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 Residence
I 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) 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) 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."