2. That any fax or phone number of "Ms C" appearing in Document 1 be deleted.

3. That the said envelope in addition bear the following notation.

"I counsel for Zhi Jian Fan and I the solicitor instructing counsel hereby undertake not to disclose the contents of the enclosed documents, without the leave of the Tribunal to any person other than Zhi Jian Fan and then only for the purpose of obtaining specific instructions relevant to these proceedings."

4. That upon appointment with my Associate and at any time after 4.00 pm on Wednesday 6 December 2000 and upon signing the notation referred to in Order 2 above, the counsel and instructing solicitors (other than Mr Israeli) be at liberty to inspect the documents contained in the aforesaid envelope at the premises of the Tribunal.

__________________________

For the Respondent: Mr R Bardsley (Solicitor) Victorian Government Solicitor

1. On 18 April 2000 the applicant Zhi Jian Fan ("Fan") filed an application to review a decision of the Business Licensing Authority ("BLA"). The decision under review is a decision of the BLA dated 24 March 2000 to refuse to grant Fan a Prostitution Servers Providers licence under the Prostitution Control Act 1994.

2. At a directions hearing conducted on 29 May 2000 Mr Baker-Smith, a Deputy President of the Tribunal, ordered (inter alia) that the BLA was to file and serve copies of each document which it proposes to place in evidence by 5 June 2000.

3. On 13 June 2000 the Attorney-General for the State of Victoria signed a certificate pursuant to s.54(1) of the Victorian Civil and Administrative Tribunal Act ("the Act"). By this certificate the Attorney-General certified that the disclosure of documents described in a schedule attached to the certificate would be contrary to the public interest.

4. The reasons given by the Attorney-General that the disclosure of such documents would be contrary to the public interest are as follows:

"(i) Disclosure would reveal the identity of a confidential informant who makes serious allegations against the applicant and others.

(ii) Disclosure may prejudice the investigation of alleged serious criminal activity."

5. Upon the above certificate having been provided to me shortly after being signed, I ordered that a directions hearing be set down so that the parties could make submissions to me in respect of the appropriate course to be followed in the conduct of the proceedings.

6. Each party provided written submissions which were supplemented by oral argument before me on 18 September 2000. I express my appreciation for the assistance of the written submissions in the circumstances of this proceeding.

7. Section 54 of the Act appears in subdivision (3) of the Act which bears the heading "Matters of Privilege and Policy". It is as follows:

(1) The Attorney-General may certify in writing that the disclosure of information about a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest for a reason specified in the certificate that could form the basis for a claim by the State in a proceeding in the Supreme Court that the information or matter should not be disclosed.

(a) subject to sub-section (3), information or a document to which a certificate under sub-section (1) applies that is lodged with or produced or given to the Tribunal in a proceeding for review of a decision is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding in which it was lodged, produced or given; and

(b) a document to which a certificate under sub-section (1) applies that is lodged with or produced or given to the Tribunal in a proceeding for review of a decision is returned to the person by whom it was lodged, produced or given when no longer required by the Tribunal.

(3) The Tribunal, with the consent of the President, may allow a party, or a representative of a party, to have access to, or inspect, information or a document to which a certificate under sub-section (1) applies, on any conditions the Tribunal thinks fit."

"55. Certain questions not required to be answered

(1) Subject to this section, a person is not required to answer a question put to him or her in the course of giving evidence before the Tribunal in a proceeding for review of a decision if to do so would involve the disclosure of any information or matter to which a certificate under section 53 (Premier's certificate) or 54 (Attorney-General's certificate) applies.

(2) The Tribunal may order that a person answer a question that would involve the disclosure of any information or matter to which a certificate under section 54 (Attorney-General's certificate) applies if the Tribunal considers it would not be contrary to the public interest for the person to answer the question.

(3) The Tribunal's power to make an order under sub-section (2) is exercisable only by the President.

(4) For the purposes of this Act, the question whether or not the answering of the question would be contrary to public interest is a question of law."

The Act also excludes the general rules of law relating to public interest by s.56 which is as follows:

"56. Exclusion of general rules of public interest

Except to the extent set out in this Act, the rules of law relating to the public interest in relation to the disclosure of information or of matter contained in a document in legal proceedings are excluded in any proceeding for review."

8. Mr Rosenberg of counsel who appeared on behalf of Fan contends that the scheme of the Act is such that the certificate of the Attorney-General cannot be considered to be conclusive, but rather that the issue of whether the immunity from disclosure of the contents of the documents is properly claimed is a matter for the Tribunal. Mr Rosenberg argues in particular that if the certificate of the Attorney-General was intended by s.54 to be conclusive then the Act would have expressly provided for such conclusivity. He submits further that, the certificate is defective in that it does not identify the "specified matter" about which disclosure would be contrary to the public interest. Furthermore, he submits that the manner in which the claim for immunity has been made is unfair. He notes that no appearance has been made for or on behalf of the Attorney-General and that it is inappropriate for the respondent, the BLA, to be relying upon the certificate. He submits that the BLA has an obligation pursuant to s.49(5) of the Act to lodge its statement and materials despite any rule of law relating to public interest and that the statement lodged with the BLA did not comply with s.49 of the Act in that it did and does not include the documents for which immunity is claimed.

