29 The matter before the Tribunal raises issues of immense commercial importance to the parties, other than the GIC, and more generally to the wine industry at large. Without suggesting any criticism of the GIC, the difficult question of fixing the original boundaries for the Coonawarra wine region has now been in train for five years. The Tribunal hearing is anticipated to take some weeks. Special arrangements have been made for the Tribunal hearing to commence on 19 February 2001. Directions made from time to time by the Tribunal have been intended to ensure that the case will be ready to proceed on that day without further delay.
30 If the hearing does not proceed in the time that has been set aside commencing on 19 February 2001, the President has indicated to the parties that the matter could be delayed for up to twelve months or longer before it would be possible for the review to be heard. A particular difficulty from the Tribunal's viewpoint in making administrative arrangements is that the proposed Administrative Review Tribunal is scheduled to replace the AAT on 1 July 2001, and the President is anxious to complete the review before that date.
31 All these matters point to the undesirability of this Court interfering with the procedural directions which have been made in the Tribunal.
32 Even if it were the case that the impugned directions appeared to this Court to unduly restrict the role which the GIC as a party is entitled as of right to exercise in the course of the Tribunal hearing, we do not think that it would be appropriate for this Court at this stage to interfere. To do so would create a risk that this Court's order would establish a springboard for the GIC to seek an adjournment in circumstances where it is not demonstrated that at the end of the day the directions are likely to restrict the ability of the GIC to make whatever meaningful submissions and contributions it wishes to make in the course of the hearing. For these reasons we consider the present application should be dismissed.
33 However as the parties have addressed argument on the proper role of the GIC in the forthcoming hearing in the Tribunal, we think it appropriate that we briefly address that question.
34 The role of a decision-maker as a party in review proceedings before the Tribunal was considered by Davies J in New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420 at 430-431. His Honour, after referring to Hardiman, said:
"However, in a proceeding before the Administrative Appeals Tribunal (the AAT), it is not unusual for the representative of the decision-maker to play an active role in examining and cross-examining witnesses and to put substantive arguments. That is indeed the normal and desirable course. It is also the course which is intended by the provisions of the Administrative Appeals Tribunal Act 1975 (Cth). Section 30(1) of that Act provides that the person who made the decision will be a party to the proceedings before the AAT. The AAT proceeds by way of a hearing or re-hearing at which the parties attend. The function of the AAT is review on the merits of a matter. It considers for itself both the facts and the law. Seldom does the AAT refer a matter back to the decision-maker to be fully re-considered. In the overwhelming proportion of cases, the AAT considers for itself what decision, in the exercise of the primary decision-making power, is the correct or preferable decision. That is the function which the AAT exercised in Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 39 ALR 281; 3 ALD 88, and in this present case.
In the exercise of this function, the AAT is assisted if the representative for the decision-maker fulfils the role of adducing evidence, of questioning evidence and of presenting substantive submissions. If the representative for the decision-maker does not do this and there is no other party present to undertake that role, it could become necessary for the AAT itself to take an active role in questioning witnesses and even in adducing evidence. Such a role does not stand well with the AAT's function of providing a hearing to parties, including the decision-maker, and of coming to an impartial and informed decision after hearing what the parties before it put forward at the hearing by way of evidence and submissions.
In some cases, it could well be appropriate for counsel for the ABT to exercise a limited role. Such a case probably was Re Control Investment, supra, in which several parties were represented before the AAT and all relevant points of view were put. In that case, the ABT limited its role to assisting clarification of the practices and policy of the ABT and to assisting the AAT as requested. But that was a very different case from the present for all the evidence was properly tested.
I would, therefore, encourage representatives of the ABT in future cases to play a more active role than was played in the present case and I would emphasise that, in a review of a decision of the ABT, the AAT is required to be constituted by a presidential member of the AAT who is a judge of the Federal Court of Australia. In a case in which the parties are only the applicant for review and the ABT, it is preferable that the ABT should undertake by its representative the task of testing evidence, than that the AAT as so constituted should engage extensively in the examination and cross-examination of witnesses. And because the AAT as so constituted does not have specialist knowledge of the broadcasting and television industry and of the persons involved in it, the AAT would obviously be assisted with substantive submissions from the representative of the ABT, a body which does have that expertise."
35 Whilst his Honour encouraged representatives of a decision-maker in future cases to play an active role as a party in cases where the only parties before the Tribunal were the applicant for review and the decision-maker, it is plain from his Honour's observations, read in their entirety, that the situation would be different where there were other parties before the Tribunal who it could be expected would adopt the role of contradictor, and who could be expected to add whatever evidence was necessary to the "T documents" to fully inform the Tribunal on relevant matters. That distinction was drawn by Brennan J in Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 at 681-682. Mansfield J in Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Another (1998) 152 ALR 182 at 207 said that the role to be fulfilled by a decision-maker where that decision is under review is a question to be decided in the circumstances of each case and in the context of the legislation then under consideration.
