private pursuant to s 14ZZE of the Administration Act; second, that until further order, the Commissioner and the Tribunal not “disclose or publish any of the evidence given before the Tribunal or … matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal”; and third, that until further order, the Phams’ names and the names of any of their witnesses not be published by the Tribunal when giving reasons for its decision.
The Commissioner challenges the second of these orders, claiming that it is infected by jurisdictional error. The Commissioner contends that the decision was an improper exercise of power because the Tribunal took into account one or more irrelevant considerations; failed to take into account one or more relevant considerations; based its decision on a number of facts that did not exist; and acted in excess of its jurisdiction because the Tribunal did not have the power to make the non-disclosure order. He seeks relief under s 39B of the Judiciary Act 1903 (Cth). In particular, he seeks orders in the nature of writs of certiorari to quash the order made on 21 January 2013 and of mandamus to require the Tribunal to rehear and determine according to law the Phams’ application for a non-publication order.
The Tribunal’s reasons
The reasons the Tribunal made the impugned order are essentially contained in four paragraphs. It is convenient to set them out in full:
21.Nonetheless, in assessing whether orders should be made under s 35(2) of the AAT Act there is a careful balancing of competing interests to be undertaken.
22.On the one hand we are presented with an Applicant [sic] who is facing very serious criminal charges at the same time as being involved in civil proceedings for recovery of tax alleged to be due. The Applicant needs to be afforded sufficient protection to enable him [sic] to conduct both proceedings in a reasonable manner and with the normal protection that members of the public can expect under the law. This includes the right to remain silent in criminal proceedings in order not to incriminate oneself without having that right effectively removed through disclosures that might be made in the civil proceedings.
23.On the other hand there is an important point of public administration in that the Regulator should be in a position to do its job properly and without unnecessary constraints being imposed on it.
24.In the current circumstances I accept that [Mr and Mrs Pham] are potentially in a difficult situation in having a matter heard by the Tribunal in which information disclosed could be used against them in other proceedings. While I accept that there is a competing interest of having transparency in public administration, ensuring a fair criminal trial and a reasonable basis for pursuing their civil litigation in this Tribunal is in my view a more important public policy consideration. I acknowledge that this might cause the Respondent difficulties but in my view the difficulties faced by the Applicant [sic] if these orders are not granted are greater as he [sic] will be prevented from properly pursuing his civil action unless he compromises aspects of his defence of the criminal proceedings. From a public policy perspective I would suggest that this would be an unacceptable outcome.
Whether the Tribunal erred as alleged largely turns on the scope and operation of s 35 of the AAT Act and the interaction between that section and s 14ZZE of the Administration Act.
The legislative provisions
Section 35 of the AAT Act relevantly provides:
35 Hearings to be in public except in special circumstances
(1AA) …
Public hearing
(1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.
(1A) …
Private hearing etc.
(2)Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a)direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
(3)In considering:
(a)whether the hearing of a proceeding should be held in private; or
(b)whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
Section 35 applies to all proceedings in the Tribunal save for those in the Security Appeals Division to which s 39A applies (s 35(1AA)). Relevantly, however, s 14ZZE of the Administration Act applies to Pt IVC proceedings in the Tribunal and operates as an exception to s 35. It provides:
Hearings before Tribunal other than Small Taxation Claims Tribunal to be Held in Private if Applicant so Requests
Despite section 35 of the AAT Act, the hearing of a proceeding before the Tribunal, other than the Small Taxation Claims Tribunal, for:
(a)a review of a reviewable objection decision; or
(b)a review of an extension of time refusal decision; or
(c)an AAT extension application;
is to be in private if the party who made the application requests that it be in private.
“Private” is not defined in the Act. It is trite to observe that “[t]he essence of a private hearing is that it take place in private and, therefore, by definition and of necessity not open or accessible to the public”: National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217 (“Bankers Trust”) at 221 per Lockhart J.
In Brown v Federal Commissioner [2001] FCA 276; 47 ATR 143 (“Brown”) Emmett J held that s 14ZZE must be construed in the light of s 35 of the AAT Act. His Honour pointed out that s 35(2) draws a clear distinction between a hearing taking place in private and the prohibition or restriction of the publication of evidence. He saw no reason for reading the expression in s 14ZZE as meaning anything more than the similar words contained in s 35(2)(a). He said that the matters dealt with in paragraphs 35(2)(aa), (b) and (c) are “distinct and separate matters from the matter of the privacy of the hearing” (at [9]). He continued (at [10]):
Parliament has conferred an express right on parties to certain taxation matters before the Tribunal to have the hearing in private. It does not confer any express right for a party to have the publication of evidence before the Tribunal prohibited or restricted. On the other hand, having regard to the terms of s 14ZZE, it would be a most unusual case where the Tribunal, if asked, did not give the directions that are contemplated by s 35(2) in a proceeding to which s 14ZZE applies. The Tribunal is empowered to give such directions for any reason, where it is satisfied that it is desirable to do so. Where a party exercised the right, under s 14ZZE, to have a hearing in private, that would be a very cogent reason for the Tribunal to make an order under s 35(2)(b).
