Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs - [2005] AATA 200

CATCHWORDS – PRACTICE AND PROCEDURE – Information Private Principles – access to documents by a person not a party to the application – whether access by the Tribunal required or authorised – distinction between access when a hearing of a proceeding has been held and when it has not – general principles – whether applicant reasonably likely to have been aware that information of a kind usually passed to journalist – access denied

Acts Interpretation Act 1901 s. 26(b)
Administrative Appeals Tribunal Act 1975 ss. 3(1), 25(1), 29(6), 33(1), 33(1)(c), 33(2A)(a), (b) and (c), 35, 35AA, 36, 36B, 37(1), 37(1)(b), 37(1AE), 37(1AF), 37(2), 38, 38A, 39B, 40(1A)-(1E), 41, 61, 62, 66
Commonwealth of Australia Constitution Act Chapters II and III
Freedom of Information Act 1982 s. 34, 41, 43(1)(c)(ii)
Information Privacy Principles 1, 2, 3 and 11 (cll. 1, 2 and 3)
Migration Act 1958, s. 499
Privacy Act 1988 ss. 6(1), 9, 10(1), 14, 16, 16(1)
Trade Practices Act 1974 ss. 45 and 45A

ASIC v Rich [2002] NSWC 198
Australian Competition & Consumer Commission v ABB Transmission and Distribution Limited (No 3) (2002) ATPR [¶41-873] 44,953
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Australian Postal Commission v Hayes (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135
Australian Securities & Investments Commission v Rich (2001) 51 NSWLR 643
Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
East v Repatriation Commission (1987) 16 FCR 517; 74 ALR 518
eisa Limited v Brady [2000] NSWC 929
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Hammond v Scheinberg (2001) 52 NSWLR 49
Home Office v Harman [1983] AC 280
Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 48 ALD 222
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696
Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663; 35 AAR 29
Re Lavery and Registrar, Supreme Court of Queensland and Ors (No. 2) (1996) 23 AAR 52
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247
Re Spicer Axle Structural Components Australia Pty Ltd and Secretary of the Department of Industry Tourism and Resources [2005] AATA 77
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537
Russell v Russell (1976) 134 CLR 495
Scott v Scott [1913] AC 417
Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) IR 325
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

Fundamental Legal Concepts as applied in Judicial Reasoning, Wesley Newcomb Hohfeld, Yale University Press, 1919, 4th printing 1966, edited by Walter Wheeler Cook
General Practice Direction dated 18 May 1998
Tribunal’s Registry Procedure Manual at cl. 5.6.3

DECISION AND REASONS FOR DECISION [2005] AATA 200

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2004/1140
GENERAL ADMINISTRATIVE DIVISION     )

Re JO-ANNE SKASE

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  10 March 2005
Place:  Melbourne

Decision:The Tribunal directs that:

1.the Herald & Weekly Times Pty Ltd is not permitted to have access to the Tribunal’s file in these proceedings.
S A FORGIE
Deputy President

REASONS FOR DECISION

The applicant, Mrs Jo-Anne Nanette Skase, has lodged an application in the Tribunal seeking review of a decision made by the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”). Although Mrs Skase’s application has yet to be heard let alone determined, the Herald & Weekly Times Pty Ltd (“HWT”) has asked the Tribunal to let it look at its file relating to it. I have decided that it should not be permitted to do so.

At the directions hearing to consider HWT’s request, Mrs Skase was represented by Mr Burnside QC with Mr Over of counsel and HWT by Mr Houghton QC with Ms Schoff of counsel. The Minister did not play any part in the directions hearing.

THE ISSUE

The issue is whether HWT may examine the Tribunal’s file regarding Mrs Skase’s application and, if so, the extent to which it may do so.

BACKGROUND

On 24 January 2005, HWT’s solicitors wrote to the Tribunal’s Principal Registrar advising him that it had a readership of approximately 1.5 million people. They acknowledged that HWT is not a party to the proceeding but asked for access before the hearing started to Mrs Skase’s application for review and to the Statements of Facts and Contentions, witness statements and affidavits and any other documents that have been filed. The bases on which HWT’s solicitors sought access were:
there has been enormous public interest in the Skase family over the past ten years as a result of the commercial activities of Mrs Skase’s husband, Mr Christopher Skase, and the subsequent attempts by the Australian Government to gain his extradition to Australia from Majorca;
the proceedings in the Tribunal do not involve issues such as discrimination, security or taxation that would be of a highly sensitive nature;
the proceedings relating to Mrs Skase’s application will not be adversely affected if HWT were to have access to the Tribunal’s file before the hearing; and
the “open justice principle” is enshrined in s. 35 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) so ensuring that the Tribunal’s proceedings are heard in public. The media’s right to report proceedings of courts and tribunals accurately and fairy is an adjunct to the open justice principle.
The Tribunal’s Registrar, Mr Doug Humphreys, replied on 25 January 2005 that HWT was entitled to the details that relate to Mrs Skase’s application and that are held on the Public Register. Those details are limited to noting that the status of the file in the name of “Ms JN Skase V. Minister for Immig. & Multicultural &” is “Open”. The application was:
“Lodged: 4/10/2004 S.29 Sent: 18/10/2004 S.37 Rcvd: 17/11/2004”

The Public Register goes on to list the type of hearing held, the time and date on which they were held, their estimated and actual durations and any decision. To date, all hearings have been in the nature of interlocutory hearings dealing with procedural matters. The hearing of the application is to be held shortly.

In refusing HWT’s request for access, Mr Humphreys went on to say:
“In so far as the request relates to other documentation I am guided by S 14 of the Privacy Act which outlines a series of Information Privacy Principles (IPP). As a Commonwealth agency the AAT and its staff are required to follow the framework set out in the IPP’s. IPP 11 (attached) prohibits the release of personal information about an individual, except where the individual has consented or the disclosure is required or authorised by law. Allowing early access by your client to documentation that may or may not form part of the hearing, in my view, would breach IPP 11 unless the parties consent. S35 of the AAT Act does not provide your client with any assistance, as all it appears to dictate is that a hearing should, as a general rule, be in public but that AAT has the power to alter that position provided it takes into account the matters referred to in S35(3).”

