Re BLBS and Minister for Foreign Affairs and Trade
[2012] AATA 464
•20 July 2012
CATCHWORDS – SUMMONS –adverse security assessment and decision to refuse to issue or cancel a travel document - whether to agree to request to issue summonses - relevant principles in deciding to issue or refuse to issue a summons – regard had to issues to be considered and decided in reviewing decisions – outline of issues - summonses issued.
PRACTICE AND PROCEDURE – SUMMONS - whether inspection order required when documents voluntarily provided – documents provided under summons are provided under compulsion – inspection order required – acknowledges and emphasises that subject to implied undertaking limiting use of documents.
Acts Interpretation Act 1901 s 15AB(1)(b)
Administrative Appeals Tribunal 1975 ss 3(1), 21(2), 25, 28, 29, 29A, 33, 35, 35AA, 36, 36B, 38A, 39A(8), (10) (14), 39B(2)(a), (3), (4), (5), (7), (8) and (11), 40(1), (1B), (1C) and (1D), 43AAA, 66 and 68
Administrative Appeals Tribunal Act 1975 ss 25, 33(1)(a), 33(1)(c), 35, 35(1), 35(2), 35(2)(a), 35(2)(aa), 35(2)(b), 35(2)(c), 35AA, 35AA(d), 36‑36D, 37, 37(1AAA), 39(1), 39(6), 39A, 39A(2), 39A(3), 39A(5), 39A(6), 39A(8)-39A(15), 39A(17), 39B, 39B(2), 39B(2)(a)-(b), 39B(3), 39B(4), 39B(5), 39B(7), 43, 43(1A), 43(2B), 43AAA, 43AAA(1)-43AAA(8) and 46
Australian Passports Act 2005 ss 14, 14(1), 14(1)(a)(i), 14(2), 14(3), 14(3)(a), 14(3)(a)(i), 14(3)(a)(ii), 14(3)(b), 14(3)(b)(iii), 15, 16, 18(1), 19 and 22(2)(d)
Australian Passports Bill 2004
Australian Passports Determination 2005 s 3.4
Australian Security Intelligence Organisation Act 1979 ss 4, 17(1)(c), 37(1), (2), (3) and (4), 35(1), 38(1), (1A) and (2)(b), 61 and 65(3)
Australian Security Intelligence Organisation Act 1979 ss 4, 8, 17, 17(1)(c), 35(1), 37(1), 37(2), 37(2)(a), 37(3), 37(4), 38(1), 38(1A), 38(2)-(5), 54(1)-(2), 61, 64, 65(3) and 81
Conveyancing Act 1919 s 66G
Evidence Act 1995 ss 7, 76 and 79
Federal Court of Australia Act 1976 (Cth) Part IVA
Income Tax Assessment Act 1936
Migration Act 1958 ss 36(2), 196(1) 429, 501, 501(2), 501(6), 501(6)(b) and 189(1)
Mines Act 1928 (Vic)
Motor Traffic Ordinance 1939 (ACT) s 139D(1)
Real Property Act 1900 s 86(1)
Stamp Duties Act 1920 (NSW) ss 65 and 66
Supreme Court Rules 1970 Part 55 Rule 10(b)
Tasmanian Criminal Code s 157(1)
Taxation Administration Act 1953 ss 14ZZE and 14ZZK(2D)
Telecommunications (Interception and Access) Act 1979
Telecommunications Act 1997 ss 58A and 581(3)
Trade Practices Act 1974 ss 45(4), 45A and 87(1A)
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250
Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375
Australian Telecommunications Commission vKriegEnterprises Pty Ltd (1976) 14 SASR 303
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Boughey v R (1986) 161 CLR 10; 65 ALR 609
Brown v Commissioner of Taxation [2001] FCA 276; (2001) 47 ATR 143
Brown v Federal Commissioner of Taxation [2001] FCA 276; (2001) 47 ATR 143
Chamberlain v The Queen (1984) 153 CLR 521
Chamberlain v The Queen (No. 2) (1990) 170 CLR 573
Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Church of Scientology v Woodward (1982) 154 CLR 25
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Copperart Pty Ltd v Federal Commissioner of Taxation [1993] ATC 4779; (1993) 30 ALD 377
Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432
Cruickshank v Warren (1976) 9 ACTR 30
Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29
George v Rockett (1990) 170 CLR 104
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82; 55 ALR 25
Goldie v Commonwealth of Australia (2002) 188 ALR 708
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259
Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468
Hunt v Wark (1985) 40 SASR 489
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101
Mandic v Phillis [1] [2005] FCA 1279; 225 ALR 760
McKinnon v Voigt [1998] 3 VR 543
McWilliams Wines Pty Ltd (1980) 33 ALR 394
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Minister for Immigration and Multicultural Affairs v Chan [2001] FCA 1552
Nolan v Nolan [2004] VSCA 109
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 62 ALJR 389
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 48 ALD 222; 147 ALR 322
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203
Poignand v NZI Securities Australia Ltd (1992) 37 FCR 363; 109 ALR 213
Project Blue Sky Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266
R. v Harvey [2001] VSCA 19
Re Bullivant's Natural Health Products Pty Ltd and Minister for Health and Family Services (1996) 43 ALD 305
Re Lawrance and CRS Australia and Others [2004] AATA 1136
Re Mann and Capital Territory Health Commission (No. 2) (1983) 5 ALN N261
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247
Re RACV Sales and Innovation Australia [2012] AATA 386
Re Rana and Inspector-General for Bankruptcy [2011] AATA 432
Re Skase and Minister for Immigration and Citizenship and Multicultural Affairs [2005] AATA 200
Re Tang and Minister for Immigration and Citizenship [2012] AATA 330
Re VBW and Australian Prudential Regulation Authority [2005] AATA 1294; (2005) 89 ALD 643; 42 AAR 206
Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1984) 34 ALD 773; 20 AAR 116
Re Wertheim and Department of Health (1984) 7 ALD 121
Re Window and Civil Aviation and Safety Authority (1999) 56 ALD 316
Regina v Hannes [2006] NSWCCA 503
Schnable v Lui [2002] NSWC 1184
Sheen v Fields (1984) 51 ALR 345; 58 ALJR 93
Smith v Repatriation Commission (1987) 74 ALR 537
Summers v Moseley [1834] EngR 320; (1834) 2 Cr & M 477
Sweeney v Fitz-Hardinge (1906) 4 CLR 716
Thomas v Mowbray (2007) 237 ALR 194
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; 42 FLR 331
Trade Practices Commission v Ansett Transport Industries (Operations) Pty. Ltd. and Others (1978) 32 FLR 305
Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306; 88 ALR 90
Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1; 58 ALR 423
Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125
Waind v Hill and National Employers’ Mutual General Association Ltd [1978] NSWLR 372
Ward v Williams (1955) 92 CLR 496
DECISION AND REASONS FOR DECISION [2012] AATA 464
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2011/1519
SECURITY APPEALS DIVISION )
Re:BLBS
Applicant
And:MINISTER FOR FOREIGN AFFAIRS AND TRADE
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2011/1521
SECURITY APPEALS DIVISION )
Re:BLBS
Applicant
And:DIRECTOR-GENERAL OF SECURITY
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 20 July 2012
Decision: The Tribunal decided:
1.on 8 May 2012, to issue the summonses directed to the Australian Security and Intelligence Organisation and two other agencies as requested by the applicant;
2.on 14 June 2012 to make the following orders with respect to their inspection, access and storage:
“1.The Confidential Documents are those produced by ASIO and two other agencies in accordance with Summonses dated 8 May 2012.
2.The Confidential Documents shall be regarded by any person having access to those documents as confidential for the purposes of these proceedings and will not, without the prior written consent of the Respondents or the prior leave of the Tribunal (which shall only be given after the Respondents have been heard on the question of whether such leave should be given) be disclosed, in whole or in part, to any person except as permitted by these Orders.
3.In addition to any applicable provision of ss 39A or 39B of the AAT Act, access to the Confidential Documents shall be restricted to:
a. the Tribunal and its staff;
b.the Applicant and his legal representatives (‘legal representative/s’ includes counsel);
c.the Respondents, their officers and legal representatives;
d.such other persons as may be agreed in writing between the parties or with the prior leave of the Tribunal (which shall only be given after the Respondents have been heard on the question of whether such leave should be given) and upon the terms agreed by the parties or ordered by the Tribunal.
4.Subject to Orders 5 and 6, upon the making of these Orders the persons referred to in paragraph 3 of this Order shall handle the Confidential Documents (or any part thereof), and any documents produced that reveal their content, as follows:
a.the Confidential Documents shall be stored in a locked commercial cabinet when not in use for the purposes of the proceedings; and
b.the persons referred to in Orders 3(a) and 3(b) shall not disclose the contents of the Confidential Documents (or any part thereof) to any person and shall not make any use of the contents of the Confidential Documents (or any part thereof) other than for the purpose of these proceedings.
Storage and handling of the Confidential Documents by the Applicant and his legal representatives
5.The Confidential Documents shall be stored in a locked commercial cabinet at the premises of the Applicant’s legal representatives on the following conditions:
a.the Confidential Documents only be removed from the locked commercial cabinet by the Applicant’s legal representative and must remain in his/her immediate custody when out of the safe;
b.the Confidential Documents be locked in the locked commercial cabinet whenever they are not in the Applicant’s legal representative’s immediate custody;
c.the room in which the locked commercial cabinet is located be locked whenever the Applicant’s legal representative is not present (unless the Respondents have agreed, in writing, to appropriate alternative security arrangements for the purposes of this Order);
d.any working papers, and computer, are deemed to be Confidential Documents and shall be stored and handled in accordance with these Orders.
