TCXG and and Minister for Foreign Affairs
[2013] AATA 377
[2013] AATA 377
Division SECURITY APPEALS DIVISION File Number(s)
2012/3549
Re
TCXG
APPLICANT
And
Director-General of Security
RESPONDENT
File Number(s)
2012/3550
Re
TCXG
APPLICANT
And
Minister for Foreign Affairs
RESPONDENT
DECISION
Tribunal Justice D Kerr, President
Mr RP Handley, Deputy President
Ms JF Toohey, Senior MemberDate 5 June 2013 Place Sydney Decision Summary
The Tribunal’s Open Findings be published in the redacted and amended form detailed in paragraph 13 of these Reasons.
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Justice D Kerr, President
Catchwords
PRACTICE AND PROCEDURE – judgments, decisions and orders – Security Appeals Division – whether Tribunal permitted to publish reasons – whether Tribunal should publish reasons – risk of identification of applicant - pseudonym insufficient to protect identity of applicant – necessary to redact reasons before publication
COURTS AND JUDICIAL SYSTEM – precedent – Tribunal should follow a considered obiter dicta conclusion of a single judge of the Federal Court unless persuaded that conclusion was plainly incorrect
Legislation
Administrative Appeals Tribunal Act 1975 ss 35AA, 36(1)(a), 39A, 39B(2)(a), 43AAA
Australian Security Intelligence Organisation Act 1979 s 81
Cases
Re an Applicant and Australian Prudential Regulation Authority (2005) 89 ALD 643
RJCG v Director-General of Security [2013] FCA 269
VC and Australian Federal Police (1985) 8 ALD 587
Secondary Materials
Dennis Pearce, Administrative Appeals Tribunal (2nd ed, 2007)
REASONS FOR DECISION
Justice D Kerr, President
Mr RP Handley, Deputy President
Ms JF Toohey, Senior Member
These reasons address whether or not the Tribunal may, or should, publish its reasons for decision as given to “TCXG” pursuant to s 43AAA(4) Administrative Appeals Tribunal Act 1975 (AAT Act) following a hearing conducted in the Security Appeals Division in accordance with s 39A of the AAT Act.
TCXG (the applicant) is an Australian citizen. The applicant commenced proceedings in the Security Appeals Division seeking review of two decisions. Those decisions were (i) an adverse security assessment made by the Director-General of Security of the Australian Security Intelligence Organisation (ASIO) who had assessed that if the applicant was to hold an Australian passport, TCXG would be likely to engage in conduct that might prejudice the security of Australia or another foreign country; and (ii) a decision made by the Minister for Foreign Affairs (the Minister) to refuse the applicant an Australian passport.
Because of the nature of proceedings in the Security Appeals Division (see s 39A of the AAT Act) the Tribunal took evidence and received submissions in private. The proceedings were in two parts. The applicant and the applicant’s lawyer were allowed to be present for only part of the proceedings—and were excluded from the hearing when the Tribunal received security classified evidence and submissions on behalf of the respondents.
On the 10 May 2013 the Tribunal made findings. In accordance with s 43AAA(5) of the AAT Act it directed that those parts of its findings which related to matters not already disclosed to the applicant were not to be given to TCXG. To distinguish those findings from those relevant to these proceedings we will refer to them as the Tribunal’s “Closed Findings”. The Closed Findings canvassed matters which had been the subject of a certificate issued by the Attorney General and heard in the absence of the applicant. No live question arises as to the publication of the Tribunal’s Closed Findings. They have been and will be published only to the Attorney General and the Director-General of Security.
On the same day the Tribunal’s findings in respect of those matters permitted to be given to the applicant were made. For convenience we refer to those as the Tribunal’s “Open Findings”. The Tribunal took care to ensure that its Open Findings did not include reference to any submissions or evidence heard or received in the absence of the applicant. In accordance with past Tribunal practice a draft of the “Open Findings” had been provided to the Attorney General to enable his officers to identify any reference in it to facts or circumstances which might have fallen within the matters covered by his certificates (issued under s 36(1)(a), s 39A(8) and s 39B(2)(a) of the AAT Act) and thus prohibited from disclosure to the applicant. The Tribunal’s Open Findings addressed the law applying to the Tribunal and dealt with the evidence the Tribunal had received and the submissions made by the applicant’s lawyer on the applicant’s behalf in respect of those parts of the hearing which the applicant had attended. The applicant’s lawyer is correct in submitting that the Tribunal’s Open Findings detailed particulars of the applicant’s personal life and history. The Tribunal’s reasons then explained, in so far as was open to it, why the Tribunal had affirmed the decision under review.
