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Leathem, Sian; Choi, Soo --- "The AAT: impact of common law on the disclosure and use of information" [2016] PrecedentAULA 59; (2016) 136 Precedent 10


THE AAT: IMPACT OF COMMON LAW ON THE DISCLOSURE AND USE OF INFORMATION

By Sian Leathem and Soo Choi

Common law privileges, obligations and immunities apply in non-curial proceedings and the Administrative Appeals Tribunal (AAT), the primary Commonwealth merits review body, is no exception. This article discusses the application and operation of three common law principles that affect the disclosure and use of information in the AAT.

The AAT was established by the Administrative Appeals Tribunal Act 1975 (Cth) (Act), following the recommendation of the Kerr Committee to develop a comprehensive, coherent and integrated system of administrative review.[1] The AAT conducts independent merits review of administrative decisions made under more than 400 pieces of Commonwealth legislation. This is distinguished from the courts’ function of judicial review, which tests the legality of administrative decisions without examining their merits.

The AAT’s powers and way of operating are set out principally in the Act and diverge in a range of ways from those of the courts. First, the AAT’s statutory objective is to provide a mechanism of merits review that is, among other things, accessible, fair, just, economical, informal and quick.[2] Second, the AAT is empowered to affirm, vary or set aside the decision under review.[3] Third, the AAT is not bound by rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate.[4]

As a result of these differences, AAT proceedings being generally more informal and inquisitorial compared with those of the courts. However, some aspects of the AAT’s operations are governed by rules that apply to both judicial and administrative bodies, due to their nature as substantive legal principles rather than rules of evidence. The focus of this article is on three common law principles – legal professional privilege, the implied undertaking and public interest immunity – which affect whether information must be provided to the AAT, whether it must be disclosed to all the parties and whether it can be used for other purposes. Practitioners should be aware of how these rules operate in practice in the AAT space.

LEGAL PROFESSIONAL PRIVILEGE

Legal professional privilege is a common law immunity which, unless abrogated by statute, protects confidential oral and written communications made for the dominant purpose of a lawyer providing either (i) legal advice (advice privilege) or (ii) legal services in relation to actual or contemplated litigation (litigation privilege).[5] The rationale for the immunity is that the public interest in the administration of justice is served by encouraging full and frank disclosure by clients to their lawyers.[6]

The High Court held in Waterford v The Commonwealth of Australia that legal professional privilege applies in the AAT.[7] As the provisions of the Evidence Act 1995 (Cth) relating to client legal privilege do not extend to the AAT, it is the common law privilege that appliesthere. However, the application of this common law privilege is significantly abrogated by s37(3) of the Act in relation to the decision-maker, as discussed below in more detail.

Whether all aspects of the privilege apply in proceedings in the AAT was considered in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd,[8] a case in the Supreme Court of New South Wales. Bergin J concluded that litigation privilege cannot apply to the AAT on the basis that it stands outside the adversarial system of justice.[9] However, in Re Farnaby and Military Rehabilitation and Compensation Commission, AAT President Downes J and Deputy President Groom declined to follow this view and determined that litigation privilege does apply in the AAT.[10] They considered that Waterford requires such a conclusion but would have reached it on the basis that the nature of proceedings in the AAT are sufficiently analogous to court proceedings. Relevant attributes they identified included that AAT decisions have legally binding consequences, there are at least two parties, the proceedings must generally be determined through a hearing, parties before it have a right to be represented and the Tribunal has power to take evidence on oath or affirmation.[11]

Farnaby has been followed by subsequent AAT decisions.[12] More recently, in Re Taggart and Civil Aviation Safety Authority,[13] Deputy President Forgie considered the issue in light of the amalgamation of the AAT with the Migration Review Tribunal, the Refugee Review Tribunal and the Social Security Appeals Tribunal. While there may now be only one party involved in some reviews, the attributes of the AAT that are analogous to those of the courts are sufficient to require the Tribunal to reach the same conclusion as that made in Farnaby.[14]

