FEDERAL COURT OF AUSTRALIA

Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 163

ADMINISTRATIVE LAW – question referred to Full Court in appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – Court should decide whether or not the answering of a question by witness would be contrary to the public interest on the merits

Administrative Appeals Tribunal Act 1975 (Cth), ss 36, 36(1), 36A, 36D, 44

Federal Court of Australia Act 1976 (Cth), s 19(2)

Alister v R (1984) 154 CLR 404 cited

Chapman v Luminis Pty Ltd (No 2) (2000) 100 FCR 229 cited

Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 cited

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited

Commissioner of Taxation v Roberts (1992) 37 FCR 246 cited

HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 cited

Sankey v Whitlam (1978) 142 CLR 1 cited

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited

WONG TAI SHING v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

NSD 274 OF 2006

GYLES, CONTI AND LANDER JJ

16 NOVEMBER 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 274 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT PROFESSOR GD WALKER

BETWEEN:

WONG TAI SHING

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGES:	GYLES, CONTI AND LANDER JJ
DATE OF ORDER:	16 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ANSWERS THE REFERRED QUESTION AS FOLLOWS:

Does the Court on an appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (‘the Act’) in relation to whether under section 36A of the Act the answering of a question would not be contrary to the public interest:

(a) make a decision on the merits, by reaching its own opinion?

ANSWER: Yes

(b) determine the issue by reference to whether there was an error of law in the forming by the Attorney-General of his opinion;

ANSWER: No

ANSWER: Does not arise

THE COURT ORDERS THAT:

The costs of the reference to the Full Court be the applicant’s costs in the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 274 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT PROFESSOR GD WALKER

BETWEEN:

WONG TAI SHING

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGES:	GYLES, CONTI AND LANDER JJ
DATE:	16 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

GYLES J

1 This case concerns intervention by the Attorney-General (Cth) in proceedings in the Administrative Appeals Tribunal (the Tribunal) to claim that the answering of questions by a witness would be contrary to the public interest. The particular issue concerns the operation of ss 36A, 36D and 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Those provisions are not easy to construe as legislative deeming is employed as a drafting device.

2 The following question has been referred to the Full Court to be heard and determined as a separate question in a proceeding brought pursuant to s 44 of the AAT Act:

‘Does the Court on an appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (“the Act”) in relation to whether under section 36A of the Act the answering of a question would not be contrary to the public interest:

(a) make a decision on the merits, by reaching its own opinion;

(b) determine the issue by reference to whether there was an error of law in the forming by the Attorney-General of his opinion; or

3 The agreed statement of facts in respect of that separate question follows.

Agreed facts

4 On 13 September 2002 the applicant, Wong Tai Shing, lodged with the Tribunal an application for review of a decision of a delegate of the first respondent Minister to refuse, in part, the applicant’s request for access to documents, made under the Freedom of Information Act 1982 (the FOI Act) (the Tribunal Proceedings).

5 The Tribunal Proceedings were concerned with issues as to whether documents were exempt under ss 33(1)(b), 36, 37(2)(b), 38, 40(1)(d), 41, 42 or 45 of the FOI Act and whether disclosure of certain documents would be contrary to s 503A of the Migration Act 1958 (Cth).

6 During the hearing of the Tribunal Proceedings, on 6 December 2004, counsel for the applicant put to a witness of the first respondent in cross-examination the following question:

‘The Department actually had a list of PRC Nationals who China wished sent back. Is that right?’

7 After an objection to the question on the ground of relevance was overruled, the first respondent sought, and was granted, an adjournment to enable the second respondent, the Attorney-General (Cth), to consider whether to issue a certificate under s 36(1) of the AAT Act.

8 On 10 April 2005 the second respondent issued a certificate for the purposes of the Tribunal Proceedings (the Certificate), which certified:

‘(1) pursuant to section 36 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), that the disclosure of information concerning the matters specified in Schedule 1 to this Certificate (the Information) would be contrary to the public interest by reason that the disclosure of the Information would prejudice the international relations of Australia, being a reason for the purposes of section 36(1)(a) of the AAT Act.

(2) pursuant to section 36A of the AAT Act, that in my opinion the answering by a person of a question, the answer to which would disclose the Information, in the course of giving evidence in these proceedings, would be contrary to the public interest for the reason referred to in paragraph 1 above.’

9 The Tribunal admitted the Certificate into evidence and pursuant to s 35(2)(c) of the AAT Actmade a confidentiality order in respect of Schedule 1 to the Certificate, in which the information was specified under itemised matters. The second respondent appeared at the hearing as a party pursuant to s 36A(2A) of the AAT Act.

10 During the further hearing of the Tribunal Proceedings, on 19, 20, 21 and 22 April 2005, the representative of the second respondent, pursuant to s 36A(1) of the AAT Act,objected to a number of questions put to the first respondent’s witnesses in cross-examination (the Questions) on the basis that in the opinion of the Attorney-General the answering of the question would be contrary to the public interest for a specified reason, being a reason mentioned in s 36(1) of the AAT Act,that the Attorney-General’s opinion was set out in the Certificate and Schedule 1 to the Certificate; and that the witnesses were excused from answering the Questions. In relation to each question the Tribunal requested the representative to indicate which items in Schedule 1 covered the question. The Tribunal upheld the objections in relation to each of the Questions.

11 Following the close of the evidence, the applicant sought a reference to the Federal Court of Australia, pursuant to ss 45, 36A and 36D of the AAT Act,of a question of law namely whether the answering of the Questions would be contrary to the public interest. On 9 August 2005, the Tribunal refused the application for a reference.

12 On 24 January 2006, the Tribunal made a decision in the Tribunal Proceedings in the following terms:

‘The documents listed in the respondent’s amended schedule dated 29 November 2005 are exempt from disclosure, except for documents 41 and 79 in the schedule.’

13 On 17 February 2006, the applicant filed a notice of appeal to this Court from the Tribunal’s decision. One of the four questions of law described in the notice of appeal is whether:

‘the answering of the several questions falling within the certificate issued by the Attorney-General dated 10 April 2005 under ss.36 and 36A of the Administrative Appeals Tribunal Act 1975 would not be contrary to the public interest (ss.36A(2)(a) and 36D(2)(b) Administrative Appeals Tribunal Act 1975).’

Statutory provisions

14 The intervention by the Attorney-General was based upon s 36A of the AAT Act which, so far as is relevant, is as follows:

‘…

Intervention by the Attorney-General

(1) Where, at the hearing of a proceeding before the Tribunal, a person is asked a question in the course of giving evidence, the Attorney-General may inform the Tribunal that, in his or her opinion, the answering of the question would be contrary to the public interest for a specified reason or reasons, being a reason or reasons mentioned in subsection 36(1).