There may be force in his Honour’s remarks. The difficulty, however, in the present case is that the Tribunal did not purport to make its order under s 35(2)(b) for the purpose of protecting the privacy of the Tribunal hearing and the Phams did not ask for the order for that reason. An order to protect the privacy of the hearing would only be necessary until the decision was handed down. This order was made solely for the purpose of protecting the rights of Mr and Mrs Pham to remain silent in the criminal proceeding.
The power to make an order under s 35(2)
Before considering the grounds of the application, it is useful to say something about the relevant jurisdictional limits of the Tribunal’s powers.
As the Commissioner pointed out, the power to make an order under s 35(2) is conditioned by the formation of an opinion. The Tribunal must first be satisfied that it is desirable to make the order. The same kind of condition applies to the grant of a visa under s 65 of the Migration Act 1958 (Cth). The holding of the opinion or the attainment of the state of satisfaction is therefore a jurisdictional fact, absent which the decision is made without or beyond jurisdiction.
In R v Connell; ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 Latham CJ said:
[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statue which is the source of his power.
As the Chief Justice went on to explain, however, (at 432) that does not mean that the court substitutes its opinion for the opinion of the primary decision-maker:
What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
Similarly, where a decision-maker is bound to take into account a factor in forming his or her opinion and does not do so, the requisite state of satisfaction is not attained: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 270 [54]. See also Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs CJ, approved by the plurality (Brennan CJ, Toohey, Gummow and McHugh JJ) in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 275-276.
An opinion formed or a state of satisfaction reached in the absence of evidence might properly be characterised as arbitrary or capricious. As French CJ put it in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [16], “[a] decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rational process”. Thus, a critical finding of fact based on no evidence may constitute jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [19]; Soliman v University of Technology, Sydney (2012) 207 FCR 277 at 284‑5 [23].
For these reasons each of the Commissioner’s contentions, if proved, may show that the Tribunal fell into jurisdictional error. Mr and Mrs Pham did not suggest otherwise.
Did the Tribunal take into account irrelevant considerations?
As the amended statement of claim eloquently illustrates, the “no evidence” point apart (which is the subject of a separate ground of review), this ground of review is really a thinly disguised attack on the merits of the decision. The Commissioner pleaded that the Tribunal took into account the following “irrelevant considerations”:
(a)that if an order prohibiting the [Commissioner ] from disclosing or publishing any of the evidence given before the Tribunal was not made it would “effectively remove” the [Phams’] “right to remain silent in criminal proceedings in order not to incriminate” themselves, whereas in fact the failure to make the order sought would not have that effect, or there was no evidence that it would have that effect;
(b)that if the order sought was not made the [Phams] would be “prevented from properly pursuing [their] civil action unless [they] compromise aspects of [their] defence of the criminal proceedings”, whereas in fact the failure to make the order sought would not have that effect, or there was no evidence that it would have that effect;
(c)that it was necessary or desirable to make the order sought to ensure a fair criminal trial in the circumstances, whereas in fact the failure to make the order sought would have no impact on the fairness of the [Phams’] criminal trial, or there was no evidence that the failure to make the order sought would have that effect;
(d)that it was necessary or desirable to make the order sought to ensure that the Phams had a “reasonable basis for pursuing their civil litigation” in the Tribunal in the circumstances, whereas in fact the failure to make the order sought would have no effect on the Phams’ basis for pursuing their civil litigation in the Tribunal, or there was no evidence that the failure to make the order sought would have that effect.
In his submissions the Commissioner made a valiant attempt to establish that these matters were in truth irrelevant considerations. In substance, the Commissioner drew on a number of authorities dealing with applications to stay civil proceedings where criminal proceedings were pending or “on the cards” to argue that a notional (rather than a real or proven) risk of injustice is irrelevant.
I am unpersuaded by these submissions.
The analogy with the stay cases is an imperfect one. The statutory task does not necessarily involve the same considerations. An irrelevant consideration in this context is one the decision-maker is obliged to disregard. Here, the Phams had argued (both orally and in writing) that the onus of proof in the Pt IVC proceedings could only be discharged if they were able to give evidence and they were not able to give evidence if to do so would effectively negate their rights to silence in the criminal proceedings. As s 35 requires the Tribunal to “pay due regard to any reasons given to [it]” in support of a non-publication order, it cannot be said any of the matters referred to by the Tribunal was irrelevant. Whether or not the Tribunal may have come to an erroneous conclusion about their impact is another question, but that is not a question for this court. The question of whether there is any evidence to support the impugned findings is the subject of a separate ground of review to which I will come in due course.