IPP 11, to which Mr Humphreys referred, is one of the Information Privacy Principles (“IPPs”) enacted by s. 14 of the Privacy Act 1988 (“Privacy Act”). An agency is prohibited from breaching the IPPs[1]. IPP11 provides that:
[1] Privacy Act, s. 16
“1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
(a)the individual is reasonably likely to have been aware, or made aware under Principle 2[2], that information of that kind is usually passed to that person, body or agency;
(b)the individual concerned has consented to the disclosure;
(c)the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious imminent threat to the life or health or the individual concerned or of another person;
(d)the disclosure is required or authorised by or under law; or
(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
2.Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.
3.A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.”
[2] IPP 2 is concerned with the solicitation of personal information from the person concerned.

The Tribunal’s Procedure Manual refers to access by persons other than parties:
“In accordance with IPP 11, the Tribunal does not allow people who are not a party, or a representative, access to case files before the public hearing of the matter.
However, non-parties may ask for a public register search which will disclose party names, unless a confidentiality order has been made. You must not give non-parties access to, or copies of, any documents in the Tribunal case file before a hearing. This includes both the pre-hearing and the registry file. If they persist with the request for access, tell them to make a Freedom of Information request in writing …”[3].

CONSIDERATION

[3] Tribunal’s Registry Procedure Manual at cl. 5.6.3.

Function and powers of the Tribunal

The Tribunal is a body that exercises administrative power but is separate from, and independent of, the Executive Government as understood under Chapter II of the Commonwealth of Australia Constitution Act (“Constitution”). While separate from the Judicature established under Chapter III, it is constituted on the judicial model and its:
“… function is to decide appeals, not to advise the Executive. The remedies which it awards may be limited or large, but the remedies are incidental to the decision at which it arrives. The decision of the Tribunal in the particular circumstances of each case is therefore to be resolved according to its opinion as to the merits of that case. It forms that opinion after considering the views of the decision-maker but it is not bound by those views. …”[4].
[4] Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ

In considering the merits of a case, the Tribunal carries out de novo review of the decision. It must satisfy itself that the decision it reaches on that review is objectively the right one to be made on the facts of the case and according to the law[5]. If only one decision may be lawfully made on the facts, the Tribunal is required to make that, and so the correct, decision. If more than one decision is open to it, it is required to reach the preferable decision of those decisions that may correctly be made[6].
[5] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 599; 77 per Smithers J
[6] at 589; 68, per Bowen CJ and Deane J

In carrying out its function, the Tribunal must ascertain the facts of the case. Generally, it does so from the evidence, written and oral, presented to it by the parties. It is not limited to the material considered by, or available to, the decision-maker. Equally, it is not limited to the basis on which an application was made to the decision-maker[7]. As the Tribunal may inform itself on any matter as it thinks appropriate[8], it will occasionally make its own enquiries and may do so provided it observes the rules of procedural fairness[9]. As a matter of practicality, the parties will want to produce evidence to support their respective cases lest the Tribunal not have that evidence and so not be in a position to make the decision sought by that party[10]. The Tribunal must also ascertain the law that circumscribes the decision under review. In so far as policy is concerned, there are instances in which it is bound to have regard to policy lawfully formulated by the Executive Government[11] and others as part of the factual matrix[12].
[7] Re Lavery and Registrar, Supreme Court of Queensland and Ors (No. 2) (1996) 23 AAR 52 at 56
[8] AAT Act, s. 33(1)(c)
[9] Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537 at 335; 546-547 per Beaumont J with whom Northrop and Spender JJ agreed
[10] East v Repatriation Commission (1987) 16 FCR 517; 74 ALR 518 at 534; 535 and see also Australian Postal Commission v Hayes (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135 at 328; 142
[11] e.g. Migration Act 1958, s. 499
[12] Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 645

In order to carry out its function, the Tribunal has been given powers under the AAT Act. Those powers give it quite a degree of flexibility in regulating its own procedures and in informing itself[13]. They may be supplemented or varied by provisions in other legislation relating to particular decisions that it is given power to review. As a tribunal created by statute, its powers are those that it has either been given expressly or by implication by statute[14]. In addition, it has powers that are incidental and necessary to the exercise of its express and implied powers[15].
[13] AAT Act, s. 33(1)
[14] Express power is found either in the AAT Act or in another enactment providing that an application may be made to the Tribunal.
[15] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 48 ALD 222 at 473; 227 per Sundberg J

Preparation of cases for hearing

As the Tribunal is required to reach the correct and preferable decision and to do so while observing the rules of procedural fairness, it has, subject only to exceptions not relevant in this case[16], generally required parties to an application to put all of their written evidence and statements of their witnesses on the table before the commencement of the hearing to review. The AAT Act itself requires the decision-maker to take the first step. The decision-maker must lodge two categories of documents. The first is a statement setting out the findings on material questions of fact referring to the material on which the findings were based as well as the reasons for that decision[17]. The second category comprises the documents that the decision-maker considers relevant to the review of the decision by the Tribunal[18]. At first sight, the effect of s. 37(1AE) of the AAT Act is that decision-maker must give a copy of the documents lodged to every other party to the application. That obligation is, however, qualified by s. 37(1AF) if the decision-maker applies under s. 35 to restrict publication or disclosure of the documents or their contents. The obligation to give every other party a copy of the documents is effectively limited to those documents lodged under s. 37(1) and in relation to which there is no order under s. 35[19].
[16] Exceptions may be made where, for example, procedural fairness requires otherwise (Australian Postal Commission v Hayes 329; 291; 142-143).
[17] AAT Act, s. 37(1)(a). The Tribunal may order the decision-maker to make an additional statement if it considers that the statement lodged by the decision-maker does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material or does not give adequate particulars of the reasons for decision; AAT Act, s. 38.
[18] AAT Act, s. 37(1)(b)
[19] see generally my analysis in Re Spicer Axle Structural Components Australia Pty Ltd and Secretary of the Department of Industry Tourism and Resources [2005] AATA 77 at [27]-[32]

