Guo and Minister for Immigration and Border Protection (Migration)
[2016] AATA 897
•26 September 2016
Guo and Minister for Immigration and Border Protection (Migration) [2016] AATA 897 (26 September 2016)
| Division | GENERAL DIVISION |
| File Number(s) | 2014/6365, 2015/1261 |
| Re | Qi Guang Guo (No 2) |
| APPLICANT | |
| And | Minister for Immigration and Border Protection |
| RESPONDENT | |
| New South Wales Crime Commission | |
| New South Wales Commissioner of Police | |
| NON-PARTIES |
DECISION
| Tribunal | Justice Duncan Kerr, President |
| Date | 26 September 2016 |
| Date of written reasons | 11 November 2016 |
| Place | Sydney |
The Tribunal rejects the objection advanced on the basis of public interest immunity made by the New South Wales Commissioner of Police.
..................[Sgd]......................................................
Justice D Kerr, President
..................[Sgd]......................................................
Prof R Deutsch, Deputy President
CATCHWORDS
PUBLIC INTEREST IMMUNITY – Application by a non-party that the Tribunal not permit a question in cross-examination to be answered on the basis of public interest immunity – principles of common law public interest immunity applying to oral evidence in the AAT – evidence about informants not excluded from the obligation of the AAT to balance the public interest in disclosure against the public interest in non-disclosure – capacity to protect the confidentiality of information not irrelevant to the balancing task – powers of AAT to make orders for confidentiality and to exclude the applicant and others from parts of a hearing involving evidence relating to informants and sensitive law enforcement methodologies – applicant and respondent submitting a fair hearing requires admission of objected to evidence – claim for public interest immunity rejected
LEGISLATION
Administrative Appeals Act 1975 (Cth) ss 36, 36B, 36D
CASES
Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104; 65 ALR 247
Alister v R (1984) 154 CLR 404
Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227
AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105
Cain v Glass (No 2) (1985) 3 NSWLR 230
Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140
Commissioner of Police, New South Wales v Guo [2016] FCAFC 62
Commonwealth v Northern Land Council (1993) 176 CLR 604; 112 ALR 409
Guo and Minister for Immigration and Border Protection [2016] AATA 125
Jackson v Wells (1985) 5 FCR 296
Jacobsen v Rogers (1995) 182 CLR 572
Jago v District Court of New South Wales (1989) 168 CLR 23
Jarvie v The Magistrates’ Court of Victoria [1995] 1 VR 84
Kanthal Australia Pty Ltd v Ministry for Industry, Technology and Commerce (1987) 14 FCR 90; 71 ALR 109
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; 31 ALR 666
Moore and Military Rehabilitation and Compensation Commission [2006] AATA 425
R V Fandakis [2002] NSWCCA 5
Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247
Sankey v Whitlam (1978) 142 CLR 1
State of Victoria v Brazel (2008) 19 VR 553
Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291; 61 ALR319
Telstra Corporation Limited v Australis Media Holdings Limited (unreported, Supreme Court of New South Wales, 3 December 1996)
Young v Quin (1985) 4 FCR 483; 59 ALR 225
Young, Special Minister of State v Quin (1984) 3 FCR 293; 56 ALR 168
REASONS FOR DECISION
The Hon Justice Duncan Kerr, President
Prof Robert Deutsch, Deputy President
11 November 2016
These are reasons for the Tribunal’s oral ruling[1] rejecting a claim of a non-party, the New South Wales Police Commissioner (Commissioner), for common law public interest immunity (PII) in respect of certain evidence sought to be adduced in cross-examination of a witness.
[1] Revised for expression.
BACKGROUND
The background to this ruling can be found in the Tribunal’s reasons in Guo and Minister for Immigration and Border Protection [2016] AATA 125 (Guo No 1).
Detective Inspector Cadden was called as a witness by counsel for the Respondent, Minister for Immigration and Border Protection, when this matter was listed for hearing in February of this year. In his evidence-in-chief Det Insp Cadden adopted the content of certain letters and documents he had authored. Those documents were received as evidence. Orders for non-disclosure have been made in respect of certain of those documents. Det Insp Cadden was then made available for cross-examination.
Det Insp Cadden was asked several questions by Mr James, as counsel for the Applicant, about the basis of his belief as stated in one of those documents that (a) a stabbing at the Chequers Health Centre had been at the direction of Mr Guo and (b) that Mr Guo had then sought to prevail on the victim not to complain of the incident.
Det Insp Cadden’s answer was that NSW Police had received the information that had led to him forming that belief from “registered informants” and “reliable sources".
Mr James then asked, “What did they say?”
Ms Sharp, counsel then representing the Commissioner by leave of the Tribunal, objected to that question. Ms Sharp submitted that an answer would go towards the identification of one or more police informants. She submitted that common law PII applied in the AAT. Ms Sharp cited Cain v Glass (No 2) (1985) 3 NSWLR 230 as authority for the proposition that common law PII required that information going to the identity of informants stood as a special class. Save in the case of a criminal trial, it must never be admitted as evidence.
On 24 February 2016 the Tribunal delivered reasons dismissing that objection, as follows (Guo No 1 at [89]-[91]):
… the Tribunal rejects the objection made by Ms Sharp in so far as it has been advanced on the premise that common law public interest immunity is available as a basis to reject the adducing of evidence in this Tribunal.
We are satisfied that the Tribunal, if it can permit the testing of the evidence of Detective Inspector Cadden while practically protecting any answers which might prejudice law enforcement, it should do so. That is not only because of obligations of procedural fairness (limited as we accept those obligations must necessarily be in the circumstances of this review) as it applies to the Applicant. It is also because of the inherent risk to the interests of the Respondent if we were to be persuaded by Mr James to give little or no regard to what then would be the entirely untestable propositions upon which Detective Inspector Cadden’s letter that asserts his belief that the Applicant was and remains a major figure in NSW organised crime is premised. The Tribunal does not merely ‘hold the ring’ between the parties. It may exercise its own inquisitorial powers in discharge of its public duty to reach the correct or preferable decision.
That is not to suggest that the interests of law enforcement, in the confidentiality of information relating to informers as referred to in the affidavit of support sworn by Assistant Commissioner of Police Mr Max Mitchell, should be given less than the most serious attention. It is simply to conclude that any protection of those interests must be secured by the Tribunal by reference to its statutory powers and duties under the AAT Act and not by reference to the common law.
Ms Sharp then advised the Tribunal that she had been instructed to seek judicial review of that decision. Cross-examination of Det Insp Cadden was suspended at that point.