Did the Tribunal fail to take into account relevant considerations?
The Commissioner pleaded that the Tribunal’s decision was an improper exercise of its powers under s 35(2)(b) because it failed to take into account the following relevant considerations:
(a)there was no evidence before the Tribunal that any evidence that the [Phams] intended to adduce on their applications to the Tribunal would tend to incriminate them, or give rise to a risk of self-incrimination;
(b)the [Phams’] submission to the Tribunal was that the evidence that [they] intended to adduce in the Tribunal proceedings was wholly exculpatory and therefore there was (on [their own] case) no basis for any fear that evidence adduced [by them] would or might tend to incriminate them;
(c)the [Phams] were entitled to claim the privilege against self-incrimination at any stage of the Tribunal proceedings and the failure to make the order sought would not in any way remove the [Phams’] right to silence or give rise to a risk or reasonable fear of self-incrimination;
(d)the effect of the order sought would be to allow the [Phams] to give evidence in the Tribunal proceedings as if a certificate under s 128 of the Evidence Act 1995 (Cth) had been given in circumstances where the Evidence Act does not apply to proceedings in the Tribunal and the AAT Act does not contain a provision similar or equivalent to s 128 of the Evidence Act 1995 (Cth);
(e)the effect of the order sought was to prevent or hinder the [Commissioner] and his officers of the Australian Taxation Office from performing their statutory obligations and related functions under the tax laws including but not limited to:
(i)making assessments of tax based on the information in the possession of the Commissioner;
(ii)making referrals to the Australian Federal Police or the Director of Public Prosecutions (Cth) for the investigation or prosecution of tax related offences;
(iii)providing assistance to the Australian Federal Police or the Director of Public Prosecutions (Cth) in relation to the investigation or prosecution of tax related offences;
(iv)seeking advice from the Director of Public Prosecutions (Cth) in relation to whether a referral ought to be made to the Australian Federal Police for the investigation of tax offences.
Like the irrelevant considerations ground, with the exception of the matter raised in (e), there is an element of contrivance about this ground of review. I will deal with the no evidence allegation where it rightly belongs ‑ in the discussion on the discrete ground of review.
In relation to (b), it seems to me to be beside the point that the Phams had foreshadowed (through their counsel) that they intended to call evidence that would exculpate them from, not inculpate them in, criminality. The Tribunal was entitled to consider (as it must have done) that they would be cross-examined. There was every prospect that in cross-examination they would be invited to answer questions the answers to which might incriminate them. They might also have been called upon to produce documents that might have the same effect.
Nevertheless, at any such point Mr and Mrs Pham had the right to invoke the common law privilege against self-incrimination. That privilege entitles witnesses to refuse to answer any question or produce any document if the answer to the question or the production of the document would tend to incriminate them. The privilege is a basic and substantive common law right: Reid v Howard (1995) 184 CLR 1 at 11. It applies in both judicial and non-judicial proceedings: Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341; Sorby v The Commonwealth (1983) 152 CLR 281 at 309. This was a matter that the Tribunal did not mention. The right to invoke the privilege was plainly relevant in the context of the submission that had been made to the Tribunal. Was it a matter that the Tribunal was bound to take into account?
Whether the Tribunal was bound to take into account the Phams’ rights to invoke the privilege is to be gleaned from a construction of the AAT Act, being the statute conferring the discretion. Section 35(3) expressly refers to certain considerations. They are that:
·the basis of the Tribunal’s consideration be that it is desirable that hearings of proceedings before the Tribunal be held in public and that evidence given before the Tribunal and the contents of documents lodged with or received in evidence by the Tribunal should be made available to the public and to all the parties;
·due regard be paid to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
The Phams did not contend, however, that these considerations are exhaustive.
Where relevant factors an administrative decision-maker is required to consider are not expressly mentioned, they must be determined by implication from the subject-matter, scope and purpose of the Act (Ministerfor Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40).
Here, the relevant statutory purpose is to protect the principle of open justice while allowing for exceptions in appropriate cases. That provides little assistance in this case, particularly where, having asked for a private hearing, the effect of the Administration Act is to deprive the Tribunal of any discretion about whether or not to grant the request; it was obliged to do so. But the Tribunal does retain its discretion to decide whether to make a non-publication order, the basis of which must be the desirability that the evidence given and the documents tendered before or lodged with the Tribunal be made available to the public and the parties.
Just as the Tribunal was obliged to take into account the reasons given to it (and hence the submissions advanced) in support of a non-publication order, it is implicit that it was obliged to take into account the reasons advanced against such an order. The Commissioner submitted to the Tribunal that the Phams were entitled to claim the privilege against self-incrimination. The Tribunal did not advert to this submission, which was plainly correct, and I therefore infer that it did not take this circumstance into account. In this respect the Tribunal fell into jurisdictional error. The oversight is not an insignificant one which might justify the conclusion that it could not have had a material effect on the Tribunal’s decision (Peko-Wallsend at 40).