The obligation under s. 37(1) is limited to those documents considered relevant by the decision-maker to the review but the Tribunal may have a different view of what is relevant. If the Tribunal comes to the view that the decision-maker has other documents that may be relevant, it may require the decision-maker to lodge those as well by using its power under s. 37(2). There is no requirement equivalent to s. 37(1AE) requiring the decision-maker to give a copy of those documents to the other parties and no specific provision dealing with the interaction between documents lodged under s. 37(2) and the confidentiality provisions of s. 35. Whether or not copies are given to the other parties then becomes a matter for the Tribunal to decide using its general powers under s. 33(1) and having regard to its particular powers under s. 35 to ensure confidentiality and the general requirement that the Tribunal must ensure that every party is given a reasonable opportunity to inspect documents to which it proposes to have regard in reaching a decision as well as a reasonable opportunity to make submissions in relation to those documents[20]. This is generally achieved by requirements that parties exchange copies of material that they have lodged or, on occasion, by the Tribunal’s sending copies of material.
[20] AAT Act, s. 39 and see generally Re Spicer Axle Structural Components Australia Pty Ltd and Secretary of the Department of Industry Tourism and Resources at [33]-[34]

The parties will often wish to lodge material and statements of witnesses whom they wish to call to give evidence at a hearing of the application. They may do so voluntarily but the Tribunal also has powers to require them to do so. Those particular powers are found in s. 33(2A)(a) of the AAT Act.

The parties may seek documentary evidence held by persons other than by another party to the application. Sections 40(1A)-(1E) enable them to do so by asking the Tribunal to issue a summons to require the production of books, documents or things. The person summonsed may be required to comply with it at the hearing of a proceeding or at a directions hearing[21]. Section 40(1D) provides that a presidential member or senior member may give a party to the proceeding leave to inspect a document produced under summons.
[21] s. 40(1B)

The parties are also generally required to exchange and file Statements of Issues and Statements of Facts and Contentions[22]. In that way, the factual and legal bases of the arguments put forward by each party and the material each party proposes to rely on to support those arguments is made available to any other party and to the Tribunal. The principle underlying the procedure is that applications are not determined by stealth or entrapment.
[22] s. 33(2A)(b) and (c) and see also General Practice Direction dated 18 May 1998 at [2.2]

The hearing

I have already mentioned that the Tribunal may summons a person to produce books, documents or things at the hearing of a proceeding as well as at a directions hearing. It also has power to summons a person to give evidence “for the purposes of the hearing of a proceeding before the Tribunal”[23]. Section 3(1) of the AAT Act gives the word “proceeding” a number of meanings. Among those meanings is an application for review of a decision[24]. Such an application must relate to the review of a decision provided for by an enactment in accordance with s. 25(1) of the AAT Act. Other meanings relate to other applications under the AAT Act or under other legislation as well as to “an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or matter …” referred to in the definition[25].
[23] s. 40(1A)
[24] (a) of s. 3(1)
[25] (b)-(h) of s. 3(1)

A statement of the evidence that the witness is likely to give is generally lodged before the hearing[26]. After questioning by or on behalf of the party calling a witness, the Tribunal will permit other parties to the proceedings to cross-examine. It may also choose to question the witness itself. The evidence that is given at the hearing may extend beyond that which is given in the witness statement. At times, the documents that are given in evidence at the hearing may extend beyond those that are lodged before the hearing.
[26] see [13] above

The Tribunal also has inquisitorial powers. It is not limited by the rules of evidence and is able to inform itself as it sees fit[27]. In theory, its enquiries are limited only by its need to observe the rules of procedural fairness and to act on material that is relevant and logically probative[28]. There are various ways in which the Tribunal may use its inquisitorial powers. They range from questioning the parties’ witnesses through asking the parties to procure or produce further material to producing documentary material from its own research. In a rare case, it may call its own witnesses. If it intends to rely on material from its own research or to call its own witnesses, it must give the parties the opportunity to consider the material and to respond to it. That is demanded by the rules of procedural fairness.
[27] AAT Act, s. 33(1)(c)
[28] see Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537 at 335; 546-547 per Beaumont J with whom Northrop and Spender JJ agreed

Legislative provisions relating to confidentiality

Subject to the provisions of s. 35, the principle underlying the Tribunal’s hearings of proceedings is that they shall be in public[29]. Even if a person participates otherwise than personally, the public nature of the hearing must be preserved[30].
[29] AAT Act, s. 35(1)
[30] ss. 35(1A) and 35A

Brennan J, when he was President of the Tribunal, set out the rationale for Tribunal hearings’ being held in public saying that it is:
“… calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it.”[31]
[31] Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247 at 54; 270

Section 35(2) qualifies the general principle established by s. 35(1) when it provides:
“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)direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa)give directions prohibiting or restricting the publication of the names and addresses or witnesses appearing before the Tribunal;
(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.”

How is the power to give such directions reconciled with the general principle that hearings of the Tribunal’s proceedings be held in public? The AAT Act itself provides part of the answer for it gives prominence to the general principle among the matters to which the Tribunal must have regard in considering whether or not it is desirable to make an order under s. 35(2):
“In considering:
(a)whether the hearing of a proceeding should be held in private; or
(b)whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
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 shall 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.”[32]
[32] AAT Act, s. 35(3)

Another part of the answer lies in the following passage from Re Pochi and Minister for Immigration and Ethnic Affair in which Brennan J said:
“… the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant – they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A Court may be constrained to violate that confidentiality in order to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must be a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that the publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described in s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove these impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases – that is to say, where the ‘principle that it is desirable that hearings of proceedings before the Tribunal should be held in public’ cannot be applied. Some of these exceptional cases are statutorily defined: see the Insurance Act 1973 s 63(14).”[33]
[33] (1979) 2 ALD 33; 26 ALR 247 at 56; 272-3

Is the Tribunal bound by Information Privacy Principle 11?