In Commissioner of Police, New South Wales v Guo [2016] FCAFC 62 (Commissioner v Guo) a Full Court of the Federal Court of Australia concluded that the Tribunal had been in error when it had concluded that common law PII had been excluded in respect of answering questions during a Tribunal hearing.
The plurality (Robinson and Griffith JJ, with Collier J concurring) noted that s 36D(6) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) excludes the operation of “any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal.” This exclusion is subject to the entitlement of the Attorney-General of the Commonwealth and the Attorney-General of a State to invoke the alternative statutory protective regime provided for them respectively by ss 36 and 36B. However by contradistinction their Honours observed the provisions of s 36D(6) did not exclude the operation of those rules of law with respect to answering questions at a hearing.
Their Honours stated at [64]:
In our opinion, it is significant, in terms of the text and context provided by these provisions, that s 36 applies to the disclosure of information or the disclosure of any matter contained in a document, as does s 36B, but neither of those sections deals with answering questions at the hearing of a proceeding before the Tribunal. The sections which do deal with answering questions are s 36A in the case of the Commonwealth and s 36C in the case of a State. As may be seen, s 36D(6) has nothing to say to those provisions.
Reasoning from the proposition that the plurality of the High Court of Australia in Jacobsen v Rogers (1995) 182 CLR 572 had concluded that PII was a fundamental common law principle and not a mere rule of evidence, their Honours held that the doctrine could be excluded only by “words of irresistible clarity” (at [72], and see also Collier J in Commissioner v Guo at [9]-[16]).
Because s 36D(6) did not extend to answers to questions at a hearing of a proceeding before it, the Tribunal had been in error to conclude that common law PII had been excluded in so far as it may apply to Det Insp Cadden’s answer.
Det Insp Cadden’s cross-examination having resumed, the objection to the question set out at [6] above based on common law PII having been reiterated by Mr Glover now representing the Commissioner, the Tribunal must rule on that objection according to the law stated by the Full Court in Commissioner v Guo.
We should indicate at the outset that we reject the submission earlier advanced on behalf of the Commissioner by Ms Sharp that information going to the identity of informants stands as a special class which must never be admitted into evidence, save in the case of a criminal trial. We proceed on the basis that a balancing exercise is required; the Tribunal must weigh in the balance the public interest in disclosure against the public interest in non-disclosure before ruling.
That is in consequence of the plurality in Commissioner v Guo observing, at [76]:
We note that the parties to the application accepted the correctness of the decision of the Full Court in Australian Securities and Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; 169 FCR 227 at [23]-[24] where it was held that a balancing exercise was required even in a claim based on protecting an informer’s identity and that there was “no point in attempting categorisation [of the public interest] into different levels of importance”.
We take what Robertson and Griffith JJ observed at [76] as endorsing the reasoning of the Full Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 (P Dawson Nominees). There is nothing to suggest they doubted any aspect of its authority. This Tribunal is therefore bound to also follow the considered reasoning of the Full Court in P Dawson Nominees.
THE EVIDENCE
The evidence in support of the Commissioner’s claim of PII, in respect of evidence to be given orally by Det Insp Cadden, is contained in an affidavit of Assistant Commissioner Mitchell APM, NSW Police, dated 22 February 2016, and is made under the authority of the NSW Commissioner of Police. Asst Comm Mitchell includes as annexures to his affidavit:[2]
(i)a report to the Department of Immigration, Multicultural and Indigenous Affairs prepared by Det Insp Cadden, dated 6 April 2004;
(ii)a witness statement of Inspector Armstrong dated 28 April 2015 with annexures;
(iii)three documents prepared by Mr O’Connor - a witness statement dated 27 April 2015 and part of an annexure to that statement so far as it comprises his 3 November 1997 statement; a letter to Ms Baumhammer at the Department of Immigration and Ethnic Affairs dated 21 August 1995; and a document, dated 15 February 1996, entitled "Summary of Information with the New South Wales Crime Commission and the New South Wales Drug Enforcement Agency Relating to the Criminal Associates” of the Applicant.
[2] At [4] of the affidavit.
After referring to those various annexures, Asst Comm Mitchell deposed that he was concerned that certain questions may be asked of Det Insp Cadden which would seek to elicit information about the sources of information or the confidential methodologies employed by NSW Police in obtaining that and other such information.[3]
[3] At [12] of the affidavit.
Asst Comm Mitchell deposed to and explained the importance of protecting the confidentially of sources and informants for effective policing.[4] He further deposed that secret investigative methodologies require similar protection.[5]
[4] At [13]-[18] of the affidavit.
[5] At [19]-[20] of the affidavit.
The affidavit of Asst Comm Mitchell’s was received as evidence in these proceedings without objection. He was not required for cross-examination. The Tribunal therefore proceeds on the basis that the propositions he asserts as follows are not in dispute:[6]
[6] At [13]-[20] of the affidavit.
Importance of protecting sources/informers
The use of sources/informers is an important part of police methodology. An important part of effective policing is the receipt, on a confidential basis, of information and assistance from persons who have knowledge of, or are involved in, criminal activity and/or those who associate with criminals. If such persons are placed at risk (and the mere suggestion of their status as informers or possible informers places them at risk) then the supply of such information and assistance would diminish or cease. This would undermine the ability of police to investigate criminal activity.
The use of sources/informers is a highly effective tool in the investigation and disruption of criminal activity and the gathering of evidence. If the use sources/informers were compromised by their identities becoming known, and police could no longer rely on their assistance, it would hamper the ability of police to prevent and investigate crime.
The use of sources/informers is an important aspect of many police investigations, especially investigations of serious criminal activity. If police were not able to utilise confidential sources, it would result in there being:
(a) numerous serious crimes in which perpetrators could not be identified or could not be prosecuted due to insufficient evidence; and
(b) numerous serious criminal activities that would go undisrupted and those involved would not be identified and could not be prosecuted due to insufficient evidence.
It is essential that sources/informers feel assured that everything legitimately possible is done to ensure that their true identity and status as a source is kept confidential, or, if that is not possible for some reason, that any exposure is kept to an absolute minimum.
As sources/informers often give evidence that secures the conviction of accused persons or which enables police to disrupt criminal activities, their assistance to police may place them at risk of harm from retribution from or on behalf of accused persons or those associated with criminal activities. The disclosure of their identities or the true extent of assistance they have provided to the police could put at risk their safety and the safety of people with whom they associate, including their family.
