Ground 9
143 It was open to Mr Frugtniet to challenge in this proceeding what the parties have referred to as the Tribunal's "penalty ruling" (see Kishore v Tax Practitioners Board [2016] FCA 1328; 244 FCR 320 at [31] and News Corporation Ltd v National Companies and Securities Commission [1984] FCA 446; 5 FCR 88 at 95, 103, 122); and, for the reasons set out below, I accept Mr Frugtniet's contention that the Tribunal erred in concluding that the privilege against exposure to penalties was incapable of applying in proceedings before the Tribunal.
144 As already stated, Mr Frugtniet relied on the privilege against exposure to penalties in opposing the direction that he provide a statement of his own evidence or statements of any other witnesses he might wish to call. Such a direction was in conformity with the usual direction given by the Tribunal that an applicant for review first lodge witness statements and give them to the other party. As noted, the Tribunal rejected Mr Frugtniet's submissions and directed as follows:
1. On or before 11 September 2015, the applicant must give to the Tribunal and the respondent:
(a) any witness statement from any witnesses proposed to be called at the hearing;
(b) all reports, records and any other documents on which the applicant intends to rely at the hearing; and
(c) a Statement of Facts, Issues and Contentions; and
2 On or before 9 October 2015, the respondent must give to the Tribunal and the applicant:
(a) any witness statement from any witnesses proposed to be called at the hearing;
(b) all reports, records and any other documents on which the respondent intends to rely at the hearing; and
(c) a Statement of Facts, Issues and Contentions.
145 If the privilege against exposure to penalties applied in the proceeding before the Tribunal, then it can be said that the Tribunal erred in law in making this direction.
146 It may be accepted that exposure to cancellation of registration as a migration agent (and the affirmation of such a decision on review) is in the nature of exposure to a penalty. There are a number of cases in which it has been held that exposure to loss of office or disqualification from holding office is exposure to a penalty or forfeiture: see Rich 220 CLR 129 at [28]-[37] and the cases there cited; see also Theophanous v Commonwealth [2006] HCA 18; 225 CLR 101 at [59]. According to the plurality judgment in Rich at [37], "equity's concern with penalties was never confined to pecuniary penalties. If exposure to loss of office or exposure to dismissal from a police force is exposure to penalty, exposure to a disqualification order is exposure to a penalty" (emphasis in original; citation omitted). The cancellation of Mr Frugtniet's registration as a migration agent is of the same nature as a disqualification from holding office.
147 Court procedures must take account of the position of a person who properly claims the privilege from exposure to penalties. For example, in Rich, it was held that once it is determined in judicial proceedings that the proceedings expose a person to a penalty the proper course is to refuse any order for discovery: 220 CLR 129 at [39]; see also CSL Australia Pty Ltd v Maritime Union of Australia [2016] FCA 1141 (CSL v MUA). In Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132; 130 FCR 37 (ACCC v FFE Building Services) a Full Court of this Court held that it was correct to refuse an application for an order that the natural respondents to an application against them for civil penalties file and serve statements of evidence before the close of the applicant's case, on the basis that the respondents were entitled to the privilege against exposure to penalties. Decisions such as Rich make it clear that if a party properly claims the benefit of the privilege against exposure to penalties and forfeiture, courts will act to protect the claimant appropriately. It may be assumed that if the same privilege can properly be claimed before an administrative body, then the procedures adopted by that body must also offer the claimant suitable protection.
148 The question is whether the rule of common law that a party is not obliged to answer any question or provide any information that might expose him or her to the imposition of a penalty is capable of application in a non-judicial context, such as a proceeding before the Tribunal. As the Tribunal noted, a number of decisions of the High Court bear on this question, including Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328 (Pyneboard); Sorby v Commonwealth [1983] HCA 10; 152 CLR 281 (Sorby); Police Service Board v Morris [1985] HCA 9; 156 CLR 397 (Police Service Board v Morris); Daniels 213 CLR 543; and Rich 220 CLR 129.
149 In Pyneboard 152 CLR 328, the High Court held that, as a matter of statutory construction, a person served with a notice under s 155 of the Trade Practices Act 1974 (Cth) (requiring the provision of information or documents) could not rely on the privilege against exposure to penalties as a basis for non-compliance, even though the information or the documents might lead to exposure to civil liability to penalties under that Act. In a joint judgment, Mason ACJ, Wilson and Dawson JJ held (at 344-345) that the privilege against exposure to penalties was impliedly excluded by the statute. Brennan J also approached the issue as one of statutory construction: Pyneboard at 349. Only Murphy J held (at 346) that the penalties privilege did not apply in non-judicial proceedings.
150 In their joint judgment, Mason ACJ, Wilson and Dawson JJ noted that there were two lines of judicial authority on the issue whether the privilege against exposure to penalties applied to non-judicial proceedings. One line favoured its application; the other did not. At 341, their Honours held that the privilege was not incapable of applying in a non-judicial proceeding, stating that:
There is a stronger reason for holding that the privilege is available in the case of an examination on oath before a judicial officer which is a preliminary to committal for trial or summary prosecution than there is in the ordinary case where a statute imposes an obligation to answer questions, provide information or produce documents. On the other hand, if the object of imposing the obligation is to enable an authority or agency to ascertain whether an offence has been committed or a statutory provision has been contravened then it is reasonable to conclude that the privilege, though inherently capable of applying, has been impliedly, if not expressly, excluded by the statute.
In light of these competing considerations we are not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings. The issue of its availability in these proceedings therefore falls to be decided by reference to the statute itself. In the consideration of that question it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication.