Transportation of the Applicant’s copy of the Confidential Documents to the Tribunal
6.The Applicant’s legal representative may remove the Confidential Documents from his/her premises only in order to transport them to the Tribunal, and only by safehand (ie, hand-delivery of documents carried in a secure briefcase), consistent with the requirements set out in the Protective Security Policy Framework.
7.The Respondents, upon reasonable notice, could arrange at the Applicant’s request for Confidential Documents to be delivered to the Tribunal by safehand (including for the filing of such documents with the Tribunal).
Use of the Confidential Documents
8.Any discussions or playback of the contents of any of the Confidential Documents held by the Applicant’s legal representatives (under Order 5) shall be in person and in private. In particular, the Confidential Documents shall not be played or broadcast over any telecommunications device (including telephone and computer) or by any other electronic means and they shall ensure that any such discussions are not observed or overheard by any person.
9.The Applicant and his legal representatives will not make any copies of the Confidential Documents or record any information therein in any way other than in accordance with Order 5(d).
10.Within 28 days after the end of the proceedings (including any Federal Court appeal), the Applicant’s legal representatives shall deliver all Confidential Documents in their possession to the Australian Government Solicitor ("AGS") for destruction (apart from any computer referred to in Order 5(d) which shall be reformatted by the Applicant’s legal representatives).
11.Should the Applicant’s current legal representatives (Grace Morgan of Robert Stary Lawyers and Julian McMahon of counsel) cease to represent the Applicant, all Confidential Documents in her/his possession shall be delivered to AGS, pending further orders establishing a new regime for storage, use and handling of the Confidential Documents.
12.For the avoidance of doubt, these Orders continue to apply, according to their terms, after the conclusion of the proceedings, and shall also apply to any Tribunal findings which refer to information contained in the Confidential Documents.
13.The Applicant or his legal representatives shall forthwith bring to the attention of AGS, any non-compliance with these Orders.
14.Liberty to apply.”; and
3.on 8 June 2012 directed that the applicant in both matters be identified by the pseudonym “BLBS” until further order.
S A Forgie
Deputy President
REASONS FOR DECISION
Using its powers under the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the Australian Security Intelligence Organisation (ASIO) issued an adverse security assessment against BLBS. On receiving that security assessment, the Minister for Foreign Affairs and Trade (Minister) made a decision affecting BLBS’s entitlement to hold travel documents under the Australian Passports Act 2005 (Passports Act). BLBS has applied to the Tribunal for review of both ASIO’s security assessment and the Minister’s decision. Both applications are heard in the Tribunal’s Security Appeals Division.[1]
[1] On 2 November 2011, the former President, Downes J, issued a Direction under s 20(2) of the AAT Act that: “… any application for review of a decision that: (a) is related to an application for review of an adverse or qualified security assessment made under the Australian Security Intelligence Organisation Act 1979 (a security assessment application); and (b) is to be heard at the same time as a security assessment application; be dealt with in the Security Appeals Division of the Tribunal. This direction applies to: (a) applications lodged prior to the date of this Direction that have not been finally determined; and (b) applications lodged on or after the date of this Direction.”
BLBS asked the Tribunal to issue a summons to each of ASIO and two other Commonwealth agencies for the production of certain documents. As a summons may only be issued for the purposes of a proceeding before the Tribunal, I have had regard to the issues that must be considered and decided in reviewing a security assessment for that is the decision that seems to be central to the resolution of these proceedings. The provisions of the Administrative Appeals Tribunal 1975 (AAT Act) restricting access to certain documents are also relevant. Taking these matters into account, I decided that the summonses should be issued. On being served with them, the three agencies produced documents to the Tribunal in response to the summonses and gave copies of them to the solicitors acting for BLBS. They withheld documents that are subject to a certificate signed by the Attorney-General.
I now give my reasons for issuing the summonses and for formally making an inspection order even though the three agencies had already given copies of the documents to BLBS’ solicitors. At the hearing, the question whether the applicant should be named was also raised. He has been given a pseudonym for the purposes of the file relating to his application for review of the security assessment but not for the purposes of the file relating to his application for review of the Minister’s decision in relation to his travel documents. The applicant’s solicitor, Ms Morgan, is seeking instructions as to her client’s views on the subject. In the meantime, I have made a confidentiality order so that he is known as BLBS in both matters. I have also given my reasons for making a confidentiality order under ss 35 and 35AA of the AAT Act in relation to the documents that the agencies have produced under summons.
POWER TO ISSUE A SUMMONS
Section 40(1A) of the AAT Act provides that:
“Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:
(a)to give evidence; or
(b)to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or
(c)to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.”
Section 40(1B), to which s 40(1A) is subject, provides that the power to require appearance or production of books, documents or things at a hearing extends to the power to make a similar requirement at a directions hearing.[2]
[2] Section 39A(14) provides that, in the context of an application made for the review of a security assessment in the Security Appeals Division, the Tribunal may, on its own initiative, cause a person to be summoned to give evidence.
The Registrar, District Registrar or Deputy Registrar must not refuse a request to issue a summons unless the refusal is authorised by a presidential member, a senior member or an authorised member.[3]
LIMITS OF POWER TO ISSUE OR TO REFUSE TO ISSUE A SUMMONS
[3] AAT Act, s 40(1C)
The relevant principles
The principles that are relevant in considering whether to issue a summons are inextricably linked to the requirement in s 40(1A) that the power be exercised “for the purposes of the hearing of a proceeding”. A “proceeding” has a broad meaning as appears from its definition in s 3(1) of the AAT Act. In the context of this case, the reference is to a proceeding that is the review of the security assessment and to another that is for the review of the Minister’s decision regarding the travel document. Whether the power is exercised for the purposes of the hearing of a proceeding that is an application for review of a security assessment, depends upon two matters. The first is whether the documents described in the summons could have some apparent relevance to the issues to be decided in the course of that review.[4] The second is whether, having regard to the documents described in the summons, they are described in terms that would lead to the conclusion that, if issued, the summons would be set aside as being for a purpose recognised by the law as improper.[5]
[4] As described by Beaumont J in Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306; 88 ALR 90, the question is “… Does the material sought have an apparent relevance to the issues in the principal proceedings, ie. is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts. …” and so, in the case of the Tribunal, from the point of view of the party requesting the issue of the summons.
[5] The courts have developed a number of subsidiary rules that could also be regarded as illustrations of the general rule. Examples were set out by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 when he said that:
These are the same matters that could be relied upon by the person served with a summons in making an application to have it set aside. They are the same matters that the Tribunal would consider in deciding whether to set a summons aside. The difference between the two, I suggest, is the difference in degree of satisfaction that must be reached by the issuing officer in issuing a summons and that reached by the Tribunal in setting it aside. An issuing officer must be satisfied of two things. The first is that, on the face of the summons, it appears that the documents described have some apparent relevance to the issues to be decided in the course of the review. That does not require an analysis of the provision in any detail but rather a broad overview of the nature of the decision, as it were. The question becomes: could it be said that documents of this description could have some apparent relevance to the review of that type of decision. The second thing of which an issuing officer must be satisfied is that the documents are described with sufficient particularity that they can be identified by the person on whom the summons is served.[6] Again, that does not require any investigation of how that person will view the documents sought by the summons or the impact upon that person. All that it can be is a common sense check having regard to the description of the documents sought in the summons.
[6] “… The terms ‘oppressive’ and ‘vexatious’ are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are ‘seriously and unfairly burdensome’, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment”: Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 62 ALJR 389 per Deane J at 411; [1988] HCA 32; 79 ALR 9 at 45. As Beaumont J said in Arnotts, “… Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly.” [6] (1989) 21 FCR 306; 88 ALR 90 at 315; 102-103 i.e. from the point of view of the person summoned.
It is to be expected that, in the vast majority of cases, an issuing officer will answer both questions in favour of issuing the summons as requested. If in doubt, I would respectfully suggest that he or she should always err on the side of doing so. To do otherwise is to run the risk of preventing, or at least impeding, one party or the other in gathering evidentiary material relevant to his or her case. That would be contrary to the Tribunal’s duty, subject though it is to certain qualifications,[7] to “… ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case …”.[8] Although the Tribunal does not wish to impose work upon a summoned person or cost, he or she does have the right to object to a summons if it should not be relevant in the required sense or amount to an abuse of process and ask the Tribunal to set it aside so that compliance is not required.
[7] AAT Act, ss 35, 36 and 36B referred to below
[8] AAT Act, s 39(1)
Applying the principles
In this case, I had regard to the issues that are relevant in reviewing a security assessment. I have set them out at Attachment B relying on the legislative framework in Attachment A and using s 14 of the Passports Act as an example of a decision that may be made by the Minister under that legislation and that is prescribed administrative action for the purposes of the ASIO Act. This may or may not be the section under which the Minister has made his decision in this case. Until the case is further advanced and the issue of whether confidentiality orders should be made determined, it is preferable to draw out the issues and principles that may be relevant in general terms. I have done so only for the purpose of setting the context in which BLBS requested the issue of the summonses to the three agencies and for illustrating the types of issues that may be relevant in determining applications in the Security Appeals Division. They were relevant in my deciding whether to issue the summonses in the first place, making inspection orders and making confidentiality orders but, as with any part of the law that has not been the subject of published consideration and detailed submissions by the parties, can be regarded only as my preliminary views. They will benefit from further considered reflection in light of the views expressed by others over time.
