Amana Community Service Pty Ltd and Aged Care Quality and Safety Commissioner (Practice and procedure)

[2025] ARTA 1496

Amana Community Service Pty Ltd and Aged Care Quality and Safety Commissioner (Practice and procedure) [2025] ARTA 1496 (20 August 2025)

Applicant/s:  Amana Community Service Pty Ltd

Respondent:  Aged Care Quality and Safety Commissioner

Tribunal Number:                2022/8777

Tribunal:Senior Member J Lye

Place:Brisbane

Date:20 August 2025

Decision:The application for non-publication of information under s 70 of the Administrative Review Tribunal Act 2024 (Cth) is refused.

..................................[SGD]......................................

Senior Member J Lye

Catchwords – application for confidentiality orders – request for non-publication of information in Tribunal’s final reasons – information not inherently confidential – information comprising evidence in proceedings – principles in s 71 of the Act

Legislation

Administrative Review Tribunal Act 2024 (Cth) – s 70; s 71

Cases

ABC v Lenah Game Meats Pty Ltd[2001] HCA 63; 208 CLR 199

Aged Care Quality and Safety Commissioner v Amana Community Services Pty Ltd [2024] FCA 1241

Amana Community Services and Aged Care Quality and Safety Commissioner [2024] AATA 2984

Coco v A N Clark (Engineers) Ltd [1969] 65 RPC 41

Commonwealth v John Fairfax [1980] HCA 44; 147 CLR 39

Corrs Pavey Whiting & Byrne V Collector of Customs, Vic (1987) 13 ALD 254

McEwan v Official Trustee in Bankruptcy [2025] FCA 978

MDCT and National Disability Insurance Agency [2021] AATA 580; 85 AAR 32

Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1991) 22 FCR 73

Statement of Reasons

1.    On 6 August 2025, the Tribunal published to the parties its final reasons in the proceeding.

2. On 11 August 2025, the Applicant made an application for the information in column 2 of Table 1 (Annexure A) to be restricted from publication under s 70 of the Administrative Review Tribunal Act 2024 (Cth) (the Act).

3.    The Respondent was afforded an opportunity to respond to the application by 19 August 2025. It provided brief written reasons opposing the application for confidentiality.

4.    These are my reasons for refusing the application for confidentiality.

The statutory test

5. Section 70 of the Act relevantly provides:

(1) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:

a.information tending to reveal the identity of:

i.a party to or witness in a proceeding in the Tribunal; or

ii.any person related to or otherwise associated with any party to or witness in a proceeding in the Tribunal; or

b.information otherwise concerning a party, witness or other person mentioned in paragraph (a).

6. Each of the Applicant’s claims confidentiality are made under s 70(1)(b), on the basis that the relevant entity is a ‘party’ or a ‘witness’ (the claims).[1]

[1] The Administrative Review Tribunal (Common Procedures) Practice Direction 2024 (the Common Procedures Practice Direction) addresses particular issues relating to confidentiality at paragraphs 6.7 and 6.8. These have no application to this case.

7.    In evaluating each of the claims, the Tribunal is required to have regard to the considerations in s 71(2) of the Act, namely:

(2)In considering whether to make an order under subsection 69(3) or section 70 in relation to a proceeding, the Tribunal must have regard to the following:

a)     the principle that it is desirable that hearings of proceedings in the Tribunal are held in public;

b)     the principle that it is desirable that evidence given before the Tribunal is made available to the public;

c)     the principle that it is desirable that evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding;

d)     any reasons in favour of making an order, including the following:

i.in any case—the circumstances of the parties to the proceeding and other persons connected to the proceeding;

ii.in any case—the harm (if any) that is likely to occur to a person if the order is not made;

iii.in relation to an order under section 70—the confidential nature (if any) of the information;

e)      any other matters that the Tribunal considers relevant.

8.    In each of the claims, the Applicant has relied upon s 71(2)(d)(iii) – that the information is confidential in nature. No evidence has been lodged in support of these arguments and the Applicant has lodged very limited submissions in support of its contention that each piece of information is confidential in nature. In particular, the Applicant did not explain why no previous application/s had been made (1) at the time the information/evidence was lodged with the Tribunal or (2) when the relevant oral evidence was given at the original or remittal hearings. In this regard I should note that both the original hearing and the remittal hearing were held in public and written reasons for both the original decision of the Administrative Appeals Tribunal and the judgment of the Federal Court (on appeal) were published and have been available to the public for some time.[2]

[2] Amana Community Services and Aged Care Quality and Safety Commissioner [2024] AATA 2984; Aged Care Quality and Safety Commissioner v Amana Community Services Pty Ltd [2024] FCA 1241.

