Teoh v Minister for Immigration and Ethnic Affairs

REASONS FOR JUDGMENT BURCHETT J On 11 January 1994, a deportation order was made under the former s 55 of the Migration Act 1958 against the appellant as a non-citizen who had been convicted, on 29 May 1992, of offences (sexual intercourse without consent and the making of a threat to inflict actual bodily harm with intent to have sexual intercourse) for which he had been sentenced to a fixed term of two years imprisonment on the first charge and a concurrent minimum term of three years and three months imprisonment with an additional twelve months on the second charge. The offences were committed on 3 December 1988, when the appellant, a citizen of Tonga then thirty-three years of age, had been present in Australia as a permanent resident for less than ten years. An application was made by Mr Vaitaiki in the Administrative Appeals Tribunal for review of the deportation order. The matter came before a deputy president, who noted in a decision given on 30 September 1994 that the appellant had accumulated "a considerable number of convictions". The other offences were less serious than the two which I have mentioned, but they were not unimportant. Many related to driving when having more than the prescribed content of alcohol in his blood and driving without a licence, it having been suspended for prior offences. He had also been convicted in 1986 and 1987 in relation to serious assaults on his then wife. In 1980, he was sentenced to six months weekend detention and in 1986 to further sentences of nine months and fourteen months of periodic detention. It appears that the appellant's offences were all related to his consumption of alcohol. Although there was evidence placed before the Tribunal, both expert and lay, which does not seem to have been controverted, that by 1991 the appellant had obtained help from Alcoholics Anonymous and the Salvation Army and had given up alcohol, his was plainly a record likely in the normal course, unless some special consideration applied, to result in the making of just such an order as had been made. An obstacle in the way of his receiving full credit for his abandonment of alcohol was the fact that, for much of the time since his reform, he had been in prison, and so removed from the normal pressures and temptations of ordinary life (though not, of course, from all pressure or temptation). In his favour, he did appear to have made some contribution in prison to assisting others. He had undergone a revival of religious faith, and the Tribunal noted that, at least since 1991, the appellant "has not had any alcohol". However, the decision could not simply be made on the basis of the appellant's record, without regard to the effect his deportation would have on others. He had married Pauline Langi, who is an Australian citizen, on 25 August 1981, and three children were born of that marriage, in 1982, 1983 and 1985. There were a number of separations and a final parting in 1986, divorce following in 1988. In 1985, the deputy president wrote, the appellant "began seeing Janette Katoa, a woman who had been born in Tonga but was then (and is now) an Australian citizen". They started living together, and the evidence is that they planned to marry. They have had three children, born in 1987, 1989 and 1992. The deputy president found that both sets of children had maintained contact with the appellant during his period in prison. Their mothers had taken them to visit him, and the older children had conversed with him regularly on the telephone. The evidence which was accepted indicated that he had a good relationship with all of them. An important finding about the three younger children was the following: "If the deportation order is carried out, Ms Katoa said that she would return to Tonga with the 3 children because she believes it is important for them to be near the applicant. She said that it is difficult to obtain a job in Tonga and that educational facilities are probably not as good as they are in Australia but in her view those factors are outweighed by the need of the children to be near their father. If she did return to Tonga, however, she would miss her own family who live in and around Sydney. She and the applicant propose to be married when he is released from prison." Having made this finding, the deputy president went on to discuss evidence "from various chaplains attesting to their faith in the conversion of the applicant from his old ways", and evidence of a consultant psychologist, a Mr Taylor, who considered "the applicant has made very significant steps towards his own rehabilitation with regard to his alcohol abuse and that consequently his potential for recidivism is very low". The deputy president, however, was concerned that there was "a real risk of a lapse" because of the appellant's vulnerability to alcohol. He said: "The risk of a lapse may be small, but the consequences are such that the existence of such a risk is not, in my view, acceptable to the community ... ." He acknowledged the appellant's "strong family ties in Australia", and that it "is relevant to consider any hardship [his children, former wife and de facto wife] may suffer". He then added: "Ms Lange [sic] has stated that she would not allow the children of the marriage to accompany Mr Vaitaiki to Tonga. Although she herself personally would not suffer hardship if the order were carried out, the children would be