Re Griffiths and Migration Agents Registration Authority
[2001] AATA 240
•27 March, 2001
CATCHWORDS – IMMIGRATION – MIGRATION AGENTS REGISTRATION AUTHORITY – Interview pursuant to s 308(1)(b) Migration Act 1958 – whether panel properly convened – whether "an individual" is a reference to one or more natural persons – whether interview transcript should be admitted – public interest in favour of fairness and proper procedures – transcript not admitted – whether evidence obtained after Migration Agent's Registration Authority decision admissible – evidence before Tribunal is admissible.
Acts Interpretation Act 1901 – s 22
Administrative Appeals Tribunal Act, 1975 – ss 33, 35, 37
Evidence Act 1995 – ss 135, 138
Migration Act 1958 – ss 275, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 290A, 291, 292, 293, 294, 303, 308, 309, 315, 316, 318, 319, 330
Migration Amendment Act (No. 3) 1992 – ss 114ZZH, 114ZK, 114ZS, 114ZT, 114ZV, 114ZW
Migration Legislation Amendment Act 1994
Migration Legislation Amendment (Migration Agents) Act 1997 – ss 275
Safety, Rehabilitation and Compensation Act 1988 – s 57
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 46 FLR 409; (1979) 2 ALD 60
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; (1988) 87 ALR 506; (1988) 15 ALD 671; (1988) 9 AAR 255
Jebb v Repatriation Commission (1988) 80 ALR 329; (1988) 8 AAR 285
Re Easton and Repatriation Commission (1987) 12 ALD 777; (1987) 6 AAR 558
Re Harts Pty Limited and Tax Agents' Board of Queensland (1997) 97 ATC 2148; (1997) 37 ATR 1075
Re McGourty and Repatriation Commission (1988) 9 AAR 87
Re Parsons and Comcare (1997) 24 AAR 416
Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44
Re Webb and Tax Agents' Board of Queensland (1992) 28 ALD 464; (1992) 92 ATC 2101; (1992) 24 ATR 1095
Salters and Telstra Corporation Limited (2000) 31 AAR 500
DECISION AND REASON FOR DECISION [2001] AATA 240
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q2000/1226
GENERAL ADMINISTRATIVE DIVISION )
Re DAMIAN GERARD GRIFFITHS
Applicant
And MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 27 March, 2001
Place: Brisbane
Decision: The Tribunal directs that:
1.the transcript of the interview between the applicant on the one hand and Ian Robinson, Lesley Hunt and John Hodges on the other will not be admitted in evidence in any hearing of the application; and
2.the evidence not be limited to that available to the respondent at the date of its decision.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 29 December, 2000, the applicant, Mr Damian Gerard Griffiths, applied for review of a decision of the respondent, the Migration Agents Registration Authority ("MARA") dated 21 December, 2000. MARA had decided to cancel Mr Griffiths' registration as a migration agent by removing his name from the Register of Migration Agents. On the same day, Mr Griffiths also sought a stay of the implementation of MARA's decision. A stay order was made on 2 January, 2001 pending the hearing of the application for a stay, which was opposed by MARA. On 16 January, 2001, an order was made staying the implementation of MARA's decision until the determination of Mr Griffiths' application for review or until further order.
Directions have also been given regarding procedural matters to be attended to prior to the hearing of the application. In the course of considering the nature of those directions, two issues were raised by the parties. The first was whether the Tribunal should have regard to a transcript of statements which had been made by Mr Griffiths to a panel of three persons and which had been made on the basis that the panel was properly convened under s. 308(1)(b) of the Migration Act 1958 ("the Act"). The second was whether the documents prepared by MARA should include references to complaints other than those on which its decision was based.
At a directions hearing held to consider those two issues, Mr Griffiths was represented by Mr Burns of counsel and MARA by its solicitor, Mr O'Higgins. Reference was made to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") ("T documents").
CONSIDERATION
Interview with the Conduct Advisory Panel
It was agreed between the parties, and I find, that MARA wrote to Mr Griffiths on 17 August, 2000. Among other matters, it advised Mr Griffiths that, pursuant to s. 308(1)(b) of the Act, he was required to appear before Ian Robinson, Lesley Hunt and John Hodges to answer questions relevant to his earlier letter to MARA and to complaints received from John and Mary-Ann Geary and Christopher Morris. The letter advised Mr Griffiths of the place and time at which he was required to attend and continued:
"For purposes of answering such questions you should have available all records including but not limited to files, correspondence, file notes and other notes, financial records and other documentation relating to the provision by you of immigration assistance and advice to the complainants. The specific concerns arising out of your letter dated 20 July 2000 to the Authority and each of the above complaints will be notified to you during the course of the interview on 5 September 2000 at which time you will also be given the opportunity to respond.
The Authority has issued a directive that interviews cannot exceed 5 hours duration (excluding breaks), with any period of questioning not exceeding two hours without a break of a minimum 15 minutes and maximum 30 minutes duration.