Subject to the exception referred to below, it is now settled that a party to a proceeding in the AAT may resist the production or disclosure of any communication where the dominant purpose test is satisfied as would occur in a court. Of course, the claimant must not have waived the privilege either intentionally or by implication.[15]

The exception is that the Commonwealth Parliament has stipulated that a decision-maker may not claim legal professional privilege in certain circumstances. For applications in divisions other than the Migration and Refugee and Security Divisions, s37(1) of the Act mandates that the decision-maker must, within 28 days of being notified of an application, lodge with the AAT a copy of a statement of reasons for the reviewable decision and ‘every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal’, typically referred to as the ‘T documents’. A copy of those documents must also be given to each other party.[16] Section 37(3) states that s37 applies ‘notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents’. This ensures that the AAT is given all information held by the decision-maker relevant to the making of the decision.[17]

While documents that would otherwise be privileged must be given to the AAT, a decision-maker concerned about disclosure of material to the applicant or another party may apply for a direction under s35(4) of the Act (that the documents not be disclosed to the other party).[18] A copy of the application must be given to the other party or parties, but the decision-maker is not required to provide the documents unless the Tribunal decides not to make a direction.[19] Given the exhortation in s35(5) of the Act that the Tribunal take as the basis for its consideration the principle that it is desirable that the content of documents lodged with the Tribunal be made available to all the parties and the fact that legal professional privilege has been abrogated, cogent reasons for seeking to withhold the documents would generally need to be presented by a decision-maker.[20]

IMPLIED UNDERTAKING NOT TO USE DOCUMENTS FOR A COLLATERAL PURPOSE

The implied undertaking is a substantive legal obligation that arises in relation to documents or information that a party is compelled to disclose in litigation. The material cannot be used for any purpose other than the conduct of the relevant legal proceedings without leave of the court, unless it has been tendered or read in open court. This objection extends to the parties, their legal representation, any expert witnesses and other servants or agents who obtain the material knowing it was generated in legal proceedings.[21] A breach of the implied undertaking constitutes contempt of court. The rationale for the obligation is that it would be unfair to require a party or another person to produce documents and for those documents to be used for another purpose.

The Federal Court confirmed in Otter Gold Mines Ltd v McDonald & Ors that the implied undertaking applies in the AAT as it does in a court.[22] A breach may constitute a criminal offence under s63 of the Act on the basis that it could, if the AAT were a court of record, constitute a contempt of court.

The AAT’s General Practice Direction, issued by the President under s18B of the Act, provides guidance in relation to the operation of the implied undertaking in the AAT. Documents to which the undertaking may apply include documents lodged by a decision-maker under ss37 or 38AA of the Act, documents lodged pursuant to a direction given by the Tribunal (including a witness statement or expert report), and documents produced in response to a summons issued by the Tribunal.[23] The undertaking will no longer apply, however, if a document is received in evidence by the Tribunal and its confidentiality is not otherwise protected by a statutory provision or a direction made by the Tribunal under s35 of the Act.[24]

As in a court, the Tribunal can release a party from the implied undertaking, a power which is incidental to the power to require the documents to be produced.[25] In general, a party must make an application for release. However, in one limited circumstance, the General Practice Direction authorises the use of documents without a specific request. Subject to any direction the Tribunal may make, documents given to the AAT in one application can be used in another application if the applications have been lodged by the same applicant, they are currently before the AAT and the AAT has decided that the applications should be dealt with together.[26]

Otherwise, a party seeking permission to use a document for another purpose must make a written application which specifies:

• the documents in relation to which release is sought;

• the reasons for release and who will use the documents; and

• if possible, whether the person to whom the documents relate consents to a release. [27]

In general, the application would be provided to the other party or parties to the proceeding. The Tribunal will decide whether to grant leave either on the papers or by holding a hearing.

