"The Sentencing Act 1989 (NSW) s49 permits a judicial member of the Board to withhold a copy of a report or document (or any part of it) from a prisoner if, in his or her opinion, provision of the document would adversely affect the security, discipline or good order of a prison or endanger the prisoner or any other person. The prisoner is not entitled to be told whether a certificate has been issued under s49, although the Commission understands that it is the Board's practice to inform the prisoner's legal representative that a s49 certificate exists and to indicate briefly the nature of the subject material. The Commission considered that this power may limit procedural fairness for the offender.
Submissions revealed some disquiet about s49 in that it did not comply with the rules of natural justice. Proposals included providing for review of a decision to issue a certificate either by the Ombudsman or a
Court, and establishing criteria to restrict further the circumstances in which the certificate could be issued.
The utility of a provision in the terms of s49 is obvious, and it was accepted in other submissions as necessary. The Commission recognises that there might be circumstances, such as those outlined in one submission, where the judicial member can be seen to have been over-cautious in withholding information which can legitimately be made available to the prisoner from other sources. However, this does not negate the fact that there will be situations where to reveal information is to place the supplier or author in real danger, or to threaten the administration of justice. The commission does not consider that s49 should be amended. However, as it constitutes an incursion on principles of natural justice, we would expect that it will be used only when absolutely necessary."
23 Regrettably, in this case, what was said to be the "Boards practice" was not, for whatever reason, followed by the Authority. Indeed, the Authority did not even, in general terms, disclose the actual basis upon which the material was thought to fall within s194. Also regrettable is the fact that although it seems that Parliament may have intended that s194 have the meaning contended for by the Crown, the words used are quite specific. Arguably, this was so in order that the Authority might lawfully "indicate briefly the nature of the subject material " as contemplated by the Law Reform Commission Report. To be contrasted with s194 for instance is s76(2) of the Corruption and Crime Commission Act 2003 (WA) which was the subject of Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532:
"(2) The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if its disclosure might prejudice the operations of the Commissioner of Police, and information so identified is for the court's use only and is not to be disclosed to any other person, whether or not a party to the proceedings, or publicly disclosed in any way."
24 In my opinion, the words used in s194, which I am called upon to interpret, are not ambiguous or obscure, nor does the ordinary meaning which they convey lead to a result that is manifestly absurd or unreasonable.
25 As a consequence, in my view, while the Authority was not obliged to provide a copy of the relevant material to the Plaintiff or his advisors, the Authority remained bound, consistently with s194 to afford the Plaintiff procedural fairness. This may have involved balancing the public interest against the Plaintiff's entitlement to natural justice. It is difficult to conceive that the public interest required the Authority to say absolutely nothing about the nature or quality of the material it proposed to rely on, but, in any event, the Plaintiff was entitled to some reasons for the approach the Authority took
26 Mr Dhanji, in his submissions identified means, short of providing a copy of the material, by which the Authority could seek to achieve procedural fairness. He mentioned:
"Disclosure of the material to the plaintiff's legal representatives on the basis of undertakings not to disclose the material to any other person including the plaintiff;
Providing an outline of the content or substance of the material;
Providing an opportunity to the plaintiff to respond to the matters which were raised by the material through questioning of the plaintiff and the witnesses;
Raising with the plaintiff conditions of parole that might be imposed in order to reduce any concerns arising from the material not provided to the plaintiff."
27 The factual situation in Veal v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] 222 ALR 411 bore some similarity to the present facts. The Refugee Review Tribunal (the tribunal) while considering an appeal from a decision refusing the grant of a protection visa received a letter from an identified author making serious allegations about the appellant. The tribunal did not inform the appellant that it had received this letter, which it regarded as confidential, but referred to it in its findings stating that the tribunal had given the letter no weight.
28 In the course of determining that there had been a breach of procedural fairness, the High Court (Gleeson CJ, Gummow, Kirby, Heydon and Hayne JJ) said :
"…… But it by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the Tribunal was not important. No doubt the appellant's response to the allegations would then have had to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the "problem of confidentiality". Although it may be accepted that the Tribunal sought to act fairly, the procedure it in fact adopted was not fair.