In some cases, the mere revelation of the existence of an informer or source can give rise to safety concerns for that source informer since in some cases where information is disclosed confirming the existence of an informer or source, there is a risk that because of the nature of the information provided, a link could be drawn as to the identity of the informer/source
Confidential police methodology
NSW Police employ many different methodologies in order to investigate suspected criminal activity, including various forms of surveillance.
There is a risk that if particular information was disclosed with respect to various forms of surveillance, the revelations would enable offenders to implement counter-surveillance that, in turn, could thwart or impede the ability of police to install and keep secret such devices in aid of police investigations.
PRELIMINARY OBSERVATIONS
In Young, Special Minister of State v Quin (1984) 3 FCR 293 Wilcox J, at 298, remarked on the inherent challenge that faces a court or tribunal when it is asked to make rulings in respect of oral evidence. His Honour said:
…as Gibbs ACJ pointed out in Sankey v Whitlam at 38, the principles relating to public interest immunity apply in relation to oral as well as to documentary evidence. In the case of oral evidence the problem is less easily resolved...In the case of evidence sought to be adduced in cross-examination the difficulty is more pronounced. The cross-examiner…will often be unable to say in advance what evidence is likely to emerge from his line of questions or to say where those answers are likely to take him in relation to further questions…In such a case the presiding officer has no alternative but to rule upon each disputed question as it arises. But, in just such a case, he may be especially assisted by an affidavit sworn by an informed responsible person which puts into context the matters likely to be canvassed and which will give him a basis for considering whether a particular question is likely to result in the disclosure of evidence which ought not, in the public interest, to be revealed.
In the present case it is not apparent to the Tribunal, even with the benefit of the affidavit of Asst Comm Mitchell, that a responsive answer by Det Insp Cadden to the question asked of him “what did they say?”, would necessarily identify, or assist in the identification of, one or more police informants.
However, for the purpose of this ruling the Tribunal accepts that the possibility it would is more than mere speculation. We are of the opinion that it would be sound for the Tribunal to proceed on the assumption that knowledge of what the informers said to Det Insp Cadden, as part of a mosaic of related detail, may well enable or assist an ill-intentioned person who had inside knowledge of (a) what had happened and (b) which individuals had had access to particular information, to identify one or more of the informants who had spoken to the police.
On the basis of that assumption we turn to the submissions.[7]
SUBMISSIONS BY THE PARTIES AND THE COMMISSIONER
[7] Unless otherwise indicated the passages quoted have been extracted from the written submissions filed on behalf of the Commissioner and the parties. Citations footnoted in those submissions are included in text. Some citations have been omitted. Emphasis is as in the original unless noted.
On behalf of the Commissioner Mr Glover submitted:[8]
[8] At [3]-[7].
When a claim for public interest immunity is made, the decision maker (in this case, the Tribunal) must embark on a three stage process. The Tribunal must:
a. determine whether there is a public interest in the non-disclosure of the information in question;
b. determine whether there is a public interest in the disclosure of the information in question; and
c. balance, or weigh, the public interest in disclosure against the public interest in non-disclosure, in order to decide whether or not the information should be admitted into evidence [citing Sankey v Whitlam (1978) 142 CLR 1 (Sankey) at 38-39; Alister v R (1984) 154 CLR 404 (Alister) at 412 and 434; Commonwealth v Northern Land Council (1993) 176 CLR 604 (NLC) at 616-617].
While a balancing exercise is required in the third stage, that does not mean the scales begin evenly balanced. On the contrary, it is clear that in respect of many subject areas the scales begin heavily tilted in favour of non-disclosure [citing NLC at 618].
The final step in this process – the balancing exercise – can only be taken when it appears that both aspects of the public interest require consideration i.e. when it appears, on the one hand, that damage would be done to the public interest by revealing the information the subject of the claim and, on the other hand, that the information is material evidence.
The Tribunal can then consider the nature of the injury likely to be suffered by disclosure and the evidentiary value and importance of the information in the particular litigation.
In adjudicating public interest immunity claims, courts recognise that a fair trial does not mean a perfect trial [citing Jarvie v The Magistrates’ Court of Victoria [1995] 1 VR 84]. Rather, the legal right of an accused to a fair trial, truly stated, ‘is a right to a trial as fair as the courts can make it’ [citing Jago v District Court of New South Wales (1989) 168 CLR 23 at 49; and Alister at 469]. The ‘fairness of trial’ principle involves fairness not only to the parties but also to other persons whose interests may be materially affected.
Although Mr Glover did not press the submission that had previously advanced by Ms Sharp that no balancing exercise was required in respect of evidence relating to informants, he submitted the scales should be accepted as heavily tilted in favour of non-disclosure, noting:[9]
Courts have consistently recognised the significant detriment to the public interest that could arise if information was revealed which could prejudice the continued provision of information to law enforcement agencies, as this is likely to reduce their effectiveness. A very high premium attaches to ensuring the ongoing supply of relevant information to such agencies. Relevant to any possible public interest immunity claim in this proceeding, is information supplied by confidential sources and information obtained by law enforcement methodologies.
Courts have repeatedly emphasised the special importance that attaches to protection of confidential sources of information, including, relevantly, ‘human sources’ or ‘police informers’. The rationale for such protection is to ensure that crime can be effectively investigated and prosecuted. The public interest on which the need to protect informers rests is also based in part on a regard for their personal safety, considered, not as a matter of expediency, but as an object in itself.
Similarly, it is against the public interest to reveal the methodology of law enforcement agencies as this may alert targets that they are the subject of law enforcement interest; and/or may allow targets of collection of intelligence to take countermeasures preventing further collection.
[9] At [8]-[10].
Disputing that mechanisms might be adopted by the Tribunal to limit the potential for disclosure of any such evidence Mr Glover submitted as follows:[10]
The mechanical question of whether there should be some limited disclosure only arises once the claim for immunity has been rejected [citing State of Victoria v Brazel (2008) 19 VR 553; [2008] VSCA 37 (Brazel)]. If a claim made in relation to oral evidence is upheld, that evidence is excluded, meaning the line of questioning is disallowed [citing Young v Quin (1985) 4 FCR 483 (Young v Quin)].
Even limited disclosure (for example, to legal representatives subject to undertakings) is not appropriate, as it gives rise to a risk of harm to the important public interests under consideration [citing Jackson v Wells (1985) 5 FCR 296 (Jackson v Wells) at 307-308 and Telstra Corporation Limited v Australis Media Holdings Limited (unreported, Supreme Court of New South Wales, 3 December 1996)]. The uncontrollable nature of oral evidence carries with it the substantial risk of inadvertent disclosure of the very information the claim is sought to protect. This situation can be contrasted with information contained in documents [citing Brazel], although even then Courts have been reluctant to permit limited disclosure (for example, by redacting names, occupations, roles), particularly in relation to the identity of informers [citing P Dawson Nominees].
[10] At [11]-[12].
On behalf of the Applicant, Mr James and Mr King submitted that the Tribunal should apply the following principles:[11]
First, “the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to so” [citing Sankey]. The same principles apply in relation to oral evidence. Justice Brennan framed “the relevant question” as follows: “would the public interest be best served and least injured … by compelling or by refusing to compel disclosure to the Court of the information”? [citing Alister at 453].
The Tribunal “must decide which aspect of the public interest predominates”. What must be balanced is “the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the [information] in the particular litigation”. While there is an interest in not disclosing information which, if disclosed, would hinder or affect proper policing or reveal the identity of a human source or police informer, the Full Federal Court noted the parties’ acceptance that “a balancing exercise [is] required even in a claim based on protecting an informer’s identity” [referring to Young v Quin]. The countervailing interests in this matter have been addressed in previous submissions.
Secondly, those common law principles must be applied within the statutory framework provided by the [AAT Act]. This Tribunal is not a Court and principles applicable to curial proceedings, such as open justice and the non-inquisitorial role of the judge, do not apply in the same way to this Tribunal.
The procedure of the Tribunal is within the discretion of the Tribunal (s 33(1)(a)), and the Tribunal may inform itself on any matter in such manner as it thinks appropriate (s 33(10(c)). The Tribunal may take evidence on oath or affirmation (s 40(1)(a)), may summon a person to appear before the Tribunal to give evidence (s 40(1)(a)), and may require a witness before the Tribunal to take an oath or to make an affirmation (s 40(2)(a)). The hearing of a proceeding before the Tribunal must be in public unless the Tribunal directs that a hearing or part of a hearing is to take place in private (s 35(1)-(2)). The Tribunal may give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that comprises evidence or otherwise relates to the proceeding (s 35(4)).
[11] At [4]-[7].
With respect to the question to which objection had been made Mr James and Mr King submitted:[12]
[12] At [10]-[16].
In considering whether Detective Inspector Cadden should be required to answer those questions, or any other questions to which objection may be taken on public interest immunity grounds, the Tribunal should proceed as follows:
a. First, does fairness require that the witness answer the question?
b. Secondly, having regard to the Tribunal’s capacity to determine its own procedure and inform itself of any matter in such manner as it thinks appropriate, is there a procedure that the Tribunal thinks is appropriate for informing itself of the witness’s answer to the question?
c. Thirdly, if the Tribunal were to adopt that procedure, would the public interest be “best served and least injured” by requiring or by refusing to require the witness to answer the question?
It is trite to say that the Tribunal cannot ignore the existence of its statutory powers and discretions in considering whether it should require a witness to answer a question. If the Tribunal can use those powers and discretions to avoid procedural unfairness while at the same time avoiding injury (or too great an injury) to the public interest, it must do so. The balancing exercise, informed by the Tribunal’s statutory objective (s 2A), must admit of that outcome. The Tribunal has taken that approach in considering whether to excuse an agency from producing a document on public interest immunity grounds [citing Senior Member McCabe, at [21]-[22], in Moore and Military Rehabilitation and Compensation Commission [2006] AATA 425].
The above approach is also consistent with the judgment of the Full Federal Court in Guo. The Full Court’s judgment is as important for what it does not say as for what it does say. The Tribunal had “made certain directions on the basis that it was satisfied…that common law public interest immunity does not apply to the Tribunal in relation to this questioning or proposed questioning by reason of” certain provisions of the AAT Act (at [28]). The Full Court held that, to the contrary, “common law public interest immunity has not been displaced by the relevant provisions of the [AAT Act] relating to oral evidence” (at [66]).
Importantly, the Full Court did not in any way criticise the procedural directions made by the Tribunal, or hold that those directions were not open to the Tribunal. The directions were only set aside because the reasons given by the Tribunal for making the directions exposed the error of law described above. The Full Court did not hold that the procedure of the Tribunal is outside the discretion of the Tribunal (s 33(1)(c)); or that the Tribunal should not inform itself on any matter in such manner as it thinks appropriate (s 33(1)(c)); or that the Tribunal should not pursue the objective of providing a mechanism of review that is, amongst other things, fair (s 2A).
As Brennan J observed in Pochi, “the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant”, and “[t]he purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve” [citing Pochi v Minister for Immigration and Ethic Affairs (1979) 26 ALR 247 (Pochi) at 272]. On appeal, in affirming the decision of Brennan J, Deane J (with whom Evatt J agreed) noted that Brennan J had been laying down not absolute rules but “what he saw as general principles of fairness and common sense which he thought appropriate to the case before the Tribunal and which, as President of the Tribunal, he stated in general terms for the guidance of members of the Tribunal in the future performance of their functions” [citing Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (Minister v Pochi) at 61]. The decision of Brennan J was approved and his observations described as “apposite” by Allsop CJ, Robertson and Griffiths JJ as recently as last month [citing AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 (AZAFQ) at [1]-[2]].
If the Tribunal is unable to permit the applicant to cross-examine a witness for any reason, then in the particular circumstances of this matter, the untested evidence of that witness cannot fairly be relied upon by the Tribunal. The allegations made are serious, and the potential consequences for the applicant are grave, attracting the operation of the important legal principles set out in the applicant’s statement of facts, issues and contentions at [23]-[38]; “slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors” [citing Pochi at 272].
For those reasons, and because the Tribunal has already undertaken the balancing exercise with respect to the questions put by Mr James QC to Detective Inspector Cadden, the appropriate course is for the Tribunal to proceed to make directions in accordance with those proposed by the Tribunal on 24 February 2016. In doing so, the Tribunal must take as the basis of its consideration the principles set out in s 35(5) of the AAT Act. Annexed to these submissions is a possible form of directions. A similar course should be taken in respect of any further objections on public interest immunity grounds.
On behalf of the Respondent Mr Knowles submitted:[13]
[13] At [2]-[8].
The question for the Tribunal to determine is whether the public interest of allowing this Tribunal to perform its ordinary functions is outweighed by the public interest in maintaining the confidentiality of information that may be elicited in the cross-examination of Inspector Cadden, Inspector Armstrong and Mr O'Conner: see Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at [22]−[24].
