Guo and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by the New South Wales Commissioner of Police to the Administrative Appeals Tribunal (AAT) for public interest immunity to prevent a question in cross-examination from being answered. The applicant in the underlying migration matter sought to cross-examine on information relating to informants and law enforcement methodologies.

The AAT was required to determine whether common law principles of public interest immunity applied to oral evidence in the Tribunal, and if so, how the public interest in disclosure should be balanced against the public interest in non-disclosure, particularly when the confidentiality of information could be protected. The central legal issue was whether the Tribunal's capacity to make orders for confidentiality and to exclude persons from hearings was relevant to the balancing exercise when considering a claim for public interest immunity.

The Tribunal rejected the Commissioner's claim for public interest immunity. It reasoned that the assessment of harm likely to follow from disclosure necessarily involves consideration of the terms upon which inspection might be permitted. Therefore, the question of where the balance of public interests lies is not separate from the question of inspection. The Tribunal applied the principle that practical measures to protect the confidentiality of sensitive materials can be taken into account in the balancing exercise, citing authority that courts are entitled to consider such protective measures when weighing competing public interests. The Tribunal found that the applicant and respondent both submitted that a fair hearing required the admission of the objected-to evidence.