Andrzejewski and Secretary, Department of Industry, Science and Resources (Practice and Procedure)
[2025] ARTA 223
•19 March 2025
Andrzejewski and Secretary, Department of Industry, Science and Resources (Practice and Procedure) [2025] ARTA 223 (19 March 2025)
Applicant:Natalie Andrzejewski
Respondent: Secretary, Department of Industry, Science and Resources
Tribunal Number: 2024/8528
Tribunal:General Member C. Willis
Place:Melbourne
Date:19 March 2025
Decision:The application for an order or orders under section 70 of the Administrative Review Tribunal Act 2024 (Cth) is refused.
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General Member C. WillisCatchwords
PRACTICE AND PROCEDURE – application for non-disclosure and non-publication orders – information tending to identify applicant and other information relating to review of FOI decision – principle that desirable for hearings of Tribunal and evidence given before Tribunal to be public – consideration of reasons in favour of making an order – application for non-disclosure and non-publication orders refused.
Legislation
Administrative Review Tribunal Act 2024 (Cth), subsections 70(1), 70(2), 71(1), 71(2)Cases
Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185
Devasahayam and Comcare [2010] AATA 784
Hanieh and Tax Practitioners Board [2024] AATA 3251Secondary Materials
Administrative Review Tribunal (Common Procedures) Practice Direction 2024
Statement of Reasons
INTRODUCTION AND BACKGROUND
In April 2022 the Applicant made a request to the Respondent under the Freedom of Information Act 1982 (FOI Act) for access to certain documents which she believed were in the possession of the Respondent (the FOI Request). On 13 May 2022 the Respondent advised the Applicant of its decision to refuse to process the FOI Request (the FOI Decision).[1]
[1] T4. A reference to T Documents in this decision is a reference to the documents required to be given by the Respondent to the Tribunal under section 23 of the Administrative Review Tribunal Act 2024 (Cth).
The Applicant applied to the Australian Information Commissioner (the IC) for review of the Respondent’s decision in July 2022. After an investigation, the IC made a decision on 26 September 2024[2] to exercise its discretion under paragraph 54W(b) of the FOI Act not to undertake a review of the FOI Decision. Under paragraph 57A(1)(b) of the FOI Act, the Applicant was therefore able to make an application directly to the Tribunal for review of the FOI Decision.
[2] T6.
The Applicant made an application to the Tribunal on 22 October 2024 seeking an extension of time in which to apply for a review of the FOI Decision to 1 December 2024, by which time the Applicant said she would know whether she was in a position to afford the Tribunal application fee. The Respondent did not oppose the extension of time application. Ultimately the Tribunal gave the Applicant until 11 December 2024 to apply and on that date the Applicant did lodge an application for review of the FOI Decision.
In her application she also requested a ‘suppression order for this matter’. This was construed by the Tribunal as a request for a confidentiality order, and clarification was sought by the Respondent and the Tribunal as to what information the Applicant wished to keep confidential. In an email to the Tribunal dated 9 January 2025, the Applicant replied:
Whilst my initial confidentiality order request was limited to prohibiting the publication of information tending to reveal my identity, on reflection, I would indeed prefer an order prohibiting or restricting the publication of any other information too.
On 21 January 2025 the Respondent wrote to the Tribunal to advise that it did not consent to such a confidentiality order being made.
The purpose of this interlocutory proceeding is to determine whether an order or orders should be made under section 70 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) to prohibit or restrict the publication or other disclosure of information. The Tribunal is not making any findings on substantive issues relating to the review of the FOI Decision. For that reason, only facts and contentions relating to the operation of section 70 are set out in this decision. It is not necessary to set out extensively the details of the FOI Request, or the reasoning behind the FOI Decision or the decision of the IC under paragraph 54W(b) of the FOI Act.
RELEVANT LAW
Section 70 of the ART Act provides that:
Information about parties, witnesses and others
(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).
Note 1: The power must be exercised in accordance with section 71.
Note 2:Breach of a non‑publication or non‑disclosure order is an offence (see section 119).
Information relating to proceeding
(2)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of information that:
(a) relates to a proceeding in the Tribunal; and
(b) is any of the following:
(i)information that comprises evidence or information about evidence;
(ii) information given to the Tribunal.
Note 1: The power must be exercised in accordance with section 71.
Note 2:Breach of a non-publication or non-disclosure order is an offence (see section 119).
The Tribunal may make an order under section 70 on application by a person or on its own initiative: subsection 70(4).
When making an order under section 70 the Tribunal must:
(a)Under subsection 71(1) comply with any requirements specified in the Tribunal’s practice directions; and
(b)Have regard to the considerations set out in subsection 71(2).
