Federal Court. The Tribunal made a confidentiality order pursuant to s 35(4) of the AAT Act, which empowered the Tribunal to give directions prohibiting or restricting the publication or other disclosure of information. Was the Tribunal's decision "appealable" to the FCA pursuant to s 44 of the AAT Act? Did s 37(3) of the AAT Act abrogate the law in respect of legal professional privilege?
Section 55DA of the FOI Act provided (emphasis added):
In an IC review, the agency or Minister who made the IC reviewable decision must use the agency's or the Minister's best endeavours to assist the Information Commissioner to make his or her decision in relation to the IC review.
Section 37(1) of the AAT Act provided as follows (emphasis added):
Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:
(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: The Tribunal made a confidentiality order pursuant to s 35(4) of the AAT Act, which empowered the Tribunal to give directions prohibiting or restricting the publication or other disclosure of information. Was the Tribunal's decision "appealable" to the FCA pursuant to s 44 of the AAT Act?
Question 2: Section 37(3) of the AAT Act provided as follows: "This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents. Did s 37(3) of the AAT Act abrogate the law in respect of legal professional privilege?
Question 3: Did the Secretary of the Department of Defence act inconsistently with the maintenance of privilege in respect of a document (T10.1) by providing it to the Australian Information Commissioner (OAIC) "in response to a request for documents and submissions about the issue of whether the preliminary advice was an exempt document for the purposes of s 42 of the FOI Act", given that by doing so without submissions to the OAIC in relation to that question, "document T10.1 must in fact have been the first respondent’s submission about the applicability of s 42 of the FOI Act"?
The FCA answered those questions as follows: