Guo and Minister for Immigration and Border Protection (Migration) - [2016] AATA 901

Guo and Minister for Immigration and Border Protection (Migration) [2016] AATA 901 (27 September 2016)

Division	GENERAL DIVISION
File Number(s)	2014/6365; 2015/1261
Re	Qi Guang Guo (No 3)
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT
And	New South Wales Crime Commission New South Wales Commissioner of Police
NON-PARTIES

DECISION

Tribunal	Justice Duncan Kerr, President Prof Robert Deutsch, Deputy President
Date	27 September 2016
Date of written reasons	14 November 2016
Place	Sydney

The Tribunal rejects the Applicant’s objections to the tender of the witness statements of Mr O’Connor.

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Justice D Kerr, President

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Prof R Deutsch, Deputy President

CATCHWORDS

STATUTORY CONSTRUCTION – Applicant’s objection to tender of a witness’ statement under s 80 of the New South Wales Crime Commission Act 2012 (NSW) – applicant submitted the witness’ earlier dissemination was made in breach of s 29 of the New South Wales Crime Commission Act 1985 (NSW) – where no dispute that the witness currently holds a delegation made under s 13(a) – dissemination properly authorised by s 13(a) taking into account ordinary meaning of “intelligence” – statutory construction on the NSW Crime Commission’s power to authorise dissemination under s 13(a) cannot be read down to materials capable of disclosure under s 10(1)(c) – whether s 80(3) is a bar to the tender of a statement made on a voluntary basis – even if evidence was obtained improperly or illegally the Tribunal’s discretion to admit evidence – applicant’s objection rejected

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 40A

Commonwealth Constitution s 109

Criminal Assets Recovery Act 1990 (NSW)

Evidence Act 1995 (Cth) s 138

Interpretation Act 1987 (NSW) s 12

New South Wales Crime Commission Act 2012 (NSW) ss 10, 11, 12, 13, 14, 15, 80

New South Wales Crime Commission Act 1985 (NSW) s 29

CASES

Commissioner of Taxation v Donaghue (2015) 237 FCR 316

Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146

Denlay v Commissioner of Taxation (2011) 193 FCR 412

P v P (1994) 181 CLR 583

Pearce v Button (1985) 8 FCR 388

Robinson v Woolworths (2005) 64 NSWLR 612

SECONDARY MATERIALS

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

REASONS FOR DECISION

The Hon Justice D Kerr, President
Prof R Deutsch, Deputy President

27 September 2016

These are reasons for the Tribunal’s oral ruling[1] rejecting the Applicant’s submission that the Tribunal is prohibited from admitting into evidence a statement made by, and permitting examination and cross-examination of, a witness whose testimony will relate to information obtained in the course of his employment with the New South Wales Crime Commission (the Commission).

BACKGROUND

[1] Revised for expression.

The challenged evidence

It is uncontentious that the Applicant, Mr Guo, has been convicted of a small number of crimes of varying degrees of seriousness since his arrival in Australia. Whether those convictions themselves might justify this Tribunal concluding that the Applicant is not of good character need not be considered at this point. That is because the Respondent, inter alia, also wishes to make available to the Tribunal, and to urge it to rely upon, information provided by the Commission. That information contains assertions that the Applicant is a far more serious criminal than those relatively few convictions, over the course of more than 27 years, might suggest.
Accordingly the Respondent, the Minister for Immigration and Border Protection, proposes to call Mr O’Connor of the Commission as a witness in these proceedings and ask him to adopt his statement dated 27 April 2015. Mr O’Connor is currently the Director of Criminal Investigations with the Commission. Mr Knowles, counsel for the Respondent, seeks to rely on Mr O’Connor’s evidence in support of the Respondent’s contention that the Applicant is not of good character. On the premise that Mr O’Connor will adopt his statement of 27 April 2015, Mr Knowles has advised the Tribunal that he intends to make him available for cross-examination.[2]
[2] Submissions of the Respondent on the Application to Set Aside a Summons dated 5 August 2015 [39].
Mr James QC and Mr King, for the Applicant, object both to the Tribunal receiving Mr O’Connor’s statement and to his giving oral testimony. Their objection is based on s 80 of the New South Wales Crime Commission Act 2012 (NSW) (the Crime Commission Act).
Mr Knowles has informed the Tribunal that he also intends to ask Mr O’Connor about certain correspondence dated 4 August 1995, which on its face appears to have been sent on behalf of the Commission (as then constituted) to the Secretary of the Department of Immigration.[3] A similar objection has been made by the Applicant in respect of that document.
[3] Document G8.