(Emphasis added; citations omitted)
151 Sorby 152 CLR 281, which was delivered on the same day as Pyneboard, was concerned with the application of the privilege against self-incrimination in the context of an inquiry by a Royal Commissioner. In Sorby, Mason, Wilson and Dawson JJ held (at 309) that the privilege against self-incrimination was not merely a rule of evidence applicable in judicial proceedings and that it was not for that reason unavailable in a non-judicial inquiry. Their Honours added (at 309) that they adhered to their conclusion in Pyneboard that the privilege against self-incrimination in inherently capable of applying in non-judicial proceedings. Murphy J also adhered to his position in Pyneboard: Sorby at 311. Brennan J concluded (at 317-321) that historically the privilege against self-incrimination had been limited to judicial proceedings and that in principle the privilege should be so limited. Gibbs CJ took the contrary view: Sorby at 300.
152 A majority of the High Court in Police Service Board v Morris 156 CLR 397 held that the privilege against exposure to penalties was capable of applying in a non-judicial proceeding, namely, before the Victorian Police Discipline Board. The Board was empowered to reprimand a member of the police force who had contravened s 88(1) of the Police Regulation Act 1958 (Vic), or to impose a penalty of not more than $500, to demote or dismiss the member from the force. In a joint judgment, Wilson and Dawson JJ reiterated that the privilege against exposure to penalties was capable of application in non-judicial proceedings: at 407-408. Gibbs CJ agreed with this proposition: at 403. Brennan J also proceeded on this basis: at 411. Murphy J adhered to his view that the privilege did not apply in non-judicial proceedings: at 406-407. In this case, however, Gibbs CJ, Wilson, Brennan and Dawson JJ held that the privilege was excluded by Regulation 95A(7), which provided that "no member of the Force shall ... disobey ... any lawful order". Wilson and Dawson JJ explained (at 410) that:
Regulation 95A in its application to a case such as the present is clearly relevant to the efficiency of the force and ... its breadth is such as to admit of no qualification. ... The legislature must have intended that any cause for suspicion touching a member's performance of his duties could be the subject of interrogation by a superior officer and that the member would be obliged to answer the questions put to him whether or not those answers would tend to incriminate him. ... [W]e would have thought that the efficiency of the force demands this and the loyalty promised by every member when he takes the oath prescribed by the Act reinforces it.
153 To recapitulate, after the decision of the High Court in Police Service Board v Morris 156 CLR 397, the law, as applied in that case and Pyneboard and supported by Sorby, was that the privilege against exposure to penalties was capable of applying in non-judicial proceedings, such as those in the Tribunal. A different perspective was expressed in a comment in the subsequent case of Daniels.
154 The High Court in Daniels 213 CLR 543 again considered s 155 of the Trade Practices Act 1974 (Cth), although, in that case, it was concerned with whether the provision required the production of documents to which legal professional privilege attached. The Court in Daniels did not follow Pyneboard in so far as the decision turned on the construction of s 155. Gleeson CJ, Gaudron, Gummow and Hayne JJ stated (at [27]-[29]) that:
Section 155(2) authorises what would otherwise constitute a trespass. In that respect, it is similar to the search warrant provision in s 10 of the Crimes Act 1914 (Cth) considered in Baker v Campbell [(1983) 153 CLR 52] and, later, in [Commissioner of Australian Federal Police v] Propend [Finance Pty Ltd (1997) 188 CLR 501]. Those decisions, which were subsequent to the decision in Pyneboard, respectively held and confirmed that that provision did not authorise the seizure of material to which legal professional privilege attached. Given the generality of the words of s 10 of the Crimes Act 1914 (Cth) and their similarity to the words of s 155(2), it is difficult to see any basis upon which that sub-section can be construed, consistently with Baker v Campbell and Propend, as authorising entry to premises for the purpose of inspecting and copying material to which legal professional privilege attaches.
The other difficulty with the approach adopted by Mason A-CJ, Wilson and Dawson JJ in Pyneboard is that, as already noted, it renders the express abrogation, in s 155(7), of the privilege against incrimination otiose. As a general rule, statutory provisions are to be construed by giving effect to their express terms unless that would result in some absurdity. No absurdity is involved in construing ss 155(1) and (2), in accordance with the rule expressed in Potter v Minahan, as not abrogating fundamental common law privileges and giving effect to s 155(7) according to its terms.
Given the difficulties with the approach adopted by Mason A-CJ, Wilson and Dawson JJ in Pyneboard, that approach should not be followed in this case for the purpose of determining whether a person may resist a notice under s 155(1) of the Act on the ground of legal professional privilege. So to say, is not to say that Pyneboard was wrongly decided.
(Citations omitted.)
155 On the last point, their Honours explained (at [30]-[31]) that:
The implication that the privilege against exposure to penalties was abrogated by s 155(1) can be supported by reference to the absurdity that would result if that privilege could be claimed and, pursuant to s 155(7), the privilege against self-incrimination could not. However, it may be that a more secure basis for the decision is to be found in the nature of the privilege.
In Naismith v McGovern [(1953) 90 CLR 336 at 341-342], Williams, Webb, Kitto and Taylor JJ said:
Originally orders for discovery were not obtainable at common law, except to a limited extent, and a party to a common law action who desired general discovery had to proceed by bill in equity. But the Court of Equity would not make an order for discovery or for the administration of interrogatories in favour of the prosecutor whether the prosecutor was the Crown or a common informer or any other person where the proceeding was of such a nature that it might result in a penalty or forfeiture: 'nemo tenetur seipsum prodere'. When discovery and interrogatories were provided for under the rules made under the Judicature Act the same principle was applied.
Today the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. However, there seems little, if any, reason why that privilege should be recognised outside judicial proceedings. Certainly, no decision of this Court says it should be so recognised, much less that it is a substantive rule of law. ...
(Emphasis added; citations omitted.)
156 No question arose for resolution in that case, however, as to the application in non-judicial proceedings of the privilege against exposure to penalties; and it is plain enough that their Honours' observations about the application of this privilege were obiter dictum. Further, it would also not be correct to read into this last-mentioned observation more than was actually stated. It would not be correct to view these two brief sentences as requiring the conclusion that the law with respect to application of the privilege in a non-judicial context, as set forth in Police Services Board v Morris, had been over-turned.