How the discretion to release a party from the implied undertaking may be exercised has been articulated by the courts. In Liberty Funding Pty Ltd v Phoenix Capital Ltd, a Full Court of the Federal Court stated that good reason must be shown why the relevant documents should be used in another piece of litigation or for other non-litigious purposes.[28] A range of considerations will be relevant to determining whether permission should be granted, including the nature of the document, the circumstances under which the document came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and was therefore expected to enter the public domain, the nature of the information in the document, the circumstances in which the document came into the hands of the applicant and the likely contribution of the document to achieving justice in the other proceeding.[29] This approach to exercising the discretion has been followed by the AAT in a number of cases.[30] Whether permission is granted will depend on the circumstances in each case.

PUBLIC INTEREST IMMUNITY

The general rule in relation to public interest immunity is that a court will not order the production of evidence, whether in oral or documentary form, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it.[31] Following the High Court decision in Sankey v Whitlam, a court assesses a claim of public interest immunity, whether made by the state, by a party or on the court’s own motion, by undertaking a balancing exercise between the public interest which requires that the document should not be produced, and the public interest that a court of justice in performing its functions should not be denied access to relevant evidence.[32]

Specific provisions exist in the Act that allow the Attorney-General of the Commonwealth or of a state or territory to prevent the disclosure of information on public interest grounds. Under ss36 and 36B of the Act, an attorney-general may issue a certificate prohibiting the Tribunal from disclosing information or documents to any other party or person except in limited circumstances. Under ss36A and 36C, an attorney-general may intervene in a proceeding and inform the Tribunal that the answering of a question by a witness would be contrary to the public interest. Section 36D(6) provides that s36 and 36B exclude ‘the operation of any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal’. Different views have been expressed about the application of public interest immunity in the AAT.

In Re Hobart Central Child Care Pty Ltd and Commissioner of Taxation, Deputy President Forgie held that s36D(6) of the Act excludes the operation of common law public interest immunity only if an attorney-general issues a certificate under s36 or 36B.[33] If no certificate has been issued, the Tribunal must consider any claim based on common law public interest immunity and decide whether it applies.

More recently, in Re Guo and Minister for Immigration and Border Protection,[34] President Kerr J and Deputy President Deutsch were required to consider whether a claim of common law public interest immunity could be made by the New South Wales Commissioner of Police in relation to certain oral evidence where the Attorney-General had not intervened in the proceeding under s36C of the Act. The Tribunal in Guo declined to follow the decision in Hobart Central Child Care and concluded that common law public interest immunity does not apply in the AAT. In circumstances where no certificate has been issued nor any intervention made by an attorney-general, s35 of the Act provides the means for protecting information from disclosure as explained in the decision of then AAT President Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs.[35]

However, in Commissioner of Police, NSW v Guo,[36] a Full Court of the Federal Court allowed an appeal from the Tribunal’s decision. Robertson and Griffiths JJ (with Collier J agreeing) held that, since public interest immunity is a basic common law doctrine, none other than very clear words in the Act can displace the doctrine.[37] The Court considered it significant that s36D(6) does not refer to ss36A and 36C that apply to oral evidence, and held that the relevant provisions do not rise to the level of ‘irresistible clarity’ required to exclude such a common law doctrine.[38] In relation to the Tribunal’s reliance on Pochi, the Court opined that Brennan J had proceeded on the assumption that public interest immunity did not operate in the Tribunal at that time, as it was determined before the High Court’s decision in Jacobsen v Rogers,[39] which extended public interest immunity to an administrative body.[40] The Court concluded that a claim for public interest immunity may be made in relation to oral evidence before the AAT.[41]

Some areas of uncertainty remain regarding the application and operation of public interest immunity in the AAT. The Full Court in Commissioner of Police, NSW v Guo confined its consideration to circumstances relating to the giving of oral evidence in the AAT where there has been no intervention on the part of an attorney-general. Whether ss36, 36B and 36D(6) operate as a code to exclude common law public interest immunity in relation to documents appeared to be accepted, but was not necessary to be determined.[42] There are also questions as to how the Tribunal should approach a claim for public interest immunity where oral evidence is concerned, including the preferable procedures and the balancing exercise of competing public interests, given there are very few precedents. The Tribunal considering the matter of Guo on remittal is likely to elucidate the application of common law public interest immunity in this respect.

