DDMY and Minister for Home Affairs (Citizenship)

[2019] AATA 2002

DDMY and Minister for Home Affairs (Citizenship) [2019] AATA 2002 (18 July 2019)

Division:GENERAL DIVISION

File Number:           2018/5981

Re:DDMY

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:18 July 2019

Place:Melbourne

The Tribunal decides to make an order restricting access to:

1. passages on pages 536 to 545 of T37 and T38 of the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 to members and staff of the Tribunal and to the Minister, officers of his Department and legal advisers; and

2. passages on pages 525 and 526 of T35 that have previously been given to the applicant and the whole of T41a to the parties, their legal representatives and members and staff of the Tribunal.

[sgd]..................................................................

S A FORGIE

Deputy President

Catchwords
PRACTICE AND PROCEDURE – AUSTRAC information - interaction of obligation to lodge documents under section 37 of the Administrative Appeals Tribunal Act 1975 and the Tribunal’s inability to require production of any document containing AUSTRAC information or disclosure of AUSTRAC information.

PRACTICE AND PROCEDURE – whether the Conclusion reached in the Identity Assessment Report cannot be relied on for it may be influenced by the content of passages redacted from the report available to the applicant and the Tribunal – whether the applicant has a reasonable opportunity to present a case and whether there is denial of procedural fairness.

Legislation

Administrative Appeals Tribunal Act 1975

Anti-Money Laundering and Counter-Terrorism Financial Act 2006

Australian Citizenship Act 2007

Child Support (Registration and Collection) Act 1988

Financial Transaction Reports Act 1988

Cases

Cobiac v Liddy (1969) 119 CLR 257

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427; 120 ALR 415

Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1; 294 ALR 608

Commissioner of Police (NSW) v Guo [2016] FCAFC 62; (2016) 332 ALR 236; 69 AAR 74

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561; 43 ACSR 189

Ehrmann v Ehrmann [1896] 2 Ch 826

Electrolux Home Products Pty Limited v The Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309; 209 ALR 116
Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130; 224 ALR 238

Goodwin v Phillips (1908) 7 CLR 1

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCAFC 228; (2002) 123 FCR 298; 193 ALR 449; 69 ALD 1

P v P (1994) 181 CLR 583

Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476;
195 ALR 24

Re Bolton and Australian Securities and Investments Commission [2018] AATA 4640

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam
[2003] HCA 6; (2003) 214 CLR 1; 195 ALR 502; 72 ALD 613
Royal Automobile Club of Australia Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282; 75 LGRA 292

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505

Secondary Material

Black’s Law Dictionary with pronunciations, 5th edition, 1989, West Publishing Company, St Paul

Chambers 21st Century Dictionary (1999, reprinted 2004)

REASONS FOR DECISION

Deputy President S A Forgie

1. DDMY applied to become an Australian citizen but a delegate of the Minister for Home Affairs (Minister) refused his application after failing to be satisfied of DDMY’s identity as required by s 24(3) of the Australian Citizenship Act 2007 (AC Act). When the Minister lodged documents as required by s 37(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act), he asked for an order under s 35 of the same legislation restricting access to certain parts of those documents.  The information over which the order was sought fell into three groups:

   (1)Sections of an Identity Assessment Report prepared by an officer of the Department of Home Affairs (Department) and including information from the immigration records of a man, whom I will call “AB”.  Those details include his residential details, visa history and familial relations:[1]

   (2)Information collected under the Anti-Money Laundering and Counter-Terrorism Financial Act 2006 (AML/CTF Act) that has been collected by the Chief Executive Officer (CEO) of AUSTRAC under that legislation or any other law of the Commonwealth or of a State or Territory.[2]

   (3)Correspondence between the Australian Embassy in Tehran and a third party, whom I will call “TP” regarding DDMY’s mother and Amayesh (refugee) cards in her name.[3] 

[1] T documents; T35 at 518-519

[2] T documents; T35 at 525-526 and T41a at 592-607

[3] T documents; T37 at 536 and T38 at 546

1. Since the Minister first made his application for a confidentiality order, the parties have reached agreement regarding AB’s information being made available to members and staff of the Tribunal in the course of performing their duties and to the applicant and respondent and those directly concerned in the preparation and conduct of the proceedings on their behalf.  They have also agreed that an order should be made in the same terms regarding the AUSTRAC information in the whole of T41a and in those parts of T35 that had previously been provided to the Tribunal and the applicant in an un-redacted form.[4]  In providing that AUSTRAC information in an un-redacted form, the Minister had not relied upon s 134 of the AML/CTF Act in relation to the AUSTRAC information in the whole of T41a at pages 592 – 607 and in the selected passages in pages 525-526 of T35.  The outcome of my making the confidentiality order under s 35 of the AAT Act in the terms requested is that, the AUSTRAC information in T41a and those parts of T35 that had previously been provided to DDMY and his legal advisers as well as the Tribunal continues to be available to them but not to the world at large. 

[4] Before lodging the T documents and giving a copy to DDMY, the Minister had relied on s 134 of the AML/CTF Act in redacting other parts of T35 at 525-526 on the basis that they contained AUSTRAC information.  Neither DDMY nor the Tribunal has access to those parts.

1. That leaves the following questions to be answered:

   (1)whether the obligation imposed on the Minister by s 37 of the AAT Act is affected by s 134 of the AML/CTF Act;

   (2)if the Minister is not obliged to reveal AUSTRAC information and chooses not do so, whether non-disclosure of the AUSTRAC information at pages 525-526 of T35 of the T documents is procedurally fair to DDMY if the Tribunal were to have regard to an analysis that may depend on part of the AUSTRAC information that has not been disclosed; and

   (3)whether the Tribunal should have any regard to Amayesh cards said to relate to DDMY’s mother when only copies of images of those cards have been made available but not the provenance of those images.

1. I have decided that the effect of s 134 of the AML/CTF Act is that, when complying with s 37 of the AAT Act, the Minister is not obliged to disclose AUSTRAC information. If the Minister chooses to disclose AUSTRAC information to the Tribunal, he may do so within the boundaries of s 128(3) of the AML/CTF Act. In so far as he has chosen to do so, I agree with the he parties that an order should be made under s 35 of the AAT Act in the terms referred to at [2] above.

1. In so far as the AUSTRAC information is set out at pages 525-526 of the Identity Assessment Report at T35 of the T documents, I have also decided that it would not be a breach of procedural fairness for the Tribunal to have regard to the Identity Assessment Report as a whole and its conclusions in particular without knowing anything, including form and content, about the AUSTRAC information that has been redacted on those pages from the outset and that is available neither to DDMY nor the Tribunal.