The concept of confidential information

9.    In Coco v A N Clark (Engineers) Ltd [1969] 65 RPC 41, Megarry J in the context of considering grounds for an action for breach of confidence, observed that it was necessary to demonstrate that the information in question has the necessary quality of confidentiality about it and further that it was communicated/provided in circumstances where an obligation arose to keep it confidential.[3]

[3] See also Commonwealth v John Fairfax [1980] HCA 44 ; 147 CLR 39 at 51; ABC v Lenah Game Meats Pty Ltd[2001] HCA 63 ; 208 CLR 199 per Gleeson CJ at [30].

10.  In Corrs Pavey Whiting & Byrne V Collector of Customs, Vic (1987) 13 ALD 254, Gummow J, in considering the question of action for breach of confidence in the context of the Freedom of Information Act 1986 (Cth), set out the criteria for protection of information:[4]

As I have indicated the case is to be approached in terms of the general law, not as a case of confidence protected by contract, but as one, if anything, of confidence protected in equity. It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge), (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence, and (iv) there is actual or threatened misuse of that information. Saltman Engineering Co Ltd v Campbell Engineering Co (1948) 65 RPC 203 at 215 ; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50–1 ; 32 ALR 485 at 491–2 ; O'Brien v Komesaroff (1982) 150 CLR 310 at 326–8 ; 41 ALR 255 at 266–8. It may also be necessary, as Megarry J thought probably was the case (Coco v Clark (AN) (Engineers) Ltd [1969] RPC 41 at 48 ), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff. This last aspect may be put to one side in the present case, because the use to which Syntex would put the information would plainly be detrimental to Alphapharm. Of the other requirements I have mentioned, the passage I have quoted from the tribunal's reasons is consistent with a finding that requirement (iii), confidential disclosure, was satisfied. What does not appear to have been directly addressed by the tribunal was the requirements (i) and (ii), namely, that the information be identified with specificity and also be confidential in quality.

[4] Pages 263-264.

11.  In Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1991) 22 FCR 73, Gummow J emphasised that this obligation requires the party advancing any claim to “identify with specificity, and not merely in global terms, that which is said to be the information in question.”[5]

[5] Page 87.

Application to the facts

12.  I accept that the Applicant has identified with specificity the information in the Tribunal’s reasons which it says is confidential. However, I am not satisfied that it has explained how this information is confidential in nature. Nor has it established how the information was communicated in confidence or how the Applicant took steps to keep it confidential. In this regard, I note that some items of information were originally lodged with the Tribunal as part of the Applicant’s Statement of Facts, Issues and Contentions or affidavits and others formed part of evidence given at the original hearing in April 2024. There has been no prior application from the Applicant for confidentiality either in the original proceeding or on remittal and no notice was given to the Tribunal or the Respondent at the time of filing that the information was confidential.

13.  In respect of the items which formed part of oral evidence given at the remittal hearing, the Applicant has similarly failed to explain why applications for confidentiality were not made either at the time the evidence was given, or at any time prior to the Tribunal’s reasons being published to the parties.

14.  I also acknowledge and accept the Respondent’s observation that ‘many of the kinds of information now sought to be withheld from public view are contained in the decision of the Administrative Appeals Tribunal in Amana Community Services and Aged Care Quality and Safety Commissioner [2024] AATA 2984 (14 August 2024) – for example, at paragraph [27] (number of hours of care provided to home care and CHSP clients), paragraph [28] (number of NDIS participants serviced), and paragraphs [36]-[38] (financial information relating to the applicant and its directors).

15.  In some cases, the information which the Applicant now claims as confidential relates to its management of programs which are publicly funded and audited. The Applicant has not explained how and why it holds an expectation that these categories of information should not be disclosed to the public.

16.  Additionally, some of the items of information (and in particular, references to bank account balances) are aged. Assuming that information was ever capable of being considered confidential (which I do not accept), the Applicant has not explained how they remain confidential despite the time which has elapsed.

17.  The Applicant took particular issue with disclosure of the final 3 numbers of each bank account referred to at paragraphs 80 and 82 in the reasons. I have considered afresh whether the whole of the bank account numbers should be redacted but have come to the conclusion that it is necessary to distinguish between them in the reasons. The partial redactions are already in place to prevent misuse.

