Applicant VEAL of 2002 v MIMIA [2005] HCATrans 476 (3 August 2005)

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Applicant VEAL of 2002 v MIMIA [2005] HCATrans 476 (3 August 2005)

Last Updated: 4 August 2005

[2005] HCATrans 476

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M16 of 2005

B e t w e e n -

APPLICANT VEAL OF 2002

Appellant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 AUGUST 2005, AT 10.18 AM

Copyright in the High Court of Australia

MS D.S. MORTIMER, SC: If it please the Court, I appear with my learned friend, MR R.M. NIALL, on behalf of the appellant. (instructed by Victoria Legal Aid (Civil Law Section))

MR A.L. CAVANOUGH, QC: If the Court pleases, I appear with my learned friend, MR J.D. PIZER, for the first respondent. (instructed by Australian Government Solicitor)

GLEESON CJ: Yes, Ms Mortimer.

MS MORTIMER: If the Court pleases, I propose to give a brief introduction to how we put the argument in this case, then to take your Honours to some key factual issues, circumstances that we say go to the disposition of the content of the obligation of procedural fairness, then to ask the Court to look at the content of the letter in question, then to take the Court to the statute and to make good our submission that nothing in the Act as it then stood altered or modified the Tribunal’s obligation, and finally then to take your Honours to the way the Full Court approached the Tribunal’s obligation and identify the error in that approach.

Your Honours, there are three propositions, in our submission, that we say are not in dispute between the parties but that we say are critical, and they are these. Firstly, on the Act as it stood at the relevant time, the Tribunal was obliged to afford procedural fairness to an applicant as that concept was understood at common law. Secondly, that the statement of Justice Brennan in Kioa at page 629 encapsulates the threshold at which adverse information can be said to create a real risk of prejudice, albeit subconscious. Thirdly, that the need to disclose material is not based on whether the material in fact did influence the decision but whether it might have done so because of the importance the law places on the appearance of a fair hearing and the need to maintain confidence in the decision-making process.

Now, we say those basic propositions, your Honours, are not in dispute as between the parties. Where we diverge is whether an express disavowal of reliance in fact on undisclosed material modifies any of those propositions or renders them inapplicable. Our submission is that a disavowal of reliance, which is what occurred in this case, has no effect on the application of those principles because the process in Kioa requires a decision-maker to assess the character of the information and its capacity to influence.

In other words, we place emphasis on some words in the passage from Justice Brennan’s judgment in Kioa that are omitted by the Full Court in this case and those words are whether the material:

is credible, relevant and significant to the decision to be made.

In our submission, it is a prospective exercise. It is not one that the decision-maker asks himself or herself at the end of the exercise.

KIRBY J: But we have to decide on the principle that is applicable to ourselves as much as to every tribunal and court in the country and this morning I received a letter from a litigant, a self-represented litigant, whose case is part heard before me writing to me. Fortunately, before I opened the letter I saw the name on the back and I did not open the envelope. A lot of lay people do not understand rules that govern judges and tribunals. So I have to ask myself where does your principle go. How far does it go? Does it mean that every judge on the brink of making a decision has to reveal, “I’ve got this letter, I haven’t read it. It might contain significant material but it does not impinge on my decision making.” I think we have to have a principle which is practical in the real world where the fact of the matter is, and unlike earlier times, judges receive communications and tribunals receive even more communications.

MS MORTIMER: Your Honour, our submission is that the approach which is encapsulated in Kioa and really goes to the capacity of information to influence is perfectly practical and perfectly workable. It requires the decision-maker to ask himself or herself that question prospectively.

KIRBY J: But it does mean that they have to postpone the giving of the decision in order to tell the litigant, “I’ve received this communication. I haven’t read it”, or “I’ve read and it doesn’t affect me, and do you have anything to say about it”, and that, as it were, holds up the works for a matter of days, weeks, or even more.

MS MORTIMER: Your Honour, that is something that may depend on the timing of the receipt of the information. The timing of the receipt of the information is a point that we make something of in the sense that we say that is when the obligation to afford procedural fairness crystallises. When the information is received, the decision-maker has to decide, “What am I going to do with it, how am I going to handle it?” Now, that decision cannot, in our submission, be put off until the decision-maker concludes the exercise and then looks back and says, “Well, do I really need that information? Can I do without it in my decision?” That, we say, inverts the whole process and it ignores two of the three factors that are very important in procedural fairness. It ignores the possibility of subconscious influence and it ignores the principles about the appearance of fairness.

So we say that it is a very workable concept. It is one that has been applied regularly and without dissent ever since Kioa was decided, and we say that what this Full Court decision does is to introduce an entirely new approach, a different kind of approach that facilitates decision-makers waiting, withholding the information and then asking themselves at the end, once they have concluded their inquiry, “Do I need to rely on it?”

HAYNE J: What characterisation is implicit in those propositions about the nature of the information? Is there implicit in your propositions the characterisation of the information as, if we take Justice Brennan’s words, “credible, relevant and significant”?

MS MORTIMER: No, your Honour, because one must not stop there. It is to the decision to be made.

HAYNE J: Yes.

MS MORTIMER: So that what is implicit in the proposition that we put is that a prospective assessment has to be made of the capacity of the information to influence, not whether it does.

HAYNE J: So the characterisation is this information may be credible, may be relevant, may be significant. Is that right?

MS MORTIMER: Yes, your Honour.

GUMMOW J: There is a judgment of Justice Allsop which I found very useful which does discuss Kioa in the Health Funds Case.

MS MORTIMER: NIB Health Funds. Yes, your Honour.

GUMMOW J: Yes[2002] FCA 40; , 115 FCR 561 at 583 and following. His Honour sets out the passage in Kioa and says - about paragraph 84 of the judgment:

as the last sentence of the passage shows, the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision, but rather on the appearance of a fair hearing and the maintenance of confidence in the administrative process and judicial review of it.

That is the point, is it not?

MS MORTIMER: That is the point, your Honour. We relied on this case before the judge at first instance and we relied on it on appeal and we say it is an orthodox statement of the approach and it is one that the focus by the majority of the Full Court in our case on the disavowal subverts.

GUMMOW J: Yes.

KIRBY J: Take the matter that I raised with you. If I say I have formed the view that I should get the Registrar to return the letter and to bring the fact that I received it to the notice of the respondents, but if I say I have not opened the letter and have not read it, surely that is the end of the inquiry in that matter. Surely you do not then say, “Open it up and see if it might have been opened up secretly or the staff might have opened it up and it doesn’t look good”.

MS MORTIMER: In a given circumstance, your Honour, that may well be sufficient to discharge an obligation of procedural fairness.

KIRBY J: That means every case really depends on its own facts and circumstances.

MS MORTIMER: And that itself is well established also, your Honour, in our submission. The problem that we say in principle - - -

KIRBY J: It also means that you do take into account what the Tribunal says, at least to some extent and on some matters, as final in the issue.

MS MORTIMER: In our submission, not as final, your Honour, that is the point, and not as capable of presumably discharging the obligation. This is a circumstance where, on the facts, the letter was received by the Tribunal and there is nothing to indicate that it was not read. Indeed, in our submission, the reasons for judgment indicate that it was read and that it was taken into account. What the decision-maker did, having taken it into account, that is it was in the universe of material that he considered, was, he said, “I can’t test it, so I give it no weight”. That is a very different circumstance - - -

HAYNE J: Does that mean I cannot test it and decide whether it is credible? Is that a possible understanding? Can I just expose where the line of questioning might go and do so by reference to the NIB Health Funds Case [2002] FCA 40; 115 FCR 561. If you had that available to you, it might help. If you go to page 583 and the passage at paragraph 84 to which your attention was drawn earlier, his Honour there says:

This passage indicates that it is not sufficient to seek to shut out or disavow the relevance of material if it is –

not “may be” –

“credible, relevant and significant” and if it is –

not “may be” –

material of the kind that creates a real risk of prejudice –

There is a couple of questions bound up in that proposition that need to be exposed and answered. One, who is making the judgment about “credible, relevant and significant”; the decision-maker or the court on judicial review? Reflecting on the answer to be given to that question is the use of this expression, “credible”. How is the court on judicial review going to be assessing, to take the facts of this case or a case like it, the credibility of a so-called dob-in letter? Is that to suggest that really the question becomes one about what the decision-maker assessed as either actually or possibly credible, relevant and significant? Do you see the kinds of questions that are provoked?

MS MORTIMER: I do, your Honour, and in my submission the answer is that the task is first and foremost one for the decision-maker because it is on the decision-maker that the obligation to afford procedural fairness is disclosed, so what Justice Brennan’s approach and the whole approach about the capacity to influence suggests is that the decision-maker must ask himself or herself, “Well, I have this information. It has been communicated to me. Is it credible, relevant or significant?” That is one well-worn phrase, but does it have the capacity - - -

GUMMOW J: No, but what is the contents of “credible”?

MS MORTIMER: “Credible”, in our submission, your Honour, means no more than the characterisation given to it by Justice Gray in the Full Court in this case, not incredible, not on its face fanciful or capable of being disbelieved.

HAYNE J: Capable of being believed.

MS MORTIMER: Capable of being believed, yes, your Honour. So it is very much an exercise for the decision-maker looking at the very material that he or she is asking herself or himself the question about.

GUMMOW J: What about the second “is”:

is material of the kind that creates a real risk of prejudice –

Is that for the decision-maker or for the reviewing body on judicial review?

MS MORTIMER: Your Honour, with great respect to Justice Allsop, it may be that it is not really an “and” and that:

material of the kind that creates a real risk of prejudice –

is simply another way of expressing what Justice Brennan’s phrase in Kioa means. It is important, your Honours, that there not be seen to be, in our submission, a formula about this because at issue is the question of the capacity of the information. What those three adjectives do is to say that they are pointers towards the capacity of the information to influence someone just as to say does the material create a real risk of prejudice, albeit subconscious, is another way, a way that appears to come from Lord Denning’s judgment in Kanda, a way to indicate to the decision-maker where the line ought to be drawn about disclosure or non-disclosure.

KIRBY J: Did the judges in the Full Court have access to the actual letter itself, or not?

MS MORTIMER: Yes, your Honour.

KIRBY J: Did they look at it? Did they examine it?

MS MORTIMER: Yes.

KIRBY J: Because sometimes these case take colour from the factual circumstances.

MS MORTIMER: Your Honour, in our submission that is absolutely the case.

KIRBY J: Do you ask us to look at it because I gather it is in Court and available to us?

MS MORTIMER: We do. It is in Court. It is available. It has not been reproduced in the appeal book to be filed.

GLEESON CJ: And you seek an order in relation to confidentiality, is that right?

MS MORTIMER: Your Honour, my learned friend seeks an order in relation to confidentiality. We accept that as a matter for the Court and we accept that – there would be an irony in us asking for it, your Honour, because we say we ought to have the letter but we accept that until that question is finally disposed of a cautious approach to distribution of the letter is appropriate.

KIRBY J: Do I understand from that answer that you and your client have not had access to the letter, you have not seen the actual letter?

MS MORTIMER: I have had access to the letter. My junior has had access. My client has not, your Honour. We have given undertakings. So in due course, yes, if the Court pleases, my learned friend has kindly prepared copies and they are in envelopes and we would ask the Court to look at it. As we say that again is a very orthodox approach to a court on review deciding whether the obligation of procedural fairness has been discharged. You look at the material. To answer your Honour Justice Hayne’s – the second part of that question – the same questions are to be asked by the court on review when it is deciding whether the obligation to afford procedural fairness has been discharged. No different test applies.

We say that is another “vice”, if I can use that word, with the way the majority in the Full Court approached it because they did turn the exercise into a different one and they did say that on review an applicant has to prove that the disavowal should not be accepted. So they did posit a very different approach between the decision-maker – what the decision-maker asks himself or herself and what the Court on review asks.

If it is convenient, if the Court pleases, there are four factual matters that I just want to emphasise because we say that they go to the circumstances. There is no dispute that the facts are as we have set out in our summary, so I do not propose to take the Court to them, but I emphasise these four things.

The first is that this, in our submission, was a case where the material before the Tribunal disclosed that there was a high level of distrust and political dissension in the Eritrean community in Australia and overseas outside Eritrea, that is, there was a lot of material before the Court – and I will give your Honours the appeal book references – about who could and could not be trusted, who was working politically for whom. They were sensitive and volatile questions and they came up in a number of ways before the Tribunal. They came up firstly in terms of the applicant’s reluctance to use an Eritrean interpreter. They came up in the evidence given by witnesses in support of the applicant.

One of the witnesses asked expressly for confidentiality over his identity. Now, that request was ignored by the Tribunal. No direction was given about that. So, in our submission, that factual circumstance demonstrates that the – and this will be made good when your Honours see the letter – where the content of the letter also suggests that kind of distrust, that kind of backstabbing, then that is a very significant factor in terms of assessing its capacity to influence a decision-maker.

KIRBY J: So that I can assess your submission, what in your submission ought the Tribunal to have done when it received the letter? Exactly what should it have done?

MS MORTIMER: It ought to have disclosed the letter in its – at its highest our submission is it ought to have disclosed the letter in its entirety to the applicant and to his advisers. Now, there is a question, your Honour, whether there is attaching to the letter an obligation of confidence in any respect and the justices below differed in their conclusions about that. Justice Merkel and Justice Gray said no, on its face it does not meet the tests of confidential information. So we accept that that may be a question that the decision-maker has to ask himself.

KIRBY J: In your submission, does disclosing the letter identify the correspondent?

MS MORTIMER: It does, your Honour. Disclosing the letter in its entirety does that.

GLEESON CJ: Well, the statement about that is at page 136, line 25.