Mr Houghton submitted that the Privacy Act, and so IPP 11, does not have any application in the circumstances of this case. He advanced two reasons. The first is that no personal information has been identified. The expression “personal information” is defined in the Privacy Act to mean:
“… information or opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”[34]
[34] Privacy Act, s. 6(1)

I agree that no personal information has been identified to HWT but this is a matter in which it is not possible to do so at this stage. It is a matter somewhat in the nature of an application under the Freedom of Information Act 1982 (“FOI Act”) in which the Tribunal is left to decide whether documents are exempt without the assistance of the party seeking them. Whether they are exempt will often be determined only after the Tribunal has heard evidence. An examination of the documents by themselves may not be sufficient to decide the matter one way or another. There are occasions, however, when further evidence may not be necessary e.g. that a document is a Cabinet document and so exempt may be apparent from the face of the document[35]. On other occasions, the nature of a document must first be determined before consideration can be given to whether or not it is exempt. Documents which are claimed to be exempt on the basis that their disclosure would involve the unreasonable disclosure of personal information under s. 41 of the FOI Act are an example. On those occasions, the nature of the document will have to be determined before the unreasonableness of their disclosure is considered. That nature will often be apparent from the face of the document itself and will not require evidence to decide it.
[35] FOI Act, s. 34

The same is true of the Privacy Act. To reveal the documents to HWT or their legal representatives so that they can make submissions on whether or not they contain personal information would be to undercut the whole matter. Therefore, it is a matter that I must resolve without the assistance of the applicants. Having examined the documents, I consider that this is a case in which the nature of the documents is apparent on their face. I am satisfied that some contain personal information as defined by the Privacy Act. That is so whether that information is given in the form of a statement by a witness or in the form of contentions.

Mr Houghton’s second reason to support his submission that IPP 11 does not have any application in this case relates to the Tribunal’s not being a collector of personal information. There is no question that the Tribunal is a record-keeper for, subject to exceptions that are not relevant in this case:
“… an agency that is in possession or control of a record of personal information shall be regarded, for the purposes of this Act, as the record-keeper in relation to that record.”[36]
[36] Privacy Act, s. 10(1)

Mr Houghton agrees that this is so but submits that the Tribunal cannot be regarded as having collected the personal information from Mrs Skase. Any personal information has been lodged with the Tribunal but not collected. The word “collector” in relation to the collection of personal information is defined in s. 9 of the Privacy Act. Even if Mr Houghton is correct, I do not consider that it detracts from the Tribunal’s duty not to act, or engage in a practice, that breaches IPP 11[37]. IPP 11 imposes that duty on a “record-keeper” and not on the “collector” of personal information. IPPs 1, 2 and 3 are directed to collectors but the remainder are directed to record-keepers.
[37] s. 16

It seems to me that the Tribunal is bound by IPPs as it is an “agency” within the meaning of the Privacy Act[38]. So too is the Federal Court of Australia an agency within that definition for it is a federal court[39].
[38] An “agency” means, among other bodies, “… a tribunal established or appointed for a public purpose by or under an Commonwealth enactment …”; Privacy Act, (c) of s. 6(1).
[39] Privacy Act, (g) of s. 6(1) when read with s. 26(b) of the Acts Interpretation Act 1901which provides that “Federal Court shall mean the High Court or any court created by the Parliament”.

The limits of IPP 11 as applicable to the Tribunal where there has been the hearing of a proceeding

The prohibition on disclosure of information imposed by IPP11 is a qualified prohibition. The qualifications that are relevant in this case are that Mrs Skase is “… reasonably likely to have been aware … that information of the kind is usually passed to that person …”[40] or that disclosure is “… required or authorised by or under law”[41].
[40] IPP11, cl. 1(a)
[41] cl. 1(d)

I will begin with the latter for what is authorised or required may be of some relevance in determining that of which a person is reasonably likely to have been aware. Mr Houghton submitted that any provisions that derogate from the principle of open justice should be construed narrowly and he relied on the judgment of Kirby P in Raybos Australia Pty Ltd v Jones[42], to which I return later in these reasons. For the moment, I observe that IPP 11 needs to be interpreted in its own context of the Privacy Act. Certainly, it is applicable to the Tribunal as it is to the Federal Court and other federal courts but it is equally applicable to a diverse range of other bodies in the Commonwealth. The fact that it is applicable to judicial bodies and to bodies based on the judicial model is not a reason for reading down the meaning of the exceptions to a record keeper’s general duty not to disclose personal information.
[42] (1985) 2 NSWLR 47

The ordinary meanings of the words “authorise” and “require” from which “authorised” and “required” are respectively derived are:
“… authorise … 1 to give someone the power or right to do something. 2 to give permission for something …”
“… require … 2 to demand, exact or command by authority. 3 to have as a necessary or essential condition for success, fulfilment, etc. …”[43]
[43] Chambers 21^st Century Dictionary, revised edition 1999

There is no reason to depart from these ordinary meanings. If a law gives someone the power to disclose personal information or the right or permission to obtain it or if the law demands that personal information be disclosed, the record-keeper is not prevented from disclosing it by operation of cl. 1 of IPP 11.

Regard must be had to the terms of particular laws that authorise or require disclosure of personal information. Mr Houghton referred to s. 35 of the AAT Act. In his submission, that section carries with it the concept that documents and material that are lodged with the Tribunal are public unless the Tribunal makes an order under that section. The section gives a right of access unless an order is made. It makes no difference whether the documents or material are relied on at the hearing or not or whether access is sought before or after the hearing. It is clear from ss. 35(2)(b) and (c) and 35(3) that Parliament has drawn a distinction between “documents lodged with the Tribunal” and that which is “received in evidence by the Tribunal”.

