DEPARTMENT FOR CONSUMER AND EMPLOYMENT PROTECTION and CHEQUECASH PTY LTD
[2008] WASAT 168 (S)
•21 JULY 2009
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | COMMERCIAL & CIVIL |
| ACT | : | CONSUMER CREDIT (WESTERN AUSTRALIA) ACT 1996 (WA) |
| CITATION | : | DEPARTMENT FOR CONSUMER AND EMPLOYMENT PROTECTION and CHEQUECASH PTY LTD [2008] WASAT 168 (S) |
| MEMBER | : | MR T CAREY (MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 28 JULY 2008 |
| SUPPLEMENTARY | ||
| DECISION | : | 21 JULY 2009 |
| FILE NO/S | : | CC 1726 of 2007 |
| BETWEEN | : | DEPARTMENT FOR CONSUMER AND EMPLOYMENT PROTECTION Applicant |
| AND | ||
| CHEQUECASH PTY LTD Respondent | ||
| Catchwords: |
Consumer credit - Preliminary issue - Whether evidence obtained unlawfully should be excluded
[2008] WASAT 168 (S)
Legislation:
Consumer Affairs Act 1971 (WA), s 19, s 19(2), s 23, s 23X
Consumer Credit (Western Australia) Code, s 15(E)
Credit Administration Act 1984 (WA), s 4, s 53A, s 54, s 54(1)
Machinery of Government (Miscellaneous Amendments) Act 2006 (WA)
Public Sector Management Act 1994 (WA), s 9, s 80
State Administrative Tribunal Act 2004 (WA), s 9, s 27(2), s 32, s 60(2)
Result:
Order that material obtained unlawfully not be excluded
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | Department for Consumer and Employment |
Protection
| Respondent | : | Self-represented |
Case(s) referred to in decision(s):
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Department of Consumer and Employment Protection v Chequecash Pty Ltd
[2009] WASC 18
[2008] WASAT 168 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The Tribunal was required to determine, as a preliminary issue,
whether certain evidence obtained without legal authority should be excluded. It was common ground that in the event of the exclusion of the evidence, the application, which sought a penalty for the breach of key requirements in relation to consumer credit contracts, would be unsustainable.
2 The Tribunal, guided by comments made by a judge of the
Supreme Court on the successful appeal by the respondent against its earlier decision on the application, applied the leading authority regarding exclusion of illegally obtained evidence in the judicial context, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. It found that each of the four factors identified by that authority bearing upon the preliminary issue tended against exclusion of the material. It also found the framework provided by the State Administrative Tribunal Act 2004 (WA) for the Tribunal's decision-making task to support the same conclusion. Consequently, the Tribunal determined that the material should not be excluded.
Background
3 This matter was remitted to the Tribunal for reconsideration by order
of Justice Simmonds of the Supreme Court of Western Australia on 10 February 2009. On that occasion, Simmonds J allowed an appeal against the Tribunal's decision dismissing an application to impose a civil penalty on the respondent for contraventions of s 15(E) of the Consumer Credit (Western Australia) Code (Code) and set aside the Tribunal's decision. His Honour's reasons for decision are set out in Department of Consumer and Employment Protection v Chequecash Pty Ltd [2009] WASC 18 (appeal decision).
4 In the course of the exposition by Simmonds J of the facts bearing
upon the appeal, his Honour referred to a matter said to have been discovered for the first time subsequent to the appeal being lodged. That matter was the applicant's admitted failure to make a valid delegation of authority or other authorisation to the applicant's compliance officers in respect of two separate visits to the respondent's premises, when documents and information subsequently relied upon before the Tribunal was collected. This failure gave rise to 'the evidence question', expressed at [56] by his Honour in the following terms:
[2008] WASAT 168 (S)
The evidence question is whether the SAT would have dismissed the application in any event on the basis that there was no supporting factual material it could properly consider, had it been aware (but was not at the time) that the factual material essential to a finding of contraventions had been gathered in an unlawful manner.