MS MORTIMER: Yes, your Honour, that is right.

KIRBY J: Might that not raise a question, quite apart from the particular letter, as to the drying up of sources in cases of this kind if it becomes known as a general rule that the Tribunal makes letters that are sent to it or to the Department available to the person the subject of the letter?

MS MORTIMER: I accept that, your Honour, and that is why I qualified the submission by saying that it is a question for the decision-maker looking at the particular piece of information, whether he or she feels that it has attached to it an obligation of confidence or that there are public interest reasons why the disclosure needs to take a form other than simply handing over the letter.

KIRBY J: Surely it would be sufficient to disclose the general character of the material to ask for any submissions that the person affected wishes to place and to assert that it will be disregarded and will not be taken into account in the decision. Surely that would be sufficient, but giving the person affected the opportunity to put any submission on the appearance of justice point so that they could say, “Well, I accept what you say that you will not take it into account but my submission would be that for the appearance of a just decision in the case you should take no further part in it and it should be heard by someone else”. Then the decision-maker has to make a decision as to whether to agree to that or not.

MS MORTIMER: Your Honour, that is one option. We would submit though that to give disclosure and simultaneously to assure the person affected that you do not propose to take it into account might well be premature.

HAYNE J: But does not the debate at this level of abstraction reveal a difficulty that is presented by articulating it in that way, namely, are there not built into the propositions that you advance assumptions about relevance and significance? Let me put to you two different kinds of dob-in letter that might be received. “Don’t believe applicant X. He will tell you that he is not working in Australia but I know for a fact he’s working illegally and he’s therefore a person not to be believed”. That would be a very different dob-in letter from, “Do not believe X when he says that he is likely to suffer political persecution in country of origin because X has this connection to the existing regime or the former regime of that country”. The relevance and significance to be attached to those two forms of letter differ greatly. The steps that the Tribunal might take in response to them may differ greatly, may they not? In one, information might be relevant. In another, source of information might be critical.

MS MORTIMER: I accept that, your Honour, and I accept that it depends entirely on the particular information, but in this area one of the things that, in my submission, must be steadily borne in mind is that these are decisions that hinge very much on credibility very frequently. So that although - - -

KIRBY J: I did not hear. They depend very much on?

MS MORTIMER: They hinge very much on credibility, your Honour. The credibility of the applicant is usually central. So that when one assesses the character of the information, its capacity to influence, that has two limbs, in our submission. The first limb is its capacity to influence the Tribunal’s assessment of credibility. The second is its capacity to influence the Tribunal’s assessment of the factual basis for the applicant’s claims.

Both of those in this area, in our submission, are important. It may be one might be able to conceive of a case where credibility is not an issue, for example, third party protection where there is a third country protection kind of situation, and the Tribunal is able to say, “I totally accept what you say about what happened to you in your country and your fears of going back there but you have protection in a third country”.

Now, if the first kind of dob-in letter was to come to that decision-maker, the decision-maker may be able to say, “I cannot see in making my decision how the credibility of this applicant is going to be relevant, so that therefore whether he has lied to Australian authorities does not have the capacity to influence my decision”. That may be an outcome that, on review, a court would find does not breach the rules of procedural fairness.

HAYNE J: May affect outcome in this field of discourse by affecting the conclusion about subjective fear or affecting the conclusion about objective reality of that fear of persecution? The debate may be skewed by the fact that time after time we read the Tribunal’s reasons and credibility plays the part that we have all seen in so many of these sets of reasons but where should credibility be falling in this field of discourse? To what question is it going?

MS MORTIMER: Your Honour, it goes to two questions which are linked. It goes to whether the Tribunal accepts an applicant genuinely holds a subjective fear, but linked to that is how much of the applicant’s story the Tribunal believes because the Tribunal may well be able to say “Well, I accept you have a subjective fear. I do not accept that all these things have happened to you”. So in a sense the Tribunal is saying your fear is irrational, has no basis in fact. So that credibility may come in in two ways but undoubtedly, in our submission, it almost always comes in.

Again, in our submission, that is why the approach that Justice Gray took in the Full Court in this case is right, that is, that the two other factors aside from actual influence of the information, the possibility of subconscious influence and the appearance of fairness are very important, in our submission. If that is right – and we say that that is an approach that has not, to date, really been questioned – if that is right then in decision making where credibility comes up time and time again, those two factors about subconscious influence and appearance must be given real work to do and they can only be given real work to do by not presuming a disavowal of actual reliance is sufficient to discharge your obligation.

GUMMOW J: What is the relevant statutory framework? It is the Act at what date?

MS MORTIMER: It is the one that is contained in Reprint No 8, your Honour.

GUMMOW J: Yes, that is what we have, I think. Where does the Act set out the general powers of the Tribunal in the conduct of its procedures? There is a specific provision about confidential information, is there not?

MS MORTIMER: There is, your Honour, and I will come to those.

GUMMOW J: But that is not in point.

MS MORTIMER: It is not in point, no. None of the statutory restrictions or modifications on disclosure, in our submission, are in point or at issue in this case. Section 415 – is that the one that your Honour had in mind in terms of the exercise of all the powers?

GUMMOW J: This problem arises about the dob-in letter. Where does the Act indicate the charter of the Tribunal to deal with it in a procedural sense? It does not immediately appear to me that they deal with it by reference to principles of confidential information as a matter of private right between citizens outside the specific section.

MS MORTIMER: There are two sections, your Honour, that in a given circumstance, and we say not in this case, may be relevant. The first is section 424A because that as, this Court has recently held, requires a very prescriptive manner of disclosure and the Court differed on whether that was a continuing obligation or not. That is the case of SAAP.

GUMMOW J: Yes, I know, but somehow the theory is that that is not exhaustive. It follows from SAAP that 424A is not the only word on the subject.

MS MORTIMER: It follows from Miah, in our submission, your Honour, Miah and Aala and Muin and all the cases in which this Court has dealt with this version of the Act.

GUMMOW J: Yes, but they were pre-424A. What powers is the Tribunal exercising when it deals with this problem, putting aside 424A?

HEYDON J: Section 440.

MS MORTIMER: Section 440, in our submission, your Honour, is one of the provisions that is a distraction.

GUMMOW J: Why is that?

MS MORTIMER: Because that is a provision that deals with the further distribution of information once it has been disclosed. That is how all the judges in the Full Court characterised it and we say that is a correct characterisation. It is a suppression order process. It does not speak to the obligation of the Tribunal to disclose something to a person whose interests are affected.

GUMMOW J: In the exercise of what general powers of the Tribunal does it reach a very specific decision? We have this dob-in letter, we will not show it to the applicant because it has these problems about disclosure identity, but we will tell the applicant the substance of it. Now, in the exercise of what powers does the Tribunal approach the problem that way?

MS MORTIMER: The Tribunal, in my submission, is not exercising a specific statutory power. It is simply - - -

GUMMOW J: No, no, where is the general power? There is not one, is there?

MS MORTIMER: There is not one. There is not one. It is just complying with its obligations of procedural fairness which, on this version of the Act, the common law obligations apply to it. Now, there is a procedure that the Act contemplates could be employed and it was a subject matter of some discussion in the court below, and that is section 438. What that contemplates, if the Court pleases, is that there be a communication – if your Honours look at section 438(2) – from the secretary of the Department to the Tribunal that the document is one to which certain obligations might attach or to which certain significance attaches, and a certificate is given. Now, that could have happened in this case.

GUMMOW J: But it did not.

MS MORTIMER: It did not happen.

GUMMOW J: No.

MS MORTIMER: So we say that section 438 is not engaged.

GUMMOW J: But the question then becomes, in discharge of what is said to be this obligation to give procedural fairness, the source of which is a matter of some dispute from time to time – my view has always been it has to come out of the legislation, it does not float in the sky, but assuming it comes out of the legislation, the obligation to give procedural fairness, how is that then regulated in its discharge by private law notions of confidential information law? I just do not understand it. I am not saying you do not reach the result that you just tell the applicant the substance of what the dob-in letter says, but that just seems to me as part of the procedural fairness notion itself.

MS MORTIMER: That is so, your Honour. That is all we say. All we say is that there is no fixed method by which procedural fairness is given.

GUMMOW J: Yes, so it is always very case specific.

MS MORTIMER: It is very case specific, it is very flexible, it is intended to be so, and we say that - - -

GUMMOW J: Yes, but the Full Court seems to have got caught up in notions of private law confidentiality, has it not? Well, they quoted a judgment of mine which puzzled me a bit.

MS MORTIMER: They did, your Honour, they did, and that is because in triggering the operation of both the exceptions to 424A, that is what is non-disclosable information - - -

GUMMOW J: I understand 424A.

MS MORTIMER: And in triggering section 438, the notion of information received in confidence is incorporated into the Act and that seems to be how people have got distracted.

GUMMOW J: I understand that, but by definition we are outside that and by definition the Act is not exhaustive.

MS MORTIMER: Yes, your Honour, that is right.

GUMMOW J: Following the cases that say that.

MS MORTIMER: That is right. That is right. The Tribunal itself got a little tied up in knots, in our submission, about that. In its reference at appeal book 136 to “non-disclosable information”, which we say was a distraction, and in the making of the order under section 440. So we say that those are all distractions and our primary submission is that this reduces to very orthodox principles.

HAYNE J: Could the Tribunal lawfully have taken account of what was in the dob-in letter? The reason I ask is you start at 415, the powers. The powers:

exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

Does that throw you back to Subdivision AB of Division 3 of Part 2, sections 52 and following “Code of procedure for dealing fairly, efficiently and quickly with visa applications”? If it does throw you back to that is that setting the universe of material that may properly be taken into account by a decision-maker as being:

54 . . . all information in application –

. . .

55 Further information –

given by the applicant; 56, material the Minister has sought?

MS MORTIMER: Those are, in our submission, your Honour, powers but they do not necessarily limit the scope of the inquiry the Tribunal might make. The Tribunal’s task in section 414 is to review the decision. The decision is whether Australia owes protection obligations to an individual. The scope of that inquiry will be framed by the nature of the claims and the nature of the information and the nature of this Tribunal as, at least in large part, inquisitorial. In our submission, it follows that it may choose to get information from a variety of sources.

HAYNE J: I can understand it seeking information. Can it act on that which is volunteered to it unrequested?

MS MORTIMER: There is no statutory prohibition on it doing that, your Honour. The nature of the Tribunal, in our submission, would suggest that it is able to do that. What Justice Brennan has to say in Kioa about the nature of ex parte communications is that they are not per se irrelevant and his Honour was, in my submission, at pains to make it clear that he was not saying you cannot take them into account, it is simply a question of how you deal with them fairly in relation to the person that they adversely affect.

We say that if the common law rules of procedural fairness apply to the Tribunal that same kind of principle applies to this decision-maker and there is nothing in the statutory framework to suggest that it does not. If I can just return to emphasise the other three factual matters that I wanted to raise, but perhaps it is going to be a clearer submission, your Honours, if I ask your Honours to look at the letter while I emphasise those three facts.

GLEESON CJ: What is going to happen about this proposed order?

MS MORTIMER: Your Honour, my learned friend, Mr Cavanough, and I have two proposals, one which on his application would involve an order and one which would not and that is that we hand the letter up to your Honours and your Honours look at it and it need not be placed on the file. It is only if it is placed on the file of the Court and is otherwise therefore available for inspection that there might be a problem, particularly on the Minister’s point of view but it can be handed back.

KIRBY J: Proposal No 1 assumes that we have splendid memories and can remember it when we ultimately get to writing the reasons in this case.

MS MORTIMER: There is quite a detailed summary of it in Justice Merkel’s reasons, your Honour, and that is in fact something that my learned friend complained about on appeal - that it was too detailed. Your Honour, that is entirely a matter for the Court. We say that it can be handed up and if your Honours wish to retain it your Honours can retain it. It formed part of the record before both of the courts below.

KIRBY J: So we would all have to sit here like schoolboys and read it whilst the case is proceeding?

MS MORTIMER: Subsequently to that, in our submission, there is no impediment to your Honours retaining a copy of it, but if it is to be placed on the file then that is when the possibility of its further distribution and communication arises and that is the occasion on which an order might be made.

KIRBY J: My understanding of the Registrar’s note was that neither party had - or the parties were agreed that it should be available to the Justices and the Justices’ personal staff.

MS MORTIMER: That is so, your Honour.

KIRBY J: We have received much more confidential and secret information than this in my time on this and other courts.

MS MORTIMER: Your Honour, I am uncomfortable making the submission because it is at odds with our case.

GUMMOW J: Yes, we understand that.

MS MORTIMER: Our case is we should have it and my client should have it.

GLEESON CJ: But you are instructed, are you not, by the Victoria Legal Aid solicitor?

MS MORTIMER: Yes, your Honour.

GLEESON CJ: We have in front of us a document signed by your instructing solicitor saying, “We consent to the making of the following order”.

MS MORTIMER: That is so, your Honour. In the sense that it is said by my learned friend and his client that there ought to be restrictions on its publication while this issue is being determined by the Court. Out of an abundance of caution, we do not dissent from that course.

GLEESON CJ: Without going into the question of your motive for consenting, is it your submission that we should make an order in the form of the consent order that has been provided to us?

MS MORTIMER: If the Court wishes to retain a copy of the letter outside the hearing today, in my submission, that would be an appropriate course.

GUMMOW J: It depends what you mean by the Court retaining. We have appeal books with all sorts of papers handed up in them that do not appear in the Court file. Counsel are always punting things up.

KIRBY J: An awful lot of shredding is done. I think as I recollect it in a previous case, the Justices had a very confidential document in their Chambers and when they had finished with the use they would make of it, they had it shredded. It never went on the Court file at all. This is the leveller expedient.