Mr Houghton relied on one of my decisions, Re Kanina Banner Pty Ltd and Minister for Health and Ageing[44], to support his submission. While referring to the passage in context, he placed particular reliance on the following passage:
“ Once review was sought of the Commission’s decision in this Tribunal, the review process was, unless otherwise ordered, public. Any consideration of whether that review process is anything less than public must proceed from the basis that it is desirable that proceedings in the Tribunal be held in public. It is desirable because the exposure of its proceedings to public scrutiny is intended to enhance the public’s confidence in both the review process and the outcome of that review process. Exposure achieves this by enabling the public to observe the Tribunal’s procedures, hear oral evidence given by witnesses and have access to material lodged in particular cases as well as hearing or reading the Tribunal’s decision at the conclusion of the review. In this way, the public is able to observe the opportunities given to the parties to present their evidence and make submissions and, over the course of time, to assess the Tribunal’s consistency and fairness both in its procedures and in its decision-making. Not only is consistency and fairness in the administrative review process in the public interest but so too is the public’s ability to observe that consistency and fairness are achieved in that process.”[45]
[44] (2002) 66 ALD 663; 35 AAR 29 at 665, 666, 667 and 668-669; 39, 40-41 and 42-43
[45] at 671; 45

Taken alone, this passage may be seen as supporting the view that documents lodged in the Tribunal are publicly available unless an order has been made under s. 35. I do not think that it should be read in that way. The reference to the “review process” was perhaps a little looser than it need have been but, taken in the context of the reasons as a whole and even of the paragraph itself and passages to which Mr Houghton drew my attention, I consider that the reference is to the hearing of the proceeding. That is to say, it is a reference to a hearing of the application for review of the decision. It was not intended to encompass steps, such as the lodgement of documents, taken before that hearing is reached and did not consider other steps that come within the definition of “proceeding” in s. 3(1) of the AAT Act. Indeed, it was focused only on whether the name of the applicant should be disclosed. That is information that has already been disclosed in this case by release of the information on the Public Register quite apart from its appearing in the press list..

In Re Kanina Banner Pty Ltd and Minister for Health and Ageing, I said that the tribunal must, in considering the application of s. 35, take as its basis the principle that it is desirable that hearings be held in public. That accords with the judgment of Kirby P in Raybos Australia Pty Ltd v Jones when he set out the long history of open administration of justice in the courts. The essence of the principle was found in the decision of Earl Loreburn, with whom Haldane LC and the Earl of Halsbury agreed, in Scott v Scott[46] when, in the words of Kirby P, he:
“… made it clear that the trial judge’s discretion to hear matters in private was controlled by limitations. He denied that the High Court had an unqualified power, in its discretion, to hear civil matters behind closed doors. He declared (at 445) that ‘the inveterate rule is that justice shall be administered in open Court’. Only where the ‘subject matter of the action would be destroyed by hearing in open Court’ or where there was a well settled exception to the general rule, might the doors be closed. Whereas the ecclesiastical courts had conducted hearings in private, once such [matrimonial] proceedings came into the general courts, … the well-established principles of publicity had to be observed.”[47]
[46] [1913] AC 417
[47] at 52

His Honour noted that the principle had been approved in Australia and referred to the judgment of Gibbs J in Russell v Russell[48] when he said, in part:
“… This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] AC 177 at 200). … Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. …”[49]

Kirby P also noted that, rather than conduct its business in private, a:

“… court will strive to adopt other expedients, such as the placing of a matter before a court in writing so that it is conveyed to the court in public but not read out: see R v Ealing Justices; Ex parte Weafer (1981) 74 Cr App R 204 at 206.”[50]

His Honour went on to observe that:

“… Running through these decisions is a common theme. It is that, by our tradition, the open administration of justice is the rule. Statutory derogation from openness is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loathe to expand the field of secret justice …”[51]

[48] (1976) 134 CLR 495

[49] at 520

[50] (1985) 2 NSWLR 47 at 54-55

[51] at 55

Section 35 of the AAT Act is entirely consistent with this principle. That is not surprising given that it is constituted on the judicial model and its function is to decide appeals independent of Executive Government. As in the courts, it requires that the Tribunal hold the “hearing of a proceeding” in public. As in the courts, it qualifies that requirement. The qualifications are consistent with those adopted in the courts and, in considering whether it should exercise its power to order that there be such a qualification, the Tribunal has regard to what would be the case in a court[52]. The requirement, as qualified, imposes a duty on the Tribunal. Applying the concepts set out by Wesley Newcomb Hohfeld in his work Fundamental Legal Concepts as applied in Judicial Reasoning[53] (“Hohfeld”) the jural co-relative of a duty is a right. Therefore, the parties and the public have a right to have the hearing of a proceeding in public subject only to the qualifications to which I have referred.
[52] e.g. Re Kanina Banner Pty Ltd and Minister for Health and Ageing at 672; 46 and compare John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 per Kirby P at 143
[53] Yale University Press, 1919, 4th printing, 1966, edited by Walter Wheeler Cook at 36-38

How far does the qualified duty and the corresponding right extend? Assuming that no order has been made under s. 35(2), is it limited to giving access to all evidence given before the Tribunal and to all documents received in evidence by the Tribunal in relation to hearing of a proceeding as well as those that have been lodged in relation to the proceeding and are actually relied on by one or other of the parties? Does it extend to documents lodged with the Tribunal in relation to that proceeding whether or not they are relied on by the parties at the hearing?

It seems to me that, when read in the context of s. 35 of the AAT Act and once the hearing of the proceeding has been held, the requirement in s. 35(1) that the hearing be held in public carries with it the implication that, unless an order has been made under s. 35(2), the public has the right to have access to all of the documents that have been lodged before the hearing of the proceeding as well as the evidence that was given at that hearing and any documents that were received in evidence at that hearing. They are the documents and the evidence to which the Tribunal may have regard in hearing the proceeding to review a decision. Some may have been lodged prior to the hearing and some given at the hearing. That is the reason for the distinguishing between documents lodged, on the one hand, and evidence given and documents received in evidence, on the other. It may be that, when they get to the hearing of a proceeding, neither party wants to rely on some of the material lodged in the Tribunal before the hearing. In view of the power given to the Tribunal under s. 35(2) to prohibit or restrict disclosure of both the documents lodged and the evidence given and documents received in evidence, it seems to me that it makes no difference whether the parties wish to rely on it at the hearing or not. All is available provided no order has been made under s.35(2).