I was satisfied that the documents described in the summonses to each of the three agencies were clearly identified and have apparent relevance to the issues in the sense that the description of the documents, when matched with the issues that must be decided, gave me reason to suppose that the documents sought were capable of being used for the purpose of the review of the application. That does not mean that the documents would necessarily be admissible at the hearing or even that the parties would tender them. All that is required is that “... There must be some reason to suppose that the documents sought will be capable of being used ....”[9] in the hearing of the applications for; that they have apparent or adjectival relevance.
[9] Hunt v Wark (1985) 40 SASR 489 at 493
THREE STEPS FOLLOW SERVICE OF A SUMMONS
Three steps follow the issue of a summons. The first two precede the substantive hearing of the issue by the court or Tribunal and the third occurs during the course of, and as part of, that hearing. They have been identified by Moffit P in Waind v Hill and National Employers’ Mutual General Association Ltd[10] (Waind v Hill):
“The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.”[11]
[10] [1978] NSWLR 372
[11] [1978] NSWLR 372 at 381
PRODUCTION OF DOCUMENTS
I am concerned with only the first two steps of production and inspection. As a general rule, objections might be made to production on various grounds including legal professional privilege or public interest immunity.[12]
[12] If a claim for legal professional privilege is made out, the documents, or the relevant part or parts of them, need not be produced. That will be the case if a claim that they are subject to public interest immunity is made. A claim of that sort will require the Tribunal to weigh the claim against the competing public interest of the proper administration of justice, which might be impaired were the Tribunal to be denied access to relevant and otherwise probative material: see The Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604; 112 ALR 409; at [7]; 616; 413per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ; Toohey J dissenting
In the context of an application for review of a security assessment and a related decision in the Tribunal’s Security Appeals Division, s 39B(3) provides, in part, that:
“A person who is required by or under this Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement …”
That means that the three agencies were required to produce documents on summons as any other person would be required to do. The provisions of the AAT Act and of ss 39A and 39B in particular do not qualify their obligation. What they do qualify is the Tribunal’s power to make an inspection order and I will turn to that now.
INSPECTION ORDERS
This is the second step identified in Waind v Hill. Section 40(1D) of the AAT Act provides that:
“A presidential member, a senior member or an authorised member may give a party to a proceeding leave to inspect a document produced under a summons.”
Is it necessary to make an inspection order when disclosure has been made voluntarily before an order is made?
Is it necessary to make an inspection order when those upon whom the summonses have been served have voluntarily given copies of the summoned documents, or some of them at least, to the party at whose request the summons was issued? I have decided that it is necessary because an inspection order makes it clear that the documents were given under compulsion as a result of the summons procedure and not as a voluntary disclosure. That distinction is important for compulsory production or disclosure gives the documents a protection from disclosure that they would not otherwise enjoy. The protection is, in the absence of leave having been given by the Tribunal, a protection from being used for purposes other than those relevant to the proceeding for which they were summoned.
I have considered this implied undertaking in Re Rana and Inspector-General for Bankruptcy[13] and in Re Tang and Minister for Immigration and Citizenship.[14] Implied undertakings were considered by the High Court in Hearne v Street[15] by Hayne, Heydon and Crennan JJ in the context of court proceedings. They are equally applicable to the Tribunal.[16] Their Honours said:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise …, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies includes documents inspected after discovery …, answers to interrogatories …, documents produced on subpoena …, documents produced for the purposes of taxation of costs …, documents produced pursuant to a direction from an arbitrator …, documents seized pursuant to an Anton Piller order …, witness statements served pursuant to a judicial direction … and affidavits …”[17]
[13] [2011] AATA 432 at [64]-[69]
[14] [2012] AATA 330 at [179]
[15] [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259; Gleeson CJ, Kirby, Hayne, Heydon and Crennan JJ
[16] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 48 ALD 222; 147 ALR 322 at 472; 227; 327-328 per Sundberg J
[17] [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 at [96]; 154; 632; 1276 (footnotes omitted)
Factors relevant to deciding whether to make an inspection order
It is relevant to consider these factors in the context of both a hearing to which ss 39A and 39B apply and one in which they do not. That follows from the fact that the summons were issued in respect of the proceedings for review of the security assessment and for review of the Minister’s decision.
A.Factors that are relevant in proceedings other than the review of a security assessment in the Security Appeals Division
In cases in Divisions other than the Security Appeals Division, factors that are relevant in deciding whether or not to make an inspection order vary according to the documents produced and the issues to be decided. If, for example, a claim for public interest immunity were made at this stage rather than as part of an objection to production at all, the Tribunal would generally have to balance the claim against the public interest in the administration of justice including the Tribunal’s obligations to accord procedural fairness whether under the general law or under s 39(1) of the AAT Act.[18] If the Attorney-General of the Commonwealth or of a State were to issue a public interest certificate under either s 36(1) or s 36B(1), as the case might be, the Tribunal would need to have regard to the restrictions on disclosure imposed upon it by the other provisions of ss 36 and 36B.
B.Factors that are relevant in proceedings for review of a security assessment in the Security Appeals Division
[18] Section 39(1) provides: “Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”
Section 39(2) expressly provides that the Tribunal’s obligation under s 39(1) does not apply to a proceeding in the Security Appeals Division, to which s 39A applies i.e. to an application for review of a security assessment. Its procedure is regulated instead by provisions such as ss 35AA, 38A, 39A and 39B of the AAT Act. The Tribunal’s discretion to disclose information of certain types and in certain situations has been limited when an application is made to it for review of a security assessment.
Arguably, s 39B(8) removes the Tribunal’s discretion to weigh the public interest in non-disclosure against the public interest in disclosure in a claim for public interest immunity.[19] Section 38A expressly limits the Tribunal’s discretion when the Attorney-General has given a certificate under s 38(2)(b) of the ASIO Act.[20] Sections 39A(9) and (10) does so if the Minister administering the ASIO Act (i.e. the Attorney-General) certifies in writing under s 39A(8) that submissions proposed to be made or evidence to be adduced on behalf of the Director-General of ASIO (Director-General) or an agency to which the assessment was given are of such a nature that their disclosure would prejudice the security or defence of Australia.[21] So too does s 39B(11), which provides that:
“It is the duty of the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.”
[19] Section 39B(8) provides: “This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding.”
[20] The Attorney-General may do so under s 38A(1) if satisfied that the withholding of notice of the making of a security assessment in respect of the person concerned is essential to the security of the nation or disclosure of the grounds given in that particular security assessment or a particular part of that security assessment would be contrary to the public interest because it would be prejudicial to the interests of security. Section 38A(2) provides that “The Tribunal must not, at any time, tell the applicant of the existence of, or permit the applicant to have access to any copy or particulars of, a certificate of the Attorney-General referred to in subsection (1) or any matter to which the certificate relates.”
[21] The applicant must not be present when the evidence is adduced or submissions made and the applicant’s representative may only be present if the responsible Minister consents and then subject to restrictions specified in s 39B(10).
Of relevance in this case is s 39B(2), which effectively provides that ss 39B(3), (4), (5) and (7) apply when the Attorney-General has issued a certificate in writing that:
“… the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest:
(a)because it would prejudice security or the defence or international relations of Australia; or
(b)because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or
(c)for any other reason stated in the 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 contents of the document should not be disclosed;
…”
If a document has information of that sort or is a document referred to in the certificate, s 39B(3) provides that a person is not excused from disclosing the information or from producing the document to the Tribunal if required to do so. The Tribunal, though:
“… must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure:
(a)that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding; and
(b)in respect of a document produced to the Tribunal—that the document is returned to the person by whom it was produced.”
The effect of s 39B(4) is that s 39B(3) does not prevent the Tribunal from disclosing information to the Director-General if the reason stated in the certificate is referred to in s 39B(2)(a).[22]
[22] Section 39B(3) “…does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal’s staff in the course of the performance of his or her duties as a member of the Tribunal’s staff.”: AAT Act, s 39B(7).
Section 39(5) applies to a situation in which the Attorney-General has issued a certificate under s 39B(2) but does not state a reason referred to in either ss 39(2)(a) or (b) i.e. it does not state either that disclosure would be contrary to the public interest because it would prejudice security or the defence or international relations of Australia or that it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council. In that situation, s 39(5)(b) provides that if:
“… the presidential member presiding is satisfied that the interests of justice outweigh the reason stated by the Attorney‑General;
the presidential member may authorise the disclosure of the information, or of the contents of the document to, the applicant.”
There is a question whether the reference in this provision is a reference to the presidential member presiding over, as in this instance, a return of summons hearing or a reference to the presidential member presiding over the hearing of the proceeding that is the hearing of the application for review of the decision. It is not necessary to resolve that question in this case at the moment.[23]
[23] Resolution of the issue would include consideration of the reference in s 39A(4) to the “presidential member who is to preside, or is presiding, at the hearing” as well as the reference to “the presidential member” in ss 39B(5) and (6). There may be an argument that the presidential member is intended to be the same presidential member. That would be consistent with the restrictions on disclosure of information provided for in s 39B. From a case management point of view, I acknowledge that pragmatic considerations would prefer that a broader, rather than a narrower, interpretation be favoured.