The Commissioner’s next proposition is that the Tribunal erred because it failed to consider whether it was desirable to exercise the power conferred by s 35(2)(b) when the effect of making an order is the same as granting a certificate under s 128 of the Evidence Act 1995 (Cth), though the Tribunal does not have the power to grant a certificate (presumably because the power is conferred on courts). The proposition must be rejected. The Phams did not dispute that the effect of making a non-publication order was as the Commissioner contended. Nor did they submit that the Tribunal is a court for relevant purposes. Still, assuming it is not, I cannot see why the absence of a power to grant a certificate under s 128 of the Evidence Act necessarily limits the scope of the Tribunal’s power to make orders under s 35(2)(b) of the AAT Act. In my view there is nothing in the subject-matter, scope or purpose of the AAT Act to imply that it is mandatory for the Tribunal to consider whether it is desirable to make a non-publication order when the effect is the same as granting a certificate.
I now turn to the contention that the Tribunal failed to take into account that the effect of the order the Phams sought was to prevent or hinder the performance by the Commissioner and officers of the ATO from carrying out their responsibilities.
Two questions arise here. First, was this a relevant consideration in the Peko-Wallsend sense? In other words, was the Tribunal bound to take it into account? Secondly, if it was, did the Tribunal fail to do so?
The subject-matter of the AAT Act is the review of administrative decisions including decisions made by the Commissioner. Plainly, however, the AAT Act must be read with the Administration Act, which allows a person to apply to the Tribunal for review if he or she is dissatisfied with the Commissioner’s objection decision (s 14ZZ) and which modifies the AAT Act in various respects (see Administration Act, Div 4 (ss 14ZZA‑14ZZM)). I have already referred to the way in which s 14ZZE modifies s 35. In addition and importantly, s 14ZZM provides that the fact that a review is pending in relation to a taxation decision does not in the meantime interfere with or affect the decision and any tax, additional tax or other amount may be recovered as if no review were pending. This suggests that Parliament’s intention is that, while the review is pending, the Commissioner and his staff should be able to carry out all their duties and responsibilities without limitation. It therefore seems to me that in deciding whether it is desirable to make a non-publication order under s 35, the Tribunal is obliged to take into account the extent to which such an order may interfere with the exercise of the functions and responsibilities of the Commissioner and his staff. One of those responsibilities is to provide information to the DPP relevant to court proceedings for offences relating to defrauding the revenue: Caratti v Federal Commissioner (1999) 42 ATR 714; [1999] FCA 1296 at [25] per French J. The Phams accepted that a non-publication order would frustrate the Commissioner in the fulfilment of this responsibility. Indeed, it was doubtless their paramount object.
So did the Tribunal take these functions and responsibilities into account?
Nowhere in its reasons did the Tribunal specifically refer to any of the matters identified by the Commissioner in his statement of claim. The Tribunal certainly adverted (in paragraph 23 of its reasons) to the importance of the regulator being able to do its job properly and (in paragraph 24) to “the difficulties” a non-publication order would create for the regulator. Of course, just because the Tribunal adverted to the difficulties for the regulator does not necessarily mean that it took into account the impact of the proposed order on the capacity of the Commissioner to carry out his functions and responsibilities, including those itemised in the statement of claim: cf. Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 (“Khan”) at 292; Reece v Webber (2011) 192 FCR 254 at 276 [63]. Moreover, mere advertence is not enough. Something more than lip service is required: Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [64] per Spigelman CJ, Meagher and Beazley JJA agreeing; Anderson v Director-General of the Department of Environment and Climate Change (2008) 163 LGERA 400; [2008] NSWCA 337 per Tobias JA at [58], Spigelman CJ agreeing at [1] and Macfarlan JA at [94]. If an administrative decision maker is bound to take a factor into account, that means that it is bound to give the factor “proper, genuine and realistic consideration” (Khan at 292) or as Toohey J put it in Turner v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 237 at 241, it must be considered in a real sense. But the Court’s task remains an exercise in judicial review. As Professors Aronson and Groves explain in Judicial Review of Administrative Action (5th ed, Law Book Co, 2013) (“Aronson and Groves”) at [5.150], the reason it is insufficient to simply advert to such a factor is not because the primary decision-maker may have undervalued it, but because (despite appearances) in truth the decision-maker may not have considered it at all.
The Commissioner submitted that the Tribunal’s reference to the regulator’s “difficulties” picked up a reference in Re Applicant QT (2004) 81 ALD 473 (at [35]) to “the potential difficulties the commissioner will face in preparing his case”. The Commissioner contended, however, that the Tribunal did not take into account what the Tribunal in Applicant QT referred to in the preceding paragraph, namely, “the central difficulty with the taxpayer’s request” for a non-publication order; that is, that it was “asking the Tribunal to prevent the regulator from doing its job”. The Tribunal in Applicant QT continued:
That would embarrass the Commissioner in the performance of his duties. He cannot be expected to un-know what he may learn in the hearing.
