ADI Limited & Ors and Equal Opportunity Commission & Ors

[2005] WASAT 49

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION:   ADI LIMITED & ORS and EQUAL OPPORTUNITY COMMISSION & ORS [2005] WASAT 49

MEMBER:   JUDGE ECKERT

MS J TOOHEY (SENIOR MEMBER)

HEARD:   6TH APRIL 2005

DELIVERED          :   29 MARCH 2005

FILE NO/S:   ET 31 of 2004

BETWEEN:   ADI LIMITED

ADI MUNITIONS PTY LTD
ADI ADVANCED SYSTEMS PTY LTD
THALES UNDERWATER SYSTEMS PTY LTD
THALES TRAINING AND SIMULATION PTY LTD
Applicant

AND

EQUAL OPPORTUNITY COMMISSION
TRADES AND LABOUR COUNCIL OF WESTERN AUSTRALIA
WESTERN AUSTRALIANS FOR RACIAL EQUALITY
ETHNIC COMMUNITIES COUNCIL WA INC
Respondent

Catchwords:

In camera - Hearings - Supressed evidence - Application for exemption - Confidential information - Public hearings

Legislation:

Equal Opportunity Act 1984 (WA) s 4, s 37, s 38, s 39, s 135(4)

State Administrative Tribunal Act 2004 (WA) s 61(4(g), s 62(3)

Result:

1. The application made by the applicants pursuant to s 61(4)(g) and s 62(3) of the State Administrative Tribunal Act 2004 for the evidence of Mr McKibbin to be given in camera and for a suppression order to be made regarding the documents in the list of documents attached to the orders made on 2 March 2005 is denied.
2.  The evidence given at the hearing of this matter (including the affidavit evidence given by Mr McKibbin) and the contents of and details regarding any documents tendered at the hearing shall not be published in any form unless and until the Tribunal makes an order allowing the publication of the evidence or the information.

Category:    B

Representation:

Counsel:

Applicant:     Mr D Cross & Ms S McFarlane

First Named Respondent :     Mr J Rosales-Castaneda

Second Named Respondent  :     Mr M Ritter SC

Third Named Respondent    :     Mr M Ritter SC

Fourth Named Respondent   :     Mr M Ritter SC

Solicitors:

Applicant:     Allens Arthur Robinson

First Named Respondent :     Equal Opportunity Commission

Second Named Respondent  :     Ms C Ozich for Trades and Labour Council of Western Australia

Third Named Respondent    :     Ms E Carbone for Western Australians for Racial Equality

Fourth Named Respondent   :     Ms E Carbone for Ethnic Communities Council of WA Inc

Case(s) referred to in decision(s):

ADI Limited (Exemption) [2004] VCAT 1963

Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47

Re Bromfield; Ex parte WA Newspapers Ltd 6 WAR 153

Stevens v Fernwood (1996) EOC 92-782

Case(s) also cited:

Nil

JUDGE ECKERT, MS J TOOHEY (SENIOR MEMBER):

REASONS FOR DECISION

Background

Application for exemption from the operation of the Equal Opportunity Act 1984

1. The applicants in this matter seek an exemption, pursuant to s 135 of the Equal Opportunity Act 1984, from the operation of s 37, s 38 and s 39 of that Act which make it unlawful to discriminate against applicants for employment, employees, commission agents and contract workers on the ground of race (which includes national origin or nationality: Equal Opportunity Act s 4).

2. The applicants have entered into various contracts with the Commonwealth of Australia to provide defence-related goods and services to be used by the Australian Defence Forces.  They include such things as designing, developing, manufacturing and repairing naval vessels, vehicles and aircraft, and providing engineering and technical support services and defence-related services.

3. To perform the work under the contracts, the applicants require access to United States based technology, access to some of which is regulated by United States laws which require the applicant's to enter into, and comply with, certain agreements and obtain certain licences.  The exemption is sought to allow the applicants to meet specific requirements of those laws by allowing them to demand from prospective and existing employees details of their place of birth and their nationality; and to in various other ways treat employees differently according to their place of birth and nationality.

Application for the hearing to be held in private and for information not to be published

1. In support of their application for exemption, the applicants have submitted a number of affidavits of Mr Andrew Ian McKibbin, Commercial Manager of ADI Limited.  Mr McKibbin is the sole witness the applicants propose at this stage to call.  It has been agreed that his affidavits will comprise his evidence in chief; cross-examination and any re-examination will be by way of the oral hearing. 

2. Mr McKibbin's affidavits detail the various kinds of contracts which the applicants have entered into with the Commonwealth of Australia; background to their activities in various defence-related spheres; the key projects they are currently engaged in, including a number of significant projects and potential future projects in Western Australia; the means by which they operate security clearances and control access to technology; and current employment practices.