MS MORTIMER: This is the leveller device, your Honour, that is so. We are content with that approach. If the Court sees that there is some problem with it - and the reason that we attempted to agree on a form of order was to avoid any argument about the form of the order – then the order might be made. We do not submit primarily it is necessary. I do not know if my learned friend wants to be heard on that issue, your Honour.

GLEESON CJ: Since we are being invited to consider making a consent order, you had better tell us what you say about that, Mr Cavanough.

MR CAVANOUGH: We would invite the Court on the first instance to accept the letter if it wishes to read it on the basis of the leveller expedient, as your Honour mentioned, that is to say, so that it does not go on the file and therefore the need for an order does not arise. But if there is a concern that the document ought to be, if you like, officially recorded in the record of the matter in the Court, then a form of order would be appropriate, in our respectful submission. The one that was handed up was designed at the time where the applicants were proposing to file their submissions which do become accessible to the public because they are put on the Court file, and under the rules it was necessary to have some measure in place ahead of that and that is why it is framed in the way it is. We have prepared a simpler form of order that would be appropriate – if it is more appropriate now. I have shown it to my learned friend and she is happy with that form of order.

GUMMOW J: I do not like making these orders if there is any other possibility.

GLEESON CJ: Why do we not first just look at the document and see whether, having looked at it, we need to go further.

MR CAVANOUGH: If your Honour pleases.

KIRBY J: Of course, Mr Cavanough, the Executive Government is a place of secrets. Courts are open places.

MR CAVANOUGH: I understand that entirely, your Honour.

KIRBY J: The use that is made of it really depends on the conscience of the judge respecting confidence but considering what has to be done in the pursuit of open justice, which is a hallmark of our system, including the Constitution.

MR CAVANOUGH: Absolutely, your Honour, and I am conscious very much of what was said in that regard in the John Fairfax Case 61 NSWLR by Chief Justice Spigelman in the recent analysis of those principles.

GLEESON CJ: All right, we have looked at the document. Go ahead with your argument, Ms Mortimer.

MS MORTIMER: If the Court pleases. I will just return briefly to the first factual circumstance that I referred to which is the amount of evidence before the Tribunal about the level of distrust in the Eritrean community and the issue of who could be trusted and who could not and who was on whose side. The appeal book references, if I can just give your Honours those, are to pages 3, 87, 100, 102, 103, 105 and 110 to 111.

In my submission, once the contents of this letter are taken into account it can be seen that there could be a basis for a person to have that kind of distrust and that the kinds of claims that the applicant was making about the schism that had occurred in the politics in Eritrea and the exposure for him of supporting someone that the President had sacked and then imprisoned becomes apparent, who one can trust and who one cannot and whose side one is on is obviously a very live issue.

In this case the applicant’s credibility was very relevant. It was addressed by the applicant’s adviser in submissions to the delegate and your Honours will find that at page 70 of the appeal book and following and it was dealt with in a reactive submission by the adviser after the RRT hearing at page 107 of the appeal book and perhaps if I can just ask your Honours to turn very briefly to that. Your Honours will see that the form of the submission is that obviously the dot points in italics are matters that the adviser has identified as of concern to the Tribunal after the hearing and is seeking to address those. The ones that are dealt with on page 107, the dot point that says:

That when interviewed by DIMA [the applicant] said he didn’t know of any problems –

that is a credibility issue. The submission immediately above that that notes:

the Tribunal’s scepticism that the applicant could be at risk of persecution –

indicates an appreciation that the applicant’s credibility was in issue. The final dot point on that page:

The Applicant’s familiarity with –

a document or lack of familiarity. Again, that indicates the Tribunal was sceptical about the applicant’s claims. So too the dot points on page 108, the:

failure to submit supporting material from the internet -

which the adviser deals with.

In the reasons, one of the key findings of the Tribunal – and your Honours will find that at page 133 at about point 10 – was:

that the applicant has exaggerated his association with Sheriffo –

The Tribunal characterises the claim, in the middle of that paragraph, as being made belatedly. The tribunal rejects both evidence from the applicant that he had supported with country information, that other people had been arrested and were continuing to be arrested – and I will come to the last part of that paragraph in a minute about the applicant’s activities in Australia. It cannot be doubted, in our submission, that the credibility of the applicant was a key factor to be assessed by the Tribunal, and the contents of this letter, in our submission, are capable of influencing that assessment in a number of ways. Firstly, because the content of the letter suggests activities by the applicant that are – and I am trying to use neutral phrases, your Honours – highly unlawful, subject to serious condemnation. It also suggests that the - - -

KIRBY J: They are not specific to dishonesty, except maybe in providing a motive for dishonesty.

MS MORTIMER: The second is, your Honour. The one that is numbered 2 in that letter alleges that the entire story that the applicant is presenting to the Tribunal is not true, because it alleges that the applicant’s presence in Australia and his activities here are designed for a different purpose entirely, one that is supportive of the government.

GLEESON CJ: Justice Merkel, at page 149, found:

that the information contained in the letter was credible –

What did his Honour mean by that and upon what did he base that finding?

MS MORTIMER: If your Honour looks at point 15 in Justice Merkel’s reasons:

That it was written by a person who claimed to have a personal association with the applicants and to be in a position to provide the information contained in it, some of which was said to have been provided by the male applicant to the author.

HEYDON J: Do you mean paragraph 25 on page 148?

MS MORTIMER: Yes, your Honour, that is right. The contents of this document, in our submission, are quite specific. It is not anonymous. It explains a very close relationship with the applicant from his arrival in Australia. It gives detailed information, some of which corresponds to information that was already before the decision-maker. If your Honours look at appeal book page 18, and if your Honours look under the heading “Previous addresses”, your Honours will see correspondence between what the applicant was saying in terms of where he said he had been and what this letter is alleging, although this letter alleges that his activities in that place were of an entirely different nature. So if one takes the approach to what “credible” means that Justice Gray took, which is not fanciful, not remote - - -

GUMMOW J: That seems to be what Justice Merkel said too on page 148, paragraph 25, that Justice Heydon referred to.

MS MORTIMER: Yes, your Honour, that is right.

GUMMOW J:

there is nothing about the nature of the information contained in the letter that suggests that it lacks credibility. Finally, the Tribunal did not suggest the information was not credible.

GLEESON CJ: How could you fairly give an applicant an opportunity to meet the allegation contained in the letter without disclosing the identity of the author of the letter? A letter that made an allegation of this kind about a person might have weight or no weight depending upon the apparent source of the information. If the letter came from a person, for example, known by the Tribunal to be a crank-letter writer, then that might be one thing, but how could you give your client an opportunity to meet this allegation without saying, “The author of the allegation is X”?

MS MORTIMER: Your Honour, the credibility of the information falls to be assessed by the decision-maker in deciding whether to disclose. Once that assessment has been conducted, then it is not really a question for the applicant what the source is. That may not be a necessary part of the disclosure.

GLEESON CJ: It may or may not. The applicant will never know. The applicant might say, “That person is my sworn enemy. That’s a person with whom I have been in conflict for years”.

MS MORTIMER: That is so.

GLEESON CJ: If you do not tell the applicant the identity of the author of the letter, the applicant is still going to be complaining, is he not, that he has not had a fair opportunity to meet the allegation?

MS MORTIMER: He might, your Honour. The prospects of success of his complaint might be diminished if the substance of it is put. That is, for example, “A person who claims to be close to you, to know you personally, has told me this and he says that you were doing X and Y and I want to know what you say about that”.

GLEESON CJ: Let me take an example that has nothing to do with the facts of the present case. Let us suppose a person who has come to this country from Bangladesh claims to have been involved in the conflict between the Tamil organisation and somebody else there and makes an allegation of a well-founded fear of persecution if he returns to Bangladesh, and a letter is written to the Tribunal by a woman who says, “I am that applicant’s wife and I can assure you that he has never been involved in any of the conflicts that he claims to have been involved in and he told me he was coming to Australia in the hope that he’d earn a better living here”.

If you did not disclose to the applicant that the author of that letter was the applicant’s wife, you might deprive the applicant of the opportunity of saying, “That woman and I have been involved in proceedings in the Family Court for the last two years and she told me last time I saw her in court that she was going to ensure that my application for a visa didn’t succeed”.

MS MORTIMER: I accept that, your Honour, and it must come down on each and every case to a balancing exercise and to an assessment by the decision-maker of how “credible, relevant and significant” to the decision that he has to make this information is. The more it meets that test, the larger that consideration is in order to discharge his duty properly, the less weight he may have to give to the possibility of conflict arising from his disclosure or to some principle of public interest that ordinarily might say you want to encourage the giving of information to decision-makers.

So it is always going to be a balancing exercise that comes back to the prospective assessment by the decision-maker, having looked at what the information says about, “How critical is it likely to be to what I have to decide?” If it is very central and you cannot give the applicant a proper opportunity to comment without revealing the identity of the author, then in a given case that may be what you have to do.

GLEESON CJ: How would you know, in the example I gave, without revealing the identity of the author to the applicant? The Tribunal may not know that the applicant has been involved in a matrimonial dispute.

MS MORTIMER: And that piece of information, your Honour, may be of assistance to the Tribunal in deciding what to do with the information. That is part of the reason that procedural fairness exists. It is because the decision-maker does not always appreciate the full ramifications of the piece of information. They can make a prospective assessment about its capacity but until it is disclosed its full significance is not known.

GLEESON CJ: What I am suggesting to you is that it is not exceptional but on the contrary it is the ordinary case that when adverse personal information is before the Tribunal, if fairness requires an opportunity to the applicant to deal with the information, ordinarily fairness would also require informing the applicant of the source of the information.

MS MORTIMER: It may, your Honour, and that is why the test for restricting disclosure because of an obligation of confidence is quite high. It comes back to what was the intention of the author? Did the author intend that the information not be passed on? One of the things that his Honour Justice Gray points out in this case is, if you are sending information to a decision-maker and saying this is important and you ought to take it into account in making a decision about this person, it may not be a ready inference to draw that the communicator of that information does not expect you to reveal it.

KIRBY J: It is natural that the Department would want to protect confidential sources like this because it sends a flow of information that comes in, but your point is, if in the end it becomes important or appears possibly to be important, then the expectation of confidentiality just has to give way to due process of law and fairness in the Tribunal’s procedures and decision-making because otherwise it makes a decision on secret information, and that is the work of the French revolutionary tribunals, not of a tribunal in this country.

MS MORTIMER: That is so, your Honour, so that the public interest is, of course, a factor but it is one to be thrown into the balance and procedural fairness asks about the treatment of an individual. Again, I emphasise that in these kinds of cases the decision at issue for the individual is a very critical one. The claims the individual makes are of risk to life and liberty and so that also has to be thrown into the balance. So there is no easy answer to your Honour’s Justice Gleeson’s question.

GUMMOW J: But is it your submission that you should have been given this letter, not received, in some form or other, the substance of the three points that it makes?

MS MORTIMER: That is so, your Honour. Our primary submission is we ought to have been given the letter and that there is nothing in the letter that ought to satisfy a decision-maker that the decision-maker is bound by some obligation of confidence or that there is an overriding public interest.

GUMMOW J: I do not think that is the right way to do it. There is an obligation to administer the Act and there is a public interest in the administration of the Act. Law of confidence I do not think has anything to do with it. The content of natural justice has to accommodate the requirements of the Act. It springs out of the Act, as far as I see it, and Sir Gerard used to see it to. It comes out of the Act and in the interest in due administration must depend to some degree upon these unpleasant practices, if you like, of dobbing-in. What is your secondary submission though, your fallback position?

MS MORTIMER: The fallback position, your Honour, is that procedural fairness - - -

GUMMOW J: Do you see what I mean? Procedural fairness is not anterior to the Act; it has to work with the Act.

MS MORTIMER: Yes, your Honour, I accept that.

GUMMOW J: And one of the objectives of the Act is as accurate as can be decision-making as to whether these people are entitled to visas because if they make out the criteria they have to be given the visa.

MS MORTIMER: Yes, your Honour, that is so. In that context the principal consideration is whether the criteria set for the visa are met.

GUMMOW J: Yes.

MS MORTIMER: The subsidiary consideration might be, in that context, the source of the information that you need to take into account.

HAYNE J: Does it not lead then to this apparent middle ground that in a case where the due administration of the Act may need to accept that a flow of anonymous information is not to be actively discouraged that the decision-maker says, “I have received information from a person who does not wish to have identity revealed to you who says, A, B, C. What do you say as to that?” And then the decision-maker goes on to say, perhaps at the time of decision-making, “The weight I can give to this information is much affected by the fact that necessarily it is untested.”

Now, ordinarily that may mean that the decision-maker is largely discarding in the process of decision-making, ultimately, the anonymous letter because of the incapacity to test it but, nonetheless, fairness is done, so far as it can be, for the applicant by saying, “Look, somebody who does not want to be known tells me about you facts A, B, C. What do you say as to that?”

MS MORTIMER: That is a possible method by which the obligation could be observed, your Honour, but the Act contemplates that if there are concerns within the Department or by the Secretary – to go back to this issue about public interest or the need to preserve this – section 438 is directed precisely to that circumstance. It enables a certificate to be given to the – but, interestingly, and importantly, in our submission, what section 438(3)(b) contemplates is disclosure to an applicant.

So even where the Tribunal has been informed by the Secretary that this particular piece of information has attached to it a significance that means its disclosure needs to be dealt with carefully, the Act itself, the scheme itself contemplates the Tribunal can still give it to an applicant but imposes a restriction on its further distribution by subsection (4) by requiring a Tribunal to make, in essence, a suppression order over its further communication.