At [79] of its Open Findings the Tribunal stated:
The Tribunal notes Justice Foster’s comment in RJCG v Director-General of Security [2013] FCA 269, at [58], that there is no foundation in the AAT Act for not publishing its Open Statement of Reasons. We have considered s 81(1) of the ASIO Act, to which Justice Foster referred at [59], and, in our view, this does not preclude us from publishing this Open Statement of Reasons. This Open Statement of Reasons will therefore be published as is the practice with other decisions of the Tribunal.
Prior to the Federal Court’s decision in RJCG v Director-General of Security the Tribunal’s practice had been to not make public its Open Findings in matters heard in the Security Appeals Division. Accordingly the parties would not have anticipated that they might be required to make submissions as to its publication. The Tribunal therefore gave the parties an opportunity to make any submissions they thought fit regarding any confidentiality orders that might be necessary or appropriate. Both the applicant and the respondents provided the Tribunal with written submissions and agreed that the Tribunal might determine the questions in issue without the requirement for supplemental oral argument.
The applicant sought, and the Director-General and the Minister supported, the Tribunal making a non-publication order over the whole of the Tribunal’s Open Findings.
To the extent that their common submissions go to the risk of identifying the applicant the Tribunal is satisfied that it would be inappropriate to publish anything that risks doing so contrary to the wishes of the applicant. We accept, as submitted by the parties, that publication (irrespective of the disposition of the review) of anything permitting the identity of an applicant in the Security Appeals Division to become known contrary to the applicant’s wishes could result in an applicant suffering unanticipated adverse effects years into the future. We also agree that there are real risks that applicants may be dissuaded from seeking merits review of adverse security assessments if information permitting their identity to be ascertained were to be published contrary to their wishes.
It is far from unique for the Tribunal to take such factors into account. In Administrative Appeals Tribunal (2nd ed) at [7.55] Dennis Pearce refers to a number of proceedings in which the Tribunal has made orders either suppressing the publication of a name or making a pseudonym in respect of the name. Two decisions referred to by Pearce justify specific reference. In Re an Applicant and Australian Prudential Regulation Authority (2005) 89 ALD 643 the Tribunal made confidentiality orders on the basis that the disclosure of the applicant's name was likely to have such an adverse effect on its business that even if the applicant was successful on review, its business would be irretrievably damaged. In this Tribunal's view disclosure that ASIO has made an adverse security assessment of an individual may have a similar irretrievably adverse effect in respect of that individual’s reputation within the community whether or not they are ultimately successful on review. In VC and Australian Federal Police (1985) 8 ALD 587 an application was successful on the basis that publication of the applicant’s name in relation to an FOI application might deter others from making similar applications if the fact of their doing so became public knowledge. We have already indicated that this Tribunal accepts that there are real risks that other applicants may be dissuaded from seeking merits review of adverse security assessments if, contrary to their wishes, information permitting their identity to be known were published.
In the Tribunal’s view, in the circumstances specific to this review, it would not overcome the risk of disclosure of the identity of the applicant simply to publish our reasons with the applicant’s name replaced by the pseudonym TCXG. The detailed facts and circumstances directly relevant to the applicant referred to in our Open Findings could if published, and were identification attempted, risk identifying the applicant. That risk is not fanciful.
In view of that risk and the seriousness of the potential adverse consequences for the applicant were that risk to be realised the Tribunal has concluded that if its reasons are to be published they must omit all references to the personal circumstances of the applicant other than the applicant’s Australian citizenship which is a jurisdictional fact inherent in these proceedings having been initiated.
