CAP21 and Comcare (Compensation)

[2023] AATA 3361

CAP21 and Comcare (Compensation) [2023] AATA 3361 (3 August 2023)

Division:GENERAL DIVISION

File Number(s):     2018/7279

2014/5839

Re:CAP21  

INTERLOCUTORY APPLICANT

Re:Gregory Haywood  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:3 August 2023

Place:Canberra

Applications for confidentiality orders refused.

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

Mr S. Webb, Member

Catchwords

PRACTICE AND PROCEDURE – request for confidentiality orders in respect of past decisions – discretionary power to make orders – factors relevant to exercise of discretion in respect of a witness – alleged prejudice and reputational harm from publication of identity – procedural fairness – allegations made but not put to witness – evidence given in public – public hearing – no adverse findings – embarrassment and distress – request for confidentiality orders not made out – application refused

Legislation

Administrative Appeals Tribunal Act 1975, s 33, 35, 39, 43, 44

Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14

Cases

Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

ASIC v PTLZ [2008] FCAFC 164

Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 29 ALR 228

Australian Securities and Investments Commissions v Administrative Appeals Tribunal [2009] FCAFC 185

CAP21 v Administrative Appeals Tribunal [2022] FCA 729

Haywood and Comcare (Compensation) [2016] AATA 667

Haywood and Comcare [2021] AATA 504

Johnston v Cameron [2002] FCAFC 251

Lee v Deputy Commissioner of Taxation [2023] FCAFC 22

Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217

Naude v DRA Global Limited [2023] FCA 493

R v Millan [2018] WADC 110

Re A Taxpayer and Federal Commissioner of Taxation; Re sub nom Applicant QT2002/262 and Commissioner of Taxation (2004) 81 ALD 473

Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208

Re Pochi and Minister for Ethnic Affairs (1979) 36 FCR 482

REASONS FOR DECISION

Mr S. Webb, Member

3 August 2023

1. CAP21 gave evidence as a witness in proceedings resulting from two applications made by Gregory Haywood: application 2014/5839 and application 2018/7279 (substantive applications). Mr Haywood’s applications were for review of decisions by Comcare to refuse claims he made for compensation. The Tribunal published decisions in each of the substantive applications: Haywood and Comcare (Compensation) [2016] AATA 667 (2016 Decision) and Haywood and Comcare [2021] AATA 504 (2021 Decision).

2. Shortly after the 2021 Decision was published, CAP21 applied for confidentiality orders to prohibit or restrict publication of CAP21’s name or information tending to reveal CAP21’s identity under s 35(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The application was heard and determined in a further decision of the Tribunal: Haywood and Comcare 2018/7279, 12 April 2021 (Confidentiality Decision). CAP21 lodged an appeal against this decision in the Federal Court of Australia. The Court made confidentiality orders to protect the utility of the proceedings before it. In the result of the appeal, the Court set aside the Tribunal’s Confidentiality Decision and remitted the matter to the Tribunal to be determined according to law: CAP21 v Administrative Appeals Tribunal [2022] FCA 729 (Remittal).

3. The Tribunal made interim confidentiality orders to protect the utility of the remitted proceedings. Subsequently, in the context of the remitted proceedings, CAP21 applied for confidentiality orders in respect of the 2016 Decision and the Confidentiality Decision.

4. Mr Haywood opposed CAP21’s applications for confidentiality orders and made his own application for orders to prohibit publication of his name or to expunge the 2016 Decision and the 2021 Decision. My Haywood’s application is the subject of a separate decision.

5. This interlocutory decision addresses CAP21’s applications for confidentiality orders, alone.

   Facts and procedural history

6. The 2016 Decision, the 2021 Decision and the Confidentiality Decision set out factual findings which it is not necessary to recite in detail for present purposes.

7. The following short background facts are drawn from these decisions to assist understanding.

8. CAP21 and Mr Haywood were employed by the Commonwealth Department of Environment (Department). From in or about 2006 they came into contact with each other as they both shared an interest in a particular rugby club. On 14 November 2011, CAP21 commenced as Director, leading a section in the branch of the Department in which Mr Haywood was employed. CAP21 had supervisory responsibilities in respect of Mr Haywood from November 2011 to July 2012.

9. In 2012, issues arose in respect of Mr Haywood’s conduct in his then employment.[1] Mr Haywood raised allegations of bullying and sexual harassment against CAP21. Mr Haywood’s allegations included CAP21 using the word ‘cunt’ in a work meeting on 31 January 2012 when reciting a ‘joke’ from a television program the previous evening which he found to be offensive. There is a controversy over the particular circumstances in which this occurred. The issues escalated and were considered by the Professional Standards Section of the Department and subsequently by the Merit Protection Commission[2]. Mr Haywood’s allegations were found to be lacking substantiation by the Merit Protection Commission.[3]

   [1] ST20.

   [2] Exhibit R6, folios 32-240.

   [3] ST40.

10. On 9 December 2013, Mr Haywood claimed compensation for an alleged injury in his previous employment by the which he first noticed on 6 July 2012. The claimed injury allegedly arose from circumstances in his employment involving CAP21, his then supervisor. Mr Haywood asserts CAP21 was biased against him and treated him unfairly. Mr Haywood alleged he was falsely accused of wrongdoing in the workplace in a code of conduct counselling session with CAP21 and another person, and he was inappropriately pressured to sign a document.

11. In November 2014, Comcare decided to refuse Mr Haywood’s compensation claim on grounds the adjustment disorder he suffered, which amounted to a ‘disease’ for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), was the result of reasonable administrative action taken in a reasonable manner in respect of his employment, and it was therefore excluded as an ‘injury’ under s 5A of the SRC Act. Mr Haywood applied for review of this decision by the Tribunal: application 2014/5839. On 31 August 2016, the Tribunal (differently constituted) decided to affirm Comcare’s decision and published written reasons: the 2016 Decision.

12. In the context of these proceedings, Mr Haywood made allegations of bullying, sexual harassment and unfair treatment by CAP21 (among others) in his employment by the Department.

13. On 28 May 2014, Mr Haywood filed an application in the Fair Work Commission seeking a stop bullying order against CAP21 and 7 other Departmental employees under s 789FC of the Fair Work Act 2009.[4]

    [4] 2021 Decision at [29] and [31]-[34]; Exhibit R6, Documents 2 and 3 refer.

14. On 28 July 2014, Mr Haywood raised an alleged breach of the Australian Public Service (APS) code of conduct by CAP21 and four other Departmental employees.[5]

    [5] Exhibit R6, folios 241-300.

15. On 27 November 2014, Jenni Colwill, a senior reviewer employed by CPM Reviews, made a report of a preliminary investigation of allegations made by Mr Haywood and stated:

    59. The evidence collected in this preliminary investigation shows that [CAP21] may have submitted false evidence in [CAP21’s] F74 submission to the FWC when [CAP21] claimed that Mr Haywood and Mr McCorry encouraged [CAP21] to tell the television program story that contained an inappropriate word.

    a. However, the relevance of this should be considered in the context of the many allegations Mr Haywood has made against [CAP21], and the antagonistic climate that had been created between the two people.

    i. [CAP21] may have given false evidence regarding this issue, and this may indicate that she is guilty of other misrepresentations.

    ii. The evidence overall supports [CAP21]’s version of events, insofar as the evidence (contemporaneous documents in [CAP21]’s diary and complaints from other staff members) clearly shows that Mr Haywood behaved badly prior to the counselling session. Mr Haywood’s claim that [CAP21] organised this evidence after the events is not credible.

    b. It is also noted that Mr Haywood’s evidence has not always been truthful. This should be taken into consideration as a counterbalance to his allegations against [CAP21].

    i. For example, he constantly claimed to have been through a Code of Conduct process. He had not. His manager counselled him.

    ii. He omitted advising the FWC in his F72 statement that the Merit Protection Commissioner had reviewed and found the Department did the right thing in regard to the body of evidence he was submitting to the FWC.

