GWVR and Director-General of Security
[2010] AATA 1062
•14 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1062
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1663
SECURITY APPEALS DIVISION )
Re GWVR
Applicant
AndDIRECTOR-GENERAL OF SECURITY
Respondent
DECISION
Tribunal Justice Downes, President
Mr MD Allen, Senior Member
Ms G Ettinger, Senior MemberDate of oral decision 14 December 2010
Date of written reasons 23 December 2010
PlaceSydney
DecisionApplication refused.
.................[sgd]...........................
Justice Downes
President
CATCHWORDS
SECURITY ASSESSMENT- Review – Certificate precluding disclosure of evidence – special counsel – power to appoint – application refused
RELEVANT ACTS:
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Security Intelligence Organisation Act 1979 (Cth)
CITATIONS
Amer v Minister for Immigration, Local Government and Ethnic Affair (No 1) (Federal Court of Australia, 18 December 1989)
Leghaei v Director-General of Security [2005] FCA 1576
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
REASONS FOR DECISION
14 December 2010
Justice Downes, President
1. The Australian Security Intelligence Organisation made an adverse security assessment relating to the applicant which caused his Australian visa to be cancelled. The applicant has now returned to New Zealand. Before returning to New Zealand the applicant made application to the Tribunal for review of the adverse security assessment.
2. The applicant apprehended that at the hearing of the matter there may be material to which neither he nor his legal representatives would be given access and against that possibility, which has now turned into a certainty, an interlocutory application was made in the proceedings, for the appointment of a special counsel who would fill the void that would occur with his own lawyers and himself being deprived of access to the material and enable the material to be examined and submissions to be put to the Tribunal in the interests of the applicant by such a special counsel.
3. The application also sought disclosure of the material, to the extent to which that course was not precluded by the legislation, and the giving of a summary of the material, where disclosure of the full material was not possible. Finally, the application sought an order that the cost of the appointment of the special counsel should be borne by a Commonwealth agency, either ASIO or the Attorney-General, or by the Commonwealth of Australia itself.
4. In our opinion, for reasons we will give, it is not appropriate for any of the orders sought by the applicant to be made save that the respondent has accepted that it is appropriate that it should give particulars of the case against the applicant and to include in those particulars any matter that can be disclosed without breaching national security. The applicant will have an opportunity to claim, in due course, that particulars that are supplied are not adequate, if that is the position that the applicant wishes to take. The Tribunal will, at the end of the session this morning, make an appropriate order.
5. It is appropriate to remark at the outset that the Administrative Appeals Tribunal is not a court. It does not exercise judicial power; instead it exercises administrative power. It draws its jurisdiction entirely from statute. Were it not for the fact that a combination of s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) and s 54 of the Australian Security Intelligence Organisation Act 1979 (Cth) confer jurisdiction on the Tribunal to hear an application for review of the adverse security assessment by ASIO, this Tribunal would have no power to do anything.
6. Unlike a court, this Tribunal does not have any inherent power. True, it has implied power, provided that is understood as arising from implication associated with the grant of an actual power. However, in any case in which a source of power or jurisdiction in the Tribunal is sought one must identify a section in an Act or an implication from the words of legislation. Put this way the implication is really no more than the proper interpretation of the statute which is relied upon. It seems to us that this matter must be kept in mind in determining the issues that are before us today.
7. We particularly think it is worth noting that although we are not familiar with the national security regimes of other countries our familiarity with the administrative law systems generally of a number of other countries causes us to suspect that there are very few countries in the world which confer on persons affected by security assessments, such as the one in question here, the kind of rights which the legislation in Australia does confer. Rather than focusing on the limitations of those rights, which inevitably is what happens in cases like the present, we think it is important just for a moment to pause and note how extensive those rights are even with the limitations that are imposed.
8. The real problem in this case arises out of the provisions of ss 39A and B of the Administrative Appeals Tribunal Act and the issuing by the Attorney-General of certificates under those provisions. Applications for review of adverse security assessments are assigned by the Administrative Appeals Tribunal Act to the Security Appeals Division of the tribunal. There are special provisions in the Act dealing with the conduct of matters in that division.
9. Sections 39A and B of the Act operate with respect to proceedings in the division. Both sections have a wide ambit, containing provisions relating to proceedings in the division generally; but both sections also contain provisions relating to the disclosure of material in the proceedings. In particular, they provide for the giving of a certificate by the Attorney-General which, when given, binds the Tribunal and which permits of no discretion at all on the part of the Tribunal. The certificate under s 39A relates to:
“…the disclosure of the evidence or submissions…”
Where the Attorney-General gives a certificate that such disclosure would be:
“…contrary to the public interest because it would prejudice security of Australia…”
other provisions of the certificate have effect. In particular, where the Attorney-General so certifies, the applicant must not be present when evidence is adduced. A person representing the applicant may only be present if the Attorney-General consents. In the present case, certificates have been given by the Attorney-General relating to a range of material identified in a schedule that is itself subject to the certificate.