CRIME COMMISSION ACT SECTION 80

Section 80 of the Crime Commission Act prohibits, inter alia, any person engaged or formerly engaged by the Commission divulging, directly or indirectly, any information acquired in the course of those functions.
It is not in dispute that Mr O’Connor is a person to whom s 80 applies.
A breach of the prohibition in s 80 is an offence under s 80(2). However, the subsection qualifies its operation to exclude actions “for the purposes of this Act or otherwise in connection with the exercise of the person’s functions under this Act”. Division 2, ‘Functions of Commission’ outlines principal and other functions of the Commission (ss 10 to 15).
Section 80(3) additionally provides that a person cannot be required either (a) “to produce in any court any document or other thing that has come into the person’s possession, custody or control” because of their functions under the Crime Commission Act or (b) “to divulge or communicate to any court any matter or thing that has come to the person’s notice in the exercise” of those functions. Section 80(6) defines “court” such that for the purpose of the section, a reference to a court includes a tribunal.

SUBMISSIONS

Mr James and Mr King submit that Mr O’Connor would breach s 80(2) if he were to give the evidence that Mr Knowles now wishes to adduce from him.
In their written submissions counsel draw the Tribunal’s attention to the fact that certain information in Mr O’Connor’s statement of 27 April 2015 contained in Annexure ‘A’ is a copy of an earlier document dated 3 November 1997 sent to the Department of Immigration. They contend that its sending involved a serious breach of s 29 of the legislation[4] which at that time governed the operations of the Commission because at that point in time Mr O’Connor did not hold a delegation under s 7 permitting him to disclose that information. They note that in 1997 Mr O’Connor was employed as a detective of Task Force 3 of the Drug Enforcement Agency (DEA), which gave investigation assistance to the Commission. Their written submissions refer to the Commission’s Annual Reports which at the relevant time refer to Mr O’Connor as one of the DEA case officers assisting its investigations.[5] They submit that as a member of the DEA Mr O’Connor could not have authorised a dissemination of the Commission’s information. They submit that the Commission’s records disclose no lawful authority having been given for it.
[4] New South Wales Crime Commission Act 1985 (NSW).
[5] Submissions of the Applicant on the Procedural Issue dated 14 July 2015 [38].
However, Mr James and Mr King accept that at all material times from 24 July 2014 to the present, Mr O’Connor has held a lawful delegation from the Commission to disseminate “intelligence and information” to, inter alia, “persons or bodies of the Commonwealth”. Nor do they suggest that the Tribunal is not a body of the Commonwealth.
But in respect of that delegation, they submit, the power conferred by s 13 permitting the dissemination of intelligence and information to a body of the Commonwealth is not freestanding.
By necessary implication, they submit, what may be lawfully disseminated by Mr O’Connor, is limited by s 10(1)(c). For that reason it applies only to intelligence and information supplied for the purpose of it being used as evidence in criminal prosecutions. The information contained in Mr O’Connor’s statements which he will be asked to adopt is not of that character. That being so, Mr James and Mr King submit, the Tribunal is obliged to reject their tender.
Mr Knowles submits that the reasoning for the Applicant is flawed. He submits that Mr O’Connor’s statements which will be adopted as part of his evidence-in-chief will be offered on a voluntary basis (notwithstanding Mr O’Connor’s attendance under summons). Mr O’Connor’s statement of 27 April 2015 expressly indicates it was voluntarily supplied to the Respondent and that it was intended by him to be submitted as evidence in these proceedings. For that reason s 80(3), which applies to prohibit compelled testimony, can have no operation to bar its reception in the Tribunal. Mr Knowles further contends: “[i]t could not be suggested Mr O’Connor being required to answer questions in cross-examination would, somehow, trigger the application of ss 80(3) or 80(4)”.[6]
[6] Submissions of the Respondent on the Application to Set Aside a Summons dated 5 August 2015 [39].