    …

    The staff who are the subject of the Mr Haywood’s allegations should be formally advised that there was insufficient evidence found in the preliminary investigation to support his allegations against them.

    Mr Haywood should be formally advised of the consequences of continuing to make unsupported allegations against staff if this has not occurred already.

    It is also recommended that [CAP21] be counselled about the role of managers about the need to set an example in collegiate management for others.[6]

    [6] Exhibit R6, folio 321.

16. On 11 December 2014, Mr Haywood’s employment by the Department was terminated on misconduct grounds. I understand the Fair Work Commission subsequently issued a decision dismissing Mr Haywood’s stop-bullying application on grounds it lacked utility.

17. Mr Haywood made a further application to the Fair Work Commission alleging unfair dismissal.[7] I understand in February 2015 a deed of settlement was agreed between Mr Haywood and the Department, the terms of which concluded Mr Haywood’s actions in the Fair Work Commission and provided for him to be paid a settlement sum by the Department.[8]

    [7] 2021 Decision at [42].

    [8] 2021 Decision at [45].

18. In March 2015, Mr Haywood claimed compensation for an alleged aggravation injury caused by circumstances in his employment in August and September 2014. Mr Haywood asserted baseless accusations had been made against him in a public forum and the Department had not followed medical recommendations to provide him a safe workplace, rather he had been subjected to ongoing harassment. In July 2015, Comcare decided to refuse Mr Haywood’s compensation claim on grounds it was not satisfied an aggravation injury was made out. Mr Haywood applied to the Tribunal for review of this decision, but subsequently withdrew the application in September 2016.

19. On 26 February 2018, Mr Haywood lodged a further claim for compensation in respect of an alleged injury which he first experienced on 30 June 2014. The claimed injury allegedly arose from employment circumstances involving CAP21. Mr Haywood asserts the claimed injury arose from reading CAP21’s response to his application for stop bullying orders in the Fair Work Commission. He alleges CAP21’s response contained false statements and lies. Comcare decided to refuse the claim on grounds it was not made out under s 14 of the SRC Act. Mr Haywood applied for review of this decision by the Tribunal: application 2018/7279.

20. On 16 March 2021, the Tribunal (differently constituted) decided to affirm Comcare’s decision and published written reasons: the 2021 Decision.

21. On 17 March 2021 CAP21 applied for confidentiality orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to prohibit publication of CAP21’s name and information tending to reveal CAP21’s identity in the 2021 Decision. Mr Haywood opposed CAP21’s application on fairness and other grounds, arguing justice must be done and must be seen to be done, and all public servants are accountable to taxpayers and the general public for their actions. The Tribunal refused CAP21’s application and, on 28 April 2021, issued written reasons (Confidentiality Decision).

22. CAP21 appealed against the Confidentiality Decision in the Federal Court of Australia (Court). By orders made on 27 June 2022, the Court set aside the Confidentiality Decision and remitted CAP21’s application for confidentiality orders to be heard and determined according to law - CAP21 v Administrative Appeals Tribunal & Anor [2022] FCA 729 (Remittal). 

23. On 19 September 2022, the Tribunal made interim orders to ensure procedural fairness to all parties and to preserve the utility of the proceedings remitted by the Court:

    1.In order to ensure procedural fairness to all parties and to preserve the utility of the proceedings remitted by the Federal Court of Australia in CAP21 v AAT [2022] FCA 729 (FCA 729), noting the parties will be given an opportunity to be heard in respect of these orders in the interlocutory hearing at 10.00am on 30 September 2022, in the interim until the conclusion of the proceedings and subject to further order, the Tribunal DIRECTS:

    (a)pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act):

    a.    the name, address or any other information tending to reveal the identity of the person identified as CAP21 in FCA 729 must not be published; and

    b.    in these proceedings, the name of that person is to be replaced with the pseudonym CAP21; and

    c.     the information specified in paragraph 1.(a)a. must not be disclosed to any person other than:

    (i)the parties, their representatives and any other person directly involved with the preparation and conduct of a party’s case; and

    (ii)members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties; and

    (b)pursuant to section 35(4) of the AAT Act:

    a.the following information must not be published:

    (i)the documents given to the Tribunal, the transcript and the reasons for the decision in application 2014/5839; and

    (ii)the documents given to the Tribunal, the transcripts and the written reasons given in respect of the substantive and interlocutory decisions in application 2018/7279;

    b.the information specified in paragraph 1.(b)a. must not be disclosed to any person other than:

    (i)the parties, their representatives and any other person directly involved with the preparation and conduct of a party’s case; and

    (ii)members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties.

24. On 26 September 2022, CAP21 made a further application under s 35 of the AAT Act (Further s35 Application) in relation to the following decisions of the Tribunal:

    (a)the 2016 Decision; and

    (b)the Confidentiality Decision.

25. On 4 October 2022, the parties were given opportunity to be heard on the procedure to be followed in respect of the Remittal and directions were issued requiring the parties and CAP21 to file and serve written submissions and supporting materials which they intended to rely upon. The Tribunal issued the following directions:

    1. The Further s 35 Application and the Remittal (together, the Confidentiality Applications) are to be heard and determined together;

    2. On or before 7 November 2022, CAP21 is to file all materials upon which CAP21 intends to rely and written submissions with respect to the Confidentiality Applications;

    3. On or before 21 November 2022, the Applicant and the Respondent are to file all materials upon which they intend to rely and written submissions with respect of the Confidentiality Applications, or inform the Tribunal, CAP21 and each other that no materials will be relied upon or not submissions will be made; and

    4. On or before 5 December 2022, CAP21 is to file any further submissions in reply with respect to the Confidentiality Applications.

26. On 7 and 9 November 2022, CAP21 filed and served extensive submissions and related materials.

27. On 20 November 2022, the Respondent informed the Tribunal it would not be making submissions on the Confidentiality Applications, effectively adopting a neutral position.

28. On 27 November 2022, Mr Haywood provided extensive written submissions and supporting materials, opposing CAP21’s confidentiality applications.

29. On 8 November 2022, CAP21 filed written submissions in response to Mr Haywood’s submissions.

30. The Tribunal allowed time for the parties and CAP21 to advise if they wanted to be heard orally before the confidentiality applications were decided.

31. CAP21 and the Respondent advised they did not seek to be heard orally. On 16 December 2022, Mr Haywood criticised the Tribunal but did not seek to be heard orally.

32. The matter was listed to be heard on the papers on 27 January 2023. On 21 December 2022, listing notices were sent to each party and to CAP21.

33. On 27 January 2023, Mr Haywood informed the Tribunal he wanted to be heard orally but he was at work and not available at that time. Consequently, in order to ensure My Haywood was provided an opportunity to be heard, the hearing on the papers was vacated and the Tribunal consulted the parties and CAP21 in respect of their availability. The parties and CAP21 each confirmed they were available for an interlocutory hearing on 23 May 2023.

