[Redacted Version] Minister for Immigration and Citizenship v Kumar
[2009] HCATrans 13
[2009] HCATrans 013
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S473 of 2008
B e t w e e n -
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant
and
AMIT KUMAR
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
FRENCH CJ
GUMMOW J
HAYNE J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 12 FEBRUARY 2009, AT 10.05 AM
Copyright in the High Court of Australia
MR S.J. GAGELER, SC (Solicitor‑General of the Commonwealth of Australia): If the Court pleases, I appear with MS L.A. CLEGG for the appellant. (instructed by Australian Government Solicitor)
MR M.L. BRABAZON, SC: May it please the Court, I appear with my learned friend, MR J.G. AZZI, for the first respondent. (instructed by Rasan T. Selliah & Associates)
FRENCH CJ: Could I ask whether counsel are confident that they will be able to address us in open court without having to go to the relevant content of the confidential information?
MR GAGELER: Speaking for myself, yes.
MR BRABAZON: Yes, your Honour, I anticipate that.
FRENCH CJ: All right. Thank you.
MR GAGELER: Your Honours, can I start with the legislation and then go in reverse order to the two grounds of appeal. The legislation your Honours ought have is the Migration Act, Reprint No 10 and the Migration Regulations in the relevant form, which we have given your Honours in an extracted form. Within the Migration Act it is relevant to look at two sets of provisions, those contained in Part 2 Division 3 commencing at page 36 and those contained in Part 5 commencing at page 440.
Within Part 2 Division 3 the basic structural provisions include section 31 which provides in subsection (1) for there “to be prescribed classes of visas” and in subsection (3) for the regulations to “prescribe criteria for a visa or visas of a specified class”. Read with section 33(3A) of the Acts Interpretation Act that includes a power to make regulations prescribing criteria for a visa or visas of a specified subclass.
One then goes to section 45 which provides for a non‑citizen who wants a visa to apply for a visa of a specified class, and then to section 65 which allows for the Minister either to grant a visa if satisfied relevantly that the prescribed criteria have been satisfied, that is section 65(1)(a)(ii); or to refuse a visa if not so satisfied, section 65(1)(b).
Now, the particular classes of visa for which Mr Kumar applied, as identified in the application at page 8 of the appeal book, were a Class UK (Partner‑Temporary) visa and a Class BS (Partner‑Residence) visa. If one looks to the regulations using the handwritten numbering in the bottom corner of the pages, at page 61 one sees in regulation 2.01 that the prescribed classes of visa are those set out in Schedule 1. One sees a reference to subclasses in regulation 2.02 and then in regulation 2.03 it is provided that the criteria applicable for visas of various classes are as set out in Schedule 2.
The two particular visas for which application was made in this case were prescribed in Schedule 1 in the case of the Partner (Temporary) (Class UK) visa by a clause that appears at page 109. That is clause 1214C that provides for that class of visa. If your Honours look within that clause to subclause (4) one of the subclasses is designated “820 (Spouse)”. In the case of the Partner (Residence) (Class BS) visa the relevant clause is at page 104 prescribing that class of visa by clause 1124B and one of the subclasses, as designated in subclause (4) is a subclass “801 (Spouse)”.
Within Schedule 2, then the prescribed criteria for a subclass 801 spouse visa include at page 117 that prescribed by clause 801.221, relevantly 801.221(2A), that the applicant is the holder of a subclass 820 visa. Your Honours might also note paragraph (d) of that same subclause that “at least 2 years have passed since the application was made”. The scheme of the regulations is that the application is made both for the temporary visa and the permanent visa at the same time. The permanent visa can only be given once two years have passed from the time of application.
In the case of the temporary visa, the subclass 820 spouse visa, the relevant criteria appear at page 127 in clause 820.21 and particularly 820.211(2), to which I will return. They are criteria to be satisfied at the time of application. Your Honours might also note at page 133, within clause 820.221(1)(a) requires those same criteria – that is, those set out relevantly in clause 820.211(2), “to be satisfied at time” of decision.
So going back to page 127 and the criteria set out in subclause 820.211(2) relevantly, the applicant needs to be the spouse of a person who is an Australian citizen – that is (2)(a)(i) – and by (2)(c) the applicant needs to be “sponsored” by the spouse; that is (2)(c)(i) relevantly.
The term “sponsor” is defined at page 50 in regulation 1.20 in terms that I do not need to take your Honours to. More significantly, the term “spouse” is defined at page 43 in regulation 1.15A and the relevant parts of that regulation, subregulation (1)(a) referring to a married relationship and subregulation (1A)(a) and (b). So (a) the people need to be married to each other, and (b), additionally and relevantly for present purposes, the Minister needs to be satisfied:
(i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)the relationship between them is genuine and continuing ‑ ‑ ‑
FRENCH CJ: So tracking that back through a winding path to section 31, one of the criteria of which the Minister has to be satisfied is that one is the spouse of another and thereby they are in a married relationship as defined.
MR GAGELER: Yes, certainly critically for present purposes, the Minister has to be satisfied of paragraphs (b)(i) and (ii) of subregulation (1A) of the definition.
FRENCH CJ: That really is the focus.
MR GAGELER: That is the focus for the present case. Going back to the Act and the position of the Tribunal on review, that is dealt with in Part 5 of the Act beginning at page 440. One starts with section 338 which, relevantly, in subsection (2) makes a decision to refuse to grant a visa an MRT reviewable decision in specified circumstances, it being common ground that those circumstances existed in the present case. So the relevant part of the definition is section 338(2), refusal to grant a non‑citizen a visa. In the case of such an MRT reviewable decision, it is section 347(2)(a) which allows an application for review to be made. Section 348(1) then provides that:
if an application is properly made under section 347 . . . the Tribunal must review the decision.
Under section 349 “The Tribunal may, for the purposes” of carrying out that review:
exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
Then under subsection (2)(a), one of the things the Tribunal may do is “affirm the decision”. One then goes to Division 5, which is at page 453. Section 357A(1) says that:
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
What we get from that, relevantly for present purposes, is insofar as the division deals with something, it is to be read as a statement of the natural justice hearing rule in relation to that matter. It affects the construction and it affects the operation. One then goes, critically for present purposes, to section 355A which mirrors section 424A that some of your Honours have dealt with.
GUMMOW J: There is an unresolved question that we do not have to get into, I suppose, as to the validity of 357A, is there not, when it says “exhaustive statement”?
MR GAGELER: Not one I think I would necessarily acknowledge, your Honour, but I do not need to deal with it.
GUMMOW J: All right, I just do not want silence to be taken to be assent on my part, Mr Gageler.
MR GAGELER: Nor on my part, your Honours. Then 359A, as I was saying, mirrors 424A that your Honours considered in SAAP and also in SZBYR. We are critically concerned here with subsection (1)(a) and I will come back to that in I hope not too tedious detail in a moment. Your Honours will also note subsection (2) which provides for the way in which the information – when it says information it must be referring to the particulars of the information, which is what is referred to in subsection (1)(a) - and the invitation must be given to the applicant, the relevant methods being set out in section 379A and one of those methods - if your Honours flick over to page 474 – one of those methods is the method provided in subsection 2 which is the Tribunal member handing a document to the person and that is exactly what happened in the present case.
Subsection (4) provides that the section “does not apply to information”, relevantly paragraph (c), that is “non‑disclosable information”. “Non‑disclosable information” is defined within section (5) at page 13 to mean “information or matter” – the relevant paragraph is paragraph (c):
whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
Your Honours, can I deal immediately with the second ground of the appeal, which concerns the content of the obligation imposed by section 359A(1)(a), assuming that obligation to be applicable, that is assuming that the Full Court was correct in saying that the information was not non‑disclosable information.
The totality of the reasoning of the Full Court on this point appears at page 213 of the appeal book at line 10. Having concluded that:
the information, including the identity of the informant, was not non‑disclosable information –
this is all that was said:
The Tribunal failed to comply with s 359A in that it did not disclose to the appellant the identity of the informant and the full nature of the information.
Our learned friends, attempting to support that statement, say the identity of the informant was itself information that answered the description in section 359A(1)(a) and it was, they say, therefore information that was required to be disclosed by the Tribunal.
Now, in our respectful submission, that attempted justification for the Full Court’s conclusion is wrong at two levels. If you look at section 359A(1)(a), what it does is posit a jurisdictional fact and then it imposes an obligation where that jurisdictional fact exists. The jurisdictional fact that the paragraph posits is that there is information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review and then the obligation that is imposed, if that jurisdictional fact exists, is for the Tribunal to give, not the information, but particulars of the information in the way the Tribunal considers appropriate.
There is no doubt in the present case that information contained within the confidential exhibit that your Honours will have seen at pages 165 to 189 of the appeal book was information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. But there is a question as to the level of abstraction at which, for relevant statutory purposes, one identifies that information.
The word “information” in our submission means nothing more than what it is said to mean in the Macquarie Dictionary, that is, “knowledge communicated or received concerning some fact or circumstance”. But importantly, information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review needs to be information that is communicated to, or received by, the Tribunal about the non‑fulfilment of a statutory criterion. It is at the level of the statutory criterion that the information should be identified. That is as we see the Court in SZBYR applying the provision. What I just said is, we think, entirely supported by what is said in SZBYR 235 ALR 609, particularly at paragraph [17].
What was there said, dealing with the equivalent provision in section 424A(1)(a) in respect of information possibly touching on refugee status – I will not read the entirety of the paragraph – but in the third sentence it is said:
The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place . . . Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention.
In our respectful submission, the information for the purposes of section 359A(1)(a) should be identified with no greater specificity at the level of identification than simply information, if you like, contained within the confidential exhibit. [Transcript redacted]
That is the way in which the information is to be identified and the rest is simply a matter of particularisation. How much more specificity is to be applied comes in, not at the level of identifying the information, but at the level of performing the obligation, in our respectful submission. So the obligation of the Tribunal was then to give not the information, but particulars of the information and the obligation was to do so in the way that the Tribunal considered appropriate. That obligation and the content of the obligation is, in our submission, to be read purposefully and particularly in the light of section 357A(1) which says in terms that it is to be read as an exhaustive statement of the natural justice hearing rule.
