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News and insights December 2010

Public law report Welcome to our final edition of Public law report for 2010, which caps off our very successful first year as Norton Rose Australia, part of a leading international legal practice offering a full business law service from offices across Europe, the Middle East and Asia Pacific. Norton Rose Australia has a longstanding commitment to partnering with government to achieve its policy and business outcomes. Our focus on government is evidenced by the presence of a Canberra office for more than 25 years, our appointment to a number of leading Commonwealth and State government legal panels and our work for many local governments. In this edition, we maintain our excellent standard and variety of interesting and topical articles on decisions and policy matters relevant to government. We take a look at new developments in the Commonwealth government “access to information” space, including an article introducing the role and functions of the new Australian Information Commissioner, Professor John McMillan. We also consider some interesting recent administrative law decisions relating to immigration and health. We take this opportunity to thank our readers for their support of the Public law report in 2010 and we look forward to putting out our next edition in March 2011. n

Contents 02 Ministerial briefing notes do not attract presumptive immunity from disclosure

09 ‘No reasonable prospect’: Spencer v The Commonwealth of Australia

03 Stand by your man

10 The threat of the inexplicable

05

12 Reforming the FOI regime – the key changes

Do the requirements of procedural fairness preclude the confidentiality necessary for legal professional privilege?

06 Water charges imposed by the Australian Capital Territory: an invalid tax? 08 HMAS Adelaide – an environmentally friendly burial

14 Introducing the Office of the Australian Information Commissioner 16 Commonwealth snapshot 17 The rules of pleadings bind all litigants, including those who are self-represented

18 Unfulfilled written “guarantee” by Government not misleading and deceptive conduct 20 High Court finds Court of Appeal failed to act in accordance with remitter 22 Stage two of the Australian Consumer Law Reforms 23 Misfeasance in public office – gaining popularity 26 Landmark High Court decision affects offshore processing for asylum seekers

Public law report

Ministerial briefing notes do not attract presumptive immunity from disclosure In RP Data Limited v Western Australian Land Information Authority [2010] FCA 922, the Federal Court ruled that Ministerial briefing notes do not presumptively attract “public interest” immunity. The decision was made in the context of discovery proceedings where the Federal Court considered the extent to which public interest immunity protected government information from disclosure. While this decision is in the context of WA litigation, the decision is a timely review of the factors that can protect government information from disclosure in light of the new “public interest” provisions in the Freedom of Information Amendment (Reform) Act 2010 (Cth) (FOI Reform Act).

Background During discovery proceedings, the applicant sought an order that the respondent produce documents characterised as “Ministerial briefing notes”. The respondent claimed that the documents were subject to “public interest immunity” and therefore could not be disclosed. Importantly, the respondent argued that the Ministerial briefing notes fell into a class of governmental documents that presumptively attracted public interest immunity. The respondent further argued that it did not have the authority to “waive” the immunity as this responsibility belonged to the Court. Both parties agreed that it was appropriate for the Court to review the disputed documents in order to issue its decision. 02 Norton Rose Australia December 2010

Judgment The Court reviewed the Ministerial briefing notes and rejected that: (1) they fell into a class of documents presumptively attracting public interest immunity, or (2) they otherwise warranted protection due to their content. While the Court agreed that Cabinet minutes would fall into a class of documents presumptively attracting public interest immunity, the Court did not believe that Ministerial briefing notes were on the same level. The Court’s reasoning was as follows:

government at the highest levels and sensitive areas of executive responsibility,

Cabinet minutes, public interest immunity allows policy makers to internally discuss issues candidly,

briefing notes were not “intended to underpin any Cabinet deliberations”, and

briefing notes would not undermine the workings of government (an example of such undermining cited by the Court would be if the Australian Statistician were forced to disclose identities of survey participants). The Court explained that the fact that Ministerial briefing notes do not attract public interest immunity

as a class “heightens the public expectation that public servants will give accurate and reliable information to Ministers … that would withstand the light of day”. Finally, the Court rejected the respondent’s claim that it did not have the power to waive public interest immunity and as such ordered the respondent to pay the costs of the proceedings.

FOI Reform Act Since this case involved disclosure under discovery, there was no application of the Western Australian FOI regime. However, the discussion is nonetheless useful in considering how the public interest criteria will be applied in the Commonwealth context under the FOI Reform Act. Under the FOI Reform Act, some documents are exempt from disclosure if disclosure would be contrary to the public interest. They are called “conditionally exempt” documents. Importantly, documents relating to “deliberative processes” are conditionally exempt. In many cases, they would include advice to the Minister on decision-making. In determining whether those documents must be disclosed under an FOI request, it is necessary to consider the “public interest”. n

For further information contact: Courtney Macintosh Senior associate Norton Rose Australia Tel +61 2 6159 4423 [email protected]