…
The Minister accepts that there is a significant public interest in preserving the secrecy of certain police methods and, especially, protecting the identity of confidential police informers. The following countervailing factors, however, suggest that further cross-examination should be permitted.
First, the nature of this proceeding [is] such that, except to the extent necessary, the Applicant should be permitted to test the evidence of the witnesses called by the Minister. From the perspective of the Applicant, the serious consequences that would follow upon the Tribunal affirming the decision to cancel his visa weighs powerfully in favour of him being able to test the evidence.
Secondly, the allegations relating to the Applicant's character in these proceedings are serious. Assuming for present purposes those allegations are true, the interests of protecting the Australian community suggest that the Tribunal should have all the evidence before it in order to inform its decision. The weight that can be given to this evidence will be increased if the Applicant is given a proper opportunity to test the evidence by cross-examining the witnesses.
Thirdly, in this case the sensitivity of the topics the subject of cross-examination can be appropriately managed by special procedures. Indeed, the relative flexibility and informality of the Tribunal's procedures make it peculiarly well suited to adopt measures which are both appropriate and fair: cf. Re Pochi v Minister for Immigration (1979) 26 ALR 247. Procedures which might be considered include that cross-examination proceed:
(a) in camera;
(b) in the presence of counsel (upon giving an undertaking of confidentiality) and in the absence of parties and solicitors; and
(c) without the legal representatives retaining notes of the questioning.
It is true that preventing a party to the proceeding from being present during the giving of evidence is a significant step. Given the sensitivity of the anticipated topics to be the subject of cross examination, this is however an appropriate course. Further, it is submitted that, even in camera, the Applicant's counsel should not be permitted to ask any question that directly seeks to elicit the identity of confidential police informants.
At the commencement of the resumed proceedings on 26 September 2016, Mr Glover handed up a submission in reply, to those made by the parties, as follows:[14]
[14] At [1]-[5].
In Commissioner of Police, New South Wales v Guo [2016] FCAFC 62 at [78], Robertson and Griffiths JJ stated:
The matter should be remitted to the Tribunal for determination according to law. This means that any claim to public interest immunity should be decided by the Tribunal in accordance with common law principles: if the claim is upheld then the Tribunal would either reject the question or not require the question to be answered. No issue therefore arises about the Tribunal using such oral evidence because the evidence will not have been given.
The consequences that flow from that statement are as follows.
First, the test in paragraph 10 of the applicant’s submissions (reproduced as the first paragraph appearing at [30] above) which the Tribunal is urged to adopt to determine any public interest immunity claim, is wrong. That paragraph does not express the manner by which the common law requires the Tribunal to determine a public interest immunity claim….
Secondly, the outcome of the balancing exercise when a public interest immunity claim is made is for the Tribunal to either:
a. reject the claim, in which case the person making the claim should be given the opportunity to adduce further evidence in support of the claim or test that ruling on appeal [referring to Sankey; Alister and R V Fandakis [2002] NSWCCA 5 at [42]]; or
b. uphold the claim, in which case, as Robertson and Griffiths JJ made clear in the passage set out above, “the Tribunal would either reject the question or not require the question to be answered”.
Thirdly, the Tribunal’s powers to receive evidence in private and to exclude persons from the hearing do not displace the Tribunal's need to consider any public interest immunity claim by conducting the balancing exercise, or otherwise influence how the balancing exercise is conducted. It is not to point, as the applicant claims…, that “the Full Court did not in any way criticise the procedural directions made by the Tribunal”. As Robertson and Griffiths JJ made clear in the passage set out above, if a public interest immunity claim is upheld, “[n]o issue therefore arises about the Tribunal using such oral evidence because the evidence will not have been given.”
CONSIDERATION
The balancing exercise needs to be taken afresh
The Tribunal rejects the Applicant’s submission that it has already sufficiently undertaken the balancing exercise required.[15]
[15] See the final paragraph as cited above at [31].
The balancing exercise undertaken in Guo No 1 was premised on common law PII not applying in these proceedings. In doing so the Tribunal assumed it was within its ordinary discretion, guided by the duty to act fairly, to admit sensitive relevant evidence having regard to the extensive means at its disposal to protect the confidentiality of any evidence adduced.
That contrasts with what the law requires in the determination of a common law claim of PII.
In P Dawson Nominees, the Full Court (Heerey, Moore and Tracey JJ) approved of the reasoning of the Victorian Court of Appeal in Brazel:[16]
In our view, a decision to uphold, or reject, a claim of PII [public interest immunity] is not an exercise of discretion. Although the task of balancing competing public interests might at first appear to have characteristics in common with a discretionary judgment, we think that the determination of the immunity question is of a different character…[It] is a question of substantive law about “an important common law immunity”. On appeal, the question is whether the decision was erroneous, not whether it fell within the “limits of a sound discretionary judgment”.
[16] At [17]. Citations omitted.
We accept the law is as stated by Maxwell P, Buchanan and Vincent JJA in Brazel. Accordingly it is necessary for the Tribunal to undertake the correct and mandated balancing exercise entirely afresh.
Is there a public interest in non-disclosure?
The evidence of Asst Comm Mitchell has been accepted by the Tribunal. The submissions advanced for the Commissioner by Mr Glover (set out as the final two paragraphs at [28] above) also were not the subject of any criticism and we accept their correctness.
The Tribunal has stated (above at [25]) that it would proceed on the assumption that knowing what Det Insp Cadden was told by his informers may well assist to identify one or more of them. Given Asst Comm Mitchell’s undisputed evidence, our acceptance of the correctness of Mr Glover’s submissions requires the Tribunal to conclude that there is a significant public interest in the non-disclosure of that information.
If those who risk providing information to the police cannot rely on assurances that their identities will be kept secret they may cease to provide such information. That would greatly damage the effectiveness of NSW Police in investigating and facilitating the prosecution of crime. Further, this is not a mere abstract and theoretical speculation. It reasonably can be anticipated that anyone who informed to the police about an event involving a stabbing arising out of a dispute between two large criminal gangs could be targeted for punishment and placed at personal risk if their identity was known or even suspected.
Both of those adverse systemic and individual consequences can be plausibly hypothesised if such information is disclosed, irrespective of how innocent or otherwise Mr Guo himself may have been in those events.
Accordingly the Tribunal finds that there is a very significant public interest in the non-disclosure of that information.
Is there a public interest in the disclosure?
