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[2008] WASAT 59
General information, not legal advice.
State Administrative Tribunal (WA)
2008-03-11
Original judgment source is linked above.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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11 In that context, the primary question to be asked by the Tribunal is whether the party seeking the order for the production of a document has a "legitimate forensic purpose" for seeking production: Apache; Stanley v Layne Christensen Company [2004] WASCA 50 at [9].
35 Counsel for the Board refers to the observations of the majority of the High Court of Australia in Forge v Australian Securities and Investments Commission [2006] HCA 44 that emphasise that an important characteristic of a court is its capacity to act independently and impartially in its decision-making and submits the Tribunal satisfies this test.
36 There has been considerable recent consideration of the status of state tribunals and whether or not they may be considered a "court of a State" for the purposes of Chapter III of the Australian Constitution: see for example Commonwealth v Wood [2006] FCA 60; (2006) 148 FCR 276; Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77; Attorney General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349; (2006) 236 ALR 385. The topic has also drawn academic attention: see, for example, G Hill, "State administrative tribunals and the constitutional definition of 'court'" (2006) 13 Australian Journal of Administrative Law 103; D Kerr, "State Tribunals and Chapter III of the Australian Constitution - four cases considered" (2008) 55 AIAL Forum 10.
44 In broad terms, the intent of the CI Act in protecting audiovisual recordings of an interview made in relation to criminal investigation seems to be such that relevant recordings cannot be used other than for criminal investigation and criminal trial purposes. One explanation for this intent is provided in Horsman v Commissioner of Police [2002] WASC 81 by McKechnie J in relation to the now repealed s 70B of the Criminal Code, with provisions replaced in substance by s 120 of the CI Act, when his Honour observed at [10]:
(1998) 19 WAR 350
(2006) 66 NSWLR 77
(2006) 148 FCR 276
(2006) 236 ALR 385
(1986) 6 NSWLR 497