Guo and Minister for Immigration and Border Protection (Migration)

[2016] AATA 125

Guo and Minister for Immigration and Border Protection (Migration) [2016] AATA 125 (24 February 2016)

Division

GENERAL DIVISION

File Number(s)

2014/6365

2015/1261

Re

Qi Guang GUO

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal	The Hon. Justice D Kerr, President Prof R Deutsch, Deputy President
Date	24 February 2016
Date of written reasons	2 March 2016
Place	Sydney

Being satisfied that common law public interest immunity does not apply to the Administrative Appeals Tribunal by reason of the operation of ss 33, 35, 36, 36A, 36B, 36C, 36D, 37 and 39 of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’), the Tribunal directs that counsel for the parties and counsel appearing by leave for the Commissioner of Police, NSW confer with each other to settle, if possible, both an agreed direction under s 35 of the AATAct having regard to the Tribunal’s reasons and a revised timetable for the future conduct of the proceedings.

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

The Hon. Justice D Kerr
President

........................................................................
Prof. R Deutsch
Deputy President

Catchwords

MIGRATION – Minister’s decision to refuse the Applicant Class 815 (PRC (Permanent)) Entry Permit visa on character grounds – Confidential evidence – Intelligence holdings against the Applicant – Evidence of informers – Migration Act 1958 (Cth) s 501.

PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – Evidence relying upon undisclosed ‘registered informants and reliable sources’ – Common law public interest immunity – Attorney-General’s public interest certificate – Relevance of s 130 of the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW) – Power of the Tribunal under s 35 – Operation of s 36D(6) – Legislative history of public interest immunity as relevant to the AAT – Principles governing adduction of evidence in the Tribunal – Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 35, 36, 36A, 36B, 36C, 36D(6), 37(3), 39(1) – Evidence Act 1995 (Cth) s 130.

Legislation

Administrative Appeals Tribunal Act 1995 (Cth) ss 33, 35, 36, 36A, 36B, 36C, 36D, 37, 39

Appeals Tribunal Amendment Act 1977 (Cth) s 36A

Evidence Act 1995 (Cth) s 130

Evidence Act 1995 (NSW) s 130

Law and Justice Legislation Amendment Act 1988 (Cth) ss 36B, 36C

Migration Act 1958 (Cth) s 501, 500(6D)

Cases

Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247

Australian Securities and Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 247 ALR 646

Cain v Glass (No 2) [1958] 3 NSWLR 230

Commissioner for Railways (NSW) v Agalianos (1995) 92 CLR 390

Derbas v The Queen [2012] NSWCCA 14; 221 A Crim R 13

Haydon v Magistrates Court of South Australia [2001] SASC 65; (2001) 87 SASR 476

Jacobsen v Rogers (1995) 182 CLR 572

Jarvie v Magistrates Court of Victoria [1995] 1 VR 84

Marks v Beyfus [1890] 25 QBD 494

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

R v Meissner (1994) 76 A Crim R 81

R v Werner Paul Roberts [2004] VSCA 1; 9 VR 295

Re Ajka Pty Ltd and Australian Fisheries Management Authority (1995) 39 ALD 445

Re Hobart Central Child Care Pty Ltd and Commissioner of Taxation [2004] AATA 1222; (2004) 84 ALD 86

Re Kanina Banner and Minister for Health and Ageing [2002] AATA 169; 66 ALD 663

Re Moore and Military Rehabilitation and Compensation Commission [2006] AATA 425; 90 ALD 417

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 26 ALR 247

Re Queensland Nickel and Great Barrier Reef Marine Park Authority (1991) 25 ALD 160

Sankey v Whitlam (1978) 142 CLR 1

Suardana and Minister for Immigration and Ethnic Affairs [1980] AATA 58

Secondary Materials

Australian Law Reform Commission Evidence (Interim), Report No 26 (2008) vol 1

Australian Law Reform Commission Evidence, Report No 38 (1987)

Australian Law Reform Commission Uniform Evidence Law, Report No 102 (2006)

Commonwealth, Parliamentary Debates, 28 April 1977, 1393 (Robert Ellicott QC)

Explanatory Memorandum, Administrative Appeals Tribunal Bill 1975 (Cth)

Explanatory Memorandum, Law and Justice Legislation Amendment Act 1988 (Cth)

Suzanne B. McNicol, Law of Privilege (Law Book Company, 1992)

Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 4^th ed, 2015)

REASONS FOR DECISION

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

2 March 2016

THE PROCEEDINGS

1. The Tribunal is now in the third day of a hearing reviewing a decision made in 1996 to refuse the applicant, Mr Qi Guang Guo, a Class 815 (PRC (Permanent)) Entry Permit visa. A necessary consequence of the long delay between the original decision and this review is that Mr Guo’s application must be decided by the Tribunal applying the provisions of s 501 of the Migration Act 1958 (Cth) (‘Migration Act’) as they stood at the time of the original decision now under review.

2. The reason Mr Guo was refused a visa in 1996 was because the Minister’s delegate was satisfied he was not of good character.

3. The explanation for the very long passage of time between the original decision and this hearing is not relevant to the issue currently requiring resolution. The exigencies of the present issue, having arisen in the course of the proceedings, have required the Tribunal to provide oral reasons so that this is not unreasonably further protracted.[1]

   [1] Edited and revised for publication.

4. The Applicant was born in the People’s Republic of China in 1957. He has a wife and two adult children, all of whom are Australian citizens and reside in Australia. Initially arriving in Australia in August 1988 on a six-month Student Visa, he has been resident in Australia for approximately 27½ years. Since the decision currently under review he has remained in Australia although more recently he has been in immigration detention in Villawood.

   THE EVIDENCE AND THE OBJECTION

5. The materials relied upon by the Respondent in these proceedings include a letter to the Department of Immigration dated 6 April 2006 sent by (now) Detective Inspector Cadden in his then capacity as head of the NSW Police’s South East Asian Crime Squad.