However it is equally indisputable that there are two powerful and distinct aspects of public interest that favour the disclosure of the information sought.
The Applicant and the Respondent each advance powerful reasons to believe that a great unfairness would be occasioned to their interests if the Tribunal was to refuse to permit the evidence sought to be adduced.
The Minister and his delegates accepted and acted upon the probative value, inter-alia, of Det Insp Cadden’s statements that Mr Guo was a major figure in NSW organised crime. However, the Parliament has provided a right for Mr Guo to have the primary decision reviewed in this Tribunal. In the Tribunal Mr Guo has the right to give his own account and, to the extent the law and the directions of the Tribunal permit, to test all of the evidence put against him. If Mr Guo’s counsel is denied an opportunity to ask questions, about conclusions expressed by Det Insp Cadden contained in documents to which the Tribunal is urged by the Respondent to give weight, that right would be significantly diminished.
It may be expected, if cross-examination is refused, that Mr James will submit that to the extent Det Insp Cadden’s statements are untested hearsay this Tribunal ought to give that evidence no weight. However counsel cannot lightly assume that the Tribunal would reach that same conclusion.
We therefore find there to be a public interest in permitting Mr Guo, by his counsel to test those allegations.
We are also satisfied that there is a separate and distinct public interest in the Tribunal having all the evidence before it in order to inform its decision for the reasons advanced.
As Mr Knowles submits, assuming for present purposes Det Insp Cadden’s allegations regarding Mr Guo’s conduct and character are true, the interests of protecting the Australian community suggest that the Tribunal should have that evidence before it in order to inform its decision. The weight that can be given to this evidence will be increased if the Applicant is given a proper opportunity to test the evidence by cross-examining the witnesses.
Indeed should such questions not be permitted to be asked and answered in cross-examination the Tribunal may be compelled to reach the conclusion that Det Insp Cadden’s evidence must be given little or no weight.
Courts, and this Tribunal, routinely have declined to act on the basis of untested hearsay allegations made by police. The Respondent clearly would not wish the Tribunal to be compelled to ignore the only evidence going to the most serious of allegations against the Applicant.
Assuming for present purposes that Mr Guo is, as Det Insp Cadden asserts, a leader of serious and organised crime in NSW there is a strong public interest in the Tribunal having before it the materials which would allow it to make that finding. There is a significant public interest beyond Mr Guo’s individual right to a fair proceeding, in the correct decision being made.
Mr Glover did not make any submission to the contrary.
We therefore find there is a significant public interest in permitting the question to be asked and answered.
Is the fact that the parties share a common position relevant?
Each of the parties for their separate reasons, submit that further cross-examination should be permitted. While neither the Applicant nor the Respondent deny the existence of the public interest that exists to protect the identity of informers and police methodologies, they each submit that the balance favours the Tribunal rejecting the Commissioner’s claim of PII.
While the parties’ agreement cannot be dispositive, the Tribunal accepts that the parties’ agreement is material to how the Tribunal should assess Mr Glover’s submission that in adjudicating PII claims, a fair trial does not mean a perfect trial.
For quite different yet equally rational reasons, both parties agree that no fair trial will be possible if the Tribunal does not permit questions, such as that which has been objected to, being asked and answered. Effectively they assert the choice is not one between a perfect and a fair trial but rather a fair and an unfair trial.
We proceed on the basis that the parties’ shared concern in that regard is relevant to the balancing exercise.
What is the balance of the respective public interests in disclosure and non-disclosure if the Tribunal is not entitled to consider possible means of avoiding the further dissemination of information?
If an answer to the question, which has been objected to on the basis of common law PII, must be given, or for the purpose of this ruling must be assumed to be given, in an open hearing held in public it would be implausible for the Tribunal not to conclude that the public interest in non-disclosure must prevail when balanced against the public interests favouring disclosure.
Important as the other accepted public interests are in the facts of this case where the applicant faces very significant adverse consequences if these proceedings do not set aside the primary decision subject to review, they do not in our opinion outweigh the public interest in avoiding the public disclosure of information that could reasonably be expected to assist in the identification of the informants. On the undisputed evidence before us we accept that such disclosure could risk long term damage to the NSW law enforcement capacity as well as expose the individual informants to grave personal danger.
If the balance must be assessed without regard to the means available in the Tribunal to secure the disclosure’s confidentiality, the Tribunal would uphold the objection made on behalf of the Commissioner.
That conditional conclusion is subject to the further considerations we address below.
Can protective measures to prevent further dissemination of information disclosed be considered in assessing the balance?
The parties submit that the Tribunal has power to mitigate the risk attending any disclosure of information that might identify an informer.
The Applicant has tendered a schedule of proposed directions that the Tribunal might make in order to achieve that objective.
The Respondent has made similar submissions.
Both the Applicant and the Respondent submit that the Tribunal can have regard to its powers to prevent any answers becoming known to the wider community as part of the balancing process.
By contrast, the Commissioner submits that the balance to be struck is to be determined without regard to the power of a court or a tribunal to limit the terms of wider disclosure. In support Mr Glover cites Brazel, which was referred to in P Dawson Nominees as “a recent, considered, authoritative decision,”[17] for the proposition that the “mechanical question”[18] of whether the Tribunal’s powers should be used to protect the confidentiality of information arises of and only if the prior claim for immunity has been rejected (see at [31] above).
[17] At [21].
[18] At [43].
In our opinion however, when the remarks he cites are read in context Brazel is not authority for the proposition Mr Glover advances. What Maxwell P, Buchanan and Vincent JJA stated was as follows:[19]
The mechanical question of how access is to be granted, which only arises once the claim for immunity has been rejected, might well be thought to be discretionary in character. But since the assessment of the harm likely to follow from disclosure will often involve – necessarily – a consideration of the terms on which inspection might be permitted, it is probably artificial to treat the inspection question as separate from the balancing exercise.
(Emphasis added)
[19] At [43]. Citations omitted.
In our view, that passage does not support the proposition advanced on behalf of the Commissioner. As their Honours in Brazel expressly acknowledge, the assessment of the harm which is likely to follow from disclosure will often necessarily involve a consideration of the terms upon which inspection might be permitted. For that reason we think would be wrong for the Tribunal to accept those observations as authority for any proposition to the effect that the question of where the balance of public interests lies must be hermitically sealed form the inspection question.
In our opinion Brazel instead acknowledges that courts are entitled to take the terms upon which inspection might be permitted into account when balancing competing claims of public interest.
