The Fishing Party Australian Electoral Commission and Anor

[2008] AATA 377

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 377

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4990

GENERAL ADMINISTRATIVE DIVISION		)
Re		THE FISHING PARTY

Applicant

And AUSTRALIAN ELECTORAL COMMISSION

First Respondent

And            AUSTRALIAN FISHING AND

LIFESTYLE PARTY

Second Respondent

DECISION

Tribunal Justice Tamberlin, Presidential Member

Date9 May 2008

PlaceSydney

Decision The identified documents should not be disclosed on the grounds of confidentiality and privilege.

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

Presidential Member

CATCHWORDS – PRIVILEGE AND CONFIDENTIALITY – documents disclosing legal advice – documents disclosing information of personal nature about non-parties – orders of privilege and confidentiality made.

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RELEVANT ACT/S:

Administrative Appeals Tribunal Act 1975 (Cth): ss 35, 37

Commonwealth Electoral Act 1918 (Cth)

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CITATIONS:

Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49

Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237

Re Pochi and Minister for Immigration & Ethnic Affairs (1979) 26 ALR 247

REASONS FOR DECISION

9 May 2008 Justice Tamberlin, Presidential Member

1. These reasons for decision concern a claim by the Australian Electoral Commission (“the Commission”) that certain documents should not be disclosed to the Australian Fishing Party (“the Fishing Party”) on the grounds that they are either protected by legal professional privilege or confidential pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

Background

2.        On 2 January 2007, the Australian Fishing and Lifestyle Party (“the Lifestyle Party”) applied to the Commission for registration as a political party, pursuant to the Commonwealth Electoral Act 1918 (Cth) (“the Electoral Act”). The Fishing Party lodged an objection with the Commission in relation to the potential registration of the Lifestyle Party on three grounds.

3.        The objection to registration of the Lifestyle Party was on the grounds that:

·the abbreviation ‘AFLP’ may be mistaken or confused for the abbreviation ‘ALP’ (which refers to the Australian Labor Party);

·the full name of the Lifestyle party may be mistaken for the name of a recognised political party, namely the Fishing Party; and

·the Lifestyle Party improperly used members of the Fishing Party to support its application.

4.        Despite the objection of the Fishing Party, the delegate of the Commission approved the registration of the Lifestyle Party on 21 August 2007.  Detailed reasons were given for that decision.  The Fishing Party sought review of the decision by the Commissioner on 28 August 2007, alleging that the registration of the Lifestyle Party caused confusion in the electorate and was procured by misleading public statements. 

5.        The decision of the Commission was a reviewable decision and, on 15 October 2007, the Fishing Party applied for review of that decision by the Tribunal.

6. The matter progressed through various directions listings, and at the appropriate time the Commission lodged with the Tribunal certain documents pursuant to s 37 of the AAT Act (“the T-documents”). Some, but not all, of those documents were provided to the Fishing Party. The present dispute is whether the documents not provided to the Fishing Party are non-disclosable on the basis that they are either privileged or confidential.

7.        The Lifestyle Party was joined as a respondent to the proceeding, and was represented at the hearing of the present application

The present application

8. The Commission relies on an affidavit sworn by Mr Paul Pirani, who is the Chief Legal Officer of the Commission. Mr Pirani states that on 31 January 2008 the Commission sought confidentiality orders pursuant to s 35 of the AAT Act in respect of two categories of documents included in the T-documents. The categories of documents were: (i) documents brought into existence for the dominant purpose of giving legal advice or assistance or for use in reasonably anticipated litigation and documents which disclose the substance of legal advice; and (ii) documents disclosing information of a personal nature about people and organisations other than the Fishing Party.

9.        The order sought by the Commission is that disclosure of these documents be restricted to the Commission, its legal representatives, the Tribunal, and the Lifestyle Party.  It is known by all parties that the documents include membership lists, a cheque and membership application forms of the Lifestyle Party.  In relation to the cheque, confidentiality is sought due to the need to prevent disclosure of account details (such as the bank name, branch number and account number) printed on the cheque.  In relation to the membership lists and application forms, the claim is made because those documents contain personal details of individual members’ contact details, names and dates of birth.  These documents were provided to the Commission as part of the Lifestyle Party’s application for registration as a political party.  That application for registration is not a public document, nor is the information contained therein available on any public record for inspection.

10. As all of the relevant documents relate to the Lifestyle Party, there is obviously no reason to restrict that party’s access to all the T-documents. The crucial point is that the Fishing Party was denied access to these documents, and now seeks to challenge the claims for privilege and confidentiality which have been asserted in respect of them.

11.      Annexed to Mr Pirani’s affidavit were two schedules which specify the documents in respect of which an order for non-disclosure is sought.  Those schedules are set out in full below.