When the proceeding is for review of the application and so is the substantive proceeding resolving the application, the conclusion I have reached accords with the general principle that the hearing of a proceeding be in public and the function of the Tribunal to reach the correct or preferable decision on the material available to it and not simply on the basis of the material relied upon by the parties. It also accords with the matters that the Tribunal is directed by s. 35(3) to take as the basis of its consideration. That is, it accords with 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” (emphasis added).

The word “proceeding” encompasses not only the substantive proceeding resolving the application for review but also an incidental application made in the course of, or in connection with, the application for review. It seems to me that the same result is reached where an incidental application has been heard. An incidental application would include an application such as an application to extend the time within which to lodge an application to review a decision[54] or an application to stay of the operation or implementation of the decision under review[55]. It does not extend to a directions hearing for that is not an application. Section 35, when read as a whole and provided no order has been made under s. 35(2), would permit access to evidence given before the Tribunal or to documents lodged with the Tribunal or received in evidence by it in relation to that application.
[54] AAT Act, ss. 29(6) and (7)
[55] s. 41

Does this accord with the views taken in the courts where there has been a hearing?

The view that I have reached does not entirely accord with that applicable in the courts but any variations follow from the differences between s. 35 to which the Tribunal is subject and the common law and Rules of Court to which different courts may be subject. In Australian Competition & Consumer Commission v ABB Transmission and Distribution Limited (No 3)[56], for example, Finkelstein J referred to the common law’s not permitting access to written material on which a judge has relied to decide a case. That was appropriate when reference was made in open court to the nature of the claim and the evidence was summarised and detailed reference made to documents before oral evidence was heard. It is no longer appropriate when much of the material is lodged in written form before a hearing and detailed reference is no longer made. In the Federal Court, rules have been made to permit a person to inspect material, sometimes as of right and sometimes by leave. Finkelstein J summarised them:
“… O 46 r 6 of the Federal Court Rules sets out those documents which any person may inspect as of right (O46 r 6(2)) and those documents which a person may inspect provided leave is first obtained (O46 r 6(3)). Documents which may be inspected as of right include originating processes, pleadings, applications, judgments, orders and reasons for judgments. Documents which may be inspected with leave include affidavits, admissions, written submissions, interrogatories, evidence taken on deposition, subpoenas and documents lodged in answer to subpoenas. It should be noted that O 46 r 6(3) does not draw a distinction between documents which have been filed in the registry of the court and documents which have found their way into evidence during the course of a trial.”[57]
[56] (2002) ATPR [¶41-873] 44,953
[57] at 44,956

His Honour went on to consider the principles he should apply in deciding whether to permit inspection of documents for which leave was required. I note that the parties had provided statements of agreed facts regarding the nature and extent of the respondent’s contraventions of ss. 45 and 45A of the Trade Practices Act 1974. Only penalty was in issue. Energex sought access to the statements of agreed facts and the submissions made by the parties jointly in order to determine whether it had been adversely affected by the respondent’s contraventions. Except for penalty, the issues, other than penalty, in dispute in Australian Competition & Consumer Commission v ABB Transmission and Distribution Limited (No 3) had been resolved, albeit by agreement.

Practice Note 97 issued by the Chief Justice of the Supreme Court of New South Wales distinguishes between access by parties and non-parties. Access is normally granted to pleadings and judgments in proceedings that have been concluded except in so far as there is no confidentiality order, transcripts and records of proceedings, material that was admitted in evidence and information that would have been heard or seen by any person present in open court. Even if material falls within this category, it may not be released to a non-party and paragraphs 3-6 of Practice Note 97 deal quite extensively with circumstances in which it may be withheld. Paragraph 4 states that “… access will not normally be allowed prior to the conclusion of the proceedings.” In Australian Securities & Investments Commission v Rich[58], Austin J considered Practice Note 97 in the context of an application made by journalists for access to affidavits relied upon in a successful and completed application in open court for ex parte orders relating to the abridgement of service. His Honour considered a number of contentions in considering whether access should be granted. Underlying his decision to grant access to most of the material was the fact that he had determined an ex parte application on the basis of the material sought. It should be available unless there were specific and compelling reasons for suppressing it[59].
[58] (2001) 51 NSWLR 643
[59] at 652

The principles underpinning Austin J’s judgment are consistent with those relied on by Hamilton J in Hammond v Scheinberg[60] even though Austin J was concerned with a completed, and interlocutory, application and Hamilton J with an ongoing trial. On the first day of a trial that had proceeded for a further three days and was still unfinished, Hamilton J granted access to affidavits “read” in open court to a journalist. It had been “read” in the sense of counsel announcing that he did so and any objections being made to it and decided upon. In that way, those in court at the time could not know its contents. Hamilton J decided that the journalist should be granted access bearing in mind the principles of open justice. Those principles should not be diminished by practices designed to save the time of the court and the purses of litigants[61].