18.  The Respondent’s submits that even if the Tribunal were to accept that the information in question has been shown to be confidential (which I do not), the Tribunal is obliged to consider and weigh the factors in s 71(2) of the Act and in particular the principles in s 71(2)(a), (b) and (c). The Respondent further argues that orders for confidentiality should be made sparingly given the public interest in public availability of the Tribunal’s reasons for decision.[6] I accept both those submissions as correct.

[6]  MDCT and National Disability Insurance Agency [2021] AATA 580; 85 AAR 32 at [38]; See also McEwan v Official Trustee in Bankruptcy [2025] FCA 978, [14].

19.  In the circumstances, the Applicant has not demonstrated why the principles or other reasons in s 71(2) favour orders being made.

20.  For completeness, the Applicant has not suggested and I have not identified any other reason (s 71(2)(e)) for the orders to be made.

Conclusion

21.  The Tribunal is not satisfied based on the submissions advanced by the Applicant and in the circumstances, that the orders sought should be made.

22.  For these reasons, the application is refused.

Date(s) of hearing:	Determined on the papers
Date final submissions received:	19 August 2025
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Sparke Helmore

ANNEXURE A

Table 1 – Information which is the subject of the application

Reference in final reasons	Specific words marked	Basis for request	Reasons
Footnote 7	“500”	Information concerning a witness [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	The application is refused for the following reasons: ·     The application must be balanced against the principles set down in s 71(2)(a), (b) and (c) (collectively, the mandatory principles); ·     The Applicant has not led any evidence or made submissions which demonstrates why the information is confidential or the consequences of publication. Nor has it explained how any claim for confidentiality should be balanced against the mandatory principles. ·     The evidence is relevant to the Tribunal’s reasons and will assist the public in understanding the reasons; and ·     The Applicant did not make any application for this evidence to be made confidential either at or after the initial hearing or the remittal hearing.
Paragraph 26	“144”	Information concerning a party [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	The application is refused for the following reasons: ·     The application must be balanced against the principles set down in s 71(2)(a), (b) and (c) (collectively, the mandatory principles); ·     The Applicant has not led any evidence or made submissions which demonstrates why the information is confidential or the consequences of publication. Nor has it explained how any claim for confidentiality should be balanced against the mandatory principles ·     The evidence is relevant to the Tribunal’s reasons and will assist the public in understanding the reasons, and ·     The Applicant did not make any application for this evidence to be made confidential despite including it in the Applicant’s SFIC [1.15].
Paragraph 71	“one hundred and eighty-four seven dollars”	Information concerning a witness [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	The application is refused for the following reasons: ·     The application must be balanced against the principles set down in s 71(2)(a), (b) and (c) (collectively, the mandatory principles); ·     The Applicant has not led any evidence or made submissions which demonstrates why the information is confidential or the consequences of publication. Nor has it explained how any claim for confidentiality should be balanced against the mandatory principles; ·     The evidence is relevant to the Tribunal’s reasons and will assist the public in understanding the reasons; and ·     The Applicant did not make any application for this evidence to be made confidential when submitting the Applicant’s financial statements to the Tribunal as evidence.
Paragraph 74	“$70,000 to $84,000 for 28 employees” “$100,000”	Information concerning a party [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	The application is refused for the following reasons: ·     The application must be balanced against the principles set down in s 71(2)(a), (b) and (c) (collectively, the mandatory principles); ·     The Applicant has not led any evidence or made submissions which demonstrates why the information is confidential or the consequences of publication. Nor has it explained how any claim for confidentiality should be balanced against the mandatory principles; ·     The evidence is relevant to the Tribunal’s reasons and will assist the public in understanding the reasons; and ·     The Applicant did not previously make any application for this evidence to be made confidential.
Footnote 68	“$100,000”	Information concerning a party [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	See previous entry.
Paragraph 80	The entire table	Information concerning a party [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	The application is refused for the following reasons: ·     The application must be balanced against the principles set down in s 71(2)(a), (b) and (c) (collectively, the mandatory principles); ·     The Applicant has not led any evidence or made submissions which demonstrates why the information is confidential or the consequences of publication. Nor has it explained how any claim for confidentiality should be balanced against the mandatory principles; ·     The evidence proposed to be published is relevant to the Tribunal’s reasons and will assist the public in understanding the reasons; ·     The Applicant did not make any application for this evidence to be made confidential at the time the evidence was lodged with the Tribunal or prior to the decision being handed down; and ·     The first five numbers in the account numbers have already been partially masked to avoid identification of the accounts and any potential misuse.