Section 39B of the Act provides for a different certificate relating to:
“…the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document...”
The Attorney-General is given, by that section, alternative grounds upon which the certificate may be issued. In the present case a certificate has been issued by the Attorney-General on the ground that disclosure would prejudice the security of Australia.
10. The two certificates broadly cover the same material although, consistently with the legislation, the material in the one case is described as evidence or submissions and in the other case as information or documents.
11. There is a particular provision in s 39A(8) of the Act which permits the Attorney-General to add a statement to the certificate as to whether any party representing the applicant can be present when the evidence covered by the certificate is given. In the certificates in the present case the Attorney-General has stated that he does not so consent. The consequence of material being covered by a certificate under s 39A in the form in which the present certificate was issued is that neither the applicant nor the person representing the applicant can be present during the course of the hearing at which the evidence and submissions are to be made. The consequence of the certificate under s 39B is slightly different. Where a certificate is given under s 39B the Tribunal is required to ensure that the information and documents are not disclosed to anyone other than a member of the Tribunal.
12. The certificates under ss 39A and 39B are not subject to any discretionary power on the part of the Tribunal to depart from them. It follows of the material covered by the certificates, firstly, that the information and documents covered by s 39B cannot be made available by the Tribunal to anyone other than a member of the Tribunal. That would seem to preclude the Tribunal from making that information or the information and documents available to any special counsel of the kind that is sought to be appointed here. The limitation imposed by s 39A is slightly different. It precludes the applicant and the applicant’s representative from being present during the course of the presentation of evidence or submissions.
13. It seems to us, in these circumstances, that the Tribunal has no power to make available, from the material it has, any of the material that is subject to the certificates that we have referred to. In the end, and we note that until very recently the applicant was not aware of the fact that the certificates had been given, we do not think that an application for the Tribunal to make available, from the material it has, to the applicant, material which was subject to the certificate was really pressed. However, an application, we think, that some part of the material, by way of a summary, should be available, was pressed. It seems to us that in the face of the certificates it is not open to the Tribunal to order, from the material it has that there be disclosure of that material whether in summary form or otherwise. However, we have indicated that it may well be appropriate, and we mentioned this at the outset of these reasons, that some particulars should be given.
14. It is in this context that it is necessary to approach the question of whether a special counsel should be appointed. The idea of a special counsel is one that has developed currency in recent years. It is a sensible response to the problems that arise when confidential material is to be put before a court in circumstances in which the public interest requires that the material not be available to a party to the proceedings. Special counsel are now frequently appointed in the United Kingdom and, we believe, there have been examples of such appointments in Australia.
15. We note, however, that it may be that the circumstances for appointment of special counsel have been confined, so far, to circumstances in which the liberty of the applicant is in question, because the proceedings are of a criminal nature which might well conclude with a prison sentence. Nevertheless, we are not the first to have observed that it is difficult for a court or tribunal to deal with issues before it in circumstances in which the party whose vital interest is affected is not allowed to know precisely what is before the court or tribunal and, accordingly, cannot test the facts upon which it is based satisfactorily, or put satisfactory submissions. We are only really repeating what the first president of this Tribunal, Sir Gerard Brennan, said in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 55-57, which has been repeated more recently by Lockhart J in Amer v Minister for Immigration, Local Government and Ethnic Affair (No 1) (Federal Court of Australia, 18 December 1989) and by Madgwick J in Leghaei v Director-General of Security [2005] FCA 1576 at [67].
16. We should say a word about what is the nature of special counsel. As we understand it, what is proposed is that a counsel, who would be agreed between the parties and only in default of agreement determined by the Tribunal, would be appointed at the expense of the Commonwealth to ensure that the Tribunal was properly informed in coming to its decision. It might be said that the special counsel would be, in truth, representing the interests of the applicant. However, another way of describing that situation is to say that it would be assisting the Tribunal to come to the correct or preferable decision in the case before it, by ensuring, in circumstances in which this would not otherwise be the position, that the material is tested as well as it might be and that thorough submissions, reflecting the interests of both parties, are put before it.
17. The idea would be, as we understand it, that the counsel appointed might have access to the applicant to understand his position relating to the matter prior to being given access to the documents in the case. The counsel would then be given free access to the documents in the case, in circumstances in which he or she would be precluded from any disclosure of the material. The counsel would then be present during confidential hearings and would test, by cross-examination or otherwise, the evidence and finally make submissions after it had heard the confidential submissions on the part of the respondent.
18. The question whether such an order should be made in the present case is, however, to be determined not by the wisdom of the courts but by the powers of the Tribunal and the limitations on the way in which the present matter can proceed before the Tribunal. The applicant says that the power for the Tribunal to make the appointment comes from section 33(1)(c) of the Act which states that:
The Tribunal… may inform itself on any matter in such manner as it thinks appropriate.
