With regard to the submission that it was 'contrary to public policy' and an 'abuse of process' to permit Mrs Ridley to 're-litigate' before the Tribunal an issue determined against her by the convictions recorded in the court of petty sessions, it is necessary to re-state the function of the Tribunal. The Tribunal has been established to review decisions of administrators and, if necessary in conducting that review, to exercise the powers and discretions of such decision-makers. The provision of a forum in which a party has an opportunity to present material and make submissions pertinent to the exercise of administrative powers does not make a hearing of that type a proceeding within a federal system for the administration of justice. The adoption by the Tribunal of [an] adversarial procedure in the conduct of its review does not make that review part of the process of litigation. It follows, therefore, that review of an administrative decision does not involve consideration of whether the conduct of the review may bring the administration of justice into disrepute. Whatever procedure the Tribunal may adopt to carry out its statutory duties, it performs solely administrative functions in deciding what administrative decision is appropriate. The AAT Act provides to a person affected by the exercise under an enactment of an administrative decision-making power the right to seek to have a reviewing authority (the Tribunal) exercise that decision-making power. That person is entitled to present to the Tribunal any material that ought to be taken into account in the making of that decision. If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based."
25 Saffron was decided by the Full Court (Davies, Lockhart and Beaumont JJ) on a special case stated by a judge of the Court. The question stated for the opinion of the Full Court arose in appeals which were brought by Mr Saffron against decisions of the Commissioner of Taxation on objections to income tax assessments for the income years 1977-1982. The appeals were instituted well before 1987 when Mr Saffron was charged and convicted of conspiring with another to defraud the Commonwealth. Many common issues of fact arose on the appeals and in the criminal trial. The question stated for the opinion of the Full Court was whether it was open to Mr Saffron to give evidence in the appeals before the Court which contradicted one of the matters of fact upon which his criminal conviction was based. The argument advanced on behalf of the Commissioner of Taxation was that it would be an abuse of process for Mr Saffron to be permitted to give such evidence.
26 Davies J at 581 said:
"A conviction is a decision in rem which establishes, while it stands, that the person convicted has been convicted of a certain crime. If the person has been convicted of a felony, it establishes that the person is a felon. Such a matter is one which the convicted person may challenge only by seeking to set aside the conviction. In the taxation appeals, the taxpayer may not challenge the fact that he has been convicted of conspiracy to defraud the Commonwealth. But of course the taxpayer does not seek to do so and the fact of conviction is itself irrelevant. As is stated by GS Bower & AK Turner, The Doctrine of Res Judicata (2nd ed, 1969), p 215, a conviction is conclusive merely of that which it establishes, namely, the fact of conviction for the offence, but not of the facts lying behind that conviction."
27 His Honour went on to note that the subject matter of the taxation appeals fell outside the first of the two categories enunciated by Viscount Simon in General Medical Council v Spackman and noted further that his Lordship's first category had been applied by Full Courts of this Court in Daniele, Degerli v Minister for Immigration & Ethnic Affairs (1981) 4 ALN N39 and Gungor and by several decisions of single judges. His Honour said at 582:
"Those cases establish that, where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then, even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court of New South Wales (1957) 97 CLR 279."
28 Davies J was content to leave open the question of the admissibility of the conviction as evidence in the taxation appeals. His Honour noted at 582 that the decision of the Court of Appeal in Hollington v Hewthorn & Co Ltd [1943] KB 587 that a conviction is not, in civil proceedings, admissible evidence of the essential facts on which it was based, had attracted much criticism and some legislative intervention. On the question of abuse of process, Davies J noted at 583 that legal proceedings may not be instituted or carried on for the purpose of challenging by inappropriate means the judgment or order of a court made in either civil or criminal proceedings. However, his Honour concluded that the taxation appeals in that case did not have such a purpose.
29 In Saffron, Lockhart J noted at 589 that Hunter v Chief Constable of West Midlands Police [1982] AC 529 is authority from the highest source in England that:
"where a final decision has been made by a criminal court of competent jurisdiction, it is a general rule of public policy that a civil action cannot be used to initiate a collateral attack on that decision; and, if it does, it is an abuse of the process of the civil court".