Paragraphs 6.7 and 6.8 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 (the Common Procedures Practice Direction) outline certain types of proceedings or information where non-disclosure or prohibition orders will generally be made, whether as a consequence of specific statutory requirements or Tribunal administrative procedures. None of the categories of proceeding or information set out in paragraphs 6.7 and 6.8 of the Common Procedures Practice Direction apply to this matter.
Subsection 71(2) of the ART Act provides that the Tribunal must have regard to certain matters including:
·The principle that it is desirable that hearings of proceedings in the Tribunal be held in public: paragraph 71(2)(a).
·The principle that it is desirable that evidence given before the Tribunal is made available to the public: paragraph 71(2)(b).
·Any reasons in favour of making the order, including the circumstances of the parties to the proceeding and other persons connected to the proceeding, any harm that is likely to occur to a person if the order is not made and the confidential nature (if any) of the information: paragraph 71(2)(d).
·Any other matters that the Tribunal considers relevant: paragraph 71(2)(e).
Pending the hearing of this interlocutory proceeding the Applicant was given the pseudonym NFKK.
CONTENTIONS AND ANALYSIS
In advising the Tribunal of its objection to orders being made under section 70, the Respondent noted that paragraphs 71(2)(a) and (b) of the ART Act identify that it is desirable that hearings of Tribunal proceedings be held in public and that evidence given is made available to the public. The Respondent said that the Applicant had not identified any harm or prejudice that would result from her identity and other information being made publicly available.
In her application to the Tribunal the Applicant said that she requested a suppression order based on her concern that the Respondent had made an ‘adverse and unsubstantiated allegation’ about her as part of its reasons for the FOI Decision. It is not necessary to provide details of that allegation for the purposes of this interlocutory matter, other than to note at a high level that it relates to an FOI request and a decision in another matter (the Other FOI Matter).
I asked the Applicant to clarify the particular information in relation to which she sought non-publication or non-disclosure orders. The Applicant’s primary concern related to any information which would imply a link between her and the Other FOI Matter. The Respondent said its submissions would be made on the basis that information that tended to identify the Applicant was the subject of the request. I agree that essentially the Applicant’s request would most likely relate to information that could identify the Applicant, however in reaching my decision I have considered that it is possible that there could be other information arising during the course of a substantive proceeding to indicate a link or association between the Applicant and the Other FOI Matter.
At the hearing the Applicant said that she firmly denies any association with the Other FOI Matter and that she is concerned that if information identifying her or relating to her FOI Request is made public, people might inappropriately link her name to the Other FOI Matter. This in turn might adversely affect her current employment or future employment prospects, and have a negative impact on her family. The Applicant noted that her privacy is important to her and she has taken care to protect it. She is concerned that if information about her FOI Request is made public people could do an online search, find her details and draw adverse (and incorrect) conclusions. She was also not sure whether the party to the Other FOI Matter might find out about her FOI Request in this matter, with potentially adverse consequences. The Applicant pointed out that when she made her FOI Request the relevant FOI legislation and processes of the Respondent and IC kept her identifying and other personal information confidential, but because of the decision of the IC to exercise its discretion under paragraph 54W(b) of the FOI Act the confidentiality she had previously been afforded was now at risk.
I asked the Applicant whether she might take the opportunity to rebut publicly any incorrect allegations of the Respondent at the hearing of the substantive review of the FOI Decision. She said that she continued to be concerned that once an allegation of an association between her and the Other FOI Matter had been made public, this information could be found online and her ability to rebut any allegations at a subsequent substantive hearing would essentially not matter.
The Respondent submitted that the Applicant had not identified any matters, including a probability of specific harm, that were sufficient to outweigh the principles relating to the need for public proceedings and for evidence to be made available to the public, as set out in subsection 71(2) of the ART Act. The Respondent contended that if the Applicant does not have any association with or connection to the Other FOI Matter, she would have the opportunity to demonstrate this at a hearing for the review of the FOI Decision such that the Tribunal could make a finding, and publish its decision, to this effect. Conversely, the Respondent argued that if the Applicant did have a connection with the Other FOI Matter, then it was important that this also be set out in a published decision of the Tribunal, to support the intention of the relevant provisions of the FOI legislation and so that further similar FOI requests could be dealt with consistently. The Respondent said that other government agencies and departments could also be affected.
Having regard to the matters set out in subsection 71(2) of the ART Act:
(a)Paragraphs 71(2)(a) and (b) make express reference to the principles that it is desirable for Tribunal hearings to be held in public, and that it is desirable for evidence given before the Tribunal to be made available to the public. These principles, and the reasons why ‘open justice’ supports public confidence in the integrity and fairness of proceedings, are also expressed in case authorities and previous decisions of the Tribunal.[3] This weighs significantly against the granting of the non-disclosure and non-publication orders sought by the Applicant.