Counsel may not represent you. However Counsel or another observer may be present. Counsel or the observer may advise you and may only answer questions if invited to do so by the individuals asking the questions pursuant to section 308 of the Act.
The questions and answers at this meeting will be recorded and the record given to the Authority pursuant to section 308(2) of the Act.
You are reminded that section 308(3) of the Act provides that a registered agent is not excused from giving information or providing a document on the ground that information or provision of the document may tend to incriminate that person. Your attention is also invited to Part 4 and section 487 of the Act." (T documents, pages 777-778)
Section 308(1) of the Act provides:
"(1) The Migration Agents Registration Authority may require a registered agent:
(a)to make a statutory declaration in answer to questions in writing by the Authority; or
(b)to appear before an individual specified by the Authority and to answer questions; or
(c)to provide the Authority with specified documents or records relevant to the agent's continued registration."
The "… individual before whom a registered agent appears to answer questions must record the questions and answers and give the record to …" MARA (s. 308(2)). A registered migration agent may not refuse to give information or provide a document on the basis that to do so may incriminate him or her (s. 308(3)). With one exception, information or a document is not admissible in criminal proceedings against the registered migration agent (s. 308(4)).
Central to both parties' submissions was the reference to the word "an individual" in s. 308(1)(b). Mr Burns submitted that it should be limited to a single natural person while Mr O'Higgins, who referred to the corporate identity of MARA and to the predecessor of s. 308 (s. 114ZK), submitted that the reference to "an individual" could be a reference to one or more natural persons.
The Migration Amendment Act (No. 3) 1992 ("1992 Amendment Act"), established the Migration Agents Registration Board ("Board") when it inserted s. 114ZS (later renumbered s. 315 by the Migration Legislation Amendment Act 1994). That Board comprised a Chairperson, a member of the then Immigration Review Tribunal and three ordinary members having specified qualifications (s. 114ZV, later renumbered s. 318). The Chairperson was the Secretary of the Department or his appointee (s. 114ZW, later renumbered s. 319). In brief, the Board's function was to deal with registration applications made under Part 2A (later renumbered Part 3) of the Act, monitor the conduct of registered migration agents, investigate complaints against them, take appropriate disciplinary steps against them and monitor the adequacy of the Code of Conduct (s.114ZT, later renumbered s. 316). A quorum of the Board was constituted by the Chairperson, the ordinary member who was a lawyer and one other member (s. 114ZZH, later renumbered s. 330).
Pursuant to s. 114ZK, also inserted by the 1992 Amendment Act, the Board could:
"… at any time require a registered agent:
(a)to make a statutory declaration in answer to questions in writing by the Board; or
(b)to appear before the Board, or a single member of the Board, and to answer questions; or
(c)to provide the Board with specified documents or records relevant to the agent's continued registration.
(2) A single member of the Board before whom a registered agent appears to answer questions must record the questions and answers and provide them to the Board."
The Board was replaced by MARA when the Migration Legislation Amendment (Migration Agents) Act 1997 ("1997 Amendment Act") came into operation. If an appointment has been made by the Minister pursuant to s. 315, MARA is the Migration Institute of Australia Limited ("Institute") (s. 275(a)). Otherwise, MARA is the Minister (s. 275(b)). Where MARA is the Minister, he may delegate any of its powers or functions to an officer of his Department for any period during which the Institute is not appointed under s. 315 (s. 320). As an appointment has been made, MARA is the Institute which is a registered corporation (s. 275). MARA's functions mirror those of the Board and, so long as the Institute holds an appointment, it also has an advisory function to the Minister on the adequacy of any Code of Conduct (s. 316).
On behalf of MARA it was submitted that the reference to "an individual" in s. 308(1)(b) was necessary in view of the corporate status of MARA. While it is true that a corporate body (the Institute) is presently appointed as MARA, the provisions relating to MARA and to its powers and functions are equally applicable whether MARA presently takes the form of a corporate body or whether it is the Minister. It follows that the interpretation of each of those provisions must be equally applicable to either form in which MARA may be constituted.
The choice of the word "individual" in s. 308(1)(b) as opposed to the word "person" signifies that Parliament intended that the registered migration agent could not attend before anybody other than a natural person. In the absence of a contrary intention, the word "individual" means a natural person (Acts Interpretation Act 1901, s. 22(1)(aa)) while the word "person" "… include[s] a body politic or corporate as well as an individual" (s. 22(1)(a)). The two words are used throughout the Act and their use does not suggest that they may be used interchangeably. In the context of the provisions of the Act relating to migration agents and immigration assistance, the two words are used and again they would not appear to have been used interchangeably. Section 280, for example, provides that:
"(1) Subject to this section, a person who is not a registered agent must not give immigration assistance.
Penalty: 50 penalty units.
Note:
(2)This section does not prohibit a parliamentarian from giving immigration assistance.
