CONSIDERATION
136 A jurisdictional error will occur because there has been a failure to discharge 'imperative duties or to observe inviolable limitations or restraints' (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
137 Here, s 433(1A) expressly preserves the right of a person to refuse or fail to answer a question which the tribunal requires to be answered if he or she has a reasonable excuse. Such an excuse would exist, inter alia, because the answer might either reveal matter that is the subject of a proper claim for legal professional privilege or a proper claim against self incrimination. It follows that the Act recognises a limitation on the power of the tribunal to require the question to be answered. The first issue is whether the important common law immunity of a person from being compellable, by the exercise of executive or judicial power, to reveal what is protected by legal professional privilege, as recognised in s 433(1A), is an inviolable limitation or restraint or imposes an imperative duty on the exercise of jurisdiction by the tribunal.
138 One of the purposes of legal professional privilege was described by Deane J in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 133 as playing an essential role in protecting and preserving the rights, dignity and freedom of the ordinary citizen, particularly the weak, the unintelligent and the illinformed, under the law (see too per McHugh J at 161; see also Baker v Campbell (1983) 153 CLR 52 at 89 per Murphy J, 94-95 per Wilson J, 116-117 per Deane J and 131 per Dawson J). Dawson J said (Baker 153 CLR at 131):
'It is clear to my mind that the power to compel the disclosure in an administrative inquiry of professional confidences is as likely to destroy the freedom of communication, which the law seeks to protect, between legal adviser and client as effectively as would compulsory disclosure of those confidences in judicial proceedings.'
139 The privilege against self-incrimination operates a little differently to legal professional privilege. In Sorby v The Commonwealth (1983) 152 CLR 281 at 289 Gibbs CJ said that the mere fact that a witness swore that he believed that the answer would incriminate him was not sufficient to entitle a party called as a witness to the privilege of silence. The court had to see from the circumstances of the case and the nature of the evidence which the witness was called to give that there was a reasonable ground to apprehend danger to the witness from being compelled to answer (see too per Mason, Wilson and Dawson JJ at 308-309 and Brennan J at 320-321; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 338-341 per Mason ACJ, Wilson and Dawson JJ, 352-353 per Brennan J; R v Kempley [1944] ALR 249; (1944) 18 ALJ 118). Mason ACJ, Wilson and Dawson JJ said that it was difficult to suppose the determination as to whether a claim for privilege against self-incrimination was correctly made would be left to an unqualified person (Pyneboard 152 CLR at 340).
140 A claim for legal professional privilege is established differently to a claim for privilege against self-incrimination, as Gibbs CJ's explanation shows. In general, a question asking for disclosure of material which is legally professionally privileged is on its face objectionable and does not need the witness to demonstrate or justify that the consequence of an answer may be to reveal the privilege.
141 In Baker v Campbell (1983) 153 CLR 52 at 89-90 per Murphy J, 97 per Wilson J, 118 per Deane J and 123, 131-132 per Dawson J, the majority held that the statutory power to issue a search warrant under s 10 of the Crimes Act 1914 (Cth) should be construed in a way which did not authorise the seizure of documents to which legal professional privilege attached and the claim for privilege was maintained. As Deane J put it (Baker 153 CLR at 118), the statute should be construed so that the search warrant it authorised '… be read as not referring to documents to which legal professional privilege attaches'. And Dawson J (with whose reasons Wilson J expressly concurred at 153 CLR at 97) said that:
'… the power of search and seizure which the section confers in general terms does not extend to documents to which legal professional privilege attaches.' (Baker 153 CLR at 123)
Murphy J, the other member of the majority, said (153 CLR at 89):
'The individual should be able to seek and obtain legal advice and legal assistance for innocent purposes, without the fear that what has been prepared solely for that advice or assistance may be searched or seized under warrant.'