157 Finally, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ (Kirby J dissenting) in Rich 220 CLR 129 held that the privilege against exposure to penalties was applicable in a proceeding in which ASIC applied to the New South Wales Supreme Court for declarations as to contraventions of the Corporations Act 2001 (Cth) and for orders including for the disqualification of directors from managing a corporation for a period of years. As noted, their Honours held that to seek an order disqualifying a person from acting in the management of a corporation on the ground he or she had contravened the law was to seek a penalty or forfeiture. Thus, that person was entitled to rely on the privilege against exposure to penalties in the Supreme Court proceedings. Where the privilege was properly claimed (as in that case), then any application for discovery against a director was to be refused.
158 In Rich, no question about the application of the privilege against exposure to penalties in non-judicial proceedings arose for determination. Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ nonetheless observed, obiter, in Rich 220 CLR 129 at [24] that:
As was further pointed out in the joint reasons in [Daniels], the privilege against exposure to penalty now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. That is not to say that the privileges against exposure to penalties or exposure to forfeitures are substantive rules of law, like legal professional privilege, having application beyond judicial proceedings. In the present matter, however, the only issue is about the application of these privileges to discovery in judicial proceedings. No wider question arises.
(Citations omitted.)
159 The passage highlights that Rich was concerned only with the operation of the privilege against exposure to penalties or forfeiture in relation to discovery in judicial proceedings. So far as the present issue is concerned, the passage may indicate no more than that their Honours were not prepared in Rich to attribute to these privileges the same attributes as legal professional privilege.
160 The High Court has since considered the privilege against exposure to penalties and related privileges in judicial proceedings, although it has not addressed its application in non-judicial proceedings. Thus, in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; 256 CLR 375 (CFMEU v Boral) the Court held that an order for discovery might be made in a civil proceeding for contempt instituted by the respondents against the union: see [37]-[38] and [43]-[44] (French CJ, Kiefel, Bell, Gageler and Keane JJ). In a separate judgment, Nettle J agreed in the result, but emphasised that neither the privilege against self-incrimination nor against exposure to penalties is available to a corporation as a basis for resisting a statutory requirement for the production of documents, although these privileges would be available to a natural person in a civil proceeding for criminal contempt: 256 CLR 375 at [56]-[57], [67], citing amongst other cases, Rich at [24]. The Court in CFMEU v Boral distinguished X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 (X7) and Do Young Lee v The Queen [2014] HCA 20; 253 CLR 455 (Do Young Lee). In the former case, it was held that there was not a sufficiently clear manifestation of statutory intention to displace the fundamental principle that a natural person who had been charged with a serious criminal offence could not be compelled to answer questions in the course of a compulsory examination about the offence: compare also Do Young Lee 253 CLR 455 at [32]-[34]. None of these subsequent cases touched on the present question; and none detracts from the conclusion that the law with respect to the application of the privilege against exposure to penalties in a non-judicial context is as set forth in Police Services Board v Morris.
161 Turning to the decisions in this Court, it is evident that these decisions have mostly concerned the application of the privilege against exposure to penalties in judicial proceedings. In ACCC v FFE Building Services 130 FCR 37 at [29], Emmett, Hely and Jacobson JJ held, with respect to a civil proceeding in the Court for the recovery of pecuniary penalties, that an application by the ACCC for orders that the natural respondents file and serve statements of their proposed evidence should be refused on the basis that it was inconsistent with the privilege. The Court stated, relevantly for this case (at [14]):
By requiring an individual respondent, prior to the closure of an applicant's case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent. The provisional disclosure of information may set in train a process that may lead to the imposition of a penalty or may lead to the discovery of real evidence in support of the imposition of a penalty.
(Citation omitted.)
162 ACCC v FFE Building Services has been regularly applied in the Federal Court: see, e.g., Australian Securities and Investments Commission v Whitebox Trading Pty Ltd (No 3) [2017] FCA 429 (Foster J); CSL v MUA [2016] FCA 1141 (Perram J); Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620; 164 FCR 32 (ASIC v Mining Projects Group) (Finkelstein J); and Hadgkiss v Construction, Forestry, Mining and Energy Union [2005] FCA 1453; 146 IR 106 (Graham J). See also Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corp (1979) 42 FLR 204 at 210-211 (Deane J).
163 In ASIC v Mining Projects Group 164 FCR 32, which involved a civil proceeding to recover a pecuniary penalty, Finkelstein J held (at [12]) that the "penalty privilege operates to relieve a defendant from the need to deliver a defence that complies with the pleading rules if the rules would override the privilege". His Honour noted (at [13]) that if this were to create a practical problem, it too might be resolved:
There is a potential problem if, as in this case, a defendant wishes to run a positive case. Ordinarily a positive case must be raised in the defence. Whether it must be raised in a defence in a civil action to recover a penalty is by no means clear. The view I favour is that there can be no such requirement as it would be inconsistent with the privilege. On the other hand, if a defendant who wishes to run a positive case is required to plead his case that can be accommodated while maintaining the privilege. What should occur is that the defendant should be entitled to rely on the privilege until the plaintiff's case is concluded. If at that point the defendant decides to run a positive case he can deliver an amended defence that will outline his case. In an exceptional case the judge may grant a short adjournment to allow the plaintiff time to prepare, if he is otherwise taken by surprise. In most cases that will not be necessary. By the time the plaintiff has closed his case the nature of the defence will usually be apparent. That is the experience of those who prosecute criminal cases. The advocate who runs a civil penalty proceeding should be equally adept at dealing with the defendant and his witnesses without knowing in advance every word they are about to say.
164 The Full Court's decision in Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209 (Griffin v Pantzer) provides some more direct guidance on the availability of the privilege against exposure to penalties in non-judicial proceedings. In that case, the Full Court identified the privilege against exposure to penalties as an historically recognised and fundamental principle of the general law, the availability of which, as stated in Pyneboard, Sorby and Police Services Board v Morris, was not limited to a court setting and was subject to the principle of legality.