(b)In relation to the circumstances of the parties to the proceeding and other persons connected to the proceeding:[4]
(i)The Applicant identified a concern about the Respondent having made an adverse and unsubstantiated allegation about her in the course of making and issuing its FOI Decision. It is not necessary set out the detail of the FOI Decision or the IC’s reasons in this interlocutory matter, but I accept that the Applicant may have a basis for believing that some statements made in the FOI Decision and the IC’s paragraph 54W(b) decision could be viewed as adverse to her and those matters are as yet unproven. Nevertheless, the Applicant would have opportunity to challenge any assertions of the Respondent upon the substantive review of the FOI Decision.
(ii)The Respondent submitted that if there is, despite the Applicant’s contention, a connection or association between the Applicant and the Other FOI Matter, this should be disclosed publicly so that the Respondent is able to manage other FOI Requests of the same nature consistently. (It is noted that this is not a matter in favour of making an order, but is a response to the Applicant’s contention).
(c)In relation to any harm that is likely to occur to a person if the Tribunal did not make the orders sought,[5] the Applicant identified a concern that there might be adverse consequences if a party to the Other FOI Request became aware of her FOI Request, although she was not sure what harm might ensue. The Respondent observed that it had no indication that the other party had a history of violence, although no evidence could be provided on this matter. General concerns about personal embarrassment or reputational impact, including any impact on employment, is generally not sufficient reason of itself to outweigh or depart from the principle of openness in Tribunal proceedings.[6] I am unable to find that harm is ‘likely to occur’ to the Applicant if the order requested is not made.
(d)In relation to the confidential nature (if any) of the information that would be subject to any orders made under section 70,[7] it is noted that some personal information of the Applicant such as contact details (address, telephone numbers) would not be made public under the ordinary processes of the Tribunal. The Applicant was unable to indicate whether there was otherwise anything inherently confidential about the information in relation to which she sought an order. I accept the submissions of the Respondent that information or evidence which might indicate a connection or association between the Applicant is likely to be a relevant consideration in explaining a Tribunal decision upon any subsequent substantive review of the FOI Decision.
(e)The Tribunal must also have regard to ‘any other matters that [it] considers relevant’.[8] The Applicant noted that when she made her FOI Request and engaged with the Respondent and the IC in relation to the FOI Decision, her details were confidential and not in the public domain. The Applicant also observed that the identity of the person who made the FOI request in the Other FOI Matter remains confidential. The confidentiality of the Applicant’s details to date, as well as the non-disclosure of the identity of the person involved in the Other FOI Matter, arise as a consequence of the operation of the FOI legislation relating to the processing of FOI requests by government agencies and departments. In considering the Applicant’s request for an order under section 70 of the ART Act for non-disclosure or non-publication of information in relation to a Tribunal proceeding, I am required to have regard to section 71 of the ART Act, and the criteria in that provision may not align with provisions relating to confidentiality, privacy or suppression of information in other legislation or guidance relating to such legislation.
The Respondent also submitted that the outcome of a Tribunal review of the FOI Decision would be relevant to other government agencies or departments who may receive FOI requests involving the same subject matter and therefore it is important that any such decision of the Tribunal and its reasoning be publicly available. This matter is consistent with the principles set out in paragraphs 71(2)(a) and (b) of the ART Act.
[3] See for example Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [74] per Downes and Jagot JJ, and other decisions considered by Senior Member Benk in Hanieh and Tax Practitioners Board [2024] AATA 3251 (Hanieh).
[4] Subparagraph 71(2)(d)(i).
[5] Subparagraph 71(2)(d)(ii).
[6] See Hanieh at paragraphs [42] to [46]; Devasahayam and Comcare [2010] AATA 784.
[7] Subparagraph 71(2)(d)(iii).
[8] Paragraph 71(2)(e).
CONCLUSION
I accept that the Applicant genuinely holds concerns about adverse impacts which may arise from her FOI Request becoming publicly known, and that she engaged with the IC in the belief that her matter would be confidential. However for the reasons given above in relation to the criteria set out in section 71 of the ART Act, the Tribunal must refuse the Applicant’s request to grant an order giving directions prohibiting or restricting the publication or other disclosure of the information described in her application to the Tribunal.
1. I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of General Member C. Willis
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AssociateDated: 19 March 2025
Date(s) of hearing: 17 March 2025 Applicant: Self-Represented Advocate for the Respondent: Mr Adam Ray, Department of Industry, Science and Resources
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