KIEFEL J: The purpose of 359A is to permit the applicant to comment upon what could be a reason for refusal.
MR GAGELER: Exactly.
KIEFEL J: You would say that, accordingly, the particulars of the information provided have to be sufficient for that purpose.
MR GAGELER: Yes. I should put it this way. There is an obligation imposed on the Tribunal to act fairly and reasonably to provide particulars of that nature, yes.
GUMMOW J: Are you developing your written submissions at paragraph 29 and following?
MR GAGELER: Yes, your Honour.
GUMMOW J: Are you departing from them?
MR GAGELER: I hope not. I am not intending to. Absolutely not. No, I think I have said in slightly different language exactly what is there.
GUMMOW J: That is what I am worrying about.
MR GAGELER: No, the content of the obligation, in our submission, and to answer your Honour Justice Kiefel perhaps more directly, if your Honours are looking at those written submissions now, the content of the obligation is pretty much the content of the obligation that would otherwise be implied, as explained by Justice Brennan in Kioa v West, in our submission.
KIEFEL J: There are some cases in the Federal Court which talk about providing the gist of the information rather than ‑ ‑ ‑
MR GAGELER: Yes.
KIEFEL J: Is that NAVK at your footnote 27?
MR GAGELER: The best case from our point of view is VEAL 225 CLR 88 in this Court, your Honour, where I am not sure that the language of the gist of information is used, but it is the same concept and what we say is, if your Honours look at VEAL, and it may be an appropriate time to go to it ‑ ‑ ‑
GUMMOW J: Where do we see VEAL in your written submissions?
MR GAGELER: Paragraph 32.
GUMMOW J: Yes, thank you.
MR GAGELER: I think I used the word “gist”, your Honour.
FRENCH CJ: You use that to say that you have got “wiggle room” in the way that you discharge the obligation in 359A(1)(a).
MR GAGELER: Yes, you can appreciate, your Honour, I would not use quite that terminology.
FRENCH CJ: No. But “flexibility” is the word you are using.
MR GAGELER: One has flexibility to produce a form of particularisation that is fair and reasonable but takes account of what was described in VEAL as the problem of confidentiality. If your Honours have VEAL 225 CLR 88, and just going to pick the eyes out of the judgment in paragraph 24 – this is a case concerning the implied duty of procedural fairness – the last sentence your Honours may take note of. Then in paragraph 25, again the last sentence. Then in paragraph 29, it is really the entirety of the paragraph, but really about the middle of the paragraph the central point is made that procedural fairness can be and ought in an appropriate case be accommodated with, or moulded to take account of the public interest in the protection of confidential communications. That can be done, it could be done in that case:
by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations.
That is without revealing the identity of the informant. In our submission, read purposively, indeed, simply read literally, there is no reason why the express obligation to afford natural justice in section 359A(1)(a) ought not be read with the similar ability to accommodate in an appropriate case the problem of confidentiality. The Tribunal needs to act fairly, reasonably, but it can act practically in the circumstances of the case.
KIEFEL J: Is there a discrete question arising under 359A(1)(a) which requires consideration as to whether the identity of the informant is part of the reason, potentially, for affirming the decision?
MR GAGELER: Yes.
KIEFEL J: That is to say, if the identity of the informant gives weight to the reasoning, whether that is part of the reason or stands apart from the reason.
MR GAGELER: That is really the way in which our learned friends wish to put the case. They want to start at the level of the identification of the information with some specification as to what is important, and what is not. In our submission, that is really the wrong way to start. One starts broadly with information about the criterion and the information should not be dissected any further at the level of its identification than simply being information which, if accepted in its totality, might lead to the Tribunal ‑ ‑ ‑
KIEFEL J: On one view, though, a consideration of whether identity is part of the reason might favour your case. On one view it is not part of the reason. It is a factor which goes towards the process of reasoning by application of weight to the information provided, but is not itself the information and may be perhaps tested by saying is it necessary, as was, I think, discussed in VEAL, for the identity of the informant.
MR GAGELER: Yes. Your Honour, I would, I think, accept that although I would not wish to pin the case on that because that would cover this case but it may not necessarily cover other communications ‑ ‑ ‑
KIEFEL J: I see.
MR GAGELER: ‑ ‑ ‑ and there is a point of more general principle in the present case.
FRENCH CJ: The more general point might be whether any element of whether it is necessary to include within the general disclosure obligation, assuming it is applicable, any element of the information which has evidentiary significance beyond the bland conclusionary statement. In a sense, what was disclosed here was almost a conclusionary statement, the bottom line, as it were, of everything else – that they were not in a genuine spousal relationship.
MR GAGELER: I am not sure which disclosure your Honour is talking about – the disclosure by the informant, or the disclosure by the Tribunal.
FRENCH CJ: By the Tribunal.
MR GAGELER: The disclosure by the Tribunal – perhaps we should go to that. That is at page 115 of the appeal book. This was the letter handed over during the Tribunal hearing, and it says on about line 35:
You are invited to comment on the following information.
·The Tribunal has received information, in confidence, stating that your marriage to your nominator is contrived for the sole purpose of migrating to Australia.
Then it goes on in the next sentence to say ‑ ‑ ‑
FRENCH CJ: The conclusionary statement is the next one, I see.
MR GAGELER: Yes – why the information is relevant. The magistrate did form an opinion as to the nature of the disclosure that was there made, page 153, about line 49, having said just before that what was not disclosed was how and from whom the Tribunal obtained that information. The magistrate went on to say:
Importantly, the issue of the applicant’s motivations for entering into the spousal relationship was provided, with the essential particulars, so that he could meet the case.
Then he went on to say that he agreed with the submission that the applicant’s election not to respond was not through a lack of being put on notice that this was a critical issue for the Tribunal to consider.
Now, your Honours, in our submission, what was there found was a correct finding of fact. That is what was provided in the letter were essential particulars so that Mr Kumar could meet the case and that is something that was simply overlooked, unfortunately, in the Federal Court in that one sentence that I have taken your Honours to.
FRENCH CJ: Could I ask whether it is possible to detach this aspect of the Tribunal’s reasoning or separate it out from the finding at paragraph 29 of its decision at page 129 of the appeal book, that it was:
not satisfied that there is sufficient evidence before it of the financial aspects of the relationship –
That it was:
not satisfied as to the nature of the household . . . and that the applicant has not been able to satisfactorily explain to the Tribunal why he is not residing –
that then leading to the proposition:
There is insufficient evidence before the Tribunal to satisfy it that at the time of decision the visa applicant and the nominator hold themselves out to the world as being in a genuine spousal relationship.
Now, if you stop there, the criterion effectively imported through regulation 1.15A is not satisfied, is it?
MR GAGELER: No, that is exactly right. Putting it another way, your Honour, there was other information to the effect that the criterion was not satisfied.
FRENCH CJ: It was a positive case against, but I mean the Full Court dealt fairly briefly, I thought, with the question of futility, but ‑ ‑ ‑
MR GAGELER: Yes, I am not renewing any futility argument before this Court. I am dealing with it at the level of principle. So, your Honours, that really deals with the second ground of appeal.
GUMMOW J: If you are right on the second ground of appeal, does the first ground fall away?
MR GAGELER: Logically not, your Honour, the first ground I think logically comes first. I have been assuming that the obligation in section 359A(1)(a) applied. But if I am right on the first ground then the obligation was not engaged at all. Subsection (4)(c) would simply make the section inapplicable. So, your Honours, turning to that first ground of appeal the question is within the meaning of ‑ ‑ ‑
GUMMOW J: The difficulty is the opening words in subsection (4) “does not apply to”. What does that mean? At what stage do you observe the disapplication?
MR GAGELER: The structure of the provision, your Honour, is that when you read subsection (4)(c) with the definition in section (5) - paragraph (c) of that definition being cast in objective terms – the way it really has to work is that if you have information that answers that description of information whose disclosure would found an action by a person for breach of confidence, then the obligation of the Tribunal under subsection (1)(a) just cannot be engaged at all.
Now, if your Honour is asking practically how does a tribunal deal with that, obviously it has to form a judgment at the time of exercising its review function, but it is obliged to exercise ‑ ‑ ‑
GUMMOW J: What I am putting to you is that the obligation is to provide clear particulars and what you have just been addressing to us is what is sufficient to amount to “clear particulars”, have you not? You can do that without getting involved in any non‑disclosable information.
MR GAGELER: I can see where your Honour is going with that. Can I deal with that in two parts? Your Honour is looking at the wrong version of the Act. Your Honour should be looking at Reprint No 10.
GUMMOW J: We have not been given Reprint No 10. We just have a couple of pages.
MR GAGELER: Your Honour said “clear particulars”. The language in Reprint No 10, which is the relevant language, is just “particulars”. That does not answer your Honour’s question ‑ ‑ ‑
GUMMOW J: Yes, I see.
MR GAGELER: But, your Honour, the structure of the provision is to have information of a particular character and then an obligation flowing from information of a particular character. Subsection (4)(c) prevents information having that character in the first place so you do not get to the obligation.
HAYNE J: Subsection (4) works as an abstraction from the generality of the term “information” where it appears in 359A(1), does it not?
MR GAGELER: Exactly. Therefore it works as an abstraction from the circumstances in which the obligation imposed by section 359A(1)(a) will operate. It does not qualify that obligation where it otherwise operates.
HAYNE J: No, because the obligation in A(1), though expressed generally as information, must be understood, having abstracted from that generality the classes or kinds referred to in (4).
MR GAGELER: That is the way in which we say it should be read, your Honour. I think that is the answer to your Honour Justice Gummow’s question. Your Honours, the question then becomes whether within the meaning of paragraph (c) of the definition of “non‑disclosable information” in section (5) of the Act, the relevant information as contained in the confidential exhibit at pages 165 to 189 of the appeal book was information whose disclosure would found an action by a person – relevantly, the informant – for breach of confidence. That is the question and our complaint here is about ‑ ‑ ‑
GUMMOW J: The distinction between the reprint I have been looking at is simply the word “clear”, is it not? It now says “clear particulars”. The relevant version we have just says “particulars”.