5 Simmonds J declined to himself determine the evidence question,
which, on the remittal to the Tribunal, is one of the issues for
determination as part of the Tribunal's reconsideration.6 It was common ground in the appeal that, in the absence of the
evidence obtained on the unauthorised visits by the compliance officers, the asserted contraventions of the Code are unsustainable. The statement appearing in the applicant's submissions on the preliminary issue that the alleged contraventions 'arose out of documents obtained' on the visits of the compliance officers underlines the critical importance of the evidence in issue to the success of the application.
7 On 12 March 2009, with the consent of the parties, the Tribunal
directed that it should determine as a preliminary issue whether the information and documents relied upon by the applicant which were obtained unlawfully should be excluded. The parties were directed to file and serve documents in support of their respective positions on the preliminary issue. The applicant filed written submissions on 26 March 2009 and the respondent filed its response to those submissions on 14 May 2009. Some further documents, to which I will refer, were filed subsequently. These are the Tribunal's reasons for decision on the preliminary issue, determined on the filed documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Relevant principles guiding exercise of discretion whether or not Tribunal should admit illegally obtained evidence
8 Although there might be a question about the applicability of
principles guiding the exercise of the discretion of the courts to either admit or exclude evidence obtained illegally to the Tribunal, I consider the effect of the comments of Simmonds J in the appeal decision to be that the Tribunal should, as a first step, apply those principles before considering whether there is any aspect of the statutory framework under which the Tribunal operates having a bearing on the preliminary issue. This is the course which I intend to follow.
9 The leading Australian authority governing the admission in judicial
proceedings of evidence unlawfully obtained is Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 (Bunning). The appeal decision
[2008] WASAT 168 (S)
provides an overview of Bunning at [71] - [74], whilst at [75] - [87] it provides Simmonds J's provisional assessment of the application of each of the four factors identified in Bunning to the facts as known to his Honour.
The four Bunning factors are:
a) whether or not the unlawfulness was deliberate or reckless; b) whether or not the unlawfulness bears upon the cogency of the matter unlawfully obtained; c) the comparative seriousness of the offence charged and of the unlawful conduct by the law enforcement authorities; and d) whether the nature of the legislative concern is to restrict the conduct of the law enforcement authorities in question.
11 I will consider each of the Bunning factors and their application on the facts of this case before considering the impact of any relevant provision of the SAT Act.
First Bunning factor: whether or not the unlawfulness was deliberate or reckless
12 In the appeal decision, Simmonds J set out the factual circumstances
as they were described in affidavits filed in the appeal relevant to the unlawfulness of the evidence gathered by the applicant. The relevant passages from his Honour's reasons are reproduced below. The reference in these passages to 'CA Act' is to the Credit (Administration) Act 1984 (WA), which identifier I will adopt for the purposes of my reasons:
62 The manner in which the relevant factual material was obtained is described in the affidavits of Adrian Theseira sworn 16 December 2008 and Susan Katherine Hill sworn on the same date.
63 Mr Theseira deposed that he is currently the manager of the Finance & Valuation Industries Branch of the appellant, and, at the time the factual material was collected from the business premises of the respondent, he was principal proactive compliance officer within the branch. The factual material was collected on two separate occasions. The two entries occurred on 26 April 2007 and
[2008] WASAT 168 (S)
2 May 2007, on which, at least the first occasion, records of the respondent were inspected and copied. On both entries, Mr Theseira was accompanied by another person, who was a proactive compliance support officer from within the branch.
64 Ms Hill deposed that she is currently a solicitor employed by the appellant, and she annexed a letter from her in that capacity to the respondent dated 16 December 2008. In that letter she informed the respondent that a 'recent audit' of the appellant's 'instruments of authorisation' had revealed that there was no valid delegation by the Commissioner to the departmental officers pursuant to s 53A of the CA Act when the officers attended Chequecash's business premises on 26 April 2007 and 2 May 2007. There was also no valid authorisation of the officers pursuant to s 54 of the CA Act. This was despite the fact that the officers in question held the genuine belief at the time of the visits that they were properly authorised under the CA Act.
65 The letter set out in full text the provisions of CA Act s 53A and s 54(1), which are as follows:
53A. Delegation by Commissioner (1)
The Commissioner may delegate to any other person employed in the Department any power or duty of the Commissioner under another provision of the cognate Acts.