6. The letter is included as an annexure to these reasons [not included for publication in It includes references to information in the ‘COPS database’ and information based on NSW police ‘Intelligence Holdings’. The information so provided goes beyond the applicant’s more limited proven or admitted criminal convictions. The letter concludes with an expression of (then) Detective Leading Senior Constable Cadden’s belief, based on ‘intelligence and previous investigations,’ that the applicant is a person of considerable ‘bad character’ involved at the highest level with the planning and carrying out of organised criminal activities.  

7. Detective Inspector Cadden was called as a witness by the Respondent. In cross-examination he gave evidence that his sending the letter of 6 April 2006 was part of a strategy having the object of ‘getting rid’ of Mr Guo from Australia.[2] It was done with the approval of his superiors.

   [2] Transcript dated 22 February 2016, page 46, line 47.

8. Unsurprisingly Mr James QC, Mr Guo’s counsel, submits that what Detective Inspector Cadden’s letter contains is almost entirely hearsay. Through cross-examination Mr James has confirmed that important parts of the information relied upon by Detective Inspector Cadden were that police had been told by ‘registered informants’ and ‘reliable sources’.[3] 

   [3] Transcript dated 22 February 2016, page 68, lines 21-25.

9. Ms Sharp counsel representing the Commissioner of Police, NSW (‘Police Commissioner’) has objected to Mr James asking Detective Inspector Cadden: ‘What did they say?’[4]

   [4] Transcript dated 22 February 2016, page 74, line 38. Ms Sharp previously had made a number of similarly based objections to questions asked in the course of Mr James’ cross-examination of Detective Inspector Cadden. Mr James had not pressed those questions but had indicated his intention to return to them after completing his cross examination of the witness on matters not subject to those objections. Having reached that stage the question to which objection was taken was asked and pressed, requiring the Tribunal to rule on whether or not common law public interest immunity was available as a basis for prohibiting or otherwise governing the adducing of evidence in the AAT.  

10. The Tribunal earlier had granted the Police Commissioner leave as a non-party to be represented by Ms Sharp on a limited basis. It was within that leave for her to make that objection.

    ISSUE OF PUBLIC INTEREST IMMUNITY

11. The precise form in which Ms Sharp’s objection was advanced requires the Tribunal to rule on whether or not common law public interest immunity is available as a basis for prohibiting or otherwise governing the adducing of evidence in the proceeding before it.

12. Ms Sharp contends that if Detective Inspector Cadden provides any answer to Mr James’s question, other persons who are aware of the circumstances relating to what had been told to the police may be able to link the answer to individual or individuals who had such knowledge. She referred to this as the ‘jigsaw principle’.

13. Ms Sharp submits that common law public interest applies in the Tribunal and, on that premise, that Cain v Glass (No 2) [1985] 3 NSWLR 230 (‘Cain v Glass’) requires the Tribunal to prohibit questioning (however capable of protection from disclosure the answers might be) going to the identity of a police informant. Mr Knowles representing the Respondent supports those submissions.

14. The Applicant by his counsel, Mr James, disputes the contention that common law public interest immunity can be claimed in the Tribunal. Mr James submits that public interest immunity in the AAT can be claimed only if a Commonwealth or State Attorney-General intervenes, as each would be entitled to do pursuant to the relevant provisions of ss 36, 36A, 36B or 36C of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’). Mr James submits the Tribunal should protect the confidentiality of sensitive information in all other instances through the exercise of its duty and powers under s 35 of the AAT Act. It is essential, he submits, that a person refused a visa and foreseeably subject to removal from the Australian community, as in the circumstances of the Applicant, has the opportunity of testing the provenance and reliability of the materials advanced against his interests.

15. In anticipation of the possible intervention by the NSW Attorney-General, the Tribunal earlier had been constituted to include a Judge of the Federal Court of Australia so as to be able to decide any such issues as might arise. The Tribunal also required the NSW Attorney-General to be informed of these proceedings.[5] Ms Sharp has informed the Tribunal that the Attorney-General was so notified.

    [5] See AAT Act s 36D(3).

16. The Attorney-General has not sought to exercise her entitlement to intervene in these proceedings to seek that Detective Inspector Cadden be excused from answering this or other questions on public interest grounds. It remains open for the Attorney-General, if so advised, to intervene on that basis.

17. An application by each of the New South Wales Crime Commission (‘Commission’) and the Police Commissioner to join these proceedings as parties was withdrawn on the first morning of the hearing. However, the Tribunal accepted that each had a legitimate, but more specific, interest in being heard with respect to confidentiality of information relating to informers.[6] On that basis, while remaining non-parties, Ms Sharp was granted leave to make submissions limited to those interests.

    [6] There were further grounds, not relevant to these reasons, for objections advanced by Ms Sharp in respect of evidence to be given by members or former staff of the Commission.

    SUBMISSIONS BY THE PARTIES

18. Ms Sharp had previously filed written submissions in support of her subsequently withdrawn application on behalf of the Commission and the Police Commissioner to be joined as parties to this proceeding. It was agreed that, as the written submissions remained relevant to the proceeding, they constituted Ms Sharp’s written submissions in support of the propositions advanced by her as the premise of the Police Commissioner’s objection. What appears at C1 of those submissions is as follows:[7]

    Section 36 and 36A of the AAT Act have no present application as they only are concerned with claims by the Crown in right of the Commonwealth. Sections 36B and 36C of the AAT Act apply where action is taken by the Attorney General of a State.

    Section 36B of the AAT Act is directed to the disclosure of information or the disclosure of matters in documents and is not presently relevant. Section 36C is directed at the answering of questions in the course of giving evidence during a hearing. In terms, s. 36C operates “where” the Attorney-General of a State informs the Tribunal that the answering of a question would be contrary to the public interest for specified reasons.