MR GAGELER: There is that difference. Does your Honour have section 357A, in the new version?
GUMMOW J: Yes.
MR GAGELER: There may be a subsection (3) in there as well that is not in Reprint No 10.
GUMMOW J: Yes, being “fair and just”?
MR GAGELER: Yes. They are the two relevant differences, your Honour. Our complaint on the first ground of the appeal is with the reasoning of ‑ ‑ ‑
GUMMOW J: I still do not understand, I am afraid. In that letter that you took us to at page 115, was that an example of the operation of 359A(1)(a), or was it the Tribunal giving particulars ‑ ‑ ‑
MR GAGELER: Yes.
GUMMOW J: ‑ ‑ ‑ of information, the disclosure of which would found an action in breach of confidence?
MR GAGELER: The submissions I just put to your Honour ‑ ‑ ‑
GUMMOW J: Namely, the contrivance of the marriage?
MR GAGELER: The submissions I was just putting to your Honour were made on the assumption that the information was not non‑disclosable information, that is, that I had assumed ‑ ‑ ‑
FRENCH CJ: That the whole of the information was not non‑disclosable; this was enough to comply with the provision of particulars?
MR GAGELER: No, I am sorry. If all of the information was ‑ ‑ ‑
GUMMOW J: But the information does not exist - it does not have any separate existence other than the operation of these sections.
MR GAGELER: I am not sure I understand the question, I am sorry.
GUMMOW J: One reads 359A(1)(a) – “particulars of any information”. One looks at page 115: What on earth has it to do with a breach of confidence case? That is all I am asking you. If that is right, why do we get agitated about non‑disclosable information? It seems to be the tail wagging the dog, that is all I am putting to you.
MR GAGELER: I understand what your Honour is putting, but my answer is really the answer that I gave to your Honour earlier. You do not get to the performance of the obligation unless you have the existence of information that engages the obligation. If you have information, the disclosure of which would found an action for breach of confidence, then you do not have information that engages the obligation in the first place. So you do not forgive any particulars. If I am right about the first ground of the appeal, this letter was unnecessary.
GUMMOW J: The letter was unnecessary?
MR GAGELER: Yes.
GUMMOW J: Even at that level of generality on page 115?
MR GAGELER: Yes, yes that is the consequence of the ‑ ‑ ‑
GUMMOW J: Your stratagem is becoming clear.
MR GAGELER: Your Honour, there is no glint in my eye.
HAYNE J: It depends where you are sitting, Mr Solicitor.
MR GAGELER: That may be so, your Honour, that may be so. So, I will come then to the reasoning of the Full Court at page 212. So here I am dealing with the first ground of the appeal, the question whether the obligation was engaged in the first place and the entirety of what appears in paragraphs 59 and 60 is the subject of a confidentiality order. But the gist of it I can summarise sufficiently for present purposes.
What is said in the Full Court judgment in those paragraphs is that the information here was deprived of the necessary quality of confidence because it is said the information discloses on its face that the informant had committed a crime and because it is said Mr Kumar had a real and direct interest, not in redressing the crime, but in having the information disclosed to him. That is, in essence, what the judgment is saying at that point.
Your Honours, in our submission that reasoning - and really the entirety of the reasoning here appears just at page 212 - was wrong as a matter of fact insofar as it concluded that the information disclosed on its face that the informant had committed a crime. It was wrong in law to treat the interests of Mr Kumar in the disclosure of the information as sufficient to deprive the information of the necessary quality of confidence, even if the information disclosed on its face that the informant had committed a crime and it was wrong in law, in our submission, to enter into the inquiry about the existence of a crime in the first place.
I need to deal with those three points. I could deal with them in any order, but I am going to deal with them in the order that I think is their ascending order of importance.
We say that the Full Court was wrong to enter into the inquiry about the existence of the crime in the first place given that it was correct, at page 210, line 18 in holding that within the meaning of paragraph (c) of the definition of “non‑disclosable information”, to found an action means to form the basis of an action and simply involves the essential elements of an action for breach of confidence existing. That, in our submission, is a correct construction. It is certainly what the Full Court of the Supreme Court of South Australia said in relation to identical language in the case of Bray, to which reference is made at line 30.
So that, spelling it out, to conclude that disclosure of information would found – that is the statutory language, “would found” – an action for breach of confidence requires no more than a finding that an action could be brought or, in other words, that the essential elements of a cause of action could be pleaded. What is not necessary is a finding that there was an absence of a defence or a finding that relief would necessarily be granted. So it flows from that, in our respectful submission, that the so‑called iniquity defence is not relevant to determining whether there is information the disclosure of which would found an action.
FRENCH CJ: I suppose the question would be whether you could plead your cause of action for breach of confidence without pleadings facts that disclosed the existence of iniquity.
MR GAGELER: Exactly.
FRENCH CJ: That may depend upon the facts of the situation, might it not?
MR GAGELER: It may, but generally it is not for a plaintiff to plead and prove the non‑existence of an iniquity.
FRENCH CJ: Yes. No, I understand that. It is just a question of whether there might be a circumstance in which you could not plead your cause of action without disclosing iniquity.
MR GAGELER: Yes. You would have to be a pretty bad pleader to fall within that circumstance, but it is a bit hard to see how you could not plead it and certainly you could plead this case quite easily. I looked at Gartside v Outram just this morning to see what was involved in that case and there the iniquity ‑ ‑ ‑
FRENCH CJ: Which one of the four different versions? Which one was it?
MR GAGELER: In any event, the so‑called iniquity defence that has been the subject of a lot of consideration since was squarely raised as a defence. It was pleaded in the defence to an action for breach of confidence and the case concerned an application for interrogatories by the defendant in support of the defence. So it is clear enough, and all the cases say that it is not for the plaintiff to plead and prove the non‑existence of the iniquity, but for the defendant to plead and then to prove, of course, at least on the balance of probabilities, the existence of the iniquity and that is then an answer, a true defence.
It really does not matter for that purpose whether you see the iniquity defence as being – as some of the English cases say – a case of just cause or excuse for committing a breach of duty. That is the way in which some of the English cases put it. You can see it that way or you can see the iniquity defence as really being a qualification or exception to the scope of a duty, which is the way your Honour Justice Gummow preferred to see it in Corrs Pavey and certainly the way that it is put in Meagher, Gummow and Lehane as being the preferred Australian version. It does not matter which of those two alternatives you take. Either way what you have with the iniquity defence is a true defence.
GUMMOW J: Gartside v Outram was a contract case anyway. It is a question of implied term.
MR GAGELER: Yes, your Honour. Your Honour explained it that way, yes.
GUMMOW J: I do not want to go through all that again. The words, though, in the statute is the expression “whose disclosure would found”. The question is what does “found an action” mean, is it not?
MR GAGELER: Yes, that is entirely right.
GUMMOW J: That is what you are construing.
MR GAGELER: Yes, what does “found an action” mean and the way I put it, your Honour, is ‑ ‑ ‑
GUMMOW J: I guess it means that probably a pleading that is not likely to be struck out.
MR GAGELER: Exactly, yes.
FRENCH CJ: So if you had a company executive, like a chief executive of a corporation, who knew nothing about the Trade Practices Act and had entered into an agreement with a chief executive of another corporation to which they have an agreed set of prices and this was about to be released by the other party and he pleaded, “We entered into this agreement, confidential agreement to fix prices” and he is about to release it, then one would not have to plead the defence. One would simply strike out the statement of claim, I suppose, because on its face it would disclose the iniquity as a sort of an essential element of the asserted cause of action.
MR GAGELER: Yes, that would be a case of very poor pleading, but it may be difficult ‑ ‑ ‑
FRENCH CJ: It would be hard to see how you would get around it.
GUMMOW J: Or confidential communications in the course of forming a criminal conspiracy.
MR GAGELER: Yes, so I am saying yes to all of your Honours’ questions. That is the way I put it and it is really as simple as that. The inquiry should not have been entered into in the first place. Your Honours, moving to a second point – not necessarily logically the second point – but a second point, the Full Court was, in our submission, wrong to say that the information disclosed on its face that the informant had committed a crime. Here I just need to tread a little carefully. The only crime identified by the Full Court was breach of the Commonwealth criminal prohibition that ‑ ‑ ‑
GUMMOW J: Where do we see the paragraph from the Full Court?
MR GAGELER: At page 212.
GUMMOW J: That might be the easiest way.
FRENCH CJ: You are referring directly, perhaps, Mr Solicitor, by reference to the paragraph?
MR GAGELER: Yes, paragraph 60 at page 212 of the appeal book, about line 38 there is a reference to the relevant criminal prohibition. What we say about that, your Honours, is that the information certainly raises a serious question as to the existence of an offence against that section, but it also, when you look at it, raises a very serious question about the existence of a criminal defence and that is the defence of duress which is provided for in the Criminal Code. We have given your Honours the relevant provision in our written submissions, paragraph 27. It is footnote 20, the Criminal Code Act Schedule 2, section 10.2.
There is something of an analogy in the present case to the circumstances that were considered by Justice Rath in the Emtech decision. Your Honours have that. It is 51 FLR 184. At page 209 it was argued before Justice Rath that the information in question raised a prima facie case of a breach of some provisions of the Trade Practices Act. His Honour said this about the middle of the page:
there is still the possibility of a defence of reasonable mistake, or reasonable reliance on information supplied by another person, under s. 85 (1). Until such a possibility is negatived, or at least shown to be unlikely, I think the court should reject the submission that on the evidence as it now stands there is a prima facie case of an offence -
In our submission – analogously, in the present case – having regard to the seriousness of the finding, having regard to the gravity of the consequences and having regard in particular to the fact that the informant has not been heard, it ought not be concluded at the appropriate level of satisfaction that the informant committed a crime. That is the second point.
The third point which I think is probably the more generally important point is this, your Honours, that the Full Court was in our submission, wrong to say, even if there was prima facie evidence of a crime, that it did not matter that Mr Kumar had no interest in redressing the crime, it was sufficient that he had an interest in the disclosure of information.
