Schapelle Corby v Australian Federal Police

[2011] AATA 861

[2011] AATA  861

Division

GENERAL ADMINISTRATIVE DIVISION

File Numbers

2010/2438

2010/4442

Re

Schapelle Corby

APPLICANT

And

Australian Federal Police

RESPONDENT

DECISION

Tribunal	Justice Downes, President Deputy President R.P. Handley
Date	29 November 2011
Date of Written Reasons	6 December 2011
Place	Sydney

The matter should be set down for hearing.

...................[sgd].....................................................

Garry Downes, President

CATCHWORDS

PRACTICE AND PROCEDURE – inspector-general of intelligence and security – s 60A Freedom of Information Act 1982 – timing of the request to the inspector-general

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 35, 39A

Freedom of Information Act 1982 (Cth) ss 33, 60A

REASONS FOR DECISION

Tribunal	Justice Downes, President Deputy President R.P. Handley
Date	6 December 2011

1. Amendments have recently been made to the Freedom of Information Act 1982 (Cth) covering a number of matters. One of the matters is an amendment to the procedure which applies to review in this Tribunal of decisions that documents are exempt pursuant to s 33 of the Act. Broadly speaking, the amendment provides that the Inspector-General of Intelligence and Security should be given an opportunity to put material before the Tribunal relating to disclosure. A question arises as to what is the procedure which is to apply in the Tribunal relating to this matter.

2. It is appropriate to begin by affirming that the Administrative Appeals Tribunal is bound by the rules of natural justice or procedural fairness and has an obligation under ss 33 and 2A of the Administrative Appeals Tribunal Act 1975 (Cth) to deal with matters before it in a way which is “fair, just, economical, informal and quick”. These are obligations of the Tribunal, of course, which continue when a matter is being dealt with under s 60A of the Freedom of Information Act.

3. The Tribunal has no jurisdiction, of which we are aware, which can require it to conduct what, in effect are two hearings before coming to a final decision.  There certainly are provisions in acts which require or permit other parties, such as the Commonwealth and State Attorneys-General, to be heard in applications before the Tribunal, but we are not aware of any such provision which requires two hearings.

4. It is, however, suggested, both by the legal representative of the Australian Federal Police in this matter and by the Inspector-General herself, both of whom have appeared before us this morning, to put submissions about s 60A, that the section compels a second hearing if the Tribunal is minded to release documents after a first hearing. To understand how this submission arises, it is necessary to look at s 60A of the Act. The section applies in circumstances in which a document is claimed to be exempt under s 33 of the Freedom of Information Act. In summary, s 33 of the Act, exempts documents relating to the security, defence or international relations of the Commonwealth.

5. What s 60A provides is that before the Tribunal determines that a document is not an exempt document under s 33, it must request the Inspector-General to appear personally and give evidence on the relevant matters of security, defence or international relations. The section provides that, before hearing evidence from the Inspector-General, the Tribunal must hear evidence and submissions on behalf of the agency resisting the claim. The section also provides, and we mention this because the provision was referred to by the Inspector-General this morning, that the Tribunal must give the Inspector-General a period of time to examine the documents in question. These provisions are said to require a second hearing when the Tribunal is otherwise minded to release documents.

6. Not only would a process which requires a second hearing before the Tribunal released documents amount to an unusual, even unique, process in the Tribunal, it seems to us that it would create a number of problems.  First, after a first hearing, the Tribunal would receive submissions on the documents and evidence before it at that time.  The submissions to be put by an applicant would have to address that state of affairs.  It is at least possible that such submissions might be compromised at the time of a further hearing, after further evidence from the Inspector-General, which affected the state of the evidence. 

7. Other practical problems arise.  Is the respondent to be given a further opportunity to put on evidence after the Inspector-General?  Is the applicant to be given a further opportunity to put on evidence after the Inspector-General?  The rules of procedural fairness would almost certainly ensure that at least the applicant should be entitled to put on further evidence and make further submissions.  There is also the unusual fact that, before the Inspector-General was invited to give evidence, the Tribunal would be required, on the case put by the Australian Federal Police and the Inspector-General, at least on a preliminary basis, to form a view that the documents should be released.  It is not the habit of courts or tribunals in Australia to release draft decisions and then invite further submissions, yet de facto that is what is being suggested here.