    Neither ss. 36B nor 36C of the AAT Act are expressed in terms of imposing an obligation on a State Attorney-General. Section 36B is expressed in terms that “the following provisions of this section have this effect” “if” the State Attorney-General takes a particular step (namely, the issuing of a written certification). Section 36C(1) states that the State Attorney-General “may” inform the Tribunal of certain matters. Previous Tribunal decisions have held that ss. 36 and 36B (which apply to the Commonwealth Attorney General) do not operate as a code but, rather, only apply to the exclusion of laws relating to the public interest when an Attorney-General has taken the step of issuing a written certification. [citation omitted] Section 36C ought to be likewise construed. This conclusion has the consequence that if the State Attorney-General does not issue a written certification, the field is clear for the common law principles of public interest immunity to apply.

    Of further relevance is s. 36D(6) of the AAT Act, which provides:

    “Sections 36 and 36B exclude 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.”

    Section 36D(6) does not make reference to s. 36C, which permits the State Attorney-General to object to questions. Thus, no general intention to exclude public interest immunity at common law can be discerned. It has been held that public interest immunity is not merely a rule of evidence, but a fundamental doctrine of law. [citation omitted] In accordance with the principle of legality, common law public interest immunity continues to apply.

    [7] Written submissions for the Commission and Police Commissioner, C.1. [8]-[12].

19. Ms Sharp in oral submissions, and in response to submissions for the Applicant, proposed the Tribunal should proceed as follows.[8] First, public interest immunity should be accepted to be a fundamental rule of the common law, which will only be excluded by express words or necessary intendment of the statute as per the principle of legality and Jacobsen v Rogers (1995) 182 CLR 572. Secondly, the effect of ss 36D(6) and 37(3) should be understood to be a careful calibration allowing common law public interest immunity to co-exist with the AAT Act. Should those propositions be accepted, for the sake of comity, the majority reasoning of McHugh and Kirby JJ in Cain v Glass precluding the adducing of any informer evidence other than where required upon the trial of an accused should be followed in proceedings in NSW. Ms Sharp accepted that alternatively the Tribunal might accept that the authorities were in a state of flux and a balancing exercise should be applied.[9] However, even if the Tribunal were to adopt the latter approach, the balance leant in favour of a strong public interest in protecting the identity of informers.

    [8] Transcript dated 23 February 2016, page 126, line 18 to page 128, line 18.

    [9] Ms Sharp referred to the case of Derbas v The Queen [2012] NSWCCA 14; 221 A Crim R 13. Justice Meagher, with Hoeben and Rothman JJ agreeing, noted that there are contrary views but they did not need to consider them in that case. His Honour cites the following case law at [26]: R v Meissner (1994) 76 A Crim R 81; Jarvie v Magistrates Court of Victoria [1995] 1 VR 84 at 89-90; R v Werner Paul Roberts [2004] VSCA 1; (2004) 9 VR 295 at [103]; Haydon v Magistrates Court of South Australia [2001] SASC 65; (2001) 87 SASR 476 at [13]-[18]; and Australian Securities and Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 247 ALR 646 at [22]-[28].

20. Ms Sharp submitted that Brennan J’s decision in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 (‘Pochi’) was consistent with a contention that common law public interest immunity remains available in the AAT. She submitted that there is no suggestion in Pochi that the evidence in that proceeding, which was heard in camera in the absence of the applicant, related to evidence of an informer. As later will be elucidated, this Tribunal respectfully disagrees.

21. Mr Knowles for the Respondent adopted Ms Sharp’s position as advanced in her written submissions, but added three matters. First he submitted that s 130 of the Evidence Act 1995 (Cth) operates as a code insofar as it relates to adducing evidence in court, but has no application beyond that. Second, Mr Knowles noted that s 37(3) of the AAT Act (which provides the obligation for a decision maker to provide all documents ‘notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents’) would but for the special circumstances of this case now be overridden by s 500(6D) of the Migration Act. Were s 500(6D) to apply, it would have governed the provision of documents for matters reviewed in the Tribunal under s 501 of the Migration Act. However Mr Knowles noted the parties were in clear agreement that s 500(6D) did not apply to the current proceeding. Accordingly Mr Knowles submitted that that circumstance, while warranting noting, was of no legal consequence. Third, Mr Knowles submitted that s 36D(6) of the AAT Act draws a clear distinction between the evidence contained in documents, for which ss 36 and 36B operates as a code, and evidence adduced in the course of answering questions, for which ss 36A and 36C do not provide a code. Mr Knowles submitted that this distinction exists to ensure that documents under ss 36 and 36B, if there were no certificates issued, would be dealt with by the Tribunal in the same manner as that of Brennan J in Pochi but left the common law to apply where there was no intervention by an Attorney-General with respect to questions asked in the course of a proceeding.

22. Mr James submitted for the Applicant that, inter alia, the common law rules of public interest immunity were excluded by the operation of the statute, relying on s 36D(6). This exclusion sits alongside the Tribunal’s obligation to afford natural justice and its obligation to perform its statutory function when doing so, as emphasised by Brennan J in Pochi. In support of that proposition, Mr James referred to s 33 of the AAT Act, which vests power in the Tribunal to ‘inform itself on any matter in such manner as it thinks appropriate’.[10] Mr James submitted the Tribunal is entitled under s 33 to follow the approach taken by Brennan J, under the obligation to afford his client natural justice.

    [10] Transcript dated 23 February 2016, page 118, line 36 to page 119, 16.

    DISCUSSION

    The decision of Hobart Central Child Care

23. Dennis Pearce in Administrative Appeals Tribunal[11] notes there has been some disagreement but that the ‘view currently accepted’ is:

    A claim that documents should not be disclosed in the public interest to which no Attorney-General’s certificate relates is to be determined on the principles that apply to such claims when made in judicial proceedings.[12]

    [11] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 4^th ed, 2015).