That was purportedly an application of what your Honour Justice Gummow had identified as the relevant principle deriving from Gartside v Outram and your Honour identified that in, of course, Pavey in a passage that is quoted in our submissions and also quoted by the Full Court and I do not propose to go to it. But that holding by the Full Court, in our submission, is very much a gloss on what your Honour said in that case and it involves, in our submission, a misunderstanding of the legal policy that underlies the principle as your Honour stated it.
The principle, as your Honour stated it, and indeed, as has been stated in other cases, is, in our submission, one that is concerned with and confined to a case where the public interest prevails over a private duty and the public interest is ‑ ‑ ‑
GUMMOW J: I think referred to A v Hayden.
MR GAGELER: Yes, very much. The public interest, your Honour, is not some generalised public interests to be weighed up in every case, but a very specific and traditionally recognised public interest in the administration of justice and specifically in the administration of criminal justice. That is the underlying policy and that is why it is critical, not simply that this information disclose a crime, but that the disclosure of the information be in circumstances where the public interest in the administration of justice is being furthered.
That was the case in Gartside v Outram. That is at least what the defendant was alleging, that he was disclosing the information for the purpose of assisting defraud creditors to sue his former employer. That was the way in which it was raised in that case.
In the present case the relevant public interest is in redressing a crime – in respect of the offence that was identified by the Full Court in the passage I have already taken your Honours to. In that respect, as your Honour mentioned, what is said in A v Hayden is of, really, some significance. In our submission, it is the same public interest, or the public interest operating the same way, whether the private duty involved is a duty that would otherwise arise in contract or a duty that would arise in equity by virtue of the elements of the action for breach of confidence being otherwise made out.
In A v Hayden a number of members of the Court dealt with the matter entirely in terms of contract, and Chief Justice Gibbs dealt with it in terms of breach of the equitable duty of confidence. If your Honours have that, it is 156 CLR 532. It is the passage that begins on page 546, about the middle of the page, where his Honour begins “It is clear that a person”, and I will not read the entirely of that, but it goes over to the next page, where his Honour says, picking out the most important passage, about six lines down from the top of the page:
Similarly, where an obligation of confidentiality has arisen, whether as a result of express contract or because the relationship between the parties gave rise to a duty of confidence, the party who alleges facts which show that the obligation does not extend to the circumstances of the case must prove his allegations. That means that in the present case the defendant must establish, at least prima facie, that the failure to disclose the information would tend to obstruct the course of justice and would be contrary to the public interest.
That is the ultimate point – that the disclosure would tend to obstruct the course of justice and therefore be contrary to the public interest, the two elements of that being: one, that the information reveals the existence of a crime and two, that the attempt to disclose the information is an attempt to give it to someone who is in the process, or attempting to redress that crime. It is those two elements in combination that get you to the point of non‑disclosure being an obstruction to the…..justice.
Just out of interest, although there are indications in the United Kingdom of a broader approach to a public interest defence being taken, we have given your Honours, I hope, extracts from a text on Confidentiality by Toulson and Phipps which shows, at least as at 1996, the date of this text, that there was a narrower view available in the United Kingdom and it seems to us to accord with the view that is pretty much been taken in Australia. If your Honours have page 80 of that text, it is said, really, just in the opening paragraph of paragraph 6‑11, that:
true principle is not (as dicta in some cases suggest) that the court will permit a breach of confidence whenever it considers that disclosure would serve the public interest more than non‑disclosure, but rather that no obligation of confidence exists in contract or in
equity, in so far as the subject matter concerns a serious risk of public harm (including but not limited to cases of “iniquity”) and the alleged obligation would prevent disclosure appropriate to prevent such harm.
That perhaps puts it slightly wider but it is still expressing the same central point, as we see Justice Gibbs pointing out in A v Hayden. So, your Honours, I think that completes what I wish to say on the appeal.
FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Brabazon.
MR BRABAZON: Thank you, your Honour. Your Honours, the appellant’s case presents four arguments. The first three of them seek to attack the Full Court’s conclusion that the subject information was not non‑disclosable information for the purposes of the exception in section 359A. The fourth argument attacks the Full Court’s conclusion that the Tribunal failed to comply with the disclosure obligations in that section assuming that the material was not non‑disclosable information. We submit that each of the appellant’s arguments should be rejected and that the judgment appealed from was correct in substance for the reasons which their Honours gave in the Full Court below.
I propose to address the appellant’s arguments in a different order from my learned friend and to follow the order that they take in the written submissions. The first issue, the first question, is the one that our friend has dealt with third last and that is whether the iniquity rule in Gartside v Outram must be, in effect, disregarded in determining whether the disclosure of information would found an action for breach of confidence in terms of the definition of “non‑disclosable information”.
The essence of the appellant’s argument is that it must be a true defence. Our response to that is, whether it is a true defence or not to be pleaded and proven by a defendant – and we note the point that your Honour the Chief Justice raised that this is a question where, if the matter were pleaded or necessarily pleaded in the statement of claim, it would be bad as a matter of forensic procedure – whether that is so or not, is not the point. The point is that it goes to the foundation of the action by negating an essential element of it, and that is to say the quality of confidentiality.
That character of the iniquity rule as going to a fundamental element of the duty is recognised by what your Honour Justice Gummow said in Corrs Pavey at page 453. That is a passage which is quoted in the written submissions. Your Honour identified that by reference to what Vice‑Chancellor Wood said in Gartside v Outram and, indeed, your Honour went to the various different series in which that was reported. The essence of what the Vice‑Chancellor said is consistent across them.
FRENCH CJ: We are in the territory of the statutory language of the word “found” and what that requires in the context, as I think has been pointed out, of administrative decision‑making without detailed exploration of defences and criteria of liability and so forth.
MR BRABAZON: It is our submission, your Honour, that the statute is not addressing the rules of forensic procedure but, in essence, the substance of the legal right, including the iniquity rule.
GUMMOW J: The devil is in the word “substance”, I suppose.
MR BRABAZON: Yes, your Honour. We have dealt with this in our written submissions, pages 5 and following, paragraphs 14 and following. We refer to the quotation from your Honour in Corrs Pavey. A similar point is made, perhaps more explicitly, also in a judgment of your Honour’s, in Smith Kline v French Laboratories (1990) 22 FCR 73 at page 111. Towards the bottom of the page under the heading “The ‘Public Interest’ defence”, which was the way the case was run by the parties in that instance, your Honour says:
Thus it is not a question of whether there is some “public interest” defence to the alleged breach . . . but rather one of the content of any such obligation in its inception.
Your Honour refers to what Justice Scott said in a case which is referred to as Attorney‑General v Guardian Newspapers (No 2), at pages 159 to 160. That was the Spycatcher litigation. It is also referred to as being a case against The Observer Ltd. A similar point is made in the current edition of Meagher, Gummow and Lehane’s Equity Doctrines &Remedies, an extract from which our learned friends have provided at paragraph [41‑115] on page 1134 where the learned authors observed that:
there is some English authority that matters sometimes considered as part of the “public interest defence” are to be considered at the outset when the content of any obligation is formulated.
The authors refer to Attorney-General v The Observer Ltd and another English case. They say:
That is the position preferred on the Australian authorities –
They cite a number of authorities, including those which I have mentioned. The proposition that I have outlined, your Honours, is also supported, in our submission, by the legislative history and extrinsic materials. This is dealt with in paragraph 18 of our written submissions and this more or less confirms what one would think from reading the section. In effect, the legislative history appears to be common ground. The material that appears at paragraph 18 by way of history accords with what is in a footnote to our friend’s submissions in‑chief, however, what we seek to draw from it differs.
Our friends have characterised the material as equivocal. In essence, the original definition in paragraph (c) of the definition of “non‑disclosable information” originally referred to information given to the Minister or an officer in confidence. That was amended in 1994 because, as was recorded in the relevant explanatory memorandum, of which your Honours have a copy – this is the explanatory memorandum of the Migration Legislation Amendment Bill 1994 in the House of Representatives – at page 5, the very top item on that page your Honours will see that the definition as it stood at the time is given and it is said that, “A literal interpretation” would catch “information which was not inherently confidential” and there one observes the similarity of language with what is seen in the authorities and also information provided by other Commonwealth departments:
To avoid this outcome the definition has been amended to refer to information or matter ‘whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence’. This approach is the same as that taken in the Freedom of Information Act 1982 ‑ ‑ ‑
FRENCH CJ: That made everything clear.
MR BRABAZON: Yes, your Honour. The history of that is tracked back again – in essence, what the legislation concerning section 45 of the Freedom of Information Act did was to adopt the interpretation of the confidentiality provision that your Honour Justice Gummow had taken in Corrs Pavey in dissent as referring to the general law concept of the action for breach of confidence, but the majority had been against your Honour on that interpretation and to enact a rule which said that – to amend section 45 so that it said clearly “an action for breach of confidence” and picked up the general law concept.
One gets a little more detail from the explanatory memoranda that affect the freedom of information legislation and unfortunately one must delve back again to the 1991 amendment to the Freedom of Information Act, which is in extract form provided to your Honours by our learned friends at the time that they lodged their submissions. The reference is to the explanatory memorandum of the Freedom of Information Amendment Bill 1991. The extract includes a copy of page 14 relating to clause 32, paragraph 61 of the memorandum. It says that the relevant amendment:
implements a Senate Committee recommendation that the breach of confidence exemption in the Act be amended to make clear that it provides exemption where, and only where, the person who provided the confidential information would be able to prevent disclosure under the general law relating to breach of confidence.
Now, one must always be careful reading explanatory memoranda, but the memorandum of course does not say where a person could plead the essential elements of a statement of claim that would not be struck out. It refers rather to the outcome.
Unfortunately, it requires – yes, it requires reference to an hypothetical action that has not actually been undertaken and the result of it. But that is what the legislation has given us and that is the rule that is prescribed. In our submission, your Honours, it is clear that the question is, is this a confidence that the general law would protect rather than is this a confidence that would support an unobjectionable statement of claim. Reference has been made to Bray’s Case, your Honour. I should say something about that briefly.
HAYNE J: Just before you come to that, Mr Brabazon, does this branch of your argument involve an elision of two elements that must be kept separate? Can I illustrate or identify the point I seek to make by reference to page 115, which is the letter that was sent by the Tribunal to the applicant. The letter says that the information was “that the marriage was contrived”. I can understand the proposition that that information at least relates to a matter of possible breach of law. You say more needed to be given to the applicant than appeared in this letter. Is that right?