Mr Knowles in his written submissions also submits that as a matter of law, s 80 of the Crime Commission Act cannot prevent the Tribunal compelling a witness giving evidence by issuing a summons. That is because on the proper construction of s 80(3), the Tribunal is not a “court” within the meaning of that section. Mr Knowles submits, consistently with ordinary principles of statutory construction and s 12(1) of the Interpretation Act 1987 (NSW), the term “court” in s 80 should be understood as limited to a reference to the courts and tribunals of NSW.[7]
[7] Submissions of the Respondent on the Application to Set Aside a Summons dated 5 August 2015 [31].
If the Tribunal was to reject those submissions, Mr Knowles then concedes that there would be a plain inconsistency between ss 80(2) and (3) and s 40A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), in that the former provisions purport to limit the circumstances in which the Tribunal can require a person to give evidence or produce documents as is authorised by the latter provision. Such inconsistency is to be resolved by the operation of the Commonwealth Constitution s 109. Section 80 of the Crime Commission Act accordingly would be invalid to the extent of its inconsistency with Commonwealth law.[8]
[8] Submissions of the Respondent on the Application to Set Aside a Summons dated 5 August 2015 [52]-[53].
Mr James agrees with Mr Knowles to the extent that s 80 would be invalid for inconsistency, assuming that the Tribunal was to reject the Applicant’s primary submission.
There is a third position.
As is referred to in Guo and Minister for Immigration and Border Protection (Migration) [2016] AATA 125 (24 February 2016) (Guo No 1), the Tribunal granted leave both to the Commission and the New South Wales Commissioner of Police (the Commissioner) to be represented by counsel for the limited purpose of making submissions and/or raising objections as to the reception of evidence to which either had an interest. Ms Sharp, counsel at the time representing the Commission and the Commissioner, made written submissions on behalf of the Commission in respect of the Applicant’s objection grounded upon s 80 of the Crime Commission Act. Ms Sharp challenged both the Applicant’s and the Respondent’s submissions as to the construction of s 80(3).
Ms Sharp submitted that the Tribunal, notwithstanding it is a Commonwealth body, is a “court” for the purpose of that section. Ms Sharp submitted that the presumption against the extra-territorial operation of a statute is only a rule of construction and can be displaced.[9] It necessarily has been displaced by the scheme of the Crime Commission Act. To impose a territorial limit so as to read the term “court” in s 80(3) as applying only to NSW courts and tribunals would undermine the clear purpose of s 80 to protect the confidentiality of information. Accordingly the Tribunal cannot compel a witness, to whom s 80 applies, to produce “any document or other thing” or to give evidence in relation to their functions under the Crime Commission Act.[10]
[9] Submissions in Reply of the New South Wales Crime Commission dated 21 August 2015 [20]-[22].
[10] Submissions in Reply of the New South Wales Crime Commission dated 21 August 2015 [20]-[22].
Ms Sharp submitted such a construction would not give rise to any relevant constitutional inconsistency between a NSW and a Commonwealth law. In accordance with the rule of statutory construction set out by Mason CJ, Deane, Toohey and Gaudron JJ in P v P (1994) 181 CLR 583, s 40A(1) of the AAT Act should be read down so as not to require the doing of an act which is contrary to State criminal laws.[11]
[11] Submissions in Reply of the New South Wales Crime Commission dated 21 August 2015 [35]-[37].
However, in the specific circumstances of the present matter, Ms Sharp submitted that no question of conflict with s 80 could arise with respect to the Tribunal receiving in evidence Mr O’Connor’s statement of 27 April 2015, including Annexure ‘A’. A presumption of regularity applied in respect of his entitlement to have made the earlier disclosures, and there was no warrant to read down Mr O’Connor’s current delegation to make disseminations under s 13 of the Crime Commission Act only to material to be used in criminal proceedings. Thus, she submitted, the Applicant was wrong to suggest that the information was other than lawfully disseminated, as permitted by delegation under the former and present Crime Commission Acts.[12]

[12] Submissions of the New South Wales Crime Commission on Issues of Delegation and Authority dated 12 November 2015 [9]-[10], [21].

