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Federal Court of Australia |
Last Updated: 28 December 2000
Joel v Migration Agents Registration Authority [2000] FCA 1919
ADRIAN PHILLIP JOEL v MIGRATION AGENTS REGISTRATION AUTHORITY
NG 1027 of 2000
CONTI J
SYDNEY
22 DECEMBER 2000
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
No. NG 1027 OF 2000 |
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
No. NG 1027 OF 2000 |
BETWEEN: |
ADRIAN PHILLIP JOEL APPLICANT |
AND: |
MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT |
JUDGE: |
CONTI J |
DATE OF ORDER: |
22 DECEMBER 2000 |
WHERE MADE: |
SYDNEY |
The following orders should be added as follows:
5. Additional declaration as follows:
The decision of the Respondent to issue the notice to the Applicant of 14 September 2000 ("the third decision") was valid, except to the extent of the requirements thereof specified in Declaration 2 above.
6. The direction as to written submissions to be provided within 21 days be altered by substitution of the time expiring 9 February 2001.
Associate:
Dated: 22 December 2000
Joel v Migration Agents Registration Authority [2000] FCA 1919
ADMINISTRATIVE LAW - conduct of registered agent and qualified legal practitioner in advertising for refugees to join class actions for refugee status being conducted in the High Court - decisions to issue of two successive notices to such practitioner from Respondent Authority under s 308 of Migration Act (Cth) to produce documents and answer questions verified by statutory declaration - whether decisions reviewable under ADJR Act and/or Judiciary Act - whether the first notice ceased to be reviewable for the time being by virtue of the content of the second notice - that being so, whether the second notice was rendered inoperative in whole or in part of reason of legal professional privilege - whether the second notice should be otherwise quashed in whole or in part on administrative law grounds including Wednesbury unreasonableness.
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(1) 5(1) and 6(1).
Freedom of Information Act 1982 (Cth) ss15 and 17.
Judiciary Act 1903 (Cth) s 39(1A)(c).
Migration Act 1958 (Cth) ss 275, 276(1) and (2), 277(1), 280, 281, 282, 284, 285, 308(1)(a) and (c), 309(2), 303(h), 306D, 306E, 313, 314, 315(1), 316, 317, 318, 334, 335 and 487.
Migration Regulations 8 and 9 1994 (Cth) (Schedule 2).
Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475 referred to.
Attorney-General (Cth) v Queensland (1990) 25 FCR 125 referred to.
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 applied.
Bond v Australian Broadcasting Tribunal [1990] HCA 33; (1990) 170 CLR 321 applied.
Carter v Northmore Hale Davy & Lecke [1995] HCA 33; (1995) 183 CLR 121 applied.
Commissioner of Australian Federal Police v Propend Pty Limited [1997] HCA 3; (1997) 188 CLR 501 referred to.
Corporate Affairs Commission of NSW v Yuill [1991] HCA 28; (1990-1) 172 CLR 319 distinguished.
Evans v Friemann (1981) 35 ALR 428 referred to.
Fieldhouse v Commissioner of Taxation (1989-1990) 25 FCR 187 referred to
Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 referred to.
Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188 referred to.
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 applied.
Lloyd v Costigan (1983) 48 ALR 241 applied.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985-6) 162 CLR 24 applied.
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 referred to.
NSW Aboriginal Council v Aboriginal and Torres Strait Island Commission (Federal Court Hill J - unreported 30 August 1995) referred to.
Salerno v National Crime Authority (1997) 144 ALR 709 referred to.
Herijanto v Refugee Review Tribunal [2000] HCA 21; (2000) 74 ALJR 703 cited.
Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 495; (2000) 98 FCR 311 referred to.
ADRIAN PHILLIP JOEL v MIGRATION AGENTS REGISTRATION AUTHORITY
NG 1027 of 2000
CONTI J
SYDNEY
22 DECEMBER 2000
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
BETWEEN: |
ADRIAN PHILLIP JOEL APPLICANT |
AND: |
MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT |
JUDGE: |
CONTI J |
DATE OF ORDER: |
22 DECEMBER 2000 |
WHERE MADE: |
SYDNEY |
1. The decision of the Respondent to issue the notice to the Applicant of 29 June 2000 ("the first decision") has ceased to be reviewable.
2. In so far as the decision of the Respondent to issue the notice to the Applicant of 3 August 2000 ("the second decision") required the Applicant:
(i) To provide a copy of each client account record; and
(ii) To answer the following question, namely "What advice was given to the applicants in relation to their position in the class action"
The same was ultra vires and invalid.
3. The remaining requirements of the notice of 3 August 2000 were valid.
THE COURT ORDERS THAT subject to Declaration 2 above, the Application be dismissed.
4. THE COURT DIRECTS THAT the parties file written submissions as to appropriate costs orders within 21 days.
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 |
BETWEEN: |
ADRIAN PHILLIP JOEL APPLICANT |
AND: |
MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT |
JUDGE: |
CONTI J |
DATE: |
22 DECEMBER 2000 |
PLACE: |
SYDNEY |
1 This is an Application for an Order for Review under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"), and under s 39B of the Judiciary Act 1903 (Cth), in relation to the following decisions and/or conduct of the Respondent ("the Authority"):
(i) That said to have been made or undertaken by the Respondent pursuant to s 308(1)(a) of the Migration Act 1958 (Cth) ("the Act") to require the Applicant, by the Respondent's notice of 29 June 2000 ("the first notice"), to provide on or before 28 July 2000 certain information in the form of a statutory declaration and certain documents following upon the Applicant's advertising for refugees in Australia to join in certain class actions instituted in the High Court of Australia against the Minister for Immigration and Ethnic Affairs ("the first decision");
(ii) That said to have been made or undertaken by the Respondent also pursuant to s 308(1)(a) of the Act, following upon the Applicant's rejection of the viability of the first notice, to require the Applicant, by the Respondent's further notice of 3 August 2000 ("the second notice"), to provide on or before 1 September 2000 a reduced amount of such information in the form of a statutory declaration and certain documents ("the second decision");
(iii) That said to have been made or undertaken by the Respondent pursuant to s 309(2) of the Act, by the Respondent's notice of 14 September 2000 ("the third notice"), to invite the Applicant to make a submission to the Respondent as to whether it was open to the Respondent to be satisfied that the Applicant breached Clause 6.3 of the Migration Agents Code of Conduct by failing to provide the information requested in the first and second notices ("the third decision").
In using the descriptions first decision, second decision and third decision, I do not pre-empt the issues arising under ss 5 and 6 of ADJR Act and s 39B of the Judiciary Act later discussed below.
The Application for Review was filed on 22 September 2000. An Amended Application for Review, which added four additional grounds for review, was filed in Court at the commencement of the hearing. The grounds which were pursued before me are summarised in [25] below. It is first appropriate that I set out or summarise those provisions of the Act which may bear upon the issues arising for resolution.
The Legislation
2 Division 6 of Part 3 of the Act governs the appointment and stipulates the general powers of the Respondent Migration Agents Registration Authority. By s 315(1) of the Act, the Minister may make a written instrument appointing "the Institute" for the purposes of the statutory definition of "Migration Agents Registration Authority" in s 275 of the Act. The expression "Institute" is defined by s 275 to mean the Migration Institute of Australia Limited, and the expression "Migration Agents Registration Authority" is defined by s 275 as follows:
"(a) if an appointment of the Institute is in force under section 315 - the Institute; or(b) otherwise - the Minister."
By formal instrument bearing date 23 March 1998, the Minister appointed the Institute for the purposes of the statutory definition contained in s 275. No objection has been taken to the description of the Respondent in the proceedings merely as the Migration Agent Registration Authority without reference to the Institute. It was explained to me that the Institute has been established as a representative body for migration agents not dissimilar to the role of the Law Society of New South Wales in relation to solicitors.
3 Part 3 of the Act governs migration agents and immigration assistance. The expression "immigration assistance" is defined in s 276 of Division 1, subsections (1) and (2) whereof respectively read as follows:
"276 Immigration assistance(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a) preparing, or helping to prepare, the visa application or cancellation review application; or
(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
(2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a) preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or
(b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or
(c) representing the other person in proceedings before the court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations."
Such defined expression is to be compared with the expression "immigration legal assistance" defined in s 277 of the Act, subsection (1) whereof reads as follows:
"277 Immigration legal assistance(1) For the purposes of this Part, a lawyer gives immigration legal assistance if the lawyer:
(a) acts for a visa applicant or cancellation review applicant in preparing for proceedings before a court in relation to the visa application or cancellation review application; or
(b) represents or otherwise acts for a visa applicant or cancellation review applicant in proceedings before a court in relation to the visa application or cancellation review application; or
(c) gives advice to a visa applicant or cancellation review applicant in relation to the visa application or cancellation review application that is not advice for the purpose of any of the following:
(i) the preparation or lodging of the visa application or cancellation review application;
(ii) proceedings before the review authority in relation to the visa application or cancellation review application;
(iii) the review by a review authority of a decision relating to the visa application or cancellation review application."
As will later be seen, the subject of a particular kind of visa, namely "bridging visas", is raised by the Respondent as a matter of particular relevance here: see [31] below.
Division 2 of Part 3 stipulates by s 280 in effect that only a migration agent registered in accordance with Part 3 of the Act may give immigration assistance as defined in s 276, subject to exceptions not here relevant. Division 2 further stipulates by ss 281 and 282 that only a registered agent may seek or receive a fee or reward for giving immigration assistance or making immigration representations, but that a lawyer may seek or receive a fee for the giving of immigration legal assistance (s 282 is specifically referred to in the first notice) (supra). Analogous stipulations are made by ss 284 and 285 as to advertising the availability of immigration assistance, the effect whereof being (inter alia) that a registered agent may advertise that he or she gives immigration assistance, and that a lawyer may advertise that he or she gives immigration legal assistance. Division 3 of Part 3 provides for the registration of individuals as migration agents, for the suspension and cancellation of registration of migration agents, or for the cautioning of migration agents, in circumstances where (inter alia) "the agent has not complied with the Code of Conduct prescribed under section 314" (see ss 303(a), (b) and (h) and 304).
4 Division 4 of Part 3 of the Act is headed "Investigation and decision-making by the Migration Agents Registration Authority", and contains the abovementioned s 308 which is of paramount importance for the purposes of the present Application [see references thereto in [1] above]:
"308 Requiring registered agents to give information(1) The Migration Agents Registration Authority may require a registered agent:
(a) to make a statutory declaration in answer to questions in writing by the Authority; or
(b) to appear before an individual specified by the Authority and to answer questions; or
(c) to provide the Authority with specified documents or records relevant to the agent's continued registration.
(2) An individual before whom a registered agent appears to answer questions must record the questions and answers and give the record to the Migration Agents Registration Authority.
(3) A registered agent is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.
(4) However:
(a) any information or document provided in response to a requirement under subsection (1); and
(b) any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (1);
is not admissible in evidence against the registered agent in any criminal proceedings (except proceedings for an offence against section 487)."
The above extracted paragraph (c) of sub-section (1) of s 308 above is specifically referred to in the first notice (supra). Division 4 further stipulates by s 309 obligations upon the Respondent in effect as to natural justice procedural matters relating (inter alia) to any cancellation or suspension of a registered agent's registration or any cautioning of such person which it might be considering. Sub-section 309(2) in particular reads as follows:
"If the [Respondent] is considering the cancellation or suspension of a registered agent's registration, or the cautioning of the agent, it must inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter."
5 Division 5 of Part 3 relates to the "Obligations of registered agents". By s 313 thereof, restrictions and procedural requirements are imposed upon registered agents, though not lawyers, in relation to fees and other rewards charged for the giving of immigration assistance, sub-sections (1), (2) and (3) whereof reading as follows:
"...(1) A registered agent is not entitled to be paid a fee or other reward for giving immigration assistance to an assisted person unless the agent gives the assisted person a statement of services.
(2) A statement of services must set out:
(a) particulars of each service performed; and
(b) the charge made in respect of each such service.
(3) An assisted person may recover the amount of a payment as a debt due to him or her if he or she:
(a) made the payment to a registered agent for giving immigration assistance; and
(b) did not receive a statement of services before making the payment; and
(c) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship that the immigration assistance related to."
By s 314(1) it is stipulated that the regulations to the Act may prescribe a Code of Conduct for migration agents, and that a registered agent must conduct himself or herself in accordance therewith. Regulations to such effect are set out in [7] below.