(3)This section does not prohibit a lawyer from giving immigration legal assistance.
(4)This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.
(5)This section does not prohibit an individual from giving immigration assistance if the assistance is:
(a)not given for a fee or other reward; and
(b)not given in his or her capacity as an employee of, or a voluntary worker for, another person or organisation; and
(c)not given in the course of, or in association with, the conduct of a profession or business.
(6)This section does not prohibit an individual from giving immigration assistance in his or her capacity as:
(a)a member of a diplomatic mission; or
(b)a member of a consular post; or
(c)a member of an office of an international organisation.
(7)In this section:
member of consular post means a person who is a member of a consular post for the purposes of the Consular Privileges and Immunities Act 1972.
member of a diplomatic mission means a person who is a member of a mission for the purposes of the Diplomatic Privileges and Immunities Act 1967.
member of an office of an international organisation means the holder of an office in, an employee of, or a voluntary worker for, a body that, under section 3 of the International Organisations (Privileges and Immunities) Act 1963, is an international organisation within the meaning of that Act."
In this section both "person" and "individual" have been used. It would seem to me, that Parliament has done so deliberately to ensure that there is a general prohibition upon all persons, whether natural persons, or artificial persons such as bodies politic and bodies corporate, from giving immigration assistance unless registered under the Act. At the same time, s. 280 ensures that certain natural persons are excluded from the general prohibition. In the case of a parliamentarian, lawyer or official, the exclusion is defined. By virtue of the definitions of "parliamentarian", "lawyer" and "official" appearing in s. 275 of the Act, each of those must be a natural person and not a body corporate or a group of two or more comprising some form of partnership or joint enterprise. In view of that, there is a strong suggestion that the reference to "individual" in s. 280(5) and (6) is a reference to a natural person. This interpretation would be consistent with the prohibitions on charging for and advertising immigration assistance found in ss. 281-285. The prohibitions are placed upon "persons" but identified natural persons (parliamentarians, lawyers and officials) are excluded from the prohibitions.
Section 286 provides that "Individuals may be registered as migration agents in accordance with this Part" (i.e. Part 3). MARA must keep a Register of Migration Agents "… listing individuals who are registered as migration agents" (s. 287(1)). The manner in which an application is made for registration is the subject of s. 288. Sections 288(1) and (1A) provide:
"(1) An individual may apply to the Migration Agents Registration Authority to be registered as a registered agent.
(1A)The individual must publish in the prescribed way a notice:
(a)stating his or her intention to apply for registration; and
(b)stating that anyone may given the Migration Agents Registration Authority a written objection to registration of the individual, within 30 days after publication of the notice (or 30 days after the day on which the notice is last published, if it must be published more than once).
This requirement does not apply to an individual who has been registered at some time in the 12 months immediately before making the application."
In keeping with the prohibition on the giving of immigration assistance that appears in ss. 280-285, to which I have referred, s. 288 is clearly referring to a natural person or to natural persons, and not to artificial persons, when it refers to "an individual" or "individuals". Furthermore, it draws a distinction between an "individual" and "individuals". While individuals may be registered as a migration agent and a register is kept of those individuals, an application for registration may only be made by an individual. That Parliament intends that there be an application by only one natural person at a time and not by natural persons appears from the information that the application form must contain:
"Information to be required by form
Item Capacity in which applicant proposes to give immigration assistance Information required
Employee of an individual Particulars of the individual
Executive officer or employee of a corporation Particulars of the corporation and its executive officers
Employee or member of a partnership Particulars of the partnership"
(s. 288(3))
Section 288(3) draws a clear distinction between employment by an individual, a corporation and a partnership. A partnership is a reference to persons carrying on certain functions, such as a business, in common. Unlike a body corporate, a partnership is not a legal entity. It may be formed between two or more corporate bodies or two or more natural persons. The specific reference to a person's being an employee of a partnership leads to the conclusion that the reference to an individual in s. 288(3) is a reference to a single natural person and a reference to a corporation is a reference to a single corporation. There would be no need to make that reference were the words "individual" and "corporation" intended to be read in the plural as well as the singular.
Conscious of the careful use in these provisions of the word "individual" in both its singular and plural senses, I return to s. 308(1)(b). Apart from that provision, the Act does not set out the manner in which MARA must be constituted to carry out its functions and exercise its powers. Where MARA is the Minister, then the Minister, or his delegate, is the person who must carry out those functions and exercise those powers. Although not in evidence, I assume that the manner in which the Institute carries out its function and exercises its powers, is governed by its Articles and Memorandum of Association.
The absence of any provisions relating to MARA's constitution may be contrasted with those governing its predecessor, the Board. In relation to its powers to require a registered migration agent to answer questions, the Board could require him or her to appear before "the Board or a single member of the Board" (s114ZK).