8. There may also be issues relating to the provisions of s 35 of the Administrative Appeals Tribunal Act, which requires the Tribunal ordinarily to proceed in an open hearing. There is at least the possibility that the Inspector-General would wish to make applications relating to any evidence she gave under s 35 for confidentiality orders. We can see problems arising in the way these orders need to be dealt with.

9. The result of the position taken by the respondent and the Inspector-General is unfortunately that these proceedings, unless the applicant wholly fails at the first hearing, will be delayed even further. We are very surprised to hear that it is submitted that that is the intention of the Parliament, because the intention of the Parliament, made clear on many, many occasions with respect to the Administrative Appeals Tribunal, is that it should proceed speedily and economically and in a practical and flexible fashion to determine the cases before it. The moment it is faced with second hearings of the kind that is contended for here, any prospect of dealing with matters in accordance with that primary position or requirement of the Parliament, is next to impossible. The Inspector-General has said to us this morning that it would take her of the order of two months just to look at the material. We are afraid that that kind of delay in dealing with this matter does not seem to be consistent with the Parliament’s main amendments to the Freedom of Information Act, which had the express purpose of opening up freedom of information further, and by introducing an information commissioner and a freedom of information commissioner to speed up the whole process.

10. We would not like to speculate on how many members of Parliament have spoken, in recent times, and particularly since the election of the present government, about the need for the processes we have just mentioned.  Yet, if this matter is to proceed, as has been submitted to us, those objects will be likely to be lost. 

11. There was, we thought, the possibility that because the Australian Federal Police and the Inspector-General are both arms of the one Commonwealth Government administration, as the Administrative Appeals Tribunal also is, that some cooperative way of having this matter dealt with expediently, and in what we would consider to be the interest of justice, might be arrived at.  Yet, the Inspector-General has told me, and we do not doubt the correctness of this proposition, that she is independent and intended to be independent, that her evidence would be separate to the evidence of the Australian Federal Police, and that if she had to look at all of the documents that the Tribunal will have to look at in this case, it would take her a very long period of time, having regard to the other work she has. 

12. There is no doubt that, when one reads s 60A, there is a flavour about it that suggests that the Tribunal will look at the documents and come to some kind of conclusion before giving notice to the Inspector-General. However, we have read the section a number of times without finding in it anything that would require the two hearing approach that is contended for.

13. It is true that the section says:

    Before determining that the document is not an exempt document under section 33, the Tribunal must request the Inspector-General of Intelligence and Security to appear personally and give evidence

    And that may suggest that the Tribunal is on the brink of making such a determination; but we also note that there is nothing there which says that the Tribunal must make some prima facie or other determination before it sends a request to the Inspector-General. There is no doubt that the present moment is a moment before the Tribunal has determined that any of the documents is not an exempt document, and so it seems to us that s 60A(2) is satisfied at present.

14. We note that sub-s (4) says that:

    Before hearing the evidence of the Inspector-General, the Tribunal must hear any evidence to be given or submissions to be made by or on behalf of the agency to which or the Minister to whom the request was made for access to the document.

    That subsection seems to us to require a division of the order in which evidence is presented, just as s 39A of the Administrative Appeals Tribunal Act makes similar provisions in matters within the Security Appeals Division. But not only does sub-s (4) not suggest to us that there must be some substantial gap between the two sets of evidence, it rather suggests to us that the evidence might be given consecutively in the same hearing. So we do not think that sub-s (4) compels the process contended for.

15. That leaves sub-s (9), which is the section permitting the Inspector-General to have time to deal with the documents.  Again, we see no reason why, for example, in the present case, the Tribunal should not now commence the period of that time. 

16. In the result, it does not seem to us that there is anything about the provisions of s 60A which compels what we have been calling the “two hearing approach”. We recognise, for the sake of stating it positively, that although we are referring to a two hearing approach, there would not necessarily be two hearings if the applicant was wholly unsuccessful at persuading the Tribunal in the first hearing.

17. The Inspector-General also referred to the second reading speech and the explanatory memorandum, and cited passages from those documents.  One first says, of course, that such extrinsic evidence is only some evidence to be taken into account and, possibly, not as significant any longer, as a result of recent decisions of the High Court of Australia, as it might have been thought to be a few years ago.  Nevertheless, it does not seem to us, even having listened to the passages read by the Inspector-General, that they add any dimension which would compel a conclusion different to the conclusion we have arrived at.