6 Reference has already been made in [2] above to s 315 of the Act, which is contained within Division 6 of Part 3 of the Act, and which relates to the Migration Agents Registration Authority. The functions of the Authority are stipulated by s 316 as follows:
"316 Functions of Migration Agents Registration Authority
(1) The functions of the Migration Agents Registration Authority are:
(a) to deal with registration applications in accordance with this Part; and
(b) to monitor the conduct of registered agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance; and
(c) to investigate complaints about registered agents in relation to their provision of immigration assistance; and
(d) to take appropriate disciplinary action against registered agents; and
(e) to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional associations for possible disciplinary action; and
(f) to inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and
(g) to monitor the adequacy of any Code of Conduct."
7 I will refer at length to the Code of Conduct in [8] below. For completeness in relation to the Act itself, save as to what appears in [14] below, I would extract the full text of ss 317 and 319 of Division 6 of Part 3 below:
"317 General powers of the Migration Agents Registration Authority
The Migration Agents Registration Authority has power to do all things necessarily or conveniently done for, or in connection with, the performance of its functions."
"319 Power to refer lawyers' conduct to other authorities
(1) The Migration Agents Registration authority may refer to any authority responsible for disciplining lawyers the conduct of a registered agent who holds a practising certificate (however described) entitling him or her to practise as a lawyer.
(2) If the Migration Agents Registration Authority does so, it may not take action against the agent under section 303 on the basis of that conduct."
Code of Conduct
8 The Code of Conduct referred to in ss 314(1) and 316(1)(g) above is contained in Schedule 2 to the Migration Regulations 1998, pursuant to Regulation 8 thereof. Amendments were made to the Code to take effect from and after 1 July 2000: see Regulations 5.5 and 6.4 below. By Regulation 9, it is stipulated that any person may make a complaint for the purposes of s 316(1)(c) and (e) of the Act, including a client of the agent or lawyer, an official, an employee or member of the Institute, an employee of the Authority and a parliamentarian. By Part 1 of Schedule 2, it is stipulated as follows (inter alia):
"Introduction1.1 The Code is intended to regulate the conduct of migration agents.
1.2 The Migration Agents Registration Authority (the Authority) is responsible for administering the Code.
1.3 A person who wants to operate as a migration agent must register with the Authority.
1.4 The Code applies to an individual who is listed in the Register of Migration Agents kept by the Authority under section 287 of the Migration Act 1958 (the Migration Act).
1.5 To ensure compliance with the Code, the Authority may impose an administrative sanction if a breach of the Code is found to have occurred.
1.6 An administrative sanction may range from a warning through to suspension of registration or the ultimate sanction of cancellation of registration.
1.7 Accordingly, the Code does not impose criminal sanctions.
...
1.12 However, the Code imposes on a migration agent the overriding duty to act at all times in the lawful interests of the agent's client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration."
By Part 2 of Schedule 2, it is stipulated as follows:
"Standards of professional conduct2.1 A migration agent must always:
(a) act in accordance with the law and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.
...
2.10 A migration agent must not engage in false or misleading advertising, including advertising in relation to:
(a) the agent's registration as a migration agent; or
(b) the implications of Government policy for the successful outcome of an application under the Migration Act or Migration Regulations; or
(c) guaranteeing the success of an application.
2.11 A migration agent must, when advertising, include in the advertisement the words Registered Migration Agent Number, followed by the agent's individual registration number.
...
2.17 If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) the agent:
(a) must not encourage the client to lodge the application; and
(b) must advise the client that, in the agent's opinion, the application is vexatious or grossly unfounded; and
(c) if the client still wishes to lodge the application - must obtain written acknowledgment from the client of the advice given under paragraph (b).
By Part 5 of Schedule 2, it is stipulated (inter alia) as follows:
"Fees and charges5.1 There is no statutory scale of fees. However, a migration agent is expected to set and charge a fee that is reasonable in the circumstances of the case.
5.2 A migration agent must:
(a) before starting work for a client, give the client:
(i) an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and
(ii) an estimate of the time likely to be taken in performing a service; and
(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and
(c) give the client written confirmation of the terms of the service to be rendered; and
(d) give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.
...
5.5 A migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:
(a) the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services; and
(b) a statement of services must set out:
(i) particulars of each service performed; and
(ii) the charge made in respect of each such service;
(c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:
(i) made the payment to the agent for giving immigration assistance; and
(ii) did not receive a statement of services before making the payment; and
(iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.
Regulation 5.5 did not take effect until 1 July 2000.
By Part 6 of Schedule 2, it is further stipulated (inter alia) as follows:
"Record keeping and management6.1 A migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
(a) a copy of each client's applicant; and
(b) copies of each written communication between:
(i) the client and the agent; and
(ii) the agent and any relevant statutory authority; and
(c) file notes of every substantive or material oral communication between:
(i) the client and the agent; and
(ii) the agent and an official of any relevant statutory authority.
...
6.3 A migration agent must respond to a request for information from the Authority within a reasonable time specified by the Authority.
6.4 A migration agent must act on the basis that the agent's electronic communications are part of the agent's records and documents."
Regulation 6.4 did not take effect until 1 July 2000. Regulation 6.3 is referred to in the first notice (supra).
By Part 7 of Schedule 2, it is further stipulated (inter alia) as follows:
"Financial duties7.1 A migration agent must keep separate accounts for:
(a) the agent's operating expenses (the operating account); and
(b) money paid by clients to the agent for fees and disbursements (the clients' account).
7.2 A migration agent must hold, in the clients' account, an amount of money paid by a client for an agreed block of work until:
(a) the agent has completed the services that comprise the block of work; and
(b) an invoice has been issued to the client for the services.
7.3 The agent may, at any time, withdraw money from the clients' account for disbursements that are required to be paid to the Department, or any other agency, for the client.
7.4 A migration agent must keep records of the clients' account, including:
(a) the date and amount of each deposit made to the clients' account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
(b) the date and amount of each withdrawal made in relation to an individual client, and the name of each recipient of money that was withdrawn; and
(c) receipts for any payments made by the client to the agent; and
(d) copies of invoices or accounts rendered in relation to the account
7.5 A migration agent must make available for inspection on request by the Authority:
(a) records of the clients' account; and
(b) records of each account into which money paid by a client to the agent for fees and disbursements has been deposited.
..."
By Part 8 of Schedule 2, it is further stipulated (inter alia) as follows:
"Duties of agents to employees8.1 A migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance.
8.2 A migration agent must properly supervise the work carried out by staff for the agent.
..."
And by Part 9 of Schedule 2, it is further stipulated (inter alia) as follows:
"9.1 A migration agent must respond properly to a complaint by a client about the work or services carried out by the agent or the agent's employee.
..."
The Circumstantial Context
9 The Applicant is the principal of a law and immigration practice in Sydney. He has been engaged in practice as a solicitor since 1980, and has held migration agent registration status under Division 3 of Part 3 of the Act since 1993.
10 According to a letter dated 4 August 2000 sent by the Applicant to the Respondent, the Applicant caused to be instituted on 31 July 1998 in the original jurisdiction of the High Court of Australia, on behalf of approximately 4750 persons seeking refugee status in Australia, three representative proceedings in the nature of class actions (see Herijanto v Refugee Review Tribunal [2000] HCA 21; (2000) 74 ALJR 703 as an example of one of the interlocutory proceedings which have already occurred). It was further asserted in such letter that the class actions had been fixed for "factual hearing" before Justice Gaudron, who will thereafter remit finalisation of the proceedings to the Full Court of the High Court for hearing. It was further asserted in such letter that the Commonwealth had agreed that the outcome in the three selected matters would serve as vehicles for establishment of the legal principles involved in relation to all of the refugee litigants engaged in these class actions, and that thereafter it may become necessary for individual cases to be also resolved by the High Court.
11 The catalyst for the Respondent's giving of the first notice to the Applicant was an advertisement which the Applicant caused to be published in an ethnic newspaper at some time prior to 17 February 1999, that being the date of the meeting referred to in [17(i)] below. Such advertisement was in the following terms:
"Permanent Residence - AustraliaRefugee Class Actions!
If you have been rejected by the Refugee Review Tribunal [RRT] you may be able to join our class actions at very low cost. Our latest action is very easy to join [over 1200 have already joined!]
It doesn't matter if you are illegal or that your Ministerial Review has been rejected.
Please supply your refugee and RRT decisions.
You still may qualify for a Bridging Visa and become legal.
Free consultation - You have nothing to lose.
Contact us urgently now: Phone: (02) 9360 3103 or (02) 9361 6213
Adrian Joel & Co, Solicitors Agent No. 57728."
I have already referred in [3] above to ss 284 and 285 of the Act concerning advertising. It does not appear that the advertisement contravened any such provisions, or Regulations 2.10 or 2.11 extracted in [8] above.
12 I was informed by Counsel for the Applicant at the commencement of the hearing of the present proceedings, by way of addition to what appears in [10] above, that there has occurred about thirteen interlocutory proceedings and so-called "contested appearances" in the original jurisdiction of the High Court before Justice Gaudron, and further that the number of persons involved as applicants in the High Court proceedings presently approximates 5200, and further again that it was anticipated that the three selected matters referred to in [10] above were expected to be set down for hearing in February or March 2001. I was also then informed that although there were common issues of law involved in relation to all of such 5200 matters, nevertheless once the so-called "primary issues" of law are resolved by the High Court in respect of the three selected matters, "...all of the others will have their chance at being individually considered if the court decides primary issues in favour of the applicant". It was also asserted by Counsel for the Applicant that "It is I think without a doubt the largest class action ever commenced in the High Court's original jurisdiction". Thus far there have been four published decisions concerning these class actions, all by the titles "Herijanto, Muin or Lie v Refugee Review Tribunal".
13 The notice of the Respondent to the Applicant of 29 June 2000 referred to in [1(i)] above, that is, the so-called "first notice", is extracted in full below (omitting formal parts):
"You are referred to the attached advertisement and the submissions and evidence of the Joint Standing Committee on Migration of the 39th Parliament of Australia.You are required pursuant to Section 308(1)(a) of the Migration Act 1958 (the "Act") to provide the following information in the form of a statutory declaration:
A. The name of any individual
1. who was represented by you or your firm in the class action that was the subject of the attached advertisement in relation to the Act in either the Federal Court of Australia or the High Court of Australia; and
To whom you or a member of your firm gave immigration assistance or immigration advice in relation to a Bridging Visa and/or on whose behalf you or a member of your firm communicated with the Department of Immigration & Multicultural Affairs or made other immigration representations as defined by Section 282 of the Act.
2. Who responded to your advertisement regarding a class action in relation to the Act; and
To whom you or a member of your firm gave immigration assistance or immigration advice in relation to a Bridging Visa and/or on whose behalf you or a member of your firm communicated with the Department of Immigration & Multicultural Affairs or made other immigration representations as defined by Section 282 of the Act.
3. Each individual identified by you is to be allocated a unique identifying number (the "I.D.") for the purposes of this matter.
B. In respect of any individual so named and identified with a unique identifying number, you are to provide the following information:
1. The date or dates on which the individual was given such immigration assistance, immigration advice or immigration representations; and
2. The name of the individual who gave the immigration assistance, immigration advice or immigration representations; and
3. The date on which the individual was charged a fee for the immigration assistance, immigration advice or immigration representations, whether as a separate charge or an all encompassing charge for the immigration assistance, immigration advice or immigration representations and the class action; and
4. The amount charged to the individual in relation to the immigration assistance, immigration advice or immigration representations; or
5. If the amount charged to the individual in relation to immigration assistance, immigration advice or immigration representations was included in a total charge in relation to the class action and unable to be itemised, then the total amount charged to the individual.
6. Whether the individual made any complaints to you or the firm about the work or services carried out by you or employees of the firm in relation to the giving of immigration assistance, immigration advice or immigration representations.
C. A copy of your client account for the period commencing at the time of the first consultation by any individual identified in section A above to 1 June 2000.
D. The copy of your client account is to be marked with the I.D. against each transaction that is related to item B4 or item B5 above.
If the number of individuals identified in Section A above exceeds 50, you are required pursuant to section 308(1)(c) of the Act to provide the information required in Section A and Section B above, in the form of a Microsoft Excel Spreadsheet provided on a FDD 3.25 inch Floppy Disk and in the form of a computer printout.