(2) The delegation must be in writing signed by the
Commissioner.(3) A person to whom a power or duty is delegated under this
section cannot delegate that power or duty.(4)
A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5)
Nothing in this section limits the ability of the Commissioner to perform a function through an officer or agent.
…
54. Power of entry (1)
For the purpose of ascertaining whether the provisions of any of the cognate Acts are being or have been complied with by a credit provider or for the purpose of enabling the Commissioner to prepare a report for the
[2008] WASAT 168 (S)
State Administrative Tribunal, the Commissioner, or any other person authorised in writing in that behalf by the Commissioner may -
(a)
enter premises where the business of the credit provider or the business of a person with whom the credit provider has a trade or tie agreement, is being carried on;
(b) require the production of records; (c)
inspect and require explanations of any record; and
(d)
take notes, copies and extracts of or from any record or statement produced pursuant to this section.
...
66 Mr Theseira in his affidavit also provided the following, which appears to relate to the 'audit' referred to by Ms Hill [8] and provides additional background information with respect to that audit:
In November 2008, the Branch began to develop a procedural guide on how departmental officers should conduct visits to 'credit providers' in order to determine their compliance with the provisions of the Code. During the development of this guide, the Branch officers conducted an audit and examination of existing authorisations and delegations of the Commissioner's powers under the various Acts administered by the Appellant, including those made under the CA Act.
…
68 As to the letter's reference to the 'genuine belief' of the 'officers in question', I note that Mr Theseira deposed in his affidavit as follows:
At all material times during the preparation for the Visits [the entries of 26 April 2007 and 2 May 2007] and the Visits themselves and until I received the Advice [identified in par 9 as 'there appeared to have been no valid authorisation under s 54 of the CA Act or any delegation of the Commissioner's powers under s 53A of the CA Act at the time of the Visits'] in or about November 2008 I believed that I and other departmental officers employed in the Branch were authorised by the
[2008] WASAT 168 (S)
Commissioner to exercise the powers conferred by section 54 of the CA Act [10].
13 In the appeal decision, Simmonds J expressed a number of
reservations concerning the adequacy of the affidavits filed by the applicant for the purposes of any consideration of the evidence question. I refer particularly to [67], [69] and [76] in the appeal decision. Indeed, one of the reasons given by his Honour to remit the matter to the Tribunal, rather than proceeding to determine the application himself, was that fuller material might be available to the Tribunal (at [95]). It was therefore a matter of some surprise to me that the applicant's original written submissions continued to rely, as the applicant's only evidence, on the two affidavits filed in the appeal. Consistent with the statutory purpose of reviews by the Tribunal 'to produce the correct and preferable decision at the time of the decision upon the review' (s 27(2) of the SAT Act), I caused a directions hearing to be listed on 18 June 2009 in order to raise the matter with the applicant.
14 In the event, directions were made for the applicant to file and serve
any further evidence relied upon in respect of the preliminary issue and any supplementary written submission, and for the respondent to file and serve any supplementary submissions in reply. The applicant took the opportunity of filing a further affidavit, an affidavit of Adrian Kyle Theseira sworn 23 June 2009 (second Theseira affidavit), on 24 June 2009. On 2 July 2009, the respondent filed what is described as a 'response to the affidavit of Adrian Kyle Theseira regarding his delegation from the Commissioner'. On 7 July 2009, the applicant filed a short submission in reply to that response.
The second Theseira affidavit included:
4.
In particular, I refer to paragraph 9 of my first affidavit and, by way of clarification, say that at the time of my visits to the respondent's premises in April and May 2007 (the Visits), there was no instrument in existence which gave me or which purported to give me the authority to exercise the powers of entry conferred on the Commissioner for Consumer Protection (the Commissioner) by s 54 of the Credit (Administration) Act 1984 (CA Act)
5.
Furthermore, at the time of the Visits, there was no instrument in existence pursuant to s 53A of the CA Act which delegated to me or which purported to delegate to me the Commissioner's powers under the CA Act.
6.