deprived of the society and guidance of their father. The 3 youngest children and Ms Katoa would return to Tonga [in fact, of course, the three children would not be returning to Tonga, but would be taken there for the first time] if the deportation order were carried out. The 3 younger children would therefore not be deprived of the society and guidance of their father, nor would Ms Katoa be deprived of his company. The only hardship in that event would be the disparity in economic opportunities for all concerned between those available in Tonga and those available in this country." The deputy president concluded in two numbered paragraphs, as follows: "45. Balancing these factors one against the other, I have come to the conclusion that the very serious nature of his crimes, the consequent unacceptability of even a small risk of re-offending and the short length of lawful permanent residence in this country up to the date of commission of his crimes, outweigh the hardship that I have discussed, any hardship referable to the length of his actual residence in Australia and his contribution to the Australian community. 46. The purpose of s 55 deportations is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by the removal of the applicant outweighs the hardship to the person concerned and his family. In the present case, I have concluded that the objects of the deportation policy would be served by the order being carried out and that there are no countervailing reasons, on balance, why it should not be carried out. The decision under review is therefore affirmed." An appeal against this decision was brought to the Court. By consent, the appeal was allowed on 10 May 1995, when Sackville J made an order that the Tribunal's decision be set aside and that the matter be remitted to the Tribunal for reconsideration according to law. That consent order, although of course no reasons were given, was admittedly based on the view that the decision of the Tribunal involved an error of law by virtue of its failure to conform to the requirements laid down by the High Court in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273. In fairness, it should be pointed out that the judgments of the members of the High Court were published after the date of the Tribunal's decision, though similar views had been expressed by a majority of a full court (Lee and Carr JJ) when the matter had come before this court: Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409. In Teoh, the majority of the High Court held, in respect of circumstances not relevantly distinguishable from the present, that if a decision were to be given by an administrator which did not accord with the principle that the best interests of any children concerned were to be a primary consideration, the administrator would first be required to give adequate notice and an opportunity for the presentation of a case against the taking of such a course. This, in the view of Mason CJ and Deane J (at 291-292) was because Australia's ratification of the United Nations Convention on the Rights of the Child created a legitimate expectation, so as to attract the principle of natural justice, that administrators would act in conformity with the Convention, Article 3.1 of which provided: "In all actions concerning children, whether undertaken by ... administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Toohey J put the matter (at 302) as follows: "[I]t is not that decision-makers must give effect to the precept that 'the best interests of the child shall be a primary consideration'. There may be other interests carrying equal weight. Rather, a decision-maker who does not intend to treat the best interests of a child as a primary consideration must give the person affected by the decision an opportunity to argue that the decision-maker should do so." Gaudron J went at least as far (I put it this way because her Honour thought it "arguable that citizenship carries with it a common law right on the part of children and their parents to have a child's best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that child's individual welfare"), but in her view it was not necessary to look to the Convention. Gaudron J said (at 304-305): "What is significant is the status of the children as Australian citizens. Citizenship ... involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognised as the duty of kings, which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society. ... Quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare. Further, they would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker. They would make that assumption or have that expectation because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved, and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be, in need of protection. The significance of the Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilised countries. And if there were any doubt whether that were so, ratification would tend to confirm the significance of the right within our society. Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect. ... ... That being so, procedural fairness required that, if the delegate were considering proceeding on some other basis, she should inform Mr Teoh in that regard and give him an opportunity to persuade her otherwise." (I have omitted a footnote from this quotation.) It is quite apparent that the Tribunal's decision, given as I have said prior to the handing down of the High Court decision in Teoh, was not a valid decision in accordance with the law as established by the High Court. So far as the judgment of Gaudron J is concerned (and the other members of the majority, who founded their decisions upon the Convention and therefore did not need to consider her Honour's approach, expressed no disagreement with it), the Tribunal did not even advert to "the status of the children as Australian citizens", which she regarded as crucial. But, on the findings of fact made by the Tribunal, all of the children were Australian citizens. The three children born to the appellant's marriage to Pauline Langi were all born prior to the commencement on 20 August 1986 of the Australian Citizenship Amendment Act 1986. They were therefore Australian citizens under s 10 of the Australian Citizenship Act 1948, as it then stood, simply by virtue of their birth in Australia. The position is explained in the judgment of O'Loughlin J in Minister for Immigration and Ethnic Affairs v Petrovski (1997) 45 ALD 16 at 23-25. So far as the three younger children are concerned, they were born after s 10 of the Australian Citizenship Act had been amended, but the finding of fact that their mother was by 1985 an Australian citizen means that they are Australian citizens by virtue of s 10(2)(a) of the Australian Citizenship Act as it now stands, as being each a person born in Australia "a parent of [whom] was, at the time of the person's birth, an Australian citizen or a permanent resident". Indeed, even if the finding of fact is erroneous and Ms Katoa obtained citizenship only afterwards, it seems clear she was at least "a permanent resident". For completeness, it may be noted that s 10(2)(d) confers citizenship also on a person born in Australia who has "throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia". But this period, although it has now elapsed in relation to one of the three children of Ms Katoa, had not elapsed at the date of the Tribunal's decision. The fact that the children's citizenship was not mentioned does not necessarily mean that their best interests were not treated as a primary consideration (cf Teoh at 292). But it does mean, when one looks at the context of the reasons, that a most relevant aspect of the children's position received no consideration. And when neither the Convention nor the children's citizenship is mentioned, and after a lengthy discussion of other considerations the situation of the younger three children is dismissed with the almost perfunctory curtness I have quoted, the conclusion must be that their interests were not treated as a primary consideration. It is not suggested that any notice, as required by Teoh, was given by the Tribunal of its intention to deal with the matter in this way. The decision of the Tribunal which was set aside by consent is not, itself, the subject of the present appeal. But it was incorporated by reference in the later decision which is the subject of the appeal; and the way in which it is there referred to makes the validity of its reasoning crucial. Therefore it is necessary to say a little more about it. All that is stated in the reasoning about the younger three children is contained in the passage I have quoted. That passage wrongly says that the three children "would return to Tonga"; and notes the consequence of their actually going (not returning) there as being that they would not be deprived of the society and guidance of their father. It then comments: "The only hardship in that event would be the disparity in economic opportunities for all concerned [ie parents and children] between those available in Tonga and those available in this country." This leaves out of account that the children, as citizens, would be deprived of the country of their own and their mother's citizenship under our law (cf Teoh at 303, per Gaudron J), and of its protection and support, socially, culturally and medically, and in the many other ways evoked by, but not confined to, the broad concept of lifestyle. It ignores the social and linguistic disruption of their childhood, as well as the loss of their homeland. It ignores educational problems, to which reference had been made in the evidence. And it ignores the fact that these young children would not only be transported to a foreign environment, very different from that in which they have grown up thus far, but would also be isolated there from the normal contacts of children with their mother's family, who live in Sydney, and their father's mother and sisters, who also live here. I should make it perfectly clear that none of this is to say that the Tribunal could not have validly reached a decision that the deportation should proceed. I agree with the learned primary judge that it could. But such a decision requires a weighing up of all those factors the Tribunal is bound to take into account, and in this case the interests of the children were a primary consideration. The very fact that the Tribunal spoke of their "return" to Tonga strongly suggests it overlooked that their homeland was Australia. Its reference to "economic opportunities" as their "only hardship" condemns its consideration of their position as totally inadequate. Because it did not see them as being uprooted from their own community, it was able in its final conclusion to speak of "the benefit accruing to the community as a whole by the removal of the applicant" as outweighing "the hardship