The limits of IPP 11 as applicable to the Tribunal where there has not been the hearing of a proceeding

[60] (2001) 52 NSWLR 49

[61] at 54

On behalf of HWT, Mr Houghton submitted that s. 35 gives a person a right to have access to documents apart from the context of the public hearing of a proceeding. I do not consider that s. 35 gives such a right. Equally, it does not impose any jural co-relative duty on the Tribunal or any other person to disclose information. Rather than authorising or requiring the disclosure of information, s. 35(2) gives the Tribunal the power to restrict its disclosure. It gives it the power to restrict its disclosure regardless of whether it was in the form of documents lodged in the Tribunal or given or received in evidence at a hearing of a proceeding. The Tribunal may exercise that power in relation to the hearing of an application for review of a decision but may exercise it earlier in the proceeding in relation to material that is lodged prior to any hearing. A law giving the power to restrict disclosure of information does not equate with a law requiring or authorising disclosure. It is a power that may be exercised and, if exercised, it may impose its jural co-relative, a liability[62]. In this case, the “liability” is that information may not be disclosed. Section 35(2) is not a provision that meets the description of a law requiring or authorising disclosure within the meaning of cl. 1(d) of IPP 11.
[62] Hohfeld at 50-60

Does any other provision of the AAT Act authorise or require disclosure of information? The only provision that comes to mind is s. 33. In general terms, it gives the Tribunal the power to determine its own procedure and to give directions accordingly. It may be wide enough to direct one party to disclose information to another party. I will assume for the moment that it is wide enough to permit the Tribunal to direct that information lodged with it may be given to a person other than a party. If such a direction were made, I do not consider that it could be said that “the disclosure is required … by or under law” (i.e. s. 33) as required by cl. 1(d) to IPP 11. It was certainly not required for the order was made in the exercise of the Tribunal’s discretion to manage its own procedures. It could, though, be said to be authorised in the sense that the direction gives someone the right or permission to have access to the information.

The exercise of the power under s. 33 would be discretionary but it would not be unfettered. It would need to take account of its duty to review decisions so that it reaches the correct or preferable decision, that it is bound to observe procedural fairness and so give the parties a reasonable opportunity to present their cases and that it is established on the judicial model. At the same time, it would need to take account of the principles of open justice. Each case will need to be decided on its merits.

Does this accord with the views taken in the courts where there has not been a hearing?

It seems to me that this is consistent with the approach taken in the courts. I was referred to the judgment of Barrett J in ASIC v Rich[63], which concerned a later segment of the general line of proceedings between the parties to that which had earlier been considered by Austin J. Journalists had sought access to an amended Statement of Claim. At that stage, that document and purely formal documents such as notices of appearance, were the only documents on the file. None of the documents had been used or relied on in a court hearing that had either been completed or was currently in progress. Barrett J distinguished between access in those situations from that with which he was concerned:
“9 The clear message from these cases is that decisions about access to documents in court files are to be determined first and foremost by reference to principles of open justice and the due administration of justice that require an appropriate measure of cooperation by the court with those sections of the media which seek to report proceedings before the court. Those principles focus most sharply on the situation where a trial has taken place or is at least in progress. The proceedings which must be open and to which access in the public interest must be guaranteed are proceedings that actually take place in court. It is in that context that the court has an undoubted and clear role to play in assisting the media to obtain a full and fair understanding of what has transpired so that informed reporting can occur without incomplete appreciation of source materials and in a way which enables the various matters which have come out in court, whether or not actually spoken aloud, to be understood in the full context of the case. The judgment of Hamilton J in Hammond v Scheinberg explains that role in a particularly useful way.
10 When it comes to the content of court files as they exist and develop through the succession of filings in the pre-trial phase, it is much more difficult to point to these undoubted principles of open justice as a basis for warranting access to documents. Pleadings can be and often are amended. The statement of claim in this case has already been amended once. A statement of claim or defence may be the subject of a strike out application. Affidavits may be filed but not ultimately read or relied upon. Parts of affidavits may be objected to as inadmissible and rejected. The court file, as it exists in a developing state after the initiating process is filed and before a hearing has begun, cannot be regarded as the equivalent of what will be presented in open court if and when the proceedings come to trial.”
[63] [2002] NSWC 198

Referring to Santow J’s judgment in eisa Limited v Brady[64], Barrett J noted that a document filed in court proceedings attracts a common law privilege and so its author is immune from a defamation action taken in respect of statements made in the document. That privilege does not attach to a person given access to the document and using it. Relying on Home Office v Harman[65], Santow J had also noted that a party to proceedings is under an implied undertaking not to use for a collateral purpose documents received in the course of those proceedings. That this is so, Barrett J continued, has been taken as an indication that a person who is not a party to the proceedings should not be allowed access so that they might use the documents for a collateral purpose[66]. In the case before him, Barrett J concluded:
“… I do not see how the fundamental principles of open justice and access by the public to proceedings in this court will be enhanced or promoted by facilitation of media coverage of as yet untested allegations which have not been aired in court and may never be, at least in the form in which they now exist. On the other side of the coin, access by the media to those untested allegations at this point has a clear potential to cause serious prejudice to defendants who intend to put their countervailing contentions on to the record in due course.
19 The principle of prematurity referred to in the cases seems to me to apply here. It is too early for the requested access to be given. A time will no doubt come when it will be appropriate for the court to afford appropriate assistance through the grant of such access to pleadings as the media may reasonably seek. But that time has not yet arrived.”
[64] [2000] NSWC 929
[65] [1983] AC 280
[66] see Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) IR 325

Barrett J was anxious to emphasise that there was no hard and fast rule ruling the disclosure of documents prior to a hearing of any sort. He relied on a further passage from the judgment of Santow J in eisa Limited v Brady[67]:
“Thus adopting a simple bright-line rule that access should always be allowed - or indeed never - in either case ignores that there are genuinely competing principles to be weighed. There is open justice, its processes made as accessible as possible through a properly informed Press reporting to the wider community and which seek to be contemporaneous. There is the need to avoid injustice and unfair prejudice in the trial from disclosure of serious and as yet untested or incompletely tested allegations, where prematurity of disclosure is at issue and where there is likely to be no redress in defamation, no matter how malicious the pleaded allegation. Neither principle has a priori ascendancy. Both are subordinated to the interests of justice in which the community is vitally concerned as well as the parties. These questions must therefore be tested, case by case, against that overriding purpose of the interests of justice.”[68]
[67] [2000] NSWC 929 at [36]
[68] [2002] NSWC 198 at [20]

Documents produced under summons

I have been considering documents lodged with the Tribunal or received in evidence as well as evidence given in the Tribunal. In my view, the principles I have been considering do not extend to material that is produced to the Tribunal in accordance with a summons.