Inspection orders
In this case, I am dealing at this stage with the documents that are not the subject of a certificate. As no objection is made to their disclosure, I have made an inspection order relating to the documents produced on the return of summonses issued in both matters.
RESTRICTING ACCESS TO DOCUMENTS IN RESPECT OF WHICH AN INSPECTION ORDER HAS BEEN MADE
Factors that are relevant in proceedings other than the review of a security assessment in the Security Appeals Division
Section 35 of the AAT Act applies to proceedings other than those in the Security Appeals Division for review of a security assessment.[24] Of relevance in this part of my reasons are ss 35(2)(b) and (c), which provide:
“Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a)-(aa)…
(b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.”
[24] AAT Act, s 35(1AA)
In considering whether these powers should be exercised, s 35(3) provides that:
“… the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”
Documents produced under summons do not come within the description of “evidence given before the Tribunal” or of “documents lodged with the Tribunal or received in evidence by the Tribunal” as set out in ss 35(b) and (c) and in s 35(3) (emphasis added). They are not evidence unless admitted in evidence and that comes about at a later stage than this, if it comes about at all.
Are they documents “lodged” with the Tribunal? This a question that I considered in Re Skase and Minister for Immigration and Citizenship and Multicultural Affairs[25]when I concluded that it does not extend to material that is produced to the Tribunal in accordance with a summons. I did so on the basis that books, documents or things are produced under a summons and not lodged. That is the language of ss 40, 61 and 62, all of which relate to the issue of a summons to “produce” them or failure to comply with it. It is also the language of s 39B in relation to documents “produced” in the Security Appeals Division of the Tribunal or in cases in which an Attorney-General’s public interest certificate has been issued.[26]
[25] [2005] AATA 200
[26] ss 36, 36B and 66
The word “lodge” is used in a variety of provisions; 52 in all. It is, for example, used in ss 35AA, 38A and 39B relating to the Security Appeals Division as well as in a number of sections of more general application: ss 21(2),[27] 28, 29(1)(d),[28] 29A(2),[29] 35,[30] 37(1),[31] 38[32] and 68.[33] Sections 36 and 36B include references to both words. Both relate to the protection of information from disclosure in Divisions other than the Security Appeals Division when the Commonwealth or a State Attorney-General certifies that disclosure of information concerning a specified matter or disclosure of matter in a document would be contrary to the public interest for a reason set out in ss 36(1) or 36B(1) as applying to the Attorney-General.
[27] “Where, before the commencement of the hearing of a proceeding before the Tribunal, there is lodged with the Tribunal, as prescribed, a notice, signed by or on behalf of all the parties, stating that they have agreed that the proceeding should be dealt with by the Tribunal constituted by a presidential member alone, the Tribunal may, if the President directs under section 20B, be constituted for the purposes of that proceeding by a presidential member alone.”
[28] “An application for review of a decision … if the terms of the decision were recorded in writing and set out in a document that was given to the applicant … shall be lodged with the Tribunal within prescribed time.”
[29] “An application in respect of which a fee is waived under the regulations, whether at the time of lodgement or later, is taken to be made at the time it is lodged with the Tribunal.”
[30] “Where it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order: (a) …; and (aa) …; and (b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and (c)….”
[31] “… a person who has made a decision that is the subject of an application must … lodge with the Tribunal 2 copies of … (a) a statement …; and (b) every other document or part of a document that is in the person’s control …”
[32] Section 38(1) gives the Tribunal power to order a person to lodge with the Tribunal a further statement when it is satisfied that a statement lodged under s 37(1)(a) is not adequate as provided in that provision.
[33] Section 68(1) provides that a document that must be lodged under the Act must be lodged at a registry and s. 68(2) deals with documents lodged by facsimile.
None of these provisions elaborates on the meaning of “lodged”. Its meaning was considered by the Full Court of the Federal Court in Hong v Minister for Immigration and Multicultural Affairs[34] when it concluded that a:
“… document has been ‘lodged’ when it is physically deposited with the court or tribunal or when it has come into the possession of the court or tribunal or by some other means such as post or facsimile transmission.”[35]
[34] (1998) 82 FCR 468
[35] (1998) 82 FCR 468 at 473
On the face of it, this would seem to equate with production to the Tribunal but it does not for three reasons. The first is that Parliament has clearly chosen to distinguish between production and lodgement in its enactment of specific provisions in the AAT Act. The second is that each of the provisions referring to lodgement is a provision referring to lodgement by the parties to an application either to initiate that application or as a subsequent step taken either voluntarily or as a consequence of a direction of the Tribunal. The third is an extension of the second. Treating lodgement and production as synonymous is not consistent with the nature of the summons power. Generally, documents produced under summons are produced by third parties to the proceedings. A subpoena represents “the invasion ... of the rights of a stranger”[36] and not the act of a party engaged in a proceeding in the Tribunal. The documents that must be produced under summons are governed by the laws that have been developed under the general law and that apply in this Tribunal.[37] The use that may be made of those documents is governed by that law and not by any order that the Tribunal might make under s 35 in relation to Divisions other than the Security Appeals Division or under s 35AA in relation to a proceeding in the Security Appeals Division.
[36] Summers v Moseley [1834] EngR 320; (1834) 2 Cr & M 477 per Bayley B cited in Waind v Hill [1978] 1 NSWLR 372 at 383-384 per Moffitt P with whom Hutley and Glass JJA concurred; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 312; 98
[37] Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432 per Spender J
This does not mean that I may not restrict access to documents produced under summons to the Tribunal. The power that I have to do so is a power inherent in, or consequential upon, the power that has been given to summons documents and the like. Relying on that power and by consent, I have restricted access to the documents produced under summons as well as the use that may be made of them and the manner in which they must be stored and handled in the proceeding relating to review of the Minister’s decision.
Factors that are relevant in proceedings for review of a security assessment in the Security Appeals Division
Section 35AA of the AAT Act applies to proceedings in the Security Appeals Division for review of a security assessment. It provides:
“For the purposes of a proceeding before the Security Appeals Division to which section 39A applies, the Tribunal may give directions prohibiting or restricting the publication of:
(a)evidence given before the Tribunal; or
(b)the names and addresses of witnesses before the Tribunal; or
(c)matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; or
(d)the whole or any part of its findings on the review.”
Although different in emphasis from s 35, ss 35AA(a) and (c) refer to “evidence given before the Tribunal” or of “documents lodged with the Tribunal or received in evidence by the Tribunal” as do ss 35(b) and (c). For the same reasons, they do not give me power to restrict access to documents produced on summons. Again, I must rely on the summons power and, by consent, I have restricted access to the documents produced under summons as well as the use that may be made of them and the manner in which they must be stored and handled in the proceeding relating to review of the security assessment and of the Minister’s decision.
RESTRICTING ACCESS TO THE NAME OF A PARTY
On its face, s 35AA does not obviously give the Tribunal power to restrict access to the name of a party to an application in the Security Appeals Division to review a security assessment and, in particular, to the name of the applicant. The same is true of s 35 as it applies in the Tribunal’s other Divisions and in the Security Appeals Division in a proceeding other than review of a security assessment. Both permit the Tribunal to give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal.[38]
[38] AAT Act, ss 35(2)(aa) and 35AA(b)
Senior Member Pascoe and I considered whether s 35 allows an applicant to be identified by a pseudonym in Re VBW and Australian Prudential Regulation Authority[39] (VBW). We concluded:
“60. There is a question whether s. 35 permits the Tribunal to make a pseudonym order in relation to the names of the parties. Section 35(2)(aa) specifically provides that the Tribunal may prohibit or restrict the publication of the names and addresses of witnesses appearing before the Tribunal but makes no reference to the names of parties. We do not think that this omission means that it may not make such an order in relation to the names of parties. At or about the time that s. 35(2)(aa) was inserted in the AAT Act, there was some doubt whether publication of the names and addresses of witnesses could be restricted. That debate does not appear from cl. 22 of the Explanatory Memorandum to the Law and Justice Legislation Amendment Bill (No 3) 1994 introducing the amendment but from cases decided at or about that time. One view was represented by the judgement of the Full Court of the Supreme Court of Queensland given in R v Stipendiary Magistrate at Southport ex parte Gibson.[40] The Full Court held that the name of a witness must be disclosed to the defence at a trial. The other is represented by the judgment of Brooking J of the Supreme Court of Victoria in Jarvie v Magistrates’ Court of Victoria.[41] His Honour found that the Court had a discretion to grant anonymity in respect of undercover police officers called to give evidence. He held that the considerations that had led to the protection of informers should lead also to their protection. There was a public interest also in a defendant’s eliciting or establishing facts and that was an aspect of the wider public interest in defendants’ having a fair trial. The public interests had to be weighed in any case but, if there was good reason to think that disclosure might be of substantial assistance to a defendant, the identity of a witness could not be withheld from a defendant. For the Tribunal at least, the enactment of s. 35(2)(aa) made its power clear at a time when witness statements were not always required and it might be the case that the name and address of a witness did not appear in any document lodged in the Tribunal.