The statutory declaration and the client account information is to be received by the Authority by 8.30am 28 July 2000.
You are required pursuant to section 308(1)(c) to provide the following information sorted by the I.D. and marked with the I.D..
E. For each individual identified in section A above:
1. A copy of the written confirmation of the terms of the service to be rendered; and
2. A copy of each client's application; and
3. A copy of the statement of service provided pursuant to section 313 of the Act; and
The information for this section is to be received by the Authority by 8.30am 22 August 2000.
You are required pursuant to section 308(1)(c) to provide the following information sorted by the I.D. and marked with the I.D.:
F. For each individual identified in section A above:
1. A copy of the file note or the written communication advising the individual of their prospects of success in relation to the application for a Bridging Visa; and
2. A copy of the file note or the written communication advising the individual of the impact on the individual if the class action was successful; and
3. A copy of the file note or the written communication advising the individual of the impact on them if the class action was unsuccessful.
4. If any complaints were made by the individual, provide a copy of the response given to the individual pursuant to clause 9.1 of the Code of Conduct as at 1 April 1998.
The information for this section is to be received by the Authority by 8.30am 18 September 2000.
Your attention is also invited to Part 4 and section 487 of the Act.
Please forward all correspondence to the address below:
Professional Standards
Migration Agents Registration Authority
PO Box Q1551
QVB NSW 1230
Failure to provide the information requested in this letter may be sufficient to satisfy the Authority that there has been a breach of Clause 6.3 of the Migration Agents Code of Conduct."
The advertisement referred to in the first paragraph is extracted in [11] above. However the submissions and evidence of the Joint Standing Committee on Migration were not attached to the notice. The references above to "Code of Conduct" and "Migration Agents Code of Conduct" are of course to the Code of Conduct extracted in [8] above.
14 Part 4 of the Act, referred to in the penultimate sentence of above first notice, is headed "Offences relating to decisions under Act". Set out below are the terms of ss 334 and 335 thereof:
"334 Offences in relation to false or misleading statements regarding the making of decisions
(1) A person must not knowingly or recklessly make a false or misleading statement about:
(a) the person's ability or power; or
(b) another person's ability or power;
to induce or influence the making of decisions, or of a particular decision, under this Act.
(2) A person must not knowingly or recklessly make a false or ---misleading statement about the effect of:
(a) the person's actions; or
(b) another person's actions;
on the making of a decision under this Act.
Penalty: Imprisonment for 2 years.
335. Offence of undertaking, for reward, to cause decisions to be made etc.
A person must not enter an arrangement under which he or she undertakes, in return for a payment or other reward, that a decision under this Act to a particular effect will be made.
Penalty: Imprisonment for 2 years."
I finally extract below s 487 of the Act, which is also referred to at the conclusion of the above Respondent's letter:
"487 Obstructing or deceiving person exercising power etc. under this Act
A person shall not obstruct, hinder, deceive or mislead any person exercising powers or performing duties under or for the purposes of this Act or the regulation.
Penalty: Imprisonment for 6 months."
15 At the time the Respondent's above letter of 29 June 2000 was sent, the Applicant was overseas, and he did not return to Australia until 16 July 2000. In so far as the time limitation requirements for responding to segments A, B, C and D of the Respondent's letter of 29 June 2000 had been set at 28 July 2000, the Respondent agreed subsequently to an extension thereof to 11 August 2000 by its facsimile message of 26 July 2000, and in so doing the Respondent stated as follows:
"Please note that while you may have mentioned that there were about 4500 files to process as part of the Class Action, the Authority's request is only related to immigration assistance for bridging visas obtained as part of the Class Action, and not all files relating to the Class Action.Please conduct the writer if you have any questions."
The reference said to have been made to "about 4500 files" would doubtless have been communicated by the Applicant by telephone, as is implicitly confirmed by the Respondent's next letter extracted in [16] below.
16 Thus shortly thereafter on 31 July 2000, the Applicant wrote to the Respondent a letter headed "Freedom of Information Request" purportedly pursuant to s 15 of the Freedom of Information Act 1982 (Cth); the specific terms of the request were as follows:
"I request that I be provided with access by way of the provision to me of photocopies of the relevant documents.The word "document" as used in this letter is intended to also refer to documents, e-mails or entries contained on any computer or computer network which is capable of being printed pursuant to Section 17 of the FOI Act.
The documents sought by this request are as follows:
1. All documents including papers, draft minutes or recommendations relating to the decision by the Migration Agents Registration Authority ("MARA") to send me the letter dated 29 June 2000.
2. The document, resolution, minute or Board resolution recording or evidencing the resolution of MARA that it send me the letter dated 29 June 2000.
3. Any document of the Migration Institute of Australia Limited ("MIA") that relates to the requests in paragraph 1 and/or 2 above.
4. Any document or instrument that evidences or records the appointment or revocation of appointment of the MIA as MARA within the meaning of Sections 275 and 315 of the Migration Act 1958.
5. Any documents including minutes, draft minutes, file notes or handwritten notes recording or relating to the meeting between an officer or officers of the Commonwealth Department of Immigration & Multicultural Affairs ("the Department") and officers, members or representatives of MIA or MARA.
6. Any written communication between officers of the Department and officers of MIA or MARA from 1 January 1999 to date regarding, concerning or referring to me or my firm, Adrian Joel & Co.
Enclosed with this letter is the application fee of $30.00 pursuant to Regulation 5 of the Freedom of Information (Fees and Charges) Regulations.
If the processing of this application is likely to incur charges in excess of the amount of $500.00, I would be grateful if you would inform me as soon as possible of this so that the FOI request might be modified by me appropriately, if necessary."
On the same day, according to a letter in reply sent by the Respondent to the Applicant, it was pointed out to the Applicant that the request was misconceived for the reason that the Respondent was a "proprietary limited company", as to which see again its present corporate identity explained in [2] above, and that circumstance was confirmed by letter of the Respondent to the Applicant of 1 August 2000, in part of which it was asserted by the Respondent that compliance would involve the consumption of approximately 200 reams of paper and incur charges of approximately $240,000 exclusive of any charges by the Department of Immigration and Multicultural Affairs, and take about three months to comply with. The reaction of the Applicant was to direct an alternative application under the Freedom of Information Act on 1 August 2000 to the Department of Immigration and Multicultural Affairs, the essence of which was the limitation of the documents described in paragraph numbered 5 therein to "on or about 17 February 1999". By written response of 15 September 2000, the Department provided the following "Decision" (omitting formal parts) in apparent response to the Applicant's above request made to the Respondent on 31 July 2000:
"I refer to your request received 15 August 2000 for documents under the Freedom of Information Act 1982 (the FOI Act) relating to a number of documents held by either the Department of Immigration and Multicultural Affairs and/or the Migration Agents Registration Authority (MARA).Decision
My decision and the reasons, in relation to each document are set out in attachment A. In broad terms, I have released seven documents in total and [one] document with a deletion relating to personal information. I have applied the exemption available under section 41(1).
Documents
My findings were based on the following evidence and material:
* Departmental file ADF1999/001393 entitled MARA referral requests;
* Departmental file A9705124 entitled MIA meeting June 1997;
* Departmental file AC9811846 entitled Instrument of Appointment Migration Agents Registration Authority;
* MARA agents file 57728 Adrian Joel;
* Hansard extract taken from Parliament House website;
* Freedom of Information Act 1982; and
* Departmental FOI handbook.
Charges
As an officer authorised to make decisions under the FOI Act, I have decided that no charges should be imposed for your request."
17 The documents purportedly produced as above by the Department, to the extent that the same were ultimately tendered in evidence by way of annexures to the Applicant's Affidavit of 10 October 2000, revealed the following circumstances:
(i) According to minutes of a meeting between officers of the Department of Immigration and Multicultural Affairs and executive officers of the Respondent held on 17 February 1999, the Secretary of the Department addressed such executive officers on that day on the subject of the Respondent's "code of ethics" (I presume that such was intended to be a reference to the "Code of Conduct" extracted in [8] above. It was further recorded in these Minutes that "The `Class Action' concept was cited (ie by the Departmental Secretary) as an example of an issue of concern, as some class actions appear to be often initiated without foundation or serious intent in a positive outcome for the client", and further that:
"In further discussion, Ray Brown said the MIA would encourage the Department to give them, even informally, information the Department might have of an agent who seemed to be pursuing dubious cases. However the MIA members also pointed out that there could be difficulties. They noted that last year the Minister had mentioned to them orally his concerns re an advertisement by Adrian Joel touting for business from Bangladeshis. MARA had not since received a complaint from the Department and they speculated that this might be because DIMA had received legal advice that it would be difficult to proceed...."
The refugees the subject of the class actions referred to in [12] above are not however from Bangladesh but Indonesia.
(ii) The above Minutes were forwarded to the Respondent by a Departmental Minute of 26 August 1999, which was signed by a director of "Litigation 1"; and read as follows:
"Advertisement by Adrian Joel and Co
Please find attached copy of an advertisement placed in an ethnic newspaper in Sydney by Messrs Adrian Joel & Co for your information. It was brought to my attention by the Minister's Office. I believe that the Minister is intending to write to the New South Wales Law Society about it.
I am not sure whether there is anything you might wish to do from a migration agent viewpoint."
It does not appear from the evidence as to whether the advertisement attached to this communication is the same as that set out in [11] above, but that would seem to be a reasonable inference to draw, in the light of the events which thereafter happened culminating in the sending of the first notice.
(iii) By letter dated 15 October 1999, the Department wrote to the Respondent as follows:
"Referral of Complaint
Please find attached copy of an advertisement placed in an ethnic newspaper in Sydney by Messrs Adrian Joel & Co Registration Number 57728. It was forwarded to us by the Litigation section of the Department.
I am forwarding this information to you for possible investigation.
I would be grateful for your advice as to the outcome of this matter in due course."
(iv) By letter dated 21 October 1999, the Respondent wrote to its Solicitors Barker Gosling Legal Group as follows:
"Please find enclosed material for the Conduct Advisory Panel concerning Messrs Adrian Joel and Co.The complaint involves the issue of client monies related to the Class Actions referred to in the advertisement. The compliant should be considered in a similar way to the current complaints against [at this point the test is "whited out"].
Please contact me if you require any further information regarding this matter."
(v) The Respondent's Solicitors responded by fax message of 31 May 2000 reading as follows:
"Advertisement for Permanent ResidenceI refer to our brief telephone conversation early this morning and the advertisement faxed to me headed `Permanent Residence - Australia'.
You have indicated to me that a Parliamentary committee is seeking an urgent answer from MARA as to its possible response to the advertisement.
In the extremely short time available, I make the following comments:-
1. Class actions come under the definition of "immigration legal assistance" in Section 277 of the Act. They are therefore normally considered outside the scope of MARA and the Code of Conduct.
2. However, the advertisement states "You still may qualify for a bridging visa and become legal".
An application for bridging visa comes under the definition of "immigration assistance" (Section 276) and is within the scope of MARA and the Code.
3. Clause 2.1(a) of the Code requires a migration agent to act in accordance with the law and the legitimate interests of his or her client. If the agent genuinely believes that each member of the class has a reasonable prospect of success in the class action then the agent is acting in the legitimate interests of his or her client in bringing the proceedings and in inviting clients to join in those proceedings. The agent is also not acting in breach of the law, even though the client is illegal - provided the client has a reasonable chance of obtaining a visa and becoming legal.
4. Clause 2.17 of the code requires that an agent must not encourage a client to lodge a grossly unfounded application. Once again the test is whether or not the agent believes the application has a reasonable chance of success.
5. Clauses 2.10 and 2.11 of the Code refer to advertisements. The advertisement will be false or misleading under clause 2.10 unless the agent has a genuine belief that the class action has a reasonable prospect of success.
6. Clause 2.11 of the Code requires a migration agent to include the words "registered migration agent number"
It does not appear from the blacked out copy of the advertisement in my possession whether or not the advertisement has been lodged by a migration agent and if so, whether the registered number has been included.
Conclusion - on the assumption that the advertisement has been placed by a registered migration agent, the disciplinary actions available under the Act and Code will depend upon whether or not the agent had a genuine belief on reasonable grounds that the class action has reasonable prospects of success. If so, there may be technical breaches of the Code but no substantial or substantive breaches. If not, there may be serious breaches of Code which may result in serious disciplinary action under Section 303 of the Act."