The Tribunal in the present case referred to Applicant QT (albeit by the name Re A Taxpayer) and at paragraphs 14‑15 of its reasons said this:
The decision in Re A Taxpayer is relevant in as much as it is a matter where the Tribunal declined to make an order under s 35(2) of the AAT Act that would have allowed the applicant in that matter to call a witness who would give incriminating evidence but not permit the respondent in that case to use the evidence in the performance of its statutory duties. The refusal to so make the order meant that the evidence was not given – in my view a regrettable outcome that does not accommodate the objective of giving an applicant a full and fair opportunity to have the matter reviewed by the Tribunal.
That this was a particularly harsh outcome for the applicant in that matter was a point which was noted by the presiding member. It was justified because “of the potential difficulties the Commissioner would face in preparing his case and the way in which a s 35(2) order might be taken to reflect on the quality of justice before the Tribunal”.
(Emphasis added.)
The Tribunal’s summary did not accurately reflect the reasoning in Applicant QT but that is really beside the point. The Tribunal might also have expressed itself more clearly. Nevertheless, in my view, its reference in paragraph 24 to “difficulties” should not be read in such a narrow way as to pick up only or, indeed, at all (having regard to the way the case was argued), the reference to the difficulties of the Commissioner in preparing his case. The statement must be read in the context of the whole of the reasons as well as the submissions of the parties, and in accordance with the principles discussed in Wu Shan Liang and Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (at 287), that is, without concern for looseness of language or “unhappy phrasing”. In my view, on a fair reading of the Tribunal’s reasons, the statement that giving greater weight to the Phams’ interests “might cause [the Commissioner] difficulties” was intended to capture the difficulties a non-publication order might create for the Commissioner in carrying out his functions and responsibilities, including using the evidence in the performance of his duties. Consequently, I am not persuaded that the Tribunal failed to take into account that “the effect of the order sought was to prevent the Commissioner and officers of the Australian Taxation Office from performing their statutory obligations and related functions under the tax laws, or … to hinder their exercise”. Whether the Tribunal gave that factor sufficient weight is another matter (about which I express no opinion), but it is not a matter susceptible to review in an application of this nature.
The no evidence ground
That leaves the no evidence ground. This was the real substance of the Commissioner’s case.
In paragraphs 12(a) to (d) of his statement of claim the Commissioner alleged that there was no evidence or other material to justify the making of the decision because the Tribunal based its decision on certain facts that “did not exist”. In substance the allegation is that there was no evidence to support certain factual findings or assumptions and that the Tribunal based its decision on pure speculation or surmise. Those findings or assumptions were that:
(a)the Phams intended to adduce evidence on their applications which would tend to incriminate them or give rise to such a risk;
(b)if the order sought was not made, then the Phams intended to or would claim that evidence they intended to adduce in the proceedings would tend to incriminate them;
(c)the Phams’ right to remain silent and their privilege against self-incrimination would effectively be removed by disclosures they might make in the civil proceedings in the Tribunal; and
(d)the Phams would be prevented from properly pursuing the civil action in the Tribunal unless they compromised aspects of their defence in the criminal proceedings.
Mr and Mrs Pham did not take issue with the Commissioner’s contention that these matters were either found or assumed. But as I said earlier, I can find no indication in the reasons for decision that the Tribunal took into account the proposition advanced in (b) above (which I would observe is inconsistent with the Commissioner’s claim that the Tribunal did not take into account the fact that the Phams could invoke the privilege against self-incrimination). For this reason I do not accept that the Tribunal made any such finding or assumption. Otherwise I accept that the Tribunal either expressly or impliedly made the relevant findings (set out in (a), (c) and (d) above) or proceeded on the basis of an assumption to the effect of that which was alleged.
To succeed on this ground, however, it is necessary to show that there was “not a skerrick of evidence” (Aronson and Groves at [4.600]). As long as there is there is “some basis for an inference – in other words, the particular inference is reasonably open”, no matter how weak or unconvincing, there will be no error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“Bond”) at 356.
So was there some evidence or material from which the Tribunal could infer that the Phams intended to give evidence which would tend to incriminate them or give rise to such a risk? Was there some evidence or material from which the Tribunal could infer that their rights to remain silent and not incriminate themselves in the criminal proceedings would effectively be removed by disclosures they might make in the Tribunal proceedings? Was there some evidence or other material from which the Tribunal could infer that they would be prevented from properly pursuing their civil action unless they compromised aspects of their defence in the criminal proceedings? Was the Tribunal’s decision based on findings of fact which were not open on the information before it?