61. Returning to the suppression of the name of the applicant, we consider that the power to do so lies in s. 35(2)(b). That is a power that enables the Tribunal, if it is satisfied that it is desirable to do so … for any reason, to prohibit or restrict publication of evidence given, or the contents of a document lodged with the Tribunal, in relation to a proceeding. The documents lodged on behalf of VBW, including his application for review,[42] all contain his name and other identifying features. So too do some of the documents lodged by APRA. Provided it is otherwise in our power to make an order suppressing his name, we consider that this provision gives us the power. The use of a pseudonym, be it in the shape of letters, numbers or an adopted name, enables us to have some means by which to identify an applicant while implementing an order that we consider otherwise desirable to make.[43]”
[39] [2005] AATA 1294; (2005) 89 ALD 643; 42 AAR 206
[40] [1993] 2 Qd R 687
[41] [1995] 1 VR 84
[42] An application, for example, is lodged in accordance with s 29(1)(d) of the AAT Act.
[43] We note that our conclusion is contrary to that reached by Senior Member Allen in Re Lawrance and CRS Australia and Others [2004] AATA 1136; (2004) 85 ALD 238 at [5]; 239 when he saw “… no authority in s 35 to order that the applicant’s name be suppressed and that she be known only by a code for example a series of letters.” While it is undesirable to foster inconsistency between the Tribunal’s decisions, it is inevitable that different views of the law will at times be reached by differently constituted Tribunals just as happens, on occasion, in the courts. It is part of the development of the law and, in due course, the issue will be decided one way or another by the Federal Court.
Section 35AA(b) is not drafted in precisely the same terms as s 35(2)(b)[44] but there is sufficient correlation to reach the same conclusion. Both provisions give the Tribunal power to “… give directions prohibiting or restricting the publication of … matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal …”. The name of the applicant is a matter contained in a document lodged with the Tribunal i.e. the application. It will also be included in other documents lodged with the Tribunal in the course of the hearing. For the reasons given in VBW, I consider that I have power to make an order prohibiting or restricting disclosure of the name of the applicant.
[44] Section 35(2)(b) provides: “Where it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order: (b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal;…”.
The matters that are taken into account in deciding whether to make an order under s 35AA do not reflect those found in s 35. As is apparent from s 35(3), when considering the matter in the context of Divisions other than the Security Appeals Division, the Tribunal must take as the basis of its consideration the principle that it is desirable that proceedings be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties. That is the basis but it must also pay due regard to reasons why, in this context, publication or disclosure of the evidence or matter contained in a document should be prohibited or restricted.
This basis is incompatible with that in the Security Appeals Division where it has already been prescribed by s 39A(5) that proceedings are to be in private. For the reasons that Senior Member Fice and I have given in Re RACV Sales and Innovation Australia,[45] a private hearing does not mean that all that transpires at the hearing is confidential. The power given by, in that case, s 35 can be used to complement the requirement that the hearing be in private. In considering a case in the Taxation Appeals Division in which an applicant had exercised his right to have the hearing in private, Justice Emmett said in Brown v Commissioner of Taxation:[46]
“... it would be a most unusual case where the tribunal, if asked, did not give directions that are contemplated by s 35(2) in a proceeding to which s 14ZZE applies. The tribunal is empowered to give directions for any reason, where it is satisfied that it is desirable to do so. Where a party exercised the right, under s 14ZZE, to have a hearing in private, that would be a very cogent reason for the tribunal to make an order under s 35(2)(b).”[47]
[45] [2012] AATA 386 at [235]-[249]
[46] [2001] FCA 276; (2001) 47 ATR 143
[47] [2001] FCA 276; (2001) 47 ATR 143 at 145-146
The Tribunal must also take care to ensure that it protects information as required by the provisions of ss 39A and 39B. I have referred to some of those provisions in the course of these reasons. Even having regard to those provisions, it does not follow that the Tribunal must restrict disclosure of the identity of the applicant. The wishes of the applicant are a very cogent consideration to be taken into account in a matter in the Security Appeals Division.
I have adjourned further consideration of the matter pending Ms Morgan’s obtaining instructions but have, in the short term, made an order restricting access to the applicant’s identity and directed that he be known by the pseudonym “BLBS” in the meantime.
ATTACHMENT A
OUTLINE OF LEGISLATIVE FRAMEWORK RELEVANT IN REVIEWING A SECURITY ASSESSMENT IN THE CONTEXT OF A DECISION UNDER THE PASSPORTS ACT
Adverse or qualified security assessments to be furnished to Commonwealth agencies
One of ASIO’s functions is:
“(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.”[48]
[48] ASIO Act, s 17(1)(c)
In carrying out this function, ASIO may furnish security assessments to Commonwealth agencies.[49] Security assessments are the subject of Part IV of the ASIO Act. Section 35(1) of that Part defines a “security assessment” or an “assessment” to mean:
“… a statement in writing furnished by the Organisation to a Commonwealth agency expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.”
[49] ASIO Act, s 37(1)
An “adverse security assessment”:
“… means a security assessment in respect of a person that contains:
(a)any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and
(b)a recommendation that prescribed administrative action be taken or not taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.”[50]
[50] ASIO Act, s 35(1)
It must be accompanied by a statement of grounds for the assessment. That statement contains all information relied upon by ASIO in making the assessment other than information which, in the Director-General’s opinion, would be contrary to the requirements of security. For the purposes of Part IV of the ASIO Act, the statement of the grounds is deemed to be part of the assessment. This is the effect of s 37(2) of the ASIO Act.
The expression “prescribed administrative action” used in the definition of a “security assessment” in s 35(1) of the ASIO Act is itself defined in the same provision to mean, in so far as it may relate to the circumstances of this case:
“(a) …
(b)…
(c)the exercise of any power, or the performance of any function, in relation to a person under the Australian Citizenship Act 2007, the Australian Passports Act 2005 or the regulations under either of those Acts; or
(d)…”
The regulations may prescribe matters that ASIO must take into account and the manner in which they are to be taken into account in making security assessments or security assessments of a particular class. They may also prescribe matters that are not to be taken into account. That is the effect of s 37(3) of the ASIO Act. Subject to any regulations that may be made, the Director-General shall, in consultation with the Minister, determine matters of a kind referred to in s 37(3).[51]
[51] ASIO Act, s 37(4)
If ASIO furnishes a security assessment containing “… any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person …”, that assessment may be either an adverse security assessment or a qualified security assessment. If it contains “a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person”, it is an adverse security assessment. [52] If it does not, it is a qualified security assessment.[53]
[52] ASIO Act, s 35(1)
[53] ASIO Act, s 35(1)
Generally, each adverse or qualified security assessment made by ASIO must be accompanied by a “statement of the grounds for the assessment”.[54] For the purposes of Part IV of the ASIO Act, that statement is deemed to be part of the security assessment.[55] It must contain:
“… all information that has been relied on by the Organisation in making the assessment, other than information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security”[56]
[54] ASIO Act, s 37(2)
[55] ASIO Act, s 37(2)(a)
[56] ASIO Act, s 37(2)(a)
Provisions of the ASIO Act relating to disclosure of the security assessment
If ASIO furnishes an adverse or qualified security assessment to, among others, a Commonwealth agency, that Commonwealth agency must, in most instances, give a notice to the person who is the subject of that assessment.[57] Attached to that notice must be a copy of the security assessment.
[57] ASIO Act, s 38(1)
The obligation to give a notice and a copy of the security assessment to the person is qualified in several ways. First, the obligation imposed on the Commonwealth agency does not arise if the security assessment is given to the Attorney-General in connection with ss 58A or 581(3) of the Telecommunications Act 1997 and s 38A of the ASIO Act applies.[58] This is not the situation we must consider in this case.
[58] ASIO Act, s 38(1A)
The second qualification arises in relation to all security assessments other than those to which the first qualification relates. It arises if the Attorney-General is satisfied that withholding giving notice to the person is essential to the security of the nation or that disclosure to the person of the statement of the grounds, or of a particular part of that statement, would be prejudicial to the interests of security.[59] If so satisfied, the Attorney-General may deliver to the Director-General a certificate to that effect and, if the Attorney-General does so, he must also deliver a copy of that certificate to the Commonwealth agency to which the adverse or qualified security assessment was furnished.[60] If a certificate has been issued to the effect that the Attorney-General is satisfied that withholding giving notice to the person is essential to the security of the nation, the Commonwealth agency is not obliged to give notice of the adverse or qualified security assessment under s 38(1).[61]
[59] ASIO Act, s 38(2)
[60] ASIO Act, ss 38(2) and (3)
[61] ASIO Act, s 38(4)
If a certificate has been issued to the effect that disclosure to the person of the Statement of the Grounds, or of a particular part of that statement, would be prejudicial to the interests of security, the Commonwealth agency must ensure that the copy of the adverse or qualified security assessment that it attaches to the notice given to the person does not contain any matter to which the Attorney-General’s certificate applies.[62]
[62] ASIO Act, s 38(5)
What is meant by “security”?
Section 4 of the ASIO Act provides that:
“security means:
(a)the protection of, and the people of, the Commonwealth and the several States and Territories from:
(i)espionage;
(ii)sabotage;
(iii)politically motivated violence;
(iv)promotion of communal violence;
(v)attacks on Australia’s defence system; or
(vi)acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa)the protection of Australia’s territorial and border integrity from serious threats;
(b)the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).”
Some of the terms used in the definition are themselves defined in s 4. I will not set them out.
Review of adverse or qualified security assessments by the Tribunal
Section 54(1) of the ASIO Act provides that an application may be made to the Tribunal for review of an adverse or qualified security assessment. That is the provision enabling the applicant to make an application in this case.
There is a further provision that is relevant in some instances. That is found in s 54(2) of the ASIO Act when it provides:
“At any time after the completion of a review by the Tribunal of a security assessment (other than a review of a security assessment made for the purposes of subsection 202(1) of the Migration Act 1958), an application may be made for review of the findings of the Tribunal on the ground that the applicant has fresh evidence of material significance that was not available at the time of the previous review.”