1. With regard to the order that the Minister has sought under s 35 of the AAT Act in relation to information tending to identify the source of the Amayesh cards relating to DDMY’s mother, I have decided that access to information identified in pages 536 to 545 of T37 and T38 is restricted to members and staff of the Tribunal and to the Minister, officers of his Department and legal advisers.

THE SUBMISSIONS

1. In essence, the Minister has submitted that the provisions of s 128(3) permitting an official of a designated agency to disclose AUSTRAC information to a person for the purposes of, or in connection with, court or tribunal proceedings or in the course of those proceedings are not at odds with those of s 134.  Section 134 provides that a person who obtains AUSTRAC information is not to be required to produce in a court or tribunal a document containing AUSTRAC information or AUSTRAC information itself except for the purposes of carrying into effect the provisions of the AML/CTF Act or those of the Financial Transaction Reports Act 1988.  DDMY has submitted that, if AUSTRAC information is withheld from him, it should not be before the Tribunal.  If the Minister cannot be compelled to disclose it, he should not be permitted to rely upon it.

1. Turning to DDMY’s mother, the Minister submitted that T37 and T38 comprise correspondence between the Australian Embassy in Tehran (Embassy) and TP.  Upon being requested to do so by the Embassy, TP provided it with DDMY’s mother’s Amayesh card and a new Amayesh card.  TP requested that all information be considered as confidential.  Any disclosure of the correspondence would reveal the identity of TP.  The Minister has submitted that DDMY would not be denied procedural fairness were he denied knowledge of the provenance of the Amayesh cards.  He submitted that the Tribunal would have to weigh the evidence of the existence of the cards in circumstances where DDMY has denied that his family were registered in Iran.  DDMY is able to make submissions about the authenticity of the cards without knowing the channel by which they were obtained by the Department.

1. On behalf of DDMY, Ms Jenkins of counsel submitted that the evidence of the existence of the cards is not conclusive given that all that he has been given are images of the cards attached to what seem to be emails.  If the Minister is relying on copies of the Amayesh cards to prove their existence, he must also establish the provenance of the copies.  Alternatively, in order to be fair to DDMY, the Minister should not be permitted to rely on the copy images if he cannot produce the originals of the cards or establish their provenance.  The Tribunal has power to take this course under ss 25(4A) and 33(1) of the AAT Act.

AUSTRAC INFORMATION and SECTION 49 INFORMATION

1. The AUSTRAC information is found in documents that the Minister is obliged to produce under s 37 of the AAT Act. I will set out the extent of his obligation under that provision and note the ongoing nature of that obligation under s 38AA before exploring the scope of the restrictions on disclosure found in the AMLCTF Act.

The obligation under section 37 of the AAT Act

1. Apart from proceedings in the Security Division to which s 39A applies and second reviews,[5] s 37 of the AAT Act imposes a general obligation on a decision-maker to lodge certain documents with the Tribunal. The decision-maker:

   “… must, within 28 days of receiving the notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:

   (a)a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision; and

   (b)subject to any directions given under section 18B, every other document that is the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.”[6]

The decision-maker is also required to give a copy of the statement and documents to each other party to the proceeding in the same period.[7] 

[5] A second review may take place in relation to some matters heard in the Tribunal’s Social Security and Child Support Division. An obligation to lodge documents in relation to those matters and certain applications referred to in ss 96(A)(a) or (c) of the Child Support (Registration and Collection) Act 1988 is imposed by s 37(1AAB) of the AAT Act.

[6] AAT Act; s 37(1)

[7] AAT Act; s 37(1AE)

1. Section 37(3) provides that:

   “This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.”

1. A decision-maker who is obliged to lodge documents under s 37 may apply for a direction under ss 35(3) or (4) of the AAT Act restricting or prohibiting the publication or disclosure of certain information in the documents. Those provisions state:

   “(3)     The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:

   (a)information tending to reveal the identity of:

   (i)        a party or witness in a proceeding before the Tribunal; or

   (ii)any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or

   (b)information otherwise concerning a person referred to in paragraph (a).

   (4)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

   (a)relates to a proceeding; and

   (b)is any of the following:

   (i)information that comprises evidence or information about evidence;

   (ii)information lodged with or otherwise given to the Tribunal.”

The Anti-Money Laundering and Counter-Terrorism Financial Act 2006

A.Outline of relevant provisions

1. The Australian Transaction Reports and Analysis Centre (AUSTRAC) was established by the Financial Transaction Reports Act 1988 (FTR Act) and is continued in existence by virtue of s 209 of the AML/CTF Act.[8]  It comprises the Chief Executive Officer (CEO) of AUSTRAC (AUSTRAC CEO) and the staff of AUSTRAC.[9]  AUSTRAC’s function is to assist the AUSTRAC CEO in the performance of his or her functions.[10]  The functions of the AUSTRAC CEO include those:

   “(a)     to retain, compile, analyse and disseminate eligible collected information or AUSTRAC information; and

   (aa)to provide access to, and to share, AUSTRAC information to support domestic and international efforts to combat money laundering and terrorism financing and other serious crimes; …”[11]

[8] AML/CTF Act; ss 209(1) and (2)

[9] AML/CTF Act; s 209(3)

[10] AML/CTF Act; s 210

[11] AML/CTF Act; s 212(1)

1. The expression “AUSTRAC information” is defined in s 5 of the AML/CTF Act to mean:

   “(a)     eligible collected information; or

   (b)a compilation by the AUSTRAC CEO of eligible collected information; or

   (c)an analysis by the AUSTRAC CEO of eligible collected information.”

1. The expression “eligible collected information” is also defined in s 5 and it means:

   “(a)     information obtained by the AUSTRAC CEO under:

   (i)this Act; or

   (ii)any other law of the Commonwealth; or

   (iii) a law of a State or Territory; or

   (b)information obtained by the AUSTRAC CEO from a government body; or

   (c)information obtained by an authorised officer under Part 13, 14 or 15;

   and includes FTR information (within the meaning of the Financial Transaction Reports Act 1998).”

1. A “government body” referred to in paragraph (b) of the definition is also defined in s 5.  It means:

   “(a)     the government of a country;

   (b)an agency or authority of the government of a country; or

   (c)the government of part of a country; or

   (d)an agency or authority of the government of part of a country.”

An “authorised officer” is defined in s 5 as well.  It means:

“(a)     the AUSTRAC CEO; or

(b)a person for whom an appointment as an authorised officer is in force under             section 145.”

Under s 145, the AUSTRAC CEO may appoint as an authorised officer a member of staff of AUSTRAC or a person whose services are made available to him or her under (with the exception of s 225(3)(g)) s 225(3).

1. Part 3 of the AML/CTF Act imposes reporting obligations on a reporting entity.  A “reporting entity” is a person who provides a designated service.[12]  A “designated service” is a service described in s 6.[13]  The services are particularised in four categories: financial services; bullion; gambling services; and prescribed services that have been specified in regulations.  Part 4 of the AML/CTF imposes reporting obligations on person in relation to cross-border movements of physical currency above a certain threshold and bearer negotiable instruments.  Part 5 requires certain information regarding the origin of the transferred money to be included in electronic fund transfer instructions.