Despite giving the Board power to require a person to appear before it (and so before a minimum of three members) or a single member, Parliament chose to permit MARA to require an appearance before "an individual". In view of its careful delineation between the words "individual" and "individuals" in other provisions in the Act and in view of the clear reference to the Board's being able to require a registered migration agent to appear before either the Board or a single member (and so before natural persons), the choice of the words "an individual" in s. 308(1)(b) seems a deliberate choice. In view of that, I have concluded that, under s. 308(1)(b), MARA has the power to require a registered migration agent to appear before a single natural person but does not have the power to require him or her to appear before more than one such person.
That brings me to the question whether the transcript of the interview should be admitted in evidence in the Tribunal. Mr Burns submitted that the transcript should be excluded. He relied, in essence, not only on the illegality of the manner in which the evidence was obtained but upon its having been unfairly obtained. In his submission, these factors outweighed any probative value it might have. Mr O'Higgins submitted that the transcript's admission would not cause any substantial injustice to Mr Griffiths. He was given an appropriate opportunity to make submissions to MARA and afforded procedural fairness at all stages of the proceedings. Mr Griffiths' legal adviser was present during the hearing and was able to assist and advise him as he saw fit. No particular prejudice has been identified by Mr Griffiths were the transcript to be admitted and he has not identified any matters that might possibly mislead or confuse, or result in an undue waste of time. The transcript records the unrehearsed answers of Mr Griffiths and, furthermore, the nature of the questions and answers would not be affected by whether one or more conducted the interview.
In Re Salters and Telstra Corporation Limited (2000) 31 AAR 500, I considered whether a medical report should be admitted when I had found that it had been based, in part, upon an interview with the applicant's wife of which there had been no notice to the applicant or his solicitors. I considered a number of issues that are relevant in this case. The respondent in that case had submitted that Mr Salters would not be disadvantaged were the report to be considered by the Tribunal and it advanced the following reasons to support its submission:
"59 Was Mr Salters disadvantaged by not receiving notice of Mrs Salters possibly being interviewed at some time before the appointment? The essence of Mr Dickson's submissions was that he was not disadvantaged. He advanced a number of reasons to support his submission: Mr Salters has not complained about the references to his wife in the reports of Dr Knight and Dr Low; the purpose of the examination was to provide specialist evidence to the Tribunal to assist it in reaching the correct or preferable decision and Mrs Salters would not contend that she would do anything other than assist the Tribunal; Mr and Mrs Salters did not attempt to contact his solicitors during the appointment with Dr Reddan; there was no unfairness in the manner in which the interviews were conducted; Mrs Salters' evidence is relevant and probative; the evidence in Dr Reddan's report is relevant and probative; and the AAT must have regard to evidence which is logically probative whether it is legally admissible or not (Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALD 33 at 42 per Brennan J)." (page 515)
I considered those submissions in the context of s. 33 of the AAT Act, ss. 135 and 138 of the Evidence Act 1995 ("Evidence Act") and of the Safety, Rehabilitation and compensation Act 1988 ("SRC Act"):
"60 The starting point for considering these submissions is the case of Pochi. Certainly, Brennan J in Pochi did say that the majority judgments in R v War Pensions Entitlements Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228 '… show that the tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not' (at 42). That is not to say, however, that logical probity is the only matter that is taken into account. It is apparent from the passages quoted by his Honour that issues of 'substantial justice' must be taken into account. Immediately after the passage referred to by Mr Dickson, for example, he refers to a passage from the judgment of Starke J in Bott's case in which he said:
'"The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case."' (Bott's case at 249-250 and Pochi at 42)
61 Earlier, Brennan J had referred to the dissenting judgment of
Evatt J in the same case when he said:'" Some stress has been laid by the present respondents upon the provision that the tribunal is not, in the hearing of appeals, 'bound by any rules of evidence.' Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'."' (Bott's case at 256, and Pochi at 41)
62 At the heart of Pochi, then, is the need to ensure that substantial justice is achieved between the parties. That is not to say, however, that the rules of evidence are irrelevant for the rationales underpinning those rules may be relevant in considering what amounts to substantial justice.
63 With that in mind, I have turned to the Evidence Act 1995. Section 135 of the Evidence Act gives a court a general discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party, be misleading or confusing, or cause or result in undue waste of time. It is, however, primarily s.138 upon which the parties focused in this case:
'138. (1) Evidence that was obtained:
(a)…; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)…
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant of Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.'