CONSIDERATION

It is no longer in dispute that as at 27 April 2015, and at all material times to the present, Mr O’Connor, in his capacity as Director of Criminal Investigations of the Crime Commission, is and was the holder of a delegation under s 15 of the Crime Commission Act. That delegation him to “disseminate intelligence and information to such persons or bodies of the Commonwealth,” inter alia, as considered appropriate (pursuant to s 13). The delegation was conferred on him on 24 July 2013 by the Commissioner of the New South Wales Crime Commission, Mr Hastings QC. His delegation continues “for so long as [he] holds that position or until this delegation is revoked or suspended”.[13] There is no suggestion that Mr O’Connor’s delegation has been revoked or suspended, or that he has ceased to hold the position referred to.
[13] Commission’s Bundle, undated, 60.
We therefore do not need to decide whether Mr O’Connor’s earlier dissemination of 3 November 1997 was similarly authorised. If that matter had required determination we would have had to give attention to the submissions of the parties and the Commission regarding the application or otherwise of the doctrine of presumption of regularity to circumstances in which the documentary record appears to be incomplete. In our opinion, however, that question is immaterial.
Subject to the proposition advanced by the Applicant that Mr O’Connor’s delegation must be read as restricted to the dissemination of information and intelligence for the purpose of it being used in criminal proceedings, nothing now prevents Mr O’Connor within the scope of his delegation voluntarily disclosing the information contained in his previous correspondence to this Tribunal.
Thus, subject to the question of the scope of his delegation, even if the Tribunal was to accept that the earlier dissemination was made without authority, that conclusion would not prevent the same information now being lawfully provided to the Tribunal by Mr O’Connor as has been foreshadowed.
We therefore turn to the submission that Mr O’Connor’s delegated authority to disseminate “intelligence and information”, properly understood, permits dissemination only of that intelligence and information for the function of it being used as evidence in criminal prosecutions. That submission has a fundamental flaw.
The Applicant’s submission that the terms of s 10(1)(c) imply a limit to the scope of s 13, such that its ordinary meaning is displaced, can find no sound footing in the structure of the Crime Commission Act.
Division 2 of the Crime Commission Act, ‘Functions of Commission’ is comprised of 5 sections (ss 10 to 15).
Section 10 lists the “principal functions of the Commission”. Included by s 10(1)(c) as one of the principle functions of the Commission is “to furnish evidence obtained in the course of its investigations (being evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth or another State or Territory) to the Attorney General or to the appropriate authority in the jurisdiction concerned...”.
Under s 11 the Commission also “may exercise a function conferred or imposed on it by the Criminal Assets Recovery Act 1990”.
Section 12 is headed ‘Information and reports with respect to government agencies and members of government agencies’. Section 12 authorises the Commission to report certain information to other agencies of the State of New South Wales.
Headed ‘Liaison with other bodies’, s 13 confers a further function on the Commission. That function is the dissemination of “intelligence and information” “to such persons or bodies of the Commonwealth, the State or another State or Territory or country (including any task force and any member of a task force) as the Commission thinks appropriate…”.
Section 14, headed ‘Incidental powers of Commission’, confers a wide incidental power on the Commission “to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions”.
In our view each of ss 11, 12, and 13 confer a further, separate, and distinct function upon the Commission which it is authorised to undertake in addition to the ‘principal functions’ conferred upon it by s 10. There is nothing in the terms of the Act read as a whole, the express language of ss 11, 12 and 13, or statements in the parliamentary record to suggest that those further functions were conferred subject to the implied limitation drawn from s 10 as contended for by the Applicant.
The ordinary meaning of the word “intelligence”, when read in a law enforcement context, is entirely inconsistent with that conclusion. In the context of law enforcement, we are satisfied that the word “intelligence” in s 13 is used as a noun to encompass information that points towards a conclusion, but which cannot, either for legal or practical reasons such as threats, risk to informants, or to the success of other operations, be adduced as evidence admissible in criminal proceedings.[14] Reading the Commission’s power to disseminate intelligence as limited to the dissemination of evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth or another State or Territory would be absurd.
[14] For a discussion on the definition of “criminal intelligence”, see generally the Parliamentary Joint Committee on Law Enforcement, ‘Inquiry into the gathering and use of criminal intelligence’ (2013).
We therefore accept Ms Sharp’s submission that there is no reason to read down Mr O’Connor’s delegation to make disseminations under s 13 of the Crime Commission Act as limited to materials capable of disclosure under s 10(1)(c).
Once it is accepted that Mr O’Connor, in giving evidence to the Tribunal, will be acting within his delegated authority to disseminate information and intelligence to a body of the Commonwealth for purposes envisioned by s 13 of the Crime Commission Act, the prohibitions otherwise prohibiting the release of such information contained in s 80 have no application. Section 80(2) excludes disseminations made “for the purposes of this Act or otherwise in connection with the exercise of the person’s functions under this Act”.

There will be no violation of s 80(3) of the Crime Commission Act because, as Mr Knowles submits, (and the Tribunal finds) the material before the Tribunal establishes that Mr O’Connor’s proposed evidence will be voluntarily supplied. We accept the Respondent’s submission that Mr O’Connor’s evidence-in-chief will be given on a similar voluntary basis notwithstanding his attendance under summons.
We further accept, as is submitted for the Respondent, it cannot be suggested that Mr O’Connor being asked to answer questions in cross-examination in respect of a volunteered statement would, in itself, somehow, trigger the application of ss 80(3) or (4). Therefore s 80(3) of the Crime Commission Act, assuming its application to the Tribunal, would not operate to bar the tender of Mr O’Connor’s statement in the Tribunal.
Accordingly we need not decide whether the reference to a “court” in s 80 of the Crime Commission Act applies only to the courts and tribunals of New South Wales or extends, as Ms Sharp submits, to this Tribunal.
Unless we are required to by the further course of these proceedings, we think it unnecessary and unwise to say anything addressing the issues of statutory construction and constitutional validity which might then be in issue.
Putting aside the issues referred to in [41] above, even if we are wrong regarding the scope of Mr O’Connor’s delegation such a conclusion would still not require the Tribunal to reject Mr O’Connor’s evidence.
On that assumption, Mr O’Connor and the Respondent will have misapprehended the limits of Mr O’Connor’s delegation to disseminate information and intelligence. on that assumption the evidence to which objection has been made will be adduced in contravention of a law made by the NSW Parliament.
However, there is nothing to suggest bad faith in the conduct of either Mr O’Connor or the Respondent.
The Tribunal does not want to trivialise the underlying issue; a misunderstanding by an officer of the Commission of the law limiting what he may disclose is not an insignificant matter. However, neither the courts, nor the Tribunal, are subject to an absolute rule requiring them to reject in every case, and whatever the circumstances, evidence obtained improperly or in contravention of an Australian law.
The position in federal and New South Wales courts is governed by the Evidence Act 1995 (Cth) (the Evidence Act) and its state counterpart. Section 138 provides that evidence obtained improperly or in contravention of an Australian law or in consequence of such a breach is not to be admitted, unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in the way it has been obtained.
The Tribunal is not bound by those provisions. Moreover we are of the view that they cannot be applied by simple analogy to an administrative body such as the Administrative Appeals Tribunal (AAT).
Whether otherwise probative evidence should be excluded by the Tribunal must be decided on a principled basis having regard to the AAT’s review jurisdiction in question. In the ordinary course the AAT reviews decisions of ministers and government agencies. The Tribunal ‘stands in the shoes of the decision maker’ with the power to make a substitute decision. In doing so it may exercise all of the powers and discretions open to the original decision maker.
We note that the Full Court of the Federal Court, Keane CJ, Dowsett and Reeves JJ in Denlay v Commissioner of Taxation (2011) 193 FCR 412 at [81]-[82], rejected the contention that the Commissioner of Taxation could not rely on evidence (in that case financial data) alleged to have been misappropriated from a Liechtenstein bank to make an assessment. (See also Commissioner of Taxation v Donaghue (2015) 237 FCR 316 per Kenny and Perram J at [74].) We discern no reason why the Minister and/or his delegates would not be entitled to have regard to information volunteered to them by the NSW law enforcement agencies relevant to the exercise of their powers. If the primary decision maker would be entitled to, and properly could, take into account such evidence, absent compelling reasons, so too is the Tribunal.