   [12] AML/CTF Act; s 5

   [13] AML/CTF Act; s 5

B.Part 3 of the AML/CTF Act

1. Returning to Part 3 of the AML/CTF Act, it imposes reporting obligations on each reporting entity.  Those obligations are summarised in s 40:

   “Simplified outline

   The following is a simplified outline of this Part:

·         A reporting entity must give the AUSTRAC CEO reports about suspicious matters.

·         If a reporting entity provides a designated service that involves a threshold transaction, the reporting entity must give the AUSTRAC CEO a report about the transaction.

·         If a person sends or receives an international funds transfer instruction, the person must give AUSTRAC CEO a report about the instruction.

·         A reporting entity may be required to give AML/CTF compliance reports to the AUSTRAC CEO.”

1. Each of these obligations, together with exemptions from them, is expanded upon in Divisions 2, 3, 4 and 5 of Part 3 of the NML/CTF Act.  The primary obligations for the first three obligations are found in ss 41, 43 and 45 respectively.  I will use s 41 as an example.  It is found in Division 2 and imposes what is called a “suspicious matter reporting obligation”.  The obligation requires the reporting entity in relation to a person to give the AUSTRAC CEO a report about the matter under s 41(2) and in the form required by s 41(3).  It arises if any one of three situations set out in ss 41(1)(a), (b) and (c) arises and if any one of the conditions set out in ss 41(d) to (j) applies. 

1. The three situations set out in s 41(1) are:

   “(a)     the reporting entity commences to provide, or proposes to provide, a designated service to the first person; or

   (b)both:

   (i)the first person requests the reporting entity to provide a designated service to the first person; and

   (ii)the designated service is of a kind ordinarily provided by the reporting entity; or

   (c)both:

   (i)the first person inquires of the reporting entity whether the reporting entity would be willing or prepared to provide a designated service to the first person; and

   (ii)the designated service is of a kind ordinarily provided by the reporting entity …”.

1. The first two of the seven conditions that are listed in s 41(1) are:

   “(d)     at the relevant time or a later time, the reporting entity suspects on reasonable grounds that the first person is not the person the first person claims to be;

   (e)at the relevant time or a later time, the reporting entity suspects on reasonable grounds that an agent of the first person who deals with the reporting entity in relation to the provision or prospective provision of the designated service is not the person the agent claims to be …”.

1. If a reporting entity communicates information to the AUSTRAC CEO under s 41 (or under ss 43 or 45), then, under s 49(1):

   “(a)     the AUSTRAC CEO; or

   (b)the Commissioner of the Australian Federal Police; or

   (c)the Chief Executive Officer of the Australian Crime Commission; or

   (d)the Commissioner of Taxation; or

   (e)the Comptroller-General of Customs; or

   (f)the Integrity Commissioner; or

   (g)an investigating officer who is carrying out an investigation arising from, or relating to the matters mentioned in, the information;

   may, by written notice given to the reporting entity or any other person, require the reporting entity or other person:

   (h)to give such further information as is specified in the notice, within the period and in the manner specified in the notice, to the extent to which the reporting entity or other person has that information; or

   (i)to produce, within the period and in the manner specified in the notice, such documents as are:

   (i)specified in the notice; and

   (ii)relevant to the matter to which the communication under section 41, 43 and 45 relates; and

   (iii)in the possession or control of the reporting entity or other person.”

1. An “investigating officer” referred to in s 49(1)(g) is defined in s 5 to mean:

   “(a)     a taxation officer; or

   (b)an AFP member; or

   (c)a customs officer (other than the Comptroller-General of Customs); or

   (d)an examiner of the Australian Crime Commission; or

   (e)a member of staff of the Australian Crime Commission; or

   (f)an Australian Commission for Law Enforcement Integrity officer.”

1. The persons listed in this provision must not give a notice to another person unless he or she reasonably believes that the recipient of that notice has knowledge of the information, or possession or control of the document, that is specified in the notice.[14]  Section 49(2) provides that the person must comply with the notice. 

[14] AML/CTF Act; s 49(1A)

1. When, under s 49, information is given to any person other than the AUSTRAC CEO, it is not AUSTRAC information for it is not eligible collected information and is neither a compilation of eligible collected information nor an analysis of eligible collected information.  It is not eligible collected information as that expression is defined in s 5 for it has neither been obtained by the AUSTRAC CEO in the circumstances set out in the definition and nor is it information obtained by an authorised officer under Part 13, 14 or 15 of the AML/CTF Act.[15] 

   [15] Part 13 is concerned with monitoring whether reporting entities have complied with the AML/CTF Act and authorises authorised officers to carry out that task.  Authorised officers are also given powers under Part 14 to obtain information from reporting entities and their employees, officers and agents that is relevant to the operation of the AML/CTF Act and regulations and rules made under it.  Part 15 confers various enforcement powers and provides for pecuniary penalties for contraventions of pecuniary penalty provisions.

C.Part 11 of the AML/CTF Act: secrecy and access

1. Section 120 sets out a simplified outline of Part 11:

“·       Except as permitted by this Act, an AUSTRAC official must not disclose information or documents obtained under this Act.

·         A reporting entity must not disclose that it has:

(a)      reported, or is required to report, information to the AUSTRAC CEO under section 41; or

(b)      formed a suspicion, under section 41, about a transaction or matter.

·         The Australian Taxation Office and certain other Australian government bodies may access AUSTRAC information.”

C.1Section 49 information

1. Information obtained under s 49 is referred to in s 122 as “section 49 information”.  Section 122 restricts what a person, who is called the “entrusted investigating official”, may do with section 49 information.  An “entrusted investigating official” is a person who is, or was:

   “(a)     the Commissioner of the Australian Federal Police; or

   (b)the Chief Executive Officer of the Australian Crime Commission; or

   (c)the Commissioner of Taxation; or

   (d)the Comptroller-General of Customs; or

   (e)the Integrity Commissioner; or

   (f)an investigating officer.”[16]

   [16] AML/CTF Act; s 122(1)

2. Subject to exceptions set out in s 122(3), an entrusted investigating official commits an offence if he or she has obtained section 49 information and the official discloses the information to another person.  Among those exceptions to the prohibition in s 122(2), s 122(3)(c) provides that it is an exception if:

   “the disclosure is for the purposes of, or in connection with, the performance of the duties of the entrusted investigating official (other than the Commissioner of Taxation or a taxation officer)”.

