Ace v State of NSW (TAFE Commission and Det (No 2)

[2011] NSWADT 77

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

ACE v State of NSW (TAFE Commission and DET (No 2) [2011] NSWADT 77

Hearing dates:

On the papers

Decision date:

13 April 2011

Before:

R Perrignon, Judicial member
Dr J Schneeweiss, Non-judicial member
Dr B Weule, Non-judicial member

Decision:

1) The name of the applicant is to be substituted with the letters 'ACE', which are not the initials of the applicant.

2) The name of her daughter is to be substituted with 'D', which is not the daughter's initial.

3) The names of the applicant's parents are to be substituted with 'Mr P', 'Mrs P' or 'Mr and Mrs P' as appropriate, where the letter P does not form the initial of either parent.

4) The name of the applicant's business in paragraph 63 of the reasons is to be substituted with 'X Y Glass'.

5) Subject to any further or other order of the Tribunal, the substitutions listed above are to apply to these reasons, to the reasons already published by the Tribunal in these proceedings, and to any further reasons for decision which may be published by the Tribunal in these proceedings.

Catchwords:

Application for anonymisation or 'pseudonym orders' - power of Tribunal to make orders pursuant to section 75(2) of the Administrative Decisions Tribunal Act 1997 - discretionary factors - Tribunal's policy in publishing reasons for decision on the internet - whether pseudonym should be subsituted for the name of the applicant in published reasons - whether pseudonyms should be substituted for the names of witnesses or other entities in the Tribunal's reasons, which could lead to identification of applicant

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Administrative Appeals Tribunal Act 1975

Cases Cited:

D v Berkeley Challenge Pty Ltd [2001] NSWADT 92
John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Law Society of NSW v M (No 2) [2001] NSWADT 54
LD v Director-General, Dept of Education and Training [2009] NSWADT 14
O'Shane v Burwood Local Court (NSW) & Ors [2007] NSWSC 1300
R v A & B [1999] NSWADT 151
Re VC and Australian Federal Police (1985) 8 ALD 587
State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
V v Y & anor [2000] NSWADT 12
X v Y & anor [2000] NSWADT 122

Category:

Interlocutory applications

Parties:

ACE (Applicant)
State of NSW (TAFE Commission and DET) (Respondent)

Representation:

Counsel :
M Tibbey (Applicant)
K Nomchong (Respondent)
Solicitor :
P Baker (Applicant)
State Crown Solicitor (Respondent)

File Number(s):

071120

Publication restriction:

Section 75 of the Administrative Decisions Tribunal Act 1997

REASONS FOR DECISION

1. On 19 July 2010, the Tribunal dismissed the applicant's complaint of discrimination on the grounds of carer's responsibilities. As is the practice of the Tribunal, its reasons for decision were published on the internet.

1. On 18 November 2010, during the hearing of an application for costs, the applicant indicated that she would seek orders pursuant to section 75 of the Administrative Decisions Tribunal Act 1997 , amending the Tribunal's published reasons so as to anonymise her name, the name of her daughter who was a witness, the names of her parents and the name of her business. Those orders were formally sought by an application filed on 16 December 2010.

1. In its published reasons, the Tribunal had referred to the fact that the applicant had been diagnosed as suffering from serious mental disorder, to the various symptoms of mental disorder, their effects, and their treatment. Those matters were central to the issues in dispute. Publication of a paragraph containing information of a highly confidential nature was suppressed by the Tribunal of its own motion. No objection was taken to that course, and no application is currently made in respect of that paragraph or its contents.

1. The applicant submits that her name ought be suppressed, essentially for three reasons:

1) Information about her mental health has the potential to be used in such a way as to prejudice future applications for employment, for accommodation, for loans or other things, with or without her knowledge. This is particularly so, having regard to the persistence of considerable prejudice in the community against persons with mental health conditions.

2) Though they do not apply to the decisions of this Tribunal, the provisions of the Health Records and Information Privacy Act 2002 demonstrate that the NSW government and the people it represents accord increasing importance to the privacy of health information.

3) The published decisions of this Tribunal remain unaltered, even after information they contain about a party's health is out of date. That contrasts sharply with the provisions of the latter Act for the updating of health information retained by government agencies.

1. The applicant submits that the names of her daughter, parents and business ought also be suppressed, because they have the capacity to reveal her own identity.

1. For its part, the respondent neither consents to the application, nor opposes it.

Legislation

1. Section 75 of the Tribunal's Act provides relevantly as follows.

(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.