34. On 31 January 2023 listing notices for an interlocutory hearing by video at 10:00am on 23 May 2023 were sent to the parties and to CAP21. The notices included a Microsoft Teams link and access information, as well as the words “If you cannot attend at the time listed above, you should advise us as soon as possible”.

35. On 18 May 2023, CAP21’s legal representative filed and served a collated bundle of documents relating to CAP21’s applications for confidentiality orders and authorities. The bundle includes an affidavit of CAP21, dated 7 November 2022, and an affidavit of CAP21’s legal representative, also dated 7 November 2022.

36. On 19 May 2023, a reminder of the listing on 23 May 2023 was sent to the parties and to CAP21 by SMS. Further listing notices were sent to the parties and to CAP21 confirming the interlocutory hearing by video at 10:00am on 23 May 2023. The notices included a Microsoft Teams link and access information, as well as the words “If you cannot attend at the time listed above, you should advise us as soon as possible”.

37. On 23 May 2023, CAP21’s legal representative filed and served draft orders sought and further authorities which would be referred to during the interlocutory hearing.

38. The interlocutory hearing commenced at 10:00am on 23 May 2023.

39. Mr Haywood failed to appear.

40. The hearing was adjourned to allow time for Mr Haywood to appear or to contact the Tribunal. He did not contact the Tribunal. The Tribunal made several attempts to contact Mr Haywood by telephone, without success. The Tribunal left messages for Mr Haywood but received no response.

41. The hearing resumed at 10:25am, whereupon the Respondent and CAP21 agreed to the following procedure proposed by the Tribunal to ensure procedural fairness to the parties and CAP21 in the circumstances, before CAP21’s confidentiality applications are decided:

    1. On or before 6 June 2023, CAP21 must give to the Tribunal and the parties further and better particulars in respect of the proposed orders and redactions sought in the 2016 Decision, the 2021 Decision and the Confidentiality Decision (Decisions).

    2. On or before 20 June 2023, the Applicant must give to the Tribunal, the Respondent and CAP21 all further written submissions and any evidence on which he seeks to rely or inform the Tribunal no further submissions will be made.

    3. On or before 27 June 2023, CAP21 and the Respondent must give to the Tribunal and the Applicant written submissions in reply or advise that no further submissions will be filed.

    Thereafter, CAP21’s confidentiality applications will be decided without a further interlocutory hearing. Should any party or CAP21 make an application for a further interlocutory hearing, the Tribunal will consider the reasons for the application and any related submissions of the parties or CAP21 when determining the appropriate procedure.

1. CAP21 provided further and better particulars of the redactions sought in compliance with the Direction.

2. Mr Haywood made no further submissions.

   Legislation and legal principles

3. The matter is to be decided under applicable sections in s 35 of the AAT Act:

   (1)  Subject to this section, the hearing of a proceeding before the Tribunal must be in public.

   (2)  The Tribunal may, by order:

   (a)  direct that a hearing or part of a hearing is to take place in private; and

   (b)  give directions in relation to the persons who may be present.

   (3)  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 before the Tribunal; or

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

   (b)  information otherwise concerning a person referred to in paragraph (a).

   (4)  The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

   (a)  relates to a proceeding; and

   (b)  is any of the following:

   (i)  information that comprises evidence or information about evidence;

   (ii)  information lodged with or otherwise given to the Tribunal.

   (5)  In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:

   (a) that hearings of proceedings before the Tribunal should be held in public; and

   (b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

   (c) that the contents of documents lodged with the Tribunal should be made available to all the parties.

   However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

4. As can be seen, the Tribunal has discretion to restrict publication or disclosure of information about a party and information relating to a proceeding, taking the principles set out in s 35(5) and any reasons for exercising the discretion as the basis of its consideration of CAP21’s request. The starting point is the general proposition or ‘norm’ set out in s 35(1) that the hearing of a proceeding before the Tribunal must be in public.[9] This directive provision is subject to s 35(2), (3) or (4) which confer discretion upon the Tribunal to make orders in exception to the norm in the particular circumstances of any case. Exercise of the discretion is to be approached on the basis of the principle set out in s 35(5). While s 35 must be construed within the broader scope and objects of the AAT Act, the principle that it is desirable Tribunal hearings should be in public and evidence before the Tribunal should be made available to the public is the basis of the Tribunal’s consideration of the discretion.[10] It is for this reason it has been said the discretionary power should be exercised sparingly.[11] The norm established by s 35(1) and the values it is intended to protect[12] must be weighed against any reasons for making confidentiality orders: the public interest in transparency must be weighed against the prejudice that will result if the order is or is not made.[13]

   [9] Australian Securities and Investments Commissions v Administrative Appeals Tribunal [2009] FCAFC 185, per Downes and Jagot JJ at [74].

   [10] ASIC v PTLZ [2008] FCAFC 164 at [41]-[42].

   [11] Re Pochi and Minister for Ethnic Affairs (1979) 36 FCR 482 at 510.

   [12] Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [74]-[76].

   [13] Re A Taxpayer and Federal Commissioner of Taxation; Re sub nom Applicant QT2002/262 and Commissioner of Taxation (2004) 81 ALD 473 at 476.

5. Principles of open justice in the Courts have been authoritatively determined over many years in different contexts. CAP21 refers to Johnston v Cameron (Johnston)[14] and Minister for Immigration and Multicultural and Indigenous Affairs v X (X).[15] Such matters of principle were recently reviewed in the context of applicable provisions of the Federal Court of Australia Act 1976 by Snaden J in Naude v DRA Global Limited (Naude).[16] His Honour said:

   [14] [2002] FCAFC 251.

   [15] [2005] FCAFC 217.

   [16] [2023] FCA 493.

   13. In R v Davis (1995) 57 FCR 512 (Wilcox, Burchett and Hill JJ), this court observed (at 514):

   Whatever their motives in reporting, [the media’s] opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.

   14. The exclusion of public access to the processes with which a court deals is only to be effected in exceptional cases: The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377, 379 [8] (Allsop CJ, Wigney and Abraham JJ; hereafter “Country Care Group”); David Syme & Co v General Motors-Holden’s Ltd [1984] 2 NSWLR 294, 299 (Street CJ), 307 (Hutley AP, Samuels JA agreeing). In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131, Kirby P (in dissent but not on this issue) said (at 142-143):

   It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms… A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

   15. It is well accepted that “…mere embarrassment, inconvenience or annoyance will not suffice to ground an application for suppression or non-publication”: Keyzer v La Trobe University (2019) 165 ALD 93, 99 [29] (Anastassiou J). It is a feature of open justice that those to whom court processes refer may thereby suffer embarrassment or distress; but “…that is a price the community has to pay for the undoubted benefit of court proceedings being, except in very exceptional circumstances, conducted in public”: Williams v Forgie (2003) 54 ATR 236, 239 [14] (Heerey J).

6. In Lee v Deputy Commissioner of Taxation (Lee)[17], the Full Federal Court said:

   84. Open justice facilitates public scrutinyof the way in which courts decide cases and enables the public to understand how the justice system works and why decisions are taken. Counsel for The Age referred to Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) [2019] VSC 417; 58 VR 611 at [63], in which Elliott J stated (citations omitted):

   The rationale of the principle of open justice is to expose court proceedings, and the evidence in court proceedings, to “public and professional scrutiny”. Such scrutiny informs the public as to how judicial power is exercised, and on what evidential basis. Relatedly, it helps ensure courts are held accountable, and so guards against the possibility of the misuse of judicial power. As a result, it aids in maintaining public confidence in the integrity and independence of the courts.

   [17] [2023] FCAFC 22.

7. These general principles are relevant in the context of s 35 of the AAT Act and merit review proceedings in respect of an administrative decision in the Tribunal. There is a note of caution, however, as Johnston, X,  Naude and Lee were decided with reference to grounds for suppression orders under the the Federal Court of Australia Act 1976 (Federal Court Act), in which the suppression orders sought could only be made if it was necessary to do so.[18] A different threshold applies under s 35(5) of the AAT Act, whereby, having due regard to any reasons for giving directions for the purposes of s 35(3) or (4), the basis of the Tribunal’s consideration is the principle that it is desirable for the hearing, evidence and contents of documents in the Tribunal to be public. It is through this lens previous Tribunal cases which refer to ‘what is necessary to secure the proper administration of justice’[19] should be considered.

   [18] X at [18]; Johnston, per Tamberlin J at [68].

   [19] Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208 at [41], for example.

8. Just as the evidence given and the material lodged in the Tribunal proceedings should be available to the public, so too should the Tribunal’s reasons for a decision be publicly available, unless there is a reason to make a contrary order for the purposes of s 35(4). It is inherent that the public should be able to fully comprehend and scrutinize the reasons for a decision of the Tribunal. It is for this reason the identity of witnesses who gave evidence in the proceeding and their relation to or qualification in the factual matrix of the particular case should also be publicly available unless there is a reason to make a contrary order for the purposes of s 35(3). These are matters involving a balance between the requirements of the principle which is the basis of the Tribunal’s consideration and any reasons for granting an order under s 35(3) or (4).

9. At the heart of these considerations is public trust in the propriety of Tribunal processes, free from abuse, and public confidence in the impartiality of Tribunal administrative review decisions and related findings. Thus, while the work of the Tribunal in any case must be properly done, in order to promote public trust and confidence it must be seen to be properly done. Any reasons for granting confidentiality orders under s 35(3) or (4) must be weighed against this public interest in the proper exercise of power by the Tribunal within the administration of justice.

10. On 20 November 2020, the (then) President of the Tribunal issued a policy in respect of Publication of Decisions (Policy).[20] This policy followed an internal Guideline on the Disclosure and Non-disclosure of Personal Information in AAT Decision, issued on 8 November 2017 (Guidelines). Ordinarily the names of parties and witnesses are given in reasons for a decision,[21] whereas information about a party or a witness is only included if it is relevant to the findings or otherwise necessary for the cogency of the reasons for decision.[22] Where an application is made for orders to supress the name or information tending to reveal the identity of a witness, the Tribunal may make such an order where it is satisfied in the particular circumstances the harm arising from the publication of the information outweighs the public interest in publishing the information.[23]

    [20] Guidelines at [28].

    [22] Policy at [4.1].

    [23] Ibid at [3.2].

While the Policy and the Guidelines may assist consistent decision-making in a context of concern about abuse of personal information and identity theft, they are, necessarily, subservient to the terms and operation of the legislation.

Discretion

CAP21’s confidentiality applications are primarily in respect of non-publication orders under s 35(3) and (4).

CAP21 asserts redaction of CAP21’s name and information tending to reveal CAP21’s identity from the 2016 Decision, the 2021 Decision and the Confidentiality Decision is required to prevent prejudice to CAP21. This assertion is raised on several limbs.

Firstly, with regard to the 2021 Decision, CAP21 asserts a lack of awareness of the totality of allegations made against CAP21 by Mr Haywood until the 2021 Decision was published. CAP21 asserts not all of the allegations set out in the 2021 Decision were squarely raised or put in cross-examination and, consequently, CAP21 was denied an opportunity to respond to the allegations.[24] CAP21 argues publication of CAP21’s name and Mr Haywood’s untested allegations, which CAP21 strenuously denies, would result in unfairness and injustice to CAP21.

[24] CAP21 Affidavit, 7 November 2022 at [19] and [25]-[26].

Secondly, CAP21 alleges personal prejudice will be caused if the orders sought are not made. CAP21 asserts the 2021 Decision sets out detailed allegations made against CAP21 by Mr Haywood which are damaging and defamatory. Publication of this information in a manner which identifies CAP21 will impair CAP21’s reputation and it will result in significant distress and embarrassment to CAP21.

Thirdly, CAP21 states:

I would not have given evidence in these proceedings voluntarily if I had known that my name and the detailed allegations against me would feature so prominently in the 2021 Decision.[25]

[25] CAP21 Affidavit, 7 November 2022 at [20].

Publication of personal information and defamatory comments in such circumstances, CAP21 argues, would have a chilling effect on witnesses voluntarily giving evidence in Tribunal proceedings, which would run counter to the public interest in the proper administration of justice and administrative decision making.

Fourthly, and consequently, CAP21 submits publication of personal information in such circumstances may result in Comcare no longer being provided with assistance by Departmental witnesses in the future. The sharp point being publication of CAP21’s identity might dissuade other persons from giving information relevant to the assessment of compensation claims in the future.

Fifthly, CAP21 asserts redactions are required in the 2016 Decision and the Confidentiality Decision to ensure the utility of redactions from the 2021 Decision.

Mr Haywood objects to CAP21’s confidentiality applications. He asserts, should the Tribunal make the orders requested by CAP21, CAP21 “will be granted anonymity and remain unaccountable for [CAP21’s] criminal behaviour while being protected by cheating lawyers and the Tribunal’.[26] Mr Haywood alleges he is “the victim of serious crimes committed by CAP21 seeking to cover up workplace sexual harassment [CAP21] committed in a government workplace and which I reported at the time.” [27]  In his submission “[t]his matter provides the Tribunal with a final chance to deliver justice, rather than committing to impose even more absurd outcomes on the injured victim of workplace sexual harassment than it already has”.[28] Mr Haywood is critical of the 2016 Decision and the 2021 Decision, including the findings and conclusions of the Tribunal. He asserts CAP21 withheld relevant information from the Tribunal when giving evidence in the 2016 proceedings, and when the information was subsequently disclosed in evidence during the 2021 proceedings the Tribunal did not properly consider it.

[26] Affidivit [sic] of Gregory Haywood (unsworn), 26 November 2022 at [26].

[27] Ibid at [24].

[28] Ibid at [25]

Mr Haywood has not lodged an appeal against the 2016 Decision or the 2021 Decision in the Federal Court. While I understand Mr Haywood cavils with elements of each Decision and seeks to assert facts contrary to those found by the Tribunal, it is not appropriate now in the course of Tribunal proceedings relating to applications for confidentiality orders, well after the period in which Mr Haywood was entitled to lodge an appeal against either Decision has elapsed, to agitate for the Decisions to be upset or expunged.

There are a number of relevant considerations, including:

(a)the nature of the information CAP21 seeks to protect from publication;

(b)the extent to which the information is in the public domain;

(c)the apprehended consequences of further publication of the information;

(d)the materiality of the information to the Tribunal’s decision, having regard to the statutory scheme under which the reviewable decision was made.

The particular information CAP21 seeks to protect from publication is set out in detailed submissions given to the Tribunal on 6 June 2023. In addition to CAP21’s name, CAP21 is seeking suppression of information about CAP21’s employment which may tend to identify CAP21.

Some of this information was published in the 2016 Decision. In the 2016 Decision, the Tribunal found Mr Haywood suffered an adjustment disorder to which circumstances in his employment contributed to a significant degree. The Tribunal found this did not satisfy the definition of an ‘injury’ under s 5A of the SRC Act, however, because the disorder resulted from reasonable administrative action taken in a reasonable manner in respect of his employment. The Tribunal did not accept Mr Haywood’s assertions to the contrary and the allegations of bias he raised against CAP21,[29] and affirmed Comcare’s decision to reject his claim for compensation.