1. Section 122(4) is concerned with production or disclosure to a court or tribunal.  It provides:

   “Except where it is necessary to do so for the purposes of giving effect to this Act or the Financial Transaction Reports Act 1988, the entrusted investigating official is not to be required:

   (a)to produce to a court or tribunal a document containing section 49 information; or

   (b)to disclose section 49 information to a court or tribunal.”

C.2AUSTRAC information

1. Section 121 is framed in similar terms when it restricts what an entrusted public official may do with AUSTRAC information or with documents containing AUSTRAC information.  An “entrusted public official” is a person who is, or was:

   “(a)     the AUSTRAC CEO;

   (b)a member of the staff of AUSTRAC; or

   (c)a person engaged as a consultant under subsection 225(1); or

   (d)a person whose services are made available to the AUSTRAC CEO under subsection 225(3); or

   (e)the Director of AUSTRAC; or

   (f)a person engaged as a consultant under repealed section 40A of the Financial Transaction Reports Act 1988; …”.[17]

[17] AML/CTF Act; s 121(1)

1. An entrusted public official commits an offence if the official has obtained AUSTRAC information (otherwise than under Division 4) and the official discloses the information to another person.[18]  Exceptions to the circumstances in which an entrusted public official commits an offence are set out in s 121(3).

   [18] AML/CTF Act; s 121(2)

C.3Disclosure of, and access to, information

1. Section 123 is set out in Division 3, which is headed “Disclosure of information”.  In general terms, it prohibits a reporting agency from disclosing to someone other than the AUSTRAC CEO or a member of the staff of AUSTRAC that it has communicated information under s 41(2) (i.e. in accordance with its suspicious matter reporting obligation) or been required to give information under s 49.  Exceptions to the prohibition set out in s 123(1) and (2) are set out in the remaining provisions as are further prohibitions. 

1. Section 124 provides that, except in criminal proceedings for offences against ss 123, 136 or 137 or proceedings under s 175 for contravention of ss 41(2) and 49(2),[19] a report given under, or prepared for, the purposes of s 41(2) is not admissible in evidence and nor is a copy of such a report or a document purporting to set out information in the report.[20]  A document given or produced under s 49(1) is not admissible in so far as s 49(1) relates to a communication under s 41.[21]  Section 124(1)(b) sets out further evidence that is not admissible in relation to a report under s 41(2).

[19] AML/CTF Act; s 124(2)

[20] AML/CTF Act; ss 124(1)(a)(i), (ii) and (iii)

[21] AML/CTF Act; s 124(1(a)(iv)

1. Division 4 of Part 11 sets out the circumstances in which certain agencies may have access to AUSTRAC information.  Section 125 sets out the purposes for which the Commissioner of Taxation and any taxation officer is entitled to have access to AUSTRAC information.  The purposes are those relating to the facilitation of the administration or enforcement of a taxation law or, in certain circumstances, the Foreign Acquisitions and Takeovers Act 1975.[22]

[22] AML/CTF Act; s 125(1)

1. Section 126(1) provides that:

   “The AUSTRAC CEO may, in writing, authorise specified officials, or a specified class of officials, of a specified designated agency to have access to AUSTRAC information for the purposes of performing the agency’s functions and exercising the agency’s powers.

   Note:For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.”

1. The expression “designated agency” is defined in s 5.  Paragraph (l) of the definition specifies “the Immigration Department”.  The reference to the “Immigration Department” is a reference to the Department responsible for the administration of the Migration Act 1958.[23]  Under the Administrative Arrangements Order made on 29 May 2019, the Department of Home Affairs is responsible for the administration of the Migration Act 1958.  Therefore, the Department of Home Affairs is a “designated agency”.

[23] AML/CTF Act; s 5

1. A person who is, or was, an official of a designated agency is known as an “entrusted agency official”.  Section 127 sets out what an entrusted agency official may do with AUSTRAC information to which they are authorised to have access under s 126 i.e. “accessed information”.[24]  An entrusted agency official commits an offence if he or she has obtained accessed information and discloses that information to another person[25] unless:

   “(a)     the disclosure is for the purpose of, or in connection with the performance of the official’s duties;

   (b)the disclosure is authorised by, or is in connection, with communicating AUSTRAC information under, subsection 125(2) or section 128, 132, 133, 133A, 133B or 133C.

   …”[26]

[24] AML/CTF Act; s 127(4)(b)  The definition of “accessed information” also includes AUSTRAC information obtained by an entrusted agency official under ss 121(3)(da), 125(4), 128(1) or (2), 132(2), (4), (5) or (7), 133(2) or 133A(2) and 133B or 133C: AML/CTF Act; ss 127(4)(aa)-(a) and (c)-(f).

[25] AML/CTF Act; s 127(2)

[26] AML/CTF Act; s 127(3)

1. Section 128(1) of the AML/CTF Act provides that an official of a designated agency may disclose AUSTRAC information to another official of the agency for the purposes of, or in connection with, the performance of the other official’s duties in relation to the agency.  Subject to one qualification, s 128(2) provides that he or she may disclose AUSTRAC information to another official of another designated agency for the purposes of, or in connection with, the performance of the other officials’ duties in relation to the other designated agency.  The qualification is that the other official holds an appropriate authorisation under s 126(1).  An official of a designated authority may disclose AUSTRAC information to the Commissioner of Taxation or a taxation officer.  That disclosure is authorised by s 125(2).

1. Section 128(3) provides for disclosure to a court or tribunal:

   “An official of a designated agency may:

   (a)disclose AUSTRAC information to a person for the purposes of, or in connection with:

   (i)court or tribunal proceedings; or

   (ii)proposed or possible court or tribunal proceedings; or

   (iii)obtaining legal advice; or

   (b)disclose AUSTRAC information in the course of court or tribunal proceedings.”

1. Where AUSTRAC information has been disclosed to a person under s 128(3)(a), that person must not disclose the information to another person unless the disclosure is for one of the purposes specified in s 128(3)(a) or is authorised by Division 4 of Part 11.[27]

[27] AML/CTF Act; s 128(5) and (6)

1. Division 5 of Part 11 has only one provision: s 134.  It provides:

   “A person who obtains AUSTRAC information is not to be required:

   (a)to produce in a court or tribunal a document containing AUSTRAC information; or

   (b)to disclose in any court or tribunal any AUSTRAC information;

   except where it is necessary to do so for the purposes of carrying into effect the provisions of this Act or the Financial Transaction Reports Act 1988.”

