MIGRATION – judicial review – Refugee Review Tribunal – nature of proceedings before Tribunal – burden of proof – obligation to rationally consider probative evidence
EVIDENCE – whether Refugee Review Tribunal is a court for purposes of the Evidence Act 1995 (Cth) – effect of ss 8 and 9
Evidence Act 1995 (Cth) ss 8(1), 9(1), 150
In clauses 9(1) and (2) of Pt 2 of the Dictionary “a law of the Commonwealth” is defined to be a written or unwritten law of the Commonwealth and an “Australian law” (which according to the definition in Pt 1 includes the law of the Commonwealth) is also defined to be a written or unwritten law.
Most of the limbs of each definition of federal court and Australian court refer to an actual court. They can have no application to the Tribunal for in no sense is it a court. But each definition includes as a court a body that is not in fact a court. It is to these parts of the definitions to which I must now refer.
The Tribunal will be an Australian court if it is “a body that, in exercising a function under an Australian law, is required to apply the laws of evidence “and it will be a federal court if it is a body that “in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.” However, the Tribunal is not such a body because s 420(1) of the Migration Act provides that the Tribunal is “not bound by … rules of evidence”. This is sufficient to take the Tribunal outside those limbs of the definition of Australian court and federal court just mentioned.
In arriving at this conclusion I have ignored the difference in language between s 420(1) which provides that the Tribunal is not bound by the rules of evidence and the definitions which refer to a body that is required to apply the laws of evidence. I do not regard this difference in expression as material. Each expression is apt to refer to the same subject namely matters that are or are not admissible in a proceeding and the method by which those matters are placed before a decision-maker: see Sopinka Lederman & Bryant, “Laws of Evidence in Canada” (1992 Butterworths) at p 1, and Halsbury’s Laws of England (4th ed) vol 4 para 1.
Further, I do not regard the fact that the Tribunal is obliged to observe certain rules that are sometimes called rules of evidence as affecting my conclusion. The rules that I have in mind are the various privileges that may be relied upon to exclude evidence being led before the Tribunal. The privileges are legal professional privilege, the privilege against self incrimination and what was once referred to as Crown privilege but is now known as public interest immunity. While each of these privileges is commonly regarded as part of the rules of evidence, they have application to a proceeding before the Tribunal not because they are rules of evidence but because they are fundamental principles of the common law that are capable of being exercised not only in curial proceedings but in administrative and investigative proceedings as well: see Baker v Campbell  HCA 39; (1983) 153 CLR 52 with regard to legal professional privilege, Pyneboard Pty Ltd v Trade Practices Commission  HCA 9; (1983) 152 CLR 328 and Controlled Consultants v Commissioner for Corporate Affairs  HCA 6; (1985) 156 CLR 385 with regard to the privilege against self incrimination and Science Research Council v Nasse  AC 1028 and Middendorp Electric Co Pty Ltd v Law Institute of Victoria  2 VR 313 with regard to public interest immunity.
The result is that the Tribunal does not fit within any limb of the definition of federal court. However, the Tribunal is a body that is authorised by an Australian law, the Migration Act, to hear, receive and examine evidence: see the discussion of the powers and functions of the Tribunal earlier in these reasons. It follows that the Tribunal is an Australian court in accordance with para (e) of the definition of that court.
But it does not follow from the fact that the Tribunal is an Australian court that proceedings before it are governed by the tabled provisions in s 5(1). The effect of s 8(1) of the Evidence Act must be considered. Section 8(1) is one of a number of provisions in Pt 1.2 which are concerned with the application of the Evidence Act. The subsection provides that the Evidence Act does not affect the operation of the provisions of any other Act. The question thus raised is whether s 8(1) prevents the tabled provisions in s 5(1) having application to proceedings before the Tribunal.
The scope of operation of s 8(1) is not clear. There will be no difficulty in applying the sub-section in the case where a provision of the Evidence Act is directly inconsistent with the provision of some other enactment. In that event the provision of that other enactment will prevail. But what if there is no direct inconsistency. Some indication of how s 8(1) is to operate in that circumstance may be gathered from s 9(1) which provides that:
“For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.”
When s 8(1) and s 9(1) are considered together the legislative intention that is disclosed is that where a court, whether it is an Australian court or a federal court, is not required to observe the rules of evidence the Evidence Act will not operate so as to impose that obligation. Here again reference should be made to s 420(1) of the Migration Act which provides that the Tribunal is not bound by the rules of evidence. If a proceeding before the Tribunal was governed by ss 150 the Tribunal would be required to receive a particular document as part of the evidence in a proceeding before it when it would not be required to do so if s 420(1) was the sole provision that applied. Thus there is, in a general sense, an inconsistency between the two provisions. It follows, in my opinion, that s 8(1) renders s 5(1) inapplicable to proceedings before the Tribunal.