9. The BLA through its solicitor, Mr Bardsley, contends that the Certificate of the Attorney-General is conclusive and that where the Attorney-General has certified in accordance with s.54(1) of the Act the Tribunal must comply with the regime set out in s.54(2), subject to the provisions of s.54(3).

Is the Certificate signed by the Attorney-General Conclusive?

10. Whilst it is true, as Mr Rosenberg submits that there has been considerable judicial disfavour of the use of certificates by the executive government at common law (see McNicoll Law of Privilege, Law Book Company 1992 pp 377-382) and whilst it is true that there is legislative precedent in Australia providing for conclusivity of certificates (see Evidence Act 1980 Northern Territory s.42D) it must be remembered that this Tribunal is a creature of statute only. It has no inherent power. Accordingly the question of whether public interest immunity applies in this Tribunal falls to be determined by reference to the legislative provisions which define the Tribunal's power. It appears to me that the application of the public interest immunity doctrine to proceedings in the Tribunal is placed beyond doubt by the inclusion of s.54 of the Act. Section 54 of the Act establishes a statutory process to permit the Attorney-General to certify in writing that the disclosure of information about a specified matter would be contrary to the public interest.

11. The issue before the Tribunal is whether such a certificate is conclusive of the claim made by the Attorney-General that disclosure of the documents in question would be contrary to public policy, or whether the Tribunal, like a superior court, must form its own view as to the issue. It appears to me to be clear that the intention of the legislature is that certification by the Attorney-General pursuant to subsection (1) of s.54 requires the Tribunal to follow the course set out in subsection (2). The existence of a written certificate as specified in s.54(1) by the Attorney-General is a pre-condition for the operation of s.54(2).

12. It should be remembered that this Tribunal has 38 full-time members and 147 sessional members, who include persons who have a wide range of expertise in disciplines other than law. The composition of its membership is quite different from a court. In my view, this is one reason why the legislature may have considered it appropriate for the certificate of the Attorney-General, subject to establishing that the "reason specified" for a claim of Crown privilege "could form the basis for a claim by the State in the Supreme Court" should be conclusive as to whether or not the relevant information should be disclosed.

13. In my opinion, the fact that the President of the Tribunal who must, under the Act, be a Judge of the Supreme Court, has a broad discretion pursuant to s.54(3) of the Act to consent to the Tribunal granting access to the documents is further support for the intention of the legislature being that the certificate (subject to establishing that the claim made in it could form the basis for a claim by the State in the Supreme Court) should be conclusive.

14. As stated above, it appears to me that the intention of the legislation is that the existence of a written certificate as specified by s.54(1) is a pre-condition for the operation of s.54(2). In my opinion s.54(2) is cast in mandatory terms. Whilst it is true that the use of the word "must" rather than the word "shall" creates an issue of ambiguity, (see s.45 Interpretation of Legislation Act (1984) and Pearce & Geddes - Statutory Interpretation in Australia) I am satisfied on balance that in the context of the Act it is intended to be mandatory, subject only to the power of the President set out in s.54(2).

15. In Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; 74 CLR 461, 490, Williams J held in the context of s.56 of the Justices Act 1902-3 (WA) that the word "must" as it appeared there "is a word of absolute obligation."

16. It seems to me that the words "The Tribunal must ensure" in s.54(2) impose upon the Tribunal an obligation which cannot be regarded as directive only. The appropriate meaning of "must" in the Shorter Oxford English Dictionary is: "expressing necessity; am (is, are) obliged or required to; have (has) to; it is necessary that (I, you, we, it, etc) should." Maxwell on Interpretation of Statutes, 12th Ed (1969) at p.324 states "In ordinary usage, "may" is permissible and "must" is imperative."

17. In the circumstances, and notwithstanding the fact that at common law there is high authority for the conclusion that it is for a court rather than the executive to determine whether or not public interest immunity has been established, (see Sankey v Whitlam (1978) 53 ALJR 11) the provisions of s.54 are such that a certificate which complies with the section will be conclusive in this Tribunal as to whether or not the documents or information may be disclosed.