When person excused from answering question

(2) Where the Attorney-General so informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest, that person is excused from answering the question unless:

(a) in the case where the reason specified is, or the reasons specified include, a reason referred to in paragraph 36(1)(a) or (b)—a court, on an appeal under section 44 or a reference under section 45, decides that the answering of the question would not be contrary to the public interest; or

(b) in any other case—the Tribunal decides that the answering of the question would not be contrary to the public interest.

Attorney-General taken to be a party

(2A) Where the Attorney-General informs the Tribunal that, in his or her opinion, the answering by a person of a question at the hearing of a proceeding would be contrary to the public interest, being a proceeding to which the Attorney-General would not, but for this subsection, be a party, the Attorney-General shall, for the purposes of this Act, be deemed to be a party to the proceeding.’

15 The reasons mentioned in s 36(1) are as follows:

‘(a) by reason that it would prejudice the security, defence or international relations of Australia;

(b) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or

(c) for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed;’

16 The directly relevant portions of s 36D are as follows:

‘…

Question of law

(2) For the purposes of this Act:

(a) the question whether information, or matter contained in a document, should be disclosed to the parties to a proceeding; or

(b) the question whether the answering of a question would be contrary to the public interest;

is a question of law.

…

Public interest

(6) Sections 36 and 36B exclude the operation of any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal.

Commonwealth Attorney-General or State Attorney-General may appear or be represented

(7) The Attorney-General, or the Attorney-General of a State:

(a) may appear before the Tribunal personally, or may be represented before the Tribunal by a barrister, solicitor or other person, in order to inform the Tribunal of his or her opinion in accordance with section 36A or 36C; or

(b) may so inform the Tribunal of his or her opinion by causing to be sent to the Tribunal a written certificate that is signed by him or her and sets out that opinion.’

17 The relevant parts of s 44 are as follows:

‘Appeal on question of law

(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

…

Powers of Federal Court

(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

…

Federal Court may make findings of fact

(7) If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a) the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i) the extent (if any) to which it is necessary for facts to be found; and

(ii) the means by which those facts might be established; and

(iii) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv) the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v) the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi) whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii) such other matters (if any) as the Court considers relevant.

(8) For the purposes of making findings of fact under subsection (7), the Federal Court of Australia may:

(a) have regard to the evidence given in the proceeding before the Tribunal; and

(b) receive further evidence.

…

(10) The jurisdiction of the Federal Court of Australia under subsection (3) includes jurisdiction to make findings of fact under subsection (7).’

Decision

18 In the present case, it may be accepted that the Attorney-General has informed the Tribunal that the answering of the questions in this case would be contrary to the public interest by reason that the answers would prejudice the international relations of Australia. It follows from s 36A(2) that the witnesses were excused from answering the question unless ‘a court on an appeal under s 44 … decides that the answering of the question would not be contrary to the public interest’. Hence the referred question as to how the Court should approach deciding that issue. The applicant contends that the Court is to make a decision on the merits by reaching its own opinion. The respondents contend that the Court is to determine the issue by reference to whether there was an error of law in the forming by the Attorney-General of his opinion.

19 In order to answer the referred question it is helpful to analyse how the issue comes before the Court. There are some problems in doing that.

20 Generally speaking, appeals to the Court pursuant to s 44 of the AAT Act are:

(1) from a decision of the Tribunal;

(2) limited to a question of law.

21 The issue as to whether the answer to a question would be contrary to the public interest is not a question of law, although a question of law might be wrapped up in it. However, s 36D(2) provides that such a question is a question of law for the purposes of the AAT Act. That solves the first problem.

22 The second problem is not so easily solved. The parties agree that s 36A(2) operates of its own force and that, in a case such as this, covered by s 36A(2)(a), there is no provision for any decision of the Tribunal in relation to answering the question. It is otherwise where the Attorney-General’s opinion is for another reason or other reasons, in which case the Tribunal makes a decision pursuant to s 36A(2)(b). What then is the ‘decision’ appealed from? One construction of the sections is that the appeal under s 44 referred to in s 36A(2)(a) is an appeal from the ultimate decision of the substantive case before the Tribunal, as is the case here, rather than from a decision as to answering the question. There is little doubt that ‘appeal’ in s 36A(2)(a) would include such a case. That is all that need be said for present purposes. However, there is still no relevant ‘decision’ in the normal sense by the Tribunal as to answering the question.

23 The framework of s 36A(2)(a) indicates that this is of no consequence. It applies to a reference under s 45, as well as to an appeal under s 44. Such a reference is of a question of law arising in a proceeding and applies during the course of the proceeding. Indeed, application was made for such a reference in this matter. Consideration of the subsequent progress of this matter indicates that it may have been prudent to agree to that reference when the request was made. Be that as it may be, s 36A(2)(a) assumes that the Court, on a reference under s 45, could decide that the answering of the question would not be contrary to the public interest. That makes it clear that such a question is deemed to be open for decision by the Court, even though it is and was not open for decision by the Tribunal and there is no actual decision appealed from. The same result must follow in relation to an appeal under s 44, whether or not that is limited to an appeal against the ultimate decision.

24 Bearing in mind that the question at issue is deemed to be a question of law for the purposes of the AAT Act, the Court has jurisdiction to decide the issue, even though it is not of a character which would normally be available for decision pursuant to either s 44 or s 45 of the AAT Act. A double drafting device has been used as a mechanism to bring the issue before the Court – a deemed decision is deemed to be a question of law.

25 No express guidance is given in s 36A or s 36D as to the basis upon which the Court should approach the question at issue where the opinion of the Attorney-General is based upon s 36(1)(a) or (b). The same may be said of the Tribunal in cases where the opinion is based upon other reasons pursuant to s 36A(2)(b).

26 In the case of the disclosure of information or matter contained in a document, governed by s 36(3) (where the Attorney-General’s certificate is not for a reason in s 36(1)(a) or (b)), guidance is given to the Tribunal by subsection (4) as follows:

‘In considering whether information or matter contained in a document should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the functions of the Tribunal that the parties to a proceeding should be made aware of all relevant matters but shall pay due regard to any reason specified by the Attorney‑General in the certificate as a reason why the disclosure of the information or of the matter contained in the document, as the case may be, would be contrary to the public interest.’

There is no role for the Court or the Tribunal in relation to a certificate given by the Attorney-General pursuant to s 36(1)(a) or (b) concerning a document.