[29] 2016 Decision at [102]-[107].

The 2016 Decision was published on the website on 31 August 2016. No application for confidentiality orders under s 35 of the AAT Act was made at the time and the 2016 Decision remained in the public domain for almost 5 years, until it was removed pursuant to confidentiality orders made by Wigney J on 6 July 2021 to preserve the utility of CAP21’s confidentiality application and Federal Court appeal. It was not until 22 September 2022 CAP21 applied to the Tribunal for confidentiality orders in respect of the 2016 Decision.

I understand after the 2016 Decision was published, CAP21 and Mr Haywood were named and details of the 2016 Decision were discussed in an article published in The Australian newspaper, to which the parties referred in submissions.

The 2021 Decision sets out in extensive detail serious and pointed allegations Mr Haywood made against CAP21, some of which were not expressly raised or described in the 2016 Decision. The 2021 Decision was briefly published on the website on 16 March 2021 before being removed consequent to confidentiality orders issued by the Tribunal on 17 March 2021, pending resolution of CAP21’s confidentiality application. Further confidentiality orders were made by Wigney J in the Federal Court and, following remittal, by the Tribunal to preserve the utility of CAP21’s confidentiality applications.

The Confidentiality Decision has not been published in public. This Decision was made and issued to the parties on 12 April 2021. It has been the subject of non-publication confidentiality orders with effect from 12 April 2021.

Unfairness

CAP21 asserts the allegations described in paragraphs 67, 69, 70, 71, 79, 145, 147, 174, 175, 179 and 203 in the 2021 Decision were not squarely put in cross-examination by Mr Haywood.

With regard to CAP21’s apprehensions of consequent unfairness and injustice, it is important to make three observations immediately. Firstly, the Tribunal is an administrative review body and a finder of facts, not a Court. While the Tribunal is not bound by the rules of evidence and Tribunal proceedings are not strictly adversarial, it is bound to exercise jurisdiction in accordance with principles of procedural fairness.

Secondly, Mr Haywood represented himself in the previous Tribunal proceedings, without legal qualifications or legal representation. His cross-examination of CAP21 should be considered in this context. To the extent Mr Haywood did not put the specific allegations CAP21 has identified in submissions and those untested allegations were contained in his submissions to the Tribunal, it is very clear from the reasoning set out in the 2021 Decision the Tribunal gave them no weight and made no findings in respect of them.

1. Thirdly, it can readily be accepted some unfairness might result if allegations set out in the Tribunal’s 2021 Decision were not squarely put to CAP21 in cross-examination or by the Tribunal, and an opportunity was not provided for CAP21 to respond to the allegations, before any findings were made about them.[30]

   [30] Ainsworth and Anor v Criminal Justice Commission[1992] HCA 10; (1992) 175 CLR 564 at [27].

2. As can be seen in the text of the 2016 Decision and the 2021 Decision, in each case, the Tribunal made no adverse findings in respect to CAP21 and preferred CAP21’s evidence to that given by Mr Haywood. Each Tribunal concluded it was not necessary to establish the veracity of allegations made by Mr Haywood which were not germane, on review, to the proper determination of his claims for compensation under the applicable provisions of the SRC Act.

3. I have carefully considered the 2021 Decision and the evidence on which it is based. I note Mr Haywood clearly agitated for extensive documents to be given to CAP21 before CAP21 gave oral evidence. In an email addressed to Comcare and the Tribunal on 23 October 2020, Mr Haywood stated:

   During the cross-examination process, I will need those witnesses to refer to documents that appear in the “T” and “ST” documents that have been compiled by the Respondent, as well as the Supplementary Documents I have provided previously and referenced GH01 to GH20 (inclusive).

4. The documents Mr Haywood referred to run to more than 1,800 pages.[31] They include extensive allegations Mr Haywood raised against CAP21 (among others) set out in documents Mr Haywood provided to the Merit Protection Commission and the Fair Work Commission, as well as in respect of an alleged breach of the APS Code of Conduct.[32]

   [31] See Exhibits A2, A3, A4, A5, A6, R1, R2, R3, R4, R5, R6 and R7.

   [32] Exhibit R6, folios 32-300 and 323-364.

5. In a further email on 28 October 2020, Mr Haywood provided more specific information about documents he intended to refer to when cross-examining CAP21 (and other witnesses):

   Please see attached a document which lists each of the “T”, “ST” and Supplementary documents I intend to refer to during the cross-examination of the Respondent’s witnesses (Mr Wickens, Dr Champion and [CAP21]). It would be appreciated if you could confirm that your witnesses will have those documents available to refer to during that process. 

6. The attached document specified only a small subset of the documents Mr Haywood alluded to in the 23 October 2020 email, namely:

   GH012

   GH20

   Section 71 Doc. p49

   ST28.1 (p591 to p596)

   ST28.2 (p598)

   ST28.5

   ST28.6

   ST28.7

   ST28.12

   ST28.18

   ST28.19

   ST29.47

   ST29.48

   ST29.50

   ST29.53

   ST34

   ST40

   ST43

   ST47

   ST48

   ST49

   ST51

7. This aligns with CAP21’s account of being provided a bundle of documents by Comcare’s legal representative shortly before or at the commencement of the hearing.[33] To this extent, CAP21 had opportunity to be alerted to Mr Haywood’s allegations, many of which he had made previously over many years in different administrative processes, including in actions before the Fair Work Commission, to which CAP21 made an extensive response. I note some of the allegations CAP21 identified were put to Mr Haywood in cross-examination by counsel for Comcare, Mr Charles Clark. It can readily be accepted, as a witness, CAP21 did not have opportunity to respond to evidence given by Mr Haywood.

   [33] CAP21 Affidavit at [13] and Tab 3.

8. At this point it is relevant to observe Mr Haywood has made allegations against CAP21 (among others) over a long period. Ms Colwill documented Mr Haywood’s allegations in 2014,[34] and observed Mr Haywood has raised new allegations each time he has raised the matter for consideration. She concluded an antagonistic climate had been created between CAP21 and Mr Haywood.[35] Almost 9 years later, her observations may still be apposite as it appears to me Mr Haywood has continued to raise new allegations against CAP21 in a climate of antagonism. While the recitation by the Tribunal in the 2021 Decision of allegations Mr Haywood has made against CAP21 might, in part, have come as a surprise to CAP21, one might expect this would have been tempered by CAP21’s knowledge of and involvement in the history of grievance and antagonism which was well known to CAP21.

   [34] Exhibit R6, folios 311-314.

   [35] Ibid at folio 321.

9. Furthermore, while it is clear enough Mr Haywood made extensive allegations against CAP21 and, to varying degrees of detail, these are recounted by the Tribunal in the 2021 Decision, the Tribunal’s treatment of Mr Haywood’s allegations was clearly framed by the statutory task it was required to undertake for the purposes of reviewing Comcare’s decision to refuse Mr Haywood’s compensation claim.

10. The Tribunal’s statutory task was to decide afresh if Mr Haywood suffered an ‘injury’ for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in the circumstances alleged in his claim[36]. In paragraph 52 of the 2021 Decision, the Tribunal recited the matters Mr Haywood set out in the claim, namely:

    Unable to perform my work at the level required as a consequence of learning (in approx. June 2014) that I had become the target of malicious lies concocted by my then manager ([CAP21]).

