06 February 2008
2007 was a year of interesting developments in the administrative law and public law context. In this article we consider the main areas of reform and development as well as taking a brief look at some of the more significant cases from the year that was.
1. Information Law - Privacy and FOI
2007 saw continuing criticism of the effectiveness of the FOI Laws, culminating in the release, in October 2007, of the Right to Know report on the state of free speech (prepared for the Right to Know Champaign which had been launched by a group of media organisations in early 2007). With the election of the new Rudd Government, those in Australian Government can expect to see considerable change in the FOI landscape as the new Government's information policy is implemented. The abolition of conclusive certificates and the bringing together of the functions of privacy protection and freedom of information in an Office of the Information Commissioner and the appointment of an FOI Commissioner are only two of the more significant reforms proposed by the new government.
Further on the privacy front, 2007 saw two developments of note. The first was the release of the ALRC's extensive review of privacy laws. Key proposed reforms included one consolidated set of principles for government and business as well as the introduction of a statutory cause of action for invasion of privacy. The second was the decisions of the Victorian County Court in Jane Doe v Australian Broadcasting Corporation & Others [2007] VCC 281. In that case the Court found that the applicant was entitled to compensation for invasion of privacy. The three key elements of the case that were said to give rise to the successful case of action were, publication of information of a private nature, where there was no public interest in publication and in circumstances where publication was prohibited by law. While the precise basis of any such cause of action are far from settled, the interesting thing to note is that the common law in Australia is beginning to see the development of an "invasion of privacy" style tort.
2. The Role of the Ombudsman and the ARC
Of course, it is not only the courts who have an impact on the work of primary decision makers. Increasingly in 2007, from within the executive agencies themselves, there has been an increased focus on improving decision making. In 2007, both the Ombudsman and the Australian Review Council have made positive contributions toward the improvement of decision making in the Australian Government context.
In particular, the release of the Ombudsman's report "Lessons for Public Administration" in August 2007 sets out ten lessons that the Ombudsman thought could usefully be taken away from his review of over 200 immigration detention cases. The Ombudsman considered that the problems that had emerged from his review were not unique to immigration administration and that all decision makers in the Australian Government might benefit from the reviews that had been undertaken in the immigration context. The lessons learned include the need to manage difficult cases and maintain accurate records, the value of removing obstacles to prudent information exchange between agencies, the need to manage complexity and the importance of guarding against erroneous assumptions.
Also in August 2007, the Administrative Review Council launched a series of Best Practice Guides for primary decision makers. The guides cover five key stages in the decision making process, namely lawfulness, natural justice, evidence, facts and findings, reasons for decision and accountability. The Guides are intended to assist primary decision makers and will no doubt be a valuable reference to such officers in 2008.
3. Some important court decisions
Set out below is a summary of interesting court decisions from 2007. Of course this is only a selective list of some of the more significant cases and it must be remembered that the Australian Government is ultimately successful in the significant majority of judicial review applications that come before the courts.
3.1 Natural justice
The key issue in the important natural justice decisions in 2007 has been the need to take into account the specific nature of the decision being made and the information relevant to that decision when determining the content of the natural justice obligations in any given case. So, for example, the courts have faced decisions where the natural justice debate has involved the provision of confidential or security sensitive information to applicants.
In SZGCK v Refugee Review Tribunal [2007] FCA 1247, the Court allowed an appeal on the basis that the appellant had not been informed of the substance of allegations made in documents which had the potential to impact adversely on the appellant's credibility even though the RRT had stated in its decision that it would not take those documents into account and those documents had also previously been held by another judge of the Federal Court to attract public interest immunity. Given the substance of the documents, the Court determined that a reasonable tribunal would be influenced by the documents to form an adverse view of the appellant’s credibility and they should have been provided.
In Leghaei v Director-General of Security [2007] FCAFC 37 however, the potential of prejudice to national security by the release of security sensitive information had the effect of limiting the natural justice obligations owed to the applicant. In that case, the Full Federal Court determined, in relation to a decision concerning a negative security assessment by the Director-General of ASIO, that while the relevant legislation did not exclude the obligation to provide natural justice, in the light of the possible prejudice to national security that may be caused by the disclosure of information to the person the subject of the negative security assessment, the content of the natural justice obligation owing to the applicant was limited and was satisfied by the Director-General giving genuine consideration to the issue of what information could be released to the applicant without prejudicing national security.
Also arising in the natural justice context was the Full Federal Court decision in Fox v Australian Industrial Relations Commission (2007) 97 ALD 617, which allowed an appeal from the Australian Industrial Relations Commission (Commission) on the basis that a lengthy (12 months) and unexplained delay between a hearing in the Commission and delivery of its decision constituted a denial of natural justice because of doubts about the capacity of the Commissioner to accurately recall his observations and impressions of key witnesses at the time that they gave evidence at the hearing. This decision serves as a reminder to decision-makers to make decisions in a timely manner.
3.2 Applying the correct test
A number of decisions have also reinforced the need to apply the correct legislative test when making decisions. The most prominent decisions in this context were the decisions of Federal Court and Full Federal Court in relation to Dr Mohamed Haneef. From both those decisions, it is apparent that the Court considered that, in applying a legislative test, the legislative purpose of the test/provision and the context within which it appears are relevant.
The question for the courts in the Haneef case was whether Dr Haneef failed the character test in the Migration Act because he had an association with someone, or with a group, whom the Minister reasonably suspected had been or was involved in criminal conduct. The issue was whether the "association" to which the test refers encompasses an "innocent association" or whether there must be some connection between the visa holder and the criminal conduct of those with whom the visa-holder is said to be associated. Having examined the legislative history of the provision, the provision's context and wording, the intended purpose of the legislature, and various extrinsic materials, the Full Court preferred the later approach, i.e. the "association" must be one involving some sympathy with, or support for, or involvement in, the criminal conduct of those with whom the visa holder is said to be associated.
3.3 Fraud on the Tribunal
Also of significance was the decision of the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64. In that case the applicant applied for a visa, which was refused. The applicant's lawyer applied on her behalf to the Refugee Review Tribunal but advised her not to appear before the Tribunal as it wasn't granting visas at the moment, and a letter to the Minister was the better course (this advice was probably motivated by the fact that the NSW Law Society had revoked the lawyers practising certificate).
Without SZFDE's appearance, the Tribunal said there was not enough evidence to uphold her claim and her application was denied. The applicant sought review of that decision on the basis that the decision was tainted by Mr Hussain's fraud. The High Court ultimately found that there had been a fraud on the Tribunal and that the fraud had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the applicant. The Court also left open the possibility that fraud on the applicant might be a ground of review. It did however warn that bad advice won't be enough.