64 Section 138 is not limited in its application to evidence obtained by law enforcement officers in consequence of an impropriety or of a contravention of Australian law. As Crispin J observed in R v Malloy [1999] ATCSC 118):
' Furthermore, it is clear that the section applies to evidence that has been illegally or improperly obtained by anyone whilst the common law principle was generally applied in relation to evidence which has been procured by unlawful conduct on the part of police or other investigative officers. …' (at [10])
65 Section 138(3) has been considered in several cases. In R v John Nan Truong (1996) 86 A Crim R 188, Miles CJ said:
'Sub-s 138(3) lays down a non-exclusive list of matters which must be taken into account, leaving it to the Court to decide how such matters are to be taken into account and what weight is to be given to each. The sub-section does not state whether the relative weight of any such matters favours admission or non-admission. It may be implied that the weight of some matters favours admission. For instance, if the probative value was high, that would tend to favour admitting the evidence. If the impropriety or contravention were deliberate that would tend to favour not admitting the evidence. On the other hand, it is far from clear whether the "importance" of the evidence favours admission or non-admission. Behaviour contrary to the International Covenant on Civil and Political Rights 1996 done at New York on 19 December 1996 would appear to favour non-admission.
…
In contrast, in the present case, the Bunning v Cross (1978) 141 CLR 54 test does not apply and whilst s 138 may require the exercise of a discretion very similar to that in Bunning v Cross, it is the section to which the Court must pay attention, bearing in mind that the onus is on the prosecution to establish that the desirability of admitting the evidence outweighs the undesirability.'
66 His Honour considered the provision again in R v Haughbro (1997) 135 ACTR 15 where he decided to admit evidence procured by an under cover police operative:
'… Sub-section 138(3) provides for a number of particular matters that the Court must take into account, without limiting the Court to those particular matters. It may be that in some circumstances considerations relating to one or more of these particular matters are so over-whelming that consideration of any others may be ignored for the purpose of delivering reasons, but unless the case is a very clear one, the balancing exercise will usually be delicate and the Court will not be able to ignore any one of the particular matters which the section says must be taken into account. The matters enumerated constitute more than just a "check list". I think that in the circumstances of this case I am obliged to consider each matter in turn.'
67 Master Connolly of the ACT Supreme Court also considered the discretion to exclude evidence pursuant to s 138 in Klein v Bryant ([1998] ACTSC 89) where he said:
'44. I am satisfied that this provision, although usually considered in the context of criminal prosecutions, was intended to and does apply also to the consideration of the admissibility of evidence in civil matters (Odgers, Uniform Evidence Law, 2nd ed, 1977) p243; Cross on Evidence, Australian ed, Heydon, 27,118). To the extent that this alters the proposition that at common law there was no discretion to exclude illegally obtained evidence in a civil claim (Pearce v Button (1985) 8 FCR 388 per Pincus J at 390), I am satisfied that this is the proper interpretation and intended consequence of the Evidence Act.'
45. …
46. While a consideration of the admissibility of material said to be improperly obtained is now an exercise of a statutory discretion, I am able to obtain guidance from the common law discretion developed by the High Court in Bunning v Cross at 74. In that case Stephen and Aickin JJ said that the common law discretion involved
"...the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to those whose task it is to enforce the law."'
(and see also R v Malloy (at [10]), Crispin J, at [10])
68 When regard is had to the principles in these cases, it seems that the ultimate test is whether it is a 'fair thing' that the evidence be admitted. In other words, what does substantial justice require? As Miles CJ said in R v Haughbro of the discretion in s 138 in the context of a criminal proceeding:
'The balancing of the various factors required by sub-s 138(3) is not to be done in any mechanical way. There is nothing in the Evidence Act to indicate how much weight is to be given to one factor rather than another or whether the relative weight of a particular factor has admission or non-admission. … I agree with the remarks of Hidden J. in R v Salem (1997) 96 A Crim R 421 at 430 that the ultimate and essential question to be decided is whether the public interest is best served by the admission of evidence tending to establish the accused's guilt of the crime notwithstanding that that evidence was obtained by the unlawful or improper conduct of law enforcement authorities. Once the impropriety or contravention is proved, then the prosecution must show that the discretion to exclude the evidence should not be exercised. …. I can do no better in summing up the position than by borrowing from the words of Judge Shadbolt, the trial judge in Salem, words which were approved by the Court of Criminal Appeal: '[The evidence] is not, in my view, evidence obtained at too high a price such as to offend against a sense of fair play or immediately to arouse feelings of moral outrage. …' (at 428)
69 Returning to Dr Reddan's report, it would appear that, on its face and subject to its being tested in the usual fashion, its content report is logically probative in deciding the issues in this case. It is an important piece in the evidentiary patchwork but it is not crucial in the sense that, admittedly at some expense, Telstra could obtain another report quite readily. An expert report obtained for the purposes of a merits review of a worker's compensation decision must be contrasted with, for example, evidence obtained for the purpose of a criminal proceeding in relation to a serious offence. In the criminal jurisdiction, the seriousness of the offence is a matter which has weighed in favour of the improperly obtained evidence being admitted into evidence: Cleland v The Queen (1982) 151 CLR 1 at 17; R v Addabbo (1982) 33 SASR 84 at 98.