Material that comes to the Tribunal in compliance with a summons is produced but not lodged. The AAT Act uses the two terms quite separately. The word “produce” is used in s. 40 and in ss. 61 and 62 relating to failure to comply with a summons. It is also used in relation to documents in provisions relating to the Security Appeals Division of the Tribunal[69] or in cases in which an Attorney-General’s public interest certificate has been issued[70]. The word “lodge” is used in a variety of provisions. It is used in 35AA, 36, 36B, 38, 38A and 39B relating to the Security Appeals Division as well as in a number of sections of more general application[71]. Sections 36 and 36B include references to both words.
[69] AAT Act, s. 39B
[70] ss. 36, 36B and 66
[71] ss. 21, 28, 29, 29A, 35, 37 and 68

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. Neither 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[72] 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 when it has come into the possession of the court or tribunal or by some other means such as post or facsimile transmission.”[73]
[72] (1998) 82 FCR 468
[73] at 473

On the face of it, this would seem to equate with production to the Tribunal but it does not for two reasons. The first is that a party may not inspect material summonsed as of right. Section 40(1D) requires leave to be given. The
[74] e.g. Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 (FC) per Owen J at 245
second is that the evidential value, even if only for the purposes of cross-examination, of summonsed material is yet to be assessed when it is lodged. Certainly, material may not be summonsed for the purpose of a “fishing expedition”[74] but there are occasions when the fish that were reasonably thought to be present prove elusive or undersize.

Should I make an order authorising HWT to have access to documents lodged in the Tribunal?

I have considered whether I should make an order authorising disclosure under s. 33 of the AAT Act on the basis that there has not yet been the hearing of a proceeding. I have decided that I should not make such an order. Should I be incorrect in my limiting the operation of s. 35 to circumstances in which there has been the hearing of a proceeding, I note that I would have adopted the same reasons to decide that an order should be made under s. 35(2) to prohibit disclosure of the material already lodged in the application to a person other than a party to the proceedings.

In reaching my decision, I have taken into account the importance of public scrutiny of proceedings before the Tribunal. I have also taken into account the requirement that parties be given a reasonable opportunity to present their cases. If they are to have that opportunity in a case such as this, they should be permitted to develop them and to comply with the Tribunal’s directions to lodge material and to do so without public exposure. They should be permitted to consider each other’s material and to reply to it before the hearing. Disclosure to the public prior to the hearing of an application runs the risk of permitting untested and perhaps incomplete material to be publicly aired and discussed.

Certainly, there has been a great deal of media and public interest in the affairs of Mr and Mrs Skase in the past. Unlike the circumstances in Australian Competition & Consumer Commission v ABB Transmission and Distribution Limited (No 3), I am not satisfied that individual members of the public have any particular interests that they could possibly protect were they to be informed of information on the file at this stage. The public has an interest in the Minister’s decision being properly reviewed both procedurally and substantively but that interest is not advanced by giving access to the material before the hearing. I am not satisfied on the material that I have that the public has any interest in the matter apart from, for some, a general interest in the affairs of Mrs Skase as a result of past events. Past interest by the public and even continuing media interest in her activities does not, in the circumstances of Mrs Skase’s application to the Tribunal, warrant the material and evidence being aired at this stage. It is outweighed by the considerations that require the parties to have a reasonable opportunity to prepare and present their cases without premature public analysis.

Public exposure will generally come soon enough. Subject to any order under s. 35(2) of the AAT Act, it will come at the hearing of the application when all of the material and all of the oral evidence presented by both parties can be heard and weighed and weighed in light of the submissions made by those representing them. It is premature to do so before then and not in the public interest to permit access before the hearing.

Is Mrs Skase “reasonably likely to have been aware that information of that kind is usually passed to that person, body or agency?

Finally, I have considered whether Mrs Skase was reasonably likely to have been aware that information such as that on her application is usually passed to a person or body such as HWT. If she were, the information on the file would be subject to the exception in cl. 1(a) to IPP 11 and its disclosure would not be prevented by the IPPs. When used as an adverb, the ordinary meaning of “likely” is “probably”[75]. When used in conjunction with the word “reasonably”, a judgment is required as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that Mrs Skase would probably have been aware that the information on her file would be passed to HWT[76]. I say “to HWT” because cl. 1(a) refers to “that person, body or agency” (emphasis added). It is not a reference to any person, body or agency.
[75] Chambers
[76] This is consistent with the interpretation adopted by the Full Court of the Federal Court in Attorney-General’s Department v Cockcroft (1986) 64 ALR 97 at 106 when considering s. 43(1)(c)(ii) of the FOI Act. It exempts from disclosure information concerning certain business or professional matters which “could reasonably be expected to” prejudice the future supply of information to the Commonwealth or an agency for the administration of a law or the administration of matters administered by an agency.

In view of the conclusions that I have reached regarding access to the file prior to a hearing, I do not consider that it is reasonably likely that Mrs Skase would have been aware that information on the file is usually passed to HWT. It is clear that it is not “usually” passed to anyone other than another party to the application. If she had turned her mind to the matter at all, it is more likely that she would have assumed that the information would be confidential until the hearing of the application for review. It follows that the exclusion in cl. 1(a) of IPP 11 does not apply and the Tribunal’s duty to maintain the confidentiality of the documents remains.

Conclusion

For the reasons that I have given, I have decided that the Herald & Weekly Times Pty Ltd is not permitted to have access to the Tribunal’s file in these proceedings.

I certify that the sixty six preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,

Signed: ...............................................................

Nathaniel Wills Associate

Date of Hearing  17 February 2005
Date of Decision  10 March 2005
Counsel for the Applicant             Mr J Burnside QC with Mr P Over
Solicitor for the Applicant            Ms S Mitchell
Fetter Gdanski

Counsel for Herald & Weekly      Mr W Houghton QC with Ms G Schoff
Times Pty Ltd
Solicitor for Herald & Weekly     Mr R Leder
Times Pty Ltd  Corrs Chambers Westgarth

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Citations

Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 200

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