As I indicated earlier in these reasons, the Commissioner submitted that there must be “a real and not merely notional danger of injustice in the criminal proceedings” (McMahon v Gould (1982) 7 ACLR 202 (“McMahon v Gould”) at 206) and, although McMahon v Gould was concerned with whether a stay of civil proceedings should be granted because of a pending criminal proceeding, the same principle does or should apply here. Rightly or wrongly, the Phams accepted that they were obliged to prove that there was “a real risk that their right to silence and privilege will be jeopardised” without a non-publication order but maintained that they had done so.
The only evidence before the Tribunal consisted of an affidavit sworn by Justin Wong, the solicitor acting for the Phams in both the Pt IVC and the criminal proceedings. No evidence was called from the Phams themselves. Mr Wong referred to the charges having been laid and noted that the maximum penalty for each offence is imprisonment for 10 years. He also referred to the fact that the Phams had been committed for trial and to the progress of the proceeding in the District Court. He stated that Mr and Mrs Pham had instructed him that they had received various letters from the Australian Tax Office (“ATO”) demanding payment of tax in accordance with the amended assessments the subject of the Tribunal proceedings. He also stated that on 3 December 2012 the Phams had been served with statements of claim seeking recovery of the tax debts the subject of those assessments. He annexed to his affidavit copies of the Court Attendance Notices containing the charges and a copy of the Statement of Facts prepared by the Australian Federal Police as well as the correspondence from the ATO demanding payment and the statements of claim. He said nothing about the evidence he anticipated the Phams would give in the Tribunal. Nor did he express any apprehension on the basis of instructions or otherwise that if they gave evidence they would be liable to incriminate themselves. Indeed, he did not even state that the Phams intended to give evidence. But the Tribunal was not bound by the rules of evidence (AAT Act, s 33). Subject to affording procedural fairness to the parties, it could inform itself on any matter in any way it thought fit.
Mr O’Brien of counsel, who appeared for Mr and Mrs Pham in the Tribunal and in this Court, drew the Tribunal’s attention to the objection notices which were filed in the Tribunal proceedings, and, in particular, to the reasons for the objections. There is no dispute that the Tribunal was entitled to have regard to them. But in my view they add nothing. In substance, they do no more than deny the Commissioner’s position concerning the assessments and repeat what was presumably contained in the tax returns. They merely recite that the amounts included in the assessable income do not constitute income of the taxpayer or dividends paid to the taxpayer by a company and assert that the outgoings represent amounts “ultimately paid by [D & S Clothing] to sub-contractors for undertaking garment manufacturing work on behalf of the company”.
Yet, the Tribunal also had before it the submissions of counsel. In those submissions Mr O’Brien informed the Tribunal that the Phams could only discharge their onus of proof if they were able to give evidence and that they were not able to give evidence because in so doing they would “effectively negate their right[s] to silence in respect of their criminal proceedings”. Was this material, together with the evidence from Mr Wong, enough?
Before answering this question it is necessary to define what is meant by the right to silence. As GL Davies J, writing extra-judicially, once said, “without explanation the term is apt to cause confusion”: “The Prohibition against Adverse Inferences from Silence: A Rule without Reason? ‑ Part 1” (2000) 74 ALJ 26. He referred to the exposition by Lord Mustill in R v Director of Serious Fraud Office; ex parte Smith [1993] AC 1 at 30:
I turn from the statutes to “the right of silence.” This expression arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute. Amongst these may be identified:
(1)A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
(2)A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
(3)A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
(4)A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
(5)A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
(6)A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.
Each of these immunities is of great importance, but the fact that they are all important and that they are all concerned with the protection of citizens against the abuse of powers by those investigating crimes makes it easy to assume that they are all different ways of expressing the same principle, whereas in fact they are not. In particular it is necessary to keep distinct the motives which have caused them to become embedded in English law; otherwise objections to the curtailment of one immunity may draw a spurious reinforcement from association with other, and different, immunities commonly grouped under the title of a “right to silence.”
Davies J considered that the modern right to silence was generally understood not to refer to any one of these immunities but to “a substantially modified combination of immunities (3), (4) and (6)” (74 ALJ at 27). He said that the failure to appreciate that a person may waive a right to remain silent by speaking or to distinguish between an immunity from compulsion and a right to withhold information has been the source of a great deal of confusion in the debate about the right to silence. Similarly, in McMahon v Gould at 208 Wootten J said that “the scope and the role of ‘the right to silence’ in the criminal process should not be exaggerated”.
Here, none of the immunities applied, save during cross-examination. The Phams were not compelled to do anything. They were not brought unwillingly into the Tribunal. They chose to be there. They had a right to remain silent, which they were entitled to waive. True it is, they are vulnerable to incriminating themselves in cross-examination, but at that point they can choose to invoke the privilege against self-incrimination and refuse to answer any question that puts them at such a risk.