Once the Tribunal has reviewed a security assessment, every Commonwealth agency concerned with prescribed administrative action to which that assessment is relevant is required, to the extent that the Tribunal’s findings do not confirm the assessment, to treat those findings as superseding the assessment. Any person or body having power to review a decision with respect to any administrative action is similarly bound.[63]
[63] ASIO Act, s 61
Once the Tribunal has made findings upon a review of a security assessment, ASIO is not permitted to make a further assessment in respect of the person concerned that is not in accordance with those findings except on the basis of matters occurring after the review or if the evidence was not available at the time of the review.[64]
[64] ASIO Act, s 64
The Passports Act
As I have said, “prescribed administrative action” includes “the exercise of any power, or the performance of any function, in relation to a person under the … Australian Passports Act 2005 or the regulations under …” that Act.[65] A prescribed administrative action would include a decision to refuse to issue or to cancel a travel document under the Passports Act. Section 14(2), for example, provides that “… the Minister may refuse to issue the person an Australian passport …” if a competent authority[66] makes a request under s 14(1) that he does not. One of the grounds on which a competent authority might make that request is that he or she:
[65] See [47] above
[66] A “competent authority” is defined in s 14(3) to refer to certain persons having responsibility in relation to a circumstances specified in s 14(1) or otherwise specified in s 3.4 of Part 3 of the Australian Passports Determination 2005. They do not include the Director-General or any officer of ASIO.
“… suspects on reasonable grounds that:
(a) if an Australian passport were issued to a person, the person would be likely to engage in conduct that:
(i) might prejudice the security of Australia or a foreign country; or
(ii)-(v)…; and
(b)the person should be refused an Australian passport in order to prevent the person from engaging in the conduct;
…”
The competent authority may make that request in relation to a person whether or not that person has applied for an Australian passport, whether or not a travel document has been issued to that person and whether or not that person is an Australian citizen.[67] Section 18(3) makes it clear that a competent authority may hold the suspicion described in s 14(1) and do so on reasonable grounds even if that competent authority knows that the person has already been issued with an Australian passport.[68]
[67] Passports Act, s 18(2)
[68] Passports Act, s 18(3)
The context in which the power is given under s 14 is that of the Passports Act which is intended:
“… to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally.”[69]
That legislation starts from the position that:
“An Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister.”[70]
[69] Passports Act, s 3
[70] Passports Act, s 7(1)
The Minister’s decision under s 14 is discretionary. That is clear from the wording of s 14(2) and underlined by the statement in the Minister’s Second Reading Speech that:
“… the government’s policy is that Australian passports law should not be used as an extension of the judicial system and should not be expected to impose any more restraint on an individual than a court would be prepared to impose.
In short, the refusal or cancellation of a passport should not be used as a substitute for arresting and charging a suspect. Such administrative action should complement the law enforcement action.”[71]
[71] Hansard, House of Representatives, 24 June 2004 at 31450 and see also the Explanatory Memorandum to the Australian Passports Bill 2004 at [34]
Section 49 provides for Ministerial review of such a decision where the decision is made by a delegate. Where the decision is made by the Minister or by a delegate on review under s 49(4), an application may be made to the Tribunal for review of the decision.[72] With the exception of circumstances in which the Minister issues a certificate that the decision involved matters of international relations or criminal intelligence, the Passports Act does not impose any limitations upon the Tribunal’s powers or procedures.[73]
Security assessment and review in the Tribunal
[72] Passports Act, s 50(1)
[73] Passports Act, s 50
A.The Director-General’s obligation to lodge material
The Director-General is expressly relieved of the obligation to lodge reasons and material under s 37 of the AAT Act when the proceeding in the Security Appeals Division is a proceeding to which s 39A applies i.e. for the review of a security assessment.[74] That is the effect of s 37(1AAA). There is a separate obligation imposed on the Director-General by s 39A(3):
“… to present to the Tribunal all relevant information available to the Director-General, whether favourable or unfavourable to the applicant.”
Unlike most other decision-makers whose decisions are reviewed in the Tribunal, the Director-General is not obliged to give reasons.
[74] Section 37(1AAA) is very specific in its application. As it applies only to a proceeding to which s 39A applies, the obligations imposed by s 37 to give a statement of reasons and to lodge documents in a decision-maker’s control and relevant to the review of the decision by the Tribunal apply to proceedings in the Security Appeals Division to which s 39A does not apply. That means that s 37 would continue to apply to the proceedings relating to the review of a decision under the Archives Act 1983 in respect of access to a record of ASIO. That proceeding is heard in the Security Appeals Division (AAT Act, s 19(6)) but is not an application for review of a security assessment. The same would be true for an application for review of a decision directed by the Presidents’ Direction of 2 November 2011 to be heard in the Security Appeals Division. It is heard in that Division and may be said to be related to a proceeding to which s 39A applies but it is not itself a proceeding to which s 39A applies.
The Director-General does have obligations under the AAT Act, though, to lodge certain material. Where the Attorney-General has given to the Director-General a certificate under s 38(2)(b) of the ASIO Act, s 38A of the AAT Act requires him or her to lodge, within 30 days, a copy of the certificate and of the whole of the assessment with the Tribunal.[75] The Tribunal, however:
“… must not, at any time, tell the applicant of the existence of, or permit the applicant to have access to any copy or particulars of, a certificate of the Attorney-General referred to in subsection (1) or any matter to which the certificate relates.”[76]
[75] AAT Act, s 38A(1)
[76] AAT Act, s 38(2)
Should the Attorney-General not give a certificate under s 38(2)(b) of the ASIO Act, there is no provision expressly requiring the Tribunal to be given a copy of the relevant security assessment within any particular period of time. Section 39A(3), though, provides that:
“It is the duty of the Director-General of Security to present to the Tribunal all relevant information available to the Director-General, whether favourable or unfavourable to the applicant.”
Whether the Director-General is under a duty to give a copy of the assessment depends on the scope of the word “information” and I will return to that later.
B. The Tribunal’s procedures in reviewing a security assessment
Part IV of the AAT Act is concerned with the Tribunal’s review of decisions. In general terms, its procedure is within its own discretion.[77] It is not bound by the rules of evidence but may inform itself on any matter as it thinks fit.[78] Subject to exceptions relating to material that is the subject of the Attorney-General’s public interest certificates[79] and exceptions in legislation relating to specific decisions,[80] the Tribunal’s hearings are generally in public and the evidence and documents on which it relies are available to the public unless there is a particular reason justifying a different course of action.[81] Principles governing the exceptions to the general rule are based on those applicable in courts such as the Federal Court and State Supreme Courts.[82]
[77] AAT Act, s 33(1)(a)
[78] AAT Act, s 33(1)(c)
[79] AAT Act, ss 36–36D
[80] See, for example, Industry Research and Development Act 1986, s 39T(1)
[81] AAT Act, s 35(1)
[82] AAT Act, s 35(2)
The Tribunal’s not being bound by the rules of evidence and informing itself as it thinks fit continue to be relevant considerations when reviewing a security assessment for s 33 of the AAT Act is not modified in relation to proceedings in the Security Appeals Division for review of a security assessment. Other aspects of its general review procedures are modified. I will give examples.
The first modification relates to public and private hearings. The issues of public hearings and access to evidence are the subject of s 35 but s 35(1AA) expressly states that s 35 does not apply to a proceeding in the Security Appeals Division.
In place of s 35 is s 35AA dealing specifically with proceedings in the Security Appeals Division. It provides:
“For the purposes of a proceeding before the Security Appeals Division to which section 39A applies, the Tribunal may give directions prohibiting or restricting the publication of:
(a)evidence given before the Tribunal; or
(b)the names and addresses of witnesses before the Tribunal; or
(c)matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; or
(d)the whole or any part of its findings on the review.”
The second example relates to procedural fairness and related concepts. As a general rule:
“… the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”[83]
That rule does not apply to a proceeding to which s 39A applies.[84]
[83] AAT Act, s 39(1)
[84] AAT Act, s 39(2)
Section 39A is concerned with the Tribunal’s procedures and constitution when reviewing an adverse or qualified security assessment. It begins by providing that, if a person applies to the Tribunal for review of an adverse or qualified security assessment, that person and the Director-General are the parties to the proceeding.[85] The Commonwealth agency to which the security assessment is given is entitled to adduce evidence and make submissions by virtue of s 39A(2) of the AAT Act. It is not made a party to the proceeding by virtue of that provision. The Tribunal cannot exercise its power under s 30(1A) to make a Commonwealth agency a party because that section does not apply to a proceeding in the Security Appeals Division.[86]
[85] AAT Act, s 39A(2)
[86] AAT Act, s 30A(1AA)
Section 39A(3) provides that:
“It is the duty of the Director-General of Security to present to the Tribunal all relevant information available to the Director-General, whether favourable or unfavourable to the applicant.”