27 In my opinion, when the statutory context is considered, it is clear enough that s 36A(2) provides for the exercise of original jurisdiction respectively by the Court and the Tribunal in deciding whether the answering of the question ‘would not be contrary to the public interest’. That is the ordinary meaning of the language. There is no indication that a review of the Ministerial decision in accordance with the principles of judicial review of administrative action is contemplated. There is no mechanism by which that could take place.

28 This is not a surprising result. On this basis s 36A(2)(a) obliges the Court to carry out the kind of exercise which is familiar in assessing a claim for public interest immunity at common law (eg Sankey v Whitlam (1978) 142 CLR 1; Alister v R (1984) 154 CLR 404) or the exclusion of evidence of matters of State pursuant to s 130 of the Evidence Act (eg Chapman v Luminis Pty Ltd (No 2) (2000) 100 FCR 229) and is consistent with s 36(4). The contest is between the public interest in the effective performance of the functions of the Tribunal on the one hand, and the public interest in the stated reason for non-disclosure, on the other. No other head of public interest is involved. It is neither necessary nor desirable to go beyond that in answer to the questions referred to the Full Court and to further discuss the manner in which the docket judge should approach the decision to be made in this case.

29 The question should be answered:

(a) Yes.

(b) No.

The costs of this reference should be the applicant’s costs in the cause.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 16 November 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 274 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT PROFESSOR G D WALKER

BETWEEN:

WONG TAI SHING

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGES:	GYLES, CONTI AND LANDER JJ
DATE:	16 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

CONTI AND LANDER JJ:

30 This is an appeal from the Administrative Appeals Tribunal (‘the Tribunal’) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).

31 The Court has been constituted as a Full Court pursuant to s 44(3) of the AAT Act. Whilst it is an appeal pursuant to s 44 of the AAT Act, the Court is, in fact, sitting in its original jurisdiction because this appeal is from a tribunal other than a court: s 19(2) of the Federal Court of Australia Act 1976 (Cth). This Court has the powers given to the Court pursuant to subs (4) and (5) of s 44 of the AAT Act. Moreover, this Court has the power to make findings of fact in the limited sense provided for in s 44(7) and may, for that purpose, receive further evidence pursuant to s 44(8) of the AAT Act.

32 Section 44(1) of the AAT Act provides:

‘(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.’

33 The matters necessary to ground a valid appeal are therefore first, that there is a decision of the Tribunal; secondly, that the applicant who is seeking to appeal is a party to the proceeding before the Tribunal; and thirdly, that the appeal is brought to the Federal Court on a question of law.

34 Absent any question of law, this Court has no jurisdiction to hear any appeal from the Tribunal. The question of law must constitute not merely a qualifying basis to ground the appeal but also be the subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J; HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 at [3]-[6]. It is sometimes difficult to determine whether a particular question is a question of fact, a mixed question of fact and law or a true question of law: Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 394; see also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 and Commissioner of Taxation v Roberts (1992) 37 FCR 246. However on this appeal, no such problem arises because the AAT Act itself identifies the question of law here arising, being a ‘question whether the answering of a question [or questions] would be contrary to the public interest’ within s 36D(2)(b) of the AAT Act. It is that question which must be, as Gummow J said in TNT Skypak, ‘the subject matter of the appeal’.

35 The proceedings before the Tribunal arose out of a request by the applicant for access to documents in the custody of the Minister under the Freedom of Information Act 1982 (Cth) (‘FOI Act’). A delegate of the Minister refused the applicant’s request and the applicant lodged an application for a review of the decision of the delegate with the Tribunal. The parties to this appeal have provided this Court with a Statement of Agreed Facts. The Statement of Agreed Facts shows:

‘2. The Tribunal Proceedings were concerned with issues as to whether documents were exempt under ss 33(1)(b), 36, 37(2)(b), 38, 40(1)(d), 41, 42 or 45 of the FOI Act and whether disclosure of certain documents would be contrary to s 503A of the Migration Act 1958 (Cth).’

36 The applicant is a national of the People’s Republic of China (‘PRC’). An issue arose in the proceedings as to the Minister’s dealings with the PRC in relation to PRC nationals. A document came to the attention of the applicant’s counsel. During cross-examination of a former officer of the Department of Immigration and now an officer of the Attorney-General’s Department, the following exchange took place:

‘Does a little bit more than that does it not Mr Riviere? Does it not show that the Department of Immigration maintained a list of PRC Nationals who were regarded as a very sensitive PRC case load? Shows that does it not?---It does show that.

That is in fact what was happening in the Department as at the date of this facsimile, wasn’t it?---I’m happy to concede that.

The Department actually had a list of PRC Nationals who China wished sent back. Is that right?’

37 At that stage, the Minister’s counsel objected on the ground of relevance and sought and obtained an adjournment. The Minister’s counsel later tendered to the Tribunal a certificate bearing date 10 April 2005 in the following form:

‘CERTIFICATE AND INFORMATION PURSUANT TO ADMINISTRATIVE APPEALS TRIBUNAL ACT

I, Philip Ruddock, Attorney-General of the Commonwealth of Australia, certify:

1. pursuant to section 36 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), that the disclosure of information concerning the matters specified in Schedule 1 to this Certificate (the Information) would be contrary to the public interest by reason that the disclosure of the Information would prejudice the international relations of Australia, being a reason for the purposes of section 36(1)(a) of the AAT Act.

2. pursuant to section 36A of the AAT Act, that in my opinion the answering by a person of a question, the answer to which would disclose the Information, in the course of giving evidence in these proceedings, would be contrary to the public interest for the reason referred to in paragraph 1 above.’

Both of ss 36 and 36A of the AAT Act are substantially reproduced later in these reasons.

38 The certificate refers to a Schedule which was provided to the Tribunal and in relation to which a confidentiality order was made. The Schedule was not included in the Appeal Book. The parties offered to show the Schedule to the Court but the Court was of the opinion that, at least for the present proceedings, it did not need to know the particular matters specified in the Schedule which were relied on by the Attorney-General for his opinion.

39 The certificate relies upon both s 36 and s 36A of the AAT Act. It is claimed in paragraph 1 of the certificate that the disclosure of information specified in Schedule 1 ‘would prejudice the international relations of Australia’, and in that regard s 36(1)(a) is relied upon. Paragraph 2 of the certificate relies on s 36A by claiming that the answering of any question, which disclosed the information indicated in Schedule 1, ‘would be contrary to the public interest’, again because it would prejudice the international relations of Australia.

