Australia: Informants and procedural fairness: the High Court´s decision in VEAL

The provision of confidential information to administrative decision-makers gives rise to competing interests. On the one hand, the proper and effective administration of legislation requires that informants not be discouraged from providing information that is relevant to decision-making under the legislation. On the other hand, the non-disclosure of allegations to the person to be affected by the decision denies that person the opportunity to challenge or respond to the allegations. The High Court's decision in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 addressed the approach that a decision-maker should take when receiving confidential information.

The appellant's application for a protection visa had been rejected. Following an application for review to the Refugee Review Tribunal, but before any decision by that Tribunal, the Department of Immigration and Multicultural and Indigenous Affairs received a letter setting out allegations that the appellant had killed a political figure in his country of origin and was a supporter of, and working for, the government in that country. The Department was asked to keep the information secret. In conducting its review, the Tribunal did not inform the appellant of the letter or its contents. In its reasons for rejecting the review application, the Tribunal said that it gave no weight to the letter in reaching its decision and reached its conclusion on other bases. The appellant instituted proceedings in the Federal Court claiming a breach of procedural fairness. The application was successful at first instance, but overturned on appeal to the Full Federal Court.

On appeal, the High Court unanimously held that, although there was no requirement to provide a copy of the letter or provide information that would reveal the identity of the author of the letter, common law principles of procedural fairness required the Tribunal to disclose the substance of the allegation to the appellant before making its decision.

In the courts below, a great deal of emphasis was placed on the Tribunal's conclusion that it gave no weight to the letter in dismissing the application for review and that it reached its conc-lusion on other bases. However, the High Court held that attention must be directed to "what procedural fairness required the Tribunal to do in the course of conducting its review" and before reaching its decision. Referring to the classic statement of Justice Brennan in Kioa v West (1985) 159 CLR 550, the Court held that, in the absence of confidentiality issues, an opportunity should be given to a relevant person to deal with adverse information that is "credible, relevant and significant". "Credible, relevant and significant" information is to be understood as information "that cannot be dismissed from further consideration by the decision-maker before making the decision". The decision-maker cannot dismiss information from further consideration unless it "is evidently not credible, not relevant, or of little or no significance to the decision that is to be made". The Court held that the content of the letter could not be dismissed from further consideration as not credible, or not relevant, or of little or no significance to the decision as the information bore upon whether the appellant had a well-founded fear of prosecution for a relevant reason. It followed, said the Court, that procedural fairness required disclosure of the information.

Given the confidential nature of the information, the Court held that the content of the Court's procedural fairness requirements may be informed by the same considerations that support the public interest immunity applied by courts in judicial proceedings. In identifying the obligation to disclose the information, it was necessary, the Court said, "to recognise that there is a public interest in ensuring that information that has been or may later be supplied by an informer is not denied to the Executive government when making its decisions". The Court was very careful not to prescribe an all-encompassing rule for how decision-makers are to deal with information provided confidentially, as the principles of procedural fairness must be moulded to the particular circumstances of each case. However, in this case, the public interest and the need to accord procedural fairness could be accomm-odated by requiring the substance of the allegations to be disclosed to the appellant.

The Court made it clear that the common law requirements of procedural fairness must accommodate particular statutory provisions which regulate the way in which the Tribunal is to undertake its review. However, in the circumstances in this case, the Migration Act provisions affecting disclosure of information (sections 418(3), 424A and 438) were not argued by the parties to be relevant and, in any event, were not an exhaustive statement of the requirements of procedural fairness. In particular, the Court emphasised that this case was to be determined on the state of the law prior to the amendments made by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) to the effect that Division 4 of Part 7 of the Act is to be taken as an exhaustive statement of hearing requirement. This amendment will obviously affect the content of the duty of procedural fairness required of the Tribunal.

• In dealing with confidential information, decision-makers must focus on the fairness of their decision-making procedures. Adverse information made available to decision-makers cannot be ignored unless it is evidently not credible or relevant, or of little or no significance to the decision. If information is credible, relevant and significant, it should be disclosed.
• When information disclosed to a decision-maker is confidential, an assessment will need to be made of what procedural fairness requires of the decision-maker. In the ordinary case, the disclosure of the substance of the information on an anonymous basis may be sufficient. However, as the Court emphasised in VEAL, this assessment will depend on the circumstances in each case.
• Depending on the circumstances, disclosure may take the form of a summary of the allegations or an edited version of a document or transcription. Care must be taken to convey an accurate account of the allegations.
• The common law principles of procedural fairness are subject to applicable statutory provisions. These provisions may modify or replace procedural requirements and, thus, care must be taken to comply with statutory requirements.

The High Court has also delivered judgment in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77. NAIS considers whether delay in decision-making can constitute jurisdictional error. A note of that case will appear in the next Government Insights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.