CAP21 and Comcare (Compensation)

This decision concerned applications by CAP21 for confidentiality orders in relation to previous decisions of the Administrative Appeals Tribunal (AAT) and the Federal Court. The dispute arose from Mr Haywood's claim for compensation against Comcare for an alleged injury sustained in his previous employment with the Commonwealth Department of Environment, which he asserted was caused by circumstances involving CAP21, his former supervisor. Mr Haywood had made allegations of bullying, sexual harassment, and unfair treatment against CAP21. The matter came before Mr S. Webb, Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether to grant CAP21's applications for confidentiality orders to prohibit or restrict the publication of CAP21's name or identifying information in relation to the 2016 Decision and the Confidentiality Decision. CAP21 argued that publication would cause prejudice, reputational harm, embarrassment, and distress, and that as a witness, rather than a party, different considerations applied. CAP21 also contended that prior knowledge of defamatory comments had deterred them from giving evidence and that publication of their identity might have a chilling effect on future witnesses.

The Member found that while CAP21 apprehended significant distress and embarrassment, these apprehensions of professional harm lacked material basis. The Tribunal accepted that different considerations might arise for a witness compared to a party when considering confidentiality under section 35 of the Administrative Appeals Tribunal Act 1975, but emphasised the public interest in open justice. The Member noted that CAP21 was not an innocent bystander, given their direct involvement as a supervisor in the employment circumstances giving rise to Mr Haywood's claim. The Tribunal also found that the assertion that publication would inhibit future Australian Public Service witnesses lacked substance, as public evidence from APS employees in workers' compensation cases was common. The discretion to depart from the principle of public hearings and published decisions, as set out in section 35(5) of the AAT Act, was to be exercised sparingly and only in exceptional cases where there was a real possibility of injustice or serious disadvantage.

CAP21's applications for confidentiality orders were refused.