“SCHEDULE A – ACCESS RESTRICTED TO RESPONDENT AND TRIBUNAL

T-document	Description	Pages covered by the order	Reason
T3	Delegate’s decision	16,17, 18 (as marked)	Legal advice
T3(E)	AEC Internal Minute	40 (as marked)	Legal advice
T4(B6)	AEC Internal Minute	106, 107, 108 (as marked)	Legal advice
T4(B7)	Fax coversheet and letter	111-118 (whole document)	Legal advice
T10	AEC Internal Minute	2811 (as marked)	Legal advice
T10(B)	Minute	2816-2818 (whole document)	Legal advice

SCHEDULE B – ACCESS RESTRICTED TO RESPONDENT, TRIBUNAL AND JOINED PARTY

T-document	Description	Page(s) covered by the order	Reason
T3(B) T4(B2) T4(B4) T5 T9 T10(A)	Membership List	28 89 97 121 2808 2815	Contains personal information of third parties who are not parties to the proceedings
T5	Cheque	122 (as marked)	Bank account details
T5	Membership application forms	142-145	Contains personal information of third parties who are not parties to the proceedings
T6	Membership list and membership application forms	146-2784	Contains personal information of third parties who are not parties to the proceedings”

Legal professional privilege – Schedule A

12.      The basic principles as to claims of legal professional privilege are well settled.  To succeed, the claim must established that the communication came into existence for the dominant purpose of giving or receiving legal advice or assistance, or for use in relation to reasonably anticipated legal proceedings: see Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at 73; Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237.

13.      With those principles in mind, I have considered the documents in respect of which legal privilege is claimed in this matter.   My rulings are as follows:

• T3 and T4(B6) are copies of the same document, namely, a minute of the Commission which contains a recommendation relevant to whether or not the Lifestyle Party should be registered as a political party. Part of the document contains a summary of substantive legal advice given by the Commission’s internal Legal Services Section. I am satisfied that the portion of this document which contains substantiative legal advice came into existence for the purpose of furnishing the Commission with legal advice which would enable it to correctly apply the provisions of the Electoral Act. The claim of privilege is therefore allowed.

• T3(E) and T10 are copies of the same document, namely, another internal minute of the Commission.  Again, part of this document is the subject of a claim of privilege because it refers to the substance of the legal advice given to the Commission.  I consider that portion of the document to be privileged.

• T4(B7) is a facsimile coversheet and a letter from the Australian Government Solicitor to the Commission. The coversheet attaches the letter which provides legal advice in relation to another matter conducted by the Commission in 2000.  In my view, this document is privileged.

• T10(B) is a document entitled “Legal Advice”.  It is sent from the Legal Services Section to the Commission’s Director of Funding and Disclosure.  It is plainly, in form and substance, legal advice.  It is therefore privileged.

Confidentiality – Schedule B

14. Under s 35 of the AAT Act the Tribunal may, where it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence before it, give directions restricting disclosure to some or all of the parties to a proceeding of evidence or of the contents of documents lodged with the Tribunal in relation to a proceeding. That section was considered by Brennan J in Re Pochi and Minister for Immigration & Ethnic Affairs (1979) 26 ALR 247 in the context of a deportation order and submissions as to procedural fairness. After observing that the power to prevent disclosure was one to be exercised with caution and sparingly, his Honour said at 272:

“The purpose … is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.”

15.      His Honour then observed that where the public interest requires that information be kept confidential, such a consideration may outweigh even the public interest in the administration of justice.

16.      In this case, the membership lists of the Lifestyle Party contain personal information about persons who are not parties to the proceeding.  In addition to disclosing political affiliations, which could be considered confidential in themselves, the lists contain the residential addresses of a large number of members, and disclose not only their general location but also give details of telephone numbers, email addresses and the date on which they joined the party.  In addition, the applications for membership require disclosure of work telephone numbers and dates of birth.  As mentioned earlier, in one instance there is a cheque which gives details as to the number and name of a bank account.  Considered in the present context, I find that this information is confidential.

17.      Despite the helpful submissions of Mr Smith (who appeared at the hearing on behalf of the Fishing Party) to the effect that this information was largely in the public domain and was of such a nature that it could not be considered to be confidential, using that expression in its ordinary meaning, I consider that non-disclosure is appropriate in this case.  Mr Smith pointed out that details of persons, names and addresses could be obtained from the electoral roll, and submitted that there was nothing inherently confidential about the details of a cheque used to make ordinary day-to-day payments.  However, the details given in the present case are of a different character and relate to a different context.  Accordingly, I do not consider that the information in issue has lost its confidentiality.

18.      Having examined all the documents which are the subject of a claim for confidentiality and taking into account the affidavit of Mr Pirani, I am persuaded, in the absence of substantial countervailing evidence, that the material in question should be confidential.  In particular, having regard to the present state of the evidence, I do not consider that it is either necessary or appropriate at this point for the Fishing Party to have access to the confidential material provided to the Commission in order to properly conduct its case.

Conclusion

19.      For the above reasons, I consider the documents should not be disclosed on the grounds of confidentiality and privilege.  I shall make orders accordingly.

I certify that the nineteen (19) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Tamberlin, Presidential Member.

Signed:         .....................................................................................
Lucas Bastin, Associate to the Honourable Justice Tamberlin

Date of Hearing  28 April 2008
Date of Decision  9 May 2008
The Applicant was represented by Mr R. Smith
Counsel for the First Respondent             Ms C. Dowsett
Solicitor for the First Respondent              Australian Government Solicitor
The Second Respondent was represented Mr K. Collins