to the person concerned and his family", as though the community would receive only benefit and would suffer no loss by the removal from its midst of three young Australians at an age when they would be too young to have any choice in the matter. (Cf Chaudhary v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 84 at 86-88.) Having regard to the aspects of the Tribunal's decision of 30 September 1994 to which I have drawn attention, it seems to me that those who advised the Minister to consent to an order setting it aside were right. However, unusually, the appellant's application was not referred back to the Tribunal differently constituted, but to the same deputy president. For reasons which Davies and Foster JJ stated in Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42-43 (in a passage that has been consistently accepted as correct, most recently by another Full Court in Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (Davies, Beaumont and Sackville JJ, unreported, 28 November 1997) at 46), when a decision is set aside and the matter is remitted to be heard and decided again, "justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing". In this case, the application having been remitted, the Tribunal remarked on the absence of reasons for the consent order that had been made. It said: "The respondent simply agreed to the applicant succeeding in the appeal, even to the extent of agreeing to pay the applicant's costs." The Tribunal also commented: "No judge has pointed to any error of law contained in my reasons for decision ... ." It then said: "The present proceedings, although a rehearing following His Honour's order, were confined to exploring the one challenged finding of fact and to areas now said to be relevant following the decision in Teoh. As my original reasons for decision can still be regarded as legally intact, I intend to rely upon them, except where they are modified in these reasons... ." The Tribunal went on to refer to the decision in Teoh as affirming the existence of a legitimate expectation requiring persons affected to be given notice if a decision should be proposed which would not accord with the principle that the best interests of the children were to be a primary consideration. In doing so, the deputy president emphasised, as is of course entirely correct, that the law declared by the decision in Teoh is concerned with procedural fairness; it does not create a substantive rule, applicable irrespective of obligations procedurally imposed. He said: "It is generally conceded in the judgments [ie in Teoh] that the existence of a legitimate expectation that the delegate would act in a particular way did not compel the delegate to act in that way." Having quoted the rule as stated by Mason CJ and Deane J at 291, the deputy president added: "Such procedural fairness as is contemplated by this legitimate expectation has now been afforded to the applicant (and to his children) by this rehearing." That seems to me to be a very revealing comment. The only question of procedural fairness raised by Teoh, whether on the view of Mason CJ, Deane and Toohey JJ, or on the view of Gaudron J, is the requirement to give notice "if a decision-maker proposes to make a decision inconsistent with [the] legitimate expectation" that "the best interests of the children were to be a primary consideration" (as Mason CJ and Deane J put it at 291-292); or the requirement to "meet the respondent's legitimate expectation that [the decision-maker] would give the best interests of the children the consideration required by the Convention or inform the respondent of [the decision-maker's] intention not to do so in order that he might argue against that course" (per Toohey J at 303); or that "procedural fairness required that, if the delegate were considering proceeding on some other basis [than the basis of taking into account as a primary consideration the best interests of the children], she should inform Mr Teoh in that regard and give him an opportunity to persuade her otherwise" (as Gaudron J put the matter at 305). Since the requirement of procedural fairness would only be called into question if the Tribunal proposed not to treat the children's best interests as a primary consideration, and since the Tribunal had emphasised that the High Court "did not compel [it] to act in that way", and it had stated that its "original reasons for decision can still be regarded as legally intact" and that it "intend[ed] to rely upon them, except where they are modified in these reasons", it is very difficult to understand the statement that procedural fairness "has now been afforded" as indicating anything else than an intention to decide the case on the same legal basis as before, although after reconsidering those questions of fact agitated at the second hearing. It is true that, later in the reasons, the deputy president said he proposed "to be guided only by the terms of the judgments in Teoh in determining considerations relevant to the applicant's children"; but those terms, he had pointed out, as I have noted, "conceded ... that the existence of a legitimate expectation that the delegate would act in a particular way did not compel the delegate to act in that way". And in his view, it was only "for procedural purposes" that he was to "deal with [the children's] interests as a primary consideration". That concept is certainly strange, but the deputy president's meaning, in the