165 Griffin v Pantzer concerned the existence of the privilege against self-incrimination in the examination of a bankrupt under s 81 of the Bankruptcy Act 1966 (Cth). The Full Court held in that case that, as a matter of statutory construction, the privilege against self-incrimination was abrogated in circumstances where the bankrupt was obliged to answer questions during an examination pursuant to summons, in relation to the summonsed production of books at an examination, and in respect of the obligation imposed on the bankrupt under s 77(1)(a): see [175]-[177], [185], [187]-[189]. Although considerations affecting an examination of a bankrupt are not precisely the same as those affecting a proceeding in the Tribunal, the reasoning of Allsop J, with whom Ryan and Heerey JJ agreed, is pertinent to the present question. In discussing and ultimately rejecting the appellant's submission that there was no clear intention to abrogate the privilege against self-incrimination in s 77, 81, 129 and 130 of the Bankruptcy Act as these provisions applied to an examination, Allsop J stated (at [43]-[46]) that:
The privilege not to answer questions or produce documents which have a tendency to expose the person to a criminal charge, or a penalty or to forfeiture has been recognised by the High Court as a deeply rooted principle of the general law: R v Associated Northern Collieries at 748; Sorby at 294, 309, 311; Pyneboard at 340, 341, 347; and Reid v Howard at 11-12, which can now be expressed also in terms of a human right: Environment Protection Authority v Caltex Refining Co Pty Ltd at 498.
The consequence of the recognition by the High Court that the privilege is one deeply rooted in the law as a fundamental right is that it is not merely a rule of evidence available in judicial proceedings, it is available generally, even in a non-curial context, as the foundation of an entitlement not to answer a question or produce a document: Pyneboard at 340-341; Sorby at 309; and Police Service Board v Morris (1985) 156 CLR 397.
Prior to Pyneboard, it had been generally expressed that the privilege was inherently incapable of application in non-judicial proceedings. In this form, it was seen as a testimonial privilege. That was the view of Wigmore, Wigmore on Evidence at [2263], of the United States Supreme Court: see, for example, Re Harris 221 US 274 (1911), and of the Full Courts of New South Wales and Victoria: see the cases cited in Pyneboard at 337-338; and see generally Phipson on Evidence pp 198-203. There was, however, a contrary line of authority: see the discussion in Pyneboard at 337-340.
It is presumed that Parliament does not intend to interfere with fundamental principles or rights including entrenched general law rights, such as the privilege against self-incrimination, without expressing its intention clearly, whether by express words or necessary implication: Potter v Minahan (1908) 7 CLR 277 at 304; Sorby at 294-5, 309-310; Baker v Campbell (1983) 153 CLR 52 at 96-7, 116, 123, 132; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Annetts v McCann (1990) 170 CLR 596 at 598; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427 at 437; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501; Daniels at [11], [43], [88]-[94] and [132]-[134]; and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [30].
(Emphasis added.)
166 In other words, the Full Court in Griffin v Pantzer identified the privilege against exposure to penalties as a principle of the general law, the availability of which was not limited to a court setting, and held that its statutory abrogation was subject to the principle of legality.
167 Flick J applied Griffin v Pantzer, in Tsiamis v Comcare [2013] FCA 684; 60 AAR 506, in dismissing an appeal from the Tribunal under s 44(1) of the AAT Act. Accepting that the privilege against self-incrimination might be properly claimed by a witness in the Tribunal's proceedings, his Honour held (at [19]) that Ms Tsiamis, who was an applicant for review in the Tribunal, was not denied a "reasonable opportunity" to be heard within the meaning of s 39 of the AAT Act because she was unable to elicit information from a witness before the Tribunal who properly relied on the privilege. His Honour specifically held that that provision did not prescribe a hearing in which a witness would be compelled to abandon the common law privilege. His Honour stated (at [19]):
There is no denial of a "reasonable opportunity" for the purposes of s 39 of the Administrative Appeals Tribunal Act in circumstances where a witness properly invokes a privilege against self-incrimination. Although s 33(1)(c) of that Act provides that the Tribunal is not bound by the rules of evidence, that freedom does not carry with it the ability to require a witness to answer questions which (for example) may expose him to self-incrimination.
168 Furthermore, the law as stated in Griffin v Pantzer 137 FCR 209 is consonant with the law as stated in other intermediate appellate courts in this country. This is significant in answering the present question about the availability of the privilege against exposure to penalties in non-judicial proceedings: see CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [50] (Gummow, Heydon and Crennan JJ); [63] (Hayne J); and S v Boulton [2006] FCAFC 99; 151 FCR 364 at [27] (Black CJ).
169 As in this Court, other intermediate appellate courts have mostly considered the operation of the privilege against exposure to penalties in a curial context: see, for example, Anderson v Australian Securities and Investments Commission [2012] QCA 301; 297 ALR 546; and Alishah v Gunns Ltd [2010] TASFC 6; 20 Tas R 305. So far as the present question is concerned, however, decisions of the Courts of Appeal of the Supreme Courts of New South Wales and of Victoria are on point. These decisions support the proposition that the privilege against exposure to penalties is capable of applying in a non-judicial context and, in particular, in a Tribunal such as the Administrative Appeals Tribunal.
170 In Valantine v Technical and Further Education Commission [2007] NSWCA 208; 166 IR 459 (Valantine), the Court of Appeal of the Supreme Court of New South Wales held that the privilege against exposure to penalties was properly invoked by the appellant, a teacher who was exposed to the penalties of reduction of rank and loss of salary in proceedings before the State's Government and Related Employees Tribunal. The Court of Appeal held that, in consequence, the appellant ought not to have been ordered to make discovery.