18 Returning then to the communications between the Applicant and the Respondent, following upon the giving of the first notice, on 3 August 2000 the Respondent wrote to the Applicant as follows, omitting formal parts:
"On 29 June 2000 The Migration Agents Registration Authority ("the Authority") wrote to you requesting you, pursuant to section 308(1) of the Migration Act 1958 ("the Act"), to produce to the Authority information and documents relating to a number of applications.In requesting the information the authority had considered, inter alia, the production of all files together. The Authority ultimately decided to require the information and documents to be provided in 3 stages over a period of 3 months. The reason why the authority staggered the delivery over a period of months was because it appreciated that you would be faced with difficulties in producing such a large number of files.
The Authority received phone calls from you in which you stated that some 4,300 files would need to be produced to the Authority. The Authority would remind you that it is only interested in matters where immigration assistance in relation to bridging visas had been given.
The Authority considered this matter at its meeting on 25 July 2000. The Authority is willing to consider alternative proposals.
In an attempt to minimise the administrative burden to you the Authority has decided not to require at this time all of the information requested in the letter of 29 June last.
The Authority will accept the following in relation to the visa applications you referred to:
(i) A copy of each client account record,
(ii) A Statutory Declaration from you with a sample attached of the section 313 statement of services given to the clients. Your declaration should state:
* How many clients received the statement of service,
* How many clients received a statement of account,
* How many clients returned to you written confirmation of the terms of service,
* What advice was given to the applicants in relation to their position in the class action and
* That only registered migration agents gave immigration assistance and only registered agents communicated with or made other immigration representations to the Department of Immigration and Multicultural Affairs.
The Authority is to receive your statutory declaration and the client accounts records by 8:30am on 1 September 2000.
The functions of the Authority are those set out in Part 3 of the Migration Act ("The Act") and are summarised in section 316 of the Act."
It appears that the above expressions "each client account record" and "statement of account" is to the "clients' account" referred to in Part 7 of Schedule 2 to the Regulations extracted in [8] above. The references to "section 313 statement of services" and to "the statement of service" are to the expressions to such effect appearing in the extract from s 313 in [5] and from Regulation 5.5. The obligation to answer questions by statutory declaration is contained in s 308(1) extracted in [4] above. As to the concluding sentence of the Respondent's above letter of 3 August 2000, I record that s 316 is extracted in [6] above.
19 By letter dated 18 August 2000, the Applicant replied to the Respondent's letter of 3 August 1990, first in the terms contained in the body of the letter as extracted below:
"I refer to your correspondence of 3 August 2000 and respond as follows.Subsequent to my arrival from overseas I estimate I have spent the equivalent of 3 working days preparing an appropriate response. I herewith attach that response.
Your correspondence of 26 July and 3 August 2000 demonstrably contradicts the requests made in the Authority's correspondence of 29 June as it relates to:
1. Material concerning the provision of immigration representations as per Section 282; and
2. Issues regarding legal professional privilege.
As is canvassed in the attached correspondence, I currently have responsibility for the carriage of one of Australia's largest administrative law actions. My professional responsibilities dictate that I must be totally committed to this trial. I am not in a position to commit more resources during this period to participate in:
A. The mass photocopying of all relevant receipts (I estimate 4,000-5,000).
B. Cross referencing the receipt books to the thousands of files.
This would entail:
1. Obtaining and placing files in alphabetical order on a desk close to a photocopier.
2. Referring to file record of receipt/date during individual file examination.
3. Preparing and labelling about 120 receipt books in a type of bookcase which is easily accessible to the desk books.
4. Searching and identifying relevant receipt books.
5. Physically leaving the desk for individual copying of identified receipt.
6. Duplicating the above procedure as per file record.
7. Returning and repacking the file.
C. Dealing with issues with respect to my duties regarding legal professional privilege, as canvassed at paragraph (ii) of your correspondence; and
D. Other issues which may be attendant to your latest correspondence.
I estimate examination of each file as per the above procedures would take an average of 15 minutes. This would mean I estimate it would take approximately 875 hours to complete the Authority's "request", which I would either have to participate in or actively supervise. I estimate the costs associated with such procedures, inclusive of the estimated 4,000-5,000 photocopies, would be between $15,000-$20,000 (minimum).
In the circumstances I have described above, the Section 308 request is plainly unreasonable and oppressive. I draw the Authority's attention to the draft response attached hereto which I prepared with respect to the two previous requests. It contains relevant commentary with respect to this matter.
I do not wish to challenge the right of the Authority to make reasonable requests according to law. However, simply stated, I cannot at this stage be distracted for prolonged periods when this time must be spent preparing for the relevant hearings. My practice would be profoundly disrupted.
As an alternative may I suggest that I provide the Authority with appropriate information regarding account procedures with appropriate samples of documentation. I would also be happy to provide appropriate (non-privileged) information or records with respect to any sample of specified files.
Should this proposed course of action be unacceptable, please expeditiously notify me. If your decision is adverse I will consider implementing the options open to me, as stated at page 5 of the correspondence attached.
I await your early response. This correspondence should not be interpreted as agreeing to all of the requirements in your latest correspondence."
20 The reference in the Applicant's above letter to the Respondent of 18 August 2000 to "...the draft response attached hereto which I prepared with respect to the two previous requests...", of which it is said "...contains relevant commentary with respect to this matter", is to an unsigned letter from the Applicant to the Respondent bearing date 4 August 2000, which extended over five pages. Much of the content of such draft letter was repeated in the above letter of 18 August 2000 from the Applicant to the Respondent, except for the following contentions and assertions:
(i) That on 6 July 2000 Mr Irving of the Respondent informed Mr Cruice, a solicitor and migration agent in the employ of the Applicant, as follows:
"There is no complaint against Mr Joel. It was just a letter requesting him to provide further information to [the Respondent]."
(ii) That the Respondent's letter of 29 June 2000 was unreasonable and oppressive, having regard to the magnitude of the High Court class actions and the Applicant's professional capacity in being a sole practitioner with a small staff;
(iii) That the Applicant's files were created and maintained manually with the assistance of a small staff, and word processing was usually "contracted out", the Applicant having only an old 1989 computer for typing;
(iv) There were 4750 named persons in the class actions and between 3,200 and 3,600 individual files directly referrable to the class actions, many of the files being voluminous and exceeding 50 pages and all of which would need personal examination for the purposes of an adequate response;
(v) Much of what was sought was the subject of legal professional privilege and therefore determinations would have to be made by reference to individual files;
(vi) The Applicant and his staff were occupied almost full-time in the management of the High Court class actions;
(vii) Compliance would take about seven to eight months of full time work involving thousands of dollars and occupying about 5000 hours of the Applicant's attention.
21 The Respondent did not immediately respond to the applicant's letter of 18 August 2000 extracted above. Instead the Respondent sent to the Applicant under cover of a letter of 25 August 2000 what the Respondent described as "...Notice of Decision in response to your request that details the reasons for sending the letter dated 29 June 2000", which "Notice of Decision" stated as follows:
"DECISION OF THE AUTHORITY
The Authority decided to request information pursuant to section 308(1)(a) of the Migration Act 1958 (the "Act") from the Agent in relation to the giving of immigration assistance for bridging visas obtained as part of the Class action referred to in an advertisement by the Agent in a newspaper dated 6 August 1999.
REASONS FOR THE DECISION OF THE AUTHORITY
(i) On 21 October 1999, the Migration Agents Registration Authority (the "Authority") received a referral of a complaint from the Department of Immigration & Multicultural Affairs attaching a copy of an advertisement placed in an ethnic newspaper by the Agent;
(ii) On 21 October 1999, the advertisement was referred to the Authority's Conduct Advisory Panel for their Investigation;
(iii) On 30 May 2000, a number of members of the Authority appeared before the Joint Standing Committee on Migration of the 39th Parliament of Australia. At that meeting a copy of the Agent's advertisement was provided to the members of the Authority to explain if any action had been taken in relation to the advertisement. The Agent's name and contact details were omitted.
(iv) On 31 May 2000, a number of members of the Authority appearing before the Senate Legal and Constitutional Legislation Committee. At that meeting further discussion took place in regard to the material provided by the Joint Standing Committee on migration, particularly the Agent's advertisement.
(v) Following the Joint Standing Committee inquiries, a recommendation in relation to the advertisement was requested from the Conduct Advisory Panel. A response was provided in a facsimile dated 31 May 2000.
(vi) In consideration of the concerns expressed by the Joint Standing Committee on Migration and other concerns and evidence presented to that Committee, and the concerns expressed by the Senate Legal and Constitutional Legislation Committee, and in fulfilment of the Authority's functions as set out in Part 3 of the Migration Act 1958 (the "Act") and summarised in Section 316 of the Act, the Authority considered and decided to write to the Agent to request the production of information and documents relating to instances of immigration assistance which would have occurred (sic) a result of responses to the advertisement.
(vii) The Authority considered requiring the production of the client file of each visa applicant. However, the Authority appreciated the Agent would have faced difficulties in what is expected to be a large number of files. The Authority considered and changed its request to require the Agent to provide the following information pursuant to section 308(1)(a) of the Act in the form of a statutory declaration."
Set out below the material extracted immediately above was virtually the whole of the full text of what appears as paragraphs A to F in the Respondent's notice extracted in [13] above. As to the reference in sub-paragraphs (iv) to (vi) above to the discussions of the Joint Standing Committee, certain transcripts thereof were initially proposed for tender in the proceedings by the Applicant, but the tender was not pursued by the Applicant, and the Respondent for its part did not seek to tender the same.
22 On 7 September 2000, the Law Society of New South Wales wrote to the Minister in relation to "...practising solicitor-members of the Law Society of New South Wales who also hold appointments as Migration Agents", and expressed the Society's concern in relation to the Respondent's requirements of the Applicant made pursuant to s 308(1)(a) of the Act as set out in [13] and [18] above, being a concern related to the entitlement of the Applicant's clients engaged in the High Court litigation [10] to legal professional privilege. Attention was drawn in particular to the request contained in the Respondent's letter of 3 August 2000 set out in [18] above as follows: "What advice was given to the applicants in relation to their position in the class action", and did so in the following context:
"As you may be aware there are a number of practising solicitor-members of the Law Society of New South Wales who also hold appointments as Migration Agents. As such they are accountable for their professional conduct under the disciplinary provisions of the Legal Profession Act 1987 (NSW). I note that those solicitors are also accountable to the Migration Agents Registration Authority ("MARA") in accordance with the Migration Agents Code of Conduct.The purpose of this letter is to express the Law Society's concern at the requirements of MARA under Section 308(1)(a) of the Migration Act directed to one of our solicitor members, Mr Adrian Joel, practising as a Solicitor and Migration Agent. The MARA requirements, dated respectively 29 June 2000 and 3 August 2000, of a statutory declaration by Mr Joel, relate to the information and records of particular clients of his combined legal and migration agent practice, which are subject to a claim of the clients' legal professional privilege in relation to proceedings currently before the High Court of Australia.
That longstanding principle of the common law, well recognised by Australian Courts, is designed to protect the confidentiality of communications which are effected and documents which come into existence for the dominant purpose of judicial or administrative proceedings. In this regard, the particular requirement for disclosure - "What advice was given to the applicants in relation to their position in the class action" is open to objection, since the protection of a client's communications and documents which is:
* directed to the dominant purpose of the institution and maintenance of proceedings; and which
* seeks to establish and confirm a client's particular rights or entitlement, under the Migration Act or other relevant statutes or applicable Treaties or Covenants,
I understand necessarily supervenes an otherwise legally binding administrative requirement which relates to those documents, communications and to the assembly of information based thereon from reports in the media, that you have expressed a degree of dissatisfaction with the activities of Australian lawyers who accept instructions to advise and assist persons whose residential or migration status in Australia is subject to adverse action or prosecution by your Department. Any such activities by solicitors in New South Wales which breach provisions of the Legal Profession Act or Rules of Professional Conduct and Practice would be subject to disciplinary action. It is my understanding that no compliant or notice of compliant has been received by the Law Society or by the Legal Services Commissioner relating to the professional conduct of Mr Joel.
What is of further concern is the information which appears in what purports to be a copy of minutes of a "Meeting between DIMA and MIA Executive Members" dated 17 February 1999, which has come into Mr Joel's possession. A copy of those purported minutes is enclosed for your personal reference. What is of particular concern are the statements under the heading "Address by Secretary", if true: "that last year the Minister had mentioned to them (the MIA members) orally his concerns regarding an advertisement by Adrian Joel touting for business from Bangladeshis. MARA had not since received a compliant from the Department and they speculated that this might be because DIMA had received legal advice that it would be difficult to proceed."