At the time of the Visits, I held a valid instrument of delegation executed by the Commissioner pursuant to s 23 of the
[2008] WASAT 168 (S)
Consumer Affairs Act 1971 (CAA) which delegated to me the performance of the Commissioner's functions, duties and powers under sections 19, 20, 21 and 22 of the CAA. Section 19 of the CAA confers various powers on the Commissioner including the power to enter and search premises and to inspect and copy documents. Section 23 of the CAA enables the Commissioner to delegate those powers.
7. It is my understanding that, at the time I commenced employment with the Department in May 2006, s 54(1) of the CA Act provided that the Commissioner or any other person authorised in writing in that behalf by the Commissioner or an authorised officer appointed under the CAA was empowered to enter the premises of a credit provider for the purposes of ascertaining whether the provisions of the cognate Acts (which includes the Consumer Credit (Western Australia) Code) had been complied with.
8. When carrying out the proactive compliance visits referred to in paragraph 3 above, myself and other members of our compliance team relied on our delegations under the CAA as giving us the necessary authority to enter the premises of credit providers and to inspect and copy documents held at those premises pursuant to s 54(1) of the CA Act.
9. I am now aware that in around July 2006, s 54(1) of the CA Act was amended to delete the words "an authorised officer appointed under the Consumer Affairs Act 1971".
10. At the time that I carried out the Visits to the respondent's premises in April and May 2007, I was not aware that the CA Act had been amended to remove the authority of an authorised officer under the CAA to exercise the Commissioner's powers of entry under s 54 of the CA Act.
11. As stated in my first affidavit, it was not until around late November 2008 that it was brought to my attention that the Visits were unlawful. This occurred as a result of the audit referred to in paragraph 8 of my first affidavit.
12. The audit referred to in paragraph 8 of my first affidavit came about as a result of a Department officer having raised the issue of the use of powers under the CA Act in early November 2008.
For consistency, I will adopt Mr Theseira's identifier for the
Consumer Affairs Act 1971 (WA) of 'CAA'.
17 In its response, the applicant questioned the veracity of Mr Theseira's
claim that at the time of the visits he held a valid instrument of delegation under s 23 of the CAA. He did so on the bases that no written delegation
[2008] WASAT 168 (S)
was produced and before any entry onto premises by the holder of such an instrument was possible and a warrant was required. The respondent also queried [7] and [8] of the second Theseira affidavit, suggesting that the deponent is still confused as to the actual delegation requirements required under both the CAA and the 'Credit Act 1984' (presumably a reference to the CA Act). Finally, the respondent challenged the statement at [9] of the second Theseira affidavit that in July 2006, s 54(1) of the CA Act was amended in the way described, suggesting that no such amendment was made, the only amendment being to insert s 53A into the CA Act. Given this alleged error, the respondent discounted the contents of [10] of the second Theseira affidavit.
18 To pick up the final response first, the Machinery of Government (Miscellaneous Amendments) Act 2006 (WA) effected both of the amendments alluded to. That is, it inserted s 53A into the CA Act and it removed from s 54(1) of the CA Act the words 'an authorised officer appointed under the Consumer Affairs Act 1971'. The effect of these amendments for current purposes was twofold. They removed the pre-existing qualification for the exercise of the s 54 power of entry of being an authorised officer appointed under the CAA altogether, and vested in the Commissioner the s 53A delegation power. This delegation power extends to powers and duties of the Commissioner under any of 'cognate Acts', being a reference to the CA Act, the CAA and the Code: s 4 of the CA Act. In accordance with principles of statutory interpretation, subsequent to these amendments, the sole repository of the Commissioner's power to delegate the s 54 power of entry became s 53A of the CA Act; s 23 of the CAA could no longer be regarded as providing for such a power, despite the broad wording found in that provision.