40 When the Attorney-General provided the certificate, he became a party to the proceeding in the Tribunal as the second respondent by force of both s 36(3) and s 36A(2A) of the AAT Act. The Attorney-General was thereafter represented during the hearing of the proceedings to exercise the functions described in s 36D(7). During the further hearing, the Attorney-General’s legal representative objected to a number of questions put by the applicant’s counsel to witnesses called by the Minister, as the Statement of Agreed Facts show:

‘… on the basis that in the opinion of the Attorney-General the answering of the question would be contrary to the public interest for a specified reason, being a reason mentioned in s 36(1) of the AAT Act; that the Attorney-General’s opinion was set out in the Certificate and Schedule 1 to the Certificate; and that the witnesses were excused from answering the Questions.’

41 The Deputy President of the Tribunal (who was not a Judge of the Federal Court of Australia, as to which see s 36D(3) later extracted in these reasons) allowed the witnesses not to answer the questions where the Deputy President was satisfied that the subject matter of the question came within one of the items in Schedule 1 to the Attorney-General’s certificate the subject of the confidentiality order earlier referred to.

42 After the close of evidence, the applicant asked the Tribunal to refer a question of law to this Court for decision, the question being whether the answering of the questions objected to would be contrary to the public interest. Notwithstanding the respondents’ consent to that course, the Tribunal refused the application for that reference.

43 On 24 January 2006 the Tribunal published its decision which was:

‘[t]he documents listed in the respondent’s amended schedule dated 29 November 2005 are exempt from disclosure, except for documents 41 and 79 in the schedule.’

44 On 17 February 2006 the applicant filed his notice of appeal to the Federal Court from the Tribunal’s decision.

45 The notice of appeal is in the following form:

‘1. Take notice that the Applicant appeals from the decision and determination of the Administrative Appeals Tribunal, General Administrative Division, constituted by deputy president Walker given on 24 January 2006 whereby the Tribunal decided that the documents listed in the Respondent’s Schedule of exempt documents are exempt from disclosure, save for documents numbered 41 and 79 therein.’

46 The questions of law identified in the notice of appeal are:

‘(a) the answering of the several questions falling within the certificate issued by the Attorney-General dated 10 April 2005 under ss.36 and 36A of the Administrative Appeals Tribunal Act 1975 would not be contrary to the public interest (ss. 36A(2)(a) and 36D(2)(b) Administrative Appeals Tribunal Act 1975);

(b) the Tribunal has failed to take into account relevant considerations;

(d) the Tribunal has taken into account an irrelevant consideration.’

47 The decision complained of in the notice of appeal is the determination referred to in [43] above. The notice of appeal does not complain of any decision made by the Deputy President in relation to the certificate issued by the Attorney-General.

48 However the notice of appeal does identify as a question of law in paragraph (a) the answering of questions ‘falling within the certificate issued by the Attorney-General’ and whether the answers ‘would not be contrary to the public interest’. Reference is then made to s 36A(2)(a) and s 36D(2)(b) of the Act.

49 The notice of appeal is in the correct form. The only decision that the applicant could appeal from was the one identified in the notice of appeal, being that made by the Tribunal on 24 January 2006. We think, for the reasons which follow, nothing that the Deputy President did during the hearing, in relation to any ruling as to whether a witness should answer a question which might have been within the certificate issued by the Attorney-General, amounted to a decision under the AAT Act.

50 However, the applicant was also right to identify that issue raised in par (a) of the notice of appeal as a question of law. Although no decision was made within the meaning of the AAT Act by the Deputy President, the question whether the answering of a question would be contrary to the public interest is a question of law under the AAT Act: s 36D(2)(b).

51 On 7 June 2006 Conti J ordered that the following question be heard and determined by the Full Court as a separate question in the appeal:

(a) make a decision on the merits, by reaching its own opinion;

(b) determine the issue by reference to whether there was an error of law in the forming by the Attorney-General of his opinion; or

52 On the hearing of the separate question, the applicant contended the answer should be as in (a) and the respondents contended the answer should be as in (b).

53 It is the AAT Act which must supply the answer to the separate question. Division 4 of Part IV of the AAT Act provides for the procedure for a hearing in the Tribunal and the manner in which the Tribunal might deal with evidence of a sensitive nature.

54 Section 36 provides, so far as is material, as follows:

‘…

Attorney-General may issue public interest certificate

(1) If the Attorney-General certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest:

(a) by reason that it would prejudice the security, defence or international relations of Australia;

(b) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or

the following provisions of this section have effect.

Protection of information etc

(2) A person who is required by or under this Act to disclose the information or to produce to, or lodge with, the Tribunal the document in which the matter is contained for the purposes of a proceeding is not excused from the requirement but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information or the matter contained in the document is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged.

Disclosure of information etc

(3) Where the Attorney-General has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a) or (b), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal shall make the information available or permit the part of the document containing the matter to be inspected accordingly.

Attorney-General taken to be a party

(3A) Where, in relation to a proceeding to which the Attorney-General would not, but for this subsection, be a party, the Attorney-General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a) or (b), the Attorney-General shall, for the purposes of this Act, be deemed to be a party to the proceeding.

What Tribunal must consider in deciding whether to disclose information etc

(4) In considering whether information or matter contained in a document should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the functions of the Tribunal that the parties to a proceeding should be made aware of all relevant matters but shall pay due regard to any reason specified by the Attorney-General in the certificate as a reason why the disclosure of the information or of the matter contained in the document, as the case may be, would be contrary to the public interest.’

55 Paragraphs (a) and (b) of s 36(1) thus provide particular reasons why the Attorney-General might certify that ‘the disclosure of information… or the disclosure of any matter contained in a document, would be contrary to the public interest’. Paragraph (c) of s 36(1) allows ‘for any other reason specified in the certificate’ why the Attorney-General might so certify, in the context of ‘a judicial proceeding’,in order to obviate disclosure in the public interest.

56 Notwithstanding the provisions of s 36(1), subs (2) thereof does not excuse ‘[a] person who is required … to disclose the information or to produce to or lodge with the Tribunal the document’ from an obligation otherwise to do so. Subsection (2) is however designed ‘to ensure that the information or the matter contained in the document’ produced is only disclosed to the relevant member of the Tribunal, and that the document produced is in due course returned to the person ‘by whom it was produced or lodged’. In other words, subs (2) contemplates that information and documents containing matter which ‘would be contrary to the public interest’ for any of the reasons in paragraphs (a), (b) or (c) of s 36(1), will be produced to the Tribunal member who is presiding over a hearing of a proceeding in which a person is required by the AAT Act to disclose the information or produce the document. The information or the contents of the document will become known to that member, notwithstanding that the information or the contents of the document contain matter that it is in the public interest not to disclose. There is nothing in s 36 which would prevent the Tribunal using that information for the purposes of its decision, although subs (3) might so operate at the instance of the Tribunal as to prevent ‘all or any of the parties to the proceeding’ becoming aware of that information.

