Before determining that the document is not an exempt document under section 33, the Tribunal must request the Inspector-General of Intelligence and Security to appear personally and give evidence
- ....create a number of problems. First, after a first hearing, the Tribunal would receive submissions on the documents and evidence before it at that time. The submissions to be put by an applicant would have to address that state of affairs. It is at least possible that such submissions might be compromised at the time of a further hearing, after further evidence from the Inspector-General, which affected the state of the evidence.
- Other practical problems arise. Is the respondent to be given a further opportunity to put on evidence after the Inspector-General? Is the applicant to be given a further opportunity to put on evidence after the Inspector-General? The rules of procedural fairness would almost certainly ensure that at least the applicant should be entitled to put on further evidence and make further submissions. There is also the unusual fact that, before the Inspector-General was invited to give evidence, the Tribunal would be required, on the case put by the Australian Federal Police and the Inspector-General, at least on a preliminary basis, to form a view that the documents should be released. It is not the habit of courts or tribunals in Australia to release draft decisions and then invite further submissions, yet de facto that is what is being suggested here.
"It seems to us that the Tribunal, at any time that seems appropriate to the Tribunal, can make a request under s 60A, and the steps that s 60A require will come into play."No orders were issued, and the Tribunal suggested ways in which the matter could proceed to hearing likely to be in late February or March, when more about the documents in dispute will be revealed.
(Update-there is quite a Corby related FOI queue at Customs and the AFP)