There is a long line of authority to similar effect that the practical measures that a court or Tribunal can take to protect the confidentiality of sensitive materials may be taken into account in the balancing exercise.
In Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104; 65 ALR 247 (Maurice), Bowen CJ, Woodward and Toohey JJ were required to consider a challenge to the decision of the Aboriginal Land Commissioner, Maurice J, who had ordered the production of certain documents in a hearing of a land claim. His Honour had ordered production to occur in camera and that only himself, his associate, counsel assisting, counsel for the Attorney-General of the Northern Territory, and possibly a consultant anthropologist and the researcher who gathered the material, would be present. He had invited counsel to agree on appropriate protective measures and the mechanical arrangements for inspection.
The Full Court rejected the challenge to Maurice J’s process of weighing the countervailing elements of public interest.
Relevant to the present issue, Bowen CJ in Maurice said at 108:
This is an area of the law which has been developing in recent years. It is not so long since the courts treated the certificate or affidavit of a Minister taking objection to production on the ground it would be injurious to the public interest as conclusive: Duncan v Cammell Laird & Co [1942] AC 624. However, this decision was reviewed and not followed in Conway v Rimmer [1968] AC 910. It was there held it is a matter for the court to decide whether the material should be produced. Documents are commonly referred to as qualifying for the immunity because they fall into a particular class such as Cabinet papers or because of their contents such as defence or security documents. Some documents may answer both descriptions. On some topics such as the safety or security of the country the views of the Executive, which carries the responsibility, will be given great weight; in such cases the balancing by the court of the public interest in favour of disclosure against the public interest in favour of confidentiality may be little more than a formality. In other cases the factors in favour of disclosure may be strong. For example, the possibility of establishing the innocence of an individual in a criminal case, weighs heavily. The smallness of the damage done to the public interest on the other hand may be significant, particularly where practical restrictions can be placed upon the extent of the public disclosure.
(Emphasis added)
Justice Woodward noted at 115:
In fact Maurice J has proposed to limit access to the restricted documents to himself, his associate, counsel assisting him, counsel for the Attorney-General, and possibly a consultant anthropologist. A limitation of this nature, with the further proposed restriction that any information gleaned be strictly confined in its use to the purposes of the land claim hearing, would go a long way towards reducing the strength of the public interest argument against disclosure.
Justice Toohey stated at 130:
Now it is not a corollary of rejecting the concept of public interest immunity in the case of the Authority that any documents in its possession or in the possession of others for its purposes must necessarily be disclosed to the public at large or even to all those participating in the proceedings of a court or tribunal… It is apparent from a number of decisions that a court or tribunal has a discretion as to how much it will make public and what conditions it will attach to the production of documents and the disclosure of information. As Lord Wilberforce pointed out in Nassé (at 1066):
“But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence. … It will naturally consider whether justice can be done by special measures such as ‘covering up’ substituting anonymous references for specific names, or, in rare cases, hearing in camera.”
(Emphasis added)
In Kanthal Australia Pty Ltd v Ministry for Industry, Technology & Commerce (1987) 14 FCR 90 at 95 Wilcox J held:
The proper approach, as it seems to me, is to go behind the mere promises of confidentiality and to examine the interest which they were designed to safeguard...If it is possible to protect that interest whilst simultaneously according to the applicant an opportunity properly to present its case to the Court, this is the appropriate course to follow.
…
However, in relation to access by the company’s lawyers and by Mr Day the position is somewhat different. Dealing first with the lawyers; they are not involved in making commercial decisions on behalf of Kanthal. There could be no unwitting use by them of the information, to the disadvantage of the suppliers. For damage to occur there would have to be a deliberate disclosure by one or more of them of the information obtained. In practice it is highly unlikely that, if appropriate undertakings were given, there would be such a disclosure. On the other hand access by the lawyers may well suffice to enable decisions to be taken as to what documents should be tendered on behalf of the applicant in support of the case which it seeks to make. It seems to me appropriate, in the balancing exercise to which I have referred, to permit access by a limited number of identified lawyers – solicitors and counsel acting in the principal proceedings on behalf of the applicant – subject to their each signing an undertaking to the Court not to disclose to, or discuss with, any person, other than one or more of the other undertakers, the content of, or the information contained in, any document disclosed.
(Emphasis added)
We proceed on the premise that what was said in Brazel is consistent with the conclusion that a court or tribunal may have regard to practical measures as are at its disposal by which further dissemination can be limited. The presence of such measures to properly protect the information, as Woodward J noted in Maurice, can “go a long way towards reducing the strength of the public interest argument against disclosure” (at 115).
We are of the opinion that the proposition advanced for the Commissioner gives insufficient attention to the statutory role conferred on the Tribunal. To accept that this Tribunal must assume (contrary to the fact) that no protection can be offered to confidential materials would destroy the Tribunal’s utility in many areas of its jurisdiction.
To take but one example, it is implausible that any decision involving claims of risk to national security could ever be defended by the Minister without this Tribunal having access to material over which claims of PII might be made. Not all such matters are heard in the Security Division. Where they are not the Tribunal may take oral evidence from, and in respect of, persons whose identities require at least the same level of protection from disclosure as that of police informants. From its inception this Tribunal has exercised powers not available to courts enabling it to give robust protection to information requiring confidentiality. If that evidence requires a high level of protection the Tribunal can hold a closed hearing and receive the evidence subject to orders denying it to a party, or even, his or her counsel (see Pochi and Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291; 61 ALR319). The Parliament has seen fit to give the AAT functions to require it to determine such claims. In our opinion, it would be inconsistent with those functions were this Tribunal to determine a claim of PII involving the balance between the public interests of disclosure and non-disclosure of potentially relevant evidence without the Tribunal being entitled to put into that balance those strong powers which may limit or deny the possibility of its wider dissemination.
The balance struck
On the assumption that the balancing of competing public interests may be informed by the powers of the Tribunal to restrict the further dissemination of any sensitive information disclosed we think the balance in this review overwhelmingly favours the public interest of disclosure.
It will not be in every case where a claim for PII is put forward in the Tribunal, that the balancing exercise can be resolved in favour of admission of the evidence objected to, on the basis that the Tribunal can employ such mechanisms. Hearings in public are the rule rather than the exception. Moreover, the processes required to provide robust protection of confidential evidence are resource-heavy for the Tribunal and involve considerable complex planning.