19 Prior to the amendment to s 54 of the CA Act, it was 'authorised
officer(s)' under the CAA who were permitted to exercise the power of entry. There might be a question as to whether this expression included officers with valid delegations from the Commissioner pursuant to s 23 of the CAA. Given the distinction in the CAA between delegation by the Commissioner under s 23 and authorisation under s 23X in favour of 'any person approved by the Minister to carry out investigations for the purposes of this Part', I tend to think, without expressing a concluded view, that 'delegated officers' are a different class from 'authorised officers' under the CAA. If this is correct, it would mean that the compliance officers were never empowered by s 54 of the CA Act to enter premises and undertake the other actions referred to in s 54, either before or after the legislative amendments (emphasis added). And, as the respondent has pointed out, it was not open for them to do so directly
[2008] WASAT 168 (S)
under their CAA delegations, as it would have been necessary for warrants to be obtained first: s 19(2) of the CAA. For the purposes of my reasoning which follows, I will assume that a lack of authority would have existed even before the legislative amendments.
Although, on the assumption I have made, the fact that the July 2006 legislative amendment did not come to, at least, Mr Theseira's attention until November 2008 does not explain the want of authority of the compliance officers in conducting the visits, it is necessary to consider the state of mind of those officers in assessing whether that want, and the consequential unlawfulness of their actions, could be described as the result of any deliberate or reckless act. Before doing so, I should comment on the query raised by the applicant about the veracity of Mr Theseira's claim to have held a valid instrument of delegation under s 23 of the CAA, in the absence of the written delegation being produced. Noting that the Tribunal is not bound by the laws of evidence (see s 32(2)(a) of the SAT Act), I am prepared to accept this claim (and also that the other compliance officers who visited the respondent's premises held similar delegations). I do so in light of my assumption, which, if correct, meant that the compliance officers' CAA delegations did not give rise to a s 54 power of entry in any event. I rely further on the fact that the want of authority was the subject of the voluntary admission by the applicant between the original decision of this Tribunal and the hearing in the appeal, and the candid explanations provided by the applicant's officers as to how it arose.
21 As stated in the second Theseira affidavit at [8], the compliance
officers regarded their delegations under the CAA as giving them the necessary authority to conduct the visits, by reason of the mistaken view taken by them that previously their delegations under the CAA authorised them to exercise the power of entry under s 54 of the CA Act. In my view, although regrettable, the stance of the compliance officers was not so blameworthy as to attract the epithet 'reckless' (and there is no suggestion of, nor do the facts support, any intentional circumvention of the law by the compliance officers). Even in its common meaning, recklessness connotes a lack of regard for consequences. The very course of events in the recent past, including the applicant apprising the Supreme Court, against its interest, of the want of authority issue, is indicative that the problem arose through a misapprehension about the legal effect of what on its face was a very wide delegation under the CAA, rather than any reckless disregard for whether or not the visits were legal. Once it was brought to the officers' attention that the delegation did not have the effect they thought it did, the appropriate action was taken.
[2008] WASAT 168 (S)
22 The conclusion I have reached in relation to the first of the Bunning factors is to concur with Simmonds J's provisional view that the factor tends against exclusion of the factual material, my conclusion being fortified by the clearer explanation for the unlawfulness which has now been provided.
Second Bunning factor: whether the unlawfulness bears upon the cogency of the matter unlawfully obtained
23 Although this was not a factor upon which the respondent has made
any submissions, it is necessary, in considering the exercise of the
Bunning discretion, for me to consider it.24 In the appeal decision, Simmonds J explained this factor in terms that
if the unlawfulness is (as I have found it to be) neither deliberate nor reckless, if the unlawfulness does not bear upon the cogency of the evidence obtained, and if other equally cogent evidence untainted by illegality is not available, the case for exclusion will be weaker. As I have said, it is common ground that there is no alternative evidence available for the application to succeed. Further, there is simply no suggestion that the illegality has affected the quality of the evidence obtained in any way. That being so, I support Simmonds J's conclusion that the second factor tends against exclusion of the factual material.
Third Bunning factor: the comparative seriousness of the offence charged and the unlawful conduct by the law enforcement authority
25 Simmonds J noted that this case is concerned with a liability to a
civil penalty under the Code rather than any offence, but that the factor
continues to be relevant.26 The respondent's written submission 'Response to Submissions by
the Department of Consumer and Employment', noted that the applicant is the agency responsible for regulation of the CA Act and that it is not unreasonable to expect that its management and compliance officers are aware of the need to act within the requirements of that Act. The submission also referred to the s 9 of the Public Sector Management Act 1994 (WA) (PSM Act), which requires that public sector bodies and employees comply with the provisions of any act governing their conduct, and that the sanctions for non-compliance, in the case of an employee, are as set out in s 80 of the PSM Act. The submission points out that the application is not in respect of any 'criminal offences', which, in considering the balancing exercise with which this factor is concerned,
[2008] WASAT 168 (S)
would militate against admitting the evidence obtained on the unlawful
visits.