His Honour at 590-591 also noted the decisions of the Full Court of this Court in Gungor and Daniele and observed that in those cases the relevant convictions were the necessary bases of the Minister's deportation orders. As to Hollington v Hewthorn & Co Ltd, Lockhart J at 591 observed that the case "is recognised as authority for the proposition that a finding of guilt is not evidence in a civil proceeding involving the same factual issues" and that it had not been "universally condemned". Lockhart J concluded at 592 that the tax appeals in that case were not being used for the purpose of a collateral attack upon the prior convictions and that Mr Saffron was free to lead evidence which contradicted a matter necessarily decided against him at his criminal trial. His Honour observed, however, that although the primary judge would have to decide the facts, "the court cannot reach or express a view that the applicant was wrongly convicted of the offence of conspiring to defraud the Commonwealth".
30 In Saffron, Beaumont J at 600-601 agreed with Lockhart J that the relevant principle was that the process of the Court was not to be used for the foreign or ulterior object of setting at nought the taxpayer's conviction. However, on the application of the principle, Beaumont J differed from Lockhart J. Beaumont J would not have allowed Mr Saffron to lead the evidence which contradicted one of the matters of fact on which his conviction was based.
31 It seems to me that Saffron provides only limited guidance in the present context. The decision in Saffron turned on whether the tax appeals in that case were an abuse of the process of the Court. The concept of abuse of process is not easily imported into federal administrative law (see Wiest v Director of Public Prosecutions (1988) 23 FCR 472 (FC) esp per Burchett J at 486-487 and Gummow J at 526-528). In any event, there is no real suggestion in this case, as I understand it, that the respondent sought to use the hearing before the Tribunal for the ulterior purpose of making a collateral attack on his earlier convictions. His concern appears to have been to give evidence touching on his character and the risk of his re-offending.
32 Nor do I think that the doctrine of issue estoppel is of assistance in resolving the issues which this case requires to be determined. The parties before the Tribunal were not the same as the parties to the criminal proceedings and thus no issue estoppel properly arises (Ramsay v Pigram (1968) 118 CLR 271). Moreover, as issue estoppel is a sub-class of estoppel by record, it is best understood as a rule of evidence (Cross on Evidence Australian ed, Butterworths, at para 5240). Section 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") relevantly provides:
"In a proceeding before the Tribunal -
(a) …
(b) …
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."
The rules of evidence thus do not bind the Tribunal.
33 For the same reason, the rule in Hollington v Hewthorn & Co Ltd, the effect of which has in any event been largely reversed by s 92(2) of the Evidence Act 1995 (Cth), has no application in a proceeding before the Tribunal.
34 Although the "limited observations" of the Full Court in Ridley were strictly obiter, I consider that they are entitled to be given considerable weight. However, like Weinberg J in Minh v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 304 at 319-320, I am satisfied that their Honours did not intend to detract from the longstanding and well established approach taken in deportation cases.
35 The question ultimately to be decided is one of statutory interpretation. Section 200 of the Act gives the applicant a discretion in unconfined terms to order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applies. If there are any limitations on the matters to which the applicant is entitled to have regard in the exercise of that discretion, they must be able to be gleaned from the subject-matter, scope and purpose of the Act (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 per Mason J at 39-40). In this regard it is of significance that the discretion has been conferred on a Minister of the Crown. The Legislature may be assumed to have intended that a Ministerial discretion might be exercised taking into account quite broad policy considerations (Peko-Wallsend per Mason J at 42). The Policy Direction reflects just such broad policy considerations.
36 The Tribunal, when reviewing the exercise of the discretion under s 200 of the Act, is to determine whether the decision made by the applicant or his delegate was the right decision which ought to have been made in the circumstances (Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409). For the purpose of reviewing the decision, the Tribunal may exercise all of the powers and discretions conferred by the Act on the applicant (AAT Act s 43(1)). That is, the Tribunal effectively "stands in the shoes" of the applicant. If there are limitations on the matters to which the applicant is entitled to have regard in the exercise of the discretion vested in him by s 200 of the Act, they will similarly restrict the Tribunal.
37 In each of Gungor, Daniele and SRT, the Full Court of this Court identified as a policy consideration the undesirability of administrative decisions being based on considerations inconsistent with criminal convictions and sentences. In none of these cases was it necessary for the Court to explore whether (and if so, why) the policy consideration is of less significance where the relevant conviction and sentence does not provide the basis for the exercise of a statutory power.