3. The applicants seek an order that, at the hearing of this matter on 6 to 8 April 2005, the evidence of Mr McKibbin be heard by the Tribunal in private save for the presence of certain persons only, generally being senior specified representatives of the parties, their counsel and their instructing solicitors.

4. The applicants seek a further order that documents included in the list of documents attached to the orders of the Tribunal dated 2 March 2005 not be published or referred to other than by the persons mentioned above.  In particular, the applicants seek to have members of the press excluded from the hearing. 

5. The applicants seek the orders pursuant to s 61(4)(g) of the State Administrative Tribunal Act2004 (the SAT Act) in order to "avoid the publication of confidential information or information the publication of which would be contrary to the public interest". The basis of the application is the commercial confidentiality and sensitivity of matters about which Mr McKibbin will give evidence and, in particular, of the information in the documents on the list of documents.

6. On 2 March 2005 the Tribunal made orders that access for the purposes of inspecting the discovered documents as specified on the list be given only to the legal or other representatives of the parties, and identified those persons in the order; that further copies of the documents not be made; that the documents not be shown to any person other than those identified; and that the parties' representatives not discuss the contents of the documents with any person other than their client or counsel or another party’s representatives.

7. The applicants seek an order in respect of the hearing in terms similar to the discovery order of 2 March 2005.

Submissions

1. The applicants submit that the commercial confidentiality of much of the information in Mr McKibbin’s affidavits, and of the information in the discovered documents, is such that it warrants orders that Mr McKibbin give further evidence in private and that the Tribunal order, pursuant to s 62(3) of the SAT Act, that evidence given before the Tribunal not be published except in terms of the Order dated 2 March 2005 in respect of discovery. They submit that the hearing needs to be in private because it is not possible to say, prior to the hearing, which documents in the list Mr McKibbin will need to refer to. Further, that the parties need to be able to cross-examine and re-examine freely, unfettered by concerns of violating the confidentiality of that information.

2. Mr Ritter SC, counsel for the Ethnic Communities Council of Western Australia, West Australians for Racial Equality and the Trades and Labour Council of Western Australia, submits that the Tribunal should not make a blanket order of the kind being sought by the applicants.  He submits that application can be made on an ad hoc basis, in the course of Mr McKibbin's oral evidence.   

3. Mr Rosales-Castaneda for the Equal Opportunity Commission has submitted that the public interest in the granting of exemptions is such that the hearing should not be held in camera, and the media should not be excluded from it.  He does not object to access to certain documents being restricted but submits that the applicants have not discharged the onus of establishing the need for a hearing in private. 

4. At a directions hearing on 30 March 2005, the Tribunal also heard submissions from Mr David Wallace counsel for West Australian Newspapers Ltd.   Mr Wallace submits, in summary, that it is a fundamental principle of common law that justice should be administered in public; that only special or exceptional circumstances warrant a departure from that principle; that the party attempting to prohibit publication bears a heavy onus of proof and must show cogent evidence that a suppression order is necessary to prevent a real and serious risk of interference with the administration of justice.

Relevant legislative provisions

1. The SAT Act relevantly provides as follows:

   s 61 Public hearings

   (1) Unless another provision of this Act provides otherwise, hearings of the Tribunal are to be held in public.

   (2) On the application of a party or on its own initiative the Tribunal may, in the circumstances described in subsection (4), order that a hearing or any part of it be held in private and that only specified persons may be present.

   …

   (4) The Tribunal may make an order under subsection (2) if the Tribunal considers it is necessary to do so:

   (a)to avoid endangering the national or international security of Western Australia or Australia;

   (b)    to avoid damaging inter-governmental relations;

   (c)    to avoid prejudicing the administration of justice;

   (d)to avoid endangering the physical or mental health or safety of any person;

   (e)    to avoid offending public decency or morality;

   (f)    to avoid endangering property;

   (g) to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or

   (h)    for any other reason in the interests of justice.

   s 62 Publication of information from or about a proceeding

   (1)   This section applies to:

   (a)    any evidence given before the Tribunal;

   (b) the contents of any documents produced to the Tribunal; and

   (c) any information that might enable a person who has appeared before the Tribunal to be identified.

   (2)   Anything to which this section applies that is protected matter is not to be published.

   (3)   On the application of a party or on its own initiative the Tribunal may, in the circumstances described in s 61(4), order that anything, or any particular thing, to which this section applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal.

Consideration of submissions and reasons for decision

1. The requirement that Tribunal hearings be held in public, unless ordered otherwise, reflects the long-standing and fundamental principle of, and public interest in, the open administration of justice: see, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, per Kirby J; also Re Bromfield; Ex parte WA Newspapers Ltd 6 WAR 153, per Malcolm CJ 164-165.