(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private,

(b) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

....'

Issue for determination

1. Section 75(2) empowers the Tribunal to anonymise the name of a party, and of other persons whose identities might reveal the identity of the party. Such orders are routinely made in applications heard by the Tribunal under the Commission for Children and Young People Act 1998 , the Guardianship Act 198, the Protected Estates Act 1983, the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 : see Practice Note 13.

1. They are rarely made in the Equal Opportunity Division, though they have sometimes been made where sexual harassment has been alleged: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69; D v Berkeley Challenge Pty Ltd [2001] NSWADT 92; X v Y & anor [2000] NSWADT 122; V v Y & anor [2000] NSWADT 12; R v A & B [1999] NSWADT 151. This is not such a case.

1. The Tribunal's power to make orders pursuant to section 75(2) is not diminished by delay in making application for anonymisation: Law Society of NSW v M (No 2) [2001] NSWADT 54; LD v Director-General, Dept of Education and Training [2009] NSWADT 14. In LD's case , the Tribunal was satisfied that it had power to make suppression orders more than eight years after its decision was first published. Delay can, however, reduce the utility of any such orders. That issue is addressed below.

1. There being no objection to the application, and no issue as to the Tribunal's power to grant it, the sole issue for determination is whether the Tribunal is satisfied that the orders sought are 'desirable ... by reason of the confidential nature of any evidence or matter or for any other reason' so as to satisfy the threshold requirement of section 75(2). The onus of establishing that lies with the applicant.

Consideration

1. The requirement that proceedings of the Tribunal be held in public is enshrined in section 75(1) of its Act. The same requirement appears in section 35 of the Administrative Appeals Tribunal Act 1975 (Cth). That requirement is a reflection of the 'principle of open justice', referred to by the NSW Court of Appeal in John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465.

1. In that case, the Court considered an application to quash an order of the Police Tribunal of NSW, suppressing the name of a person who would be of significance to the hearing and determination of departmental charges brought against Sergeant RC Rogerson under the Police Regulation (Allegations of Misconduct) Act 1978 . In determining that the suppression order was beyond the power of the Tribunal, McHugh JA (with whom Glass JA agreed) observed at 476:

'The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it.'

1. The common law principles concerning suppression orders were later summarised by McLellan CJ at CL in O'Shane v Burwood Local Court (NSW) & Ors [2007] NSWSC 1300 as follows:

'There are two questions which require consideration. They are essentially related. The first question is whether the granting of a pseudonym order is necessary to secure the proper administration of justice. In the cases where an implied power to make pseudonym orders has been recognised - particularly those relating to blackmail, informers and extortion - the court has been satisfied that if an order were not made the consequence would be "unacceptable"... The consequences which have justified an order are the safety, livelihood or reputation of a victim or witness as a result of giving evidence in the proceedings. In the case of informers, revelation of their identities has been accepted as potentially undermining other investigations (including covert operations), posing a threat to their safety with the prospective prejudice to the prosecution of crime. In blackmail cases, if the identity of the "victim" is not protected they may be vulnerable to other "blackmailers" or reluctant to report the crime. By protecting the "victim" in one case the court encourages other incidents of blackmail in other cases to be reported.'

1. These common law principles of 'open justice' neither overcome the provisions of section 75, nor narrow their scope. Nevertheless, it is appropriate to have regard to them in determining whether the Tribunal ought exercise its discretion pursuant to section 75(2) by making a 'pseudonym order'. As the Appeal Panel observed in Dezfouli [at 58]:

'... it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2).'

1. In that case, the Appeal Panel quoted with approval the following observation of the Administrative Appeals Tribunal (Cth) in Re VC and Australian Federal Police (1985) 8 ALD 587:

'the public interest in having information about the identity of an applicant ... is of a considerably lower order than in the Tribunal's hearings being conducted in public and the evidence given being available for public scrutiny'.

1. In Dezfouli , the Appeal Panel summarised some of the discretionary factors informing the exercise of the power under section 75(2) [at 81]:

'It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.'

1. In deciding to continue a suppression order made on an interim basis, the Appeal Panel had regard to also to the issue of utility [at 94]:

'... the fact that the employee's name was in the public domain - i.e., in the reports of the Tribunal's earlier decision - for the period of some weeks between the delivery of that decision and the interim order made on 8 August 2008 does not render continuance of that order a futile exercise. It might have been otherwise if this had been a case attracting massive publicity.'