38 The policy considerations which make it undesirable for administrative decisions to be based on factual findings inconsistent with criminal convictions and sentences include, but extend beyond, the desirability of maintaining public respect and confidence in the administration of criminal justice. Other relevant matters include the following. A criminal conviction is the result of a complex and expensive judicial procedure calculated to ensure the conviction only of persons whose guilt of the crime with which they have been charged has been demonstrated beyond reasonable doubt. For this reason, proof of a conviction is, as a matter of logic, highly probative of the truth of factual matters essential to the conviction. Little public benefit might be thought to flow from the expenditure of time and money involved in the reconsideration of the same issues by an administrative decision maker. Moreover, particularly where significant time has passed since the events which founded the criminal charge, evidence which was available at the criminal trial might not be available at the time of the administrative hearing. Matters which were conceded or proved beyond reasonable doubt at the criminal trial might quite easily be denied by a party to an administrative hearing who knows, for example, that a former witness against him has died or is otherwise unlikely to be called to give evidence.
39 Nonetheless, it is known that there are circumstances in which an individual, for various reasons, may opt to be convicted on his or her plea of guilty although a defence to the charge might be available. On rare occasions, evidence is found, long after a conviction, that shows that the conviction or sentence involved a miscarriage of justice.
40 What, if anything, do the subject-matter, scope and purpose of the Act, seen in the light of the authorities, suggest about the way in which the above policy considerations should impact on an administrative decision maker (whether the applicant or the Tribunal) in the exercise of the discretion created by s 200 of the Act? In this regard it is significant, in my view, that in contrast with the provisions of the Social Security Act 1947 (Cth) with which Ridley was concerned, s 201 of the Act operates by reference to the fact of a criminal conviction. That is, the section presupposes the significance of criminal convictions.
41 First, it seems to me to be clear beyond argument that the administrative decision maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based (Spackman, Daniele, Gungor and SRT).
42 Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT).
43 Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).
As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
44 Fourthly, although a decision maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted (see Saffron per Lockhart J at 592).
45 Fifthly, the above limitations on the matters to which a decision maker under s 200 of the Act is entitled to have regard do not mean that the decision maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
46 I turn to consider the reasons for decision of the Tribunal. In considering the risk of recidivism, as the Policy Direction obliged it to do, the Tribunal properly gave consideration to the respondent's previous convictions.
47 So far as the "road rage" incident is concerned, the Tribunal noted that the respondent had defended the charge and unsuccessfully appealed against his conviction. The Tribunal had access to the transcript of the hearing before the magistrate. The reasons for decision of the Tribunal suggest that it reviewed the transcript for the purpose of determining whether it could make a finding itself as to whether the respondent was rightly convicted by the magistrate, ie for the purpose of assessing the propriety of the conviction. Not only had the magistrate convicted the respondent after a contested hearing, an appeal court had upheld the conviction by the magistrate. In such circumstances, the Tribunal was bound, in my view, to treat the conviction as strong prima facie evidence of the essential facts upon which it was based. The reasons for decision of the Tribunal indicate that it gave no real weight to the fact of the conviction. On the sole basis that the respondent continued to maintain before the Tribunal that he had been wrongly convicted, the Tribunal concluded that he might have been wrongly convicted. In my view, the Tribunal erred in law in concluding that the respondent might have been wrongly convicted and in failing to give significant weight to the fact of the respondent's conviction in respect of the "road rage" incident when considering the matters of fact upon which the conviction was based.
48 The conviction for assault occasioning actual bodily harm which arose out of the fight in the cell at the Bankstown police station is in a somewhat different category from the "road rage" conviction. It did not follow from a contested hearing but was consequent upon a plea of guilty. The respondent gave an explanation for entering a plea of guilty which the Tribunal apparently accepted as credible. The Tribunal had the benefit of hearing the respondent give this evidence and of hearing him cross examined on it. Although the fact of the conviction was a matter to which the Tribunal was obliged to give weight, I am not satisfied that the Tribunal's reasons for decision show that in this instance it failed to do so.
49 Similarly, in my view, no appealable error has been demonstrated with respect to the conviction for stealing a motor vehicle. Again this conviction did not follow a contested hearing. The police alleged, and the respondent did not dispute, that he was the driver of the motor vehicle. Before the Tribunal, the respondent said that he had been a passenger. The Tribunal did not regard the difference as material to the issues which it was required to consider. It was not suggested before me that the difference was material. The matter which the Tribunal considered important was whether the respondent had lied to the Tribunal. Whether the respondent had lied to the Tribunal was a matter for the Tribunal's own determination. It had the advantage of hearing the respondent give evidence, including evidence under cross examination. The weight which logic and public policy requires should be accorded criminal convictions does not lead inexorably to the conclusion that any person who gives evidence inconsistent with a conviction is lying. First, weight is not to be equated with conclusive proof. Moreover, with the passage of time there is room for errors arising from defective memory whether as a result of self delusion or otherwise.