    On 5 June 2014 [CAP21] made a false and misleading written statement about me and signed it. Shortly after that date I received a copy and became aware that the malicious lies about me were distributed within the Department and to the Fair Work Commission.

    [CAP21] made the false statements about me when required to explain why [CAP21] had begun a team meeting joking about female genitalia and had used the repulsive word “CXXT” (pronounced clearly) in from of staff present when doing so. After [CAP21] was reported for making highly inappropriate remarks of a sexual nature in the workplace [CAP21] tried to deflect blame in the form of written false statements (i.e. lies) targeting me.

    I immediately realised these lies would have the effect of ruining my reputation in the workplace and in the eyes of authorities within the Australian government, ruining my good career.

    Immediately upon learning of the lies, I became physically sick. I have suffered health problems ever since and my employment was terminated on 11 December 2014 (after I came forward seeking protection from [CAP21] and to report [CAP21]’s lies to the Department in July 2014 and the FWC in August 2014). On each occasion I provided the name of a staff member (Mr Matthew McCorry) who witnessed [CAP21]’s vulgar behaviour and could confirm [CAP21] had lied in [CAP21]’s statements of 5 June 2014.  

    [36] Exhibit R1, T4.

11. The Tribunal set out the issues to be decided in paragraph [6] of the 2021 Decision, namely:

    (a)  what is the proper classification of Mr Haywood’s claimed psychological condition;

    (b) whether, on or about 30 June 2014, Mr Haywood’s receipt of the FWC Statement caused an ‘aggravation’ of his pre-existing condition pursuant to the SRC Act;

    (c) if so, whether Mr Haywood’s receipt of the FWC Statement constituted ‘employment’, such that the ‘aggravation’ was ‘contributed to, to a significant degree,’ by his employment with the Department pursuant to the SRC Act; and

    (d) whether Comcare is liable to pay compensation to Mr Haywood under section 14 of the SRC Act in respect of his claimed condition.

12. In order to address these issues, the Tribunal made factual findings and decided Mr Haywood’s claim was not made out: Mr Haywood suffered an entrenched adjustment disorder which arose in non-compensable circumstances in 2012 and he did not suffer an aggravation of his existing adjustment disorder in June 2014. Consequently, Comcare was not liable to pay him compensation under s 14 of the SRC Act.

13. The SRC Act provides a ‘no fault’ compensation scheme: it is not necessary to prove fault for an ‘injury’ to be made out. More specifically, it was not necessary for the Tribunal to determine the veracity or truth of, or to make factual findings in respect of, allegations made by Mr Haywood which were outside the scope of the compensation claim he made. The Tribunal in each case was required to properly comprehend and address the submissions made by each party in respect of the evidence and the facts relevant to the matters to be decided. As I have said, CAP21 was a witness and not a party in each of those proceedings.

14. In this context, as the Tribunal did not exercise power to make any adverse findings in respect of CAP21, the recitation of Mr Hayward’s submissions, including allegations against CAP21, does not result in procedural unfairness to CAP21 in the Tribunal proceedings.

15. Nevertheless, the publication of untested allegations against CAP21, without CAP21’s response or rebuttal, is inherently unfair. The resulting prejudice CAP21 apprehends is expressed in terms of “significant distress and embarrassment” which is, in part at least, the result of not being given “the chance to respond to all of the allegations”.[37] CAP21’s apprehension of resulting distress and embarrassment can readily be understood.

    [37] Ibid at [19], [25] and [26].

16. This notwithstanding, the matter must be considered on the basis of principle which Deane J succinctly explained in Australian Broadcasting Commission v Parish[38]:

    Damage and hardship to the individual from the working of legal processes can only be justified if they are warranted by countervailing benefit, or avoidance of prejudice, to the general administration of justice or by the legitimate claims and expectations of other individuals. When not so warranted, such damage or hardship is to the overall prejudice of the administration of justice.[39]

    [38] [1980] FCA 33; (1980) 29 ALR 228.

    [39] Ibid at 255-256.

17. I am satisfied CAP21’s distress and embarrassment does not outweigh the countervailing benefit to the administration of justice of Tribunal review proceedings being conducted in public. This is a powerful accountability mechanism which supports the discipline of impartiality in principled administrative decision-making and weighs heavily against any risk of the Tribunal abusing its powers. This is especially so in review cases of the present kind in which the Tribunal is required to make the correct or preferable decision in respect of a compensation claim for injury on the basis of allegations of bullying or harassment in the APS.

18. Members of the public are well aware of the difference between an unproved allegation made in the Tribunal and the findings of the Tribunal. In the Tribunal review proceedings, which resulted in the 2016 Decision and the 2021 Decision, there is a legitimate expectation Mr Haywood’s injury claims in the circumstances of his (then) APS employment should be thoroughly reviewed on the basis of relevant evidence. As his claims related to circumstances involving CAP21 (among others) in a context of interpersonal conflict, grievances and allegations of bullying or harassment, CAP21’s evidence is of material significance in the 2016 Decision and in the 2021 Decision. So, too, is CAP21’s role and responsibilities in the Department, particularly in relation to Mr Haywood, at the relevant time.

19. Public scrutiny of the evidence given in the Tribunal proceedings is a powerful mechanism for the avoidance of prejudice to the administration of the Tribunal’s statutory functions and the exercise of the Tribunal’s review powers in the making of administrative review decisions. In this context, there is also a legitimate public interest in the administration of the APS and the conduct of APS officers, especially at more senior levels.

20. Grant of the confidentiality orders CAP21 is seeking would curtail public scrutiny of the oral and documentary evidence in the Tribunal’s public hearings and undermine full comprehension of the Tribunal’s reasoning for the 2016 Decision and the 2021 Decision. This would not be consistent with the dual principle of enabling public scrutiny of the way in which the Tribunal decides cases and enabling the public to understand how the administrative decision review system works and why decisions are taken.

21. To the extent CAP21 asserts allegations made by Mr Haywood set out in the 2021 Decision are defamatory, other legal remedies may be open. Non-publication of CAP21’s name in the Tribunal’s 2021 Decision cannot remove any imputed offence. I accept the orders sought would provide anonymity which might prevent the imputation from being compounded. Nevertheless, Mr Haywood’s allegations were made in the context of proceedings before the Tribunal which were conducted in public. The allegations arose from contested versions of events involving CAP21 and Mr Haywood in their (then) workplace. The Tribunal did not accept or verify Mr Haywood’s allegations, and no adverse findings were made in respect of CAP21, whose evidence was preferred over the evidence given by Mr Haywood.

22. I am not persuaded this reason for making the orders sought under s 35(3) and (4) outweighs the public interest in Tribunal proceedings being conducted in public, and Tribunal decisions and the materials and evidence on which they are based being made available to the public.

    Personal prejudice

23. CAP21 alleges personal harm will be caused if the orders sought are not made. CAP21 argues the consequences of this occurrence would be significant: a level of distress or embarrassment surpassing the threshold of desirability under the principle in s 35(5). In CAP21’s submission, CAP21 will suffer professional and personal reputational harm should the 2021 Decision be published without redaction of CAP21’s name and redaction of information tending to reveal CAP21’s identity. The harm is accentuated, CAP21 argues, by the governmental public service character of the Canberra community in which CAP21’s extended family and CAP21’s professional colleagues, including superiors and subordinate officers, reside. CAP21’s personal and professional reputation within the Canberra community, so the argument goes, would be significantly impaired. This harm will be prevented if CAP21’s applications for confidentiality orders are granted under s 35(3).