70 Merits review is more akin to a civil claim for damages in which one party alleges that the other may be overstating their claimed disability. Such a proceeding was considered in Klein v Bryant where Master Connolly stated:
'54. The strongest factor which favours non admission is the undesirability of, to adopt the words used by their Honours in Bunning v Cross, providing curial approval or even encouragement of this type of conduct. I am satisfied that these factors are central to the consideration required to be made by s138 of the
"...undesirability of admitting evidence which has been obtained in the way in which the evidence was obtained."
…
57 In the present case I am not, of course, considering the competing balance of convicting a person accused of a major drug offence and the conduct of police. It seems appropriate to observe that, to the extent that the motive of the party seeking admission of evidence is properly relevant, the public interest in the conviction of those guilty of crime may be more compelling than the public interest in demonstrating whether a claimant in a civil damages claim is overstating her level of disability.'
71. Applying these principles to the case of a worker's compensation claim, the public interest in permitting the admission of evidence obtained with an impropriety so that the correct or preferable decision is reached in a particular case is not as pressing as it would be were the issue under consideration to be whether a person is guilty of a serious criminal offence." (pages 515-519)
I then went on to consider the particular circumstances in which the medical report was obtained and the consequences of its being admitted or not. That particular consideration does not assist me in this case. Unlike Mr and Mrs Salters, Mr Griffiths was aware that he would be interviewed by three persons. He was not caught by surprise. Unlike Mr Parsons, who was improperly examined by a panel of (rather than a single) legal medical practitioners contrary to s. 57(1) of the SRC Act, Mr Griffiths was not unrepresented at the time of the interview (Re Parsons and Comcare, (1997) 24 AAR 616 (Senior Member Ettinger and Mr Lynch and Mr Woodward, Members)).
Unlike both the Salters and the Parsons cases, the evidence in this case is not a report or reports of experts setting out such matters as the history given to them, their clinical findings and the conclusions expressed by them. It is, instead, a transcript of questions and answers. Those questions and answers represent a step in the process that may be followed by MARA in considering whether or not to cancel or suspend a registered migration agent's registration or whether to caution him or her. MARA is not required to specify an individual before whom a person must appear to answer questions but may do so. It is, however, required to inform that person if it is considering cancellation or suspension or issuing a caution and to invite him or her to make a submission on the matter (s. 309(2)).
Unlike a report such as a medical report, the questions and answers represent an investigative stage of MARA's processes. They do not represent its concluded view but merely the direction of its enquiries at that stage. Mr Griffiths had been sent copies of two complaints (T documents, pages 927 and 970; copies of the complaints appear in the affidavit of Mr Hugh Daniel Copley filed in relation to the stay application in this matter (Annexures HDC 2 and HDC 4) but not in the T documents). In contrast, he had not been sent copies of the complaints made by Mr and Mrs Geary and Mr Morris. This was raised with MARA by his solicitors in a letter dated 30 August, 2000 (T documents, page 742). They asked that MARA forward complete details of the matters of complaint and other matters to be discussed with him.
MARA replied to Mr Griffiths' solicitors in a letter dated 1 September, 2000 (T documents, pages 732-734). It stated that, as requested, it was indicating the particular matters for discussion at the interview and noting that other matters might arise during the course of the interview but that it was impossible to foreshadow them. Three particular areas were identified: the Geary complaint, the Morris complaint and Mr Griffiths' letter dated 20 July, 2000 to MARA.. The letter is lengthy but the first two points under each heading gives a flavour of the matters described in the letter:
"Geary complaint
·The timing and substance of any communication(s) between Mr Griffiths and the Gearys before 23 April 1998 and the absence of any written record of same.
·Possible breaches of the Code of Conduct applicable as at 1 April 1998 including clauses 2.8(a), 5.2(a), (b) and (c)
…
Morris complaint
·The timing and substance of any and all communication(s) between Mr. Griffiths and Mr. Morris and the apparent absence of any written record(s) of same.
·How Mr. Griffiths intended and advised Mr. Morris that he could apply for a 457 visa including any advice as to the prospects of success? The timing and form or mode of any such advice?
…
Mr Griffiths (sic) letter dated 20 July 2000 to the Migration Agents Registration Authority
Mr. Griffiths (sic) statement that "The standard procedure in relation to all clients is that I hand them a costs agreement (pro forma enclosed) setting out details of the costs and then render an invoice when costs become due under the agreement", particularly in light of the records available in relation to Mr. And Mrs. Geary and Mr. Morris.
The non-issuing of receipts for payments received from overseas clients.
…" (T documents, pages 732-734)
MARA's letter reads as a check list of the matters that the interviewers wished to raise with Mr Griffiths. Although some areas of complaint by Mr and Mrs Geary and Mr Morris may be divined from the letter, it did not expressly state the nature of the complaints against Mr Griffiths or of MARA's concerns with him even though they may not have been raised by those complaints. Whether or not notice should have been given has been a matter of some debate in this case. There is nothing in the Act to require it and whether or not the rules of natural justice require it at an investigative stage of the proceedings is a matter to be considered on another occasion.