“The proceedings are to be in private …” and, subject to s 39A, “… the Tribunal is to determine what people may be present at any time.”[87] Despite that, the applicant for review and the person representing the applicant may generally be present when the Tribunal is hearing submissions made, or evidence adduced, by the Director-General or the Commonwealth agency to which the security assessment was given.[88] I say “generally” because the applicant may not be present[89] if the Minister administering the ASIO Act certifies that:
“… evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director-General of Security or the Commonwealth agency to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia.”[90]
The applicant’s representative may not be present either unless the Minister administering the ASIO Act consents.[91] If the applicant’s representative is present when evidence or submissions subject to that Minister’s certificate are given or made, that representative must not disclose them to the applicant or to any other person.[92]
[87] AAT Act, s 39A(5)
[88] AAT Act, s 39A(6)
[89] AAT Act, s 39A(9)(a)
[90] AAT Act, s 39A(8)
[91] AAT Act, s 39A(9)(b)
[92] AAT Act, s 39A(10)
The order of proceedings in the Tribunal must have regard to ss 39A(12), (13) and (14) of the AAT Act. The Tribunal must first hear evidence adduced, and submissions made, by the Director-General and any evidence adduced or submissions made by the Commonwealth agency to which the security assessment was given.[93] Section 39A(13) then provides that:
“The Tribunal must next permit the applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal.”
Circumstances may occur in which a party adduces evidence and the Tribunal thinks that, because of that evidence, it should hear from the party who has already presented a case to it. Should those circumstances occur, the Tribunal must give that other party an opportunity to adduce further evidence. In doing so, the Tribunal must not give the applicant any particulars of any evidence to which a certificate under s 39A(8) relates.[94]
[93] AAT Act, s 39A(12)
[94] AAT Act, s 39A(15)
The members of the Tribunal may question a witness.[95] The Tribunal may invite or summon a person to give evidence.[96] If that person is an officer or employee of ASIO or of the Commonwealth agency to which the security assessment was given, s 39A(8) applies as if the evidence given by the person were evidence proposed to be adduced by or on behalf of the Director-General or the agency, as the case may be.[97] If the Director-General requests it to do so, the Tribunal “… must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director-General … is not revealed.”[98]
[95] AAT Act, s 39A(17)
[96] AAT Act, s 39A(14)
[97] AAT Act, s 39A(15)
[98] AAT Act, s 39A(11)
Section 39B of the AAT Act is concerned with the protection of information that is the subject of a written certificate signed by the Attorney-General. The information will be protected from disclosure if the Attorney-General:
“… certifies … that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest:
(a)because it would prejudice security or the defence or international relations of Australia; or
(b)because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or
(c)for any other reason stated in the 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 contents of the document should not be disclosed;
…”[99]
[99] AAT Act, s 39B(2)
The limits of the protection given by the Attorney-General’s certificate are found in other provisions of s 39B. That protection does not, for example, extend to relieving a person from complying with an obligation to disclose information or to produce a document to the Tribunal when that person is required by or under the AAT Act to do so.[100] What it extends to is protecting the information or contents of documents from disclosure by the Tribunal once they are in its hands. Therefore, subject to four qualifications to which I will return, s 39B(3) provides that:
“… the Tribunal must … do all things necessary to ensure:
(a)that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding; and
(b)in respect of a document produced to the Tribunal – that the document is returned to the person by whom it was produced.”
[100] AAT Act, s 39B(3)
Section 14(1) of the Passports Act is also based on an inherent balance. It is a balance between what is required to maintain collective or community security and an individual’s liberty to move to and from Australia. Unlike a refugee matter, the impact of an incorrect assessment of the likelihood of the conduct or outcome will fall on the community, or members of it, rather than upon the individual. That impact could be just as grave on that community or on individual members of it as it could be for an individual claiming to be a refugee.
In view of these considerations, the meaning of “probable” or of “more likely than not”, requiring proof on the balance of probabilities, would seem to be too high a meaning to be ascribed to the words “would be likely”. It would seem to place too much weight on the person’s loss of entitlement and not enough on security.
At the same time, proper regard must be had to the words themselves. Parliament has not chosen the words “may be likely”. In doing so, it appears to have implicitly rejected the test of possibility. That it has done so is underlined by its choice of the words “would be likely”. It is also underlined when regard is had to the seriousness of the issues in balance and the way in which what conduct “would be likely” is counterbalanced by what the conduct “might” result in. Having regard to all of these matters, to test what “would be likely” by reference to what is “probable” or what is “more likely than not” is to set a statistical standard where an assessment of whether a person’s likelihood to engage in the conduct must be assessed at over 50%. That is too high given the balance that must be achieved between collective security and individual liberty. That leads me to the conclusion that whether a person “would be likely” to engage in the specified conduct is tested by whether there is “a substantial or ‘real and not remote’ chance regardless of whether it is less or more than 50%” and what “might be” the result of that conduct by reference to possibility.
To my mind, there is no ambiguity or obscurity in the interpretation and the ordinary meanings of the words in their context. Having regard to the purpose or object underlying the Passports Act, those ordinary meanings do not lead to a result that is manifestly absurd or unreasonable. It would follow that I have no need to have regard to the Explanatory Memorandum under s 15AB(1)(b) of the Acts Interpretation Act 1901 (AI Act).
If I were, under s 15AB(1)(a) of the AI Act, to have regard to the Explanatory Memorandum to confirm that the meaning of s 14(1) is the ordinary meaning conveyed by its text taking into account its context and the purpose of the Passports Act, I would find that it is not precisely confirmed. The Explanatory Memorandum states:
“ The term ‘likely to engage’ is based in the test in the [Passports Act] 1938 Act (section 7E), and is retained to ensure existing law and practice is maintained. The expression is used to ensure that a competent authority can only make a request to the Minister where there is a real, and not remote, possibility of a person engaging in the specified conduct.”[182]
[182] Explanatory Memorandum, [50]
Given the fact that the Tribunal’s reasons in the Security Appeals Division (and a decision made under s 7E would have come within it) are available only to the parties in each case and are not generally available to the members of the Tribunal other than those who heard the particular case, I am solely reliant on the statement in the Explanatory Memorandum that this is indeed the interpretation adopted in relation to s 7E. I note that the expression “would be likely to engage” is the expression used in both former s 7E and in s 14(1). That is not the expression used in the Explanatory Memorandum as it omits the word “would”. I do not need to explore the matter further for, in my view, there is no need to have regard to the Explanatory Memorandum in any event.
B.The second step
B.1Discretionary decision
The Minister’s decision whether to refuse to issue a passport is a discretionary decision. He “may” do so as s 14(2) provides; not that he must.[183] The security assessment is expressed in terms of a “recommendation, opinion or advice” and includes information but is not expressed in terms of a direction or prohibition on questions such as whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person.
[183] Although s 14(1) provides that the competent authority may make a request that the Minister cancel a passport as well as refuse to issue it, s 14(2) gives the Minister power only to refuse to issue it.
The criteria that are taken into account under s 14(1) reflect both the need to protect the security of Australia or of a foreign country and the interests of the individual. I have outlined these above.
B.2The weight to be given to a security assessment in reviewing the Minister’s decision
The security assessment is part of the material to which the Tribunal may have regard in reviewing the Minister’s decision as is any other evidence or material led on behalf of the parties. Unless joined under s 41 of the AAT Act, the
Director-General is not a party to this proceeding.
The Tribunal’s role and task in reviewing security assessments and related decisions
Applications for review of a security assessment and a decision such as a decision under the Passports Act are particularly difficult for the applicant who has no opportunity to meet the whole of the case put by the respondents. The applicant’s very lack of opportunity to know all of the material said to be relevant means that the Tribunal must try to test the material. It might be said that this is always its role. That is true but, when the parties are represented, the Tribunal can often satisfy itself that it need probe no further than the parties have done during examination and cross-examination of witnesses and the selection of material put before the Tribunal. In a case reviewing a security assessment and related decisions, it must try to ensure that it tests the evidence as best it can without the assistance of the applicant and the applicant’s counsel and without the assistance of hearing the response that the applicant might give to any material that might have been put to the Tribunal but which, if it has been put, it cannot reveal to him. All that I can do, I suggest is to indicate in open reasons the principles that might have been relevant in considering the material and in making the findings that it has made. What those principles might be will be shaped by the particular case. All that I can do at this stage is to indicate some of the principles that might be relevant in the most general terms.
A.A balancing exercise
The security of a country, be it Australia or otherwise, is a precious thing and needs to be properly protected. The liberty of the individual to move freely to and from a country is also a precious thing and needs to be protected. It is important to ensure that a proper balance is maintained between the two. If one is subsumed by the other, both are lost not only for the applicant but for all: security without liberty is of questionable value and liberty without security cannot be fully enjoyed.
B.Suspicion
It is clear from the various provisions of the ASIO Act, the Passports Act and the AAT Act that the Tribunal is asked to consider the security assessment on the basis of material that may comprise “information” but that may also comprise “recommendation, opinion or advice”. The Tribunal is asked to consider whether it has the necessary suspicion on reasonable grounds on the basis of that material. Even in light of what is required of a suspicion on reasonable grounds, this is not an easy task. It is one thing to form a suspicion on the grounds of information that one knows. It is another to form a suspicion on the basis of what others say they know and on the opinion, recommendation or advice that others draw from either what they know or from information they have been given.
The Tribunal’s task becomes even more difficult if the opinion, recommendation or advice is given by others but if it should turn out that there is no opportunity to hear from those persons or to form a view about matters such as the way they reached that opinion, recommendation or advice. The way in which they did so may be shaped by matters such as their general knowledge base, their skills in assessing the information, their training, their knowledge of cultural issues and of people generally and even by their outlook on life. Such matters may be more apparent if reasons are given for a person’s holding an opinion or for making a recommendation or giving advice. The problem is compounded if what appears to be information is based on an opinion. Such a situation might arise in everyday life if, for example, a person heard another speaking on the radio but missed the introduction and so the name of the speaker. The words stated might come within the description of information but the identity of the speaker not necessarily so. The person’s identification of the speaker will be more in the nature of an opinion based on such things as familiarity with the speaker’s voice and familiarity with the speaker’s tone, inflections and speech patterns if not with the nature of the subject matter being spoken about.