MR BRABAZON: Yes, your Honour.
HAYNE J: Does the extra element – if I can simply refer to it in that anonymous and bland fashion – does that extra element as distinct from what is already in the letter say anything about iniquity, breach of law or anything of that kind?
MR BRABAZON: It would necessarily disclose it, your Honour. Once again, at this point I must tread carefully. My learned friend referred to this particular point in his submissions. The actual nature of the information is not well summarised at all in that passage and in those words. I refer to the appeal book at page 170 at about lines 42 to 49. My learned friend emphasised the implication that it was the first respondent who had been engaged in the contrivance that is suggested, and that is perhaps a natural reading to apply to the words of the letter.
I refer also to a further extract, your Honours. Pages 173 and following are a document, the character of which appears in the first instance from what is written on page 173. Then pages 174 through to 179 are one part of that. Then at the top of page 180, the first line, your Honours will see a description of the character of what then appears in pages 180 to 187 and your Honours will see the source of that information. Having taken that slightly longwinded approach to identifying what it is, could I take the Court to page 182, the first two lines, and also to page 184 at about what would be line 18. I refer also to page 188, the paragraph just either side of line 20, in particular, the second‑last line of that paragraph.
That material, we submit, discloses an important aspect of the information. Your Honour Justice Hayne raised the question whether the iniquity is necessarily disclosed in the context, particularly in the context of the evidence that was before the Tribunal from the various persons who had presented it. In our submission, the matter would appear.
HAYNE J: Thank you.
MR BRABAZON: Could I take your Honours briefly to Bray v Workers Rehabilitation & Compensation Corporation (1994) 62 SASR 218. That was a case where the second respondent “S” claimed compensation and under freedom of information legislation which referred to an action for breach of confidence in the way that the Commonwealth Act now does, the claimant worker, in effect, sought access to records of an interview or information given by a fellow worker to an employee of a loss adjuster for the corporation.
The fellow worker had supplied the information voluntarily, but on a confidential basis. The corporation at first refused the request for the document. The Ombudsman intervened and made a direction to the corporation to change its ruling, which it did. The claimant worker pursued the matter ultimately to the Full Court, and in the Full Court an unusual situation ensued where the injured worker who was actually the second respondent – having succeeded at first instance – was self‑represented. The appellants were the fellow workers who gave the information and the other party was the first respondent, the corporation. The appellants and the corporation took the same view and the worker was on his own, so to speak. That perhaps, is by the way.
The point I come to is this, that the point at which the decision effectively says we do not need to consider defences is not in relation to any question of iniquity – there was none in that case – but, rather, in relation to the question whether the order that had been made, or the direction that had been made by the Ombudsman to the Commission would have provided any sort of defence. At the bottom of page 225 and over to the top of page 226 that is briefly alluded to and Justice Bollen says:
Whether the intervention of the Ombudsman would found any defence to any available action at the instance of the appellants need not concern us here. We do not yet get to that stage.
GUMMOW J: Mr Brabazon, there is a problem that the legislature has thrown up, I think, by this definition that now appears of “non‑disclosable information”. On the facts of this case, what passes between an informant and the Commonwealth may be a confidential relationship between the informant and the Commonwealth, but that is not what is being postulated. What is being postulated is some hypothetical equity suit by someone against someone else. I do not quite see how that would fit the material you have been taking us to at those pages. I know you have to be careful in getting into the detail, but I think in a way one cannot avoid getting into the detail because one needs to know what this hypothetical suit to restrain breach of confidence would be, who the actors would be in that case, and as between them what would be the confidence.
MR BRABAZON: Your Honour is right that it is difficult to work through and the plaintiff, the notional plaintiff, would be the informant. The notional defendant would be the Tribunal or possibly the ‑ ‑ ‑
FRENCH CJ: Or the Minister, I suppose.
MR BRABAZON: Yes, if the Minister has received the information. There is, of course, an exception there inherent in the definition in paragraph (c):
would found an action by a person, other than the Commonwealth, for breach of confidence.
GUMMOW J: Yes, but the Commonwealth can be the defendant in this notional action.
MR BRABAZON: Yes, or a Minister of the Crown.
GUMMOW J: Yes.
MR BRABAZON: That would be so. It may be that the reference to the Commonwealth ‑ ‑ ‑
GUMMOW J: As plaintiff.
MR BRABAZON: The reference taking out the Commonwealth as plaintiff may have been intended to deal with the case where information is communicated confidentially by one department to another. That was referred to in the explanatory memorandum. That is probably what lies behind those particular words.
HAYNE J: Disclosure of almost anything on a Commonwealth Executive file would presumably be subject to action by the Commonwealth against the disclosing officer on some basis, whether for breach of confidence, I am not sure, or whether under the Public Service Act, but presumably that which is on the file is to be kept confidential to the officers having the management of the file. They cannot disclose it to the newspapers.
MR BRABAZON: Yes, at least if it is not in the public domain. Your Honours, that brings me to the end of what I want to say about the first argument, the first issue in the appeal.
GUMMOW J: So we are considering a notional injunction application, I suppose, under 75(v) of the Constitution against some Commonwealth officers or body they constitute for publishing to third parties what was disclosed to them by the informant.
MR BRABAZON: Yes, your Honour.
GUMMOW J: Then there is a problem at the level at which the statute speaks as to extraction of Bray’s information. It is easy when it is a formula as to how to make a product.
MR BRABAZON: Yes, your Honour, and that was, in effect ‑ ‑ ‑
GUMMOW J: It gets very slippery outside those trade secrets area.
MR BRABAZON: That was the issue with which my learned friend opened and to anticipate what ‑ ‑ ‑
GUMMOW J: You are coming to that, I guess?
MR BRABAZON: Yes. To anticipate what I am going to say, in our submission, that level of abstraction is simply too high and when the Act speaks of information, it refers to information about facts at the level of abstraction that it is provided. When it speaks about the obligation to give particulars of information, the level of particularity is that which has effectively been determined in the Full Court of the Federal Court in the decisions VAF and Paul.
GUMMOW J: What is the citation of that, Mr Brabazon?
MR BRABAZON: Yes, your Honour. The two decisions are VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 in particular at page 478, and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, in particular at pages 428 to 432. The relevant paragraphs are 96 through to 116.
GUMMOW J: This is Justice Allsop at first sitting by himself?
MR BRABAZON: Yes. In our written submissions I have made a mistake in two places and given him Justice Finn’s name, but I will come to that.
GUMMOW J: I am sure neither would be offended really.
MR BRABAZON: The appellant’s second argument in the order that they appear in the written submissions is that only a person with a real interest in redressing the relevant crime, wrong or misdeed is entitled to particulars under section 359A and that the first respondent is not such a person. The Full Court held that a real and direct interest in disclosure was sufficient. The written submissions that addressed this issue are in the appellant’s submissions, paragraphs 25 and 26; in our submissions, paragraphs 21 to 26; and in the submissions in reply, paragraphs 1 through to 3.
The Full Court resolved this issue in paragraph 60 of the judgment at page 212 of the appeal book, to which your Honours have already been taken. In effect, this paragraph is one of the confidential ones. I refer to the matter appearing from about line 42 down toward the bottom of the page. That part is probably not offensive to be read out in itself. The approach that their Honours took there was in modification of what your Honour Justice Gummow had said in Corrs Pavey. They had, indeed, cited your Honour’s words at the bottom of paragraph 57 on the preceding page of the appeal book and obviously had them in mind.
This is an issue upon which there has been academic and judicial disagreement. Could I take your Honours to the much cited decision of the English Court of Appeal in Initial Services Ltd v Putterill [1968] 1 QB 396. That was the case of the former sales manager of a laundry company who had taken documents of his former employer to the newspapers saying that, in effect, they disclosed a price‑fixing ring. The iniquity defence was dealt with by the Master of the Rolls, Lord Denning, at pages 405 and 406. One could pick that up at about letter D of page 405.
GUMMOW J: It was a strikeout application, was it not?
MR BRABAZON: It was a strikeout application and that certainly affects the use that one can make of ‑ ‑ ‑
GUMMOW J: There had already been an injunction, had there? Looking at page 398, letter E. What is that talking about, do you know? Anyhow, what we have to focus on, perhaps, is the paragraphs that were being struck out.
MR BRABAZON: Yes, your Honour.
The plaintiffs claimed against the defendant: (1) damages; (2) a permanent injunction -
and an account of profits.
By his amended defence, the first defendant ‑
I am reading page 398, your Honours. Letter F refers to the defence and paragraph 3 of the amended defence is printed at the bottom of the page, and then further paragraphs are set out. At the very end of the extract:
in the premises –
the first defendant –
denies that the said information was confidential ‑ ‑ ‑
GUMMOW J: The first thing we have to understand is looking at page 398 letter B it was a contract case “implied term of the defendant’s contract of service” – see that?
MR BRABAZON: Yes, your Honour.
GUMMOW J:
that during his employment and after its termination –
certain things. On page 399, about point 8, paragraph 7 was an admission by the defendants, but then an avoidance by saying that the information was not confidential and therefore could not be in breach of the implied term.
MR BRABAZON: Yes, your Honour.
GUMMOW J: So in a way, it is Gartside v Outram all over again, which also is an “implied term” case.
MR BRABAZON: A distinction was sought to be drawn, which did not succeed, on the basis that this was only a breach of trade practices legislation and not criminal fraud, but that did not get very far, certainly not at the interlocutory level. Lord Denning expresses the view that the iniquity rule – I am reading from page 405 between letters D and E –
It extends to any misconduct of such a nature that it ought in the public interest to be disclosed to others.
His Lordship quotes Vice‑Chancellor Wood –
“There is no confidence as to the disclosure of iniquity.”
Then he goes on at letter G and then over the page:
The disclosure must, I should think, be to one who has a proper interest to receive the information.
That, your Honours, is consonant with what the Full Court did in this case:
Thus it would be proper to disclose a crime to the police; or a breach of the Restrictive Trade Practices Act to the registrar. There may be cases where the misdeed is of such a character that the public interest may demand, or at least excuse, publication on a broader field, even to the press.