Public law report

Stand by your man The Full Court of the Federal Court has ruled (2:1) in Stoddart v Boulton (2001) 185 FCR 409, on appeal from Justice Reeves’ judgment at first instance, that the common law privilege against spousal incrimination has not been abrogated by the Australian Crime Commission Act 2002 (Cth) (the Act). The appellant, Mrs Louise Stoddart, is married to Ewan Alisdair James Stoddart. They were married at the time when the Examiner from the Australian Crime Commission (ACC), Mr Boulton, required Mrs Stoddart to answer questions about her husband during an examination under the Act. Mrs Stoddart asserted a common law ground of spousal immunity, and sought orders for relief under s 21 of the Federal Court of Australia Act 1976 (Cth) in the form of a declaration that “the common law privilege or immunity against spousal incrimination had not been abrogated by the [Act]” and an injunction “restraining the Examiner of the Australian Crime Commission from questioning her in relation to matters concerning Ewan Alisdair James Stoddart” (her husband). Justice Reeves, at first instance, refused relief of any kind.

Background Mrs Stoddart had been summonsed under s 28 of the Act to appear before Mr Boulton at an examination to give evidence of “federally relevant criminal activity” involving four entities and 10 people, information which would have incriminated both herself and her husband. Mr Boulton’s examination was conducted under Division 2 of Part II of the Act for the purposes

of a “Special Australian Crime Commission investigation”. Essentially, special investigations are allowed under the Act to determine whether a person is involved in serious organised crime. The Act is a far-reaching piece of legislation that compels persons summonsed under it to perform certain duties or provide certain information to the ACC. The Act’s powers allow the ACC to investigate organised crime through wider methods than otherwise allowed under the common law. Section 30 of the Act casts statutory obligations upon examinees which should be noted from the outset, including the following:

issued with a summons to appear as a witness at an examination must come, unless excused by the examiner,

summonsed witness must either take an oath or make an affirmation to tell the truth,

witness must answer the examiner’s questions, and

must provide any documents or things required by the examiner. Failing to comply with any of the above provisions of the Act is an indictable offence which is punishable, upon conviction, by a large fine or imprisonment for a period of up to 5 years.

By necessary implication, s 30 of the Act abrogates the immunity from self-incrimination with respect to answering an examiner’s questions. This was made plain in the Full Federal Court decision of A v Boulton & Ors (2004) 136 FCR 420. The decision was based upon the Act’s provision of a “limited use” immunity which can be claimed in some described circumstances for selfincriminating answers. Section 30(5) provides that any selfincriminating answer or document is not admissible in evidence against the examinee in a criminal proceeding or proceeding for the imposition of a penalty other than a confiscation proceeding or a proceeding concerning the falsity of an answer. This small measure of protection afforded to an examinee under the Act arises as a public interest protection for any person summonsed by the ACC (where, by inference, the common law privilege against selfincrimination has otherwise been stripped away by the legislation).

Judgment The Court set out the well-known and uncontroversial principles to be applied in determining whether an Act abrogates a common law right: 1) a statute is not to be construed as abrogating a common law right and privilege except by clear words or necessary implication, 2) an intention to exclude a common law privilege may be gleaned from a statute even though express words of exclusion are not used,

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3) the question of whether the statute impliedly abrogates a privilege is to be determined upon the proper construction of the statute, considered as a whole, and from its character and purpose, 4) important common law privileges are not to be lightly abrogated and the often mentioned phrase “necessary implication” requires that there be a high degree of certainty as to the intention of the legislature – it must be an intention manifested by unmistakeable and unambiguous language, 5) there must be a manifestation or indication that the legislature has directed its intention to the question of abrogation and has consciously determined that the privilege is to be excluded, 6) general words will not be sufficient to disclose the requisite intention unless it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification, and 7) the presumption that the legislature does not intend to abrogate entrenched common law rights may be displaced by

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implication if it is necessary to prevent the statute from being rendered inoperative or meaningless, or from frustrating the evident statutory purpose. Mrs Stoddart claimed that under the Act, the common law immunity from spousal incrimination was a truly separate common law right from the privilege against self-incrimination and from legal professional privilege.

instance failed to properly apply the seven principles. After careful consideration of the history and development of spousal privilege and related cases, the majority of the Full Court (Logan and Spender JJ) agreed with Mrs Stoddart. The Full Court allowed her appeal, set aside the judgment at first instance, but declined to grant the injunction.

Implications Her argument was based partly on the fact that the Act does not expressly provide any compensating protection for the examinee’s spouse in the form of “limited use” immunity for any incriminating evidence given, whereas the “limited use” immunity is offered for those examinees who provide self-incriminating evidence. As such, Mrs Stoddart argued that the implication to be drawn from the Act is that Parliament chose to preserve the operation of the common law right of spousal immunity for the purposes of the Act, and that spousal privilege was a distinct privilege. Based on the seven principles above, she argued that the Court could not deduce that the spousal privilege had been stripped away. In her appeal, Mrs Stoddart argued that the presiding judge at first

In future cases, it might be possible to use Mrs Stoddart’s argument and this judgment to avoid spouses being questioned in ASIC investigations of a similar nature, subject to the provisions of the relevant legislation. n

For further information contact: Kelly Douglas Associate Norton Rose Australia Tel +61 2 9330 8902 [email protected]

Public law report

Do the requirements of procedural fairness preclude the confidentiality necessary for legal professional privilege? A recent interlocutory decision of the Federal Court of Australia, Griffiths v Rose [2010] FCA 964, dismissed a challenge to legal professional privilege of legal advice on the basis of procedural fairness.

sought to rely upon the reasons of Brennan J in Kioa v West (1985) 159 CLR 550. The applicant’s submission was that natural justice or procedural fairness prevented the sufficiency of confidentiality that was inherent in any claim of legal professional privilege.