1. Although the word “person” is used elsewhere in the AML/CTF Act, it is particularly important to note in the context of s 134 that the word means an individual, a company, a trust, a partnership, a corporation sole and a body politic.[28] 

   [28] AML/CTF Act; s 5

Consideration of the submissions regarding the AUSTRAC information

A.Characterisation of sections 128 and 134 of the AML/CFT Act

1. On behalf of the Minister, Mr Forsaith of counsel has characterised the operation of S 134 in terms of a privilege that is available to be invoked in the face of a disclosure obligation such as that in s 37(1) of the AAT Act. In this context, a “privilege” is “… a right granted to an individual or a select few …”.[29]  It is in that broad sense that Stirling J understood the word when it was used in Order XXXI, r 19A, sub-r 2 of the Rules of the Supreme Court 1883.  The rule stated: “Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court or a judge to inspect the document for the purpose of deciding as to the validity of the privilege.”  His Honour said:

   “… [I]t is said that I am to read ‘privilege’ in that rule in some sense such as to exclude irrelevancy.  Now, I do not think that I ought so to read that rule.  It seems to me that by the word ‘privilege’ there is meant any ground on which inspection is sought to be resisted; and that it is not limited to the narrow sense. … I believe it was the object of the rule to free the Court from the fetters imposed by the old practice, and enable it to be determined at once whether or no the objection which is sought to be raised is well or ill founded.  If that be the object of the rule, it seems to me that an objection to production on the ground of irrelevancy is just as much within the mischief as an objection that the document in question was a communication which fell within the doctrine as to professional privilege, or that it was one which related exclusively to the defendant's own case. …”[30]

[29] Chambers 21st Century Dictionary (1999, reprinted 2004) (Chambers)

[30]Ehrmann v Ehrmann [1896] 2 Ch 826 at 828

1. It seems to me that it is in this broad sense that s 134 of the AML/CTF Act can be understood as a privilege.  It can be used as a ground of objection to the production of a document containing AUSTRAC information or the disclosure of any document containing AUSTRAC information to any court or tribunal unless it comes within a very narrow exception.  That narrow exception arises if production or disclosure is necessary for the purposes of carrying into effect the provisions of the AML/CTF Act or the Financial Transaction Reports Act 1988.

1. The fact that s 134 may be relied upon to resist production or disclosure does not mean that the person who obtained the AUSTRAC information is forbidden from disclosing it.  Section 134 simply states that a person who obtains AUSTRAC information “is not to be required to produce” it to any court or tribunal.  Section 128(3) states that an official of a designated agency may disclose AUSTRAC information to a person for the purposes of, or in connection with, a court or tribunal proceeding.

B.General principles and their qualification by section 37(3) of the AAT Act

1. I now turn to Mr Forsaith’s general proposition that the AAT Act does not deny the operation of privileges or immunities of general application.  He relied on Commissioner of Police (NSW) v Guo[31] (Guo). With one qualification, I agree with Mr Forsaith’s submission. The one qualification is found in s 37(3) of the AAT Act when it states that s 37 “… has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.” Accepting that s 134 provides a privilege that may be used to withstand production or disclosure of AUSTRAC information, is it also a “rule of law relating to privilege” (emphasis added)?

[31] [2016] FCAFC 62; (2016) 332 ALR 236; 69 AAR 74; Collier, Robertson and Griffiths JJ

1. I will begin by considering what is meant by the “rule of law” for it provides that background in which a “rule of law” may be identified.  Although not attempting to put forward a comprehensive description of the rule of law, French J summarised essential elements in the following passage from his judgment in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs:[32] 

   “          Overarching the specific rules governing interpretation there is a constitutional and societal setting in which statutes are to be construed.  As McHugh J said in Theophanous v The Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 196:

   ‘The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.’

   The concept of the rule of law plays a normative role as part of this background. It has been called a foundation assumption of the Commonwealth Constitution - Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 193 (Dixon J). Gleeson CJ recently described s 75(v) as providing in the Constitution ‘... a basic guarantee of the rule of law’ - M Gleeson, ‘The Rule of Law and the Constitution’, Boyer Lectures 2000, ABC Books at 67.  The rule of law is a broad concept and presents difficulty in definition.  It is ‘a celebrated historic ideal, the precise meaning of which may be less clear today than ever before’ - Fallon, ‘”The Rule of Law” as a Concept in Constitutional Discourse’ 97 Columbia Law Review, 1997, 1. It is not necessary for present purposes to explore the ongoing and open-ended debate about its content. But in this country it imports the elements of representative democracy with legislative supremacy vested in the Parliament subject to a Constitution which limits its powers, an executive to carry out its laws and a judiciary to interpret them and determine their scope and limits in the particular case by reference to the traditions of the common law.”[33]

[32] [2002] FCAFC 228; (2002) 123 FCR 298; 193 ALR 449; 69 ALD 1; Black CJ, Beaumont, Wilcox, French and von Doussa JJ

[33] [2002] FCAFC 228; (2002) 123 FCR 298; 193 ALR 449; 69 ALD 1 at [443]; 415; 555-556; 107-108

1. I am concerned with the traditions of the common law, to which reference is made in interpreting and determining the scope and limits of Parliament’s laws.  In Coco v The Queen[34] (Coco), the High Court considered s 43 of the Invasion of Privacy Act 1971 (Qld), which made it an offence to use a listening device to record or listen to a private conversation. An offence was not committed if a member of the police force used a listening device while acting in the performance of his or her duty and having written authorisation to do so. The issue was whether s 43 authorised the Judge to authorise entry on to premises for the purpose of installing or maintaining a listening device in circumstances in which entry would otherwise have otherwise constituted trespass. The High Court found that the judge’s approval to enter the premises was wholly void.

[34] [1994] HCA 15; (1994) 179 CLR 427; 120 ALR 415; Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ

1. In their joint judgment, per Mason CJ, Brennan, Gaudron and McHugh JJ said:

   “… Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language.  Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct … But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended.  Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless.  However, as Gaudron and McHugh JJ observed in Plenty v. Dillon …:

   ‘[I]nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights".

   …

   The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them.  The courts should not impute to the legislature an intention to interfere with fundamental rights.  Such an intention must be clearly manifested by unmistakable and unambiguous language.  General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights …

   So long as the requirement for express statutory authorization is understood in the sense explained above, we would accept the requirement as a correct statement of principle.  At the same time, in our view, the principle was expressed more simply by Brennan J in Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 523.) in these terms:

   ‘Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.’”[35]

[35][1994] HCA 15; (1994) 179 CLR 427; 120 ALR 415 at [8]-[11]; 436-437; 418-419

1. In Electrolux Home Products Pty Limited v The Australian Workers’ Union,[36] Gleeson CJ referred to the joint judgment in Coco saying:

   “          The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would ‘overthrow fundamental principles, infringe rights, or depart from the general system of law’ without expressing its intention with ‘irresistible clearness’ …. In R v Home Secretary; Ex parte Pierson …, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts.  The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.”[37]

[36] [2004] HCA 40; (2004) 221 CLR 309; 209 ALR 116; Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ

[37] [2004] HCA 40; (2004) 221 CLR 309; 209 ALR 116 at [21]; 329; 123-124 (citations omitted)