In this case the disclosure had been to the press. The second Judge of Appeal was Lord Justice Salmon and his Lordship dealt with the matter at page 409. To get the sense of it perhaps one should start just at the bottom of 408.
GUMMOW J: These are oral judgments, I think – ex tempore judgments.
HAYNE J: It is extemporised on day two of a pleading summons, interlocutory appeal about striking out a defence as unarguable. What are we going to get out of it, Mr Brabazon, other than admiration for the ability to deliver and ex tempore judgment?
MR BRABAZON: Your Honours, the decision, although extemporaneous, is one that is widely cited and it reveals in this case, which was of disclosure to the press, a willingness to recognise a broad scope of distribution that was not limited to somebody who had a personal or direct interest in the redressing of the wrong or the prosecution of a crime.
GUMMOW J: Lord Justice Winn at the bottom of page 411, six lines from the bottom of the page, gives a very sound response to all this.
It would be perhaps harsh to regard this case as in any degree analogous to that of a gang leader making a contract with his minions, his “tools,” that they will not “grass” . . . Not only is such a hypothetical term absurd –
et cetera. They are really saying there is no such implied term, I think.
MR BRABAZON: But an implied term should not be read that widely, but if it were an express term, it would be offensive and that, in a sense, is why one would not imply the term. Could I take your Honours to another English decision, a copy of which has been handed up, which is Howard v Odhams Press, Limited [1937] 1 KB 1. The plaintiff in that case was an unemployed sorter in the printing trade and he disclosed to a former employer, a publisher, the operation of schemes for cheating at competitions of the kind which were run by the defendants and by other mass media businesses, including his own involvement in such schemes both against the defendants and against another former employer of his.
He did so on terms of confidentiality, having expressed particular concern that his statements should not come to the attention of his trade union. The defendants later became dissatisfied with him, for reasons which do not matter, and they disclosed his statements to the union, which subsequently expelled him. He sued the defendants for damages.
FRENCH CJ: For breach of contract?
MR BRABAZON: Yes.
GUMMOW J: This is A v Hayden, really. Is it referred to in A v Hayden?
MR BRABAZON: It is indeed referred to in A v Hayden with approval – the judgment of Lord Justice Slesser at pages 30 to 31 is cited with approval by Justices Wilson and Dawson in Hayden at page 572, your Honours. It might be cited by other members of the Court, but ‑ ‑ ‑
GUMMOW J: By Justice Gibbs, I think.
MR BRABAZON: I think Sir Harry Gibbs also referred to it.
GUMMOW J: Page 544?
MR BRABAZON: Yes.
FRENCH CJ: How is this assisting us in relation to determining whether disclosure of the information in this case would found an action for breach of confidence?
MR BRABAZON: It is argued against us that the recipient of the disclosure must be a person with an interest in redressing the wrong. The union in this case was not a person with an interest in redressing the wrong – certainly not a direct interest. It was an entity with an interest in receiving the information, and a proper interest in doing so. In that respect the approach that was taken there was consonant with the approach taken in the Full Court below. That, in essence, is what we seek to extract from Howard’s Case, your Honour.
What emerges, we submit, is this, that the person who discloses iniquity in the sense of the rule to another on terms of confidentiality has no recourse, if the confidante discloses that information to another, at least if that further recipient has a proper interest in receiving the information.
It is necessary for me also to say something briefly about paragraph 26 of the appellant’s written submissions in-chief. In doing so it is necessary for me to take some care. That paragraph is worded hypothetically, and not with reference directly to the dramatis personae of this case.
The matters that are postulated of the hypothetical applicant in the last five words of line 3 and the first seven words of line 4 are not demonstrated in respect of the corresponding persons here. I have previously taken your Honours to the appeal book at page 170, lines 42 to 49, at 182, lines 1 and 2 and to page 188, line 22.
GUMMOW J: What worries me about this action, if I can just tell you what is on my mind, is that this case is an illustration of what happens when private and public law overlap. There are two actors we have before us – your client and the Solicitor‑General’s client. There is a third set of interests out there, and that is the interests of the informant. In some of the constructions put to us the result would be that the informant can be left out to dry by some disclosure by government. It does not seem a very attractive possibility.
MR BRABAZON: The point that your Honour makes is that the informant is not involved in the process and does not get a say.
GUMMOW J: But is liable to be prejudiced by it. In some cases it could be quite drastic. I am not saying it is this case, but one can think of cases in the migration area.
MR BRABAZON: There is nothing to prevent the department or the Tribunal from making inquiries of an informant or taking further steps itself to ascertain whether the informant’s interests would be prejudiced. There is nothing to prevent either of those entities, if they are concerned about the matter, from giving an informant an opportunity to take proceedings or to furnish further information. Beyond that, your Honour – I do not mean to diminish the reality of what your Honour raises, because it is a real point – the legislation has, however, established criteria by reference to a private law cause of action and quite evidently on the theory that the Minister or the Tribunal could be a proper defendant to such an action and that the informant could be a proper plaintiff against the defendant.
GUMMOW J: The reason why I raise it is that those considerations may play a part in the level at which one abstracts the word “information” when construing the statutory provisions and lead one to the conclusion that it is enough for the Tribunal to do what was done at 115.
MR BRABAZON: We, with respect, would resist that conclusion in this case and I would say more generally also, your Honour ‑ ‑ ‑
GUMMOW J: After all, at 115 your client is put in the position and alerted and can lead such information as he wishes to substantiate from other parties, or himself or documentary material, that there was no contrivance.
MR BRABAZON: The problem with the disclosure that is made is that it does not focus on the aspect of the matter that is critical. Perhaps I should deal with this by going to the regulatory criteria in the definition of “spouse”, your Honour.
HAYNE J: Just before you come to that – and I understand the importance of doing it - the argument against you was that information is to be understood in 359A(1) by reference to those statutory criteria. You identify the information in terms of those statutory criteria is perhaps an unduly abbreviated summary of an aspect of the argument against you. In a case in which an informant has provided information, identification of the information that would be the reason for affirming the decision by reference to statutory criteria focuses attention upon what it is that the informant conveys, not who the informant is. That is an aspect of the argument that you must address.
MR BRABAZON: Yes.
HAYNE J: It is to that issue that I suggested that there was some confusion apparent in the reasoning below, or at least a lack of distinction between what the informant said and who the informant is.
MR BRABAZON: The information that the informant provided included the informant’s identity. The informant said, “I am who I am”. Could I go to regulation 1.15A in the Migration Regulations. The focus is on subclause (1A)(b) and, within that subparagraph (i) focuses on the “mutual commitment” of the parties to the marriage to “a shared life as husband and wife to the exclusion of all others” and that focuses on their attitude to each other. Subparagraph (ii) focuses on “the relationship between them is genuine and continuing”, which would presumably include objective and personal or subjective elements; (iii) that they “live together” or “do not live separately and apart on a permanent basis”, which focuses on objective matters. So that the concept is a composite one.
Focusing on the level of generality at which information is to be construed, perhaps it is best to get away from the facts of this case altogether and to consider, let us say, a case of an applicant for refugee protection who must prove, from recollection, a reasonable and well‑founded fear of persecution in order to qualify as a person who is entitled to convention protection by Australia. Suppose that the information is that the person has been seen laughing and drinking with a member of the organisation or the government that is alleged to be persecuting him. It is then difficult in any useful and meaningful way to particularise that information simply by reference to the statutory criteria. The reason for that is that it fails to focus the attention of the visa application on what is really being said against him in a way that he can deal with it.
There is a distinction between what one might call “primary” facts and “secondary” facts in a fact finding situation, where the primary facts are the events that happened and the secondary facts are the factual characterisation or the factual conclusions that one draws from them. When a statute gives us factual criteria it usually gives us factual criteria of the second sort. Well, frequently, I should say, and that is what happens here in the regulation where it defines a spouse. But when the Tribunal gets information, the information may very well be or include information at that primary level.
[Transcript redacted]. They are gone into in the written submissions and, indeed, in the judgment of Justice Besanko. It is, with respect, unreal to think that in the process of reasoning only the second level conclusion stated in the information is what is regarded. What is really persuasive, what makes it persuasive are those first level facts, those primary facts. With respect, if section 359A is to do its job, then it is those facts, that information, of which a visa applicant must get particulars so that he can deal with them if he can, if it is possible.
Your Honours, as the matter has been raised, perhaps I should deal with it now. I gave your Honours citations to VAF and Paul earlier. The matter of how to approach the three steps mandated by section 359A has been developed in some detail by judgments of the Full Federal Court and these appear to be the leading authorities. There are, in effect, three steps that are required by section 359A. The first question is, what is the information that the Tribunal has? A distinction is drawn between things which are information and things which are not information.
GUMMOW J: Informational matter, is it not?
MR BRABAZON: Information is defined as “informational matter”, yes.
GUMMOW J: What would be matter that was not information? Object, I suppose.
KIEFEL J: Perhaps a photograph of the applicant which discloses that it does not accord with their passport or something like that.
MR BRABAZON: Yes, your Honour.
GUMMOW J: A false document.
MR BRABAZON: I admit that I had not turned mind to it for the purpose of this case. The second question is, is the information such that it would be the reason or part of the reason for affirming the decision under review? The third step is the giving of particulars of that information. To deal with the three steps in order, the concept of information is conveniently distilled in the judgment in VAF 206 ALR 471 at 476 in paragraph [24] of the joint judgment of Justices Finn and Stone. Their Honours say:
there is now a considerable body of case law concerned with the compass of the term “information” –
So that information is information, knowledge of facts communicated, which can include the identity of a person, the identity of the informant. What it does not include is the thought process, the reasoning of the Tribunal based upon that information and conclusions drawn by the Tribunal. Gaps in the information are not themselves information.
GUMMOW J: Have we been given this article in volume 11 of the Australian Journal of Administrative Law referred to at paragraph [29] on page 478?
MR BRABAZON: The article by Beaton‑Wells, your Honour?
GUMMOW J: Yes.