142 Each justice referred to the then recent decision of the Supreme Court of Canada in Descôteaux v Mierzwinski [1982] 1 SCR 860. Lamer J delivered the judgment of the Court, saying of a materially similar situation under a Canadian statute ([1982] 1 SCR at 893):
'Thus, the justice of the peace has no jurisdiction to order the seizure of documents that would not be admissible in evidence in court on the ground that they are privileged (the rule of evidence). Before authorizing a search of a lawyer's office for evidence of a crime, the justice of the peace should refuse to issue the warrant unless he is satisfied that there is no reasonable alternative to the search, or he will be exceeding his jurisdiction (the substantive rule). When issuing the warrant, to search for evidence or other things, he must in any event attach terms of execution to the warrant designed to protect the right to confidentiality of the lawyer's clients as much as possible.'
143 The substantive rule laid down in Descôteaux [1982] 1 SCR 860 was described in Ministry of Correctional Services v Goodis [2006] 2 SCR 32 at [15] by Rothstein J delivering the judgment of the Court as being one in which a judge must not interfere with the confidentiality of communications between solicitor and client except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
144 In Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 537 Gaudron J said that Baker 153 CLR 52 held that s 10 of the Crimes Act 1914 (Cth) did not authorise seizure of documents to which legal professional privilege attached. But Gummow J said that Baker 153 CLR 52 did not decide that the warrant was, to any degree, invalid (Propend 188 CLR at 567).
145 The appellant argued that the tribunal's power to question applicants for review was constrained by considerations similar to those which the Courts have applied to limit the exercise of statutory powers to issue search warrants in cases where the warrant seeks material for which a valid claim for legal professional privilege could be made.
146 In Arno v Forsyth (1986) 9 FCR 576, Fox J said that a justice of the peace asked to issue a search warrant under s 10 of the Crimes Act 1914 (Cth), in its then form, would not '… knowingly issue a warrant if it were plain on the material submitted [to the justice] that the things sought were the subject of legal professional privilege' (Arno 9 FCR at 579). Lockhart J said that it would be contrary to the reasoning of the majority in Baker 153 CLR 52 for this Court to hold that it is only at the stage of execution of the search warrant that questions of legal professional privilege require consideration (Arno 9 FCR at 587). He pointed out that the actual question answered by the Court in Baker 153 CLR at 133 was:
'Question: In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm can those documents be properly made the subject of a search warrant issued under s 10 of the Crimes Act?
Answer: No.'
147 Lockhart J said that s 10 of the Crimes Act 1914 (Cth) had to be considered as excluding from the 'things' which it authorised to be inspected or seized, documents whose confidentiality would be protected in the courts by the doctrine of legal professional privilege. He said that:
'A qualitative bar is attached to documents covered by that privilege falling within the scope of s 10. The protection afforded by the common law rule of immunity recognised in Baker v Campbell would be set at nought or at least seriously eroded if justices were able to pay no regard to the question of legal professional privilege and leave it to be determined solely in connection with the later processes of search and seizure. The proposition that the warrant should issue without any consideration being given by the justice of the peace to the question of professional privilege and that the privilege question should only be dealt with later by litigation or otherwise is untenable.' (Arno 9 FCR at 587-588)
148 Jackson J also referred to the form of the question answered by the High Court in Baker 153 CLR at 133. He suggested that by using the words 'and is maintained' in relation to the privilege, the Court was dealing only with the position at the time of the attempted seizure and not at the time of the grant of the warrant (Arno 9 FCR at 597). He did not think that the lawfulness of the grant of a warrant was to be determined simply by the fact that the description of a document in the warrant would normally indicate that legal professional privilege attached to it. Rather, Jackson J considered that circumstances outside the warrant itself were relevant to this question, including whether there was any suggestion that the document had lost its status of being subject to legal professional privilege. He indicated that if there were no issue that legal professional privilege continued to attach to the document where its grant was sought, the warrant would be bad if issued (Arno 9 FCR at 597). Jackson J referred to what Beaumont J had held in Brewer v Castles (No 3) (1984) 52 ALR 577 at 583 that a justice had no power to include in a search warrant a class of documents described as 'opinions of counsel' where there was no suggestion in the material that legal professional privilege in that class had been lost.