57 Subsection 36(3) differentiates implicitly between information disclosed or matters contained in a document which are subject to a certificate under s 36(1)(a) or (b) and those which are subject to a certificate under s 36(1)(c). In the latter case, the Tribunal has an obligation to ‘consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding’ in accordance with subs (3). There is no obligation on the Tribunal to consider information disclosed or matter contained in a document which is subject to a certificate under paragraph (a) or (b) of s 36(1), nor is there seemingly any exclusion of entitlement so to do stipulated by the statutory scheme of Division 4 of Part IV.

58 The section does not expressly state what specific responsibilities the Tribunal has in relation to information disclosed or documents produced by persons which are subject to a certificate of the Attorney-General pursuant to s 36(1) that the disclosure would be contrary to the public interest for either of the reasons contained in paragraph (a) or (b) of s 36(1), apart of course from what is explicitly stipulated in subss (2) to (4). It is, however, implicit in the section that there be no disclosure of that information or those documents, except to the member of the Tribunal who is conducting the hearing of the proceeding.

59 When the Tribunal is called upon to make a decision under s 36(3) of the AAT Act as to disclosure ‘to all or any of the parties to the proceeding’, as occurred in the present case, the Tribunal must be ‘constituted by a presidential member who is a Judge of the Federal Court of Australia’: s 36D(3). As earlier pointed out, the Tribunal below was not however so constituted.

60 In performing its statutory obligation under s 36(3), the Tribunal, as thus constituted by a presidential member, must take into account the matters in s 36(4). It is at least implicitly clear from the terms of s 36(4) that the presidential member of the Tribunal, if a Judge of the Federal Court, will be called upon to consider the merits of the Attorney-General’s claim that the disclosure of information, or the disclosure of any matter contained in a document, ‘would be contrary to the public interest’. However, in fulfilling that obligation, the Tribunal is constrained by s 36D(6), which is in the followingterms:

‘(6) Sections 36 and 36B exclude the operation of any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal.’

61 Sections 36(4) and 36D(6) make it clear that the Tribunal, constituted by a presidential member who is a Judge of the Federal Court of Australia, might enquire into the merits of the Attorney-General’s certificate, that is, whether the reason given in the certificate supports the assertion that the information or the matter contained in the document, if disclosed to the parties, ‘would be contrary to the public interest’. There would be no need to include ss 36(4) and 36D(6) if the presidential member was not conducting an inquiry of that kind.

62 Section 36(3A) deems the Attorney-General to be a party to a proceeding, when that would not otherwise be the case, and where in accordance with s 36(1), ‘… the Attorney-General certifies…, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest…’, but the certificate does not specify a reason referred to in paragraph (1)(a) or (b) of s 36(1). It would follow, therefore, that if the Attorney-General certifies that the disclosure of information or the disclosure of any matter contained in a document would be contrary to the public interest for any of the reasons appearing in paragraphs (a) and (b) of s 36(1), the Attorney-General does not thereby become a named party to the proceeding. That would be seemingly appropriate at least where the Attorney-General’s efficacy of the certificate relies upon one of the reasons in paragraph (a) or (b) of s 36(1), since there is no procedure provided to inquire into the efficacy of the certificate. Indeed, the Tribunal does not have power to consider whether any information disclosed or the contents of any document produced, which is subject to such a certificate, should be disclosed to any of the parties to the proceeding. It would further seem from the scheme of s 36, involving the circumstance where a document is delivered to the Tribunal as required under the Act, but the document is subject to a certificate under paragraph (a) or (b) of s 36(1), that the document may be viewed by the member of the Tribunal, but there is no power conferred on the Tribunal, in those circumstances, to make the document available to the parties. There is no need envisaged by the Legislature therefore to make the Attorney-General a party to those proceedings. On the other hand, the Attorney-General needs to be a party to the proceeding if the presidential member of the Tribunal is called upon to make a decision under s 36(3), because given the absence of specification of a matter identifiable as falling within paragraphs (a) or (b) of s 36(1), the Tribunal will need to inquire into the merits of the claim and make its own decision.

63 Section 36A of the Act provides a scheme for the answering of questions where the Attorney-General intervenes on so-called ‘public interest grounds’, as the heading thereto foreshadows. Those ‘public interest grounds’ comprise of course the matters described respectively in pars (a), (b) and (c) of s 36(1). It is appropriate to reproduce below the text of s 36A, except to the minor extent immaterial:

‘Scope

…

Intervention by Attorney-General

When person excused from answering questions

(b) in any other case—the Tribunal decides that the answering of the question would not be contrary to the public interest.

Attorney-General taken to be a party

64 Section 36A thus applies in relation inter alia to oral evidence ‘at the hearing of a proceeding before the Tribunal’, as subsection (1) explains. The Attorney-General is empowered by subsection (2) to inform the Tribunal that the answering of a question ‘would be contrary to the public interest’ for a reason mentioned in s 36(1). Section 36A does not prescribe the way in which the Attorney-General might inform the Tribunal. That is dealt within s 36D(7) of the AAT Act which provides, to the extent here relevant in the case of the Attorney-General (of course of the Commonwealth):

‘(7) The Attorney-General…:

(b) may so inform the Tribunal of his or her opinion by causing to be sent to the Tribunal a written certificate that is signed by him or her and sets out that opinion.’

65 The provisions of s 36D(7)(a) implicitly authorise the Attorney-General to inform the Tribunal of the Attorney-General’s opinion in accordance with s 36A, and to do so orally through the medium for instance of a legal practitioner. Alternatively, the Attorney-General is entitled pursuant to s 36D(7)(b) to inform the Tribunal of the Attorney-General’s opinion by providing a written certificate to the Tribunal signed by the Attorney-General and setting out the Attorney-General’s opinion. In this case, the Attorney-General did both. He informed the Tribunal of his opinion in the certificate extracted in [37] above and then, through his legal adviser, informed the Tribunal of the questions to which his opinion attached.

66 Paragraphs (a), (b) and (c) of s 36(1) provide three reasons why the Attorney-General might inform the Tribunal that the answering of a question ‘would be contrary to the public interest’, that appearing in par (c) commencing broadly by the description ‘for any other reason specified in the certificate’, being of course a reason additionalto those specified in pars (a) and (b). Section 36A treats any certification by the Attorney-General that the answering of a question ‘would be contrary to the public interest’, for a reason referred to in paragraphs (a) and (b) of s 36(1), differently from a reason for non-disclosure ‘specified in the certificate’ pursuant to paragraph (c) of s 36(1). Hence s 36A(2) stipulates for the denial of excuse to answer on public interest grounds (a) and (b) in the context of a Federal Court appeal (or pursuant to the transfer of that appeal to the Federal Magistrates Court), and for the denial of excuse to answer on what may be described as the residuary ‘contrary to public interest’ ground (c) of s 36(1).