18. It follows from what we have said that we do not consider that s 60A compels the Tribunal to conduct two hearings of the kind relied upon. It seems to us that the Tribunal, at any time that seems appropriate to the Tribunal, can make a request under s 60A, and the steps that s 60A require will come into play.

19. However, the directions that are to be given in this case should depend upon the facts and circumstances of this case.  We have been informed, this morning, that the matter is ready for hearing on the material which the applicant and respondent wish to present to the Tribunal.  If we were, now, to direct a further process of evidence preparation by the Inspector-General, there would, inevitably, be some delay in the hearing of the matter, which is not desirable.  The unusual aspect of this case is, therefore, that although one might expect a two hearing approach to inevitably delay the resolution of an application to the Tribunal that will not necessarily be so in this case.  It, accordingly, does not seem to us to be appropriate at this moment to direct any further activity by the Inspector-General.  But, rather, it is more appropriate to set the matter down for hearing, and for that hearing to take place as soon as possible.  Unfortunately, that is inevitably, at this time, going to mean a delay at least until something like March or late February of next year.

20. There is one further matter which seems to us to be appropriate to consider, relating to s 60A, which has not been discussed this morning. As we have said, if s 60A is given the two hearing interpretation, there will inevitably be a process in the Tribunal which is unusual and which will raise issues of procedural fairness that will need to be resolved. Accordingly, as the process contended for is an unusual process, it would not necessarily be inappropriate for another unusual process to be contemplated, and as we think about it, to the extent to which the members of Parliament voting on the legislation turned their minds to the kinds of issues that have been explored this morning, we suspect that what we are about to suggest might be the very sort of thing that they might have had in mind.

21. It is our understanding that the documents subject to the claim under the Freedom of Information Act are to be filed in the Tribunal today. Accordingly, they will be available to the member or members hearing this case well before the hearing. In this area of stretched procedural fairness issues it does not seem to us to be unreasonable for the Tribunal, as it will be constituted to hear the case, to examine the documents in the near future and well before the hearing and even to have regard to the evidence that is already filed in the matter, including some evidence which in due course will be sought to be made confidential.

22. Without giving any reasons or expressing any conclusion, if the Tribunal, then constituted, thought that it might be appropriate to release some documents or some parts of documents before the Tribunal then a convenient case would be at that time, prior to the hearing, to make the documents available to the Inspector-General and then to activate the processes under s 60A. It seems to us that such a process might run into potential procedural fairness problems, but we are sure they can be solved. But setting aside those problems, the process would satisfy, to our minds, s 60A, the second reading speech and the explanatory memorandum in their entirety.

23. It is very unlikely, however, that President Downes will be presiding on the hearing of this matter.  What we have just adverted to is a potential decision that is appropriately made not by us but by the Tribunal as constituted to hear the matter.  We, accordingly, will not suggest that this course will necessarily be followed but we think that we should at least indicate to the parties that a process of this kind might be thought appropriate by the Tribunal as constituted for the hearing.  It follows that there might be a notice given under the section which will activate it prior to the hearing; what the consequences of that will be will have to be determined by the Tribunal at the time the decision is made.

24. It follows from all of this that we do not propose at the moment to give any direction under s 60A. Of course, we accept that it is not open to the Tribunal to give to the Inspector-General any coercive direction, in any event. The Tribunal can, however, give a notice to the Inspector-General that if she wishes to give evidence or put on any evidentiary statement that it should be done by a particular time; whether the Inspector-General determines to exercise that right will of course be a matter for the Inspector-General. Although we, at this stage, do not consider that any direction should be given to the Inspector-General we expressly reserve the right to the Tribunal, as constituted for the hearing, to give a direction if it does become likely that a second hearing will be required. We say this because once it becomes reasonably clear that a second hearing will be required any object of seeking to deal with the matter expeditiously by delaying the s 60A process will have been lost.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the reasons for decision herein of the Honourable Justice Downes, President and Deputy President R.P. Handley.

Associate:

Dated:       6 December 2011

Date of hearing	29 November 2011
Date final submissions received	29 November 2011
Advocate for the Applicant	Ms D Frola
Solicitors for the Respondent	Clayton Utz