1. Reference is made in this passage to “fundamental rights” but they are also known as “basic law doctrines”[38] and “rules of law” or “rules of substantive law”.[39]  They are not to be abrogated except in the clearest terms and include the right of a person in possession, or entitled to be in possession, of premises to exclude others from those premises,[40] legal professional privilege,[41] common law rules of natural justice[42] and public interest immunity.[43]  Consistent with the principle of legality, these fundamental rights apply to bodies exercising executive power, including the Tribunal, as much as they apply to the courts.[44]  

[38]Guo [2016] FCAFC 62; (2016) 332 ALR 236; 69 AAR 74 at [61]; 251; 90 per Robertson and Griffiths JJ

[39] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561; 43 ACSR 189; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ at [9]; 552; 564; 192 per Gleeson CJ, Gaudron, Gummow and Hayne JJ

[40]Coco [1994] HCA 15; (1994) 179 CLR 427; 120 ALR 415 at [8]; 435; 417

[41] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561; 43 ACSR 189; at [9]; 552; 564; 192 per Gleeson CJ, Gaudron, Gummow and Hayne JJ

[42] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; 179 ALR 238 at [126]; 93; 266 per McHugh J

[43] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505; Gibbs ACJ, Stephen, Mason, Jacobs and Aickin JJ at [36]; 38; 525 per Gibbs ACJ

[44]Guo [2016] FCAFC 62; (2016) 332 ALR 236; 69 AAR 74 at [72]; 254; 94 per Robertson and Griffiths JJ

1. It is to fundamental rights, or rules of law, of two specific types to which Parliament has made specific reference in s 37(3) of the AAT Act. The specific types are privilege and public interest. Parliament has specifically stated that s 37, and so the obligation that it imposes, has effect notwithstanding any “rule of law relating to privilege or the public interest”. Therefore, for example, s 37 requires a decision-maker to lodge documents of the sort specified in s 37(1) notwithstanding that he or she might otherwise claim for legal professional privilege or public interest immunity, which has also been known as “Crown privilege”.  Both clearly come within the description of a “rule of law relating to privilege or the public interest” as set out in s 37(3) and the section has effect notwithstanding them. Whether other fundamental rights or rules of law do so must depend on their particular characterisation and I do not need to explore that aspect in this case.

1. What I do conclude though, is that, even if it is correct to describe s 134 of the AML/CTF Act in terms of a “privilege”, it is not a privilege that comes within the description of a “rule of law relating to privilege” in s 37(3). It is, instead, a creation of Parliament and not part of any rule of law, to which reference is made in s 37(3).

C.Reconciling an obligation to produce under the AAT Act and a prohibition on production and disclosure under the AML/CTF Act

1. I will begin with the general relevant principles of statutory interpretation that apply when two pieces of legislation may appear to be at odds with each other.  They are set out in the following passage from the joint judgment of Gummow and Hayne JJ in Ferdinands v Commissioner for Public Employment:[45]

   “          It has long been recognised … that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent.  Inconsistency lies at the root of this principle ….  But, as Isaacs J pointed out in 1907 …, ‘[i]t is very hard to formulate a rule which will apply to every case of implied repeal’.  There are, however, two cardinal considerations.  First, as Gaudron J said in Saraswati v The Queen …, ‘[t]here must be very strong grounds to support [the] implication, for there is a general presumption that the legislature intended that both provisions should operate’.  Secondly, deciding whether there is such inconsistency (‘contrariety’ … or ‘repugnancy’ …) that the two cannot stand or live together … (or cannot be ‘reconciled’ …) requires the construction of, and close attention to, the particular provisions in question.”[46]

[45] [2006] HCA 5; (2006) 225 CLR 130; 224 ALR 238; Gleeson CJ, Gummow, Hayne and Callinan JJ; Kirby J dissenting

[46] [2006] HCA 5; (2006) 225 CLR 130; 224 ALR 238 at [18]; 137-138; 244 (citations omitted)

1. In their joint judgment in Commissioner of Police (NSW) v Eaton[47] (Eaton) Crennan, Kiefel and Bell JJ referred to Ferdinands and drew out the following principle:

   “… [A]s their Honours observed, the law presumes that statutes do not contradict one another.  The question is not whether one law prevails, but whether that presumption is displaced …  Their Honours said that deciding whether the two statutes could not ‘stand or live together’ in the relevant respect ‘requires the construction of, and close attention to, the particular provisions in question’ …”[48]

[47] [2013] HCA 2; (2013) 252 CLR 1; 294 ALR 608; Heydon, Crennan, Kiefel and Bell JJ; Gageler J dissenting

[48] [2013] HCA 2; (2013) 252 CLR 1; 294 ALR 608 at [48]; 19-20; 621 (citations omitted)

1. In Ferdinands, the earlier legislation, the Industrial and Employees Relations Act 1994 (SA), regulated certain employment matters relating to employees generally.  The later legislation, the Police Act 1998 (SA), regulated employment matters relating to a specific group of employees being police officers. In Eaton, the situation was reversed.  The earlier legislation, the Police Act 1990 (NSW) dealt with the specific situation regulating police officers. The later legislation, the Industrial Relations Act 1996 (NSW) regulated matters for employees generally. Regardless of that, each applied the same principles by examining the structure and operation of each.[49] 

[49] Different principles may apply if the perceived inconsistency is between State and Commonwealth law.  See, for example, P v P (1994) 181 CLR 583 at 602-603 per Mason CJ, Deane, Toohey and Gaudron JJ

1. The same approach had been adopted much earlier by the High Court in Cobiac v Liddy,[50] in which the High Court considered s 47(4) of the Road Traffic Act 1961 (SA) (RT Act) and s 4 of the Offenders Probation Act 1913 (SA) (OP Act). The earlier Act provided that the court could, in certain circumstances where it thought the charge proved, exercise a range of powers including dismissing the charge without conviction, convict the person but without penalty and, either with or without conviction, require a person to be of good behaviour and subject to other conditions. The later Act, being the RT Act, was concerned with specific offences and provided:

   “Notwithstanding any other Act the minimum amount of any fine and the minimum period of imprisonment or disqualification prescribed by this section shall not be reduced or mitigated in any way except as follows:-

   In the case of a first offence, the court, if it is satisfied by evidence given on oath that the offence is trifling, may order disqualification for a period less than three months but not less than fourteen days.”