67 Section 36A(2)(a) thus has the effect that ‘[w]here the Attorney-General so informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest’, for a reason referred to in paragraph (a) or (b) of s 36(1), ‘that person is excused from answering the question’, subject only to a different outcome as the result of any subsequent appeal, or of any reference of a question of law, in either case to the Federal Court. That means that, unlike under s 36, where the person still has the duty to disclose the information or produce the documents to the Tribunal, the Tribunal will not be made aware of the information which is said to be contrary to the public interest.

68 Although there are provisions in the AAT Act that allow for a hearing to take place in private, and in that event provisions are made for specific directions to accommodate that circumstance (see s 35(2)), ordinarily a proceeding before the Tribunal will be heard in public: s 35(1). If a person is not excused from answering a question of the kind referred to in s 36A(2), the answer would not only become known to the Tribunal but also to the parties and to any member of the public who happens to be present at the Tribunal hearing for whatever reason at the time that the answer is given.

69 Section 36A(2) therefore provides a different regime for considering the Attorney-General’s opinion in relation to the answering of a contentious question, that is to say ‘[w]here the Attorney-General so informs the Tribunal that, in his or her opinion, the answering of a question would be contrary to the public interest’. Rather than require the person giving the evidence to disclose the information or produce the document to the Tribunal, as is the requirement under s 36(2), a regime is put in place to consider whether ‘… the answering of the question would not be contrary to the public interest’. That s 36A(2) regime differentiates in effect between a certificate given under paragraphs (a) or (b) of s 36(1), and ‘in any other case [where] the Tribunal decides that the answering of the question would not be contrary to the public interest’. In the former circumstances, it is this Court on an appeal under s 44 or on a reference under s 45 which will be called upon to decide the question of law arising as to contrariety to the public interest. In the latter situation, it is for the Tribunal to make the decision, but seemingly in that case, ‘the power to make a decision may only be made by a Tribunal constituted by a presidential member who is a Judge of the Federal Court of Australia’, depending upon whether any of the jurisdictional circumstances specified in s 36D(3) apply.

70 Section 36A(2), which relates to excusing a person from answering a question in a Tribunal proceeding unless ‘… the answering of the question would not be contrary to the public interest’, like s 36(3) relating to the disclosure of information, or of matter contained in a document, demonstrates Parliament’s intention that the disclosure by way of giving of information or evidence, oral or documentary, which is subject to a certificate under paragraph (a) or (b) of s 36(1), requires a higher level of protection than information which is the subject of a certificate under paragraph (c) of s 36(1). Where a certificate is given by the Attorney General under s 36 for either of the ‘public interest’ reasons in paragraphs (a) or (b) of s 36(1), the claim that the answering of a question would be contrary to public interest is only subject to review if a party appeals to this Court under s 44 by reference to the question of law inherently arising or in effect obtains a reference by the Tribunal to this Court of the question of law thereby arising under s 45.

71 It is necessary to keep steadily in mind the procedure provided for in s 36A(2). Section 36A(2) excuses a person from answering a question where the Attorney-General has informed the Tribunal that, in the Attorney-General’s opinion, ‘the answering by a person of [that] question would be contrary to the public interest’. It is the Act which thereupon operates to excuse the person involved from ‘answering the question’, unless either one of the decisions stipulated under paragraph (a) or (b) of s 36A(2) is made by the Tribunal to negative the contrariety of the public interest therein provided for.

72 If the certificate has been given under paragraph (a) or (b) of s 36(1), the person otherwise required by or under the AAT Act to disclose the information or provide the document is excused, unless the Court on appeal under s 44, or on a reference under s 45, decides that the answering of the question would not be contrary to the public interest. That means that no decision is made in the Tribunal in relation to that person answering the question in controversy or otherwise. There is hence no decision from which to appeal and thereby no appellable circumstance originating from the operation of s 36A(2)(a). It follows, therefore, that the appeal which is contemplated in s 36A(2)(a) must be in relation to a decision in the Tribunal proceeding. That could either be the final decision in the proceeding or some anterior decision. If a certificate has been given under paragraph (a) or (b) of s 36(1), the question whether the answering of the question would not be contrary to the public interest is only justiciable before this Court if there is a decision relevantly in the proceeding susceptible to appeal, subject to the qualification that there may be a reference by the Tribunal under s 45 to this Court, because s 45 does not require that there be a decision before a reference can be made, but only that there be a question of law arising in a proceeding. The question whether the answering of the question would not be contrary to the public interest is a question of law: s 36D(2)(b). Questions as to ‘whether information, or matter contained in a document, should be disclosed to the parties to a proceeding’, or as to whether ‘the answering of a question would be contrary to the public interest’, constitute questions of law: s 36D(2). Therefore, there could be reference of a question of either kind arising during the course of the proceeding and before any decision of any kind is made in the proceeding.

73 The position is somewhat different if the public interest certificate has been given by the Attorney-General ‘for any other reason’ under paragraph (c) of s 36(1). In that case, the person is excused from answering the question unless the Tribunal decides that the answering of the question would not be contrary to the public interest, subject to the provisions of subss 36(2) and (3) as to the protection and restricted disclosure of information in a Tribunal proceeding. Under s 36A(2)(b), a decision may be made by the Tribunal at the instance of the Attorney-General as to whether ‘the answering of the question would be contrary to the public interest for a specified reason or reasons… mentioned in subsection 36(1)’. That decision so made by the Tribunal must be constituted by ‘a presidential member who is a Judge of the Federal Court of Australia’: s 36D(3). In answering that question the presidential member of the Tribunal is required to have regard to the reasons given by the Attorney-General and why those reasons might mean that the answering of the question would be ‘contrary to the public interest’, and also to examine the facts and circumstances which are said to support such reasons, and to decide that question for itself. The Tribunal’s decision would be a decision from which an appeal would lie on a question of law to the Federal Court pursuant to s 44: s 36D(4). Although it is deemed to be a question of law by s 36D(2)(b) ‘[f]or the purposes of the Act’, ‘the Tribunal constituted by a presidential member’ within s 36D(3) having the responsibility for answering the question must have regard to the facts and circumstances which are said to support the reason for the decision, and to the impact those facts and circumstances would have on the public interest.