The Law Society's letter further requested that the Minister direct the Respondent that it refrain from requiring the Applicant's compliance with the requests set out in [13] and [18] above "until completion of the relevant court proceedings". There is no evidence before me as to whether the Minister responded to the letter of the Law Society. The Applicant caused a copy of the Law Society's letter to be sent on 19 September 2000 to the Respondent. At the hearing of the present Application, the Law Council of Australia was granted leave by the Court to appear as amicus curiae by Counsel for the purpose of addressing argument to the effect of s 308 of the Act (see again [4] above) upon legal professional privilege. An affidavit from the Deputy Secretary-General of the Law Council of Australia was presented to the Court which included the following:
"5. The substantive issue raised in this matter is of considerable significance to Australian lawyers. This is because approximately sixty per cent of registered migration agents under the Migration Act 1958 are practising lawyers. This means that they are subject to dual regulation in respect of their professional conduct. The Law Council considers it important that the duties and obligations of a lawyer who is also a registered migration agent should be acknowledged and identified, particularly those duties that are owed to a client. The Law Council is concerned that the common law doctrine of legal professional privilege should be preserved in respect of lawyers who practise as registered migration agents."
23 In the meanwhile on 14 September 2000, the Respondent had furnished to the Applicant the third notice (see [1(iii)] above), which read as follows:
"The Migration Agents Registration Authority (the "Authority") received an advertisement relating to your practice as a migration agent on 21 October 1999. The Authority refers you to that advertisement and to the submissions and evidence of the Joint Standing Committee on Migration of the 39th Parliament of Australia.In its letter dated 29 June 2000 the Authority requested certain information from you pursuant to section 308(1)(a) and section 308(1)(c) of the Migration Act 1958. Following a request by you, the Authority at its meeting of 25 July 2000 agreed to provide you with an extension in time to respond to 11 August 2000.
In a second letter dated 3 August 2000, the Authority amended its request for information with a deadline of 1 September 2000.
In your responses dated 4 August 2000 and 18 August 2000 you advised that you were unable to comply with the Authority's request for information.
The Authority considered the matter at its meeting on 31 August 2000 and it is open to the Authority to be satisfied that you may have breached Clause 6.3 of the Code of Conduct as at 1 April 1998. The Authority is considering cautioning you or suspending or cancelling your registration for the following reasons.
Clause 6.3 A migration agent must respond to a request for information from the Authority within a reasonable time specified by the Authority.
In your responses dated 4 August 2000 and 18 August 2000 you advised that you were unable to comply with the Authority's requests for information.
It is open to the Authority to be satisfied that you may have breached Clause 6.3 of the Code for failing to provide the information requested by the Authority.
Pursuant to section 309(2) of the Migration Act 1958, the Authority invites you to make a submission on the matter.
Please provide your response by 8.30am on 30 October 2000. All correspondence should be forwarded to:
Professional Standards
Migration Agents Registration Authority
PO Box Q 1551
QVB NSW 1230."
Regulation 6.3 of the Code is extracted in [8] above, and s 309(2) of the Act is extracted in [4] above. The response of the Applicant was to commence the subject proceedings. The Respondent has withheld from taking any further steps or actions against the Applicant.
24 The affidavit evidence submitted by the Applicant at the hearing of the proceedings, additionally to that already summarised above in these Reasons, included the following material lastly filed prior to the hearing:
"In regard to that paragraph, I further say that I estimate that there would need to be in excess of 4000 individual interviews with my clients in order for me to seek their instructions in relation to the possible waiver of their legal professional privilege or client legal privilege in respect of the possible release to the respondent of their documents, files or in respect of my or my firm's legal advice. In many of these interviews, a suitable interpreter and/or translator would also need to be in attendance. As each such interview would be of approximately 45 minutes duration, it would accordingly involve me in expending about 3,000 hours to so seek the instructions. This estimate does not factor in the large administrative burden and cost for me to arrange the attendance of the clients and interpreters/translators for this purpose."
I should record that the Respondent did not seek to cross-examine the Applicant on any of the Affidavits deposed to by the Applicant which were tendered in the proceedings.
Applicant's Grounds for Review
25 The Applicant has contended that what he describes as the "first decision", the "second decision" and the "third decision", as identified in [1] above, should be reviewed by appropriate declaratory relief and set aside, and that the Respondent should be enjoined in effect from proceeding further in relation to implementation of the third decision upon a number of grounds, which may be conveniently summarised below from the Applicant's written submissions:
(i) S 308 of the Act does not displace the common law doctrine of legal professional privilege, and the first and second decisions are vitiated by reason that the same require the provision by the Applicant of information in breach of the legal professional privilege attributable to the Applicant's clients involved in the High Court litigation;
(ii) The first and second decisions are ultra vires and without lawful authority, are expressed too widely, and are harsh, unjust and oppressive in their respective terms, and are therefore vitiated by reason of paragraphs (c), (d) and (e) of s 5(1) or s 6(1) of the ADJR Act, and in relation to the said paragraphs (e), by reason in turn of paragraphs (a), (b), (c) and (g) of s 5(2) or s 6(2) of the ADJR Act;
(iii) As to s 5(2)(a) of the ADJR Act, the first and second decisions took into account irrelevant considerations, being the views respectively of the Minister of the Joint Standing Committee on Migration, and of the Senate Legal and Constitutional Committee on Migration;
(iv) As to s 5(2)(b) or s 6(2)(b) of the ADJR Act, the first and second decisions failed to take into account the following relevant considerations (which for the most part I have extracted verbatim):
(a) The Applicant could not comply with such decisions because "he ran a small firm", "he was acting for thousands of persons currently engaged in litigation in the High Court", "that High Court action had not concluded as at the time of the request", "he could not afford to comply without the clients/parties in the High Court class action suffering or (sic) to their detriment";
(b) "The submissions of the [A]pplicant contained in his letter to the [R]espondent of 18 August 2000...";
(c) "the position of the refugee class action litigants in respect of privilege and in not having their matter interfered with by the [R]espondent";
(d) "that the making of the decisions might well constitute a contempt of the High Court of Australia in relation to the proper conduct of the class actions or be considered an unacceptable interference with the due administration of civil justice...";
(v) As to s 5(2)(e) or s 6(2)(e), "in the making of its decisions (referring thereby to the first and second decisions), the [R]espondent was required to take into account only proper and lawful purposes", and that "The purposes of the [R]espondent in making the decisions here were improper in that in the premises:
* They were intended to cause significant interruption and disruption to the [A]pplicant and his practice;
* They [were] intended to receive and examine migration and refugee files and documents and advice that was properly the subject of legal professional privilege that had not been waived;
* They were intent upon satisfying or accommodating the views, or their perceived views, in relation to the [A]pplicant of:
- the Minister for Immigration and Ethnic Affairs;
- the Secretary of the Department;
- the members of the Joint Standing Committee on Migration; and
- the members of the Senate Legal and Constitutional Committee on Migration."
(vi) The exercise of powers of the Respondent in making the first and second decisions, being powers of a discretionary nature, was so unreasonable that within s 5(2)(g) or s 6(2)(g) of the Act, no reasonable person could have so exercised such powers;
(vii) In making the first and second decisions, "the [R]espondent wrongly interpreted s 308(1)(c) of the Act as permitting the [R]espondent to require an agent to provide general classes of documents or records or unspecified documents or records and not specified documents or records as the said paragraph requires";
(viii) In making the first and second decisions, "the [R]espondent wrongly interpreted s 308(1)(a) of the Act as permitting the provision of a statutory declaration by way of the [A]pplicant merely providing information and not as one in answer to questions as the said paragraph requires";
(ix) In making the first and second decisions, "the [R]espondent wrongly interpreted s 308(1)(a) as not requiring that the said statutory declaration be relevant to the migration agent's continued registration", since "s 308(1)(a) must be read as being subject to the proviso in s 308(1)(c) and the statutory declaration must be relevant to the [A]pplicant's continued registration";
(x) In relation to the second decision, "...because the [R]espondent said to the [A]pplicant that it was `willing to consider alternative proposals' regarding the manner of compliance by the [A]pplicant with the requests of the [R]espondent contained in the first and second decisions, and because the [A]pplicant made an alternative proposal in a letter to the [R]espondent dated 18 August 2000 yet no response to that proposal was received by the [A]pplicant prior to 1 September 2000, ...the power contained in s 308(1) of the Migration Act in the making of the request for information contained in the first and second decisions had not been exhausted and was a continuing process up to the date of the third decision";
(xi) "In the making of the third decision, the [R]espondent depended upon the validity of the first and second decisions. As those decisions were affected by legal error, the third decision is also affected by error and should be set aside";
(xii) "further or in the alternative [to (xi) above], in the making of the first and second decisions, the [A]pplicant was not accorded a reasonable time in order to comply with the periods specified in the first and second decisions";
(xiii) "The first and second decisions were ultra vires in that they each required the provision of copies of documents and s 308(1)(c) of the [Migration] Act does not authorise the [R]espondent to require that recipients of such notices should create and deliver copies";
(xiv) "The first and second decisions were ultra vires in that they were ambiguous or too wide or uncertain in relation to the documents apparently required to be produced pursuant to the said decisions".
Alternatively the Applicant sought declaratory relief to the effect that he was not accorded a reasonable time for compliance with the requirements of the first and second decisions. Also, the Applicant expressed reliance upon s 39B(1A)(c) of the Judiciary Act additionally or alternatively to ss 5 and 6 of the ADJR Act.
Jurisdictional Issues
26 The Respondent's jurisdictional responses to the Applicant's grounds for review of the first, second and third decisions referred to in [1], that is to say, its responses as to the availability of review under s 5 or s 6 of the ADJR Act and/or s 39B of the Judiciary Act are as follows:
(i) As to the first decision of the Respondent (ie that made to give the first notice on or about 29 June 2000), the same did not have sufficient finality for it to be a "decision" within the definition contained in s 3(1) of the ADJR Act and therefore fall within s 5; nevertheless the Respondent acknowledged that the issue as to lawful exercise of the powers conferred by s 308(1) of the Act was "a matter arising under a law" within s 39B(1A)(c) of the Judiciary Act; in any event the Respondent contended that the first decision had been overtaken for at least the time being by the Respondent's second decision; consequently the Applicant was no longer entitled to seek review of the first decision, or else relief should be declined on the discretionary ground that issues arising in respect of the first decision were presently academic;
(ii) As to the second alleged decision of the Respondent (ie that made to give the third notice on or about 3 August 2000), the Respondent again acknowledged that the same was reviewable under s 39B(1A)(c) of the Judiciary Act, but not as a decision or as conduct reviewable under ss 5 or 6 of the ADJR Act;
(iii) As to the third alleged decision of the Respondent (ie that made on or about 14 September 2000), the same did not involve a decision or conduct reviewable to which ss 5 or 6 of the ADJR Act applied, for the reason that s 309(2) of the Act merely imposed a duty on the Respondent to take certain steps in response to a certain situation. Moreover the third alleged decision was only reviewable under s 39B(1A)(c) of the Judiciary Act in so far as the same authorised review of the basis on which the Respondent "is considering" proceeding against a registered agent such as the Applicant.
27 It is appropriate to first resolve the foregoing issues between the parties to the extent that the same involve jurisdictional review matters, and thereafter to determine the meaning and operation of ss 308(1)(a) and (c) and 309(2) of the Act in relation to the circumstances of the present disputes. The jurisdictional principles of law here involved may be described as follows:
(i) As to whether the Respondent made decisions to which s 5 of the ADJR Act applied, judicial interpretation of the statutory notion contained in s 3(1) of the ADJR Act (ie "decision to which this Act applies") highlights three elements, first that the decision must be the result of a mental process which may be communicated orally or in writing or be apparent from action taken or not taken, secondly that the decision must amount to something of significance which is reasonably definite and is final for immediate purposes, and thirdly that it is manifested in some way which emanates from an authoritative or responsible source, and which materially affects another person or persons: Evans v Friemann (1981) 35 ALR 428 at 431 per Fox ACJ. Subsequently in Bond v Australian Broadcasting Tribunal [1990] HCA 33; (1990) 170 CLR 321 at 337, Mason CJ, with whom Brennan J agreed, expressed the following conclusions upon the meaning of "reviewable decision":
"...a reviewable decision is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an indeterminate decision, might accurately be described as a decision under an enactment.Another essential quality of a reviewable decision is that it be substantive determination.... If `decision' were to embrace procedural determinations, then there would be little scope for review of `conduct' a concept which would appear to be essentially procedural in character."