2. That principle is subject to exceptions based on the even more fundamental principle that justice must not only be done, but also be seen to be done: Re Bromfield (above) per Malcolm CJ at [165].  However, any statute purporting to impinge on this principle should be narrowly construed: Raybos Australia Pty Ltd v Jones (above) per Kirby J at [55].  In addition, "the onus on a party seeking public anonymity as a plaintiff or any other limitation on publicity with respect to proceedings must necessarily be heavy": Re Bromfield (above) per Malcolm CJ at [165].

3. The Equal Opportunity Act is silent as to the grounds on which an exemption from its operation may be granted.  In particular, there is no public interest test in the Act.  However, its long title reflects its objectives of promoting "equality of opportunity in Western Australia" and providing remedies in respect of discrimination made unlawful by the Act. 

4. The effect of an exemption from the Equal Opportunity Act is to make lawful what would otherwise be prohibited by the Act. That is a matter in itself of public interest. An indication of the public interest in an exemption is found in s 135(3) which requires the Tribunal to cause notice of an application for an exemption to be given by newspaper advertisement or otherwise, in such form and manner as the Tribunal may direct.

5. The purpose of the notice is to provide an opportunity for persons with an interest in the matter to apply to be joined as a party and to call or give evidence, examine or cross-examine witnesses and make submissions to the Tribunal: s 135(4) Equal Opportunity Act (repealed); now s 38 State Administrative Tribunal Act 2004.

6. In this case, the applicants seek to be allowed to discriminate against a potentially very wide range, and large number, of people.  The public interest in the outcome of such an application is considerable.

7. Further indication of the public interest in an application for exemption is found in the principles to be applied in determining an application.  They include that the Tribunal must consider the overall scheme of the objectives of the Equal Opportunity Act, and what interests might be pointed to in the application which would justify the granting of the exemption: Stevens v Fernwood (1996) EOC 92-782, followed in ADI Limited (Exemption) [2004] VCAT 1963 (5 July 2004).

8. In a similar application by the present applicants to the Victorian Civil and Administrative Tribunal, that Tribunal granted the exemption subject to conditions aimed at minimising the potential disruptive effect it might have on a relatively large group of people: ADI Limited (Exemption) [2004] VCAT 1963 (5 July 2004).

9. The Tribunal is mindful that it has made an order, in terms similar to those currently sought, in respect of the discovered documents.  However, it does not follow that the Tribunal is bound to make similar orders in respect of the oral hearing.  In our view, documents the subject of discovery can be distinguished from oral evidence.  The nature and purpose of discovery is essentially private as between the parties, and is given only for the purposes of the matter on foot.  In contrast, the nature and purpose of an oral hearing, and its outcome, are essentially public. 

10. There are competing interests to be weighed and considered here: the applicants', and the public, interest in maintaining the confidentiality of certain sensitive information, and the public interest in the open administration of justice and in the granting of exemptions generally.

11. The Tribunal is mindful that Mr McKibbin is the only witness proposed at this stage to be called for the applicants.  His evidence in chief is by way of affidavit, making it a relatively straightforward task to identify those areas of his evidence which might involve disclosure of confidential information and which might be the subject of an order prohibiting publication. 

12. Evidence at the hearing will be directed principally towards why an exemption should be granted to the applicants.  Evidence of confidential matters will be relevant but not itself necessarily central to   the question to be determined.  We are satisfied that, if the occasion arises in the course of Mr McKibbin’s evidence, or any other witness's evidence, an application pursuant to s 61 or s 62 can be dealt with in the course of the hearing as necessary.

13. Considering the heavy onus on an applicant for a suppression order, and considering the very strong public interest in the operation of the Equal Opportunity Act and the open administration of justice, the Tribunal is not satisfied that there are special or exceptional circumstances in this case which justify the making of orders for an in camera hearing and for the blanket prohibition of publication of information.  On that basis, the Tribunal makes the following orders:

Orders

1. The application made by the applicants pursuant to s 61(4)(g) and s 62(3) of the State Administrative Tribunal Act 2004 for the evidence of Mr McKibbin to be given in camera and for a suppression order to be made regarding the documents in the list of documents attached to the orders made on 2 March 2005 is denied.

2. The evidence given at the hearing of this matter (including the affidavit evidence given by Mr McKibbin) and the contents of and details regarding any documents tendered at the hearing shall not be published in any form unless and until the Tribunal makes an order allowing the publication of the evidence or the information.

I certify that this and the preceding 9 pages comprise the reasons for judgment of the State Administrative Tribunal.

__________________________

Her Honour Judge Judy Eckert