Sydney Sterile Compounding Pty Limited and Minister for Health
[2016] AATA 549
•29 July 2016
Sydney Sterile Compounding Pty Limited and Minister for Health [2016] AATA 549 (29 July 2016)
Division
GENERAL DIVISION
File Number(s)
2016/0939
Re
Sydney Sterile Compounding Pty Limited
APPLICANT
And
Minister for Health
RESPONDENT
DECISION
Tribunal The Hon. D Cowdroy OAM QC, Deputy President
Date 29 July 2016 Place Sydney The Tribunal decides that:
(a) Pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975, publication or other disclosure of the redacted portion of the s 37 Documents filed by the Respondent be prohibited to anyone other than the Members and staff of the Tribunal and the Respondent’s legal representatives;
(b) The application for limited disclosure of the redacted material to the legal advisors of the applicant be refused.
...........................[sgd]...........................................
The Hon. D Cowdroy OAM QC, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application for confidentiality order by respondent – request for order over certain documents produced under s 37 of the Administrative Appeals Tribunal Act 1975 – respondent requests for orders restricting or prohibiting the disclosure of particular content of documents to any person including the applicant – applicant requests orders allow disclosure to applicant's legal representatives – claim on the grounds of common law public interest immunity – documents relating to DIBP processes and intelligence capabilities – no certificate pursuant to s 36 of AAT Act - affidavit of DIBP employee relied upon – sensitivity of information requires that it not be disclosed to any other person – request for confidentiality orders granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 35, 37
Evidence Act 1995 s 130(5)
CASES
Attorney-General (NSW) v Stuart (1984) 34 NSWLR 667
Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183
Commissioner of Police, New South Wales v Guo [2016] FCAFC 62
Conway v Rimmer (1968) AC 910
Harbour Corporation of Queensland v Vessey (1986) 12 FCR 60
Hilton v Wells (1995) 15 A Crim R 418
Law Institute of Victoria Boulder v Deputy Commissioner of Taxation (2009) 224 FLR 37
Mark Ryan v State of Victoria [2015] VSCA 353
New South Wales v Public Transport Ticketing Corp [2011] NSWCA 60
Obeid v IPP [2015] NSWSC 1755
Ryan v State of Victoria [2015] VSC 353
Sankey v Whitlam (1978) 142 CLR 1REASONS FOR DECISION
The Hon. D Cowdroy OAM QC, Deputy President
29 July 2016
By decision dated 7 December 2015 (“the decision”) the respondent refused to grant to the applicant a licence (“the import licence”) to import a substance known as Cannabidiol under regulation 5 of the Customs Act (Prohibited Imports) Regulations 1956 (“the Regulations”). Such decision was based upon the fact that the respondent was not satisfied that the principal of the applicant was a fit and proper person to be granted a licence to import drugs.
Reasons provided in the decision are voluminous. They refer to numerous factual incidents which are relied upon by the respondent in support of the decision. Confidentiality has been sought by the respondent in respect of numerous documents upon which the decision was based. Such confidentiality is challenged by the applicant. Accordingly, the issue presently before the Tribunal is whether a confidentiality order is justified under s 37(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). Both the applicant and the respondent have provided written submissions concerning the application for confidentiality and the respondent relies upon an affidavit of Stanley Pragnell, an employee of the Department of Immigration and Border Protection (“DIBP”).
RESPONDENT'S SUBMISSIONS
The respondent initially sought an order prohibiting the contents of numerous documents provided to the Tribunal in accordance with section 37 of the AAT Act (“the T documents”) from being disclosed to any person including the applicant. Subsequently, as a result of negotiations, the number of documents in respect of which the respondent seeks a confidentiality order is limited to approximately 10 documents. These documents are identified by Mr Pragnell in his affidavit sworn on 13 May 2016. In fact it is now only redacted parts of those documents which are in issue ("the redacted material"). The applicant has been provided by the respondent with such documents which exclude the redacted portions.
The respondent’s claim for a confidentiality order under section 35(4) of the AAT Act is based on common law public interest immunity. On this basis it is submitted that the documents cannot be disclosed to the applicant nor to its legal representatives.
As an alternative, if the redacted material is not protected by such public interest immunity, the respondent submits that this is nevertheless an appropriate case in which to make an order pursuant to section 35(4)(b)(ii) of the AAT Act so as to prohibit disclosure of the redacted material to any person, save for the Tribunal and the respondent's legal representatives.