171 In holding that the privilege could apply to proceedings in the State Tribunal, Gzell J, with whom Beazley and Tobias JJA agreed, examined the authorities, including Pyneboard, Sorby, Police Service Board v Morris, Daniels and Rich. His Honour concluded (at [72]) that "the better view is that the privilege is capable of application to quasi-judicial proceedings such as those in the present case" and that the Court was not "constrained by precedent to find to the contrary". His Honour explained that the rationale for the privilege was applicable to the formal sittings of the Tribunal, referring, amongst other things, to the procedural and legislative context in which the Tribunal made its decision. His Honour treated as relevant the fact that sworn evidence was taken, and that the appellant's employer had an evidentiary onus of proof: see Valantine 166 IR 459 at [74]. In further addressing the question whether the privilege applied in the Tribunal proceedings, his Honour also treated the process set in train by the legislation as relevant, stating (at [89]-[93]):
The penalty was imposed by the senior officer appointed by the Commission to deal with alleged breaches of discipline. It was not imposed by the Tribunal. The question arises whether the privilege should apply to proceedings before the Tribunal under which, in terms of the Government and Related Employees Appeal Tribunal Act, s 48(2), the Tribunal may allow or disallow an appeal or make such other decision with respect to the appeal as it thinks fit. The Tribunal has, on one occasion, (Tania Sheldon v Managing Director, NSW Technical and Further Education, appeal No 492 of 1995, 16 April 1997), dismissed an appeal from a decision to reduce the teacher's rank and decided that she should be dismissed. In other words, it imposed a greater penalty than that against the imposition of which the teacher had appealed.
The process by which a penalty is initially imposed under the Government and Related Employees Appeal Tribunal Act for a disciplinary breach is in the nature of an administrative proceeding. Oral evidence is not called and the senior officer acts upon such documentation as is put before that officer.
In contrast, the issues are ventilated before the Tribunal in the manner of curial proceedings. Those proceedings can result in penalties imposed below being overruled, confirmed or increased. The jeopardy that an appellant will suffer if required to produce documents that expose the appellant to a penalty is just as much present in the proceedings before the Tribunal as it is in proceedings in a courtroom.
In Calman v Commissioner of Police (1999) 73 ALJR 1609 at [26]-[30], Gaudron ACJ, McHugh, Gummow, Kirby and Callinan JJ discussed the role of the Tribunal. They noted that various provisions of the Government and Related Employees Appeal Tribunal Act disclosed that the Tribunal was empowered to inquire into the merits of a disciplinary matter before it, at a formal hearing and in a manner that was distinct from the process adopted by the administrative decision-maker at first instance. They concluded that a disciplinary proceeding in the Tribunal was by the operation of s 48(2), in substance, a fresh exercise of administrative power and, in that sense, the "appeal" might be described as an administrative hearing de novo.
In entering upon that administrative hearing de novo, the Tribunal acts in a quasi-judicial capacity and, in my view, there is good reason why the privilege against exposure to penalties should apply to its powers to order discovery by an appellant. ...
172 The New South Wales Court of Appeal held that the application of the privilege against exposure to penalties applied to constrain the Tribunal's powers to order discovery and that witness statements could only be ordered at the close of the employer's case if the appellant elected to go into evidence.
173 On this last-mentioned point, Gzell J stated (at [94]):
If at the close of an employer's case the appellant elects to go into evidence, it may be appropriate for the Tribunal to order the appellant to lodge the statements of witnesses who are intended to be called before the Tribunal and provide copies to the Commission. It may also be appropriate for the Tribunal then to order an appellant to lodge a written case and provide a copy to the Commission.
174 Subsequently, the Court of Appeal of the Supreme Court of Victoria in Towie v Medical Practitioners' Board of Victoria [2008] VSCA 157; 29 VAR 252 (Towie) stated that it considered that the privilege against exposure to penalties was available in a proceeding before VCAT. Towie concerned a proceeding instituted in VCAT by the appellant, a medical practitioner who sought review of a decision made by the respondent Medical Practitioners' Board, holding that the appellant had engaged in unprofessional conduct and ought to receive a reprimand. It is sufficient, for present purposes to note that, at the outset, a direction, in standard form, was made that the appellant file and serve "witness statements and any further documents upon which he intend[ed] to rely". Before dealing with other ultimately determinative issues, the Court (constituted by Redlich and Weinberg JJA, and Mandie AJA) referred to the decisions of Mandie J in Australian Securities and Investments Commission v Plymin [2002] VSC 56; 4 VR 168 and of Finkelstein J in ASIC v Mining Projects Group 164 FCR 32 (which addressed the High Court authorities as they stood at that time) and stated at [9]:
[I]n circumstances where the alleged breach of those directions in main part gave rise to the order now appealed against, we should indicate that, in our view, the usual directions given at VCAT, would not generally be appropriate where an applicant seeks to review disciplinary proceedings and is a person who is or may be exposed to a penalty. A party may, in such cases, be required to file written grounds and an outline of argument which identifies in broad terms what is in issue on the application for review. But it will not ordinarily be appropriate that directions be given which require the applicant for review to provide an outline of argument, or any other written material, which contains a positive assertion or denial of facts or requires an election by the applicant as to whether he or she intends to go into evidence or requires any proposed evidence the applicant intends to call to be the subject of a witness statement which must be produced and served on the other side, before the case advanced against the applicant has been completed.
The Victorian Court of Appeal in Towie thus accepted that the privilege against exposure to penalties applied in VCAT proceedings, although it may be true to say that this ruling was not the basis on which the outcome of the appeal ultimately turned.