I should add that it is not necessary for a reviewable decision for the purposes of s 5 that it directly affect legal rights, so long as it has some real or practical effect (Attorney-General (Cth) v Queensland (1990) 25 FCR 125 at 142), cited with approval by the Full Federal Court in Salerno v National Crime Authority (1997) 144 ALR 709 at 713.
(ii) As to the notion of "engaging... in conduct for the purpose of making a decision to which the [ADJR] Act applies..." contained in s 6 of the ADJR Act, it was stated by Mason CJ in Bond, (supra) at 342 that "...the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions along the way with a view to the making of a final determination", and further that "...conduct is essentially procedural and not substantive in character". As indicated by Hill J in NSW Aboriginal Council v Aboriginal and Torres Strait Islander Commission (unreported Federal Court of Australia 30 August 1995, at page 22ff), whilst conduct does not mean every step leading to the making of a decision, conduct is the procedure in which the decision-maker engages for the purpose of making the relevant decision, and thus it is necessary to identify decisions within the s 3(1) ADJR Act meaning not yet made. One instance of "conduct" was found to be the combination of the announcement of an intention of a Royal Commissioner to call a witness before him pursuant to a subpoena, to issue subpoenas, and to direct or propose to direct questions to such a witness: see Lloyd v Costigan (1983) 48 ALR 241 at 250;
(iii) However, jurisdiction under s 39B of the Judiciary Act is unconstrained by the ADJR Act's requirements that there must be a relevant decision under an enactment or conduct for the purpose of making such a decision; s 39B(1A)(c) of the Judiciary Act inserted with effect from mid-1997, reads as follows:
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
... (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter."
The above statutory notice of "...any matter...arising under any laws made by the Parliament..." at least generally speaking tends to be wider than s 5 or s 6 of the ADJR Act when read discretely.
As to the practice, which has been adopted by the Applicant here of invoking jurisdiction under the Judiciary Act in addition to the ADJR Act, the authors of Judicial Review of Administrative Action (2nd ed) LBC 2000 (Aronson and Dyer) make the following observation at 37:
"The [ADJR] Act's scope is further limited in that it covers only `decisions' for `conduct' leading to a `decision' which are `of an administrative character', and which are made `under an enactment". Each of those terms is narrowly defined or interpreted. The ironic result is a profusion of Federal Court judgments discussing objections to the court's competence to entertain the ADJR application, in contexts where there could be no such objection to an application under s 39B of the Judiciary Act 1903 (Cth). This has led, not unnaturally, to a certain finickitiness in the court's supervision of ADJR pleadings, and a practice on the part of practitioners to plead s 39B as an alternative basis of their challenge wherever possible."
Findings and conclusions upon jurisdiction
28 I would conclude from the authorities referred to in [27] above that the Respondent's sending of the first notice of 29 June 2000 to the Applicant constituted conduct within s 6 of the ADJR Act, such as to attract jurisdiction for review. The sending of first notice constituted conduct leading to a decision of the Respondent as to whether the Applicant in his capacity as a registered agent had breached Clause 6.3 of the Code of Conduct, with consequences as to a caution, or the suspension, or cancellation of registration as a registered agent (ss 303 and 304 referred to in [3] above stipulate such consequences). The circumstances of the giving of such notice and the requirements thereof are analogous to those involved in Lloyd v Costigan, (supra). To adopt the description in Bond v Australian Broadcasting Commission, (supra), although there was no "substantive decision" involved on the part of the Respondent such as to attract s 5, there was constituted "conduct" within s 6. In any event, the Respondent has conceded that the issue as to lawful exercise by the Respondent of the power conferred by s 308(1) of the Act constitutes a matter arising under a law of the Commonwealth within s 39B(1A) of the Judiciary Act, so that jurisdiction for review is available on two bases. I have reached the same conclusion for the same reasons in relation to the giving of the second notice of 3 August 2000, such notice having been expressed by the Respondent to be authorised by s 308(1) and to operate by way of modification of the manner and to the extent of what would be treated as acceptable compliance with the first notice of 29 June 2000. As to the third notice, having been purportedly given on 25 August 2000 pursuant to s 309(2) of the Act, the same conclusion as to the absence of a substantive decision applies, since that sub-section stipulates only for a further procedural step or process which the Respondent is required to take or implement, if it is considering the making of the substantive decision as to cancellation or suspension of an agent's registration or the issue of a caution to a registered agent pursuant to s 3 of the Act. The fact that s 309(2) imposes upon the Respondent the duty to take such a procedural step or to implement such a process in the circumstances there stated does not disqualify such taking or implementation as conduct within s 6 of the ADJR Act.
29 Whether the first decision the subject of the notice of 29 June 2000 was overtaken by the second decision the subject of the notice of 3 August 2000, and whether the third decision was confined in operation by reference therefore to the second notice falls for interpretation of all three notices. The submission advanced by the Respondent more precisely is that the so-called first decision, being that reflected in the giving of the Respondent's first notice to the Applicant of 29 June 2000 (see again [13] above), is no longer operative and that there exists therefore no basis for reviewing the same, in the light of the opening passages in the Respondent's second notice of 3 August 2000 (see again [18] above), and that the third decision was made referrable to non-compliance with the second notice alone. This first submission carries the critical implication that if correct, the first notice of 29 June 2000 was suspended by the Respondent from further operation at least for the time being in favour of the second and more abbreviated notice of 3 August 2000. I refer in particular to the following words used in such second notice which import the theme of at least temporary replacement of the first notice by the second notice:
"willing to consider alternative proposals"
"not to require at this time"
"will accept the following".
I think that the foregoing first submission of the Respondent Authority is correct. The giving of the second notice constituted a material alteration to "the conduct [engaged in by the Respondent] for the purpose of making a decision" to which s 6 of the ADJR Act applies, and also to "the matter arising under any laws" within s 39B(1A)(c) of the Judiciary Act. That is not to say that the first notice and its contents ceased to have any relevance for any purpose in the present proceedings for review. As will be seen, recourse to the text of the first notice is appropriate for the purpose of understanding the context to and thus clarifying the nature of the requirements of the second notice, and consequently also of the third notice, and hence to assist the interpretation of any lack of clarity or ambiguity in the language of the second and third notices. Nevertheless the first notice was suspended from further operation at least for the time being by the terms of the second notice, such as to put the first notice for the time being beyond the statutory status of "conduct" and "matter" susceptible to judicial review in the present context, or at least should produce the same result on discretionary grounds as the Respondent has alternatively submitted. As to the third notice, the same purports to take not merely its context but also its foreshadowed implementation upon the footing of the Applicant's non-compliance with the requirements of the second notice. I therefore reject the Applicant's contention that there presently exists a case for review of both the first and second notices, and I put aside consideration of the justification or otherwise for the requirements of the first notice.
30 It therefore becomes next appropriate to address the grounds for the attack of the Applicant upon the Respondent's second notice (ie that of 3 August 2000). The first ground which I will address is whether the second notice is unlawful and invalid, by reason that compliance therewith would constitute breach on the part of the Respondent of the legal professional privilege of the numerous refugee applicants in the High Court litigation: as to such litigation, see again [10] and [12] above. That aspect of the second notice which gives rise to the issue as to legal professional privilege is the question "What advice was given to the applicants in relation to their position in the class action?". The Respondent's written submission as to this issue is as follows:
"...the request is clear on its face. It asks the applicant to make a statutory declaration indicating what advice was given to the applicants as to what their position was in the class action i.e. whether they were in the class action (and thus entitled to apply for a Bridging Visa) or not within the class action (in which event such entitlement would not exist). To inquire of a migration agent (or solicitor) as to the status of that applicant or client does not involve release of confidential legal communication(s)... therefore... it has not by either the June s 308 decision or the August s 308 decision requested the applicant [to] reveal confidential information."
The relevant context within the first notice (ie 29 June 2000) to this question in the second notice (ie 3 August 2000), namely the question "What advice was given to the applicants in relation to their position in the class action", is that which is set out in paragraph F of the first notice, which is also reproduced in [13] above. Clause 9.1 of the Code of Conduct referred to in the first notice is already extracted at [8] above. The Respondent's written submissions consequentially add on the issue of legal professional privilege the following contention:
"the respondent contends it is not necessary for the Court to determine whether or not Part 3 Division 4 of the Migration Act authorises abrogation of legal professional privilege as considered in Corporate Affairs Commission of NSW v Yuill [1991] HCA 28; (1991) 172 CLR 319."
31 By reason of the Respondent's emphasis on the reference to "Bridging Visa" in its above extracted submission, I digress here to refer to the circumstance that the Act provides by s 37 that "There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF". Subdivision AF of Division 3 of Part 2 of the Act comprises ss 72 to 76 . Subclass 050 of Schedule 2 to the Regulations under the Act stipulates the criteria to be satisfied by an applicant for a bridging visa. One set of criteria which may be satisfied by an applicant for a bridging visa appears in sub-regulations (4) and (4A) reading as follows:
"(4) An applicant meets the requirements of this subclause if:(a) the applicant has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa; or
(b) the applicant has applied for merits review of a decision to cancel a visa; or
(c) the Minister is satisfied that the applicant will make an application of a kind referred to in paragraph (b); or
(d) the applicant has applied for judicial review of the validity of a law that affects:
(i) the applicant's eligibility to apply for a substantive visa; or
(ii) the applicant's entitlement to be granted or to continue to hold a substantive visa.
(4A) For the purposes of subclauses (3A) and (4), the applicant is taken to have applied for judicial review if the applicant:
(a) is described or identified, in an application or document filed for the purposes of section 33H of the Federal Court of Australia Act 1976, as a group member to whom a representative proceeding relates; or
(b) is a person on whose behalf or for whose benefit a person sues under Order 16 Rule 12 of the High Court Rules."
Order 16 Rule 12 of the High Court Rules relates to representative parties where there are a number of applicants for relief, and the present High Court proceedings in which the Applicant here is engaged as a solicitor for the refugee applicants have apparently been brought upon the basis of such Rule.
32 Professional privilege applies of course to both written and oral communications between a legal advisor and his or her client, and the client's agent. Advice qualifying for the privilege will be most frequently that provided for the sole purpose of preparing for, or of use in, existing or contemplated judicial or quasi-judicial proceedings (Attorney General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 490), but the privilege is not so confined as was previously thought to be the case, as the majority of the High Court decided in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52. In one of the majority judgments in Baker v Campbell (that of Deane J at 115-116), the following appears in relation to circumstances of privilege other than judicial or quasi-judicial proceedings:
"Once one recognizes that the principle underlying legal professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications and that the privilege is not confined to such communications as are made in the course of or in anticipation of litigation but extends generally to confidential communications of a professional nature between a person and his lawyer made for the purpose of obtaining or giving legal advice, common sense points to a conclusion that the principle should not be seen as restricted to compulsory disclosure in the course of such proceedings. Indeed, the doctrine of legal professional privilege would represent an aberration of the common law if it withheld from the courts information or documents which were material in the search for truth in circumstances where the disclosure thereof could be compelled as a matter of course by any administrative officer with a relevant and general statutory mandate to require the provision of information or the production of documents."
The Law Council of Australia has correctly submitted to me that since Baker v Campbell, legal professional privilege has taken on the character of a civil right rather than a rule of evidence, citing the subsequent decisions of the High Court in Carter v Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121, Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 and Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3; (1997) 188 CLR 501. The relevance of legal professional privilege outside the immediate contemplation or course of litigation to circumstances such as the present is therefore readily apparent. And as Pearce and Geddes Statutory Interpretation in Australia (4th ed) Butterworths 1996 para 5.22 point out, the right to claim legal professional privilege will only be taken to be abrogated in circumstances where potentially applicable legislation clearly so indicates. No such indication is to be found within s 308 of the Act.