Simmonds J's provisional assessment of the third factor is set out at
[83] and [84] of the appeal decision as follows:
In the present case, the Credit Code identifies the obligation in s 15(E) (together with other obligations such as that in s 15(D)) as a 'key requirement' (see s 100). It is only to contraventions of key requirements that the civil penalty provision s 102 applies. I consider those two features of the legislation to be indications of legislative 'concern' for the s 15(E) requirement.
Comparing this evaluation of the seriousness of the obligation created in the Credit Code s 15E with the seriousness of the unlawful conduct in obtaining the factual material, as best I can assess that conduct, I consider that, under the discretion referred to in Bunning, the present factor makes the case for exclusion of the factual material weaker.
28 Since the production of the applicant's evidence dealing with the
circumstances of the unauthorised visits, the relative absence of culpability of those concerned in the illegality on the part of the applicant has now been confirmed. I am therefore compelled to accept his Honour's provisional conclusion that the third Bunning factor makes the case for exclusion of the material obtained illegally weaker.
Fourth Bunning factor: whether the nature of the legislative concern is to restrict the conduct of the law enforcement authorities in question
Simmonds J in the appeal decision at [85] - [86] made the following observations regarding this factor:
… I understand this factor to call for an inquiry into whether evidence gathering by unlawful conduct is the central concern of the legislature, or something else is that concern, such as interference with personal liberty (see 80, Stephen and Aickin JJ).
In this case, evaluation of this factor is made more difficult than it otherwise would be, because the precise nature of the unlawfulness is not made clear, as I have explained. However, it seems to me that the requirements of CA Act s 53A and s 54 are directed more to matters of proper accountability within government than to evidence gathering without proper authorisation.
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30 The respondent sought to dispute his Honour's characterisation of the
main object of s 53A and s 54 of the CA Act. Its written submission on
the point stated:When read together, the two sections of the (CA Act) (s 53A and s 54) clearly show that there is a legislative requirement in place to ensure that Consumer Credit Compliance Officers operate within the Credit Code.
The fact that s 53A was introduced less than 3 years ago to re-enforce [sic] s 54 serves to emphasis [sic] the concern of the WA Legislative [sic] that enforcement of the Credit Act should operate within parameters of natural justice, equity and good conscience.
31 I must say that as a member of this Tribunal, I feel constrained to be
guided by Simmonds J's indication (albeit not forming part of the ratio decidendi of the appeal decision) concerning a particular legislative object. Although, as his Honour said, his evaluation of the factor was made difficult because the evidence before him did not enable identification of the precise nature of the unlawfulness, the statement by a Supreme Court judge on appeal from the original decision of this Tribunal of the purpose of particular statutory provisions having a particular bearing on the issues I must decide must be regarded by me as extremely persuasive, particularly as it was made expressly with a view to the Tribunal having regard to it: see appeal decision at [94].
32 I would also say, in response to the respondent's submissions, that
although it is true that the two sections of the CA Act referred to do indicate an intention that any officer exercising the powers vested by those provisions operate within the limitations of both the powers being exercised and the legal authority of the officers to exercise them, it might be said that is the case with any statutory discretion. It does not tend to displace his Honour's conclusion as to the main purpose with which the sections are concerned. Further, the respondent's reference to the recent introduction of s 53A of the CA Act is in my view misplaced. The effect of s 53A, rather than clarifying or reinforcing the requirements of s 54, is to provide for a broad power of delegation by the Commissioner similar to that which appears in the CAA. In doing so, it affords an alternative basis upon which an officer in the department might exercise the powers under s 54. The conduct by the compliance officers was at all times purportedly pursuant to s 54 of the CA Act, without any regard to s 53A (or, for that matter, a combination of s 23 and s 19 of the CAA).