Paragraph 81	“Westpac” “$222,783.93”	Information concerning a witness [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	The application is refused for the following reasons: ·     The application must be balanced against the principles set down in s 71(2)(a), (b) and (c) (collectively, the mandatory principles); ·     The Applicant has not led any evidence or made submissions which demonstrates why the information is confidential or the consequences of publication. Nor has it explained how any claim for confidentiality should be balanced against the mandatory principles; ·     The evidence is relevant to the Tribunal’s reasons and will assist the public in understanding the reasons; ·     The Applicant did not make any application for this evidence to be made confidential at the time the evidence was lodged with the Tribunal; ·     The information does not identify the account numbers; and ·     The information is three years out of date.
Paragraph 82	“National Australia Bank account xxxxxx967” “$56,899.56”	Information concerning a witness [s 70(1)(b)] Information concerning a party [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	See the item above re the table with the account numbers. The application is refused for the same reasons. Additionally, the Tribunal notes the information is three years out of date.
Paragraph 86	“50” “35” “28” “12-15”	Information concerning a party [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	The application is refused for the following reasons: ·     The application must be balanced against the principles set down in s 71(2)(a), (b) and (c) (collectively, the mandatory principles); ·     The Applicant has not led any evidence or made submissions which demonstrates why the information is confidential or the consequences of publication. Nor has it explained how any claim for confidentiality should be balanced against the mandatory principles; ·     The evidence is relevant to the Tribunal’s reasons and will assist the public in understanding; and ·     The Applicant did not previously make any application for this evidence to be made confidential. This is despite some of it being lodged as part of the Applicant’s SFIC.
Paragraph 99	“500”	Information concerning a witness [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	See above.
Paragraph 102	“500”	Information concerning a witness [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	See above.
Paragraph 113(f)	“500” “400 to 500” “144”	Information concerning a party [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	The application is refused for the following reasons: ·     The application must be balanced against the principles set down in s 71(2)(a), (b) and (c) (collectively, the mandatory principles); ·     The Applicant has not led any evidence or made submissions which demonstrates why the information is confidential or the consequences of publication. Nor has it explained how any claim for confidentiality should be balanced against the mandatory principles; ·     The evidence is relevant to the Tribunal’s reasons and will assist the public in understanding the reasons; ·     The Applicant did not make any application for this evidence to be made confidential despite including some of this information in the Applicant’s SFIC; and ·     The services described are provided under a Commonwealth program of funding – i.e., via public funds. The Applicant has not established why such information should be treated as confidential when it is reasonable to assume it must be required to report to the Commonwealth on its operations under the grant.
Footnote 124	“40” “8”	Information concerning a party [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	The application is refused for the following reasons: ·     The application must be balanced against the principles set down in s 71(2)(a), (b) and (c) (collectively, the mandatory principles); ·     The Applicant has not led any evidence or made submissions which demonstrates why the information is confidential or the consequences of publication. Nor has it explained how any claim for confidentiality should be balanced against the mandatory principles; ·     The evidence is relevant to the Tribunal’s reasons and will assist the public in understanding the reasons; ·     The Applicant did not make any application for this evidence to be made confidential; and ·     The services described are provided under a Commonwealth program of funding – i.e., via public funds. The Applicant has not established why such information should be treated as confidential when part is derived from a Commonwealth audit of the Applicant from over 12 months ago.
Footnote 169	“43 to 400-500”	Information concerning a party [s 70(1)(b)] Information is confidential in nature [s 71(2)(d)(iii)]	The application is refused for the following reasons: ·     The application must be balanced against the principles set down in s 71(2)(a), (b) and (c) (collectively, the mandatory principles); ·     The Applicant has not led any evidence or made submissions which demonstrates why the information is confidential or the consequences of publication. Nor has it explained how any claim for confidentiality should be balanced against the mandatory principles; ·     The evidence is relevant to the Tribunal’s reasons and will assist the public in understanding the reasons; ·     The Applicant did not make any application for this evidence to be made confidential; and ·     The services described are provided under a Commonwealth program of funding – i.e., via public funds. The Applicant has not established why such information should be treated as confidential.