Background The applicant in the proceedings had been a SES Band 1 employee of the Commonwealth Department of Resources, Energy and Tourism (the Department). The case involved a decision to terminate the applicant’s employment on 18 March 2010, and an earlier decision that the applicant had breached the Australian Public Service Code of Conduct. The applicant sought judicial review of these decisions. As part of the judicial review process, the applicant served the respondent with a Notice to Produce documents dated 29 May 2010. The respondent refused to comply with the Notice to Produce on the basis that it sought the production of documents (substantively legal advice) which on their face appeared protected by legal professional privilege. The applicant’s legal counsel sought to argue the relevant documents were not privileged because they did not have the requisite confidentiality. In particular, the applicant’s counsel sought to rely on a proposition that natural justice or procedural fairness required an administrative decision-maker to make available to the person affected by the decision, adverse information that is credible, relevant and significant to the decision to be made. The applicant

Judgment Justice Stone rejected the applicant’s arguments on a number of grounds. First, her Honour pointed out that Brennan J in Kioa had recognised the problem of confidentiality and that it in turn affected the extent of the proposition which he had developed. Secondly, her Honour made the point that Brennan J had really been referring to a situation of “adverse information”, and not to the “decision maker’s thought processes or analyses of legal principle”. Finally, her Honour noted the implication of acceptance of the proposition made by the applicant’s legal counsel would be so extraordinary that in the absence of binding authority it could not be accepted. In particular, it would mean that in most cases legal professional privilege would not attach to any communication between an administrative decisionmaker and his or her legal adviser, if that communication could be seen as credible, relevant or significant to the making of the decision. According to Justice Stone, that would elevate the natural justice or procedural fairness proposition into a rigid rule rather than a principle, and this was an unacceptable outcome.

Implications If the argument of the applicant’s legal counsel had succeeded, the ramifications in administrative law would have been significant. It would have meant that legal advice acquired, and considered by a decision-maker prior to making a decision would, in many cases, have had to be produced to the person affected by a decision. The Federal Court’s rejection of this argument has supported the concept that decisionmakers can receive legal advice as part of their decision-making process with the confidence that the legal advice will be protected by legal professional privilege. Decisionmakers should however be careful not to waive that legal professional privilege inadvertently. One possible way that a waiver can occur is if reference is made to legal advice in the decision itself which is conveyed to the affected person. n

For further information contact: Adrian D’Amico Partner Norton Rose Australia Tel +61 2 6159 4408 [email protected]

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Public law report

Water charges imposed by the Australian Capital Territory: an invalid tax? The ability of the Australian Capital Territory (ACT) to levy water charges, and the ability of essential service provider ACTEW Corporation Limited (ACTEW) to pass the charges on to its customers, was recently challenged by Queanbeyan City Council (QCC) in the Federal Court of Australia. In Australian Capital Territory v Queanbeyan City Council [2010] FCAFC 124, the Court found that the character of the charges in question distinguished them from duties of excise and therefore the ACT is permitted to impose them and ACTEW is permitted to pass them on to its customers.

Duty of excise A duty of excise is a tax on goods levied at some point in their production or distribution which has the effect of increasing the price of the goods supplied to the customer. Section 90 of the Commonwealth Constitution reserves to the Commonwealth the exclusive powers to impose duties of customs and of excise. The exclusivity of the power prevents States and Territories from imposing a duty of excise (Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248).

ACTEW charges The ACT was established as a body politic under the Crown by the Australian Capital Territory (Self-Government) Act 1988 (Cth).

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Under this Act, the ACT Legislative Assembly has powers to make laws and the ACT Executive has the responsibility of governing the ACT with respect to an extensive list of matters including water resources and taxation.

Both the WAC and the UNFT are passed on by ACTEW to its customers, including QCC.

ACTEW is a statutory corporation owned by the ACT established under the Territory-Owned Corporations Act 1990 (ACT). ACTEW’s functions include the supply of water to residents and businesses within the ACT and Queanbeyan in New South Wales, including QCC. ACTEW charges QCC for water pursuant to a set of principles agreed between the parties which are based in part upon the premise that ACTEW will recover from QCC its costs of supplying water to QCC. Therefore, the extent to which the ACT may levy charges on the QCC, a council established under the Local Government Act 1993 (NSW), was not directly at issue.

QCC brought proceedings against the ACT and ACTEW claiming that each of the WAC and the UNFT is a duty of excise and accordingly beyond the legislative competence of the ACT by reason of s 90 of the Constitut...