[50] (1969) 119 CLR 257; Barwick CJ, Kitto, Windeyer and Owen JJ; McTiernan J dissenting at 268 per Windeyer J

1. Windeyer J considered an argument to the effect that the later RT Act abrogated the provisions of the earlier OP Act.  The question whether the magistrate had been correct in exercising his power under the OP Act on the basis they had not been abrogated by the RT Act was, Windeyer J said:

   “… to be decided not by any assumptions of what Parliament’s purpose was, but by its intention as expressed in the language it has used. … The proposition that the [OP] Act has been supplanted by the rigorous provisions of the later Act was put to us as an example of the contrast between the general and the special – the provisions of the Road Traffic Act being regarded as the special.  So put, the proposition is the obverse of the maxim generalia specialibus non derogant: but whether a later Act has taken away a discretionary power given by an earlier Act must depend upon a comparison of the actual language of each, to see whether they stand together or whether the latter has, pro tanto, abrogated the former.  The question is not answered by maxims. …”[51]

[51] (1969) 119 CLR 257 at 268

1. I am not concerned with a situation in which a later Act has taken away a discretionary power given by an earlier Act.  I am concerned with a situation in which s 25(6) of the AAT Act was enacted long before the AML/CTF Act was enacted.  As in Cobiac v Liddy, the proposition is the obverse of the maxim generalia specialia non derogant (“General words do not derogate from special.”[52]) to become generalibus specialia derogant (“Special things take from generals”[53]).  In either case, however, the task is the same.  In view of the general presumption that the legislature intended that both provisions should operate, I must look to the words of the legislation to see whether they can be reconciled.That is a task that does not permit regard to be had to:

   “… hypothetical or possible conflicts.  Legislation being concerned with the highly practical business of lawmaking, the issue in every case of a suggested conflict will be the practical ways in which the legislation operates together and whether, in that context, an irreconcilable conflict of duties really arises.  In answering this question it is relevant to consider whether one of the statutes applies to a special class or subject matter whereas the other applies to a more general or wider subject matter …”.[54]

[52] Black’s Law Dictionary with pronunciations, 5th edition, 1989, West Publishing Company, St Paul

[53] Black’s Law Dictionary

[54] Royal Automobile Club of Australia Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282; 75 LGRA 292; Kirby P, Clarke JA and Handley JA at [4]; 294; 303 per Kirby P (citations omitted)

1. If there is an irreconcilable conflict, it is not a case of the earlier legislation giving way to the later but to provisions of general application giving way to provisions that are of particular application.  This follows from what was said by O’Connor J in Goodwin v Phillips:[55]

   “… Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply. …”[56]

[55] (1908) 7 CLR 1; Griffith CJ, Barton, O’Connor and Isaacs JJ

[56] (1908) 7 CLR 1 at 14 per O’Connor J

1. In this case, it seems to me that the obligation imposed by s 37(1) of the AAT Act must give way to the prohibition found in s 134. The obligation imposed by s 37(1)(b) is a general obligation applicable to every document that is in a decision-maker’s possession or control and that is relevant to the review of the decision by the Tribunal. The obligation imposed by s 37(1)(a) requires the decision-maker to make a statement that, among other matters, refers to the evidence or other material on which the decision-maker’s findings on material questions of fact were based. In imposing that obligation, Parliament clearly had in mind that the Tribunal and the applicant for review should be in possession of all relevant material and that it should not be impeded in that by any rule of law relating to privilege or the public interest.[57]  

[57] For the reasons I gave in Re Bolton and Australian Securities and Investments Commission [2018] AATA 4640 at [29]-[40], I do not consider that the obligation imposed by s 38AA of the AAT Act to continue to lodge documents of the sort required by s 37 applies notwithstanding any rule of law relating to privilege or the public interest. Where it applies, any rule of law relating to privilege or the public interest may be relied upon to resist the ongoing requirement imposed by s 38AA.

1. That was the general position established by the AAT Act but I do not think that the obligation imposed by s 37, or the continuing obligation imposed by s 38AA, can stand in the face of a particular provision enacted by Parliament in relation to a particular type of information. In this case, the particular provision is s 134 and it is clearly directed to courts and tribunals, which have power to require production of documents and the disclosure of information. It specifically prohibits production of documents containing AUSTRAC information and disclosure of AUSTRAC information to them except for two particular purposes: those of carrying into effect the provisions of the AML/CTF Act or those of the Financial Transaction Reports Act 1988.  Neither of those purposes is concerned with the review of administrative decisions by the Tribunal generally or with the Tribunal’s review of decisions made under the AC Act specifically. In view of that, the general obligation imposed by s 37 (and s 38AA) of the AAT Act must give way to the particular provisions of s 134 of the AML/CTF Act.

1. In this case, s 134 of the AML/CTF Act means that I cannot rely on s 37 of the AAT Act to require the Minister to produce documents containing AUSTRAC information or to disclose AUSTRAC information he has obtained. At the same time, the effect of s 128(3) of the AML/CTF Act is that an official of his Department, being a designated agency, may choose to disclose the information for the purpose of, among others, a tribunal proceeding.

Consideration of the submissions regarding the section 49 information

1. I come to a different conclusion in relation to section 49 information.  Section 122(4) of the MLA/CTF Act provides that an investigating officer is not required to produce to a court or tribunal a document containing section 49 information or to disclose section 49 information to it.  Section 122(3)(c) permits disclosure for the performance of, or in connection with, the performance of duties entrusted to the investigating officer.  An officer of the Minister’s Department cannot be an “investigating officer” for he or she does not come within the description of officers set out in the definition of that term in s 5 of the MAL/CFT Act.  Therefore, he or she cannot disclose section 49 information to the Tribunal.

MAY THE TRIBUNAL HAVE REGARD TO THE IDENTITY ASSESSMENT REPORT FROM WHICH AUSTRAC INFORMATION HAS BEEN REDACTED?

1. T35 is an Identity Assessment Report prepared by an Identity Officer of the Department after an identity interview had been conducted by identity officers in conjunction with a citizenship officer.  It explores a range of issues under various headings before concluding

that:

“After careful consideration of all the information and findings obtained for this investigation I find it implausible that … [DDMY] is an Afghan national as he has claimed to the Department but is in fact an Iranian national with Afghan ancestry.”[58]

[58] T documents; T35 at 528

1. One of the headings in the Identity Assessment Report is “Financial Records”.  It appears on pages 525-526 of T35.  The Minister has redacted five passages from the information on those two pages on the basis it is AUSTRAC information subject to s 134 of the AML/CTF Act.  I have made orders under s 35 of the AAT Act restricting access to the parties and the Tribunal to six other passages on pages 525-526 of T35.  The summary of DDMY’s statement, over which no order under s 35 of the AAT Act has been made, was that:

   “Ø       He provides financial assistance to his mother each month.

   Ø        This assistance is provided through an Iranian national named … [X].        She then provides the money to his mother.

   ØHe met … [X] through Ms … [Y].”[59]

[59] T documents; T35 at 525 Consistently with the orders made to protect the applicant’s identity, I have adopted pseudonyms for names used in the passage.