33 I do not think that the Respondent's contention, firstly extracted in [30] above, that the meaning of its question to the Applicant "What advice was given to the applicants in relation to their position in the class action" was clear on its face, and asks only about immigration assistance with s 276 of the Act [3]. The question is at worst ambiguous, and is readily susceptible to being read and understood as referring to advice of the Applicant provided to his clients engaged in any one of the High Court class actions as to the possible or likely outcome thereof. The word "position" as used in such question is capable of reflecting or encompassing such a meaning. Since the second notice followed upon the first notice in the circumstances explained in [29] above, it is appropriate to pay regard to the content of the first notice as a contextual guide to the natural meaning of what otherwise might be thought to be ambiguities of expression appearing in the second notice, and thus in particular to that part of the first notice which addressed the subject matter of the foregoing question in the second notice, namely paragraph F of the first notice, which is extracted at [13] above. Whilst sub-paragraph 1 of such paragraph F does appear to be confined in scope to client applications for bridging visas (as to which see again [31] above), in accordance with the thrust of the Respondent's submission, sub-paragraphs 2 and 3 of such paragraph F are directed to advice of the Applicant provided to his numerous clients engaged in the High Court proceedings as to the respective impacts upon them of successful or unsuccessful outcomes generally to such proceedings, whilst sub-paragraph 4 of paragraph F could conceivably, albeit not necessarily relate to a matter of legal professional privilege to the extent of the Applicant's response (Clause 9.1 of the Code of Conduct is reproduced at [8] above). Moreover the "Reasons for the Decision of the Authority" (extracted at [21] above) would have been reasonably and objectively read as referring at least mainly to the High Court class actions and the relevance thereto of the advertisement [11], and that theme was consistent with the material attributable to the Minister, to the Department, and to the Respondent cited in [17] above. Accordingly with the assistance of such contextual material contained in the first notice, I do not think that the submission of the Respondent extracted in [30] as to the meaning of the Respondent's question to the Applicant "What advice was given to the applicants in relation to their position in the class action" was confined to the subject of bridging visas but extended to advice of the Applicant on the likely outcome of the High Court proceedings. I therefore uphold the submission of the Application that this critical question would have been sensibly read and understood as referring to the provision by the Applicant of legal advice as to the implications of both a successful and unsuccessful outcome for each or any of the applicants engaged in the High Court proceedings. Independent support for that view may be seen from the text of the Respondent's Solicitors' advice of 31 May 2000 paragraphs numbered 3 and 5 (see [7] above) (to which texts the Respondent proffered no specific reply in its response to 3 August 2000, as to which see [18] above). A similar observation may be justifiably made in relation to the letter of the Law Society of New South Wales of 7 September 2000 addressed to the Minister for Immigration and Multicultural Affairs (which letter is substantially reproduced in [22] above and to which no reply was apparently ever furnished). As stated in J.D. Heydon, Cross on Evidence 6th ed Butterworths 2000) at para 25265, "It is important to emphasise that the privilege is that of the client", and what here is at issue are the legal professional privileges of literally thousands of the Applicant's clients.
34 I therefore would reject the Respondent's contention that "Read fairly the entire June s 308 decision asks only after immigration assistance within s 276(1)(b) of the Act".. Whilst the Respondent's second notice also stated "The authority would remind you that it is only interested in matters where immigration assistance in relation to bridging visas had been given", and the Respondent's "Reasons for the Decision..." document referred to "... production of information and documents relating to instances of immigration assistance...," the ambit of the question "What advice was given to the applicants in relation to their position in the class action", particularly in the light of the other contextual matters to which I have referred, was too compelling to avoid the implication of infringement of the privilege. In any event, I do not think that the statutory contrast between "immigration assistance" and "immigration legal assistance" produces the consequence that advice by a lawyer on matters within the former category are necessarily outside the scope of legal professional privilege. Advice upon matters within the former category by a lawyer, such as the Applicant who specialises in migration law and who also carries on practice as a registered migration agent, may well constitute legal advice within the scope of legal professional privilege, irrespective of the statutory distinction drawn for the purpose of marking out the limits of permissible conduct for migration agents who are not also qualified lawyers. The privilege can of course be abrogated by statute although statues having such an operation are rare, and the courts will not lightly infer a legislative intention so to do. Statutory clarity would certainly be warranted on the subject. As appears from the judgment of Deane J in Baker v Campbell, supra at 116:
"It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment."
I do not consider that the operation of s 308(1)(a) avoids the application of such a stringent test, in so far as legal advice in respect of immigration assistance may be given by a lawyer. Why the High Court in Corporate Affairs Commission of NSW v Yuill [1991] HCA 28; (1990-1) 172 CLR 319 took a different path, in relation to the explicit legislative scheme of exclusion contained in the Companies (NSW) Code 1991 concerning the obligation to produce documents, was explained by Brennan CJ at 322 as follows:
Baker v Campbell should not be regarded as prescribing an alteration in the rules of statutory construction, but rather as declaring legal professional privilege to be a common law right or privilege available (unless excluded) not only in judicial and quasi-judicial proceedings but whenever the exercise of a statutory power would trespass upon the confidentiality of the communications which the privilege protects. We are therefore not so much concerned with a change in the rules of statutory constructions, as with an application of the presumption that the legislature does not intend to abrogate a common law right or privilege unless a contrary intention is clearly expressed or implied in the statute. That presumption is a means by which to discover the true intention of the legislature... We are thus concerned with an application of that presumption in a legal matrix which has changed since the Code was enacted. The alteration of the law which Baker v Campbell prescribed evokes an application of the rule contemporanea expositio est optima et fortissimo in lege - the best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up: Broom's Legal Maxims, 10th ed. (1939), p.463. And so, the answer to our first question is that the Code came into force - that is, the law as it stood before Baker v Campbell was decided - unless there be something in the Code which is inconsistent with the operation that would thus be attributed to the Code."
35 I therefore conclude that to the extent that the Respondent's notice of 3 August 2000 required the Applicant to answer the question "What advice was given to the applicants in relation to their position in the class action", the Applicant was entitled to decline to answer the same on the ground of infringement of the legal professional privileges of the plaintiffs to the class action affected thereby, and accordingly the notice has no legal operation or effect to the extent of such question. I further conclude that to the extent that the third notice of the Respondent directed to the Applicant and bearing date 14 September 2000 purports to rely for its operation upon the applicant's absence of response to the question "What advice was given to the applicants in relation to their position in the class action" contained in the second notice of the Respondent directed to the Applicant and bearing date 3 August 2000, the same has no force or effect as a requirement for the purposes of s 308(1) or s 309(2) of the Act.
36 I do not however accept the submission of the Applicant seemingly advanced to me that as a consequence of so purporting to abrogate the legal professional privilege of the Applicant's clients and no more, the Respondent's notice of 3 August 2000 (ie the second notice) has no legal operation or effect as to the remaining questions or demands thereby made, and further as to the notice of 14 September 2000 (ie the third notice). It therefore becomes necessary to consider the Applicant's other grounds of attack in relation to such remaining questions or demands of the second notice. Whether such additional requirements of the second and third notices are inoperative upon another ground or grounds of challenge, will now be examined below.
Other Grounds for Administrative Challenge
37 As appears from the Applicant's written submissions summarised in [25] above, the Applicant has sought to set aside the first and second notices, and consequently the third notice, upon numerous other grounds said to be provided by ss 5 or 6 of the ADJR Act and/or s 39B(1A)(c) of the Judiciary Act. In [27-28] above, I have determined that grounds for review are not available under s 5 of the ADJR Act, but are potentially available under s 6 thereof, and also under s 39B(1A)(c). In [29] above, I have determined that the first notice became suspended from operation in favour of the second notice, and accordingly I pay no regard to the same, except for the limited purpose of interpreting where appropriate the meaning of the second notice. And in [30-35] above, I have determined that no effect in law can be given to the requirement of the second notice that the Applicant should provide a statutory declaration stating "What advice was given to the applicants in relation to their position in the class action". I therefore approach the remainder of the Applicant's abovementioned written submissions upon the bases set out in this paragraph.
38 It is first appropriate to focus closely upon the text of the second notice, which as earlier indicated, was issued on 3 August 2000. As appears from such text (see [18] above), the Respondent had decided at a meeting on 25 July 2000 that it would consider proposals alternatively to those stipulated in its first notice which had issued on 29 June 2000, and then stated as follows:
"In an attempt to minimise the administrative burden to you the Authority has decided not to require at this time all of the information requested in the letter of 29 June last... The authority will accept the following in relation to the visa applications you referred to."
Thereafter followed items (i) and (ii) already set out in [18] above, commencing "(i) A copy of each client record...". There can be no doubt that the foregoing represented a substantial reduction in the scope of the requirements of the first notice (compare again with [13] above). Moreover the third notice was sent by reference to the second notice, as appears from the reference therein to the expression "...the Authority amended its request for information..." in [23] above.
39 The impetus to the Respondent's conduct in giving the Applicant the second notice, as previously in the case of the first notice, was undoubtedly attributable in the first place to Government and Departmental concerns in relation to the Applicant's conduct of these very substantial class actions in the High Court and his media advertising for additional refugee clients to join in such actions. In that regard I refer back to [10-12] as to such class actions, the Applicant's form of advertisement and the nature of the documents disclosed by the Department of Immigration and Multicultural Affairs under the Freedom of Information Act [16]. I refer also to the Minutes of an inter-departmental meeting held on 17 February 1999 at which concern was expressed by those persons present as to the initiation of class actions "without foundation or serious intent in a positive outcome for the client", and where reference was made to "... an advertisement by Adrian Joel touting for business from Bangladeshis" (see [17(i)] above). It was in that context that the Respondent sought legal advice from the Sydney legal firm Barker Gosling Legal Group at the apparent instigation of the Department: see [17(ii) to (iv)] above). As appears from the concluding paragraph of the legal advice provided by that firm to the Respondent (see [17(v) above), the behavioural issues formulated for such advice related to Clauses 2.1(a), 2.10, 2.11 and 2.17 of the Code of Conduct (see [7] above), which concern the obligations of migration agents to act in the legitimate interests of clients, not to engage in false or misleading advertising such as guaranteeing success of an application, not to encourage vexatious or grossly unfounded applications, and not to advertise for participation in class actions without a genuine belief as to reasonable prospects of success. As appears from the Department's Minute extracted in [17(i)] above, such matters had been the subject of Ministerial and Departmental attention and concern at least since February 1999. Whilst such Government concerns may be placed in the perspective of the Respondent's concession that only one client complaint concerning the Applicant had been received up to the date of the hearing of the proceedings (transcript page 13), it cannot be asserted that such attention and concerns were misplaced or improper, and that the Respondent's conduct in accommodating such concerns evinced an intention on its part "to cause significant interruption and disruption to the applicant and his practice", as the Applicant has submitted. The substantial modification of the scope of the first notice by way of substitution at least for the time being of the second notice sufficiently demonstrates that finding.
A similar conclusion can be drawn from the content of the decision, which of course gave rise to the second notice, regard may be paid to the Respondent's "Reasons for the Decision..." extracted in [21] above, notwithstanding that the same purported to provide reasons only for the first decision and thus the issue of the first notice, and not for the second decision or second notice. Such document referred to the lodgment of a complaint on 21 October 1999 with the Department, to the Respondent's advertisement to refugees (being presumably that or similar to that extracted in [11] above, and to indications "of the concerns expressed by the Joint Standing Committee on Migration, and other concerns and evidence presented to that Committee and the concerns expressed by the Senate Legal and Constitutional Legislation Committee...".
40 The evidence which I have summarised in [39] above has led me to the conclusion, contrary to the Applicant's submission, that the second decision did not take into account irrelevant considerations, as contended by the Applicant (see [25(iii)] above), such as to vitiate the second decision upon that basis of administrative law, and as a consequence the third decision. The issue of the second notice, and as a consequence the third notice, constituted a purported exercise of at least the functions provided for in paragraphs (b), (c) and (g) of s 316 of the Act (reproduced at [6] above).
41 The next issue is whether the Respondent failed to take into account relevant considerations, being the four considerations enumerated on behalf of the Applicant in [25(iv)] above. In so far as the third of such considerations related to the legal professional privilege of the Applicant's clients, I have already found that the question contained in the Respondent's second notice, "What advice was given to the applicants in relation to their position in the class action" was vitiated independently on the grounds of the contravention of legal professional privileges of clients of the Applicant engaged in the class actions. It is therefore unnecessary to address the issue of privilege on the basis that there was a failure to take the same into account as a relevant consideration. The fourth of such considerations contained in [25(iv)] above) is that "the making of the decisions might well constitute a contempt of the High Court of Australia in relation to the proper conduct of the class actions or be considered an unacceptable interference with the due administration of justice...," and reference is made by the Applicant to Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188, for instance at 198 (per Gibbs CJ) and to Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 495; (2000) 98 FCR 311 at [36]. I think that the only requirements of the second notice which could conceivably be said to interfere with the due administration of justice in the High Court class actions is the question asked in breach of the class action refugees' legal professional privilege, namely "What advice was given to the applicants in relation to their position in the class action", which question as just stated is vitiated in any event on ground of contravention of such privilege [30-35].