It is apparent that what the Phams were concerned to protect, however, was not their rights to silence so understood, but their rights not to disclose their defences before the trial. This is more accurately a consequence or an advantage of the right to silence, rather than an aspect of it, and one which has been steadily eroded by legislation. As Wootten J put it in McMahon v Gould at 208:
In this context there are some consequences of the “right of silence” which no one, so far as I am aware, puts forward as legitimate reasons for its existence. These include the opportunity it may give the accused to remain silent till the end of the evidence against him at the trial, and then produce a fabricated story perfectly tailored to meet that evidence. They include the possibility of depriving the prosecution of any opportunity to check the accused’s story and obtain evidence to refute it before the trial is over. In one particular matter — the last minute production of alibis — the injustice was so frequent and obvious that the legislature made an inroad into the “right of silence” by requiring notice of such an intended defence.
These are advantages which “the right of silence” gives to an accused, but they cannot reasonably be regarded as part of the reason why the right exists. In exercising its discretion to stay civil proceedings the court need not be concerned to preserve these advantages. It should be concerned to avoid the causing of unjust prejudice by the continuance of the civil proceedings, not to preserve the tactical status quo in the criminal proceedings whether it be just or unjust.
As the Commissioner pointed out, by flagging the nature of their defence in their written submissions to the Tribunal without the protection of a non-publication order, they may be taken (at least to some extent) to have waived their rights to remain silent until the close of the Crown case. If they apply in this case, recent amendments to the Criminal Procedure Act 1996 (NSW) (which received assent on 25 March 2013 but which are yet to commence) may mean they will have to go much further. These changes include mandatory disclosure before trial of the nature of an accused person’s defence, the facts, matters or circumstances upon which the prosecution relies with which the accused intends to take issue and the points of law the accused intends to raise (see ss 141, 143).
Despite Wootten J’s comment in McMahon v Gould that on an application to stay civil proceedings the Court need not be concerned with preserving the tactical advantages of non-disclosure, I am not satisfied that that is an irrelevant consideration on an application for a non-publication order. Nevertheless, in my opinion the Tribunal should have distinguished between any question of tactical disadvantage and any unjust prejudice, decided whether there was any unjust prejudice to the Phams if a non-publication order were not made, and then weighed that against the other relevant considerations. A tactical disadvantage would be entitled to less weight than unjust prejudice. Still, this is not a review of the merits of the Tribunal’s decision. And the Commissioner did not contend that the Tribunal erred by applying the wrong test. The relevant question is whether it was reasonably open to the Tribunal to find on the material before it that the Phams’ rights to remain silent would be jeopardised or that their defence in the criminal proceedings would be compromised if the proceeding continued without the protection of a non-publication order.
The Phams’ evidence revealed that a criminal prosecution was not merely “on the cards” but that a trial against them was pending. Evidence should have been given that they intended to testify in the Pt IVC proceedings. That evidence need not have come from them directly. Mr Wong could have testified that he intended to prove their case by calling evidence from them or provided the evidence on the basis of information and belief. Still, I think it is sufficient that the Tribunal was informed by counsel that they had to give evidence. In the ordinary course of events that would mean that they would have to file statements upon which they would be cross-examined. Evidence to that effect was unnecessary. Neither was evidence necessary to support the Tribunal’s observation that information they disclosed in the Tribunal proceedings could be used against them in the other proceedings. That is axiomatic. If the prosecuting authorities had access to information disclosed in the Tribunal proceedings, Mr and Mrs Pham would lose the tactical advantages they have hitherto enjoyed. That is, or was not, a notional or abstract risk as the Commissioner submitted; it was without doubt a real one. Thus, there was some evidence from which the Tribunal was entitled to infer that, absent a non-publication order, there was a real risk that the Pt IVC proceedings would prejudice the Phams’ rights to remain silent – at least in effect, by requiring them to disclose the details of their defence well in advance of the trial.
There was, however, no evidence to support the finding that “aspects of their defence in the criminal proceedings would be compromised”. For this reason I would uphold this ground of review.
Did the Tribunal exceed its jurisdiction?
The final ground of review is the least controversial. The Commissioner contended that there was no power to make the non-disclosure order, so that the Tribunal exceeded its jurisdiction by ordering that the Commissioner not disclose any of the evidence given before the Tribunal or matters contained in documents lodged with or received in evidence by the Tribunal. The Commissioner pointed to the absence of an express prohibition against disclosure in s 35(2)(b) and contrasted s 35(2)(c) which entitles the Tribunal to give directions prohibiting or restricting the disclosure of evidence or the contents of documents to some or all of the parties. He also pointed to the absence of any inherent jurisdiction (Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559; [2008] FCAFC 164 at [34]). The Commissioner submitted that the provisions contained in Sch 1 Div 355 of the Administration Act establish the circumstances in which the Commissioner may or may not disclose information and it is unlikely that Parliament intended to confer on the Tribunal a power to restrict or prohibit disclosure beyond what was envisaged by those provisions. In other words, the power to prohibit or restrict publication of evidence contained in s 35(2)(b) ought not be read broadly to include a power to prohibit or restrict disclosure. Mr and Mrs Pham accepted the contention. I note in passing that they never sought an order that in terms restricted or prohibited disclosure.