This is not a statutory scheme, in our submission, in general that gives any pre-eminence to withholding information. It does not do that, even in a circumstance where there is a suggestion from the secretary that the information has some particular quality.

KIRBY J: Now, 438 applied at the relevant time, did it? It was in force at the relevant time?

MS MORTIMER: It was in force at the relevant time.

KIRBY J: You say that is a procedure that could have been used in this case but was not?

MS MORTIMER: That is so, your Honour.

KIRBY J: Well, why would one not infer that where the Parliament has provided a procedure which deals with a particular issue of confidential information the purpose of the Parliament was that in other cases where the procedure was not enlisted the ordinary principle of disclosure would apply?

MS MORTIMER: That is an available inference, your Honour, and therefore in the balancing the decision-maker must take into account how the Act requires him or her to operate, what restrictions it imposes, and that reasoning is available. The Act that imposes a - - -

KIRBY J: It depends a bit on the resolution of an issue which has not yet been resolved in this Court, which is the difference of the view between Justice Brennan and other Justices. Justice Brennan said you have to draw the natural justice principles out of the statute, it is, as it were, written between the lines of the statute, whereas others have said there is a common law of natural justice that hovers over the statute and unless the statute has excluded it you just bring in all the principles of natural justice. It is a difference of approach. It does not matter much in the result.

MS MORTIMER: Yes, your Honour, we do not invite resolution of that in this case in the sense that we say that the authorities are clear enough in this Court that, at least on this version of the Act, putting to one side the effect of the new section 422B, common law rules of procedural fairness applied, and the Tribunal’s obligations were not restricted to what is written in the statute.

KIRBY J: Of course, what one could do in a case like this is to endeavour, as far as possible, to make the information available whilst not necessarily disclosing the identity of the writer, though it may be that the recipient will jump to a conclusion.

MS MORTIMER: That is so, your Honour, and as I endeavoured to point out in my answer to his Honour Chief Justice Gleeson, it is a balancing exercise, we accept that. In this case, because of the nature of the information and because of the potential importance of its source, firstly to whether the Tribunal decides to place any weight on it and what kind of weight, but also to the nature of the allegations made, the whole of the letter needed to be disclosed. There is nothing, in our submission, in its content that suggests that the author expected, or was entitled to expect, that it would not be.

KIRBY J: Well, you say that, but courts have to be a little bit careful here (a) about the flow of information to the Department, which is highly dependent on materials that are not going to be disclosed by applicants. That is one concern. Another might be, in particular cases, that disclosure of the name or identity of a person could lead to serious risks to that person. I mean, some people in a refugee situation – I am not saying your client – are in a very desperate position.

MS MORTIMER: Your Honour, I accept that. Indeed, that was the assumption the Tribunal made in this case. If your Honours look at the page of the reasons which deals with why the direction under section 440 was necessary, that is at page 136.

GUMMOW J: They deal with 438 first.

MS MORTIMER: No, your Honour, because there was no certificate.

GUMMOW J: But there does not have to be, does there? It is disjunctive, is it not? Is not 438(1) disjunctive?

MS MORTIMER: Yes, it is, your Honour.

GUMMOW J: Well, why did not 438 apply, in particular 438(1)(b) plus 438(3) and then 438(4)?

MS MORTIMER: The precondition to the application of subsection (3) is the notification in subsection (2). That process did not happen.

HEYDON J: Do we know that for sure or is it simply that on the face - - -

MS MORTIMER: I understand it to be common ground, your Honour.

HEYDON J: It is not just a question of silence on the part of the Tribunal?

MS MORTIMER: Your Honour, my recollection of the way the argument proceeded in the Full Court – and my learned friend Mr Cavanough made that argument, so he will correct me if I am wrong – was that there had been some investigation of whether that was in fact the case.

GUMMOW J: Is the point that 438 does not bite because 438 is talking about what comes to the Tribunal up from the Department? This was a disclosure by communication to the Tribunal itself from outside.

MS MORTIMER: No, your Honour, it was not. It was a letter that was received by the Department and forwarded to the Tribunal.

GUMMOW J: Yes. There was a default in the Department’s procedures then, was there, because they did not comply with 438(2)?

MS MORTIMER: There are two possibilities, your Honour.

GUMMOW J: How then can they rely on their non-compliance with the Act?

MS MORTIMER: That is one possibility, your Honour. The other is that when this information was received by the Department, it was not thought to fall within 438(1)(b).

GUMMOW J: But it did on one view of it. The letter says so, does it not? The last sentence of the letter talks about confident.

MS MORTIMER: That, in our submission, is equivocal.

HAYNE J: What could it mean other than confident?

MS MORTIMER: It depends on what is meant by “secret” – secret from whom? “Don’t spread it around generally. I don’t want my name bandied around to everybody in the Department”. There are a number of levels at which the author of the letter might have been saying to the Department, “You should keep it secret”. It cannot be, in our submission, the intention of the author that it not be communicated at all.

GUMMOW J: The author cannot have attributed a knowledge of the law of confidential disclosures.

MS MORTIMER: No, your Honour.

GUMMOW J: The word “secret” is used by lay people to convey these notions. Anyhow, you do not want us to rely on it but it seems to me if 438(1)(b) did bite and the Department then failed to take the step, what is the requirement under the Act in 438(2)?

MS MORTIMER: That there be a notification in writing drawing the Tribunal’s attention to the application of the section and that is understandable because the rest of the section then confers a discretion on the Tribunal so the Tribunal has to understand that the discretion conferred on it is triggered - - -

GLEESON CJ: Section 438 is an empowering provision, is it not?

MS MORTIMER: Yes, your Honour.

GLEESON CJ: It is a provision that empowers the Tribunal, in certain circumstances, to have regard to information which is not going to be disclosed to the applicant.

MS MORTIMER: Yes.

GLEESON CJ: But what happens if, in a given case, as apparently this case, the Tribunal says, “I am not for the purpose of the exercise of my powers going to have regard to the matter contained in the document”?

MS MORTIMER: Is your Honour asking what happens in terms of section 438?

GLEESON CJ: If the Tribunal says that then section 438 has no role to play, does it? Section 438 works a certain consequence in a case in which the Tribunal wants to have regard to information which is not available to the applicant. What does section 438 have to do with a case in which the Tribunal is not having regard to the information?

MS MORTIMER: It does not intersect with it, your Honour. It may be that section 438 and (1)(b), in particular, is not necessarily directed at information not available to the applicant. Information may be given in confidence in circumstances where the applicant may be aware of it for other reasons, for example, if it has to do with other proceedings where there has been confidential evidence given and the applicant was made aware of it but there was otherwise a suppression order over it. The point I am trying to make, your Honour, is that 438 may deal with circumstances wider than the circumstance where information is not available to an applicant.

GLEESON CJ: Yes, but what it does – the legal effect of section 438 is in subsections (3) and (4), is it not?

MS MORTIMER: Yes.

GLEESON CJ: Subsection (3) is a section that empowers the Tribunal to have regard to something and subsection (4) is a section that obliges the Tribunal to give a certain direction in certain circumstances.

MS MORTIMER: Yes.

GLEESON CJ: But if you look at page 136 in this case the Tribunal said, presumably truthfully, “I am not going to have regard to this information”.

MS MORTIMER: The Tribunal said, your Honour, “I give it no weight”. The Tribunal had already, in our submission, had regard to it. The Tribunal had already put it into the mix and then said, “I am not actually relying on it as a reason for my decision”. That is evident from the last sentence.

HEYDON J: Where did it put it into the mix, which page reveals it as having been put into the mix?

MS MORTIMER: Because, your Honour, it was before it, that paragraph makes it clear that it had read it and the Tribunal then makes an assumption in the following paragraph that disclosure might expose the author to serious harm. There is no basis other than the content of the letter for that assumption. The letter says something about the applicant’s conduct in the past.

HEYDON J: But the problem is that for some pages the Tribunal has been going through various claims, various items of material and it is trying to arrive at certain findings. There is no statement there about the contents of this letter.

MS MORTIMER: There is no express statement, that is so, your Honour, but that is in part our point. Some of the findings that the Tribunal makes, for example, the ones at page 134 at about point 26 onwards about the applicant’s involvement in activities with government officials here, is something that the letter deals with.

HEYDON J: But I thought you accepted just after you indicated the three propositions not in dispute at the start that there was a sincere, as it were, accurate, express disavowal. In other words, we must take not just at face value but at full value what the Tribunal said on page 136, line 10. If it is right that it gave the matter no weight then it cannot be said that at earlier pages it has given the matter weight or included it in the mix.

MS MORTIMER: Your Honour, I may not have made clear the distinction I was trying make which is between actual reliance on something. That is what the disavowal goes to. The disavowal says, “I do not in fact rely on that piece of information for the findings I have made”. It says nothing, and in our submission, can say nothing about subconscious influence. That is something that one can only discern from circumstances.

HEYDON J: I see. It was taken into the mix because of a subconscious influence. That is your contention.

MS MORTIMER: That is open, your Honour, but it was taken into the mix in the sense that it was read. Contrast with the example that Justice Kirby put to me at the start of the argument - - -

HEYDON J: A judge often reads or hears inadmissible evidence and then rejects it – sometimes it is admitted – and then later on the judge says for various reasons I give it no weight. That is to take it out of the judicial mix. Now, you say something different happened here?

MS MORTIMER: No, your Honour, but it has been in. You see, it is - - -

GUMMOW J: Tribunals are not judges and it is not always tactful to say so but the principles of natural justice have to be accommodated to the nature of the body deciding it. These need not be professional lawyers, they can be lay people.

MS MORTIMER: They need not be, your Honour. The overwhelming - - -

GUMMOW J: Judges are trained in these matters. That is why long periods of time before they become judges, hopefully. If they are not they acquire it soon after they are appointed. Tribunal members are not in that dimension.

MS MORTIMER: No, they are not, your Honour. We accept that. The distinction we seek to make is between accepting, as we do, that what an express disavowal like this says is, “I did not actually rely on the material consciously in reaching my findings”. We say it goes no further than that and that is not the same thing as the considerations that compel disclosure.

GUMMOW J: It goes back to that passage that Justice Allsop was referring to in Kioa v West.

MS MORTIMER: Yes, your Honour, it does.

GUMMOW J: The rationale for the rule.

MS MORTIMER: Exactly, it does.

GUMMOW J: It is the appearance of it.

MS MORTIMER: Yes, the appearance and the possibility of subconscious influence.

GUMMOW J: Not the outcome.

MS MORTIMER: That is right, your Honour, that is right and it goes back to it being a prospective exercise.

HAYNE J: Now, how does that content – affording that content to natural justice in this particular kind of decision under this Act accommodate the explicit treatment we find in 438 of what may be done with documents received in confidence?

GUMMOW J: See, 438 may be the starting point. It may not necessarily be the ending point, but it may be the starting point for considering the content of natural justice.

MS MORTIMER: If it applies, your Honour, its provisions will affect the content.

KIRBY J: Well, one way possibly of reading it is to infer that Parliament, recognising that tribunals receiving secret or confidential information is something out of the ordinary in this country and something that has disadvantages and that, therefore, if it is to be done, if the Tribunal is going to receive in any way material of this kind, a particular procedure has to be followed, if it comes from the Department, at least, or the Minister, and if you do not follow it you just do not get the protection that Parliament has provided for the limited types of cases where the procedure is observed.

MS MORTIMER: That is so, your Honour.

KIRBY J: I mean, we have not in this country had tribunals and courts that receive secret material. It is offensive to our notion of open justice.

MS MORTIMER: It may be possible still, your Honour, to make an argument if there were non-disclosure after the observance of the procedures in section 438. It may be possible to make an argument that there was a denial of procedural fairness, but that argument would be very difficult because the express provisions of the statute in this case will affect the content of the obligation.

KIRBY J: The question then is, what content is there in the word “may” in 438(3)(b), “may . . . disclose any matter”. If it does disclose, then (4) operates and it must give a direction, but what controls the exercise of the power to disclose any matter to the applicant?

HAYNE J: And is it to be read as “must disclose” if (3)(a) is engaged by concluding “I may have regard”, “I will have regard”, “I am having regard”? How are we going to march all these together?

MS MORTIMER: Our primary submission is that this Court does not need to do that in this case because section 438 was not engaged.

HAYNE J: Well, 438(1) was, 438(2) was not followed, but 438(1), I would have thought, was engaged, was it not?

MS MORTIMER: The failure to - - -

GUMMOW J: One question is – and this is Mr Cavanough’s problem – in what way can his client rely upon the default in observing their own statute in 438(2)? If there was a “compliance with a requirement . . . under this Act”, is that a reference to 418(3) or some other sections? I just do not know.

MS MORTIMER: I did not understand it to be put against us, your Honour, that the presence of section 438 and/or its application in this case means that the Tribunal had a much more limited obligation of disclosure than the common law suggests. I did not understand that that was being put against us, that this section in this case affects the content of the obligation. I had understood it to be common ground that this section had not been engaged and we were not dealing with a disclosure made under this section.

KIRBY J: That may or may not be so – we will hear in due course – but we cannot ignore 438 when we are trying to work out what is written between the lines of this statute when Parliament has gone to the trouble of spelling out in some detail and specifically a procedure that could be followed.

MS MORTIMER: I accept that, your Honour. The way that we submit it has relevance is only to support the proposition that the ordinary common law principles of Kioa apply and that this statutory scheme does not in that context ask the decision-maker to give determinative weight to material supplied in confidence because it provides a mechanism. If that is the circumstance, the statute provides a mechanism to protect the confidence but outside that mechanism being used, that the statute says nothing to preclude the application of ordinary principles.

GUMMOW J: It becomes a chicken and egg argument then.