175 The ruling in Towie was considered and applied by the Victorian Court of Appeal, in MH6 v Mental Health Review Board [2009] VSCA 184; 31 VAR 226 (MH6). Before VCAT, the applicant had applied for review (by way of re-hearing) to set aside an involuntary treatment order that had been made by the Mental Health Review Board. The Tribunal's pre-hearing directions were in the usual form, including that the applicant first serve statements of the evidence of each witness to be called at the hearing. The applicant submitted that involuntary detention was analogous to "exposure to a penalty" or "disciplinary proceedings", and that the principle in Towie should therefore apply. The Court accepted (at [26]) that "[a]n involuntary treatment order affects interests in a manner that enlivens those aspects of the hearing rule articulated in Towie". The Court added:
Procedural fairness would require that an involuntary detainee be given an opportunity to hear and respond to evidence that provides the jurisdictional basis for continued confinement. In such cases the 'usual procedure for merits review' at VCAT that 'the applicant goes first' will not normally be appropriate. Nor will such procedure ordinarily be appropriate at a hearing conducted by the board.
176 In MH6, the applicant had framed the procedural defect as a want of procedural fairness. The Court held, however, that when the whole of the proceedings were considered, the Tribunal had not denied the applicant natural justice; and, in any event, the applicant had waived his rights to insist on compliance with the correct procedure, since his legal representative had agreed to the procedure that was in fact used: 31 VAR 226 at [33], [43], [40] and [53].
177 From the foregoing, it may be concluded that other intermediate appellate courts in addition to the Full Court of this Court have held that the privilege against exposure to penalties is capable of applying in non-judicial proceedings, although the privilege may be abrogated or curtailed by statute. Hence, whether or not the privilege against exposure to penalties was available to Mr Frugtniet in his proceedings before the Tribunal depends on the proper construction of the applicable legislation.
178 In addressing the question of construction, it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right or depart from the general law unless the legislative intention to do so emerges clearly, whether by express words or by necessary implication: see, e.g., Potter v Minahan [1908] HCA 63; 7 CLR 277 at 304; Sorby 152 CLR 281 at 294-295; Pyneboard 152 CLR 328 at 341; Daniels 213 CLR 543 at [11], [43], [88]-[94] and [132]-[134]; X7 248 CLR 92 at [158]. The prevailing authority is that the abrogation or curtailment of the privilege against exposure to penalties must be clear and unmistakable. In X7 at [158] Kiefel J said:
The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.
(Citations omitted.)
In Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [30], Gleeson CJ said:
[C]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.
(Citation omitted.)
179 The abrogation or curtailment is not only found in express words. The language and character of the statutory provisions and the purpose they are designed to achieve is significant: Sorby 152 CLR 281 at 309-310; and Pyneboard 152 CLR 328 at 341. In the latter place, Mason ACJ, Wilson and Dawson JJ said:
In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings.
180 It has also been said that a privilege may be abrogated or curtailed if the implication is necessary to prevent the statutory provision being frustrated or rendered unworkable: see, e.g., Daniels 213 CLR 543 at [43]; Carmody v MacKellar (1997) 76 FCR 115 at 137. It is a consequence of the principle of legality, however, that "one starts with the presumption that the privilege is not to be affected, rather than looking for an implied qualification of an otherwise freely interpreted statute": see Griffin v Pantzer 137 FCR 209 at [52].
181 The Tribunal was governed by the AAT Act, although that Act requires consideration of relevant provisions in the Migration Act. The AAT Act provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment: AAT Act, s 25(1)(a). Section 306 of the Migration Act provides that "[s]ubject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division". In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick, proportionate to the importance and complexity of the matter and that promotes public trust and confidence in the decision-making of the Tribunal: AAT Act, s 2A.
182 The Tribunal's decision on review must be in writing, affirming, varying or setting aside the decision under review: s 43(1). The Tribunal, if sets aside the decision under review, may make a decision in substitution for the decision set aside, or may remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal: s 43(1)(c). It is well-established that the Tribunal must determine the "correct or preferable" decision on the material before it: see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 46 FLR 409 at 419 (Bowen CJ and Deane J); see also Esber v Commonwealth [1992] HCA 20; 174 CLR 430 at 440; and Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 425. In this case, in affirming the decision under review, the Tribunal determined in substance that the decision to cancel Mr Frugtniet's registration was the correct or preferable one on the material before it. Whilst it may be true to say that "proceedings before the AAT are fundamentally different from court proceedings" (Watson v Commissioner of Taxation [1999] FCA 1796; 96 FCR 48 at [34] (Heerey J)), it is also true to say that there is nothing about the task the Tribunal undertakes that is incompatible with the availability of the privilege against exposure to penalties.
183 Further, pursuant to s 43 of the AAT Act, for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred on the person who made the decision under review, in this case the MARA. The powers conferred on the Tribunal by, and exercisable under, s 43 are not exercisable "at large": see Lees v Comcare [1999] FCA 753; 56 ALD 84 at [39]. Thus, the Tribunal cannot exercise a power "conferred on a decision-maker for some purpose unrelated to the decision under review": Australian Securities and Investments Commission v Donald [2003] FCAFC 318; 136 FCR 7 at [33]. Relevantly here, the Migration Act confers significant investigatory powers on the MARA, which do not extend to the Tribunal: Shi 235 CLR 286 at [68] (Kirby J) and [147] (Kiefel J). Thus, the question whether or not the privilege against exposure to penalties is abrogated or curtailed under the provisions conferring those investigatory powers on the MARA does not arise in this case, which concerns a proceeding before the Tribunal. There is nothing in the provisions so far mentioned, however, that could be said to manifest any intention to abrogate the privilege against exposure to penalties.
184 It is true, as the MARA submitted, that the procedure applicable in the Tribunal differs in some respects from that of a court. As Mansfield J stated in Brackenreg v Comcare [2010] FCA 724; 187 FCR 209 at [59], citing McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357, "because the Tribunal stands in the shoes of the primary decision-maker, there is no legal onus of proof arising from the fact that it is conducting a review". This does not mean that there may not be a practical onus: Brackenreg v Comcare 187 FCR 209 at [60]-[63]. Pursuant to s 33(1)(b) of the AAT Act, the review proceeding is to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the AAT Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permitted. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: s 33(1)(c). There is, however, nothing in these provisions that expressly or by necessary implication manifests a clear intention to abrogate or curtail the privilege against exposure to penalties.