36 In BTR plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 34 FCR 246 (Westinghouse) a Full Court of this Court addressed the proper role of the Australian Securities Commission (the ASC) where its decision was under review in the AAT. Lockhart and Hill JJ at 265 in a joint judgment approved the role of the ASC in advancing arguments relating to the Court's jurisdiction and powers, as to the proper construction of certain sections of the Corporations Law (the Law), and as to the powers of the ASC under particular sections of the Law. The Court noted the national significance of the ASC, its responsibility for the enforcement of the Law and its entitlement under s 1330 to intervene in proceedings relating to a matter arising under the Law. Their Honours said at 265:
The court expressed the view to counsel for the Commission that, where proceedings under the Law involve issues of a purely commercial nature and where the other parties are well able properly to adduce evidence and make submissions on all relevant facts to the court, the Commission should not assume the role of an active party and present substantive arguments with respect to those issues. The position is different where a commercial issue arises but is not fully or properly canvassed by the other parties. The position is also different where cases raise issues of national significance, questions of construction of the Law or the procedures the Commission should follow under the Law. Plainly the Commission has a vital role to play with respect to those questions. This is not intended to be an exhaustive statement of the circumstances in which the Commission should or should not assume the role of an active party …"
37 The ASC was a large statutory authority charged with a wide range of responsibilities designed to protect the public interest. Part of the functions of the ASC included the function of monitoring commercial activity in the market place. In the course of doing so it has accumulated a wealth of information, and played important roles in formulating and administering policy and legal principles designed to further the objects of the legislation under which it was established.
38 The status of the ASC stands in contrast with the GIC. As noted in par 5 above, GIC comprises three members, of whom one is appointed on the nomination of a declared winemakers' organisation and one appointed on the nomination of a declared wine grape growers' organisation. The members are appointed on a part time basis. The GIC has the sole function of making determinations of geographical indications for wine in relation to regions and localities in Australia: s 40P. By way of contrast are the extensive functions of the Australian Wine and Brandy Corporation itself under s 7 of the AWBC Act. The GIC operates only with staff provided, as required, by the Australian Wine and Brandy Corporation, and in performing its function the AWBC Act contemplates that it will engage consultants with appropriate qualifications and experience to advise it: Schedule to the AWBC Act.
39 Regulation 25 spells out in great detail matters to which the GIC is to have regard in making a determination of a geographical indication. Those matters largely concern matters of fact, being matters upon which the GIC is likely to be assisted by experts' reports from historians, geographers, geologists, agronomists and others. Armed with reports on issues of this kind, and other documentary information gathered by the GIC in the course of its inquiries, it is not readily apparent why the Tribunal, constituted by a person with extensive legal training and judicial experience would not be able to fully, fairly and appropriately discharge the merits review function required of the Tribunal under the AAT Act.
40 The public interests asserted by the GIC in respect of which it seeks this Court to determine that it is entitled are to adduce evidence, including expert evidence (if the GIC wishes to do so), to lay the factual foundation for any submissions on the interpretation of the AWBC Act and the Regulations, to ensure the proper application of the criteria in regulation 25 to the particular region, to preserve the integrity of the Australian wine industry including ensuring that any treaty obligations are properly recognised, and protecting consumers by ensuring "truth" in labelling. Those claimed aspects of the public interest are likely to be fully explored by the other parties to the application before the Tribunal. As noted in pars 8 and 9 of these reasons, there are a number of contradictors to the application who seek to uphold the GIC's determination. Review of the criteria which regulation 25 requires the GIC, and on review the Tribunal, to have regard to indicates that those contradictors are very likely to address each of them. There is little point in reciting those factors in detail. Although the GIC suggested that the contradictors' commercial focus would confine their perspective in addressing those factors, it is very likely even then that the pursuance of those commercial objectives would lead the contradictors to address the matters, largely historical and geographical, to which regulation 25 directs attention. The GIC also expressed concern that those contradictors may not properly identify "any other relevant matters", which by the note to regulation 25 may be addressed. There is no reason to expect that the contradictors would not do so, and the GIC has leave to make submissions to the Tribunal which could include submissions on that topic. Any evidentiary hiatus could, in accordance with the present directions, be the subject of an application to the Tribunal to adduce evidence by the GIC beyond that which will be received by the Tribunal from the GIC pursuant to s 37 of the AAT Act in any event.