To clarify what the Tribunal has concluded as necessary to protect the applicant against risk of having their identity disclosed we would redact:
·all of paragraph 2 of our reasons save for the statement that the applicant is an Australian citizen;
·paragraphs 3 to 7 inclusive;
·the last sentence of paragraph 10;
·paragraphs 11 to 18 inclusive;
·the last two sentences of paragraph 29;
·the second sentence in paragraph 32;
·paragraphs 33 to 37 inclusive;
·the third sentence in paragraph 38;
·paragraphs 39 and 40;
·everything following the first three sentences of paragraph 43;
·paragraph 44;
·the first sentence of paragraph 45 and the first quotation following;
·paragraphs 46 to 62 inclusive;
·sub-paragraph 9 of ASIO’s open Statement of Grounds as quoted in our reasons at paragraph 64;
·paragraphs 65, 68, and 69;
·the dot points in paragraph 70;
·the second and final sentences of paragraph 72; and
·paragraph 78.
To ensure that there is complete generality in relation to the applicant in the remaining paragraphs of our reasons we would replace each personal pronoun referring to the applicant wherever occurring in our reasons with the words “the applicant” or “TCXG” as best appropriate to make grammatical sense but accepting that it does not perfectly do so. Additionally while it may appear an excessive abundance of caution, lest there be the possibility that identification of the name of the legal representative of the applicant might suggest a path of inquiry to the identification of the applicant, we have taken the unusual step of also not publishing the identification of the applicant’s legal representative.
To the extent necessary to identify the power to make such redactions it is expressly conferred by s 35AA of the AAT Act.
The Tribunal finds that what remains of the Tribunal’s reasons carries no risk of identifying the applicant.
We also find that what remains would reveal nothing of national security concern—particularly given (a) the extent of the redactions which remove all references to specific persons and events (b) the care taken, as referred to in paragraph 5 of these reasons, to ensure nothing in the Tribunal’s Open Findings related to matters disclosed to it in camera and (c) pursuant to s 43AAA(6), that subject to any directions made by the Tribunal it is open to the applicant to publish to the world what was disclosed in the Tribunal’s Open Findings if the applicant wants to do so. We reject the submission that issues of confidentiality, disclosure of prohibited information and the question of statutory construction apart, there are compelling public policy reasons against publication. Moreover as a matter of principle the Tribunal cannot assume that every applicant will seek the confidentiality orders that were sought in this case. Indeed some applicants may choose to make public the fact of their application to the Tribunal. The Tribunal is also mindful that any applicant has the right to publish the Tribunal’s Open Findings.
Publication of the Tribunal’s reasons, even in the very redacted form required in this case, would permit the public, the legal profession and others with an interest in the rule of law to have available to them a limited but still intelligible account by the Tribunal of its understanding of its duty and some insight, in so far as the law allows, into how it is discharging that public duty in the Security Appeals Division. There is a well-recognised public interest in courts and tribunals publishing their reasons. In the ordinary course that is the Tribunal’s duty. There is a legitimate public interest in making known to the community how the Tribunal goes about its work even if, as in the present case, the Tribunal is constrained to reveal few details of the facts of the case.
Having identified how the Tribunal would address the issue of confidentiality if the Tribunal was free to do so the Tribunal must also address the further submissions by the parties that, as a matter of statutory construction of the AAT Act and the Australian Security Intelligence Organisation Act 1979 (ASIO Act) there is a statutory foundation precluding the disclosure by the Tribunal of such reasons to the public.
The applicant supported the submissions of the Director-General and the Minister for Foreign Affairs to such an effect but the thrust of the applicant’s submissions was confined to the risk of the identity of the applicant becoming known which we have already taken into account. We therefore confine ourselves to setting out the terms of the written submissions of the respondents.
3. In RJCG v Director-General of Security [2013] FCA 269 the issue Foster J was deciding was whether an order preventing publication of matters in the Tribunal’s reasons for decision should be made, where the Tribunal had not been asked to make such an order and the Applicant was in favour of, but had not yet effected, publication. Foster J was clearly influenced (at [57]) by the fact that the Applicant could have published the open reasons prior to the making of the application to the Federal Court. It does not follow that the Tribunal was equally free to do so for two reasons.