MS MORTIMER: It does, your Honour, yes.

HEYDON J: If I can just get one thing straight, you do not point positively to any “requirement of or under this Act”, in compliance with which the secretary was acting when this letter was sent to the Tribunal? You have no submission which is anchored on any provision?

MS MORTIMER: There is the section that was dealt with in Muin, your Honour, 418.

HAYNE J: 183.

HEYDON J: That is:

must, as soon as is practicable after being notified of the application, give . . . each other document . . . that is in the Secretary’s possession –

both at the time of the application and later acquired? Is that - - -

MS MORTIMER: If subsection (3) is to be read as a continuing obligation, that could be, as far as I am aware, the only source of a positive statutory obligation to forward it on, but that does require it to be read as a continuing obligation.

KIRBY J: Is section 103 backed up by a criminal sanction or is it a duty of imperfect obligation? Would this be a bogus document if it was false?

MS MORTIMER: If the person giving it was a non-citizen. I believe it is backed up with a sanction, your Honour, but if I can be permitted to give your Honour the reference a little later to where that - - -

GUMMOW J: That is Subdivision C of Division 3, is it not? It is about visas.

KIRBY J: Well, these are applications for protection visas.

MS MORTIMER: I understand that to be directed at applicants for visas and to be a statutory encouragement on them to provide only truthful information.

HAYNE J: It is defined in 97 and defined in a way that – and you might have to stretch a fair way if you were going to bring this within the meaning of “bogus document”.

MS MORTIMER: Yes, I accept that, your Honour.

GUMMOW J: The non-citizen spoken of looks like the applicant.

MS MORTIMER: That is so, and the place of that provision, as your Honour has pointed out, in that subdivision suggests it operates on applications.

HAYNE J: It is the false birth certificate that the applicant produces that is really looked at.

MS MORTIMER: Yes, that is so, your Honour.

KIRBY J: Justice Heydon has drawn my attention to 334 which makes it an offence to make “false or misleading statements” so that there would be a sanction for making false statements.

MS MORTIMER: Yes, and that, your Honour, obviously, has much wider application, on its face.

GUMMOW J: Yes.

MS MORTIMER: While we are on the statute just – if I have not made it already clear – the only other point I wanted to make about the non-applicability of the provisions is to submit that 424A obviously has no application in this case. I do not think that that is a matter that is in contention between us.

The final matter that I want to turn to now is how we say the majority in the Full Court erred. It is really put this way that the majority have not started with Kioa and with the ordinary approach to disclosure at common law; rather, they have started with a presumption of the correctness of the disavowal in the Tribunal’s reasons and worked backwards from that. We say that is most evident from the paragraph in the reasons at page 197 of the appeal book, paragraph 78, from three features in that paragraph. Their Honours say you do not set the disavowal at nought. They then go on to say:

It is difficult to see how such information could be significant to a decision if no regard were paid to it in reaching the decision.

So that again is giving a presumption to the effect of the disavowal. Thirdly, they say that an applicant must persuade a court not to accept the disavowal and must do so by way of evidence.

So that in taking an analysis that involves those three propositions what the court, in our submission, is doing is asking both the decision-maker and then a court on judicial review to look retrospectively at what has happened.

GUMMOW J: This sentence:

Of course a disavowal of reliance need not be accepted by a court, but in most cases that will require the person aggrieved by the decision to adduce evidence to show why the disavowal should not be accepted.

That is impugning of a fraud. That is what they are saying.

MS MORTIMER: That is so, your Honour.

GUMMOW J: It is a big step in the world of administrative law.

MS MORTIMER: It assumes that it is forensically possible. The best example of why, in our submission, that is an error is their Honours’ analysis of the NIB Case. The way their Honours deal with Justice Allsop’s decision is to say that is a very different situation. His Honour heard evidence from the decision-makers and having done so decided that the disavowal needed to be put to one side in assessing the obligation to afford procedural fairness.

Two things we say about that. First, his Honour Justice Allsop himself made no distinction about the fact that the disavowal had come out later, not in principle, but secondly, where this Full Court says at 196 at about point 20 that:

The NIB Health Funds case is a good example of how this –

meaning the presentation of evidence –

can be done -

that reveals a fundamental misconception with the kind of case they are dealing with here. These decision-makers are not compellable. The process that was undertaken before Justice Allsop cannot be undertaken in relation to these kinds of decision-makers.

GUMMOW J: Yes, how was it undertaken in the Health Case? I did not quite understand.

MS MORTIMER: Why, your Honour?

GUMMOW J: How did it come about?

MS MORTIMER: Because the person that was the author of the report that was said to be prejudicial was called as a witness. She made a recommendation and the question was how the board dealt with that recommendation and each of the members of the board gave evidence saying, “We put it out of our minds” and they were all cross-examined on that.

KIRBY J: We went down this track in a case, did we not? There was a suggestion that a member of the Tribunal should have been called as a witness and I think this Court said that that is just not on. I think under the Act they enjoy the same protections as a Justice of this Court or a judge of the Federal Court.

MS MORTIMER: Yes, by a link with the members of the Administrative Appeals Tribunal. It is section - - -

KIRBY J: What was the name of that case, do you remember, when we dealt with this? Anyway, if you find it if you would let us know.

MS MORTIMER: My learned junior thinks it might be Muin, your Honour. We will have that checked and we will give your Honour the citation.

GUMMOW J: The linkage section?

MS MORTIMER: There is the linkage section in 435.

HAYNE J: That would mean not only not compellable but not competent, would it not?

MS MORTIMER: Yes, so the fact that the majority of the Full Court in this case seemed to think that the NIB Case gave a good example of how you might test the disavowal reveals the misconception, in our submission. It also, by setting up a presumption about that – and I may be now repeating myself, I hope not – it also addresses only one of the three factors that the principle in Kioa goes to and that is actual reliance. It does not say anything about subconscious influence, does not say anything about appearance.

f actual reliance is not the touchstone of the obligation to disclose, then a denial of actual reliance cannot avoid the obligation. That is the proposition. But if one tries to assess how a decision-maker might look at the Full Court’s decision and approach a new decision, that currently being the authority for the Full Federal Court, what we say that it encourages is an approach that is completely at odds with all the authorities in this Court about procedural fairness. It encourages withholding of information, in our submission, on a “wait and see if I need it for my decision” approach, like in this case. The decision-maker receives this letter before the hearing, sits on it, says nothing about it and, in effect, then says to himself, in our submission, “Do I need to rely on it to make my findings and if I don’t then I can disavow it and not disclose it”, and that ignores those two key features of Kioa, subconscious influence and appearance.

It also promotes, in our submission, an assessment by individual decision-makers of their ability to shut out of their mind information. So it invites decision-makers to think about that as the first step rather than as the last step. Rather than as disclosure is the first step, what it says to decision-makers is, “Well, you evaluate whether you can shut it out of your mind”, and it promotes, in our submission, the possibility of highly inconsistent decisions coming out of the Tribunal, any kind of decision-making tribunal, if that is the first question the decision-maker is supposed to ask.

KIRBY J: What if the decision-maker has reached a view adverse to an applicant on the material that is lawfully before the decision-maker and then this additional material comes in, would it be competent to the decision-maker to say, “Since writing this, I have received further material, but because I already reached my view I am going to entirely disregard it and I don’t need to consider it in order to come to my view because I have already arrived there”?

MS MORTIMER: Your Honour is contemplating a situation where, in practice, the decision has been written but not handed down, that kind of circumstance?

KIRBY J: Yes.

MS MORTIMER: The decision-maker, in our submission, would still be obliged to ask himself or herself what is the capacity of the information to influence. It may be that the information ought to be taken into account. That is part of the problem, that it may raise a relevant consideration. That is not, in our submission, inconceivable that this kind of information ought not to be shut out of a decision-maker’s mind.

KIRBY J: Yes, but if the decision-maker has already made a decision adverse to the applicant, the Tribunal does not need any more information. It has already arrived at its destination. The object is to reach orders and decisions, not to write lengthy expositions.

MS MORTIMER: No, your Honour, but the task of the Tribunal is to reach – one picks up another piece of Justice Brennan’s language – the correct and preferable decision. The task is to reach the right decision on the merits. The character of the information may not be single. It may not be simply adverse. This letter is a good example of that. It contains information on its face very adverse that we say the applicant ought to deal with, but it is capable of having another character and the other character that it is capable of having is that the applicant might use it to support his case.

So in the interim position that your Honour posits it might be very important, in terms of the decision-maker properly deciding whether a person is owed protection obligations or properly discharging the statutory task, to disclose it. So we say that that assessment of the character of the information need still be undertaken.

HAYNE J: I understand to be central to your argument the proposition that the requirements of procedural fairness are to be assessed and applied before making the ultimate decision which the Act requires.

MS MORTIMER: Yes.

HAYNE J: That is central to your argument is this need to look before decision rather than look back and see what has happened. Can I just examine what seems also to be a consequence of that proposition. Does it mean then that the decision-maker who has received information must at the point of receipt before decision say, “I have received this information. What do you say about it?”, or may the decision-maker say, “I have received anonymous information about you and about the claims you make. Because it is anonymous, I don’t know whether it has got any strength or no strength at all and therefore I propose to ignore it. Go on and tell me what you want to tell me about your case”. Is that an open answer to make?

MS MORTIMER: The fact of the information being communicated anonymously, your Honour, may not preclude the information from meeting the test in Kioa. At base we say that that is the function of the Tribunal. When it gets the information it asks what capacity does it have to influence. If it meets that kind of test that Justice Brennan set out in Kioa, then there is an obligation to disclose. How that disclosure is achieved may involve some balancing.

HAYNE J: But the consequence to which I want to direct your attention seems to me at the moment to be that your submission leads to the inevitable result that there must be disclosure of every anonymous communication. I am not saying that that is good, bad or indifferent in its effect on your argument, but is that the consequence of your argument?

MS MORTIMER: No, your Honour, because the assessment must still be made in an individual case whether the information is “credible, relevant and significant”, and its content may make it not. A decision-maker may be able to look at the document and say, “I cannot see how this has any capacity to influence the decision that I am going to make”. I take your Honours back to the example in this jurisdiction that I put earlier about a case where the only issue in terms of the owing of protection obligations is third country protection.

So if the Tribunal were to receive an anonymous communication that said somebody had been working in breach of their bridging visa, the Tribunal may lawfully be able to say, “It doesn’t pass the Kioa test, it’s not relevant and significant to the decision I have to make. I’m not worried about this man’s credibility, I’m not really worried about his claims. I’m only worried about a very discrete legal issue, so I don’t have to disclose it”. We do accept, your Honour, and we say it is completely consistent with the way that the authorities in these issues have proceeded in the courts – and Justice Gray gives a summary of them – that the tendency is towards disclosure. We say that is just and that is appropriate.

If the Court pleases, those are the submissions on behalf of the appellant.

GLEESON CJ: Thank you, Ms Mortimer. Yes, Mr Cavanough.

MR CAVANOUGH: If the Court pleases, in our submission, my learned friend’s appeal must fail because it depends on this Court accepting that where a professional tribunal sees in its statement of reasons under section 430 of the Act that it gave no weight to a particular matter, and indeed decided the case entirely for other reasons, that disavowal must necessarily be set at nought, to use the language of the Full Court.

That cannot be right. The disavowal cannot be necessarily irrelevant and, as I think was said earlier in the discussion, each case must be considered on its own merits and at the end of the day the question under the principles of natural justice is: has there been unfairness or the appearance of unfairness in the eyes of the reasonable bystander? There will not necessarily be unfairness or even the appearance of unfairness in a case such as the present where very understandable reasons, fully explained, explained in a timely fashion by this professional tribunal, the Tribunal says - - -

GUMMOW J: You say “professional tribunal”.

MR CAVANOUGH: When I say “professional”, it is that the Act makes provision for members to be appointed for periods of time up to five years. They are appointed by the Governor-General. They can only be removed upon certain matters being shown against them of a serious nature. So professional in that sense. I do not mean to say legally professional. Some of them are lawyers, of course. There are selection procedures of a rigorous kind to find the best person available for the position. They are not people drawn off the street. This Court has seen many decisions. Some are better than others, but some are extremely good.

GUMMOW J: We only see the bad ones, that is part of the problem.

MR CAVANOUGH: There are some bad ones. You perhaps tend to see perhaps not necessarily the best of them, but there have also been some – and indeed, in my respectful submission, by and large the Tribunals’ decisions display a great deal of attention to detail, a great deal of hard work and a great deal of training and indeed the experience of doing this particular kind of exercise day after day, week after week, month after month, year after year. In that sense, the Tribunal’s expertise is not to be treated as non-existent – far from it.

GUMMOW J: But what do you say about the reliance placed on Justice Brennan’s judgment in Kioa and the point it makes as to what is the root of this doctrine, which I think his formulation would allow everything you have said, but would say nevertheless - - -

MR CAVANOUGH: I would respectfully submit, yes, Justice Brennan’s judgment does not preclude a finding of no unfairness produced in part by a disavowal, notwithstanding that a judge might otherwise think that the information was “credible, relevant and significant”, but those words cannot be treated as the words of a statute. Justice Brennan, himself, speaks of the necessity for the court to put itself into the shoes of the decision-maker in considering what the principles of natural justice require in any particular case, and that must be right.

In any event, in the alternative, if I am wrong, if what Justice Brennan meant was that the court’s job on judicial review is to assess whether the particular information was “credible, relevant and significant” and the disavowal of influence is necessarily to be put aside, as Justice Allsop perhaps inferred from the reasons, although how his Honour could have done that, given that there was no disavowal in Kioa itself, one may stop to wonder. In any event, if that be right, it is certainly not the view of the majority of the Court in Kioa.