context of his reasons, is not obscure. As he had said the procedural requirements had been fulfilled, he did not think he had to regard the children's interests as a primary consideration in substance. However, the Tribunal did proceed to give consideration to the facts, and it is necessary to examine its further reasons to see whether, despite its protestations about the validity of its earlier reasons, and the statements to which I have referred, it did in reality take account of the children's best interests as it was required to do by law. In my opinion, it was certainly required to take them into account, at least as very significant matters, for more than one reason. In the first place, as no notice had been given within the meaning of the majority judgments in Teoh, it was required to take the best interests of the children into account as a primary consideration. That requirement and the legitimate expectation from which it sprang were reinforced, in the circumstances of the second hearing before the Tribunal, by the fact that the earlier decision had been set aside, and the matter remitted for determination according to law, on the very basis that the law required, and the parties were agreed, that in the absence of notice to the contrary the best interests of the children must be treated as a primary consideration. There was no foundation for the Tribunal's statement, which misunderstands Teoh, that procedural fairness had been afforded to the applicant merely by the holding of a hearing. In addition, and for reasons explained by Gaudron J, at the least the substantive law required the interests of young children who were Australian citizens to be taken into account as very significant matters. The view should not be entertained that, when Parliament provided for the assertion of community interests under the former s 55, it excluded from those interests the well-being of the community's weakest and most vulnerable members, who are also its future. The Tribunal approached the question, as it related to the children, in its second decision as follows: "14. As I pointed out in my original reasons, the applicant has 6 children. Three of them, aged 13, 12 and 10, are from his marriage to Ms Lange [sic] which has since been dissolved. The other 3 children, aged 7 [actually, on the evidence, he was aged eight at the date of this decision], 6 and 3 respectively, are from his present relationship with Ms Katoa. Evidence was given at the previous hearing, and was repeated at this hearing, that if the deportation order were carried out, Ms Katoa would return to Tonga with the applicant and the 3 youngest children. If the best interests of these 3 children, viewed as a primary consideration, are to be served by a continuing close and daily relationship with their father, then the carrying out of the deportation order will best serve those interests. No other competing interests of these 3 children were demonstrated." The Tribunal then went on to refer to the position of the older children, and to the evidence of the clinical psychologist concerning the attachment of the children to the appellant. The Tribunal stated its general conclusions about the children as follows: "21. The best interests of the 3 youngest children will clearly be served by remaining part of their nuclear family and by moving to Tonga as contemplated. I am prepared to accept that a natural desire exists in the 3 older children to continue to see their father regularly. Apart from this desire, however, there is no stronger interest of theirs to be served by his remaining in Australia. The facts, for example, are quite different from those in Teoh where the mother, because of her addiction to drugs, was incapable of looking after the children. The evidence of Mary [one of these older children] is that she lives a settled, happy existence. I have no reason to doubt, on any of the evidence put before me, that her 2 siblings are similarly situated. Having regard to all the other factors to be considered in this application, I have concluded that the best interests of the 3 older children will be served by remaining with their mother. The other primary considerations were considered in my earlier reasons. These included an assessment of the possibility of the applicant's future relapse into alcoholic addiction. I set out in paragraph 34 of my earlier reasons why I was left with the feeling that there was a real risk of a lapse in certain events. This was the one finding of fact in the previous reasons that was challenged in these proceedings." Consideration was then given to the evidence of Mr Taylor, the clinical psychologist, on the topic of alcoholism, and the conclusion was reached that the "risk of a lapse is still there". The Tribunal referred to the nature of the crime as requiring "an acceptable level of risk of recidivism [that] was much lower" (than with other crimes). Its final conclusions were expressed as follows: "27. Questions of hardship have not changed. No claim has been made that deportation would inflict undue hardship on Ms Lange [sic] or, for that matter, on the applicant. Ms Katoa and her 3 children will accompany the applicant. I have already dealt with the possible hardship that might be suffered by the 3 older children. 