For that reason we are of the view it would be wrong to suggest that the AAT is obliged to exclude this otherwise probative evidence.
We do however accept the Tribunal could exclude evidence obtained as a result of conscious maladministration (see Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146).
It is not necessary for the purpose of these reasons to delineate the outer bounds beyond that circumstance where the power might be exercised. It is sufficient to state that we have not identified any factor of impropriety or unfairness which would require us to explore those limits.
Applying what we think to be the correct principles, the objections made on behalf of the Applicant must be overruled.
There is nothing to suggest that the Respondent should not have had regard to, or should not have reached conclusions based on, the information supplied to him by the Commission. There was no conscious maladministration on the Respondent’s part; there was nothing on the face of the materials sent to the Respondent even to hint at a want of authority in its dissemination.
Even assuming there to be a wider power to exclude evidence obtained improperly or in contravention of an Australian law or in consequence of such a breach, we have reached the conclusion that it should not be exercised in the specific facts of this review.
In Pearce v Button (1985) 8 FCR 388 Pincus J, while doubting that at common law there was any discretion to exclude illegally obtained evidence in civil proceedings, on the basis that it could not be unfair to the Applicant to assume otherwise, considered the matter on the contrary basis.
Thus even if, contrary to our concluded view, the Tribunal has a wider discretion to exclude evidence obtained improperly or in contravention of a law, having regard by analogy to the matters (non-exhaustively) listed in s 138(3) of the Evidence Act, which we understand in so far as is relevant (Robinson v Woolworths (2005) 64 NSWLR 612 per Basten J at [16]-[20]) was not intended to do anything other than reflect the common law but to clarify that it extended to civil proceedings, we would still admit Mr O’Connor’s evidence.
While the probative value of Mr O’Connor’s evidence is in contest, its importance in these proceedings is substantial. His statements which are proposed to be adduced as evidence are directly relevant to a matter of central significance in issue before the Tribunal.
We are satisfied that Mr O’Connor’s assumed contravention, an unauthorised disclosure by him of information subject to confidentiality possessed by the Commission to the Respondent, involved no moral shortfall or knowing violation on his part. There is no suggestion that the Respondent had any inkling of Mr O’Connor’s assumed want of authority. There was no conscious maladministration on the part of the Respondent.
It has not been suggested that the assumed contravention would be contrary to any right recognised by the International Covenant on Civil and Political Rights.[15] It remains open to the Applicant to report the alleged contravention to the oversight agencies which supervise the work of the Commission.
[15] Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
Further, if the information contained in Mr O’Connor’s statement was and is beyond the capacity of the Commission to lawfully disseminate under s 13 when read as limited by s 10(1)(c), it would be impossible to otherwise obtain it.
Having regard to those factors, we would have concluded that the desirability of admitting the evidence proposed to be adduced outweighs the undesirability of admitting it by reason of the way it has been obtained.

DECISION

We reject the objections made by Mr James and Mr King to the evidence from Mr O’Connor that Mr Knowles proposes to elicit.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

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Associate

Dated 14 November 2016

Date(s) of hearing	27 September 2016
Counsel for the Applicant	Mr G James SC with Mr J King
Solicitors for the Applicant	Ren Zhou Lawyers
Counsel for the Respondent	Mr P Knowles
Solicitors for the Respondent	Australian Government Solicitor
Counsel for the Non-Party	Mr Glover
Solicitors for the Non-Party	Crown Solicitor's Office