149 In Heydon JD, Cross on Evidence (7th Aust ed., Butterworths, 2004) at [25250] the learned Australian editor (Heydon J) observed that what Lockhart J had said was doubtless prudent but it was not always clear that questions of privilege would arise because it was possible that the client would waive the privilege. The learned author continued that it would only be an extraordinary case, amounting to an abuse of power, which would justify the treating of a warrant as a nullity for failure of the issuing justice to have regard to the possibility of privilege. But he continued that in any case where no qualification was made, there was an implicit limit on the power of seizure.
150 Here, the tribunal's questions sought the revelation of the subject matter of discussions between the appellant client and his solicitor in relation to legal advice. Of course, it was possible that what was discussed may not have been capable of being the subject of a claim for legal professional privilege. But the only apparent relevance or purpose of the questioning, set out above, was to elicit what had been said between the appellant and the solicitor about the appellant's claim or basis for a claim for a visa. Thus, the tribunal was using its powers to seek from the appellant what was legally professionally privileged.
151 In Coco v The Queen (1994) 179 CLR 427 at 437-438 Mason CJ, Brennan, Gaudron and McHugh JJ held that the Courts should not impute to the legislature an intention to interfere with fundamental rights unless the Parliament makes that intention unmistakably clear. They said that such an intention could be revealed by implication. There is a clear and unmistakable intention that a witness before the tribunal, including an applicant for review, may have a reasonable excuse for failing or refusing to answer a question which is afforded protection in s 433(1A). The tribunal's powers under the Act to ask questions and take evidence do not authorise it to override the common law immunity of legal professional privilege or the common law right to refuse to answer questions that might tend to incriminate the person giving the answers.
152 Here, the question for decision is whether the tribunal was authorised by the Act to ask the question 'What did you talk to him about?' and the subsequent questions exploring the conversation between the appellant and his lawyer. In Clough v Leahy (1904) 2 CLR 139 at 156, Griffith CJ (Barton and O'Connor JJ concurring) said:
'Nor can the Crown enforce the answering of a question by an individual, unless some law confers the authority to do so.'
153 Griffith CJ also said that the liberty of another can only be interfered with according to law, but subject to that limitation every person, including the Crown, can make any inquiry he or she chooses (Clough 2 CLR at 157). And he continued:
'It is not unlawful for me to make the most impertinent inquiry into my neighbour's affairs. It is very undesirable, but it is not unlawful.'
154 He pointed out that there was a difference between a lawful requirement that a witness give evidence to a Royal Commission where the witness had no reasonable excuse to refuse to be sworn and, if having been sworn, the witness had refused without reasonable excuse to answer questions put to him (Clough 2 CLR at 162-163).
155 The search warrant cases show that an unreasonable use of a statutory power to search for and seize material to which legal professional privilege attaches may be outside the statutory authorisation. So, in JMA Accounting Pty Ltd v Commissioner of Taxation (2004) 139 FCR 537 at 544 [27] Spender, Madgwick and Finkelstein JJ said that the exercise of the power of the Commissioner of Taxation to authorise a search and seizure of documents under s 263 of the Income Tax Assessment Act 1936 (Cth) was impressed with an obligation on the officers conducting the search to do so 'in a reasonable fashion'. They said that whether or not the officers were acting reasonably depended upon the circumstances of the case, and followed a decision of the English Court of Appeal in Reynolds v Commissioner of Police of the Metropolis [1985] QB 881 in which their Lordships identified the question of the reasonableness with which the power granted by statute was exercised (see eg per Waller LJ at 889, Slade LJ at 895-896 and Purchase LJ at 902-903).