28. None of the material put before me on the rehearing has seriously disturbed the balance of considerations which I arrived at on the previous occasion. Considering all these factors one against the other, I then came to the conclusion that the very serious nature of his crime, the consequent unacceptability of even a small risk of reoffending and the short length of lawful permanent residence in this country up to the date of the commission of his crime, outweighed the hardship that I had discussed, any hardship referable to the length of his actual residence in Australia and his contribution to the Australian community. I am still of that view. 29. Accordingly the decision under review is affirmed." It will be observed that, consistently with the deputy president's statement at the beginning of this second set of reasons that no judge had pointed to any error of law in his earlier reasons, which could "still be regarded as legally intact", his final conclusions do not consider whether a different approach to the matters to be taken into account, giving a primary weight to the best interests of the children, would lead to a different result, but whether "the material put before me on the rehearing [ie the further evidence] has seriously disturbed the balance of considerations which I arrived at on the previous occasion". In paragraphs 14 and 21 of the second set of reasons, where he actually referred to the children, he did so in terms that assumed the deportation would be carried out, and that ignored the younger three children's position as Australian citizens, their family and social ties with Australia and the broad disruption to their lifestyle and expectations which was to be brought about. He dismissed all these matters in three sentences: "If the best interests of these 3 children, viewed as a primary consideration, are to be served by a continuing close and daily relationship with their father, then the carrying out of the deportation order will best serve those interests. No other competing interests of these 3 children were demonstrated. ... The best interests of the 3 youngest children will clearly be served by remaining part of their nuclear family and by moving to Tonga as contemplated." It is true that the earlier reasons had referred to the problem of "educational facilities" in Tonga (though not in a manner which acknowledged that problem as a real consideration) and to "the disparity of economic opportunities" (which were there described as the "only hardship" the younger three children would suffer). But the whole point of the setting aside of the earlier decision and the remittal of the matter for further consideration arose out of the position of the children, and the Minister's acceptance of the fact that it had not been dealt with as the law required. That it should have received such perfunctory treatment at a hearing in those circumstances underlines the significance of the deputy president's rejection of any error in his earlier consideration of the matter, his emphasis on the fact that the High Court had "conceded" that he was not compelled to treat the children's best interests as a primary consideration, and his assertion that the required procedural fairness had "now been afforded to the applicant (and to his children) by this rehearing". I am compelled to conclude that, not only were the children's best interests not made a primary consideration; they were not given adequate consideration at all. They were not treated as a factor of great significance in the decision whether the appellant should be deported. That they were not is highlighted by the way, in paragraph 21, when reaching his conclusion, the deputy president treats the question, not as what the best interests of the children require him to decide with respect to the proposed deportation of the appellant, but what each set of children should do, given that their father would be deported. This, of course, was not a matter over which he had any jurisdiction in respect of Australian citizens. Black CJ stated, in Teoh v Minister for Immigration and Ethnic Affairs at 412-413, a proposition the authority of which is unaffected by the decision of the High Court (see also Flentjar v Repatriation Commission (Beaumont, Branson and Merkel JJ, unreported, 10 October 1997) at 5): "The question is ... whether proper consideration was given to the merits of the case in so far as they related to the break-up of the family unit: see Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 per Sheppard J at 12-14, and the unreported decisions of Wilcox J in Brelin v Minister for Immigration and Ethnic Affairs (unreported, 14 May 1987) and Gummow J in Khan v Minister for Immigration and Ethnic Affairs (unreported, 11 December 1987) referred to by Sheppard J in Hindi; Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 418 per Wilcox J at 434-437. The weight to be given to competing considerations is of course a matter for the decision-maker to decide and that should be kept firmly in mind, but whether proper consideration has been given to the merits of a case concerning a matter that the decision-maker was bound to take into account is another question entirely and one that may be examined in a proceeding for judicial review." In my opinion, this proposition applies to the present case. Because the Tribunal failed to give proper consideration to the children's best interests, the appeal should be upheld; the decision should be set aside; and the matter should be remitted for hearing according to law by the Tribunal differently constituted. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.