41 At this stage, there is no reason to expect that the elements of the public interest which the GIC has referred to require the GIC to have a greater role before the Tribunal than the present directions contemplate. It is free to make submissions on the meaning of the AWBC Act and the Regulations. The evidentiary foundation for its own conclusions, after its consultation, its interim determination, its consideration of submissions, and its final determination, will essentially be included in the documents produced to the Tribunal under s 37 of the AAT Act. That material will include the material directly relevant to each of the criteria specified by regulation 25, and if the GIC had regard to "any other relevant matters" it will indicate what those other relevant matters are and will include the material the GIC considered was directly relevant to its consideration of them. The features of the public interest which the GIC identifies as requiring an evidentiary base will, no doubt, be largely if not entirely encompassed in that material. If the evidence before the Tribunal from the applicants seeks to present a significant new or different complexion on that evidentiary base, the contradictors who are now parties to the application are likely to undertake the task of testing and challenging that further material and of addressing their own material in opposition.
42 Moreover, the Tribunal now is empowered to determine the geographical indications for wine in relation to the Coonawarra region: s 43 of the AAT Act. It will no doubt address the public interest considerations identified by the GIC. If it perceives that, on an important matter, there is relevant material which has not been presented to it, it may seek the assistance of the GIC in procuring and presenting that material. Its directions also reserve to the GIC the right to apply to adduce such further evidence, if for some reason the contradictors do not do so.
43 In those circumstances, in our judgment, there is clearly no reason to ascribe to the GIC a role such as that which, at least putatively, it wishes to adopt. The nature of the application, and the parties before the Tribunal, are likely to lead to relevant evidentiary material being presented to the Tribunal. By the directions, the GIC has the right to make submissions to the Tribunal and to seek leave to adduce further evidentiary material if, for some good reason, that becomes desirable.
44 Indeed, the directions provide for the GIC to adopt a role in the proceedings before the Tribunal which is greater than that which the High Court (Gibbs, Stephen, Mason, Aickin and Wilson JJ) in Hardiman envisaged: see par 12 above.
45 The directions provide for the GIC to make submissions more generally, and also to provide assistance to the Tribunal when called upon, and to provide to the Tribunal further material at its disposal which the Tribunal is satisfied is necessary for the Tribunal to reach a correct or preferable decision. Its role, as contemplated by the directions, is consistent with that contemplated by Lockhart and Hill JJ in Westinghouse referred to in par 36 above. It might be considered that the Tribunal has been somewhat liberal in ascribing that role to the GIC. The particular consideration which moved the High Court in Hardiman to make the observations which it did is one which is more than a theoretical possibility. Under s 43(1)(c)(ii) of the AAT Act, the Tribunal may remit the matter for reconsideration by the GIC in accordance with any directions or recommendations of the Tribunal. It may, of course, also affirm or vary the decision of the GIC, or set it aside and make a decision in substitution for the GIC decision. Ultimately, the decision must be recorded in the Registrar of Protected Names: s 40ZC of the AWBC Act. If the Tribunal were to set aside the decision of the GIC and to remit the matter for reconsideration in accordance with directions or recommendations of the Tribunal, that may involve the GIC having to perform more than simply an administrative function. The participation in the proceedings before the Tribunal which the GIC wishes to adopt would, in that event, endanger the impartiality which it is clearly expected to maintain in carrying out its function under Div 4 of Pt VIB of the AWBC Act.
46 The contention of the GIC that, because it is a party to the proceeding before the Tribunal, it is entitled to adduce all such relevant evidence as it wishes and to cross-examine at large, in our view, fails to have regard to the nature of its "case". The High Court in Hardiman indicated in general terms the role of an administrative decision-maker in circumstances such as the present. Their Honours' observations must be particularly apt where there is a clear contradictor before the Tribunal. The particular circumstances in Hardiman do not gainsay that conclusion. The order absolute for a writ of mandamus was made, inter alia, because an interested party before the Australian Broadcasting Tribunal was not given a proper opportunity to cross-examine; it was not a case where the decision-maker whose decision was under review sought to undertake extensive cross-examination. Indeed, the concluding remarks of the High Court indicate that it did not contemplate a body in the position of the GIC undertaking any such role.
47 Similarly, in Australian Postal Commission v Hayes the vice detected by the Court (Wilcox J), was that the Tribunal unduly fettered the cross-examination of the contradictor in proceedings before the Tribunal. That decision does not provide any foundation for the wide role now sought by the GIC as the decision-maker whose decision is under review before the Tribunal.
48 For those additional reasons, in our judgment, the Tribunal has not been shown to have fallen into error in making the directions. The Tribunal's directions reflect its desire to proceed with what will undoubtedly be a complex and lengthy hearing in accordance with s 33 of the AAT Act. The directions have not been shown to prevent the GIC from taking part in the hearing or from fulfilling the role which Lockhart and Hill JJ in Westinghouse contemplated. If, in the proper pursuit of its role before the Tribunal as the decision-maker whose decision is under review, it seeks to extend its functions before the Tribunal beyond that which the directions presently contemplate, the Tribunal's reasons make it clear that it may apply to the Tribunal for that purpose.
49 Accordingly, the application should be dismissed with costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa, O'Loughlin & Mansfield JJ.