    [12] At [12.15], citing Re Hobart Central Child Care Pty Ltd and Commissioner of Taxation [2004] AATA 1222; (2004) 84 ALD 86 and Re Moore and Military Rehabilitation and Compensation Commission [2006] AATA 425.

1. On that premise common law public interest immunity, as a substantive legal right, would continue to apply in the Tribunal. This assumes that the relevant principles the Tribunal must have regard to as the judicial analogue for determining such claims are those of the common law, rather than those expressed in s 130 of the Evidence Act 1995 (Cth), which may be doubted.

2. The leading decision representing that view is Re Hobart Central Child Care Pty Ltd and Commissioner of Taxation [2004] AATA 1222; (2004) 84 ALD 86 (‘Hobart Central Child Care’).[13]

   [13] See further, [37]-[41] under heading ‘No reference to s 130 of the Evidence Act 1995 (Cth)’.

3. Ms Sharp and Mr Knowles submit that Hobart Central Child Care was correctly decided and should be followed. However, with respect, we doubt the strength of the key building blocks of reasoning in Hobart Central Child Care. There are three reasons for our scepticism.

   The posited conflict between Queensland Nickel and Ajka

4. The first reason for our doubt lies upon the posited conflict between the reasoning of Gray J, the Presiding Member of this tribunal in Re Queensland Nickel and Great Barrier ReefMarine Park Authority (1991-2) 25 ALD 160 (‘Queensland Nickel’), and that of Deputy President McMahon in Re Ajka Pty Ltd and Australian Fisheries Management Authority (1995) 39 ALD 445 (‘Ajka’).

5. Section 36D(6) of the AAT Act provides:

   Sections 36 and 36B exclude 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.

6. To set up the conflict, Deputy President Forgie in Hobart Central Child Care relied upon a terse observation of Gray J in Queensland Nickel:

   It is plain from s 36D(6) that s 36B is intended to operate as a code, whenever an Attorney-General of a state certifies in terms of subs (1). Any common law rule is specifically excluded by s 36D(3)-(6).[14]

   [14] Hobart Central Child Care [2004] AATA 1222 [62], citing Queensland Nickel (1991) 25 ALD 160, 164.

7. Deputy President Forgie said of that passage:

   It would seem that his Honour meant that s 36B (or 36 in this case) is intended to operate as a code only when a certificate has been issued rather than it operates as a code generally.[15]

   [15] Hobart Central Child Care [2004] AATA 1222 [62].

8. As a result, DP Forgie concluded s 36D(6) could have no operation or work to do in circumstances in which a certificate had not been issued.

9. However, that additional proposition was not an issue in the proceeding before Gray J. His Honour expressed no reasoning capable of being understood to that effect In our respectful view, the further proposition said to follow from the above in Hobart Central Child Care cannot be deduced from the brief statement it cites as its basis made by his Honour in Queensland Nickel, particularly in light of the fact that a certificate had been issued in Queensland Nickel.

10. Moreover, even assuming that we are wrong in that regard, the conflict that DP Forgie posits between the reasoning of Gray J in Queensland Nickel and DP McMahon’s reasoning in Ajka is based on an incorrect premise.

11. Deputy President Forgie assumes that DP McMahon relied upon, but had reached a different view to that of Gray J regarding s 36D(6). That that was an essential assumption for the conflict posited is clear from DP Forgie’s introductory words at [75]:

    If s 36D(6) were to be read in the manner proposed in Ajka so that it has ‘…the effect of displacing the operation of the common law doctrine of public interest immunity in proceedings in this tribunal’.[16]

    [16] Citing Ajka.

12. Yet DP McMahon’s observations in Ajka made no reference to, nor placed any reliance upon s 36D(6). Rather, DP McMahon’s reasoning was based on his doubting whether, having regard to the terms, scope and policy of the AAT Act read as a whole, including its provisions for claims of public interest immunity to be made by State and Commonwealth Attorneys-General, there remained any residual non-statutory scope or basis for the making of such claims. That this was the basis of his observations is clear from his reasons:

    [11] The claim for public interest for the documents specified in Sch 1 to Dr Rayns’ affidavit is based upon the common law. Section 36 of the Administrative Appeals Tribunal Act 1975 empowers the Attorney-General to certify that disclosure of information would be contrary to the public interest for any reasons specified in his certificate that could form the basis for a claim by the crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed. No such certificate has been produced to me. There is no evidence that the respondent has applied to the Attorney-General for the issue of any such certificate. Such certificates are, by virtue of other provisions of s 36, reviewable in certain circumstances, having regard to the principle that it is desirable in the interest of securing the effective performance of the functions of the tribunal, that the parties to a proceeding should be made aware of all relevant matters.

    [12] It seems to me quite possible that s 36 constitutes a code, having the effect of displacing the operation of the common law doctrine of public interest immunity in proceedings of this tribunal. The section imports the criteria of the common law but adds a requirement that any claim should first be certified by the Attorney-General. This may well have been intended as a check against claims made by departmental officers that ought not to have been made. So far as I am aware, a claim such as the present claim is not subject even to approval of the minister responsible for the administration of the principal Act. Section 36 goes further by requiring the approval, not only off the relevant minister, but also of the Attorney-General. It may well be that the section was intended to ensure that the principle of openness which this tribunal espouses, was given primacy except in the most serious of cases. It may well be that in the absence of any such before me and in view of the conclusion to which I have come, it will not be necessary to decide on this occasion the legal effect of s 36 on claims made outside the structure of that section.