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33 The conclusion that I have reached in relation to the fourth Bunning factor is to agree with Simmonds J's provisional assessment that it makes the case for exclusion of the illegally obtained material weaker.
34 In the overall assessment of the four Bunning factors, therefore, they point uniformly towards the exercise of the Tribunal's discretion to not exclude the material obtained as a result of the unauthorised visits to the respondent's premises. In the absence of any requirement to consider the statutory environment in which the Tribunal operates, this would be sufficient to determine the preliminary question in favour of admitting the material.
Effect of SAT Act framework
35 In the appeal decision, Simmonds J made reference to the possible
effect on the evidence question of the statutory framework under which the Tribunal is required to operate at [57] - [60], [70] - [71] and [95]. The principal provision for consideration in this regard is s 32(2)(b) of the SAT Act, although the respondent relies upon s 32(1) to support its case for exclusion.
Section 32(2) of the SAT Act provides:
The Evidence Act 1906 does not apply to the Tribunal’s proceedings and the Tribunal -
(a) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and (b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
37 According to the applicant, the principles of equity, good conscience
and the substantial merits of the case provide proper grounds for the Tribunal to allow the documentary material obtained on the unauthorised visits to be treated as evidence in these proceedings, given that obtaining of the material by the compliance officers was the result of what was described as 'an administrative oversight' rather than a deliberate disregard of the law.
38 The respondent's primary response document cavilled at the
description of the compliance officers' actions as resulting from 'an administrative oversight'. It also made reference to s 32(1) of the SAT Act, which obliges the Tribunal to apply the rules of natural justice,
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and to the obligations placed on officers by the PSM Act and the CC Act
referred to above.39 In my view, once it has been determined, on the application of the
principles guiding whether or not a court would admit illegally obtained evidence, that the evidence should be admitted, it is extremely difficult to argue that any of the SAT Act provisions dealing with how the Tribunal is to deal with evidence and how it is to act in reaching decisions might lead to the contrary conclusion. If anything, the SAT Act militates further against the exclusion of the illegally obtained material, by reason of the obligation imposed on the Tribunal by s 32(2)(b) to act according to equity, good conscience and the substantial merits of the case. Such an obligation reflects one of the main objectives of the Tribunal (set out in s 9 of the SAT Act) to review decisions fairly and in accordance to the substantial merits of the case. It is the substantial merits with which the Tribunal should be concerned, rather than outcomes which, to a greater or lesser degree, might be affected by the application of technical legal rules of admissibility of evidence and the like. The provisions of the SAT Act dealing with evidence, most notably s 32(2)(a), s 32(2)(b), s 32(3) and s 32(4), evince an intention to permit the reception of a wide range of evidence, including that which would be regarded as inadmissible under the rules of evidence. Significantly, the provisions to which I have referred do not readily give rise to the exclusion of evidence which a court would have admitted.
40 The highly critical view which the respondent takes of the applicant's
compliance officers, whilst understandable, overstates the degree of culpability involved. In any event, this is a matter dealt with squarely within the Bunning principles as part of the third factor, and does not give rise to an additional argument under any of the SAT Act provisions.
41 As for the respondent's reliance on s 32(1) of the SAT Act, no denial
of natural justice is involved with the admission of illegally obtained evidence, provided that the discretionary factors are given proper consideration. Even if they were not, the result would be an error in the exercise of the discretion, rather than any want of procedural fairness/natural justice.
42 I consider that whilst the ultimate assessment based on the Bunning factors against excluding the unlawfully obtained material is determinative of the preliminary issue, this outcome is further supported when regard is had to the framework provided by the SAT Act for the Tribunal's decision-making task.
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Conclusion and Orders
For the above reasons, the preliminary issue shall be determined in
the negative.
44 In light of the Tribunal's decision, it will be necessary to program the
application for final determination. To this end, the matter will be listed
for directions.
The Tribunal orders:
1. By way of determination of the preliminary issue, the information and documents relied upon by the applicant which were obtained unlawfully shall not be excluded. 2. The proceedings are adjourned to a further directions hearing on 30 July 2009.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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