Despite the lack of notice of the specific complaints, the questions and answers at the interview have some probative value. As Mr O'Higgins submitted, Mr Griffiths' answers were unrehearsed. That might be thought to add to their credibility. Some offsetting allowance might have to be made, however, for the fact that he gave his answers in a vacuum, as it were, without the benefit of the specific details of the complaints. Although it is not possible to duplicate the "unrehearsed" nature of Mr Griffiths' answers in a later set of questions and answers, this is not a case in which exclusion of the transcript would mean that the evidence is not available at all. The same, or similar, issues can be traversed. While the ability to compare his answers with his earlier answers would be lost were the transcript not to be admitted, it is not as if that is the only yardstick against which Mr Griffiths' answers can be measured. This is a case in which reference can be made to other documentary sources and to the evidence of the complainants themselves.
There is no doubt that the issues relating to the cancellation or suspension of a registered migration agent's are serious. There is a public interest in ensuring that the body given responsibility for monitoring the conduct of registered migration agents is able to perform its functions and that the Tribunal can properly review its decision. At the same time, there is a public interest in ensuring that such bodies follow proper and appropriate procedures and that evidence is obtained without impropriety. In the context of a case such as this, the scales of public interest tip in favour of the latter rather than the former. It is not a case in which the Tribunal is unable to review MARA's decision adequately if the transcript were not admitted. It is not a case in which the public interest in ensuring the proper monitoring of registered migration agents is jeopardised by the exclusion of the transcript. There is an innate unfairness in permitting the transcript to be used when the interview was not properly conducted. In the circumstances of this case, that innate unfairness and the need to ensure that proper procedures are followed outweighs any probative value that the transcript may have.
After-acquired evidence
On behalf of Mr Griffiths, it was submitted that any matter of complaint or evidence acquired by MARA after the date of MARA's decision is inadmissible. A distinction should be drawn, it was said, between the review of a decision to cancel a registration and a decision to refuse to grant registration. On behalf of MARA it was submitted that regard could be had to all evidence acquired and produced prior to the date of the hearing.
The decision of MARA to cancel Mr Griffiths' registration was based on its being satisfied pursuant to s. 303 that he had not complied with the Code of Conduct ("Code") and was not a person of integrity or is otherwise not a fit and proper person to give immigration assistance (T documents, page 370). MARA set out findings of fact in relation to four complaints and in relation to a range of matters grouped under the heading of "Other Matters". The four complaints related to those by Mr and Mrs Geary and Mr Morris as well by Ms Liana Sulaeman and Mr Sucahya Tjoa.
MARA's power to cancel or suspend a registered migration agent's registration or to caution him or her is found in s. 303. It provides that MARA may:
"…
(a)cancel the registration of a registered agent by removing his or her name from the register; or
(b)suspend his or her registration; or
(c)caution him or her;
if it becomes satisfied that:
(d)the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e)the agent becomes bankrupt; or
(f)the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g)an individual related by employment to the agent is not a person of integrity; or
(h)the agent has not complied with the Code of Conduct prescribed under section 314."
Section 289 is concerned with registration and provides, in part:
"(1) The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless section 290, 290A, 291, 292, 293 or 294 prohibits registration of the applicant.
…"
As a general proposition, the Tribunal is not limited to the facts that were before the decision maker. Its role was succinctly stated by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 when it was said:
"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal." (page 589)
As Mr Burns submitted, there is certainly a distinction to be drawn between cancellation decisions on the one hand and registration decisions on the other. That distinction has been made in a number of cases, some of which were brought together by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342. His Honour was concerned with a decision to cancel a widow's pension and he reviewed the earlier decisions of Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44 (Davies J, President, Senior Member Ballard and Dr Garlick, Member), Jebb v Repatriation Commission (1988) 80 ALR 329 (Davies J), Re Easton and Repatriation Commission (1987) 12 ALD 777 (Davies J) and Re McGourty and Repatriation Commission (1988) 9 AAR 87 (Davies J). He said:
"The jurisdiction of the Tribunal arose from the application made to it to review the decision of the delegate who, on 18 August 1987, affirmed the decision of the officer made on 19 May 1987. The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman's widow's pension at that time was the correct or preferable decision to have been made. In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the Tribunal's decision.
Regard must always be had to the nature of the decision which is under review. In Re Tiknaz, in Re Easton, in Jebb's case and in McGourty's case, the decision under review was a decision refusing to grant a pension or benefit that had been applied for. In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the Tribunal's decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision.
However, in the present case, the decision under review was not a decision refusing to grant a pension but a decision cancelling a pension as from 19 May 1987. After the decision in Re Tiknaz was handed down, the Act was amended by the insertion of ss 158(2) and 159(2). Those sections provide that the grant or payment of a pension shall not be made except upon the making of a claim for that benefit or allowance, which claim is to be in writing and lodged in accordance with s 158(1) and s 159(1). One effect of these provisions is that once a pension or benefit has been cancelled, the previous recipient has no entitlement to restoration thereof until he or she has lodged a further claim in accordance with s 158(1) and s 159(1).