The common law has long been alive to these difficulties and developed rules to deal with opinion evidence. They were developed in the context of the admissibility of evidence to prove facts and so not in the context of the formation of a reasonable suspicion. The general rule, formalised in s 76 of the Evidence Act 1995 is that “Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.” An exception is made “If a person has specialised knowledge based on the person’s training, study or experience …” and the “… opinion of that person is wholly or substantially based on that knowledge’.[184] Such a person has a general duty to assist the Court on matters relevant to the expert’s area of expertise and is not an advocate for either party.[185] To that end, the expert witness is required to give details of qualifications and of literature and other material used in making a report. Among other matters, the expert witness must state all assumptions of fact and identify the qualifications of any person who carried out any tests or experiments relied on in reaching the opinion. Furthermore, the expert witness should give reasons for each opinion.[186]
[184] Evidence Act 1995, s 79
[185] Federal Court’s Guidelines for Expert Witnesses at [1]
[186] Federal Court’s Guidelines for Expert Witnesses at [2]
As I have said, this is the position in a case concerned with establishing facts upon a standard of proof and not with a case of forming a suspicion on reasonable grounds. Despite that, I consider that the matters I have raised in the previous paragraphs should be kept in mind in the Tribunal’s weighing up for itself whether it has a suspicion on reasonable grounds. It is one thing to weigh up an opinion and to test it, in so far as it can be tested, against other information for consistency with it. It is quite another to simply accept another’s opinion, advice or recommendation. The former is the appropriate approach but the Tribunal will never be able to test it as thoroughly as an applicant could test it. The Tribunal can never have the applicant’s knowledge of other material that might throw a different light upon the material on which the opinion is based. It can never think of all the possible explanations that an applicant might have for conduct on which the opinion is formed.
If the Minister should establish that the opinion was that of a person established to be an expert, its treatment would be clearer. Hayne J considered the issue in Thomas v Mowbray but the principles he set out are no different in the Tribunal:[187]
“ For the most part courts are concerned to decide between conflicting accounts of past events. Where courts are required to predict the future, as they are in some cases, the prediction will usually be assisted by, and determined having regard to, expert evidence of a kind that the competing parties to the litigation can be expected to adduce if the point in issue is challenged. Intelligence information, gathered by government agencies, presents radically different problems. Rarely, if ever, would it be information about which expert evidence, independent of the relevant government agency, could be adduced. In cases where it could not be tested in that way (and such cases would be the norm rather than the exception) the court, and any party against whose interests the information was to be provided, would be left with little practical choice except to act upon the view that was proffered by the relevant agency.”[188]
[187] (2007) 237 ALR 194
[188] (2007) 237 ALR 194 at 331, [512]
Another problem that faces the Tribunal is one that Hayne J observed makes the issue not one suited to judicial determination.[189] He explained it this way:
“… by its very nature, intelligence material will often require evaluative judgments to be made about the weight to be given diffuse, fragmentary and even conflicting pieces of intelligence. These are judgments of a kind very different from those ordinarily made by courts.”[190]
[189] (2007) 237 ALR 194 at 331, [510]
[190] (2007) 237 ALR 194 at 331, [510]
They are also different from decisions ordinarily made by the Tribunal although they are not unknown. Those made in issuing telephone intercept warrants under the Telecommunications (Interception and Access) Act 1979 provide an example. In making these decisions, the Tribunal may take advantage of tools found in the common law and fashion them to assist it in its task.
One tool that may assist the Tribunal is found in the way in which a court considers circumstantial evidence. This has been considered by the High Court in the context of the criminal law in Chamberlain v The Queen[191] and Chamberlain v The Queen (No. 2).[192] Both of these cases were referred to in the judgment of Chernov and Eames JJA in Nolan v Nolan[193] and were said to be equally applicable to civil cases.[194] Their Honours referred to Transport Industries Insurance Co. Ltd. v. Longmuir[195] and continued:
“…Indeed, Tadgell, JA explained in Longmuir … that, both in the civil and criminal law context,[196] the evidence in question must be evaluated as a whole and that the object of the exercise in a case such as the present, where direct proof of the disposition contended for is not available, is to ascertain ‘whether the evidence paints a picture to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.’ Thus, it seems plain enough that, when a court is asked to infer a fact from various items of indirect evidence, it must consider the combined or cumulative effect of the evidence. …”[197]
[191] (1984) 153 CLR 521
[192] (1990) 170 CLR 573
[193] [2004] VSCA 109
[194] [2004] VSCA 109 at [120]
[195] [1997] 1 VR 125
[196] See also Tadgell, J.A. in Robertson v. Smith [1998] 4 VR 165 at 179-180 with whom Phillips and Kenny, JJ.A. agreed; McKinnon v. Voigt [1998] 3 VR 543 at 557-558 and R. v. Harvey [2001] VSCA 19 with whom Ormiston and Chernov, JJ.A. agreed. See further: R. v. Huisman and Shiells [1999] VSCA 170 at [14] per Buchanan, J.A. with whom Phillips, C.J. and Charles, J.A. agreed and R. v. Ng (2002) 5 VR 243 at 307 per Winneke, P., Batt and Eames, JJ.A.
[197] [2004] VSCA 109 at [120]
Chernov and Eames JJA explained the principle further:
“ Reference should also be made to the observation of Buchanan, J.A. (with whom Phillips, C.J. and Charles, J.A. agreed) in R. v. Huisman & Shiells[198] that ‘the distinction between the evidence founding a chain of sequential reasoning and an accumulation of circumstances from which a fact may be inferred was explained metaphorically in Wigmore on Evidence, vol.9 para. 2487, as the distinction between links in a chain and strands in a cable. See Shepherd v. R.[199]’ and in R. v. Ng[200] the Court of Appeal[201] held: ‘It is the very essence of a circumstantial case that the items of evidence should not be examined in isolation, but must be considered in their totality.’”[202]
[198] [1999] VSCA 170 at [14].
[199] (1990) 170 CLR 573 at 579 per Dawson, J.
[200] (2002) 5 VR 257 at 307.
[201] Winneke, P., Batt and Eames, JJ.A
[202] [2004] VSCA 109 at [121]
When the Tribunal is required to decide whether it suspects on reasonable grounds that certain conduct would be likely, given the occurrence of a certain event, it must consider both direct and circumstantial evidence. Where it is circumstantial, it will be considered as a whole to see whether it forms the strands in a cable of suspicion supported by reason even if not entwined so closely to be supported by a conclusion as required by s 14(1) of the Passports Act.
In deciding whether there is such a cable of suspicion on circumstantial evidence or suspicion based on more direct evidence, the Tribunal will also need to keep in mind that the material presented by the Minister will not have been tested by cross-examination or by the presentation of contradictory or explanatory material on behalf of the applicant. The Tribunal itself has attempted to test the Minister’s material by questioning its source and its reliability. Reliability can be questioned by looking at the information for its seeming inherent reliability, if any, and by looking at its consistency with other information. As part of the process, the Tribunal can test the information against other possible explanations. The Tribunal is necessarily hampered in its efforts by its not being able to be fully aware of the applicant and the applicant’s circumstances. Furthermore, the Tribunal cannot ever be in a position to fully test the reliability of information. That follows from the limitations imposed by the AAT Act and the ASIO Act preventing it from disclosing information to an applicant and so to obtain the applicant’s response or explanations.
The limitations imposed on the applicant’s access to opinion, advice, recommendations or information given to the Tribunal may lead to the Tribunal’s placing limitations upon its readiness to accept the Minister’s material without proper questioning of it. That matter is best considered in the context of a substantive hearing.
I certify that the preceding one hundred and fifty nine paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Leah Berardi Associate
Date of Hearing 14 June 2012
Date of Decision 20 July 2012
Solicitor for the Applicant Ms Grace Morgan
Robert Stary Lawyers
Solicitor for the Respondent Mr Evan Evagorou
Australian Government Solicitor
“... a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:
1.unless the subpoena was issued for the purpose of a pending trial, hearing or application ...
2.where to require the attendance of a witness would be oppressive ...
3.where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ...
4.where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ...
5.where the subpoena has been used for the purpose of obtaining discovery against a third party...
6.where to require a party to comply with a subpoena to produce documents would be oppressive ...
7.where the subpoena has been issued for a purpose which is impermissible, as, for example, ‘fishing’ ...”: [1984] 3 NSWLR 98 at 100-101; citations omitted.
This summary was accepted by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2)[5] (1989) 21 FCR 306; 88 ALR 90 at 102 (part of passage noted as omitted from authorised report: (1989) 21 FCR 306 at 315), Conti J in Mandic v Phillis[5] [2005] FCA 1279; 225 ALR 760 at [33]; 771 to 772
and Flick J in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203 at [20]. A “fishing expedition” has been described by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250 at 254 in this way:
“A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.”
As King CJ, with whom both White and Millhouse JJ concurred, said in Hunt v Wark (1985) 40 SASR 489 at 493: “... There must be some reason to suppose that the documents sought will be capable of being used ....”.
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