1. In this case, the principle ground advanced in support of the application is the public disclosure of sensitive information concerning the applicant's mental health, and the potential for its misuse against her, possibly without her knowledge, for so long as the information remains publicly available. It is not a case of mere damage to reputation or embarrassment, which would require the applicant to establish unusual circumstances.

1. There can be little doubt that publication of the reasons for decision on the internet permits almost universal access to the information they contain about the applicant's mental health. As Deputy President Hennessy observed in LD's case [at 23]:

'... the advent of the Internet has meant that the Tribunal's decisions are readily available to any member of the public who has access to a computer. That is a major change from the days when a person needed to go to a law library or to the Tribunal Registry to access decisions.'

1. The improved efficiency and sensitivity of search engines available on the internet makes it likely that anyone desiring information about the applicant for any purpose - including purposes unconnected with these proceedings - can easily find and access the published information concerning her mental health at any time. That situation will continue for so long as the reasons for decision remain available on the internet. As the facts of LD's case demonstrate, decisions of the Tribunal tend to remain available on the internet for many years.

1. We are satisfied:

1) that the nature of the information as to the applicant's mental health is of a sensitive character,

2) that it is capable of being misused to her detriment so long as it remains publicly available, and

3) that orders for anonymisation would not be so prejudicial to the public interest that their desirability is outweighed by the necessity to adhere to the principle of 'open justice'.

1. On the issue of utility, Practice Note 13 makes it clear that the usual practice of the Tribunal is to publish its reasons, in full, on the internet. Applications for suppression orders, or for orders substituting pseudonyms, should be made before decisions are reserved or published. Failure to do so can seriously reduce the utility of any such orders later sought. So, too, can delay in bringing such an application after publication of the Tribunal's reasons. In this case, the application for pseudonym orders was not brought until many months after publication.

1. Nevertheless, having regard to the fact that the Tribunal's reasons are likely to remain publicly available for a long time, perhaps indefinitely, and to the ongoing potential for the information which they contain to be used to the applicant's detriment, we are satisfied that there remains utility in making the orders sought.

1. It remains to consider whether, having regard to the principles enunciated by the Tribunal in Dezfouli , and to the facts of the case, it is 'desirable' to make the orders sought. We are satisfied that it is desirable. In reaching that decision, we have taken the following matters into account:

1) the sensitive nature of the mental health information contained in the Tribunal's reasons, including its potential for misuse against the applicant by persons with no interest in the proceedings, for so long as that information remains publicly available,

2) the fact that the information would probably have remained confidential, but for its being adduced in proceedings which were open to the public,

3) the presumption in favour of 'open justice' enshrined in section 75,

4) the fact that the onus lies on the applicant to establish good grounds for making orders pursuant to section 75(2),

5) the breadth of the criterion of 'desirability' in section 75(2),

6) the fact that this is not an application for a hearing in closed session, without notice to a party, but rather an application for suppression of the identity of a party, remembering that the public interest in the former is greater than its interest in disclosing the latter,

7) the breadth of the range of purposes that may be served under section 75(2) ('any other reason'),

8) the possibility that the purposes to be served may be a mixture of private and public interests - in this case, a private interest, and

9) the fact that this application is not brought merely to avoid damage to reputation or 'embarrassment', but rather to prevent the misuse of information regarding the applicant's mental health.

1. As it is desirable that the identity of the applicant be rendered anonymously, it is also desirable that the names of her daughter, parents and business be similarly rendered anonymously, because publication of those names has the potential to lead to the identification of the applicant.

1. The applicant put her claim on three grounds, listed above. As the Tribunal has decided to grant the orders sought on the first ground alone, it is unnecessary to consider the remaining grounds.

Orders

1. Pursuant to section 75(2), the Tribunal orders as follows:

1) the name of the applicant is to be substituted with the letters 'ACE', which are not the initials of the applicant;

2) the name of her daughter is to be substituted with 'D', which is not the daughter's initial;

3) the names of the applicant's parents are to be substituted with 'Mr P', 'Mrs P' or 'Mr and Mrs P' as appropriate, where the letter P does not form the initial of either parent;

4) the name of the applicant's business in paragraph 63 of the reasons is to be substituted with 'X Y Glass', and

5) subject to any further or other order of the Tribunal, the substitutions listed above are to apply to these reasons, to the reasons already published by the Tribunal in these proceedings, and to any further reasons for decision which may be published by the Tribunal in these proceedings.

Decision last updated: 13 April 2011