Nor do we dispute the validity of Mr Glover’s general proposition that a fair proceeding does not mean a perfect proceeding. Each balancing exercise must be performed by taking into account the specific circumstances of the case and there will be many instances where a different outcome properly will be reached. Thus in Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140 (Choi) Lindgren J accepted a claim of PII, notwithstanding that that ruling resulted in the Applicant being unable to seek effective review of an adverse decision to refuse him an visitor’s entry visa.
However the case before this Tribunal does not involve a transient visitor, but rather a person who has been resident in Australia for several decades and who denies the Minister’s case against him. Both the Applicant and the Respondent submit their interests require the question posed be answered.
The serious ramifications of visa cancellations in those circumstances were emphasised by Brennan J, the foundation President of this Tribunal, in Pochi at 255:
When an alien has been resident in this country for many years, when his roots are deep in Australia and the ties which bind him to Australia are strong, a clear case will be required to persuade the decision-maker that it is in the best interests of Australia to banish him from our shores.
That passage was cited with approval ealier this year by the Full Federal Court as constituted by Allsop CJ, Robertson and Griffiths JJ in AZAFQ at [1]. The significance of the proceedings to the Applicant directly correlates to the significance of the public interest in the Tribunal affording him procedural fairness where available, and allowing him to properly test the material against him.
In addition, as we have noted, there is a separate public interest advanced by the Respondent concerned that unless the evidence of Det Insp Cadden is available to be tested by cross-examination this Tribunal may be required to give little or no weight to it.
In our view, when the means of available protection are allowed into consideration as an aspect of the balancing process the balance overwhelmingly tilts in favour of the public interest in disclosure, albeit subject to protections.
CONCLUSION
Given that it has been urged by both parties that it is possible by use of procedures to robustly protect the public interest identified by the Commissioner (which the Tribunal accepts to be possible) whilst simultaneously permitting both the Applicant and the Respondent an opportunity properly to present their cases, we disallow the objection and reject the claim made for PII.
The Tribunal has, after giving its oral reasons, heard from counsel as to the directions that should be made. Mr Glover proposed a set of directions and the parties, after some amendments, consented to those directions. We are satisfied that those directions as settled by the parties and the Commissioner would give robust protection against all realistic prospects that any answer by Det Insp Cadden to the questions asked of him might become known to any unauthorised third parties or persons. We attach as an annexure to these reasons the directions made by the Tribunal.
DECISION
The Tribunal rejects the Commissioner’s claim of PII made over Det Insp Cadden’s oral evidence to be adduced by cross-examination of the Applicant. The Tribunal makes directions in the terms of the Annexure.
| I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal |
.................................[sgd]....................................
Associate
Dated 11 November 2016
| Date(s) of hearing | 26 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 |
ANNEXURE
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/6365; 2015/1261
GENERAL DIVISION )
Re: Qi Guang Guo
Applicant
And: Minister for Immigration and Border Protection
Respondent
TRIBUNAL: Justice Duncan Kerr, President
Deputy President Robert Deutsch
DATE: 26 September 2016
PLACE: Sydney
This direction applies if, whether during a private hearing or otherwise:
a.a claim for public interest immunity is made by the New South Wales Commissioner of Police or the New South Wales Crime Commission in relation to a question asked of a witness;
b.the Tribunal, after conducting the balancing exercise, decides that the question should be answered; and
c.the New South Wales Commissioner of Police or the New South Wales Crime Commission inform the Tribunal that the Tribunal’s ruling referred to in Direction 1(b) will not be appealed.
In this direction, “public interest information” means:
a.any answers given by a witness to questions asked of the witness in cross-examination or re-examination during a part of a hearing that is to take place in private pursuant to Direction 3; and
b.any submissions or comments made in respect of such answers by counsel or by the Tribunal during a part of a hearing that is to take place in private.
Pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal directs:
a.any question to which Direction 1 applies is to be asked, and answered, in private;
b.the hearing of submissions in respect of any public interest information, is to take place in private; and
c.no parties, legal representatives, or observers be present during any private hearing held pursuant to this direction other than:
i. the applicant’s counsel,
ii.the respondent’s counsel and instructing solicitors, and
iii. counsel, instructing officers and legal representatives for the New South Wales Commissioner of Police and New South Wales Crime Commission.
Pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth):
a.any notes taken by the applicant’s counsel or the respondent’s counsel during any private hearing conducted under direction 3 be placed in a sealed envelope marked “Confidential and Privileged – Not to be opened – Subject to direction of the Administrative Appeals Tribunal” and delivered up to the solicitor for the New South Wales Commissioner of Police and New South Wales Crime Commission for storage;
b.the envelope is not to be opened by anyone other than:
i. in the case of an envelope containing any notes taken by the applicant’s counsel – the applicant’s counsel; and
ii. in the case of an envelope containing any notes taken by the respondent’s counsel – the respondent’s counsel;
c.the publication or other disclosure of those notes, including to any of the parties, the New South Wales Commissioner of Police and the New South Wales Crime Commission, be prohibited unless the Tribunal or a Court orders otherwise; and
d.a recording of the private hearing conducted under Direction 3 be made on a secure device to be operated by an officer of the Tribunal holding top secret security clearance and the device held securely by the Tribunal with access permitted only to the members who constitute the Tribunal for the purpose of this proceeding. No transcript of the private hearing is to be produced unless the Tribunal or a Court orders otherwise.
For the avoidance of doubt, nothing in Direction 4 is taken to be a waiver of privilege by the applicant or the respondent.
Undertakings:
The Tribunal notes the undertakings of counsel for the applicant Mr James QC and Mr King that they will not ask any question the answer to which would seek the name or current identity of any informer and not to communicate to the applicant or any person, or otherwise use or disclose the content of any evidence given in private pursuant to Direction 3 except as provided for in Direction 4, unless the Tribunal or a Court orders otherwise.
The Tribunal notes the undertakings of counsel for the respondent Mr Knowles on his and his instructors’ behalf that he and they will not communicate to the applicant or any person, or otherwise use or disclose the content of any evidence given in private pursuant to Direction 3 except as provided for in Direction 4, unless the Tribunal or a Court orders otherwise.
The Tribunal notes the undertakings of counsel for the Commissioner of Police, (NSW) Mr Glover on his and his instructors’ behalf that he and they will not communicate to the applicant or any person, or otherwise use or disclose the content of any evidence given in private pursuant to Direction 3 except as provided for in Direction 4, unless the Tribunal or a Court orders otherwise.
...................[sgd]..................
Justice Duncan Kerr, President
…….....................................
Deputy President Robert Deutsch
21
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