CONCLUSION

The frequency with which issues arise relating to the application and operation of common law principles in the AAT varies. Issues relating to legal professional privilege arise more commonly than issues relating to the implied undertaking or public interest immunity. However, practitioners need to be alive to their potential application and consider how they may impact on information they are dealing with in cases at the AAT, particularly when deciding whether to disclose information, when seeking or resisting the non-disclosure, of information or when seeking to use such information outside the AAT.

Sian Leathem is the Registrar, Administrative Appeals Tribunal. [Forwarding address: Level 6, 83 Clarence Street, Sydney 2000]

Soo Choi is the Associate to the President, Administrative Appeals Tribunal.


[1] Commonwealth Administrative Review Committee, Commonwealth Administrative Review Committee Report (1971).

[2] Administrative Appeals Tribunal Act 1975 (Cth) s2A.

[3] AAT Act, see above note 2, s43(1); Migration Act 1958 ss349(2), 415(2).

[4] AAT Act, see above note 2, s33(1)(c); Migration Act, see above note 3, ss353, 420.

[5] Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 (Gleeson CJ, Gaudron and Gummow JJ); Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[6] Baker v Campbell (1983) 153 CLR 52.

[7] [1987] HCA 25; (1987) 163 CLR 54.

[8] [2006] NSWSC 530; (2006) 91 ALD 118.

[9] Ibid, [55].

[10] [2007] AATA 1792; (2007) 97 ALD 788, [31].

[11] Ibid, [20]–[21].

[12] See Re Rodsted and Repatriation Commission [2009] AATA 658; (2009) 113 ALD 125; Re Neenan and Australian Postal Corporation [2011] AATA 372; (2011) 121 ALD 459; Re Taggart and Civil Aviation Safety Authority [2016] AATA 327.

[13] [2016] AATA 327.

[14] Ibid, [46].

[15] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 491, 493 (Deane J).

[16] AAT Act, see above note 2, s37(1AE).

[17] Section 37(3) has not been replicated in s38AA which sets out the ongoing requirement for a decision-maker to continue to provide relevant documents throughout the review process.

[18] The procedure is set out in s37 of the AAT Act and the AAT’s “Lodgement of Documents under ss37 and 38AA of the AAT Act Practice Direction” available on the AAT website.

[19] AAT Act, see above note 2, s37(1AF).

[20] Re VBN and Australian Prudential Regulation Authority [2005] AATA 1060; (2005) 92 ALD 455, [25].

[21] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.

[22] [1997] FCA 694; (1997) 76 FCR 467.

[23] General Practice Direction s5.3.

[24] Ibid, s5.2.

[25] Otter, see above note 22, 473 (Sundberg J).

[26] General Practice Direction s5.5.

[27] Ibid, s5.6.

[28] [2005] FCAFC 3; (2005) 218 ALR 283, [31] (Branson, Sundberg and Allsop JJ).

[29] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 223-5.

[30] See Re Von Stieglitz and Comcare [2012] AATA 217; (2012) 127 ALD 633 and Re VLKG and Commissioner of Taxation [2012] AATA 379.

[31] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, [36]-[37].

[32] Ibid, [38].

[33] [2004] AATA 1222; (2004) 84 ALD 86, [49]–[57].

[34] [2016] AATA 125.

[35] [1979] AATA 64; (1979) 2 ALD 33.

[36] [2016] FCAFC 62 (Collier, Robertson and Griffiths JJ).

[37] Ibid, [62].

[38] Ibid, [64] and [72].

[39] [1995] HCA 6; (1995) 182 CLR 572.

[40] Guo, see above note 36, [65].

[41] Ibid, [72].

[42] Section 37(3) states that any rule of law relating to the public interest does not apply in relation to the production of documents under that section.


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