Open and Shut: Schapelle Corby on a point of order

Tuesday, January 03, 2012

Schapelle Corby on a point of order

ABC TV

The details of the Freedom of Information application and the documents in dispute are not clear but Schapelle Corby is contesting a decision by the Australian Federal Police to deny access to some documents claimed exempt on grounds relating to the security, defence or international relations of the Commonwealth. The Administrative Appeals Tribunal in what might be the first published decision on the interpretation of amendments that came into effect in November 2010, was asked to rule on procedure arising from the requirement in s 60A:

Before determining that the document is not an exempt document under section 33, the Tribunal must request the Inspector-General of Intelligence and Security to appear personally and give evidence

The legal representative of the AFP, and the Inspector-General submitted that the section compels a second hearing if the Tribunal is minded to release documents after a first hearing. President Justice Downes and Deputy President Handley noted that a second hearing would "amount to an unusual, even unique, process" and

6. ....create a number of problems. First, after a first hearing, the Tribunal would receive submissions on the documents and evidence before it at that time. The submissions to be put by an applicant would have to address that state of affairs. It is at least possible that such submissions might be compromised at the time of a further hearing, after further evidence from the Inspector-General, which affected the state of the evidence.
7. Other practical problems arise. Is the respondent to be given a further opportunity to put on evidence after the Inspector-General? Is the applicant to be given a further opportunity to put on evidence after the Inspector-General? The rules of procedural fairness would almost certainly ensure that at least the applicant should be entitled to put on further evidence and make further submissions. There is also the unusual fact that, before the Inspector-General was invited to give evidence, the Tribunal would be required, on the case put by the Australian Federal Police and the Inspector-General, at least on a preliminary basis, to form a view that the documents should be released. It is not the habit of courts or tribunals in Australia to release draft decisions and then invite further submissions, yet de facto that is what is being suggested here.

The Tribunal found nothing in s 60A that compelled the “two hearing approach.”

"It seems to us that the Tribunal, at any time that seems appropriate to the Tribunal, can make a request under s 60A, and the steps that s 60A require will come into play."[18] 

No orders were issued, and the Tribunal suggested ways in which the matter could proceed to hearing likely to be in late February or March, when more about the documents in dispute will be revealed.

(Update-there is quite a Corby related FOI queue at Customs and the AFP)

via foi-privacy.blogspot.com

Peter Timmins
Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees from the University of Sydney, and has been involved in the FOI field for 25 years.He provides professional management advice and assistance to agencies on FOI related implementation issues and assists applicants who seek access to government information. Peter is an experienced public speaker and commentator on these issues. See Career Summary for more details.