MR BRABAZON: I do not think your Honours have. I have a copy which can be multiple copied if ‑ ‑ ‑
GUMMOW J: Thank you.
MR BRABAZON: The second issue is the question, what is the reason or part of the reason? In VAF that matter is dealt with on page 478. In substance, it is dealt with in a manner that adopts the reasoning of Justice Allsop in Paul’s Case with whom Justice Heerey concurred, but your Honours will see that it appears at paragraphs [29] through to [33] and this is of course is a section 424A case, but it is common ground that the same principles apply because the concepts are the same. Their Honours say in [29] “though the subsection addresses the matter prospectively”, at least in the Tribunal working out what the Tribunal has to do, but when it comes to a court reviewing obviously the court has to judge it retrospectively and “in light of the Tribunals actual decision”.
FRENCH CJ: The use of the words “credible” and “significant” carry their own implications.
MR BRABAZON: Yes. At paragraph [30] the point is made that “The subsection itself requires identification of the reason” – and typically, one would think that the reason is going to be a factual conclusion that accords with the factual criteria expressed in the statute. That appears to be the level of abstraction or generality that our friends submit should be the abstraction for information. At [31] the point is made that because the statute speaks of the reason or part of the reason it is necessary for there to be “some unbundling” of that reason, which was a term used by Justice Allsop in Paul. There is reference to section 430, which I need not pursue for the purposes of this case. The analysis concludes in paragraph [33] and what is required is to identify what the Tribunal considered to be integral.
Your Honour, before I come to the second point, it is material to go back very briefly to the question “What is information?” Paul’s Case 113 FCR 396 involved a majority decision, but there appears to have been agreement about at least one matter, and that is that the information in question and, indeed, the particularisation that was proper for it included the source of the information. That can be seen in the dissenting judgment of Justice Emmett on page 409 in paragraph 46. Justice Emmett says:
the Tribunal was bound to give the appellant no more than the following particulars:
·the fact that John Knight said that the death of the appellant’s husband had occurred “about 20 years ago”; and
·the fact that the Tribunal regarded John Knight as credible.
KIEFEL J: Do you adopt that as correct, the notion that the Tribunal’s view of credibility is part of the reason? What is information is informed by the reasoning.
MR BRABAZON: I am not relying on what Justice Emmett said for that reason, but rather for the first point – “that John Knight said”. The Tribunal’s view of the credibility of the witness, it is difficult to see that that ‑ ‑ ‑
KIEFEL J: It goes to the weight to which you give information rather than the information itself.
MR BRABAZON: It seems to be a conclusion drawn by the Tribunal, which is why I hesitate, your Honour, the fact that it was known who John Knight was. He was the brother of the applicant. So there was no particular mystery about that. In the circumstances of the case, that would have provided to the applicant a means of saying, “Well, now I know what you’re dealing with. John Knight must have been mistaken because of A, B and C. I can deal with it because I know who he is”.
FRENCH CJ: If a piece of information A enhances the reliability of a piece of information B, it is hard to escape unless you have some rather strange construction of the statute that it forms part of the reason for reaching a conclusion which supports the affirmation of a decision.
MR BRABAZON: The approach that is taken to that matter in VAF and Paul is to look for a distinction between that which is integral and that which is not integral.
KIEFEL J: But it is not an adversarial process. The purpose of it is to allow comment on that which is relevant to the visa application.
MR BRABAZON: Yes. Does it make a big difference? That is a crude way to put it.
KIEFEL J: I suppose we are talking in hypotheticals. In the present case, would you say that it was, in the Tribunal’s reasoning, the content of the information that was relevant to its reasoning, or would you say that the identity was actually a part of the reasoning?
MR BRABAZON: The Tribunal’s reasoning was, in fact, very guarded upon the matter and it simply referred to the information as credible and significant, without saying why it was credible or significant. Indeed, the Tribunal does not address the question whether the information is non‑disclosable information at all and that is a matter which I think your Honour the Chief Justice took up with my learned friend.
As was observed in VAF, at the risk of dashing back to where I was before, your Honours, sometimes the reasoning of a Tribunal is difficult to follow as to what is critical and what is not. At the end of paragraph [33] in VAF:
In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral.
In this case, with respect, your Honour, the source of the information cannot but have been a critical matter in this case. The Tribunal has been parsimonious, without intending criticism by that word, in the reasoning which it expressed for how it got to its conclusion, nut the Tribunal said most significantly there is this information.
GUMMOW J: Now, can you just go to VEAL 225 CLR 88 for a minute? I think it is quite an important authority. At paragraph 24 in the judgment of the court on page 98, the last sentence:
Nonetheless, in identifying what the Tribunal had to do in order to give the appellant procedural fairness, it is necessary to recognise that there is a public interest in ensuring that information that has been or may later be supplied by an informer is not denied –
Now, does one not bear that in mind in construing these provisions we are construing and this notion of iniquity may not be readily translated across because the relevant iniquity is the malfunctioning of the Act. Do you see what I mean? People get these and they should not be getting them and the Executive should know about it. This notion of iniquity, I think, becomes something of a red herring if that is the nature of the iniquity, given the translation of the private considerations of the breach of confidence action into this statutory framework.
HAYNE J: And the accommodation spoken of in VEAL is at paragraph 29 about halfway through that paragraph:
They were to be accommodated, in this case –
et cetera.
GUMMOW J: What was the substance of the allegation? Is that not what is done at page 115?
MR BRABAZON: With respect, no, your Honour. Can I deal with what the first thing your Honour Justice Gummow said first?
FRENCH CJ: We are here focusing upon the way that the Tribunal considers appropriate in the circumstances rather than questions of iniquity and non‑disclosable information, are we not? We are proceeding here on the assumption that we are dealing with information that may not be non‑disclosable.
MR BRABAZON: The question that your Honour Justice Gummow put to me does not arise in relation to the question whether it is non‑disclosable because the statue has deliberately criteria of the general law to define what is ‑ ‑ ‑
GUMMOW J: That is the question.
MR BRABAZON: I see, so your Honour is actually raising the question whether the concept of what would found an action for breach of confidence is in some way affected by the ‑ ‑ ‑
GUMMOW J: Subject, scope and purpose of the Act as a whole, starting with those sections the Solicitor‑General took us to at the beginning.
MR BRABAZON: As a matter of statutory construction one always construes a statute in the light of the meaning and purpose of the statute as a whole and nobody could argue with that. In this context, however, the statute has deliberately adopted a construction by reference to separately existing principles of the general law so that in applying the definition of “non‑disclosable information”, one must take those principles as one finds them and make an analogue by reference to the hypothetical action that the section contemplates and in that the subsequent use that may be made or may not be made of the defined term in other particular sections of the Act is too remote. The only point which, with respect, it might be argued that there is some flexibility is in the giving of particulars.
Our friends have argued that the words “in the way that” give a discretion about the giving of particulars. With respect, we dispute that and we have set out reasons in the written submissions. We say that it refers to the mode. This was a provision that predated the inclusion of information in the limitations of subsection (2). Subsection (2) originally only governed the manner of giving an invitation. That was amended so that it now refers to giving information or an invitation, but the words “in the way that” and so on in section 359(1)(a) were not deleted. However, they did not lose their meaning. What they now mean is in whichever of the manners, the modes, permitted by subsection (2) the Tribunal chooses.
What must be recognised, however, is that an obligation to give particulars carries with it an element of choice about the words that are used, about the means of expression. It is not a substantive choice. It is still necessary to convey those particulars which satisfy the statutory objective. The statutory objective includes that, as Justice Allsop says in Finn’s Case – I paraphrase his words – putting the visa applicant on notice so that he can deal with the adverse material, if he can, in a way that enables him to deal with it. Secondly, one has the presence in section 359A(1)(b), which is an obligation upon the Tribunal to:
ensure, as far as is reasonably practicable, that the applicant understands why it –
that is, the information –
is relevant to the review -
The word “it” in the section necessarily refers back to information rather than particulars, being singular. Therefore, what we come to, in dealing with the obligation to give particulars, it must be correct if the objective of giving particulars in the section can be accommodated in a way that preserves confidentiality there would be no objection to doing so, but if the objective and obligations of the section cannot be complied with in a way that preserves that confidentiality then the statutory process is what governs, and we would say that that is the case here. So central is it that the visa applicant should have had the particulars of the source of the information and of, as the Full Court said, the full nature of it, not merely an allusion to the conclusion drawn from it.
HAYNE J: VEAL holds that principles of procedural fairness that are not statutorily identified did not require that. You have to say, do you not, that although, if you like, the common law of procedural fairness does not require that conclusion, the statute does?
MR BRABAZON: The statute does. Your Honour, VEAL recognises, at the bottom of page 98 over to page 99:
The existence of that public interest is not to be understood as requiring the conclusion that there is an absolute rule against ‑ ‑ ‑
HAYNE J: No absolute rules either way is what paragraph 25 says.
MR BRABAZON: Yes.
HAYNE J: Do you say that the statute in this case does impose an absolute rule?
MR BRABAZON: In a circumstance where the identity would be an integral part of the reasoning so as to support the requirement for particulars, yes. Your Honours, I am not sure if I have dealt with all the questions that were asked of me. I think that I have, but if I have not, I am glad to be reminded. I think I had been dealing with paragraph 26 of our friends’ written submissions. One other matter I would raise in response to that is the material in our submissions at paragraph 34 on page 12.
The appellant’s submissions in reply make what appears to be a further point at paragraph 3. I think this was the point where my learned friend referred to Toulson. Our friends contend that:
in the United Kingdom, where the iniquity defence has transmogrified into a [wider] “public interest” defence –
it is necessary to show that the recipient or proposed recipient must have such an interest in that disclosure to that person “is required” and the word “required” is evidently emphasised, “in the public interest”. If that be the position in the United Kingdom, it would be explicable by a much wider public interest being available to negate the promise of confidentiality. The scope of disclosure of information covered by that wider and less precise scope of public interest would need to be contained in some way.