185 Section 37(1) of the AAT Act is also relevant in this context. This provision requires the person who made the decision the subject of the review application to lodge with the Tribunal "within 28 days after receiving notice of the application (or within such further period as the Tribunal allows)" a copy of: (a) "a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision"; and (b) "every other document that is in the person's possession or under the person's control and is relevant to the review of the decision by the Tribunal". Subject to presently immaterial exceptions, the person must also give a copy of those statements and documents to each other party to the proceeding: s 37(1AE). Section 37 is central to the capacity of the Tribunal to make a decision in the place of the earlier decision-maker, but, once again, it does not manifest a clear intention to abrogate or curtail the privilege against exposure to penalties. Rather, the provision contemplates only that the Tribunal should have all the information in relation to the subject of its review that it is to perform. The same material is to be given to review applicants in order that they can present their case for a different decision against the background of knowledge of the basis for the decision they seek to overturn. It must be borne in mind, however, that, on review, the Tribunal makes a new and separate decision, on the material before it; and this material may differ in crucial respects from the material before the original decision-maker.
186 Other provisions of the AAT Act confer powers on the Tribunal analogous to that of a court. For example, for the purposes of reviewing a decision, the Tribunal may take evidence on oath or affirmation: s 40(1). Moreover, for the purposes of a Tribunal proceeding, the Tribunal may summon a person to appear before it to give evidence, or to produce any document or other thing specified in the summons: s 40A(1). Further, the Tribunal may make a direction requiring any person who is a party to the proceeding to provide further information in relation to the proceeding or requiring any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing: s 33(2A)(a) and (c). The prevailing authorities have regarded provisions such as these as indicative of the availability of the privilege against exposure to penalties in a Tribunal setting: see, e.g., Valantine 166 IR 459 at [74].
187 The conclusion that the privilege against exposure to penalties is available in the Tribunal is reinforced by s 60(3) of the AAT Act, which provides that, subject to the Act, a person summoned to attend or appearing before the Tribunal as a witness has the same protection as a witness in proceedings in the High Court: see also Tribunal Case 85 [1987] AATA 202; 18 ATR 3613 at 3616 (Davies J, President).
188 Having regard to the foregoing, there is no proper basis to construe the AAT Act as abrogating or curtailing the privilege against exposure to penalties; and no such legislative intention emerges clearly. Furthermore, the Migration Act provides no such basis. Although the Migration Act specifically provides for the powers of the Tribunal in relation to Part 5-reviewable decisions and Part 7-reviewable decisions (see ss 349 and 415) it makes no similar provision for the review of a decision of the MARA under s 303(1) of Div 3 of Pt 3 of the Migration Act.
189 Mr Frugtniet's submission, that the Tribunal erred in holding that the privilege against exposure to penalties did not apply to proceedings before it, should be accepted.
190 In view of this, the Tribunal should not have made the directions that it did on 30 July 2015 requiring Mr Frugtniet to provide to the MARA and the Tribunal witness statements from proposed witnesses, documents on which he intended to rely at the hearing and a statement of facts, issues and contentions requiring positive assertions. Mr Frugtniet might have been required to provide a statement of argument that identified in general terms what was in issue on the review but, as the Court of Appeal said in Towie, he should not have been required by direction to provide "written material, which contains a positive assertion or denial of facts or [to make] an election ... as to whether he ... intends to go into evidence or [that] any proposed evidence [he] intends to call … be the subject of a witness statement [to be] produced and served on the other side before the case advanced against the applicant has been completed": at [9]. Further, Mr Frugtniet should not have been required to "go first" in accordance with the usual practice in Tribunal proceedings. He should have had the opportunity to hear the MARA's case to its completion before he was required to decide to go into evidence and make positive assertions about his case.
191 In an appeal on a question of law under s 44(1) of the AAT Act, it is not enough for an applicant to show that the Tribunal misstated the law in one respect if that misstatement could not have affected its decision: see Screen Australia v EME Productions No. 1 Pty Ltd [2012] FCAFC 19; 200 FCR 282 at [52] (Keane CJ, Finn and Gilmour JJ); and BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 253-254 (Lockhart and Hill JJ). As, however, the Full Court in Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647; 114 FCR 456 at [10] said "a decision of an administrative tribunal will be set aside for error of law if it can be shown that the error could have affected the outcome of the case, that is that a different result might have been reached had no error of law been made" (emphasis added). See also Aala 204 CLR 82 at [4], [104], [122], [131]-[132], [211]; and Stead 161 CLR 141 at 145.
192 Whether or not the Tribunal's decision should be set aside depends on whether the outcome could have been different if the Tribunal had not made the error of law it did as to the application of the privilege against exposure to penalty. After careful consideration, it seems to me that such possibility exists, notwithstanding factors indicative of a contrary conclusion.
193 These factors include that the s 37 documents given by the MARA to Mr Frugtniet pursuant to s 37(1AE) of the AAT Act set out, in some detail, the basis of the decision under review. In its decision given on 30 July 2015 concerning the privilege (Re Frugtniet and Migration Agents Registration Authority [2015] AATA 554; 67 AAR 92), the Tribunal recorded (at [33]) that, by 30 July 2015:
MARA has lodged the T documents as required by s 37 of the AAT Act. That provision requires it to lodge not only a statement of reasons but a copy of every other document, or part of a document, that is in its possession or under its control and relevant to the Tribunal's review of the decision. The T documents lodged by MARA contain, excluding attachments, a 25 page statement of reasons together with evidentiary material. That evidentiary material includes Mr Frugtniet's own statements and the documentary evidence he gave to MARA as well as other documents that MARA has gathered. In gathering that information, MARA has used its powers under s 308 of the Migration Act. It has also advised Mr Frugtniet that it was considering cancellation of his registration and the reasons for its doing so and invited him to make submissions on that matter.
