Akbas and Victorian Building Authority

[2018] AATA 479

Akbas and Victorian Building Authority [2018] AATA 479 (23 February 2018)

Division:GENERAL DIVISION

File Number(s):      2017/7584

Re:Ozgur Akbas

APPLICANT

AndVictorian Building Authority

RESPONDENT

DECISION

Tribunal:Senior Member R. Pintos-Lopez

Date:23 February 2018

Date of written reasons:         13 March 2018

Place:Melbourne

The Tribunal:

1.refuses an application for orders prohibiting the publication or other disclosure of the Applicant’s name or any other information tending to reveal his identity;

2.grants orders prohibiting the publication or other disclosure of the names, addresses or any other information tending to reveal the identity of any victim or accused, other than the Applicant, in relation to the offences referred to in the summary of charges filed in this proceeding and marked as T-11.

[sgd].......................................................................

Senior Member R. Pintos-Lopez

CONFIDENTIALITY ORDERS – registration to be certified as a domestic builder – sex offences – hearings to be public – sex offenders register – public policy – matters made public in the past – application refused – order granted for other parties

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 35

Judicial Proceedings Reports Act 1958 (Vic)

Migration Act 1958 (Cth)

Sex Offenders Registration Act 2004 (Vic)

Cases

Re Sheepskin and Opal Exporters and Export Development Grants Board (1984) 6 ALD 594

Secondary Materials

Administrative Appeals Tribunal (4^th ed)

REASONS FOR DECISION

Senior Member R. Pintos-Lopez

23 February 2018

1. The Applicant seeks orders pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) directing that his name and those of his co-accused and victims of certain past criminal offences be restricted from publication or other disclosure. 

2. The Applicant makes application more broadly in the proceeding to review a decision made by the Respondent, the Victorian Building Authority, refusing registration in relation to his application to be certified by that Authority as a domestic builder.  The decision of the Victorian Building Authority turns, in part, upon the fullness of declarations made to that Authority by the Applicant in relation to the offences that are in issue in his application today. 

3. Section 35 of the Act provides that the Tribunal may give directions prohibiting or restricting publication of information tending to reveal the identity of a party or a witness in a proceeding and any person related to any party or witness. The Tribunal by s 35(5) of the Act is required to take as its basis for consideration the principle that it is desirable that the hearing should be held in public and that evidence before the Tribunal and the contents of documents should be made available to the public and to all parties. It is important that this principle is provided for expressly under the Act.

4. The Applicant makes a series of submissions in support of the present application.

5. First, the Applicant says that there is a good public policy reason to make the orders he seeks.  He refers to the injurious effect of making public details of offences for which he was convicted ten years ago.  That revelation, he says, would act as a deterrent on him and other applicants in similar situations from seeking relief in the Tribunal.  The Applicant submits that disclosure in these circumstances would be contrary to public policy.  He points to the fact that he is now married and has two children and he is concerned that in the future any publication could harm his family. 

6. While I comprehend the Applicant’s desire to move on with his life, he misapprehends the actual underlying policy consideration, as expressly provided for in the Act, which is that it is desirable that hearings and evidence be made available to the public as well as the parties.

7. There is no applicable public policy as that referred to by the Applicant. Further, there is nothing particular or unique in the facts relied upon by the Applicant that would suffice to overcome the principle made plain by s 35(5) of the Act. The making public of his criminal conduct is an ordinary consequence of being convicted of a serious offence. Unfortunately, a proceeding in the Tribunal may at times require that embarrassing things come to light.

8. Second, the Applicant submits that it is unnecessary to make public his name in the proceeding before the Tribunal and that publication on the internet of any Tribunal decision is of a different character to having had his name made public in the Magistrates Court of Victoria because publication on the internet makes revealing his name more likely. 

9. In reply, the Respondent submits that there ought be strong reasons to depart from the principle of open justice, which has been identified as a reason not to make orders in many cases.