42 The first and second considerations advanced by the Applicant upon this ground of failure on the part of the Respondent to take into account relevant considerations [25(iv)] require closer consideration. Those two considerations must be of such a nature that the Respondent was bound to take the same into account, and the factors which the Respondent may have been bound to take into account fall to be determined by construction of the statute (here of course the Migration Act and the Regulations thereunder) conferring the discretion involved in the decision-making process: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985-6) 162 CLR 24 at 39 per Mason J (as he then was). And as explained earlier by Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 619:
"No doubt the matters to which the repository is bound or entitled to have regard depend upon the terms of the particular statute and, if there be no positive indications in its text, the subject-matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or entitled to have regard to individual interests... When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised."
43 Addressing the first of such remaining considerations propounded by the Applicant in relation to the alleged failure of the Respondent to take into account relevant considerations [25(iv)], namely that the Applicant could not comply with the first and second decisions for the four reasons described in sub-paragraph (a) of [25(iv)] above, it is here that the Applicant tends to blur the requisite analysis which must be undertaken by not distinguishing in his submission the relevant differences between the first and second notices, notwithstanding that the first decision was overtaken, at least for the time being, by the second decision, as I have so found in response to the Respondent's submission. As earlier pointed out, it was in purported recognition of verbal complaints advanced by the Applicant in response to the first notice of 29 June 2000 [13] that the Respondent substantially modified the same in the form of the second, as I have initially explained in [29] above. Such modification was truly substantial, in that the Applicant was not required by the second notice to provide, by statutory declaration or at all, the names of each individual falling within any of the descriptions appearing in Section A of the first notice, the six pieces of information set out in Section B of the first notice relating to each of those individuals, and the seven items of documentation described in Sections E and F of the first notice. The Applicant was still being required by the second notice to provide "a copy of each client account record" (presumably the same as "your client account" referred to in Section C of the first notice), but as stated in the Respondent's fax of 26 July 2000 to the Applicant (see [15] above), and again in the second notice [18], the same were to be confined to those client account records related to immigration assistance for bridging visas obtained as part of the class actions, and not all records relating to the class actions. Whether as a practical matter the client account records were in fact partitioned in the class action records of the Applicant between applications for bridging visas as such, and pleading etc in the class actions, is not explicitly stated, but I would infer from the Applicant's letter of 18 August 2000 to the Respondent that such may be the case. In any event, the statement of services required to be provided to clients in relation to fees or other rewards for the giving of financial assistance pursuant to s 313 of the Act (see [5] above and also Part 5 of Schedule 2), was confined by the second notice to take the form merely by way of sample, indeed so it would seem, literally a single sample. As to the remaining material required by the second notice to be verified by statutory declaration, the same was confined first to a statement as to the number of clients of the Applicant, in relation to whom "immigration assistance for obtaining bridging visas had been given", and who had respectively received the statement of services required by s 313 (set out in [5] above) being apparently the same as the statements of services referred to in Regulation 5.5 (see [6] above), secondly to a statement of account relating to such services presumably of the kind stipulated in Regulation 7.4(d) of Part 7 of Schedule 2 (set in [8] above), thirdly to a statement of the number of clients of such description who had furnished written confirmation to the Applicant of the terms of the services the subject of s 313, and fourthly to confirmation that only registered migration agents had given immigration assistance to the Applicant's clients, and that only such persons had communicated with or made other immigration representations to the Department (see again s 276 set out in [3] above and the substance of s 280 also referred to in [3] above).
44 As to the first of the considerations advanced by the Applicant as relevant matters not taken into account by the Respondent, (being those summarised in [25(iv)(a)] above), which may be together described as the personal circumstances of the Applicant as a sole legal practitioner engaged in massive litigation with only meagre logistical resources, I do not think that such considerations were relevant matters which the Respondent was bound to take into account upon the true construction of the Act and Regulations. The requirements of the second notice related essentially to obligations of migration agents the subject of statutory and regulatory requirements referred to in [43] above as follows:
(i) as to "client account records": Regulation 7.4(a) of Part 7 of Schedule 2;
(ii) as to statements of services: s 313;
(iii) as to confining the provision of immigration assistance: ss 276 and 280.
The Respondent correctly contends that for the Applicant to take on the logistical burden of conducting High Court class actions involving thousands of applicants, as well as providing accompanying "immigration assistance" within s 276 involving bridging visa applications, provides no basis in principle for avoiding the duty, when so invoked by the Authority, to demonstrate compliance with statutory and regulatory requirements, including compliance with obligations of an ethical character prescribed by Regulation 2.17 (see [8] above). The assertion of the Applicant to the Respondent in his letter of 18 August 2000 [19] that "My professional responsibilities dictate that I must be totally committed to this trial. I am not in a position to commit more resources during this period to participate", did not render irrelevant or otherwise unwarranted the need for the Applicant, when so required by the Respondent pursuant to s 308(1)(a), to demonstrate compliance when called upon so to do. It follows that the detailed logistical matters, set out in the Applicant's letter of 18 August 2000 to the Respondent [19], were not relevant matters which, by reason of the Act and Regulations, the Respondent was bound to take into account. As to the issue raised by the Application referred to in [25(iv)(d)] concerning possible contempt of the High Court, the same was also not a relevant matter required to be taken into account by the Respondent: see [42] above.
45 The ground for review which is next appropriate to address is that asserted by the Respondent in [25(vi)] above, namely that stipulated by s 6(2) of the ADJR Act that the "exercise of a power that is so unreasonable that no reasonable person could have exercised the power". This ground is of course commonly referred to by the epithet "Wednesbury unreasonableness". There is at least one component of the second decision in relation to which this ground of review has been established: I refer to the requirement that "A copy of each client record" be furnished by the Applicant to the Respondent (see again [18] and in particular Regulation 7.4(d)). The obligation imposed upon a migration agent to maintain such records separately for each client is set out generally in Part 7 of the Schedule 2 (see again [8] above). No express obligation is there imposed upon a migration agent to provide copies of such records to the Respondent, in contrast to the recently enacted provisions of ss 306D and 306E of the Act relating to so-called "inactive agents". The requirement of Regulation 7.5 as to making available such records to the Respondent for inspection on request, but no more, tends to work against the implication of any such potentially onerous financial obligation, particularly if one adds to the equation the circumstance that the account record for any one client, as the Applicant has demonstrated, may involve various numbers of sheets of paper which would have to be copied: see in that regard Regulation 7.4. If there is further added to the existence of such lesser requirement of Regulation 7.5 the combination of the following factors here present, namely the existence of literally thousands of client account records apparently falling within the scope of the description of documentary records involved, and the consequential significant cost in photocopying the same additionally to the indirect cost of personnel time involved in creating the requisite copies, as explained in the Applicant's letter of 18 August 2000 to the Respondent [19], there is established a case in favour of the Applicant of such disproportionality of demand on the part of the Respondent as to attract the application of the Wednesbury doctrine of unreasonableness in administrative decision-making. Why the provision of samples of client account records, obtained upon an inspection by the Respondent pursuant to Regulation 7.5, was not adequate, was never explained by the evidence adduced by the Respondent.
46 I am conscious of the controversy of the so-called disproportionality thesis as an aspect of the ground of unreasonableness for setting aside decisions of an administrative character, as discussed for instance in Judicial Review of Administrative Action (supra, at pages 289-292). The situation here of what I have described as disproportionality does not however involve merely issues as to weight, or of trespass into review on the merits, as was discussed recently in the majority judgments of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, for instance at 627-8 (per Gleeson CJ and McHugh J). The situation here concerns interference with more fundamental rights, in the sense of imposing a substantial financial as well as an associated administrative burden on the Applicant. Counsel for the Respondent has contended that authority for the Respondent's requirement for provision of copies of the client account records is already to be found within s 308(1)(c) of the Act, but I would reject that submission. Whether or not the account records the subject of the second notice may be rightly described as "relevant to the agent's continued registration" with s 308(1)(c), such statutory provision is in any event is silent as to any obligation to provide copies, in contrast for instance to ss 306D(2) and 306E(2).
47 There remains the remainder of the second notice for consideration which I have not addressed, as follows:
"(ii) A Statutory Declaration from you with a sample attached of the section 313 statement of services given to the clients. Your declaration should state:* How many clients received the statement of service,
* How many clients received a statement of account,
* How many clients returned to you written confirmation of the terms of service;
...
* that only registered migration agents gave immigration assistance and only registered agents communicated with or made other immigration representations to the Department of Immigration and Multicultural Affairs."
48 I have already found that these matters involved relevant considerations in relation to the exercise by the Respondent of its powers conferred by s 308(1)(a) and (c) of the Act. There would obviously be a not insignificant logistical expense to the Applicant involved in compliance with these remaining requirements of the second notice. However the emphasis of the Applicant's concerns as to compliance, set out in the Applicant's letter of 18 August 2000 and the accompany draft letter (ss [19-20] above), was directed predominantly to the provision of copies of each client account record, and secondly to advice given to applicants in the class actions in relation to their "position" in those actions, and I have found that each of those requirements are not valid and enforceable by the Respondent. I am not persuaded that the Respondent's decision to impose the remaining requirements set out in [47] above, were unreasonable within the Wednesbury test. It may well be that in order to make the requisite statutory declaration in accordance with s 308(1), the Applicant may have be inspect each client file, notwithstanding that only a single sample document is required to be actually produced. But as I have earlier indicated, the Applicant is not excused from providing information to the Respondent about his clients because of his voluntary determination to undertake work in the nature of immigration assistance and immigration legal assistance on such a massive scale as is involved in the High Court class actions.
49 The remaining grounds of attack upon the second notice set out in [25] above, which as earlier indicated were directed to the first notice as well as the second notice without distinction, have no justification in relation to the second notice, essentially for the reasons I have already articulated in relation to the grounds identified in [25(iii), (iv) and (vi)]. For instance, save as to the issue related legal professional privilege earlier discussed, I do not think that the Respondent wrongly interpreted s 308 of the Act in its framing of the second notice. I have some reservation as to the adequacy of the time stipulated by the Respondent for compliance with the second notice, but having regard to the way in which the Applicant has mounted his attack in relation to the first and second decisions jointly and not severally, and the absence of any evidence from the Respondent as to the time estimated to be involved in compliance only with the second notice, it is not possible for me to review such a timing issue.
50 I am satisfied that the Court is able to grant relief confined to part only of the requirements of the second notice. In Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 for instance, the Full Federal Court was divided upon the question as to whether the invalid parts of a notice issued by the Commissioner of Taxation purpose to s 264 of the Income Tax Assessment Act could be severed, but that was only because the invalid requirement of the Commissioner in that case to provide copies of a large number of documents and classes of documents was found to be a composite requirement and that severance of the invalid requirements was not practicable. In the present case, the second notice was plainly severable from the first notice for the reasons I have outlined in particular in [29] above, and more importantly within the framework of the second notice, the requirement to produce copies of each client account record, and the question constituting infringement of legal professional privilege, were severable from the remainder. It follows that the decision to issue the third notice was consequently valid and operative to the extent of the valid requirements of the second decision.
Having regard to the circumstances that the Applicant succeeded in obtaining partial review of the second decision, and consequently of the third decision in conformity therewith, but that jurisdiction for the Court to review the first notice should be denied, I would direct the parties to provide written submissions as to the appropriate costs order to be made.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. |
Associate:
Dated: 22 December 2000
Counsel for the Applicant: |
Mr M.A. Robinson |
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Solicitor for the Applicant: |
Adrian Joel & Co |
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Counsel for the Respondent: |
Mr T Hurley |
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Solicitor for the Respondent: |
Barker Gosling Legal Group |
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Counsel for the Law Council of Australia intervening as amicus curiae |
Dr J.E. Griffiths |
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Date of Hearing: |
16 October 2000 |
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Date of Judgment: |
22 December 2000 |
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