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal's consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal's jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s19." (pages 344-345)
I considered the distinction between registration and cancellation decisions in the context of the provisions relating to tax agents under the Income Tax Assessment Act 1936. I concluded in Re Webb and Tax Agents' Board of Queensland (1992) 28 ALD 464 that:
"From my reading of Freeman's case and Jebb's case as well as the authorities referred to in those cases, it seems to me that the determining consideration in each was whether the decision amounted to the cancellation of an entitlement which a person had been receiving, as in Freeman's case, or a decision that a person was not qualified to receive an entitlement, as in Jebb's case. In the first case, the effect of the decision is to terminate an entitlement from a particular time. In deciding whether that is the correct or preferable decision with regard to the particular date of cancellation, it matters not whether the person might, or might not have, an entitlement at a later date. In the second case there is a decision that there is no entitlement at the outset and the issue is whether there should be an entitlement. It was in relation to such cases that, it seems to me, Davies J said in Jebb's case:
However, the general approach of the tribunal has been to regard the administrative decision making process as a continuum so that, within the limits of a reconsideration of the decision under review, the tribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the tribunal's decision. That function was enunciated in Re Tiknaz and Director-General of Social Services (1981) 4 ALN No 44 at 333." (pages 467-468)
Having reviewed the matter again in Re Harts Pty Limited and Tax Agents' Board of Queensland (1997) 97 ATC 2148, I reached the same understanding of the authorities and concluded:
"Applying their principles to this case, I find that I am concerned with a decision to cancel Harts' registration as a tax agent. In the framework of the registration provisions I have summarised above, cancellation of a tax agent's registration is a separate matter from whether or not a person is entitled to be registered as a tax agent. The two decisions cannot be treated as the same decision. As the decision under review in this case is a cancellation case, I am limited to considering the facts as they were at the date of the cancellation. I cannot take into account the changes in the shareholding of Harts." (page 2,158)
In retrospect, I consider that my conclusion could have been more carefully worded. The focus of the conclusion was a submission that regard could be had to a variation in the allotment of shares in Harts Pty Limited ("Harts") when that variation had occurred after the cancellation decision. As the decision under review was a decision to cancel a tax agent's registration, the Tribunal had to consider whether the decision to cancel was the correct or preferable decision to make. In view of that, it was not relevant to consider whether Harts' registration would have been cancelled had it had a different share allotment. The Harts' share allotment had to be considered on the day of the cancellation decision. It was not relevant to consider whether Harts would be registered in the future with a varied share allotment. The decision under review was to do with cancellation and not with registration.
Beyond its facts, the decision in the Harts case, however, should not be read as referring to any general principle that the Tribunal is limited to considering the evidence, as opposed to the facts, as at the date of the cancellation and may not gather evidence beyond that date. Subject to any legislative variation, the general principles are, rather, those enunciated in Drake and Freeman, to which I have referred. Where the decision under consideration is a cancellation decision, the Tribunal must consider whether or not that decision was correctly made at the time it was made. Where the decision under consideration relates to an entitlement (be it a pension or registration), the Tribunal may consider whether that entitlement exists at any time up to the date of the hearing.
In both cases, regard may be had to all relevant evidence to determine the facts that are relevant in reviewing the particular decision. In the case of a cancellation decision such as was made in relation to Mr Griffiths, that will require findings of fact as to whether he met any of the criteria specified in s. 303(d)-(h) as at the date of cancellation. If he did, there will then follow consideration of whether his registration should be cancelled or suspended or whether he should be cautioned. Had Mr Griffiths been refused registration as a migration agent and consideration were being given to the matters raised by s 289, that would require findings of fact in relation to ss. 290, 290A, 291, 292, 293 or 294. Those facts need to be found to exist at the date of the Tribunal's decision.
Whether concerned with an entitlement decision or a cancellation decision, and in the absence of any legislative direction to the contrary, the evidence upon which the relevant facts rest, is that before the Tribunal. In so far as it is pertinent to the facts to be found, the evidence is not limited to that either known to the decision-maker or in existence at the time that the decision under review was made.
For the reasons, I have given, I direct that:
1.the transcript of the interview between the applicant on the one hand and Ian Robinson, Lesley Hunt and John Hodges on the other will not be admitted in evidence in any hearing of the application; and
2.the evidence not be limited to that available to the respondent at the date of its decision.
I certify that the forty two preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ..........................................
A R Horne AssociateDates of Hearing 13 February, 2001
Date of Decision 27 March, 2001
Counsel for the Applicant Mr M Burns
Solicitor for the Applicant McCullough Robertson
Solicitor for the Respondent Mr P O'Higgins, Blake Dawson Waldron
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