Despite the position taken by the Phams, I am not convinced that the Tribunal had no power to make a non-disclosure order. There is no clear dividing line between publication and disclosure. The words may be synonymous. Publication certainly includes disclosure. A person who publishes a document discloses its contents. A person who publishes evidence discloses the evidence. Recourse to the Oxford and Macquarie Dictionaries shows that one of the meanings of “publish” is to “make publicly or generally known” and one of the meanings of “disclose” is to make known. Moreover, the parties’ submissions ignore s 14ZZE of the Administration Act. While the Tribunal has no inherent jurisdiction, it does have implied, incidental or consequential powers to give effect to its orders, including in this case the order that the hearing proceed privately (see, for example, John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476; National Companies & Securities Commission v Bankers Trust Australia Ltd 24 FCR 217 (“Bankers Trust”) at 221, 232; and Logwon Pty Limited v Warringah Shire Council (1993) 33 NSWLR 13 at 16). In a similar context, in Bankers Trust at 221, Lockhart J explained that although the National Companies and Securities Commission had no express power to prevent publication or disclosure of evidence taken at a private hearing before the Commission, the power of the Commission to maintain the privacy of evidence given in a private hearing was a necessary element in the private hearing or could be regarded as a power which is incidental to, or consequential upon, the express power of the Commission to hold a private hearing. Indeed, his Honour described the power to prevent or restrict the publication of evidence or the contents of documents as an integral element of such a hearing and he appears to have drawn no distinction between publication and disclosure. He said that a power to take all reasonable steps to ensure that the hearing takes place in private is implied in the power conferred by s 36 of the National Companies and Securities Commission Act 1979 (Cth) to conduct the hearing in private. His Honour dissented in the result in that case but not on the question of principle. The majority (Beaumont and Einfeld JJ) held that in aid of the power of the Commission to direct that a hearing take place privately, the Commission was also given “by necessary implication, the power to take all reasonable steps, which when viewed objectively, were necessary to ensure that the hearing was conducted privately” (at 232). Their Honours continued (at 232):
The Commission is entitled to regulate its proceedings to avoid a situation arising where the confidentiality of information obtained by it may be exposed to the risk of premature disclosure: cf National Crime Authority v A, B and D (1988) 18 FCR 439 at 447-448. This is not to say that the information should always be regarded as confidential. But, in order to conduct a hearing properly, it is necessary that the Commission have the power to prohibit, at least during the hearing itself, the disclosure of information obtained at the hearing. Publication of that material before the conclusion of the hearing could prejudice the effective conduct of the hearing. It follows, in our opinion, that it is proper to imply in the Act a power in the Commission to prevent or restrict the premature publication of evidence given at the hearing; or to put the matter positively rather than negatively, the Commission had the power, by necessary implication, to take all reasonable steps which were necessary to secure a “private”, rather than a “public”, hearing.
(Emphasis added.)
I see no reason to take a different approach to the construction of s 35(2)(b) of the AAT Act. The Commissioner pointed to the use of “disclosure” in paragraph (c) of the subsection and its exclusion from paragraph (b). But I do not think that this is indicative of an intention that a non-disclosure order be confined to the circumstances set out in paragraph (c).
Yet, the breadth of the order is such that the Phams’ concession may well be warranted. If the order is justified, then there is no reason why it should have extended beyond the conclusion of the criminal proceedings. I doubt that the inclusion of the words “until further order” is sufficient answer to this concern. In the light of the parties’ agreement, however, it is unnecessary to reach a concluded view on this question. I would simply discharge that part of the order that refers to disclosure. Having regard to the conclusions I have reached on the other grounds, the whole of the order must in any event be discharged.
Conclusion
The Tribunal fell into jurisdictional error in failing to take into account that Mr and Mrs Pham were not compelled to answer questions or produce documents in the Pt IVC proceedings that could incriminate them, but could invoke the privilege against self-incrimination. It also fell into jurisdictional error by finding, in the absence of any evidence, that aspects of the Phams’ defence would be compromised unless a non-publication order were made. For these reasons the Tribunal’s decision should be quashed and the matter remitted to the Tribunal for determination according to law. I should point out that on any redetermination it will be necessary for the Tribunal to consider the application and significance of the amendments to the Criminal Procedure Act.
Mr O’Brien urged that, if I were to find jurisdictional error, I should nevertheless exercise my discretion to refuse relief. I am not disposed to do so as I am not satisfied that the errors could not have affected the outcome (Peko-Wallsend at 40).
I note the agreement between the parties that the Commissioner will pay the Phams’ costs.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 13 June 2013
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