APPLICANT'S SUBMISSIONS
The applicant refers to the decision, noting that the decision was premised upon the basis that the principal of the applicant was "not a fit and proper person to be granted a licence to import drugs". The applicant also refers to various recorded incidents in which the principal of the applicant was involved which are relied upon in support of the decision to refuse to grant an import licence. However the applicant says that the "evidence" supplied in relation to the adverse findings does not establish that there are issues with the applicant’s credibility, and secondly that any concerns which may arise are outweighed by the fact that the applicant's principal is a registered pharmacist and has been so registered for more than 20 years. Such principal, it is said, has compounded many substances including narcotic and psychotropic drugs. The applicant submits that the principal of the applicant is a "fit and proper person" to import, possess, store, handle and dispense such drugs, having had experience, as a pharmacist, in higher risk profiles than the drug for which the licence is sought, namely Cannabidiol.
The applicant relies upon section 130(5) of the Evidence Act 1995 (Cth) (“the Evidence Act”) in respect of a claim for public interest immunity and relies upon the observations of the High Court of Australia in Sankey v Whitlam (1978) 142 CLR 1, in which the High Court referred to the balancing act which must be undertaken where a claim of public interest immunity arises, namely that a court should not be denied access to relevant evidence on the one hand, compared to the claim for public interest on the other.
The applicant submits that when such a claim is made, the Tribunal should consider the documents in order to determine whether such a claim is justified. However the applicant points to the fact that the respondent has adduced no direct evidence concerning the degree of sensitivity of the redacted material and whether that sensitivity has diminished since the claim was first made. In this regard the applicant submits that the Tribunal should not be left to infer that the evidence of Mr Pragnell remains of current validity. The applicant also submits that whether the application is brought upon common law public interest immunity grounds or whether it is bought pursuant to section 130(5) of the Evidence Act, the redacted material ought to be disclosed at least to the legal representatives of the applicant. The applicant submits that a limited disclosure regime, namely to the legal representatives only, is not inconsistent with a valid claim for restricted disclosure based on public interest immunity grounds: see Law Institute ofVictoria Boulder v Deputy Commissioner of Taxation (2009) 224 FLR 37; Harbour Corporation of Queensland v Vessey (1986) 12 FCR 60.
CONSIDERATION
Statutory provisions
It is necessary to consider, firstly, the statutory provisions which should bear upon the current claim for non-disclosure. Section 35(4) of the AAT Act relevantly empowers the Tribunal to give directions as follows:
(4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
There are certain constraints which must be taken into consideration by the Tribunal when assessing the desirability of making such an order as provided section 35(5):
(5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
Section 130 of the Evidence Act sets out a series of matters which should be taken into consideration in determining whether a claim for public interest immunity is required. Those considerations include the importance of the information in question; the nature of the cause of action to which the information relates and the subject matter of the proceeding; the likely effect of releasing the information and the means available to limit its publication; and whether the substance of the information has already been published.
Common law principles
There are well established principles reflected in decisions such as Conway v Rimmer [1968] AC 910; Attorney-General (NSW) v Stuart (1984) 34 NSWLR 667; Sankey v Whitlam (1978) 142 CLR 1; Ryan v State of Victoria [2015] VSC 353; New South Wales v Public Transport Ticketing Corp [2011] NSWCA 60 which provide guidance in determining public interest immunity. As was stated by the High Court in Sankey v Whitlam:
The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.
The affidavit of Mr Pragnell acknowledges that the deponent has reviewed each of the documents that are the subject of the application. The basis of the claim to confidentiality on the basis of public interest immunity is predicated upon the assertions that the disclosure of the redacted material "may prejudice investigative practices undertaken" by the DIBP. Significantly, Mr Pragnell deposes as follows:
In my view, if the Confidential Information is disclosed it could be used by a person seeking to evade or respond to DIBP enforcement measures, in that it gives a picture of what the DIBP officers do, the likelihood of particular measures being undertaken, the capacity to undertake them and the action that the DIBP would likely take as a result of an investigation.
The affidavit discloses the basis of the claim, which is described conveniently as "Admiralty Information" and "Admiralty Source". It is stated that the information discloses the "source" of intelligence, the rating system used by DIBP to assess intelligence information, the strength of that information as well as the DIBP’s intelligence capabilities.
The affidavit also states that the information "also reveals the veracity and reliability of the DIBP’s intelligence and the information held in its databases". The affidavit continues:
…that information, particularly when compared with other Information Reports, may enable persons of interest to modify their behaviour to avoid DIBP detecting their activities or activities of their associates.
Mr Pragnell also states that harm can arise from the disclosure of the specific confidential information (i.e. the redacted material) being used to provide persons to gain a more complete picture of DIBP, namely its procedures, capabilities and methodologies. Mr Pragnell deposes:
Absent any restriction on disclosure, there is a real possibility that the Confidential Information would find its way into the hands of criminal syndicates and other criminal associates.
Mr Pragnell's affidavit was sworn on 13 May 2016, and the Tribunal finds that it is reliable in respect of the practices which existed as at that date.