I perhaps might usefully take your Honours to what the other Justices said in Kioa. It is, I think, on both parties’ list. It is No 2 in both lists. Their Honours in the Full Court did do this exercise also at around about paragraph 66 and following of the Full Court’s decision. Perhaps if I could take the Court to the actual passages.

It is perhaps useful just in reading what is said in the critical passages to be reminded of the essential facts of this case. The problem was seen to be paragraph 22 of the submission by the departmental officer to the delegate. That appears firstly on page 557 of the report in Chief Justice Gibbs’ decision, about halfway down the page. It is a short paragraph. Now, as his Honour had said at the bottom of the previous page:

a written submission by an officer of the Department was put before the Minister’s delegate, who had been appointed under s 66D of the Migration Act. This submission contained a full recital of the facts, and included the following paragraphs –

Now, at the foot of that setting out of the submission on the next page, 558, at point 3, as the Chief Justice notes:

The delegate accepted the recommendation in the submission and signed the deportation orders.

And the recommendation was obviously influenced by paragraph 22. A little over one month later there was a section 13 statement provided in response to a request. That appears from the next line of the report of the Chief Justice’s decision. So it was not a contemporaneous statement of reasons but about a month later. Now, Chief Justice Gibbs came to deal with this at page - - -

GUMMOW J: He dissented, did he not?

MR CAVANOUGH: He dissented, yes, but nonetheless his dissent was not on this point, in my respectful submission. Well, he dissented in relation to whether natural justice applied at all and I suppose in a sense he dissented in that he read the facts a little differently, but nonetheless, in my respectful submission, it is useful to note what his Honour said, particularly at page 569, about point 5, first the statement of reasons being “a very full one”:

No attempt was made to put before the Court evidence that the delegate had in fact considered matters other than those which he mentioned in his reasons. It should in my opinion be accepted that in fact the matters referred to in par 22 did not affect the delegate’s decision: see Ratu –

So his Honour went so far as to infer on the facts that the matter did not affect the delegate’s decision. The other Justices were not prepared to go that far. They, in my respectful submission, must have proceeded on the basis that it was open and still possible that it had affected the delegate’s decision given that there was no disavowal. That appears particularly from Justice Mason’s judgment – I will take your Honours to that – particularly at page 588, about point 3, the sentence commencing:

Although the statement of reasons makes no reference to the contents of par 22, it does not disavow them. As the paragraph was extremely prejudicial, the appellants should have had the opportunity of replying to it.

Then Justice Wilson deals with this at page 600 and following, at the foot of 600, but most particularly from the foot of 601 dealing with the submission from the Department in the two paragraphs, particularly 22. Now, if I could take the Court down towards the foot of 602, about point 8:

The learned Solicitor-General for the Commonwealth argues that because there is no mention of par 22 in the delegate’s reasons for his decision the failure to provide Mr Kioa with an opportunity to be heard in respect of it cannot be material. But the situation must be judged in terms of the procedure followed before the decision was made. The delegate received a submission recommending that he sign orders for deportation and it cannot be denied that the concern expressed in par 22 was a factor which contributed to and supported the recommendation.

Now, I turn to Justice Brennan’s judgment. At page 627 appears the passage to which I adverted about the necessity of the Court placing itself “in the shoes of the repository of the power” – that is at 627, point 8 – and a reference to “circumstances perceived by the repository of the power”.

KIRBY J: Which page are you on now?

MR CAVANOUGH: Page 627, your Honour. His Honour distinguishes between natural justice requirements and jurisdictional facts in that regard. There is then at 629 the passage to which most attention has been devoted in this case. I will not, of course, read it. The Full Court gave a particular interpretation to it though. With respect, it is possible to read the passage as the Full Court did or to read it as my learned friend would read it but the Full Court placed particular emphasis on the fact that there was, in fact, no disavowal in this case so one ought not necessarily to be reading his Honour’s sentence as though it was referring to a disavowal by the decision-maker as distinct from a judgment or finding by a court later on that the matter was left out of account.

GUMMOW J: What do you say about the reference to Bushell there? I mean, as Justice Heydon put to your opponent, if all this was in a judgment, if the Tribunal had been a judge and the judge had said, “I put this out of my mind”, we would not have a case, would we?

MR CAVANOUGH: That is right. The question is does one say it is very different with a tribunal. We respectfully submit not.

GLEESON CJ: As to this disavowal on page 136 there has been some question about what exactly it means or amounts to but was the Tribunal on page 136 saying, “I have no way of knowing whether this information is or is not credible”?

MR CAVANOUGH: That is right. I have “been unable to test the claims made in the letter”. That seems to be phrased to that effect and I choose, in all of the circumstances, given that I have already arrived at a concluded view about this matter on completely different material, given that it is a person claiming confidentiality and not wishing to have his material tested, at least by the applicant, to give no weight, to have no regard to this letter. I do no one an injustice in that respect as long as my reporting that circumstances be accepted.

GLEESON CJ: The actual information that was the subject of consideration in Kioa was very different from the information with which we are concerned.

MR CAVANOUGH: Very different, yes. It was a statement by the responsible officers to the effect that Mr Kioa had been involved in attempts of other illegal immigrants to circumvent Australia’s migration laws and that was included in the submission that led to a recommendation for the deportation of Mr Kioa. The Full Court points out that we are talking about a very, very different quality of communication, if you like, or very different in terms of the source and in terms of the likelihood of it being influential.

KIRBY J: Yes, but we have sat here too often and seen too many cases where a person who is claiming a refugee status has been guilty of a crime in the country of origin and that is sometimes a reason for denying refugee status.

MR CAVANOUGH: Yes, under the Convention it can be a reason - if it is a serious non-political crime that can be a reason for denying refugee status but there is no suggestion here that the Tribunal proceeded on any such basis.

KIRBY J: There is no suggestion that it became part of the reasoning but the suggestion that is put up is (a) it could have affected the decision-maker subconsciously and (b) it does not look good.

MR CAVANOUGH: Mind you, the suggestion was not that the crime had been committed but that somebody had accused him of committing it and some relatively surprisingly minor consequence if the thing had actually been found followed. In my respectful submission, the Full Court here was perfectly entitled to say that the Tribunal was entitled to put this particular communication aside and there really ought be no concern on the part of anybody that unfairness has been done to the applicant as a result of that.

KIRBY J: The applicant says that he is concerned and in the hothouse of ethnic and other disputes, that may be a source of anxiety that may sometimes be reasonable.

MR CAVANOUGH: Of course, in a sense though that cuts both ways in that it is another reason why one would take no notice of the letter, if that is the hothouse atmosphere. It is not as though this is a letter coming from a dispassionate person necessarily of apparent reliability. We do not even know who it was.

KIRBY J: But what we have to think of is what is the correct general rule here. That is what this case tests, what should be done by a tribunal when it gets this sort of letter and, where the special provisions of section 438 are not invoked, what is the correct procedure. Is it simply to say, “I haven’t taken it into account”, and is that, as it were, final? It does not meet the appearances of justice. It may help to meet the actual injustice of the case. Is that the correct procedure to be followed, or is it better for the Court to lay down a principle that where material of this kind is received in cases of this importance for people’s lives and in cases where there are strongly-felt views and the risk of subconscious affectation, that the matter should be drawn to the notice of the person so that they can say what they want to say about it.

MR CAVANOUGH: In my respectful submission, it would be undesirable to lay down a rule that required this particular inquisitorial Tribunal in every case where it receives unsolicited or any kind of communication that might be adverse to an applicant to draw it to the applicant’s attention. The process of inquiry might become endless. To no good purpose, in the paradigm case where the Tribunal is going to find in favour of the applicant anyway, there would not seem to be any purpose in it. But if the Tribunal is going to find against the applicant anyway, again, in my respectful submission, it would be undesirable that this Court should lay down a rule that nevertheless in every case the Tribunal must raise the allegations as long as they meet some very, very low threshold test with the applicant. The threshold test that Justice Merkel and Justice Gray applied was very low indeed, just that one could not say that the document was not credible, which, in my respectful submission, cannot be the test.

HAYNE J: Now, do your submissions seek to distinguish between separate questions about whether judged after the event unfairness was done, which seemed to be part of your submission. A second question, perhaps logically prior, judged, so Ms Mortimer would have it, during the hearing about what fairness requires?

MR CAVANOUGH: The case will only ever come to a court after the decision, except in a very rare case and so, at most, we are talking about the question, should the Court put itself back as at the time of the receipt of the material, but why should a Court so restrict itself? Why should it deny itself knowledge of what has happened in the whole course of the decision-making process.

HAYNE J: As to that, and some of the more general issues that are at least lurking beneath this case, at some point I would be assisted by submissions about whether any guidance is to be had from Professor Allars piece in [1991] SydLawRw 26; (1991) 13 Sydney Law Review 377 and following entitled “Neutrality, the Judicial Paradigm and Tribunal Procedure”. The professor there discusses whether and to what extent it is appropriate to – to put it tendentiously – impose on administrative decision-making procedures that are based in the paradigm case of judicial procedures. It may be that you can deal with that on the run and tell me it has nothing whatever to say to us.

MR CAVANOUGH: I could hardly say that when I have not read the article, your Honour.

HAYNE J: It is a long time since I have read it, Mr Cavanough. It seems to me at some point we may have to grapple with this question of whether there is one question or two questions being asked because the significance of the disavowal can surely be assessed only ex post, but Ms Mortimer’s contention is, “No, that is, at least, not the only question that needs to be asked.” I think she would have it it is not a relevant question to ask, the question to ask is, ex ante, “In the course of the hearing I have this material. What should I do?” Now, unless we get our standpoint right perhaps the principles are going to be skewed.

GUMMOW J: We will also need to know - if I can add another dimension, at some stage what the Minister says about 438.

HAYNE J: Both generally and in the particular case, I would have thought.

GUMMOW J: Yes.

MR CAVANOUGH: That might be a little easier since I have read that. Your Honour, we were more enthusiastic about its possible direct application in this case below, but we were told in no uncertain terms that it had no application, and we reflected on that, and we put in no notice of cross-contention and plainly we accept now that this was not a case which was governed itself by 438.

HAYNE J: Why?

KIRBY J: Why? It is not 438(1)(a), but is it not (b)?

MR CAVANOUGH: We certainly submitted – and we would still say that it was 438(1)(b), but 438(2) provides that:

If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a) must notify the Tribunal in writing –

et cetera, and as I think Justice Gummow pointed out, the only section to which that might refer in this matter is - - -

GUMMOW J: Section 418(3).

MR CAVANOUGH: Section 418(3). It seems to us now that 418(3) does not operate in a continuing way, that it is really speaking of what the secretary has in hand at the time of being notified of the application.

GUMMOW J: Yes, and (3), you say, is dependent upon (2). So the “notified” in (3) is referring to the notification in (2).

MR CAVANOUGH: Yes indeed, your Honour. So it was really for that reason – although it was not explicitly relied on by the Full Court, but on reflection.

GUMMOW J: I know, that is what got me agitated.

MR CAVANOUGH: Yes, your Honour. But they did point out that it would be in practical terms very difficult to administer the Act as we were in effect inviting the court to do. They said something to that effect at - - -

GUMMOW J: But there is no requirement other than 418(3)? There is no other section that anyone can find that is referred to - - -

MR CAVANOUGH: There is no other requirement on the Department to provide any material to the Tribunal. In fact, the Minister really drops out of the picture to a large extent once that documentation is handed over, although he is required to come along and defend decisions.

KIRBY J: But the action of the secretary in initiating section 438 cannot be the last word. If in fact in its terms 438 applies and 438(1)(b) would seem to engage it, if the secretary does not initiate the steps that that section requires why does one not then infer that in the parliamentary scheme it is just like any other material that is put by a party or by a participant before a decision-maker and has to be revealed to the person affected if it is relevant?

MR CAVANOUGH: For these reasons if I may, your Honour. We do not know whether whoever had the file in the Department read 438(2) and said well, it is not applicable because there is no requirement of the Act under which I am sending this letter on. I am just doing it because it seems like a good idea or whether it was just overlooked or what - - -

KIRBY J: I am sure. I am not suggesting any mala fides, all I am saying is that there is a system.

MR CAVANOUGH: Yes, but for one reason or another the system became inapplicable once subsection (2) was not followed, the procedure there was not followed. It may be it could not be followed because perhaps there was no requirement under which the material was given over. So that would be the end of – 418(3) we have just been discussing may mean that there simply is no coverage of 382, that 438(1)(b) is engaged but not 438(2).

GUMMOW J: This is because it was received too late for 418(3) to operate?

MR CAVANOUGH: Yes, it was received after the application to the Tribunal.

GUMMOW J: Yes, but not by the Tribunal.

MR CAVANOUGH: Not by the Tribunal, but by the Department. Yes indeed, your Honour.

GUMMOW J: Hence the problem in a way.

MR CAVANOUGH: That is right. I can make this submission though, if I may, that one can say that by analogy with 438 or by reference to 438, Parliament had it in mind that confidential information ought to be treated carefully under this Act.

GUMMOW J: You get that from 57, do you not?

MR CAVANOUGH: You get it from 57 - - -

GUMMOW J: And the definition of non-disclosable information.

MR CAVANOUGH: That is section 5, actually.

GUMMOW J: That is the definition.

MR CAVANOUGH: It is the definition of “non-disclosable information”.

GUMMOW J: Yes, which is picked up in section 57.

MR CAVANOUGH: And in various other sections including 424A which is the one applicable to this Tribunal. So there are at least two separate indications of that in the Act that Parliament was concerned that confidential information be protected. It just happens that the particular mechanisms have not applied in this particular case.