We do not doubt that those words are extremely wide. We see no reason why they should not permit a non-party to be allowed to address the Tribunal or counsel to represent a party in the limited way in which it is suggested that the special counsel should appear before the Tribunal. It also seems to us that there is a basis for argument that the Tribunal has a wide power to permit counsel and others to be present in a hearing in the Security Appeals Division of the Tribunal pursuant to section 39A(5) of the Administrative Appeals Tribunal Act. We do think that there are grave problems with a submission to the Tribunal that it could order that a party to the proceedings pay the costs of special counsel appearing before it, but, as will appear, we do not think it is necessary to deal with that matter in this application.
19. It seems to us that the question of whether the Tribunal has power to order or permit a special counsel of the kind presently contemplated, is a matter of doubt which it is not necessary for the Tribunal to resolve in the present matter and we propose to avoid that course. We would simply say that it is not, to us, evident that such a power does not exist. The reason why it does not seem to us necessary to determine this matter is because it does seem to us that even if the Tribunal had the necessary power, this is a case in which it is not appropriate for the power to be exercised. We would add that cases such as the present case are unlikely to be appropriate vehicles for its exercise in the future.
20. The reason for this flows from the effect of ss 39A and 39B. The first matter to note is that the s 39B certificate, in effect, covers all the ground which the s 39A certificate covers. True, one is talking about information and documents and the other is talking about evidence and submissions but, in reality, looking at what a special counsel will do, it does not seem to us that there is a great difference between the application of the two. It is, accordingly, unnecessary to look particularly at the provisions of s 39A and we will concentrate for the moment on s 39B.
21. What s 39B does is to preclude disclosure of the material to anyone other than a member of the Tribunal or the Tribunal’s staff. That provision seems to us to preclude disclosure to a special counsel, however that special counsel is described. We can see no way in which a special counsel could fulfil any function by being present in the confidential hearing, because the essence of the confidential hearing will be the disclosure of the confidential information and documents. It, accordingly, seems to us that the reality is that a special counsel appointed in this case would really have no function.
22. No application has been made in the present case that the Tribunal should impose any security or confidentiality order under s 35 with respect to any of the material. If such an application were made the Tribunal would have a discretion relating to the identity of persons to whom disclosure was made. In the absence of such an application all of the material before the Tribunal which is not subject to the certificates under ss 39A or 39B can be available to the applicant and will be admitted into evidence in an open hearing of the Tribunal at which the applicant’s representative can be present.
23. It follows that the only situation in which the need for a special counsel might arise relates to the material that is subject to certificates under ss 39A and section 39B. Subject to something we will come to, the consequence would be that the special counsel would not be entitled to see the information and documents and would be precluded from any actual activity in the hearing. The preclusion from seeing the information and document would mean that the role that such a counsel would play would be, frankly, of little or no assistance to the Tribunal over and above the assistance that it will already have. It seems to us, therefore, that the fact that the provisions expressly relating to the exclusion of representatives from the Tribunal, with respect to s 39A, have a different operation to s 39B, really does not affect the position.
24. Mr Lange, for the applicant, has a clever submission which seeks to get around the problem that we have just described. However, like many clever submissions, unfortunately, we think, it has a deep problem. What Mr Lange says is that s 39B only relates to the material which the Tribunal has and that the Tribunal can order that the same material be made available, in effect, from the files of the Director-General. We regret to say that it seems to us that by necessary implication the certificate under s 39B would preclude the making of any such order.
25. Dealing very briefly with s 39A, there is much force in the proposition that any special counsel would also amount to a representative of the applicant and would also be expressly excluded from access to the material by the provisions of that section. However, as we noted in argument, it does seem to us that someone more aptly described as an amicus, rather than a special counsel, who fulfilled the same function, could be described as someone who was not a representative of the applicant.
26. For all the above reasons it seems to us that the Tribunal should not accede to the application to appoint a special counsel however that role is described. It further seems to us that the Tribunal must decline to make the material subject to the certificates available to the applicant, whether from the material before the Tribunal or from the copies of that material retained by the respondent. It is appropriate, however, that the respondent be directed to give such particulars of the case against the applicant and with as much specificity as possible, as it can give, without breaching national security, noting that very often particulars can be given of the essence of a case without disclosing details that would offend against national security.
27. We think that this proposal is something akin to what has been described in the United Kingdom as disclosing the gist of the case against an applicant. In due course, the Tribunal will make an order relating to the time in which the particulars should be supplied. It will then be a matter for the applicant as to whether the applicant considers the particulars are satisfactory. In the result we are of the opinion that subject to the provision of the particulars the application of the applicant otherwise wholly fails.
I certify that the twenty-seven (27) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President, Senior Member Allen, and Senior Member Ettinger
Signed: ...................[sgd]......................................................
Alison Connor, AssociateDate of Hearing: 14 December 2010
Date of Oral Decision: 14 December 2010
Date of Written Reasons: 23 December 2010
Solicitor for the Applicant: Legal Aid Commission of NSW
Counsel for the Applicant: Mr P Lange
Solicitor for the Respondent: Australian Government Solicitor
Counsel for the Respondent: Mr T Begbie
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