194 As the Tribunal noted (at [34]), the s 37 documents showed Mr Frugtniet the view the MARA had taken of the material in its possession at the time it made its decision and the reasons it had for reaching that decision. The Tribunal further observed:
This does not appear to be a case in which the investigation that MARA has undertaken appears on its face to be cursory or inadequate. That is not to say that there is not more material to be obtained or that its decision is correct. What it is to say is that MARA appears to have investigated the matter as thoroughly as it can using the powers it has under the Migration Act. If there is further relevant material to be found, it is logical to think that Mr Frugtniet is in a better position than MARA to be able to identify it even if it is not in his immediate possession or control.
195 The MARA did not, moreover, call any witnesses at the hearing and apparently provided little additional documentary material to the Tribunal. Reference to the transcript of the hearing, which is included in the Court Book, indicates that this additional material apparently consisted of a personalised application signed by Mr Frugtniet in November 2012 and provided to the MARA, and documents and an email exchange relating to Mr Bastola's consent to disclose his complaint and the associated documents to Mr Frugtniet.
196 I would not, furthermore, accept Mr Frugtniet's submission that the directions made by the Tribunal on 30 July 2015 exposed him to "serious disadvantage" for the reasons he advanced. These reasons were: (i) Mr Bastola had been charged with a criminal offence and had sought to implicate Mr Frugtniet; (ii) Mr Bastola had not given permission to have his complaint published since 2011; and (iii) Mr Bastola was not called by the MARA, even though Mr Frugtniet had indicated to the MARA that he required Mr Bastola to be called for the purposes of cross-examination. Mr Bastola's complaint to the MARA was provided to Mr Frugtniet in the s 37 documents (and also as an attachment to the notice issued to him under s 309(2) of the Migration Act dated 5 September 2014 (the s 309(2) notice). The Tribunal's reasons at [104] to [109] clearly indicate that all the relevant evidence regarding the creation of the false work reference and its submission to the TRA had been included in the s 37 documents. The Tribunal referred at [104] to Mr Glen Evans' evidence, and at [105] the evidence of Ms Hilder from Australia Post. Their evidence was included in the s 37 documents and was also attached to the s 309(2) notice. Mr Frugtniet was therefore aware of the details of Mr Bastola's complaint once given the s 37 documents, although the evidence of Mr Bastola's consent was not included in the s 37 documents and was provided only at the hearing. Further, for the reasons stated earlier, I reject Mr Frugtniet's submissions concerning the MARA's failure to call Mr Bastola as a witness. The fact, if it be that, that Mr Bastola had been charged with a criminal offence and had sought to implicate Mr Frugtniet might be thought relevant to the fact that neither party chose to call him, but that did not compel either party to do so.
197 Notwithstanding the information in the s 37 documents, the s 37 documents could not, however, disclose the details of the case that the MARA was to advance before the Tribunal, including the witnesses it might call and any further documentary evidence it might rely on at the hearing. The subsequent disclosure of matters of this kind was in part to be effected by the Tribunal's direction to the MARA of 30 July 2015, to provide witness statements from witnesses proposed to be called, documents to be relied on and a statement of facts, issues and contentions to the Tribunal and Mr Frugtniet on a fixed date prior to the hearing. Even then, Mr Frugtniet could not know the whole of the case to be advanced against him in the Tribunal until that case was completed.
198 The fact is that the effect of the Tribunal's directions of 30 July 2015 was to oblige Mr Frugtniet to decide upon the witnesses he was to call and to provide their statements, as well as any other documentary material on which he intended to rely, or risk the possibility that the Tribunal would not permit him to rely on this evidence and material at the hearing. Further, he was obliged to make these decisions before the MARA had identified its case before the Tribunal, let alone completed it. At the same time, the direction to file a statement of facts, issues and contentions, if complied with, exposed Mr Frugtniet to the need, it would seem, to make positive assertions of fact or denials of fact, with the risk that the failure to comply with this direction would weaken his position before the Tribunal at the hearing. Furthermore, the fact that Mr Frugtniet was obliged to "go first" at the hearing meant that he made his decision to give evidence on oath (and be subject to cross-examination), before the MARA presented its case against him. Since he went first, he had also to make other decisions about the presentation of his case ahead of the MARA. The possibility remains that the MARA's own forensic decisions were also affected by the order in which the parties presented their cases, the directions to which the parties were subject on 30 July 2015 and what was done or not done by Mr Frugtniet in consequence.
199 In the circumstances, bearing in mind the protection that the privilege against exposure to penalties should properly have given him, without stepping impermissibly into the shoes of the Tribunal, the Court cannot exclude the possibility that the Tribunal review might have had a different outcome had the error of law not been made. Mr Frugtniet was, after all, the only witness before the Tribunal and the Tribunal relied on his evidence in making findings against him. For example, on the basis of the evidence of Mr Frugtniet (with that of Ms Hilder and the ASIC search) the Tribunal found at [105] that "the GPO Box shown in the letter signed by Mr Glen Evans matched with that of a company of which Mr Frugtniet is a director". This finding supported its conclusion that Mr Frugtniet was a key player in the creation of the false documents provided to the TRA.
200 It is tempting to conjecture that the case that Mr Frugtniet faced, as disclosed in the Tribunal's reasons, left little room for a different outcome, but that is to view the matter from the wrong perspective. While the possibility of a different outcome remains, the decision as to whether the cancellation of Mr Frugtniet's registration as a migration agent is the correct or preferable decision is that of the Tribunal and not that of this Court; and it would be wrong to assess the reality of this possibility by reference to findings that have been made in the circumstances in which this review proceeding was conducted, since the denial of the protection the privilege would have afforded was an integral part of the procedures the Tribunal adopted.
201 It is therefore appropriate to set aside the decision of the Tribunal and remit the matter to the Tribunal, differently constituted, for hearing and determination in accordance with these reasons.