Such a rule, in our submission, does not apply to the narrower rule that applies in Australia, whether it is called by its original name of the iniquity rule or whether it is called a narrow public interest rule. That is evidenced, we would submit, by Howard and Putterill, both decided before the expansion of the rule to a wide public interest defence in the United Kingdom. It could hardly be suggested, for example, that the disclosure by Mr Putterill to the newspaper was positively required in the public interest, or likewise, the disclosure by Odhams Press to Mr Howard’s trade union. That brings me, your Honours, to the third issue.
FRENCH CJ: How much longer do you think you will be, Mr Brabazon?
MR BRABAZON: The third issue is the issue of duress. I intend to be relatively brief about that issue. I think that most of what I have said on the fourth issue has, in effect, been picked up. I think that I would be another probably 10 or 15 minutes.
FRENCH CJ: Yes, thank you. We will sit through.
MR BRABAZON: Thank you, your Honour. The third issue is whether the possibility of a defence identified in the appellant’s submissions at 27 precludes the application of the iniquity rule. This is addressed in our submissions at 27 to 34. Your Honours, reliance has been placed on the judgment of Justice Rath in Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 51 FLR 184 at page 209. What Justice Rath said there and perhaps it is appropriate to go to it, even if briefly ‑ ‑ ‑
FRENCH CJ: You are emphasising the interlocutory context?
MR BRABAZON: Yes, in essence. His Honour was not considering anything else. It carries no implication for the approach that would be required upon a final hearing and what we say is that the ‑ ‑ ‑
GUMMOW J: It took quite a few days to hear.
MR BRABAZON: That is perhaps not unusual with interlocutory applications that involve trade practices cases, your Honour. It carries no implication for what would be required on a final hearing. What we say is that the prima facie test having been identified it should be carried over to a matter of defence. Your Honour, the objective elements of the identified defence in its present statutory form have been considered on a couple of occasions. One of the decisions is a decision of the New South Wales Court of Criminal Appeal in Oblach v The Queen (2005) 195 FLR 212, a copy of which was handed up. In essence, the court there rejected an argument that in applying the objective part of the defence – that is the words “reasonably believes” – one should have regard to the personal characteristics of the accused, but rather to the person’s objective circumstances.
The three judges expressed themselves in somewhat different terms but that appears to have been the essence of it. Simply for the purpose of identifying the pages and without asking your Honours to look at them now, Chief Justice Spigelman at page 222, Justice Sully at pages 224 and 225, and Justice Hulme at pages 227 and 228.
The second authority that we have handed up is a decision of the Western Australian Court of Appeal, Morris v The Queen (2006) 201 FLR 325 and your Honours I refer to the judgment of Justice McLure at pages 353 to 354 dealing - as your Honours will see at paragraphs 153 to 156 – with the concept of rendering threats ineffective as it relates to the objective criteria. Your Honours will see that his Honour there adopts ‑ ‑ ‑
GUMMOW J: Her Honour. It was Justice McLure, was it not?
FRENCH CJ: You just have the gender wrong, Mr Brabazon.
BELL J: Justice Carmel McLure.
MR BRABAZON: I am sorry, your Honour. I made a sexist assumption which I withdraw, your Honour. One must be ‑ ‑ ‑
FRENCH CJ: It is getting increasingly dangerous here.
MR BRABAZON: It is.
HAYNE J: Do not keep digging.
MR BRABAZON: There will come a time when people make the error in the other direction, your Honour. Her Honour adopts what Chief Justice King said in Brown’s Case which was decided before the Criminal Code and there is a quotation at the top of page 354.
The fourth issue is whether, assuming that the information in question was not non‑disclosable information, the Full Court below is correct in holding that, “The Tribunal failed to comply with s 359A” by not disclosing to the first respondent “the identity of the informant and the full nature of the information”. I follow the wording there in paragraph 61 of the judgment to which I think your Honours have been taken. I make the correction to the written submissions which I referred to earlier in paragraphs 38 and 41. References to “Justice Finn” in connection with Paul’s Case should be references to “Justice Allsop”.
I have previously referred to the three steps that are involved. At one time I thought that my friend contested the proposition that the identity of the informant could itself be information but, at least as I understand it, that point is not contested in itself, although what is said against us is that it is not at the level of generality that is required.
The second step is to identify the information that would be the reason or significantly part of the reason for affirming the decision. Your Honours, I had taken the Court to VAF and briefly to Paul, but I do not think I had actually got to this part of the decision in Paul’s Case. The relevant passage is from pages 428 to 432, paragraphs 96 to 116. This has been followed by full courts and single judges in the Federal Court on a number of occasions. It would be fair to say that it represents, at the level of that court, well‑settled law. The court says:
Thirdly, the Tribunal must consider that the information would be the reason or a part of the reason for affirming the decision.
FRENCH CJ: The key passage is that which you set out at paragraph 41?
MR BRABAZON: The passages that I would emphasise, your Honour – yes, that is a key passage. I would also draw attention to paragraph 99, paragraph 104 in which his Honour identifies the evident purpose of section 424A and therefore 359A and I alluded to this indirectly earlier, but without taking your Honours to it, it:
should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case . . . so that investigation may be made, and steps may be taken, somehow, if possible, to meet it.
To be applied:
in a common sense way . . . and with fairness to the applicant in mind . . . Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review.
Paragraph 109 ‑ ‑ ‑
GUMMOW J: We can read all this you know.
MR BRABAZON: Yes, your Honour, and I think paragraph 114.
GUMMOW J: We do not need talking books, you know.
MR BRABAZON: No, your Honour.
GUMMOW J: Not yet.
MR BRABAZON: Not for many years, your Honour. So we make the submissions in paragraph 42 of the written outline and the balance ‑ ‑ ‑
FRENCH CJ: I think we have covered the modal argument.
I think there is one miscellaneous point from my friend’s submissions that I have not covered and I should mention very briefly. Your Honours were taken to A v Hayden in the judgment of Chief Justice Sir Harry Gibbs at 546 to 547 referring to an obligation. His Honour dissented in the decision of the Court. His Honour would have sent the case back for some further fact finding, whereas the other members of the Court were content that the contract was void on the material that was before them.
GUMMOW J: Sir Anthony Mason said at page 551:
The form of the stated case, which is by no means a model precedent, presents some difficulties ‑ ‑ ‑
MR BRABAZON: Yes, your Honour. May it please the Court, those are our submissions.
FRENCH CJ: Thank you, Mr Brabazon. Mr Solicitor.
MR GAGELER: Your Honours, there are two quite distinct questions that became a little blurred in my learned friend’s written submissions. The first question is whether and, if so, to what extent information contained in the confidential exhibit was information whose disclosure would found an action by a person for breach of confidence? To the extent that that description applied to the information, then it was information which was taken outside the scope of the obligation that was imposed on the Tribunal by section 359A. That is the first distinct question. The second distinct question was then, if and to the extent that the obligation under section 359A applied, what was its content?
In relation to the first question I have two points that are strictly in reply. In relation to the second question I have one point strictly in reply. The first of the points strictly in reply on that first question concerns the words “would found an action”. My learned friend sought to derive some assistance from the legislative history, not so much of the Migration Act but of the 1991 amendments to the FOI Act which introduced the language into Commonwealth legislation for the first time, the suggestion being, as I understood it, that that legislative amendment could be seen as a legislative endorsement of the entirety of your Honour Justice Gummow’s reasoning in the Corrs Pavey Case where your Honour would have accepted under the relevant provision of the FOI Act, as it had previously stood, that it was relevant for a decision‑maker to consider not just the ability of a plaintiff to plead the cause of action, but whether or not a defence would have existed, including the iniquity defence.
Unfortunately, the legislative history is much murkier than that. What one sees from the explanatory memorandum for the 1991 amendment to the FOI Act was that it was consequent upon the Government’s acceptance of a recommendation in a Senate committee report. The Senate committee report was delivered in December 1987. Your Honour’s judgment in Corrs Pavey was in August 1987 and what you see in the Senate committee report – and we will provide your Honours with copies of extracts in due course – is no real consideration of that issue. It just was not focused upon by the Senate.
What was really being considered was a more general view that had been taken, particularly in the AAT at an earlier stage, that the earlier definition did not import notions of private law duty of confidence at all. That was certainly being squashed, but whether it was moving towards, as far as your Honour would have gone, is another matter. One does not get that from the legislative history.
That is the first point. The second point in reply is that there were hints in my learned friend’s submissions that when you look through the confidential exhibit there may be parts of the information there contained that do not have in themselves the necessary quality of confidence, absent the iniquity defence. I am not sure he was exactly saying that, but he went very close to saying that.
In that respect can we draw your Honours’ attention to page 212 of the appeal book and the way in which the Full Court addressed the information between lines 20 and 30. There is no notice of contention and your Honours ought proceed upon the basis upon which the Full Court proceeded, and that is, absent the iniquity defence. The totality of that information was information that had the necessary quality of confidence. One can see arguments, once you start to dissect it, but that is the way in which the matter is being approached below and it is the way in which the matter should continue to be approached now.
Your Honours, in relation to the content of the obligation imposed by section 359A, your Honours were taken to the decision in VAF. Can I say this about VAF. We fully accept what is said in paragraph 24 of VAF. We have some difficulty in accepting what is said in paragraph 31 and some difficulty in unreservedly accepting this notion of unbundling a non‑statutory notion which has the potential to lead to error and that some of your Honours in SZBYR consciously shied away from embracing. I refer particularly in SZBYR to paragraph [22]. Whatever utility there may be in this notion of unbundling, your Honours, what we say is at the level of the identification of the information it could too readily lead to error if one sought to unbundle that ‑ ‑ ‑
GUMMOW J: What was the paragraph in SZBYR, Mr Solicitor?
MR GAGELER: Paragraph [22], your Honour.
GUMMOW J: Thank you. It is 235 ALR 609.
MR GAGELER: It is 235 ALR 609 where your Honours refer to “any extra‑statutory process of unbundling”. But that follows on some reasoning
in the previous couple of paragraphs. I think I will say no more. If the Court pleases.
FRENCH CJ: Thank you, Mr Solicitor. I remind the parties that the confidentiality orders previously made continue. The Court reserves its decision. The Court adjourns to 9.30 am tomorrow and 9.30 am tomorrow in Sydney.
AT 1.09 PM THE MATTER WAS ADJOURNED
6
0