4. Firstly, while Foster J stated, in obiter dicta, that the terms of s 43AAA of the AAT Act did not provide a foundation for the Tribunal’s practice of non publication, the Director-General submits that this section does support that practice. If the Tribunal can publish findings in the SAD to the public at large, then s 43AAA(6) becomes redundant, because there would plainly be no need to authorise an Applicant to publish findings. Section 43AAA(6) suggests it is for the Applicant, rather than the Tribunal, to decide whether the findings be made public, which is readily understandable from a policy perspective... This interpretation is supported by s 43AAA(4) and (5) which require the Tribunal to give copies of its findings to a limited class of persons (although that provision is not decisive if read alone). Further, the limited terms in which the power to give directions under s 43AAA(5) is conferred also suggests a legislative assumption that findings will not be made publicly available, because a direction under that section would then lack utility as it would not impose obligations on the public generally.
5. Secondly, absent affirmative authorisation to publish its findings to anyone other than the persons specified in s 43AAA(4), the Tribunal is prevented from revealing any information about an adverse security assessment (whether or not that information is subject to a certificate) by s 81(1) of the ASIO Act. That section is specifically directed to imposing obligations on members and officers of the Tribunal, by prohibiting them from directly or indirectly making a record of, or divulging or communicating ‘any information acquired by him or her by reason of his or her office or employment under or for the purposes of this Act, except for the purposes of the ASIO Act. The findings in open reasons are plainly a record of this kind. However, publication of the findings of the SAD to the public does not, as a matter of statutory construction, occur for the purposes of the ASIO Act. The provisions of that Act indicate that those purposes are more properly described as establishing a regime for limiting and controlling the communication of information to government gathered in the pursuit of ASIO’s functions, as opposed to facilitating the publication of information to the public at large. In particular:
5.1 s 17(1)(c) of the ASIO Act states that one of ASIO’s functions is to ‘advise Ministers and authorities of the Commonwealth’ in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities’. Subsection 17(1)(ca) also makes it a function of ASIO to furnish security assessments to a State or an authority of a State.
5.2 s 37(1) indicates that one s 17(1)(c) function is to [sic] furnishing to ‘Commonwealth agencies’ security assessments relevant to their functions and responsibilities. Section 35 states that a ‘security assessment’ is to be furnished to ‘a Commonwealth agency’. (Furthermore, the definitions of adverse and qualified security assessments show the central connection between assessments and ‘prescribed administrative action’.) Section 38 requires the agency or authority that received the assessment to furnish it to the subject of the assessment. (Section 38 also affords ASIO a mechanism by which the Attorney-General can withhold the assessment being so furnished, or, withhold the disclosure of the statement of grounds, or parts thereof, that accompanies the assessment.)
5.3 Section 18 contains a stringent secrecy provision binding on current or former ASIO employees.
6. Accordingly, even if s 43AAA(4) would otherwise have left a choice as to whether the SAD’s findings are given to anyone other than the persons specified in that subsection, that choice is removed by s 81 of the ASIO Act. Furthermore, section 66A of the AAT Act, when read together with s 18(2) of the ASIO Act, imposes a similar limitation.
7. In those circumstances, the Tribunal should not alter its existing practice on the basis of Foster J’s observations as that practice is soundly based in s 43AAA of the AAT Act and s 81 of the ASIO Act.
It cannot be gainsaid that there is much that can be said in favour of those submissions. Such considerations influenced the Tribunal in its adoption of its previous practice of not publishing any Open Findings. Unguided by authority and with no submissions to the contrary, the Tribunal might again have been persuaded that such a course should be followed. However, the Tribunal is faced squarely with, and cannot ignore, the very different conclusions reached by Foster J in RJCG v Director-General of Security.
The Director-General and the Minister correctly submit that Foster J’s statements in RJCG v Director-General of Security were obiter dicta. However, those remarks were preceded by his Honour’s close analysis of the relevant legislation. What his Honour stated by way of conclusion was blunt and unambiguous. In the ordinary course the Tribunal would be expected to defer to and follow a considered conclusion, even if strictly obiter, reached by a judge of the Federal Court of Australia. We think we must do so unless we are persuaded that Foster J was plainly incorrect.
The relevant passages of his Honour’s judgement are set out below:
56. Section 43AAA of the AAT Act deals with the way in which the findings of the AAT in proceedings in its Security Appeals Division are to be handled. That section provides:
43AAA Findings of Tribunal in certain proceedings before Security Appeals Division
Scope
(1) This section applies to a review conducted by the Security Appeals Division.