Recent relevant decision
In Commissioner of Police, New South Wales v Guo [2016] FCAFC 62, the Full Court of the Federal Court of Australia set out to identify the nature of a claim for prohibiting disclosure of information, particularly in relation to the circumstances where the Attorney General of the Commonwealth gave a certificate pursuant to s 36 of the AAT Act.
At [72], the Full Court said:
In our opinion, when the matter of oral evidence where there is a claim to public interest immunity is analysed by reference to the principles that public interest immunity is a basic common law doctrine and not merely a rule of evidence; and that public interest immunity applies to bodies other than courts, including the Tribunal; and that in accordance with the principle of legality, words of irresistible clarity are required to exclude such a common law doctrine, the provisions in the Administrative Appeals Tribunal Act and relied upon by the Tribunal do not rise to that level.
Significantly, the decision is not of direct relevance since there is no question of any certificate having been issued by the Attorney General in this matter.
In Mark Ryan v State of Victoria [2015] VSCA 353, a decision delivered on 17 December 2015, the Full Court of the Supreme Court of Victoria, Court of the Appeal at [118] said:
If information on public methods of crowd control were released into the public domain in a court of law those methods could be undermined and subverted, including by those intent on committing criminal offences. These are the matters which underpin the recognition of police methods of crowd control as a "matter of state" in the context of section 130(4). Whether, in any individual case, the balance lies in favour of disclosure or non--disclosure under section 130 (1) will depend upon the balancing exercise to be undertaken in the circumstances of the case in accordance with the factors in s 130(5).
The Court of Appeal stated the principle which has been repeated frequently, namely that where issues of law enforcement are concerned, and records which might indicate or assist criminals to know how a particular system operates to their advantage, that information is most likely to warrant protection.
In Obeid v IPP [2015] NSWSC 1755, a judgment of the New South Wales Supreme Court delivered on 3 December 2015 (Davies J), access to records was denied on the basis of similar considerations as those considered in Ryan. The judgment of Davies J refers to numerous authorities including a decision of the High Court in Alister v The Queen (1994) 154 CLR 404 (at 412) where the Court referred to the decision in Sankey v Whitlam as follows:
Sankey v Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates.
A further issue arose in the matter of Obeid, namely a request that the disclosure be limited to the legal representatives of the applicant. Davies J said at [27]-[28]:
…nor do I think it would be appropriate to put in place a confidentiality regime so the information could be made available to either or both of the Plaintiffs and their lawyers. In some cases that approach may be appropriate where the concerns relating to confidentiality involve commercial interests or were otherwise commercially sensitive…
Different considerations apply where the physical safety of a person is concerned. With the best will in the world, the more people who know of a matter the more chance there is for the disclosure of some aspect of the information which can then be linked to other known information that might ultimately result in the safety of the person sought to be protected being compromised.
In reaching such conclusion, Davies J referred to the decision in Hilton v Wells (1995) 15 A Crim R 418 where Wilcox J said (at 429):
It seems to me merely common sense to conclude that the fewer people who have access to confidential information the less there is the risk of unauthorized [sic] disclosure.
FINDINGS
The Tribunal has examined the redacted portions of the documents in respect of which confidentiality is claimed. Having done so, the Tribunal is satisfied that the affidavit of Mr Pragnell weighs heavily in favour of non-disclosure. The Tribunal is satisfied that Mr Pragnell’s assessment of the information is accurate: the redacted information clearly refers to various matters going to the source of certain parts of the information which is in dispute.
The Tribunal accepts that such information, if it became known, could readily be used by persons for potentially illegal purposes. The Tribunal considers that Mr Pragnell’s evidence is reliable, in the same way as the Full Court found the information before it to be more reliably informed from an expert: see Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183 at [63].
The information contained in the redacted material is such that it sensitivity requires that it should not be disclosed to any other person. Accordingly whereas the alternative position of the applicant was to seek an order of the redacted material only be made available to the legal advisers, the Tribunal is satisfied that such a course could, even by inadvertence, lead to the material being disclosed. The redacted material is too sensitive for that to occur.
The Tribunal is satisfied that the respondent’s application for non-disclosure orders under section 35(4) of the AAT act should be upheld in relation to the redacted documents. Further, the application for limited disclosure to the legal representatives of the applicant should be refused.
ORDERS
The Tribunal makes the following orders:
(c)Pursuant to section 35(4) of the AAT Act, publication or other disclosure of the redacted portion of the s 37 Documents filed by the Respondent be prohibited to anyone other than the Members and staff of the Tribunal and the Respondent’s legal representatives.
(d)The application for limited disclosure of the redacted material to the legal advisors of the applicant be refused.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of The Hon. D Cowdroy AOM QC, Deputy President .......................[sgd].................................................
Associate
Dated 29 July 2016
Date(s) of hearing 27 May 2016 Solicitors for the Applicant Piper Alderman Counsel for the Respondent C Lenehan Solicitors for the Respondent Corrs Chambers Westgarth
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