13. That reasoning appears to us to be very similar to the reasoning, albeit expressed in different words, of DP Forgie in her earlier decision, ReKanina Banner and Minister for Health and Ageing [2002] AATA 169 (‘Kanina Banner’):

    [4] The fundamental principle is expressed in s 35(1) of the AAT Act and that is to the effect that the hearing of a proceeding before the Tribunal shall be in public. A “proceeding” is defined in s 3(1) and does not extend to conferences, which are held under s 34 and which are confidential. So fundamental is the fundamental principle that, as a general rule, the Tribunal is required to take such steps as are reasonably necessary to ensure that the public nature of the hearing of a proceeding is preserved when a person participates in a hearing by telephone, closed-circuit television or any other means of communication (s 35(1A) and 35A). The only exceptions to the general rule are in relation to the Security Appeals Division (s 35(1AA) and see s 35AA), in cases in which the Commonwealth Attorney-General or a State Attorney-General issues a certificate that disclosure would be contrary to public interest on certain grounds or intervenes in the hearing on the same grounds (ss 36, 36A, 36B, 36C and 36D), in cases in which Parliament has made particular provision to the contrary in legislation other than the AAT Act in relation to particular decisions reviewed by the Tribunal (e.g. Migration Act 1958, s 501K) and in cases in which the Tribunal has made an order under s 3592) of the AAT Act.

14. By limiting the focus in Hobart Central Child Care to a narrow discussion about whether s 36D(6) should be read as applying only to the circumstances in which an Attorney-General of the Commonwealth or a State makes a claim of privilege DP Forgie, in that respect, addressed an argument not made by DP McMahon. Her reasoning in Hobart Central Child Care therefore failed to consider both the substantive argument DP McMahon had advanced in Ajka and her own similar reasoning expressed two years earlier in Kanina Banner.

    No reference to s 130 of the Evidence Act 1995 (Cth)

15. The second reason to be doubtful is that no consideration is given to the Evidence Act 1995 (Cth).

16. Because the Tribunal is not bound by any rules of evidence (s 33), DP Forgie’s decision in Hobart Central Child Care can only be sustained if public interest immunity can be characterised as a substantive rule of law rather than a rule of evidence.

17. The doctrine of public interest immunity as recognised by the common law in judicial proceedings has deep historic roots. It would be prolix to set out that history in detail but originally it was referred to as ‘Crown Privilege’. If Crown Privilege was asserted in relation to a matter proposed to be put in evidence the tender of that evidence was required to be rejected. In Sankey v Whitlam (1978) 142 CLR 1 (‘Sankey’) the High Court of Australia rejected such absolutism. It held that Australian courts should examine the basis for such claims and, balancing the asserted public interests against the interests of justice, determine whether or not the claims should be accepted. The history and the rationale for judicial determination of the validity of such claims are extensively examined by Gibbs ACJ in Sankey. A subsequent account of the history of the doctrine and recommendations to codify the common law principles in legislation can be found in the Australian Law Reform Commission’s Evidence (Interim) and the Evidence.[17]

    [17] Report No 26 (1985) vol 1, 490-492 [863]-[868]; Report No 38 (1987) 124 [220]-[221].

18. With an additional safeguard for those subject to criminal proceedings (permitting the stay of those proceedings) the Commonwealth and NSW Parliaments, in 1995, each legislated in common terms and in conformity with the recommendations of the Australian Law Reform Commission. The Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW) contain mirror sections, each numbered s 130, under the heading ‘Exclusion of evidence of matters of state’.

19. The Commonwealth Parliament has therefore enacted laws, substituting the common law, statutory rules contained in the Evidence Act 1995 (Cth) to govern the reception or exclusion of evidence of matters of state in Commonwealth judicial proceedings. This might be reason to conclude that the correct characterisation of such rules in any federal proceeding, whatever might have been earlier contended, had been resolved by the Parliament in favour of their properly being characterised as rules of evidence. In any event there is no mention of the Evidence Act1995 (Cth) or any discussion of that consideration in Hobart Central Child Care.

    No reference to prior practice in Pochi

20. The third reason to be sceptical of Hobart Central Child Care is the lack of consideration of Pochi, save for where that decison is cited for the proposition that the Tribunal can have regard to all logically probative materials to determine whether or not those materials might be admissible in a court.[18]

    [18] [2004] AATA 1222 [18] (DP Forgie).

21. Pochi, a deportation case, was decided by Brennan J, then President of the AAT and later Chief Justice of the High Court of Australia. In Pochi Brennan J was confronted by the issue of how the Tribunal should deal with a claim for the protection of the sources of highly sensitive information used to combat crime. Those claims were advanced by the respondent rather than by the Attorney-General. His Honour then exercised the powers conferred on the Tribunal by s 35 of the AAT Act. Justice Brennan allowed cross-examination by the applicant’s legal representatives to test the provenance and reliability of the information in the absence of the applicant. His Honour proceeded in that manner on the basis of undertakings made by the applicant’s legal representatives not to disclose that evidence to the applicant.

22. Notwithstanding Ms Sharp’s and Mr Knowles’ submissions to the contrary, in our opinion Brennan J’s approach is logically inconsistent with the existence of a right to claim common law public interest immunity in the AAT. 

23. That is because at common law such immunity is not, and never has been, a private testimonial privilege. The duty to recognise the immunity is independent of a claim for the privilege being made by a party. If there is a recognised public interest to be protected a court must identify and protect that interest even if the parties or the Crown do not make an application.

24. As DP Forgie acknowledged in Hobart Central Child Care, when a potential issue of common law public interest immunity arises in a court, the judge is required to undertake a balancing exercise. This involves the judge determining whether a recognised public interest in protecting the confidentiality of material subject to the claim outweighs the public interest in securing justice in the individual circumstances of a case. If that weighing exercise is resolved in favour of the immunity, the material or information must be prohibited from being adduced as evidence. That was the outcome reached in Hobart Central Child Care, as a result of DP Forgie regarding the tribunal as being required by reason of that analogy to that judicial duty.