GLEESON CJ: There may have been an assumption that material would only be being provided by the Department to the Tribunal pursuant to a requirement.

MR CAVANOUGH: There may have been, and in a sense it is just a happenstance that this particular letter has come via the Department.

GUMMOW J: Does the Act contemplate subsequent provision of information after 418(3) is bitten, or is that - - -

MR CAVANOUGH: Yes, 427, your Honour.

GUMMOW J: Yes, 427, that is right.

MR CAVANOUGH: Indeed, there is a reference there to 438 - 427(1)(c).

HAYNE J: That is one way.

GUMMOW J: It is the other way around.

HAYNE J: That is the other way around. Where do we get the secretary communicating again with the RRT after reference of papers?

MR CAVANOUGH: There is provision for a submission only and that is at 423(2).

HEYDON J: Presumably if the secretary got some information that was highly favourable to the applicant, it would be wrong for the secretary not to communicate that to the Tribunal. Equally, if he got or she got information not favourable, it is understandable that it might be communicated. The power to communicate just lies outside the express purpose of the Act you say?

MR CAVANOUGH: Yes, indeed, your Honour.

GLEESON CJ: What about updating of country information? That strikes me as an obvious example of a situation in which fresh information might come in from time to time. What is the provision of the statute that would have the Department passing that information on to the Tribunal.

MR CAVANOUGH: Well, I think the reality is that the RRT has an elaborate system itself.

GLEESON CJ: Yes.

GUMMOW J: So on one view of it, the curtain comes down on 418(3) and this is meant to be an independent body.

MR CAVANOUGH: Yes, yes, indeed, and those provisions that relate to - - -

HAYNE J: Conducting a review after all.

MR CAVANOUGH: Yes, a review, yes, and those provisions that we referred to earlier - - -

GUMMOW J: That raises another question which is how this item got there.

MR CAVANOUGH: It is not a review on - - -

GUMMOW J: How is this item transmitted, on reliance of what authority?

MR CAVANOUGH: Well, I think, as Justice Heydon just put to me, it would have been sent on the basis that the departmental officer took the view that the Tribunal might usefully know about it.

GUMMOW J: Why?

MR CAVANOUGH: Because it - - -

GUMMOW J: It is not a statutory answer.

MR CAVANOUGH: No, but statutory bodies can do some things that are not explicitly authorised by statute.

KIRBY J: Obviously the departmental officer formed a view that it would be relevant to the decision-making process.

MR CAVANOUGH: I thought your Honour might say that, yes. Yes, perhaps so.

GLEESON CJ: Is that a convenient time, Mr Cavanough?

MR CAVANOUGH: If your Honour pleases.

GLEESON CJ: We will resume at 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GLEESON CJ: Yes, Mr Cavanough.

MR CAVANOUGH: If the Court pleases. The judgment of this Court in Kioa has not been seen subsequently as establishing, necessarily, the question whether fairness requires the disclosure of particular materials to an applicant. It must be assessed independently of a disavowal, if there is one, or indeed of other matters such as the nature of the decision made or the terms of the reasons for decision or indeed the volume of evidence and material in the matter.

We have given a couple of examples of that in our outline. Youssef is one such case where – which is referred to in paragraph 14 of our outline where Justice Foster said, having referred to what Justice Mason had said in Kioa that the Court did not understand that it was always the case that one would, if you like, give effect to a disavowal but it carries with it, obviously, the implication that sometimes one would. Similarly, in Percerep - and I will take your Honour to the particular passage in Percerep in a moment. That is also referred to in our outline. Can I just say also that in the well-known case of The Minister v Peko-Wallsend, which is one of the other cases on our list, Justice Brennan himself came back, in a sense, to this question at pages 58 to 62 and 67.

GUMMOW J: With what result?

MR CAVANOUGH: What his Honour seemed to be saying was – this is (1986) 162 CLR.

KIRBY J: Is this a recantation?

MR CAVANOUGH: Perhaps that would be a little unfair, your Honour. There was emphasis on the necessity to disclose that which was to be taken into account under the principles of natural justice. This is particularly at page 58 commencing at the top of the page. If I could just invite the Court perhaps to read from the top of the page down to the end of that first incomplete paragraph. There is then some reference to American work and so on. I should say at the top of 59 his Honour says that:

the Minister is bound to give the parties to the controversy a fair opportunity for correcting or contradicting any relevant statement prejudicial to their view.

He refers to a number of cases. At the top of page 60 his Honour says:

A decision-maker is entitled to take into consideration relevant information contained in an ex parte communication and any response by the other party; he is not entitled to take such information into consideration without giving the other party an opportunity to respond.

Again, a few lines down another reference to taking information into account. A few more lines down his Honour says:

A fair opportunity to deal with information can be given without resort to the procedures employed by courts of law.

Then towards the bottom of that page his Honour returns to the “credible and significant” language. His Honour says about six lines from the bottom:

The Minister is bound to inquire into information furnished to him in an ex parte communication if (i) the information is credible; (ii) it is significant to a matter to which the Minister is bound to have regard in exercising his power - - -

GUMMOW J: I think this question of credibility has an earlier history, does it not?

MR CAVANOUGH: Earlier history, your Honour? Earlier than Kioa?

GUMMOW J: Yes. In other words it is referred to in decisions before the judgment of Justice Brennan. I may be wrong about that.

MR CAVANOUGH: It may have, your Honour, I cannot say I am particularly aware of that. His Honour then goes on to deal with credibility on the next page, on 61.

GLEESON CJ: But before you get to 61, it is item (iv), is it not?

MR CAVANOUGH: Yes, exactly. I am sorry, your Honour, thank you for reminding me not to skip over that. One of the conditions for being bound to reveal the information is that:

the Minister does not decide that, even if the information be true, the information would not affect his decision.

Now, we do rely on that - - -

KIRBY J: There are some negatives there. I am not quite sure what his Honour is saying. The basic problem is that if a Tribunal says, “I haven’t been affected by that; it is not going to influence me at all”, that does run into the two problems which the appellant raises, namely subconscious affectation and also that we are not only in the business of doing justice, we are in the business of manifestly doing justice, so that people do not say this does not look good. They had this material, it was potentially damaging and it was received secretly and not revealed. Ours is a system that normally you reveal that.

MR CAVANOUGH: But, your Honour, there must be limits to the obligation of an inquisitorial decision-maker to raise matters with interested parties. True, this is a very important decision - - -

KIRBY J: Yes, but if you are going to err in the terms of principle this Court, it seems to me, should err on the side of saying it should be revealed. After all, what harm is done by revealing it and giving the person the opportunity to correct any falsehoods or make any submissions?

MR CAVANOUGH: Apart from delay – and this Tribunal is enjoined to not only be fair, but also to be quick and to act inquisitorially and not adversarially, but harm might be done. Take this very case. To have raised this letter with the applicant could only have engendered in the applicant’s mind a real concern that the Tribunal really did think there was something in it.

KIRBY J: Yes, but, Mr Cavanough, that concern was then postponed and was raised after the event. Is it not better to raise it before the event so it can be dealt with before a final decision is made than after the event when we have had an appeal to a single judge of the Federal Court, the Full Court of the Federal Court and now to this Court?

MR CAVANOUGH: Well, your Honour, in my respectful submission, putting aside the fact that in this case there has been litigation, in the normal case, if this case had not gone beyond the Tribunal but the individual had discovered what had occurred, he might well be easier in his mind about reading that disclaimer than he would have been had the Tribunal said to him, “Well, here is this letter, this has got some very serious allegations against you and I want you to comment on them, and I hear what you say but” - - -

GLEESON CJ: I would have thought that the harm that might be done was that referred to on page 136, line 24.

MR CAVANOUGH: There is also that harm, of course, yes.

GLEESON CJ: That is a fairly serious form of harm.

MR CAVANOUGH: That is very serious harm, of course, but I am just responding to the particular question I was asked, your Honour.

GLEESON CJ: What, if any, significance attaches to the fact that in this case you are referring us to now, Justice Brennan was concerned with a Minister, as distinct, for example, from a judge or an administrative tribunal?

MR CAVANOUGH: Yes, it might be said, I suppose, against me that policy considerations would be entitled to take greater importance in relation to a Minister’s decision, but here this was a decision about whether there was detriment sufficient to warrant the non-grant of land to an Aboriginal group and since it was only a small element of policy involved in that at most.

KIRBY J: At that page it says the harm was that the author might suffer serious harm, but there is a harm of which we are the guardians and that is that you have a process whereby a secret communication is before a tribunal which has a very important decision to make affecting claims to refugee status on behalf of a person and that is before that tribunal, the decision-maker, and no opportunity is given to make a comment on it, even in a leveller way of, as it were, watering it down and presenting the essence of it without disclosing the author of it.

MR CAVANOUGH: In my respectful submission, as I think the Chief Justice was putting earlier this morning, it would be somewhat artificial to put the so-called gist of this letter without saying from whom it came.

KIRBY J: That may be so, but you are here for the Department and you are representing a legitimate interest which is that there would be a flow of information.

MR CAVANOUGH: Yes, indeed.

KIRBY J: But somebody has to stand here to represent the Tribunals and the due process before the Tribunals that they do not receive and have before them secret information which at least people who have an adverse finding then think, “Well, they say it didn’t affect them but I believe they did because otherwise they surely would have seen the merits of my case”.

MR CAVANOUGH: As I say, your Honour, that has not been the conclusion that other courts have drawn from Justice Brennan’s judgment in Kioa or, indeed, generally. Something to that effect perhaps might be said to be contained in Justice Allsop’s judgment in NIB, but in Youssef, in Percerep, indeed I would submit even in Peko-Wallsend, to an extent.

GUMMOW J: You have to look at Peko-Wallsend starting at 57, do you not? Is it not the last paragraph on 57? You started on the paragraph in the middle of 58 but it is what precedes it that matters.

MR CAVANOUGH: I am sorry. Whereabouts on 57 - - -

GUMMOW J: The last paragraph.

MR CAVANOUGH: “It is one thing to say”?

GUMMOW J: Yes, over the page.

GLEESON CJ: That is what you read to us earlier.

MR CAVANOUGH: I did, I thought.

GLEESON CJ: Yes.

HAYNE J: But then is there a distinction to be drawn between the Peko-Wallsend Case where there are, if you like, competing parties, and the situation under this Act? Is the Minister in the position of a contradictor in the RRT?

MR CAVANOUGH: Not, save to the extent that I have indicated in relation to his ability to, or her ability to, putting the submission and an obligation to put forward the Department’s file, but I would respectfully submit that that makes our case all the stronger. I mean, it is more likely that in a lis, to use the phrase that Justice Brennan used in Peko-Wallsend itself, that there would be more concern about, if you like, the judge receiving something behind the back of one of the parties, whereas here one has an inquisitorial tribunal who has a task of going out and finding – selecting material to determine the case on, as well as listening to the applicant’s material, of coming to a decision sometimes with very little assistance from an applicant, necessarily.

At the end of the day there might be vast amounts of material that could potentially be looked at that might be scanned or noticed. I think this was said in your Honour the Chief Justice’s dissenting judgment in Miah which we referred to in our outline. There is a passage in the footnote in our submissions to that effect.

It is footnote 17 of our outline where your Honour said:

Decision-makers, in the course of their ordinary work, no doubt receive, from many sources, including applicants, information, of varying degrees of reliability, about a wide range of subjects relevant to some visa applications.

I should correct the reference in that footnote. It is pages 69 to 70, not 79, and it is at paragraph 32 of Miah 206 CLR 57. But that is the case, your Honour, so the problem is if this Court were to lay down a principle that every time something potentially adverse to an applicant were in any way, if you like, wafted past or come across by a Tribunal, it would impose significant obligations on the Tribunal not necessarily in anyone’s interests.

KIRBY J: Not every time something is adverse, but where you get a letter sent by the Department which contains a very grave allegation or report of something grave about an applicant and the decision shortly thereafter is adverse to the applicant well, prudence might suggest that in such a case that it ought to be called to notice.

MR CAVANOUGH: It might well if it were not for the timely disavowal. I think the Full Court below would have said yes to that, your Honour, but for the disavowal and it is really the question of what - - -

KIRBY J: The disavowal only strikes at the doing of injustice. It does not strike at the appearance of justice or the risk of subconscious contamination.

MR CAVANOUGH: In my respectful submission, it ought to be seen as striking at both. It ought to be given full weight. It ought to be sufficient in the usual case, in this case, perhaps not in every case, but if there is no material to the contrary - - -

KIRBY J: How can there be?

MR CAVANOUGH: Well, there could be in that as the Full Court said in this very case there may be something in the reasons for decision that suggests there was some unconscious influence caused by the adverse information, some tangential reference, something like that that could only have come from influence subconsciously by the adverse material. That sort of thing can occur.

GLEESON CJ: I think Justice Merkel said there was that in this case. As I understood it Justice Merkel said the concern that the Tribunal expressed on page 136, lines 24 and 25 indicates that the Tribunal itself was giving some degree of credibility to what was said in the letter. The Tribunal was sufficiently worried about what was said in the letter to make the order under section 440.

MR CAVANOUGH: Yes, Justice Merkel said that so there may be ways where subconscious influence may be discernable but of course here in defence of the Tribunal in relation to that particular aspect I would say that the Tribunal said clearly that it was giving no weight to the letter but nonetheless given the terms of the letter – the very thing your Honour, I think, has put to me the actual terms of the letter – it seemed prudent to make the order under section 440. That does not mean that the inference should be drawn that the Tribunal took it into account against the interests of the applicant, or might have.

