Administrative Decisions Tribunal Amendment (Confidential Documents) Bill 2007

Second Reading

Debate resumed from 18 October 2007.

The Hon. PENNY SHARPE (Parliamentary Secretary) [2.48 p.m.]: The Government does not support the Administrative Decisions Tribunal Amendment (Confidential Documents) Bill 2007. The bill seeks to appeal section 75 (2) (d) of the Administrative Decisions Tribunal Act 1997 to remove the Administrative Decisions Tribunal's general powers to make orders prohibiting or restricting the disclosure of confidential evidence or documents to some or all of the parties to proceedings. The Administrative Decisions Tribunal has made orders under section 75 (2) (d) when reviewing, for example, decisions made under the Freedom of Information Act 1989, the Security Industry Act 1997 and the Tow Truck Industry Act 1998. However, the provision is available with respect to all legislation in relation to which the Administrative Decisions Tribunal has jurisdiction.

I am advised that in a number of cases before the Administrative Decisions Tribunal relating to the Security Industry Act 1997 and the Tow Truck Industry Act 1998 the evidence or documents in question relate to ongoing police investigations and criminal intelligence. Amending the Administrative Decisions Tribunal Act 1997 to remove the Administrative Decisions Tribunal's power to make orders under section 75 (2) (d) of the Administrative Decisions Tribunal Act 1997 could result in sensitive criminal intelligence being disclosed and police investigations being jeopardised.

Administrative Decisions Tribunal hearings are generally open to the public. However, when a case involves confidential evidence or documents, the Administrative Decisions Tribunal Act 1997 gives the tribunal the power to make a range of orders, including restricting the disclosure of such evidence or documents. The Government is not aware of any evidence that suggests that the tribunal is exercising its power inappropriately. Similar provisions exist in other comparable tribunals in Australia. For example, the Commonwealth Administrative Appeals Tribunal can hear evidence in private pursuant to section 35 of the Administrative Appeals Tribunal Act 1995, and the Victorian Civil and Administrative Tribunal can hear evidence in private pursuant to section 101 of the Victorian Civil and Administrative Tribunal Act 1998.

If a person is not satisfied with the order prohibiting or restricting the disclosure of confidential evidence or documents to some or all of the parties to proceedings, they can appeal to the appeal panel of the Administrative Decisions Tribunal or the Supreme Court if grounds exist. With regard to the cases of Aubrey and Khalil, I note that there is no suggestion or evidence that the Administrative Decisions Tribunal exercised its power inappropriately or that the tribunal's decisions were not in the public interest. I take this opportunity to respond to the concerns that section 75 (2) (d) of the Administrative Decisions Tribunal Act 1997 undermines natural justice and procedural fairness.

There are sound public policy reasons for giving courts and tribunals the power to receive evidence in private, and these policy reasons have been recognised by other Australian jurisdictions. In some cases justice and the public interest are more likely to be served if evidence is received in private, and these considerations may outweigh the desirability of having an open hearing or allowing a party to proceedings access to that evidence. Administrative Decisions Tribunal hearings are generally open to the public, and the principle of open justice is enshrined in section 75 (1) of the Administrative Decisions Tribunal Act 1997. However, the Act recognises that there may be circumstances when it is desirable for the tribunal to receive evidence in private.

When deciding whether to receive evidence in private, the Administrative Decisions Tribunal has regard to principles laid down in case law and does not make such a decision lightly. Any decision by the tribunal to receive evidence in private may be reviewed by the appeal panel of the Administrative Decisions Tribunal and the Supreme Court when grounds exist. I note also that the Legislation Review Committee has reviewed the bill, and I refer honourable members to the Legislation Review Digest of 24 September 2007, which sets out the committee's views. I understand that the Hon. Robert Brown also proposes to move an amendment to section 75 (5) of the Firearms Act 1996, in Committee, to allow an applicant and an applicant's representative to be present when the Administrative Decisions Tribunal is receiving evidence and hearing argument that may disclose criminal intelligence.

Members of the general public would continue to be excluded from the hearing when evidence relating to criminal intelligence is being heard. The purpose of section 75 (5) of the Firearms Act is to prevent the disclosure of sensitive and confidential criminal intelligence, and hence prevent police investigations from being jeopardised. An applicant to the Administrative Decisions Tribunal for review of the decision made under the Firearms Act may be the subject of ongoing police investigations and criminal intelligence reports. Amending the Firearms Act to give an applicant access to criminal intelligence during the course of a tribunal hearing would create a real risk of police investigations being jeopardised. For those reasons the Government does not support the bill.

The Hon. ROY SMITH [2.52 p.m.]: As indicated by previous speakers, the Administrative Decisions Tribunal Amendment (Confidential Documents) Bill seeks to amend section 75 (2) (d) of the Administrative Decisions Tribunal Act to enable the legal representatives of any party to proceedings heard by the tribunal to see and challenge otherwise confidential documentary evidence. I note that the Opposition speaker quoted the Chief Justice of New South Wales, Justice Spigelman, whose views I fully endorse. In 2005 His Honour quoted Lord Chief Justice Hewart, who said:

It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

Unfortunately, not everyone in our society supports the private ownership of firearms. In my long association with the shooting sports, and in particular with the Sporting Shooters Association of Australia, I have seen numerous instances where law-abiding firearms owners have been treated unjustly, often by-shall I say-overenthusiastic police officers who see their role as to frustrate licence or permit applications so as to reduce the number of licence or permit holders, and thereby the number of firearms, in our society. It is not uncommon for licence or permit applications to be refused on the grounds of the public interest-an inherently broad concept-or that the applicant is not a fit and proper person, with no further explanation offered. How can an applicant defend against such vague charges if he or she is not entitled to see the evidence-which is quite likely hearsay evidence-upon which such charges are made? The inability to challenge such evidence is manifestly unfair and clearly contrary to the principles of natural justice.

Debate adjourned on motion by the Hon. Roy Smith and set down as an order of the day for a future day.