1. The only express reference to financial matters in the Conclusion is in relation to DDMY’s mother:

   “… [DDMY’s] mother has a bank account in Iran and a landline telephone therefore raising increasing doubt in … [DDMY’s] claims to the Department.”[60]

[60] T documents; T35 at 527

1. That passage links back to the passage under “Financial Records” that addresses the difficulties that unregistered Afghans in Iran face in opening bank accounts.  The passage continues:

   “… Country information also states Afghan nationals with a valid passport; visa and work permit can open bank accounts in Iran as well as those with Special Identity Cards … and Amayesh Cards. … It is highly likely … [DDMY’s] mother as well as … [XY] are in possession of one of the above in order to have a bank account or they are Iranian nationals and therefore in possession of the 2008 Iranian National Identity Card which has become compulsory for obtaining a passport and drivers licence and opening bank accounts.…”[61]

[61] T documents; T35 at 526 (citations omitted)

1. Even if it were correct to say, and I have no view about this, that the redacted AUSTRAC information has somehow implicitly influenced the Identity Officer’s thinking, I have come to the view that the issues that DDMY must address are clear even though neither DDMY nor the Tribunal is aware of the content of the redacted AUSTRAC information.  If the Tribunal hearing this matter were to form a different view, it would be entitled to consider the weight that it should give to any conclusions set out in the report.  It may be that it does not place any weight on the conclusions themselves and prefers to go back to the evidence and make its own findings of fact on the relevant issues.  Either way, I do not think that DDMY is denied procedural fairness if the Tribunal were to have regard to the Identity Assessment Report, from which the Minister, relying on s 134 of the AML/CTF Act, has redacted five passages of AUSTRAC information appearing at pages 525 and 526 of T35.

AMAYESH CARDS

1. The Minister has asked that an order be made under s 35 with regard to certain information relating to Amayesh cards said to relate to DDMY’s mother.  He has done so on the basis that the information over which the order is sought would reveal the identity of the third person, TP, who gave the Amayesh cards to the Embassy.  If granted, the position would be that the Tribunal would know the way in which the Amayesh cards came into the possession of the Embassy and so of the Department and relevant correspondence between the Embassy and TP but the applicant would not.

1. Before I turn to s 35, I need to consider issues relating to procedural fairness.  This is a common law concept and also found in statutory form in s 39(1) of the AAT Act.  Beginning with the common law, Gleeson CJ said in Plaintiff S157/2002 v The Commonwealth[62] in considering the application of the definition of a “privative clause” in s 474 of the Migration Act 1958 said:

   “          The principles of statutory construction stated above lead to the conclusion that Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If Parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s 474 does not suffice to manifest such an intention.”[63]

[62] [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

[63] [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24 at [37]; 494; 36

1. In another case later in the same year,[64] Gleeson CJ further examined the notions of procedural fairness or natural justice:

   “          A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu … was such a case.  So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs ….  A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker.  In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness.  Fairness is not an abstract concept.  It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”[65]

[64] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; 195 ALR 502; 72 ALD 613; Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ

[65] [2003] HCA 6; (2003) 214 CLR 1; 195 ALR 502; 72 ALD 613 at [37]; 13-14; 511; 622 (citations omitted)

1. Section 39(1) of the AAT Act is a statutory expression of similar principles.  It provides:

   “Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”

1. In this case, the qualification found in s 35 of the AAT Act is relevant.  The principle underlying the whole of s 35 is that, subject only to the section itself, the hearing of a proceeding before the Tribunal must be in public.[66]  The Tribunal may, by order, direct that a hearing, or part of a hearing, is to take place in private and give directions as to those who may be present.[67]  Section 35(4) is relevant in this case for it provides:

   “The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

   (a)relates to a proceeding; and

   (b)is any of the following:

   (i)information that comprises evidence or information about evidence;

   (ii)information lodged with or otherwise given to the Tribunal.”

[66] AAT Act; s 35(1)

[67] AAT Act; s 35(2)

1. In considering whether to give directions under, among others, s 35(4):

   “… the Tribunal is to take as the basis of its consideration the principle that it is desirable:

   (a)that the hearings of proceedings before the Tribunal should be held in public; and

   (b)that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

   (c)that the content of documents lodged with the Tribunal should be made available to all the parties.

   However (and without being required to seek the views of all parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.”[68]

[68] AAT Act; s 35(5)

1. It is apparent from the email between the Embassy and the Department on 15 June 2017 that TP has requested that all information be considered as confidential.  It is against a background of this request that the Minister has requested an order under s 35 that would keep from DDMY information tending to identify TP.  Protecting sources of information and particularly those who have requested anonymity is an important factor but so too is according an applicant procedural fairness or natural justice whether formulated at common law or under s 39.  It is a balancing exercise and, in this case, I think that it lies with protecting TP’s identity. 

1. The information that is available to DDMY shows that copies of the Amayesh cards were obtained by the Embassy and transmitted to the Department.  DDMY has expressed his surprise that the Department has information that she holds or held an Amayesh card in Iran and has suggested that the cards may relate to another person of the same name.[69]  He is aware of the allegation in relation to the Amayesh cards.  All that he does not know is the identity of TP.  In the circumstances of the case, I do not think the identity of the person who gave the Amayesh cards to the Embassy is relevant.  The evidence that DDMY must counter is that the copies of the cards exist.  DDMY’s position is that his mother does not have an Amayesh card at all.  Even without knowing how the Embassy came to have copies of the Amayesh cards, it may be open to DDMY to attack them on the basis of such matters as the accuracy of the information to show that they do not relate to his mother.  He may choose to lead evidence on matters particular to his mother’s circumstances and directed to showing that they do not relate to her. 

[69] T documents; T40 at 575

1. Even though DDMY would not know TP’s identity, I do not think that he has lost any opportunity to present his case on the issues raised by the evidentiary material to date.  Certainly, the Minister has put forward only copies of the Amayesh cards and neither he nor DDMY has the opportunity to have the originals forensically tested for authenticity.  Even in that situation, I do not think that to deny DDMY knowledge of the source of the copies is to deny him procedural fairness or an opportunity to present his case.  This point would go to the weight to be given to the copies when the originals are not available and that would be the case regardless of whether TP’s identity is known.

1. In view of my conclusions, I have decided to make an order under s 35 to the effect that access to information identified in pages 536 to 545 of T37 and T38 is restricted to members and staff of the Tribunal and to the Minister, officers of his Department and legal advisers.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

[sgd]..................................................................

Associate

Dated: 18 July 2019

Heard by telephone:

29 March, 5 April and 4 July 2019

Counsel for the Applicant:

Solicitor for the Applicant:

Counsel for the Respondent:

Ms Michelle Jenkins

Ms Chloe Hall
Russell Kennedy Lawyers

Mr James Forsaith

Solicitor for the Respondent:

Ms Shauna Roeger
Australian Government Solicitor