25. If DP Forgie was correct that materials relating to the sources of information used to combat crime in Hobart Central Child Care could not be adduced in the AAT because of common law public interest immunity, that also must have been the case in Pochi.

26. Justice Brennan expressly stated in Pochi, that in the deportation case before him, the public interest in protecting the sources of information used to combat crime was ‘paramount’.[19] Given this statement, the common law public interest doctrine, had it applied in the Tribunal, would have obliged the President to rule that the evidence not be adduced and to refuse any cross-examination upon it. The common law privilege, had it applied would not have been capable of being waived.

    [19] (1979) 26 ALR 247, 274 [14].

27. Justice Brennan would have been in error, if the common law of public interest immunity applies in the AAT, in not drawing attention to that immunity and excluding that evidence. His Honour would have been further in error in permitting cross examination to test its credibility. He would have been wrong in the following conclusions:

    Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant—they are there to be exercised, albeit sparingly. The 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 (though a proper entitlement to confidentiality is not lightly established)…[20]

    An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information. If the proceedings were in public; or it must clearly appear that publication of the proceedings could be contrary to public interest; or the information to be given in the proceedings is of a kind described by s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section)…[21]

    In the present case, the public interest in protecting the sources of information used to combat crime was paramount, and it was necessary to ensure confidentiality of the evidence which referred to information of that kind given to Detective Jenkins. In a court of law, the evidence would not have been given at all: Marks v Beyfus [1890] LR 25 QBD 494 at 498.[22]

    [20] (1979) 26 ALR 247, 272 [36]-[43].

    [21] (1979) 26 ALR 247, 272-273 [49]-[8].

    [22] (1979) 26 ALR 247, 274 [13]-[17].

28. His Honour’s reference to how a court of law would have been obliged to exclude the informant evidence (the subject of Marks v Beyfus)[23] upon which he permitted cross-examination in Pochi renders untenable any suggestion that he might have failed to give attention to the issue of common law public interest immunity. Instead he contrasted the position of a court to that of the AAT in respect of a claim where the Attorney-General had not issued a certificate under s 36.

    [23] [1890] 25 QBD 494, 498.

29. The decision in Hobart Central Child Care did not address Brennan J’s central reasoning. It did not grapple with his conclusion that the AAT can have regard to evidence that could not be adduced in a court because in a court that would be precluded by the common law doctrine of public interest immunity.

30. Prior decisions of the AAT are not authoritative statements of the law and are therefore not precedential as are decisions of Ch III courts, but a considered decision by the Tribunal constituted by Brennan J warrants great respect.

    Should Hobart Central Child Care be followed?

31. The question is whether Hobart Central Child Care should be followed as a settled view of the law applied in the Tribunal. Although we are not bound to follow previous decisions of this tribunal there are sound reasons why (assuming that those previous decisions represent a settled view of the law) the interests of consistency in administrative decision-making favours subsequent Tribunals deciding in a like way, save for exceptional circumstances leaving the correction of error to judicial review, if an error exists.

32. However, for the reasons discussed previously we are not satisfied that the decision in Hobart Central Child Care expresses a settled view of the law that can be regarded as having been consistently applied in the AAT.

33. It must be accepted that in Re Moore and Military Rehabilitation and Compensation Commission [2006] AATA 425 (‘Moore’), Senior Member McCabe expressed agreement with DP Forgie’s conclusions. However, we are of the view that, notwithstanding that observation, SM McCabe did not apply common law public interest in that case. Rather than evaluating the competing interests and ruling whether the evidence was or was not to be adduced by applying the common law claim of public interest immunity, SM McCabe dealt with the matter as provided for by s 35 of the AAT Act. He followed the approach of Brennan J in Pochi, in which his Honour had permitted inspection on undertakings of non-disclosure.

34. Indeed, rather than the decision in Hobart Central Child Care representing a settled position we have come to the view that the weight of authority and practice in the Tribunal, if a claim for the protection of the public interest is made and there has been no intervention by an Attorney-General, remains that as established in Pochi.

35. Finally we should note that although interventions by Attorneys-General are far from common they are not unknown. An early example of the Commonwealth Attorney-General intervening is that of Suardana and Minister for Immigration and Ethnic Affairs (‘Suardana’) [1980] AATA 412; (1980) 2 ALD 830.

36. In Suardana the Attorney-General certified that disclosure of certain materials:

    …would be contrary to the public interest for the reason that the disclosure of informants would interfere with the effective detection and prevention of criminal offences in relation to drugs and which reason could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding…[24]

    [24] Suardana (1980) 2 ALD 830, 832 [2].

37. Justice Davies, the then President of the Tribunal considered, as required by ss 36(3) and (4) of the AAT Act, whether that information should be disclosed to any or all of the parties to the proceeding and determined that a number of paragraphs of certain documents should not be disclosed to the applicant. His Honour noted that, whilst not entirely comfortable with the practice, he would have been disposed to allow disclosure to counsel for the applicant on undertakings of non-disclosure if counsel had sought that result. However, in that case counsel did not seek to do so.

1. The following might be noted in passing. Ms Sharp submitted that common law public interest immunity as it applies to informers (Cain v Glass cf Jacobsen v Rogers[25]) prohibits the Tribunal from any weighing of the competing interests and requires it to not permit evidence to be adduced (however capable of protection from disclosure the answers might be).

   [25] (1995) 182 CLR 572, 588.

2. If Ms Sharp is correct in her submission, it would result in a perverse outcome. The protection provided by ss 36(3) and (4) when an Attorney-General intervenes would be superfluous—and less efficacious in barring disclosure in the instance of informers than that applying when no such intervention is made.

   The legislative history

3. In Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247 (‘Maurice’) Bowen CJ observed that it is ‘not entirely clear’ whether the exclusionary rules of common law of public interest immunity applied to proceedings other than court proceedings.[26]

   [26] Maurice (1986) 65 ALR 247, 250 [3].