Findings
(2) Upon the conclusion of a review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment.
(3) The Tribunal must not make findings in relation to an assessment that would, under section 61 of the Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under subsection 37(2) of that Act, taken to be part of the assessment unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.
Copies of findings to be given to parties etc.
(4) Subject to subsection (5), the Tribunal must cause copies of its findings to be given to the applicant, the Director General of Security, the Commonwealth agency to which the assessment was given and the Attorney General.
(5) The Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to the applicant, is not to be given to the applicant or is not to be given to the Commonwealth agency to which the assessment was given.
Applicant may publish findings
(6) Subject to any direction by the Tribunal, the applicant is entitled to publish, in any manner that he or she thinks fit, the findings of the Tribunal so far as they have been given to him or her.
Tribunal may attach comments to findings
(7) The Tribunal may attach to a copy of findings to be given to the Director General under this section, any comments the Tribunal wishes to make on matters relating to procedures or practices of the Australian Security Intelligence Organisation that have come to the Tribunal’s attention as a result of a review.
(8) The Tribunal must give the Minister a copy of any comments attached as mentioned in subsection (7).
57. In the present case, the AAT did not make any direction pursuant to s 43AAA(5). Nor did the DGS ask it to do so. As is made clear by s 43AAA(6), in those circumstances, at all times between 17 August 2012 and the date when I made the interim orders (31 October 2012), subject to any arrangements reached among the parties, the applicant was entitled to publish, in any manner that he thought fit, the findings of the AAT so far as they had been given to him. In simple terms, the applicant has been in a position to publish to any person the entire contents of the open decision in the 10½ week period between the date when the open decision was published and the making of the interim protection orders on 31 October 2012.
58. Notwithstanding the terms of s 43AAA of the AAT Act, there is apparently a practice within the AAT not to make available to members of the public Reasons for Decision handed down by the AAT in its Security Appeals Division. There is no foundation in the AAT Act for that practice.
[Emphasis added].
His Honour’s reference in the immediately following paragraph of his judgement to s 81 of the ASIO Act placing restrictions upon members and officers of the AAT in respect of information acquired by reason of their office of employment under or for the purposes of the ASIO Act arguably leaves open the issues raised by the respondents in paragraph 5 of their submissions but equally those remarks may be taken to demonstrate that his Honour took into account those provisions but nonetheless concluded that there was no foundation for the AAT not making available to members of the public its reasons handed down in its Security Appeals Division. We so read it. For our part we see no reason to resile from the conclusion the Tribunal expressed at [79] of its Open Findings that s 81(1) of the ASIO Act does not preclude the Tribunal publishing its open statement of reasons. We take the view that the production and control of the publication of the Tribunal’s reasons is a function conferred on the Tribunal and undertaken ‘for the purposes of the Act’.
We think support for that conclusion can be found in the terms of s 35AA(d) of the AAT Act which empowers the Tribunal to give directions prohibiting or restricting the publication of the whole or any part of its findings on review. Such a power would not be required if all publication per se was prohibited.
In any event the Tribunal is not persuaded that the conclusion reached by Foster J was plainly wrong. Subject to what follows we propose publishing our Open Findings in the redacted and amended form detailed in [13] above.
In the event that the Tribunal was to reach such a conclusion the Director-General asked that he be provided with an opportunity to seek review of this decision before the terms of our Open Findings were publicly disclosed.
The Tribunal appreciates the respectful manner in which the Director-General has addressed that request to the Tribunal. The Director-General should be given time to consider these reasons and to approach the courts for review should he be so advised. The Tribunal therefore directs that its redacted Open Findings are to not to be published before the expiry of 21 days after the handing down of these reasons but are to be published in the ordinary manner after that date unless otherwise restrained.
28. I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Justice D Kerr, President, Mr RP Handley, Deputy President
29. Ms JF Toohey, Senior Member.
30.
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Associate
Dated: 5 June 2013
Date final submissions received 24 May 2013 Lawyers for the Applicant [redacted] Lawyers for the Respondents Irene Sekler, Australian Government Solicitor
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