74 Sections 36B and 36C of the AAT Act offer the same protection to a State Attorney-General, although the reasons which might give rise to the certificate are obviously different. There is no equivalent reason, of course, to that appearing in s 36(1)(a) which may operate in relation to a State. It is not necessary on this appeal to consider the provisions of ss 36B and 36C.

75 Section 36D of the Act is therefore important, relating as it does partly to public interest questions arising under ss 36 and 36A. Subsections 36D(1) to (4) thereof, so far as material, are reproduced below; subsections (6) and (7) of s 36D have been earlier reproduced in these reasons:

‘Parties to be notified of Tribunal’s decision

(1) As soon as practicable after making a decision:

(a) under subsection 36(3)…in relation to information, or matter contained in a document, in relation to a proceeding; or

(b) under paragraph 36A(2)(b)… in relation to the answering of a question at the hearing of a proceeding;

the Tribunal shall give to each party to the proceeding a document setting out the terms of the Tribunal’s decision.

Questions of law

(2) For the purposes of this Act:

(a) the question whether information, or matter contained in a document, should be disclosed to the parties to a proceeding; or

(b) the question whether the answering of a question would be contrary to the public interest;

is a question of law.

Constitution of Tribunal

(3) The Tribunal’s power to make a decision under subsection 36(3)… or paragraph 36A(2)(b)… may be exercised only by the Tribunal constituted by a presidential member who is a Judge of the Federal Court of Australia.

Appeals

(4) A decision by the Tribunal:

(a) under subsection 36(3)… as to whether or not information, or matter contained in a document, should be disclosed to all or any of the parties to a proceeding; or

(b) under paragraph 36A(2)(b)… that the answering of a question at the hearing of a proceeding would, or would not, be contrary to the public interest;

is a decision by the Tribunal in that proceeding for the purposes of section 44.’

76 Section 36D(1) describes the exercise of Tribunal functions here relevant, that is, as described in ss 36(3) and s 36A(2)(b), being those functions earlier identified in these reasons respectively as those of ‘disclosure of information, or of matter contained in a document’, and as those of ‘answering of the question… not be[ing] contrary to the public interest’, as comprising a ‘decision’ madeof course under the AAT Act. The decision is that of the Tribunal constituted by a presidential member made under s 36D(3) upon a question of law as to whether for the purposes of s 36D(2)(a), ‘… information, or matter contained in a document, should be disclosed to the parties to a proceeding’, or whether under s 36D(2)(b), in any other case ‘the answering of the question would not be contrary to the public interest’. Section 36D(1) does not address the Tribunal’s function exercisable under s 36A(2)(a), which incorporates reference to s 36(1)(a) and s 36(1)(b) which concern the occasioning of ‘prejudice [to] the security, defence or international relations of Australia’ or ‘the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet’.

77 Section 36D(4) makes any decision of the Tribunal made inter alia under ss 36(3) or 36A(2)(b), a decision for the purposes of s 44 of the AAT Act. For reasons already given, it is only necessary to deem decisions under s 36(3) and s 36A(2)(b) as decisions under the AAT Act. Like s 36D(1), s 36D(4) does not address the Tribunal’s function under s 36A(2)(a). That lends support to the view already expressed that ‘[w]here the Attorney-General… informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest, that person is excused from answering the question’, by operation of the AAT Act. Where the reason given by the Attorney-General is a reason stipulated by paragraph (a) or (b) of s 36(1), being that of occasioning ‘prejudice [to] the security, defence or international relations of Australia’, or that of involving ‘the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet’, no decision may be made by a Tribunal, whether or not constituted by a presidential member, of the kind identified in s 36D(3). The only relevant decision that can be made by a Tribunal member is that under s 36A(2)(b), being of course ‘… that the answering of the question would not be contrary to the public interest’.

78 Section 36D(2) deems ‘the question whether information or matter contained in a document should be disclosed to the parties to a proceeding’ to be ‘a question of law’: see par (a) thereof in particular. That must only apply to a s 36(3) decision, because s 36(3) only applies where the Attorney-General has relied on a reason under s 36(1)(c) in furnishing a certificate under s 36(1) as to any such disclosure being ‘contrary to the public interest’. So the subject Tribunal decision under s 36(3), which is thus deemed by s 36D(2)(a) to involve a question of law, is the decision ‘… whether information or matter contained in a document, should be disclosed to all or any of the parties to the proceeding…’. That decision could only have been arrived at by deciding whether the information or the matter disclosed in the document the subject of consideration should not be disclosed to a party because to do so would… be ‘contrary to the public interest… for any other reason specified in the certificate’ given under s 36(1)(c) by the Attorney-General. That decision, for the reasons already given, was required to have been made by the Tribunal upon the merits. Whenever the Attorney-General certifies that the disclosure of information or any matter contained in a document would be contrary to the public interest for either of the reasons in s 36(1)(a) or (b), that information or matter would not be disclosed to the parties, and accordingly the question would not arise. The occasion therefore would never arise for the deeming by s 36D(2) of any question arising thereunder to constitute ‘a question of law’.

79 However, the operation of s 36D(2)(b) is wider. As has been seen, s 36D(2)(b) deems ‘the question whether the answering of a question would be contrary to the public interest… a question of law’. That question is the same, whatever the reason the Attorney-General has relied upon under s 36(1) for informing the Tribunal that pursuant to s 36A(2), ‘the answering by a person of a question would be contrary to the public interest…’.

80 That deeming provision in s 36D(2)(b) has been enacted to permit this Court to examine a question of law arising on an appeal in the circumstances to which reference has been made, or on a reference if the Attorney-General has relied upon a reason in paragraphs (a) or (b) of s 36(1), or on an appeal from a decision of a presidential member of the Tribunal, where the Attorney-General has relied upon what is described in par (c) of s 36(1) as ‘… any other reason specified in the certificate, that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed’.

81 The two questions framed in s 36D(2) do not necessarily either solely or exclusively constitute per se questions of law. In some circumstances, an issue of fact may conceivably arise as to ‘whether information contained in a document’, if disclosed, ‘would be contrary to the public interest’, for any reason in a certificate under paragraph (c) of s 36(1). Those questions may involve instead issues of mixed law and fact where they arise from a purported certificate of the Attorney-General under s 36(1). But for the deeming provisions in that subsection, those questions may well not be the subject of an appeal under s 44, because that section not only requires that there be a ‘decision’ but that the appeal be ‘on a question of law’. Therefore, but for the deeming provisions of s 36D(2), ‘the question whether the answering of a question would be contrary to the public interest’ therein postulated may not be open for consideration by this Court on an appeal under s 36A(2)(a).