4. It is therefore far from clear that a construction of the AAT Act that confines the entitlement to claim public interest immunity to instances in which a certificate has been issued by a Commonwealth or State Attorney-General should be regarded as an abrogation rather than the confirmation of the right.

5. The latter was the view taken by McNicol in Law of Privilege in her discussion of whether the privilege can apply in non-curial proceedings pursuant to the AAT Act:

   In many cases the question whether public interest immunity applies in a given tribunal will fall to be determined by reference to the legislative provisions which define the tribunal’s power to compel attendance and to administer an oath and which prescribe penalties for failure to give evidence. A very good example is the Commonwealth Administrative Appeals Tribunal where the application of the public interest immunity doctrine is placed beyond doubt by the inclusion of an express statutory provision on the subject.[27]

   [27] Suzanne B. McNicol, Law of Privilege (Law Book Company, 1992) 378, citing in footnotes ss 28(2), (3), 36, 36A, 36B, 36C, 36D, 39, 46(2) and (3).

6. The identical conclusion was reached by the Australian Law Reform Commission and is expressed in Uniform Evidence Law.[28]

   [28] Report No 102 (2006) [15.165].

7. Viewing ss 36, 36A, 36B and 36C as express provisions that ‘preserved’ (to adopt the expression used by the Australian Law Reform Commission) public interest immunity but limited it to those legal mechanisms is consistent with the historical record, as may be illuminated by materials to which the Tribunal is entitled to refer as indicative of the Parliament’s intention.

8. When the AAT Act was originally enacted, only the Commonwealth Attorney-General was given the power to certify that the disclosure of certain information would be contrary to the public interest. Section 36(1) of the AAT Act provided the Commonwealth Attorney-General could certify that the disclosure of information concerning a specified matter or the disclosure of the contents of a document would be contrary to the public interest.

9. Section 36(5) of the AAT Act at that time provided that s 36 excluded the operation of any rules of law that relate to public interest that would otherwise apply in relation to the disclosure of information or of matter contained in documents in proceedings before the Tribunal.

10. Clause 94 of the Explanatory Memorandum to the Administrative Appeals Tribunal Bill 1975 explained the purpose of s 36(5) as follows:

    What used to be known as Crown Privilege, namely the right of the Government to avoid disclosure of documents on the ground of public policy, has been dealt with by the sub-clauses (1)-(4) of this section. Sub-clause (5) leaves the existing law unaltered as it relates to such matters as solicitor-client privilege or answers to incriminating questions...

11. Clause 94 then referred to an extract from the report of the Bland Committee, identified in the introduction to the Explanatory Memorandum as the Committee on Administrative Discretion.

    The decision maker should be required to make available to the Tribunal all relevant documents in his possession. Yet there must be proper protection of confidentiality of material on security or other sensitive grounds.  While the public interest normally demands open hearings (as provided for in clause 35), there can be no disputing that a Tribunal will frequently find itself faced with material whose confidentiality must be preserved if, indeed, it is to be available to enable the right decision to be reached. It seems to us that appropriate Minister must have power to specify which documents (if any) must, on the grounds mentioned above, be regarded as confidential to the Tribunal or the conditions under which the information they contain may be made available to the applicant or his representative or more widely.

12. As the Explanatory Memorandum to the 1975 Bill which became the AAT Act makes clear, ‘what used to be known as Crown Privilege’ was ‘dealt with’ under ss 36(1)-(4). That this was to be understood as a deliberate alteration to the existing law is made plain by the contrasting statement later appearing in the Explanatory Memorandum that s 35(5) would ‘leave the existing law unaltered’ as it related to matters such as solicitor client privilege and answers to incriminating statements.

13. Two years later the AAT Act was amended by the inclusion of s 36A (Appeals Tribunal Amendment Act 1977 (Cth)). There is no Explanatory Memorandum for the Bill for that Act but the Attorney-General’s (Mr Ellicott QC) Second Reading Speech outlined the reasons for the new provision (as is relevant) as follows:

    The Act does not provide for the Attorney-General to claim a like immunity from disclosure in respect of an answer to a question asked of a witness in proceedings before the Tribunal. New section 36A to be inserted by clause 23 of the Bill, makes provision for this to be done.[29]

    [29] Commonwealth, Parliamentary Debates, Senate, 28 April 1977, 1393 (Robert Ellicott QC).

14. Sections 36B and 36C were only later included in the AAT Act by the Law and Justice Legislation Amendment Act 1988 (Cth). The Explanatory Memorandum to the Bill which later became that Act stated that:

    The effect of sections 36B and 36C is to extend to State and Northern Territory Attorney’s-General the same entitlement to claim public interest privilege currently in proceedings before the Tribunal as the Commonwealth Attorney-General has, except that the grounds available to the States and the Northern Territory will not include the ground of prejudice to the security, defence or international relations of Australia.[30]

    [30] Explanatory Memorandum, Law and Justice Legislation Amendment Act 1988 (Cth) [21].

15. There is nothing in the Parliamentary record at any point to suggest that broadening the entitlement to make a statutory claim for public interest immunity to the answering of questions and extending similar statutory entitlements to the State and Northern Territory Attorneys-General might revive any entitlement in others to claim ‘what used to be known as Crown Privilege’.[31]

    [31] See at [70] above.

16. Section 36(5) of the AAT Act as it was in 1975 has been amended and relocated. It now refers to both s 36 and also s 36B in consequence of the more recent entitlement of State Attorney-General’s to claim a like statutory immunity as can the Commonwealth Attorney-General. In those terms it now appears as s 36D(6). However there is nothing in the Parliamentary record to suggest that its relocation was intended to revive common law public interest immunity in the Tribunal.