18. As stated above, Mr Rosenberg submits that the certificate which has been signed by the Attorney-General in this case does not comply with s.54. In my opinion, the certificate which has been signed by the Attorney-General in this case does comply with the provisions of the Act. The Attorney-General has certified that the disclosure of the matters contained in a set of documents described in an attached schedule would be contrary to the public interest for two reasons. It is conceded by Mr Rosenberg that the two reasons which are specified in the certificate may be sufficient to support a claim for public interest immunity by the State in a proceeding in the Supreme Court. S.54(1) requires that the following steps be undertaken. First, certification must be in writing and secondly, the certificate must specify a matter, the disclosure of which would be contrary to public policy. Thirdly the reason why the disclosure would be contrary to public policy must be specified. Fourthly, the reason specified for why the disclosure would be contrary to public policy must be a reason which "could form the basis for a claim by the State in a proceeding in the Supreme Court" that the information should not be disclosed.

19. Although the fourth step referred to above is not free from difficulty in its interpretation, I conclude that the intention of Parliament was that the reason specified must accord with one of the recognised grounds upon which a claim for Crown Privilege on grounds of public policy might be made. In the circumstances I am satisfied that the certificate complies with the Act.

The discretion of the President to consent to allow a party access to information the subject of a certificate

20. It is beyond argument that s.54(3) of the Act grants a discretion to the Tribunal, subject to the consent of the President, to disclose, on any conditions appropriate, the information the subject of a certificate, to a party or a representative of a party.

21. The parties in this proceeding have each made submissions in respect of the issue of the proper exercise of such discretion. The BLA submits that the discretion is subject to certain limitations and that there is an onus on the applicant to establish the exercise of the discretion in his favour. Mr Rosenberg, on the other hand, contends that the discretion is not limited and that the proper exercise of the discretion does not depend upon the establishment of a legal burden.

22. In my opinion, the discretion is a broad discretion which balances the conclusive nature of the certificate with the rights of the parties in the proceedings in question. The balance in my view is that discussed by Gibbs CJ in Alister v R [1984] HCA 85; 50 ALR 41 at 44 when he said:

"...the Court is required to consider two conflicting aspects of public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated, or impaired if the documents were withheld, and to decide which of those aspects predominates."

23. It appears to me to be clear, by inference, that the documents or the information, the subject of the certificate should be produced, at least to the President of the Tribunal for the purpose of ascertaining whether the discretion should be exercised. Although production of the documents may not make the balancing exercise any easier, it in my view establishes that such balancing exercise is predicated by s.54(3).

Should the discretion be exercised in the circumstances of this case?

24. The first step is to establish the nature of the documents for which Crown Privilege is certified.

25. The documents are specified in the schedule to the certificate in the following form:

"1. Fax by confidential informant to Authority attaching documents including Victoria Police statement (11 pages).

2. Letter from Authority to Victoria Police (4 pages).

3. Fax from Victoria Police to Authority attaching report (x2), (5 pages).

4. Letter from Victoria Police to Chairperson, Business Licensing Authority (2 pages).

5. File note recording discussion with Victoria Police (1 page).

6. Phone message re phone call from Victoria Police (1 page).

7. Fax cover sheet with message from Victoria Police to Business Licensing Authority (1 page).

8. Letter from Business Licensing Authority to Victoria Police (2 pages)."

For the purposes of these reasons I will refer to the documents in question by the numbers referred to above.

26. I have examined the documents in question. However, before turning to the documents set out in the schedule it is appropriate for me to set out something of the background to this proceeding which can be gleaned from a reading of the documents which have been filed by both parties.

27. The applicant Fan has filed a witness statement dated 30 August 2000. In that witness statement (see para. 5) Fan referred to a relationship which he had had with a person whom I shall call in these reasons "Ms C". He said that he had received a letter from the BLA dated 17 February 2000 which referred to allegations made against him by Ms C to the former Gaming and Vice Squad of the Victoria Police. In his statement he said that the allegations made against him are untrue. He stated that Ms C was deported from Australia and that she blames him for her deportation. He stated that he had spoken to Ms C and she told him that she had made statements to the police to hurt him because he Fan, refused to leave his wife to maintain a relationship with Ms C. In the witness statement Fan also stated that he had been advised by the BLA that Ms C had "subsequently withdrawn" the allegations she made against him (Fan) but that the Authority was in "possession of information which suggests her allegations were withdrawn under duress." By Annexure 7 to his witness statement Fan annexed a statement addressed to Victoria Police and signed by Ms C whereby she withdrew any allegations made against Fan. Fan has in his possession a copy of a statement made by Ms C to police on the 29th day of June 1999. It was tendered before me in the course of submissions and was marked Exhibit "F1".

28. Fan's solicitor, Mr Israeli, has also filed a witness statement dated 5 September 2000. In paragraphs 17 to 33 of his statement, Mr Israeli set out details of his dealings with Ms C. He asserts that on 1 July 1999, Fan attended at his reception with a woman who was in "a hysterical state and loudly weeping." This person was Ms C. She informed Mr Israeli that she had been to police and made statements to them in relation to Fan and his affairs. He asserts that she told him that she had lied to police about Fan and that she wanted to withdraw what she had said. He suggested that Ms C attend upon an independent solicitor and make a statement withdrawing the allegations made at the interview with police on 29 June 1999. Later that day Mr Israeli was provided with a statement prepared by such solicitors, Messrs Lai & Hamilton which purported to be signed by Ms C and which withdrew all allegations against Fan.