10. The effect on the Applicant of having such material made public on the internet in this case is a concomitant of his seeking relief from the Tribunal.  The lack of necessity, which the Applicant points to, is beside the point.  Embarrassment and shame in this case do not provide sufficient reason for the making of the orders.  Even more so when the facts are already public.

11. Finally, the Applicant refers to and relies upon two enactments in support of his application, relevantly, the Sex Offenders Registration Act 2004 (Vic) and the Judicial Proceedings Reports Act 1958 (Vic).

12. The Applicant refers to various provisions of the Sex Offenders Registration Act and, in particular, those provisions that make it an offence to reveal details of persons on the sex offenders register.  He submits that to reveal the material would offend the purpose of that legislation.

13. In reply, the Respondent submits that the sex offenders register is not in issue in this proceeding.

14. The protections that apply to the sex offenders register under the Sex Offenders Registration Act apply to information in that register. Indeed, nothing in the Victorian Sex Offenders Registration Act provides a fetter to publication of information in the Tribunal, even if that information is also on the register.  Those protective provisions that apply to the register are there presumably to prevent revelation of, among other things, an offender’s address and thus prevent vigilante behaviour and, as the Applicant noted, public shaming of an offender.  

15. The Applicant submits that given the sensitive nature of the evidence, the general practice of courts of state criminal jurisdiction is to order the suppression of publication of any evidence that could identify the parties in such proceedings and, in particular, the identity of victims.  In support of this submission, the Applicant refers to the Judicial Proceedings Reports Act.  It is submitted that the privacy of the parties and, in particular, the victims outweighs any interest that would be served by publication.

16. The power of the Tribunal to make orders for the conduct of the current proceeding is provided for in the Act. Such power as is provided is constrained only by the provisions of the Act or other Commonwealth legislation directed to the manner in which Tribunal proceedings are to be conducted. The Victorian Judicial Proceedings Reports Act and the Sex Offenders Registration Act relied upon by the Applicant in making his application are not such enactments.

17. The authorities relevant to s 35 of the Act make clear that orders restricting public access to hearings or to evidence and documents have been infrequent.

18. In the past a claim that disclosure may endanger a person was insufficient for the making of such an order absent evidence.  Examples of proceedings where such orders have been made include circumstances where the revelation of information would impinge upon an applicant’s right to remain silent in a separate criminal trial and in order not to incriminate himself.  However, in another proceeding, a confidentiality order was declined notwithstanding that a witness stated that they would not give evidence on the ground of self-incrimination in the absence of such an order.

19. The power provided for in s 35 of the Act is flexible and in practice a decision to exercise it must turn upon the circumstances that bear upon the application before the Tribunal. However, it is plain that the underpinning policy consideration is not directed to the making of a confidentiality order in these circumstances, as submitted by the Applicant, but rather the opposite.

20. The Tribunal in Re Sheepskin and Opal Exporters and Export Development Grants Board (1984) 6 ALD 594 noted that when an applicant wishes to apply to the Tribunal for a review of an unfavourable administrative decision, that applicant must take into account that the proceeding will be in public, unless good reason to the contrary is shown. As is noted in commentary to that case in Administrative Appeals Tribunal (4^th ed) at [11.6], it is a point that applicants cannot afford to overlook.

21. For these reasons, I refuse the application made by the Applicant, on 16 February 2018, seeking orders directing the non-publication and non-disclosure of his name and certain information that would tend to reveal an earlier offence of which he was convicted. 

22. I will, however, make orders, which are consented to by the Respondent, in relation to the non-disclosure and non-publication of the names of the co-accused and the victim.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the written reasons for the decision of Senior Member R. Pintos-Lopez

[sgd]………………………………………

Associate

Dated   13 March 2018

Date of hearing

23 February 2018

Applicant

Advocate for the Applicant

Solicitors for the Applicant

By Telephone

Mr Peter McLeod

Buller McLeod Lawyers

Advocate for the Respondent

Mr Michael Vickers

Solicitors for the Respondent

Victorian Building Authority