Whilst Peko-Wallsend is still one of your Honour’s – the last two pages were 66 and 67 of that judgment of his Honour Justice Brennan. At the foot of 66, point 8:

The Minister was entitled to refuse to have regard to the information contained in the ex parte communications either because it had been withheld by the respondents from the Commissioner without adequate reason or because the truth of the information was not going to affect the decision under s 11(1) which the Minister proposed to make on broad policy grounds.

I think, in fact, in that case it was a case where the Minister was going to make a decision adverse to the party who had put the material forward so it is not exactly on the same case.

Then on the next page at 67 his Honour said:

But unless the Minister, having had his attention drawn to the information contained in the respondents’ ex parte communications, had decided to refuse to consider it or had decided that, even if it were true, it would not affect his decision under s 11(1), he was bound to submit it to the Aboriginal claimants for their response and to have regard to it and to their response in making that decision. The Minister did not make either of the decisions which would have avoided the necessity to inquire into the information.

GLEESON CJ: I suppose from one point of view the entire exercise on which we are embarked is based upon an assumption that the Tribunal member is telling the truth when he says that these are his reasons for decision.

MR CAVANOUGH: Yes, and I have cited some authorities to the effect that courts ought generally to accept statements like that, particularly statements giving you statutory - - -

GLEESON CJ: No, I am not talking about the statement on the bottom of page 136; I am talking about the statement at the commencement of the document which says, “These are my reasons for decision”.

MR CAVANOUGH: In our submissions we refer to a couple of places where it has been held, indeed by this Court, that a statement to that effect should be taken as true.

KIRBY J: But you want to elevate it to taken as gospel. It is the end of the inquiry, whereas in fact it is not. It only deals with one aspect and that is the risk that the Tribunal member was affected by this material, whereas the risk is not only that but that the community will have a lesser belief in the justice of the Tribunal and litigants will have a lesser belief because of the non-disclosure of this information.

MR CAVANOUGH: But the community may not, we respectfully submit, or would not form that view in this particular case because of the particular circumstances (a) that disavow, (b) the request for confidentiality, (c) the fact that there was a great deal of other information, (d) the terms of the reasons themselves showing full justification for the decision come to quite independently of anything in this material. Hence, in my respectful submission, the community would not have sufficient cause for concern even as to appearances and the Full Court was right to so hold. This letter, as the Full Court said, was written by somebody as to whom the Tribunal knew nothing and, indeed, the court knew nothing. It certainly was not in the same class as the information in Kioa or the information in NIB or, indeed, the information in Percerep to which I was just - - -

KIRBY J: The information in Kioa was pretty tame really. I think Sir Harry Gibbs wrote a rather good dissent there. What was it saying, that he was trying to help other people from his community work the system, which is what everybody would be trying to do. I do not see that that was so devastating, whereas here there is a grave allegation of serious matters.

MR CAVANOUGH: Perhaps at the time things were regarded differently. Queue jumping was regarded far more seriously then perhaps than it is now and Justice Mason said this was an extremely prejudicial allegation and I think Justice Brennan said the same, highly damaging. That was the language that their Honours used. The word “circumvent” was read in a particular way.

In the matter of Percerep [1998] FCA 1088; 86 FCR 483 which related to the Administrative Appeals Tribunal, decided by Justice Weinberg, what had happened was this. It was a criminal deportation. The Tribunal had issued a summons whereby some material relating to the applicant had come from the Office of Correctional Services. It had been the subject of a confidentiality order under section 35 of the AAT Act, all of that done without the knowledge of the applicant.

The material was not referred to during the hearing or in the reasons of the Tribunal and was subsequently lost, or some 21 pages of it. As you can see from the headnote, the holding was that:

It was likely that the 21 pages contained at least some material which was in relevant aspects adverse to the applicant and that they were read or at least perused by the Deputy President prior to making the –

confidentiality order, and consequently:

The applicant was denied procedural fairness, since the Tribunal did not ensure that all matters concerning the relevant documents were properly aired, and there was a risk that the Tribunal may have taken into account, even subconsciously, in a manner adverse to the applicant, something contained in the 21 pages.

This is a case with no disavowal, of course, but what – there are two things, in my respectful submission, that are significant in the quotation. One is that Justice Weinberg said it would have been a different thing had there been a disavowal and, secondly, what he said about tribunals generally. So if I could take the Court to 504 commencing at C and down to F. So it is C to F, if I could just invite the Court to read those two paragraphs.

KIRBY J: Which page, sorry?

MR CAVANOUGH: Page 504. We would just respectfully adopt what his Honour said in relation to – disregarding the material – and in relation to tribunals generally. In respect of this particular Tribunal, can I also invite the Tribunal to have regard to the fact that there are a series of statutory provisions, quite elaborate, for establishment and procedure of this Tribunal, constitution of tribunals for particular cases and for, if you like, quality control under the guidance of a principal member and of deputy principal members and senior members. It is Part 7 of the Act. The establishment of the Tribunal, strangely enough, is towards the back of the Part in Division 9 which commences at section 457.

HAYNE J: What are we to make of that elaborate set of provisions for this purpose?

MR CAVANOUGH: This is not just, if you like, a delegate, not just some innominate member of the public service. It is a tribunal that has been established with care and in an elaborate way with management requirements built in, elaborate provisions about appointment, about - - -

HAYNE J: But is this some submission that common law principles about procedural fairness are supplanted by what we find in the Act?

MR CAVANOUGH: No, no, no.

HAYNE J: Or what is the end point to which this proposition is said to go?

MR CAVANOUGH: The end point is this, that whereas a disavowal of influence by, if you like, a lay person might in particular circumstances carry little weight, a disavowal of influence or a statement by this Tribunal that it had no regard to a particular piece of material ought not to be likely set aside.

It is a tribunal that is established for an important purpose and with correspondingly elaborate and careful provisions setting it up. Those are the matters I particularly rely upon in that regard. I will not go through all of the provisions but it is a lengthy part and in my respectful submission that inference should be drawn.

Finally, your Honours, we would respectfully submit that the Full Court was correct to hold that this particular material ought not to be judged or deemed credible for the purposes of the Kioa test, or significant, for that matter, given the Tribunal’s own view of it and the way it dealt with it.

KIRBY J: You say it is not credible though it comes from a person who had a connection with the appellant?

MR CAVANOUGH: It may have had. It appeared to have had but that was not proved before the court nor do we know what fallings out or whatever may have existed as between the people.....assuming that that letter did come from that particular person, but, as the Full Court said, although the allegations are not obviously fanciful they are not necessarily in their own terms, things one would immediately believe.

HAYNE J: Do you accept that rules of procedural fairness, as applied to this Tribunal, have the consequence not only that the procedures employed in the particular case are in fact fair but that they must appear to the external observer to be fair?

MR CAVANOUGH: Yes, your Honour, we do accept that, but there are limits.

GUMMOW J: That follows from Aala, does it not?

MR CAVANOUGH: Yes, it does, your Honour, yes. There are several statements to that effect but we were happy to grapple with that as the test, but that does not mean to say that - - -

HAYNE J: It is just your emphasis has been on fairness in fact rather than appearance of fairness and it seemed to me you were flirting, if I may say so, with the notion that all that need be demonstrated was fairness in fact.

MR CAVANOUGH: No, that is certainly not our submission. Indeed, the last cases that I wanted to take the Court to, as promised on our list, are those that deal with a very closely analogous situation. They are cases 6, 7 and 8, dealing with the Professional Services Review Tribunal constituted by doctors. Holmes v Mercado [2000] FCA 1848; 111 FCR 160 at 173 to 174 is the first of them. That is a Full Court decision in which Justice Merkel and Justice Weinberg participated.

If I could just take the Court to 173 to 174, paragraph 63. It was a case where there was a complaint that material relating to other alleged infringements on the part of the doctor was before the committee and might be taken into account adversely when it was said to be irrelevant. I just invite the Court to read what their Honours said about that. Another Full Court in Crowley v Holmes 132 FCR 114 at 124, paragraphs 35 and 36 referred to that passage with approval.

Finally, there is the recent decision of the House of Lords, In re McClean. That should be available to your Honours because it was the last case on our list. That was a case relating to the scheme set up following the Good Friday agreement in Ireland which allowed for the release of prisoners who were considered to have committed crimes because of sectarian or political reasons but there was a provision also for decisions to release to be reversed in the event that information came to hand that suggested that the person would be a danger to the community. That is summarising it rather simply. Paragraph 5 of the judgment of Lord Bingham of Cornhill gives us information about the nature of the Sentence Review Commissioners’ constitution. It was set up with persons who commanded:

widespread acceptance throughout the community in Northern Ireland and including among their number, so far as practicable, members with psychiatric or psychological as well as legal experience –

Then one of the issues in the case was: was there a breach of the rules of natural justice because certain damaging information – that is a statutory term – had not been revealed to the applicant but rather only the gist of it. When I say the gist of it was revealed, it was really no detail, just the tendency of it, and it really said that a.....was likely to be associated with a prescribed organisation and not really any information as to the basis for that inference. At paragraph 36, that passage that was agreed in by the other members of the House, Lord Bingham said, “My second” – I will not read it but I will invite the Court to read paragraph 36.

HAYNE J: If that is right, how does that sit with your acceptance of the proposition that it is not just fairness in fact but the appearance of fairness
to which account must be given? See in that regard Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 109, particularly paragraph 59.

MR CAVANOUGH: The two things can sit together, in my respectful submission. Every case has to be looked at on its own merits. It is not every non-disclosure of adverse information that will provoke an appearance of unfairness, particularly where (a) there is a disavowal that appears on the face of it to be acceptable and with no reason to suggest that it is inaccurate or - - -

KIRBY J: Who were the commissioners? Were there judicial members to the Commission?

MR CAVANOUGH: No, your Honour. I took your Honour to paragraph 5 first, which explained who the commissioners were.

GUMMOW J: They were, in English terms, sound.

MR CAVANOUGH: Sound folk, yes.

GUMMOW J: And from that all else followed.

HAYNE J: There are limits you know, Mr Cavanough.

KIRBY J: Maybe we are just a little bit more sceptical in Australia.

MR CAVANOUGH: I invite this Court to adopt a similar approach as was adopted by the House of Lords in that case in relationship to this issue. If your Honours please.

GLEESON CJ: Thank you, Mr Cavanough. Yes, Ms Mortimer.

MS MORTIMER: If the Court pleases. Your Honour Justice Kirby asked for some references about the comments in this Court about the position of Tribunal members. It is the case of Muin [2002] HCA 30; (2002) 190 ALR 601 at paragraph [25].

GUMMOW J: Paragraph [25] in - - -

MS MORTIMER: Paragraph [25]. That is in the judgment of his Honour the Chief Justice.

GUMMOW J: Just a minute.

MS MORTIMER: Paragraph [118] Justice McHugh, [197], which is your Honour Justice Kirby I think, and [299] to [300]. Those are all paragraph numbers.

GUMMOW J: What do they show?

MS MORTIMER: The observations by this Court that the drawing of inferences against Tribunal members in the expectation that they would otherwise give evidence is not an appropriate course in relation to these kinds of Tribunal members.

GUMMOW J: Yes.

MS MORTIMER: A similar kind of argument.

GUMMOW J: Yes.

MS MORTIMER: Your Honour Justice Hayne asked, I think, my learned friend a question about the article by Professor Allars. We have looked at it briefly over lunch but not in enough detail to make a submission, save to direct the Court’s attention to something that your Honour the Chief Justice said in the case of SAAP (2005) 215 ALR 162 – that is the 424A case – and the relevant paragraph is paragraph [8]. What your Honour the Chief Justice emphasised there was the different character of the procedure embarked on by the Tribunal, but the presence in the Act of procedures and references to procedures that fall from a judicial model.

What your Honour said was this, about the middle of that paragraph:

While it is true that fairness and administrative decision-making is not measured by reference to a judicial paradigm, judicial procedure ought to be an example of fairness and action, and it is not surprising to find some aspects of that procedure taken up for some administrative purposes.

The kind of procedural fairness obligations that are in issue in this case are, in our submission, a good example of something that carries straight over into administrative decision making, and that has been accepted, we would say, in this Court.

My learned friend took the Court to some extracts in Peko and sought to rely particularly on the fourth of four factors enunciated by Justice Brennan at page 61 and that factor is if the decision-maker decides even if the information is true it has no effect on the decision. As I understood my learned friend, he sought to draw an analogy with that proposition and this case. That is not what the Tribunal did in this case, in
our submission. It could not have done that. It could not, when one reads that letter, have operated on the assumption that those allegations were true and yet could not affect the decision.

So to that extent we say, if my learned friend wants to get some reliance from Peko, it is not there in that issue. The three cases that my learned friend has most recently taken the Court to: Crowley; Holmes v Mercado and then the House of Lords decision in McClean, we say are all distinguishable on one key factor and that is, although the justices may have made some comments about decision-makers being capable of shutting something out, in each of those cases there had been disclosure. Again, that is not this case. So we say that the issue before the Court is quite different from the issue that is dealt with in each of those cases.

Finally, if the Court pleases, I want to draw the Court’s attention to one aspect of the judgment at first instance of Justice Merkel and it goes to some of the submissions that my learned friend was making about why this information is not “credible, relevant and significant” in any event. The relevant appeal book reference is page 149 at paragraphs 26 and 27.

Now, what his Honour is dealing there with is not the capacity to influence of this information in terms of credibility; he is dealing with the capacity to influence in terms of the actual claims made and the way that the Tribunal dealt with them. So this is not a case where the information has only one kind of capacity to influence. We say the approach his Honour took there was correct. If the Court pleases.

GLEESON CJ: Thank you, Ms Mortimer. We will reserve our decision in this matter and we will adjourn until 10 o’clock tomorrow morning.

AT 3.00 PM THE MATTER WAS ADJOURNED