29. In addition to the above matters the section 49 statements filed by the BLA refer to Ms C in some detail. Document No 55 refers to a file note dated 22 September 1999 prepared by an officer of the Authority after a discussion with Ms C. Another file note made by an officer of the Authority after a discussion with Ms C appears as Document No. 54. A statement made by Ms C to Victoria Police on 25 June 1999 appears as part of Document 55. A letter from the Authority to Victoria Police dated 10 December 1999 referring to allegations made by Ms C about Mr Fan appears as Document 60. File notes of discussions between representatives of the Authority and police about the withdrawal of allegations by Ms C appear as Documents 64 and 65. I have read each of the documents referred to above in consideration of whether any access should be provided to Fan or to his representatives to information the subject of the Attorney-General's certificate.

30. I set out the above details of factual material known to the parties because it is, in my view, a relevant consideration in the exercise of my discretion to provide access to documents which are the subject of a s.54 certificate. The relevance is that if the claim to immunity is based upon the need to maintain the confidentiality of sensitive material, the fact that the material, or much of it, is already in the possession of a party cannot be ignored. It is inappropriate at this stage to say more than that it is clear to me that some part of what is sought to be maintained as confidential is already within the knowledge of Fan or his advisers. That is of course not to say that such material should be released publicly, but it is relevant to the issue of disclosure to Fan's legal advisers.

31. Having considered the documents in question in the light of the other evidence which is to be led before the Tribunal, I have formed the following conclusions.

1. That subject to appropriate undertakings counsel and instructing solicitor (other than Mr Israeli) acting for Fan should be entitled to have access to and read such part of Document No. 1 as does not contain fax and phone numbers of Ms C.

2. Likewise Document No. 2 should be provided to the same counsel and the instructing solicitor acting for Fan.

3. Document No. 3 refers to investigations and enquiries which are not relevant to the application presently before the Tribunal and the balance weighs in favour of non-disclosure.

4. Document No. 4 falls into the same category as Document No. 3 and I am satisfied that the balance falls heavily in favour of the public interest as against disclosure.

5. Document No. 5 is a document of no relevance to the proceedings before the Tribunal and should not be disclosed.

6. Document No. 6 is a matter of no relevance to the proceedings before the Tribunal and should not be disclosed.

7. Document No. 7 is a matter of no relevance to the proceedings before the Tribunal and should not be disclosed

8. Document No. 8 refers to a number of matters under consideration by the Authority other than that of Mr Fan's. It has no evidentiary value in relation to Mr Fan's application and is thus irrelevant and by reason of the public interest issues in relation to other enquiries should not be released.

32. The issue of whether the hearing of this matter should be held in public or whether an order be made pursuant to s.101 of the Act that the hearing be in private was raised in the course of the submissions in this matter before me. In my view the material presently before the Tribunal is sufficient to establish that the evidence to be given in this proceeding may prejudice the administration of justice and that it will be appropriate for at least part of the hearing to be conducted in private. I will hear further submission from counsel as to whether the whole of the hearing should be conducted in private pursuant to s.101.

33. A further matter which was raised in the course of the submissions relating to the Attorney-General's certificate was the question of whether the Tribunal could proceed to hear evidence relevant to this application in the absence of Mr Fan. I expressed some doubt as to whether or not this procedure was permissible under the Act in the course of the hearing of the submissions. The BLA placed reliance upon a decision of Brennan J (as he then was), the then President of the Administrative Appeals Tribunal (C'wealth) in Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482. It should be noted that s.35(2) of the Administrative Appeals Tribunal Act (C'wealth) conferred power upon the AAT to "direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present."

34. Section 101 of the VCAT Act empowers this Tribunal to direct that a hearing "be held in private." Brennan J concluded at p.507 that s.35(2) of the Administrative Appeals Tribunal Act (C'wealth) conferred power upon the Tribunal to exclude the public and an applicant from a hearing in which evidence is to be given against him. He said further at p.508:

"Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him - a denial which in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal."

35. I note that s.102 of the VCAT Act states that the Tribunal must allow a party a reasonable opportunity to examine, cross-examine or re-examine witnesses. In the end result I have not considered it necessary in the present circumstances to decide whether VCAT has the statutory power to exclude a party from a hearing. However, if s.101 of the Act does grant such power it is clear in my view that such power must be exercised sparingly and with great caution. I am far from satisfied as presently advised, and on the material which is presently before me, that such a course, if open, would be justified in the circumstances of the present case.