156 In JMA Accounting 139 FCR at 542-543 [16] the Court said that the cases established three board propositions concerning the conduct of a search and seizure under a statutory power. First, the person exercising the power to search and seize is only entitled to seize those documents which he or she is authorised to seize by the relevant power. Secondly, the search and seizure must be reasonably carried out, and thirdly, the repository of the power must do no more than is reasonably necessary to satisfy himself or herself that he or she has the documents which he or she is entitled to seize. They approved what Doyle CJ had said in Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, saying (139 FCR at 542 [12]):
'[12] Doyle CJ said (at 296) that a statutory power to search and seize which is "expressed in general terms" only authorises a search or seizure that "is reasonable in all of the circumstances". This would require a reasonable opportunity for legal professional privilege to be claimed. He went on to say at 297:
"... there is no principle that powers under a general search warrant are exercised unlawfully and ineffectively merely because they are not exercised reasonably."
and:
"... such a principle cannot be used to support a conclusion that failure to allow a reasonable opportunity for legal professional privilege to be claimed means that the power is exercised invalidly."
That is, the condition imposed on the person exercising the statutory power to enable legal professional privilege to be claimed is a condition which relates to the manner in which the search and seizure is conducted. This is the only aspect of the search and seizure which is subject to the limitation. We agree with this view.'
157 The Full Court recognised that the purpose of legal professional privilege was to keep secret communications between a lawyer and his or her client (139 FCR at 542 [13]). The Minister's case founders at the first proposition, namely that the tribunal had no authority, in the circumstances, to probe into the appellant's communications with his solicitor. No occasion to exercise any power to ask such questions had arisen. It is not necessary to go to the second or third propositions as to the exercise of any power to inquire.
158 It is well established that proceedings in the tribunal are inquisitorial in their general nature (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at 601 [40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). But its power to inquire is constrained by the purpose of its function of review (s 414) and the principle that it exercise that power in a reasonable way. Legal professional privilege is an important common law right which applies to proceedings in the tribunal, as s 433(1A) recognises. An impertinent inquiry by the tribunal seeking the disclosure of a communication to which legal professional privilege attaches is not authorised by the Act and is, thus, unlawful. In the context in which the tribunal was questioning the appellant, it is understandable that its curiosity was engaged when he told it about some issues he had not discussed with his solicitor.
159 The existence of s 433(1A) recognises that the tribunal may ask a question which it is not entitled to require be answered. Thus, s 433(1A) itself does not make the asking of the question unlawful, but excepts the witness from the ordinary consequence of a refusal or failure to answer. But, just as a statutory power to issue a search warrant does not permit the warrant to be issued where it seeks what is undoubtedly privileged, so here, the power of the tribunal conferred by the Act did not extend to asking the appellant to disclose what he talked to his solicitor about concerning his application for a visa.
160 If this be wrong, I am of opinion that the tribunal did not proceed in a reasonable fashion in its questioning. This is because it did not take any step to advise the appellant to the effect that s 433(1A) entitled him to refuse to answer or to otherwise maintain his privilege. Curiosity in a tribunal member about the content of communications protected by legal professional privilege does not provide a reasonable basis for asking about that subject matter, anymore than in the analogous position of a justice who is asked to issue a search warrant for counsel's opinions when there is no reason to question that they are privileged (Brewer 52 ALR at 583).
161 The Minister did not advance any argument which justified the use of any power of the tribunal in the circumstances to ask the series of questions which sought and obtained revelation of the appellant's legally professionally privileged discussions with his solicitor. This is not a case where there was a suggestion that the privilege would not be capable properly of being claimed. I am of opinion that there was an inviolable limitation or restraint on the tribunal's power to ask questions in its inquisition, so that here, by doing what it did, it committed a jurisdictional error: Plaintiff S157 211 CLR at 506 [76].
162 Apart from understandable human curiosity in the tribunal in the present case, there was no basis for asking the questions of the appellant except to discover what was privileged. The statute did not authorise the inquiry in express terms.
163 By exceeding its powers in asking and pursuing questions to elicit the content of the appellant's conversation with his solicitor which was the subject of legal professional privilege, the tribunal committed a jurisdictional error. It failed to give the appellant a hearing according to law (cf: Coco (1994) 179 CLR 427; Ousley v The Queen (1997) 192 CLR 69 at 101 where McHugh J said that the issue of the warrant in the former case was a jurisdictional error; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 183-185 [79]-[84] per McHugh J, 203 [174] per Kirby J, 212 [211] per Hayne J; SZBEL 231 ALR at 598 [25]).