24. CAP21 asserts the publication of an article in The Australian newspaper in which CAP21 was named in 2016 does not contradict the present confidentiality applications. CAP21 asserts the subject matter, findings and evidence set out in the 2021 Decision are substantially different than those contained in the 2016 Decision which was reported in the 2016 article. I accept this is correct, but the existence of previously published media reports naming CAP21 in the public domain cannot be expunged or supressed by the confidentiality orders CAP21 is seeking.

25. The 2016 Decision and the 2021 Decision were the result of Tribunal proceedings and hearings conducted in public. CAP21 gave evidence in public. The documentary evidence is in the public domain. No orders were sought or made at the time to supress the submissions made by each party or any findings of the Tribunal. I accept the 2021 Decision describes the evidence and the submissions made in reasons for its findings and decision. CAP21 was directly involved in the employment circumstances Mr Haywood alleges caused the ailment for which he claimed compensation. The documents taken in evidence reveal Mr Haywood has agitated grievances and allegations against CAP21 (among others) for a long time, since 2012, and, in doing so there has been some escalation with new allegations being made against CAP21 and in respect of Tribunal members.

26. In these circumstances, particularly in consideration of the pointed accusations Mr Haywood has levelled against CAP21, it can readily be accepted CAP21 might experience significant distress and embarrassment in the community if the 2021 Decision is published without redaction of CAP21’s name and identifying information.

27. This must be considered on the basis of the principle set out in s 35(5), and the norm established in s 35(1), that it is desirable for the Tribunal’s 2021 Decision and the evidence on which it is based to be made available to the public.

28. The Tribunal made no adverse findings in respect of CAP21’s credit or conduct in the 2021 Decision (or in the 2016 Decision) and its discussion of the evidence is integral to the reasoning on which the decision was based. I am not persuaded the level, nature or extent of the distress and embarrassment CAP21 apprehends outweighs the desirability that the evidence given and the contents of relevant documents should be made available to the public. Even though the distress and embarrassment might be significant, I am not persuaded this is a sufficient reason to justify making the orders sought under s 35(3) and (4).

    Professional harm

29. The professional harm CAP21 asserts has 3 elements: CAP21’s professional reputation as an APS officer with over 40 years’ experience will be impaired; CAP21’s professional relationships with colleagues, and officers under CAP21’s supervision and management, will be adversely affected; and CAP21’s future employment prospects, including prospects of promotion, within the APS will be reduced. CAP21 argues each of these elements will be prevented if the confidentiality orders sought are made and, when considered on the basis of the principle set out in s 35(5), this is a sufficient reason to exercise the discretion conferred in s 35(3).

30. I have carefully considered the materials and submissions CAP21 has made on this point. I am not satisfied the submissions have substance, although I accept CAP21 may feel professionally apprehensive, embarrassed and distressed by the prospect of the 2021 Decision, the 2016 Decision and the Confidentiality Decision being published without redaction of CAP21’s name or information which tends to identify CAP21.

31. In the substantive proceedings which led to the 2016 Decision and the 2021 Decision, the Tribunal had extensive documentary evidence placed before it, which the Tribunal carefully considered and referred to in the reasons given for each Decision. The absence of adverse findings in respect of CAP21 is a significant factor in the assessment of the risk of reputation harm CAP21 asserts. For example, even though Ms Colwill reported CAP21 may have given false evidence and may have misrepresented facts to the Fair Work Commission, she concluded the weight of evidence supported CAP21’s version of events and CAP21’s conduct is counter-balanced by Mr Haywood’s untruthfulness and bad behaviour.

32. CAP21 denies any apprehensions of harm are attributable to the findings recorded in Ms Colwill’s preliminary investigation report. To the extent the findings are adverse to CAP21, and I note Ms Colwill preferred CAP21’s account to that of Mr Haywood, they cannot be suppressed by confidentiality orders of the kind CAP21 is seeking, although the anonymity sought might reduce the possibility of any adverse effect on CAP21’s professional reputation. That said, I am not persuaded any such effect would go beyond distress or embarrassment.

33. In the 2021 Decision, the Tribunal expressly rejected Mr Haywood’s allegations and stated in paragraph 203:

    … If Mr Haywood believed from the January 2012 Meeting that he had been sexually harassed, this issue would have no doubt been prominent in his case before the Tribunal in 2016. It was not; and the Tribunal does not accept that Mr Haywood only recently raised this matter because of the associated embarrassment, together with his humiliation and upbringing. Mr Haywood asserted that this alleged sexual harassment caused the termination of his public service career. If this was true, it would have featured prominently in all of the various legal, administrative and bureaucratic actions he has commenced since 2014. In addition, Mr Haywood told the Tribunal that he did not want to harm [CAP21]’s career so did not previously raise allegations of sexual harassment. This also cannot be accepted by the Tribunal in circumstances where Mr Haywood made a range of claims against [CAP21] that essentially called into question [CAP21’s] fitness for employment, including that [CAP21] breached the Public Service Act and various other instruments related to her employment, perjured [themself] in this proceeding and committed ‘illegal acts’ against him. For the avoidance of doubt, and noting again the limits of the Tribunal’s jurisdiction in this proceeding, it does not accept any of these assertions in relation to the specific matters the subject of this proceeding.

1. To the extent Mr Haywood asserts CAP21 gave incomplete or different evidence in 2016 and 2021, this is not a matter which goes to the confidentiality issues the Tribunal must presently decide. In order to deal with CAP21’s confidentiality applications, the Tribunal is not concerned with the veracity of the evidence given or the findings made (or not made) in the substantive proceedings which resulted in the 2016 Decision and the 2021 Decision, or the way in which each Tribunal dealt with the evidence or explained the reasons for each decision. That said, I note there was a large volume of documentary evidence, including statements, notes and communications by CAP21, which does not lend support to Mr Haywood’s allegations or to his assertions of injustice. Faced with such material, one can readily understand why the Tribunal considered it desirable to recount the evidence given and the submissions of the parties in detailed reasons for the 2021 Decision. For present purposes, publication or non-publication of CAP21’s name and information which tends to identify CAP21 cannot prevent any injustice Mr Haywood perceives in the public conduct of those proceedings.

2. CAP21’s submissions in respect of professional harm or prejudice lack substance, although I accept CAP21 apprehends significant distress and embarrassment will result from publication of CAP21’s name and information which tends to identify CAP21. CAP21’s apprehensions in respect of colleagues and subordinates, and about future promotions, can readily be understood, but on the present materials these apprehensions of professional harm have no material basis. On balance, I am not satisfied this reason justifies departing from the principle in s 35(5) and exercising the discretion to make the orders sought under s 35(3) and (4).

   Prejudice to the administration of justice

3. CAP21 asserts particular consideration should be given to CAP21’s status as a witness who is not a party to the substantive proceedings. The proposition runs on two legs. Firstly, CAP21 asserts the publication of the identity of a witness raises different considerations than publication of the identity of a party. Secondly, CAP21 argues prior knowledge of defamatory comments in the 2021 Decision would have deterred CAP21 from giving evidence in the proceedings, and publication of Cap21’s identity might have a chilling effect on the willingness of witnesses to voluntarily come forward to assist Comcare or to give evidence in Tribunal proceedings.

4. With regard to the first leg of CAP21’s assertion, I accept different considerations might arise when addressing a confidentiality application under s 35 in respect of a witness rather than a party in proceedings.

