Proctor : June 2019
41 PROCTOR | June 2019 misdirection had no effect on that verdict, in circumstances where the misdirection precluded the jury from adopting a process of reasoning, favourable to the appellant, that was open to it. The conviction had to be quashed and a new trial ordered. Bell, Keane, Nettle and Gordon JJ jointly; Edelman J separately concurring. Appeal from the Supreme Court (WA) allowed. Andrew Yuile is a Victorian barrister, ph 03 9225 7222, email email@example.com. The full version of these judgments can be found at austlii.edu.au. Federal Court Administrative and migration law – legal unreasonableness by failure to exercise statutory discretion – s473DC of the Migration Act 1958 (Cth) In DP117 v Minister for Home Affairs  FCAFC 43 (15 March 2019) the Full Court allowed an appeal and set aside the decision of the Federal Circuit Court which had dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision by the Minister’s delegate to refuse the appellant a Safe Haven Enterprise Visa (SHEV). The issue in the appeal was whether the primary judge erred in not accepting the appellant’s contention that the IAA had acted unreasonably by failing to consider whether to exercise its discretion under s473DC of the Migration Act 1958 (Cth) to obtain information from the appellant, whether by way of an interview or in writing, for the purposes of its review of the decision made by the Minister’s delegate to refuse the appellant an SHEV. Relevantly, although the delegate refused to grant the appellant an SHEV, the delegate accepted that the appellant had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions. The IAA took a different view on the issue of the sexual assaults and inconsistencies in the appellant’s claims apart from those referred to by the delegate. The IAA did not accept that the appellant was a victim of sexual assault as claimed by him. To the Federal Circuit Court the appellant submitted that the IAA acted unreasonably in not exercising its discretion under s473DC, in circumstances where the IAA made adverse findings against him based on material which was before the delegate, but which the delegate herself had not relied on. In particular, the appellant complained that he should have been interviewed by the IAA and given an opportunity to comment on or explain supposed inconsistencies and this was relevant to the issue whether or not the sexual assault had occurred as claimed by him. Griffiths and Steward JJ noted an “important concession” by the Minister that the IAA had in fact failed to consider the exercise of the power under s473DC in relation to the issue whether or not the sexual assaults had in fact occurred or in relation to the relevant inconsistencies (at ). The joint judgment held that the IAA’s failure to consider whether or not to exercise its power under s473DC in respect of either the issue of the sexual assaults or the relevant inconsistencies was legally unreasonable (at - ). They stated at : “It is necessary to now determine whether or not the IAA’s error in not considering the possible exercise of its power under s473DC in respect of the two relevant matters is material and involves jurisdictional error (see Hossain v Minister for Immigration and Border Protection  HCA 34; 92 ALJR 780 (Hossain) and Minister for Immigration and Border Protection v SZMTA  HCA 3 (SZMTA))”. Griffiths and Steward JJ held there was jurisdictional error which was material. Mortimer J agreed on the result but gave separate reasons for judgment. Her Honour’s approach differed on the following points of principle: (1) legal unreasonableness and procedural fairness (at -); (2) procedural fairness and materiality (at - ); and (3) how to express the test for legal unreasonableness (at -). In relation to the second of those issues, in contrast to the approach of the joint judgment at  set out above, Mortimer J said at : “However, as the law currently stands, I do not understand that the ratio of the decisions in Hossain and SZMTA require that where an exercise of power has been found to be legally unreasonable (a ground not addressed in either of those decisions), the supervising court must conduct a separate assessment of ‘materiality‘, before being able to characterise the error as jurisdictional in character.” Legal professional privilege – holder of legal professional privilege of government advice – whether waiver of privilege by evidence given during hearing In Australian Workers’ Union v Registered Organisations Commissioner  FCA 309 (7 March 2019) Wheelahan J refused leave to the Australian Workers’ Union (AWU) to uplift and inspect documents produced in answer to a subpoena that were the subject of a claim for legal professional privilege (LPP) at common law. The documents were produced by the Secretary of the Department of Jobs and Small Business (department) in answer to a subpoena issued by the AWU. Wheelahan J determined this dispute while the main proceeding was part-heard before another judge (Bromberg J). The main proceeding was the AWU’s claim for relief on grounds, including that the decision of the Registered Organisations Commissioner (the commissioner) to conduct an investigation under s331(2) of the Fair Work (Registered Organisations) Act 2009 into certain donations alleged to have been made by AWU was affected by jurisdictional error, because the decision was made for an improper political purpose. The documents in dispute were communications for the purpose of legal advice relating to the two letters from Senator Michaelia Cash to the commissioner that were sought to be relied on by the AWU to support its claims in the main proceeding. HIGH COURT AND FEDERAL COURT The issues before the court were: (1) who was the holder of LPP in the disputed documents (at -); and (2) did Senator Cash or her chief of staff (Mr Davies) effect a waiver of that privilege (at -). The first issue involved an analysis of who was the holder of privilege in documents that were emails from government lawyers to a Minister’s office. That was relevant in order to determine whether (if she did) Senator Cash waived LPP. Possible holders of the privilege were Senator Cash (who was the relevant Minister at the time that legal advice was sought and obtained), Ms Kelly O’Dwyer (who was the relevant current Minister), the office of the Minister or the Commonwealth of Australia. Wheelahan J stated that the identification of the holder of the privilege required that a natural person, or an entity with a legal personality such as the Crown, be identified (at ). The court held that the Crown was the holder of the privilege because at the time the letters were prepared and sent, Senator Cash was exercising a function of one of the Queen’s Ministers of State for the Commonwealth (at ). The second issue concerned which servants or agents of the Commonwealth had authority to waive privilege. The question of implied waiver also arose in circumstances where the Commonwealth was not a party to the proceeding, and nor were Ms O’Dwyer, Senator Cash or Mr Davies, with the latter two having attended court and given evidence as a result of the coercive process of a subpoena (at ). Wheelahan J held that the evidence of each of Mr Davies and Senator Cash did not give rise to an implied waiver of LPP (at  and  respectively). Further, his Honour explained at  that Senator Cash did not have authority to waive privilege: “...On the evidence such as it is, I would infer that the current Minister is entitled to exercise control over the privileged content of the six documents as an incident of her authority as Minister responsible for administering the Fair Work Act, and the Fair Work (Registered Organisations) Act. It follows that with that authority, she might waive or authorise the waiver of privilege in the documents. There may be others within the Commonwealth who have authority to waive the privilege. However, on the state of the evidence I am not satisfied that Senator Cash, who no longer holds a portfolio with responsibility for the relevant legislation, had authority in fact to waive privilege in the six documents. Senator Cash did not give evidence on behalf of the Commonwealth: she gave evidence as to events to which she was a witness, and as to her own state of mind. In that respect, she was not in the same position as a party witness. The mere fact that Senator Cash is a Minister of the Crown does not permit me to draw a reasonable and definite inference that Senator Cash had any authority to waive privilege in the six documents...” Dan Star QC is a Senior Counsel at the Victorian Bar, ph 03 9225 8757 or email firstname.lastname@example.org. The full version of these judgments can be found at austlii.edu.au.