82 The effect of subss 36D(1) and (4) is to make a decision of the Tribunal under s 36(3), a decision under the AAT Act. The effect of s 36D(2)(a) is to deem the s 36(3) decision a question of law. The combined effect of all three subsections of s 36D is to render the s 36(3) decision appealable to this Court under s 44 of the AAT Act as ‘a question of law’. But for those subsections, that decision may not be appealable, depending upon the subject matter of appeal. Subsections (1), (2) and (4) of s 36D together have the effect of deeming a decision made under s 36A(2)(b) a question of law which is appealable under s 44 of the AAT Act, involving as it would an issue as to a postulation of the notion of contrary to the public interest. The effect of those subsections is that any decision made under s 36(3) or s 36A(2)(b), by a presidential member of the Tribunal, who is a Judge of the Federal Court of Australia, is appealable to this Court under s 44 of the AAT Act. It is not because the decision made by the presidential member constitutes necessarily a question of law, but because s 36D(2) deems the question under s 36(3) or s 36A(2)(b) a question of law.

83 Subsections 36D(1) and 36D(4) have no application to a circumstance where the Attorney-General informs the Tribunal that in his or her opinion, the answering by a person of a question would be contrary to the public interest for a reason given in paragraph (a) or (b) of s 36(1). What s 36D(2)(b) does in respect of that circumstance is to deem the question to be a question of law but only so that it can be addressed in the context of an appeal under s 44 of the AAT Act or of a reference under s 45 of the AAT Act.

84 Where a presidential member of the Tribunal, who is also a Judge of the Federal Court of Australia, is called upon to adjudicate upon an issue as towhether ‘disclosure of information, or of matter contained in a document would be contrary to the public interest’ under s 36(3), where ‘the certificate does not specify a reason referred to in s 36(1)(a) or (b)’, or is called upon to adjudicate upon an issue as to whether ‘the answering of the question would not be contrary to the public interest’ pursuant tos 36A(2)(b), the presidential member must make his or her decision on the merits. So much was conceded by Mr Burmester, senior counsel for the respondents. He argued, however, that notwithstanding that the process of Tribunal consideration and decision-making under s 36(3), and the function of Tribunal excusing or otherwise of a party or witness from answering a question as not being ‘contrary to the public interest’ under s 36A(2)(b), are merits review procedures, the procedure under s 36A(2)(a), providing for an appeal or reference to this Court, does not give rise to an examination of the merits.

85 That contention of the respondents must be rejected. Although s 36D(2)(b) has the effect of deeming ‘the question whether the answering of a question would be contrary to the public interest [to be]… a question of law’, it does so only for the purpose of allowing this Court on appeal to consider that issue in the particular circumstances of the case. If the issue whether the answering of a question would be contrary to the public interest is not a question of law within s 36D(2)(b), then notwithstanding the procedure stipulated under s 36A(2)(a), this Court could not examine the question on appeal. However, in deeming that question to be a question of law, this section does not, and nor do any other sections of the Act, restrict this Court’s ability to answer that question. If that question is, as we have said, one of mixed fact and law, then it can only be answered by reference to the facts in evidence. The question of law remains the same, and as Gummow J said in TNT Skypack, it is the subject matter of the appeal.

86 If Mr Burmester’s contention was to be accepted, it would lead to the enigmatic result that when the question whether the answering of a question would be deemed to be a question of law by the operation of s 36D(2)(b), is examined by a presidential member of the Tribunal who is a Judge of the Federal Court of Australia, that question is required to be so examined on the merits, but when the same question is examined on appeal to the Federal Court, under s 44, or on a reference by the Tribunal to this Court under s 45, the Court must ignore the merits.

87 Section 36D(6) supports the conclusion that this Court must examine the question of law, ‘whether the answering of a question would be contrary to the public interest’, in the same manner as a presidential member would undertake when called upon to examine a question arising under s 36A(2)(b). Section 36D(6) applies, relevantly, to a consideration by a presidential member under s 36(3). It specifically does not purport to apply, and therefore does not purport to exclude, the operation of any rules of law that relate to the public interest where the question of law to be examined is that referred to in s 45 of the AAT Act, that is whether ‘the answering of a question would be contrary to the public interest’. In those circumstances, where the Court on appeal or on a reference under s 36(2)(a) is called upon to consider that question of law, the Court is not excluded from having regard to those rules of law. For all of those reasons, the Court must examine the question by reference to the facts and circumstances giving rise to the certificate given by the Attorney-General and reach its own decision.

88 In doing so, the Court would no doubt take as the basis of its consideration, as the Tribunal must:

‘… the principle that it is desirable in the interest of securing the effective performance of the functions of the Tribunal that the parties to a proceeding should be made aware of all relevant matters but shall pay due regard to any reason specified by the Attorney-General in the certificate as a reason why the disclosure of the information or of the matter contained in the document, as the case may be, would be contrary to the public interest’: s 36(4) of the AAT Act.

89 We agree with Gyles J that the competing interests under consideration in an appeal or a reference under s 36A(2)(a) of the AAT Act are on the one hand the interest in securing the effective performance of the function of the Tribunal and on the other hand the public interest in the Attorney-General’s stated reason for non-disclosure.

90 Mr Burmester put as an alternative contention that the appeal which was undertaken under s 36A(2)(a), was an appeal from the decision of the Attorney-General to give the certificate in the form that was actually given. That contention must be rejected. The Attorney-General, by force of s 36A(2)(a), is a party to the proceeding in the Tribunal. The AAT Act does not provide a procedure whereby one party may appeal against a decision made by another party. If that contention is correct, there would be no need to deem the question whether the answering of a question would be contrary to the public interest to be a question of law pursuant to s 36D(2), because that would not be the decision which, on the contention so made, would be considered by this Court. Moreover, it would mean that the question to be considered by this Court would be different from the question which was considered by a presidential member under s 36A(2)(b), involving the issue whether ‘the answering of the question would be contrary to the public interest’.

91 The questions referred to this Court should reflect what we consider to be the statutory intent that the Court should determine the question arising to the effect that the Court on an appeal under s 44 of the AAT Act should make its decision on the merits by reaching its own opinion.

92 We agree with the answers to the question and with the order for costs proposed by Gyles J.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Conti and Lander.

Associate:

Dated: 16 November 2006

Counsel for the Applicant:	Mr RB Wilson

Solicitor for the Applicant:	Mr Peter WH Leung

Counsel for the Respondents:	Mr H Burmester QC, Ms M Allars

Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	8 August 2006

Date of Judgment:	16 November 2006

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