5. Nevertheless, the public interest in the principles of open justice must be considered in the particular factual circumstances of any case and this must be weighed against any reasonable justification to suppress the identity of a witness.[40]

   [40] Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217 per Heerey and Weinberg JJ at [21]-[22]; R v Millan [2018] WADC 110 at [37]-[38].

6. There are some difficulties characterising CAP21 as a witness who is an innocent or disinterested bystander who would prefer not to be involved in determination of Mr Haywood’s compensation claims. The long history between CAP21 and Mr Haywood, and the antagonistic climate Ms Colwill described between them, underscores the difficulty. While CAP21 has no direct interest in the outcome of Mr Haywood’s compensation claims, the same cannot be said in respect of the circumstances in which he claims he was injured. CAP21 was directly involved as a supervisor and as a senior manager in the employment circumstances Mr Haywood alleges caused the injuries for which he claimed compensation. On the facts, CAP21’s case is distinguished from previous Tribunal cases cited in submissions. CAP21 was not given and did not seek confidentiality orders prior to publication of the 2021 Decision.

7. With regard to the second limb of CAP21’s assertion, the proposition publication of CAP21’s identity would inhibit future APS witnesses lacks substance. Many are the cases in which APS employees with relevant information are called as witnesses to give public evidence in workers’ compensation cases proceeding before the Tribunal. Where necessary, APS witnesses may be summonsed to give evidence under s 40A of the AAT Act. There is a powerful public interest in the Tribunal providing mechanisms for review which are impartial, proportionate and promote public trust and confidence: s 2A. The principle set out in s 35(5) is an important feature of the merits review scheme the AAT Act provides. It is for this reason the conduct of Tribunal hearings in public and the publication of Tribunal decisions with explanatory reasons are the norm. As Brennan J made very clear in Re Pochi and Minister for Immigration and Ethnic Affairs,[41] the discretion to depart from the principle should be exercised sparingly, in exceptional cases out of the ordinary run, where there is a real possibility of doing injustice to or inflicting serious disadvantage upon a party or a witness if the proceedings are in public, or publication of the proceedings would be contrary to the public interest.

   [41] (1979) 2 ALD 23 at 53-56.

8. I am not persuaded this is such a case. In consideration of the available materials and CAP21’s submissions, I am not satisfied there is a real possibility of injustice or serious disadvantage being inflicted upon CAP21 if the orders CAP21 is seeking are not made.

9. CAP21’s submission that APS officers with relevant information would be reluctant to voluntarily assist Comcare or the Tribunal should CAP21’s name or identify be published cannot be accepted for two key reasons.

10. Firstly, CAP21’s name was published in the 2016 Decision and it was reported in the media. In that context, CAP21’s identity remained in the public domain for several years. There is no evidence to suggest this had an adverse effect on the willingness of APS officers to provide relevant information to Comcare or in Tribunal proceedings. While the 2021 Decision contains more detailed discussion of evidence given to the Tribunal and the submissions of the parties, I am not persuaded there is a real possibility publication of CAP21’s identity in that context would have the chilling effect on potential witnesses and APS officers CAP21 asserts.

11. Secondly, under s 71 of the SRC Act, Comcare has powers to obtain relevant information from Commonwealth authority or a licensee in respect of a compensation claim by an employee. In the ordinary course, this is what occurs and, in response to a notice issued under s 71, the authority is required to comply. Commonly, compliance requires the compilation of relevant information within the terms of Comcare’s notice, including from other employees and managers, when responding to a compensation claim. In such circumstances, it would not be tenable for an APS employee, particularly a senior APS manager, to withhold relevant information.

12. I am not persuaded there is a public interest in supressing CAP21’s name or information which tends to identify CAP21, or that publishing such information in the context of the 2016 decision, the 2021 Decision and the Confidentiality Decision is against the public interest.

    Other considerations

13. The reasons CAP21 has given for suppression of CAP21’s name and information which tends to identify CAP21 in the 2016 Decision and the Confidentiality decision are, primarily, to ensure the utility of the orders sought in respect of the 2021 Decision.

14. The cogency of this reasoning can readily be understood. As I am satisfied CAP21’s application for confidentiality orders in respect of the 2021 Decision is not made out, the application for related and consequential orders in respect of the 2016 Decision and the Confidentiality Decision fall away

15. Insofar as CAP21’s applications in respect of the 2016 Decision and the Confidentiality Decision stand alone, I am satisfied there is no compelling reason advanced, additional to those I have addressed already, to redact CAP21’s name and the information which tends to identify CAP21 from the 2016 Decision and the Confidentiality Decision.

16. CAP21’s evidence was of material relevance in the substantive Tribunal proceedings. Determination of Mr Haywood’s compensation claims under the statutory scheme of the SRC Act and, on review, the AAT Act, required careful consideration of the evidence given by Mr Haywood and CAP21 (among other witnesses), including conflicts in their evidence, with particular regard to their respective employment roles and related circumstances of relevance to Mr Haywood’s compensation claims. In this context, CAP21’s identity and professional role were material factors in the Tribunal’s assessment of the evidence given when making the 2016 Decision and the 2021 Decision.

    Conclusion

17. In conclusion, CAP21’s applications for confidentiality orders are not made out.

18. Publication of material evidence, including CAP21’s identity and professional role in the circumstances in which Mr Haywood claims he was injured, serves to promote the values protected by the principle in s 35(5) of the AAT Act. Furthermore, publication of CAP21’s identity and professional role serves to reinforce the impartiality and comprehensibility of the 2016 and the 2021 Decisions.

19. Suppression of evidence in respect of CAP21’s identity and professional role would serve to undermine public trust in the proper exercise of power by the Tribunal and public confidence in the impartiality of the Tribunal’s Decisions, and it would diminish public comprehension of the reasons for the 2016 Decision and the 2021 Decision.

20. Against this it is necessary to weigh the prejudice CAP21 asserts will result if the orders sought are not made. The unfairness, embarrassment and distress CAP21 may experience can readily be understood. These are reasons weighing in favour of granting the orders sought. The contentions CAP21 will suffer professional disadvantage and reputational harm are not made out as real rather than remote possibilities.

21. On balance, the reasons for making the orders sought under s 35(3) and (4) do not outweigh and are not sufficient to justify departing from the principle set out in s 35(5) which is the basis for the Tribunal’s consideration, namely that the hearing of an application should be in public and the Tribunal’s decision, including the evidence given, should be made available to the public.

22. In order to preserve the utility of CAP21’s applications during the period in which an appeal in respect of this decision under s 44 of the AAT Act may be lodged in the Federal Court, the interim orders issued on 19 September 2022 will remain in effect henceforth for the period of 28 days after this decision is given to CAP21 and the parties. Furthermore, in order to preserve the utility of Mr Haywood’s separate application for confidentiality orders, it is appropriate to issue additional interim orders under s 35(4) to restrict publication of this decision to the parties for the period of 28 days after this decision is given, whereupon if no appeal is lodged the interim orders will end.

    Decision

23. Applications for confidentiality orders refused.

129.    I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

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

Associate

Dated: 3 August 2023

Application decided on the papers
Date final submissions received	5 July 2023
Solicitor for Interlocutory Applicant	Ms R Byrne, Maddocks Lawyers
Counsel for the Interlocutory Applicant	Ms D Forrester, with Ms N Maddocks
Applicant:	Self-represented
Solicitor for Respondent:	Ms L Hinwood, Sparke Helmore