17. For that reason we think it wrong to accept the reasoning in Hobart Central Child Care[32] and the oral submissions of Mr Knowles which rely on the fact that while s 36D(6) explicitly refers to ss 36 and 36B it does not make reference to ss 36A or 36C.[33]

    [32] [2004] AATA 1222, [73]-[74].

    [33] It may be noted further that the heading of the provision reads ‘public interest questions under sections 36, 36A and 36C’. It is not entirely clear why s 36B is not included in this heading.

18. In our view that is simply the consequence of the entitlement to intervene on public interest grounds having been conferred on the Commonwealth and State Attorneys- General by ss 36 and 36B respectively. Sections 36A and 36C in our opinion (as the headings to each confirm)[34] are further manifestations of that entitlement.

    [34] Section 36A ‘Answering questions where Attorney-General intervenes on public interest grounds’ and s 36C ‘Answering questions where State Attorney-General intervenes on public interest grounds’.

19. In our view there is nothing in the text or context of s 36D(6) as it is now expressed to support the conclusion that in some manner it works to open a gap which the common law of public interest immunity might fill.

20. As was explained by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 statutes must be construed having regard to context. Their Honours referred with approval to what Dixon CJ had said in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; 92 CLR 390 that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.[35]

    [35] (1998) 194 CLR 355, 381 [69].

21. If the AAT has been conferred with jurisdiction, as it has in this matter, then upon an application being made, the President or his or her delegate constitutes a Tribunal of one to three members appointed under Part II of the AAT Act to undertake independent merits review of the decision.[36]

    [36] Sections 19A and 19B.

22. A person whose decision is subject to review must lodge with the Tribunal a statement of their findings on material facts together with the reasons for their decision and, subject to any directions made by the Tribunal, every other document in their possession or control that is relevant to the review of the decision by the Tribunal.

23. The decision maker must lodge every relevant document with the Tribunal notwithstanding any rule of law relating to privilege or the public interest relating to the production of documents.[37]

    [37] This obligation is equally applicable in these proceedings, conformably with the agreed position of the parties as referred to in the submissions of the Respondent in [21] of this decision.

24. Additionally, the Tribunal can summons other persons to give evidence or produce documents.

25. A summary way of expressing the role of the Tribunal is that it stands in the shoes of the decision maker. The Tribunal is empowered by the AAT Act to review such a decision on its merits having regard to relevant law, the materials lodged with the Tribunal pursuant to s 37 and any further evidence and submissions received by it in order to reach the correct (if only one decision might in those circumstances be made) or preferable decision (if otherwise).

26. It cannot undertake that function unless the materials upon which the original decision maker has relied are available to the Tribunal. If common law public interest immunity exists it would prohibit the adducing of some materials, notwithstanding that any sensitivity could otherwise be protected by orders of the kind crafted by Brennan J in Pochi.

27. And it must be accepted that ss 35 and 39(1) of the AAT Act permit, in terms, a Tribunal to have regard to, and act upon, materials which it has ordered cannot be disclosed to an applicant and, in our view necessarily to be confined to the most exceptional of cases, even their legal advisers.  While the AAT includes members holding judicial commission and is entirely independent of the Executive, as that term is ordinarily understood, the constitutional position of a Tribunal cannot be equated to that of a Ch III court.

28. We are therefore of the view that there is no basis for the Tribunal to apply a residual common law test to exclude from its consideration any part of those materials or other materials produced on summons unless the Attorney-General of the Commonwealth or a State issues a certificate under ss 36 or 36B to require the material to be dealt with other than in the way provided for in s 35. In reaching our conclusion we have had regard to the text, scope and policy of the AAT Act read as a whole together with the relevant accompanying Explanatory Memorandums and other extrinsic materials.

    Decision

29. For the above reasons 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.

30. 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.

31. 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.[38] 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.

    [38] Exhibit NP1.

32. We would ask counsel to confer with each other and Ms Sharp before tomorrow morning to ascertain if the terms of an agreed direction under s 35 of the AAT Act can be settled by consent together with a revised and strict timetable to permit these proceedings to be concluded within the 5 days for which the parties and the Tribunal have made arrangements.

33. As presently minded, but subject to hearing from the parties, the Tribunal is of the view that cross-examination of Detective Inspector Cadden on issues relating to the provenance and reliability of the information supplied to the police, but not as to the individual names of informants, may be permitted in the absence of the Applicant provided that counsel give undertakings that any information so disclosed will not be communicated to the Applicant or any other person unless the Tribunal or a court exercising judicial review otherwise orders. We would exclude all other legal representatives and observers other than Ms Sharp. We would grant Ms Sharp leave to continue to represent the Police Commissioner on the terms previously agreed, restricted to submissions relating to the adducing of evidence.

34. We are also minded, notwithstanding the practical challenges of accurate note taking, that the Tribunal cannot provide transcription for the closed proceedings. While the Tribunal is confident of the capacity of its contracted suppliers to meet ordinary obligations of confidentiality for the transcription services it supplies we do not think that may be adequate security for what may be highly sensitive information. We would want any notes counsel might take of the evidence or submissions to be collected at the conclusion of the closed hearing and placed in a sealed envelope to be retained with the file. Such notes are to be subject to an order that they not be released to any person unless the Tribunal or a court exercising judicial review otherwise orders.  The only staff we would permit to remain during the closed session to assist the Tribunal would be the President’s Associate.

35. We are of the view that in preparing the timetable for the balance of these proceedings a time limit of no more than 1 hour should be allowed for this procedure. That time should incorporate submissions on reliability so that closing addresses need not do more than refer to such matters other than by reference and in the generality.

I certify that the preceding 96 (ninety -six) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

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

Associate

Dated 4 March 2016

Date(s) of hearing	22, 23, 24 and 25 February 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	Ms N Sharp
Solicitors for the Non-Party	Crown Solicitor's Office