Carter and Tax Practitioners Board (Practice and procedure) - [2025] ARTA 632

Carter and Tax Practitioners Board (Practice and procedure) [2025] ARTA 632 (21 May 2025)
Applicant/s:  Ashley Carter
Respondent:  Tax Practitioners Board
Tribunal Number:                2024/11186

Tribunal:GM J Ross
Place:Canberra
Date:21 May 2025

Decision:The application for confidentiality orders under ss 69 and 70 of the Administrative Review Tribunal Act 2024 (Cth) is refused.

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GM J Ross
CATCHWORDS
PRACTICE AND PROCEDURE – application for confidentiality orders –presumption of openness and transparency of proceedings – considerations Tribunal must have regard to when making confidentiality orders – whether harm is likely to occur – whether reputational damage is likely to occur – application for confidentiality orders refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Administrative Review Tribunal Act 2024 (Cth) ss 69, 70, 71
CASES
Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185
Carter and Tax Practitioners Board [2017] AATA 528
Hanieh and Tax Practitioners Board [2024] AATA 3251
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33
SECONDARY MATERIALS
Administrative Review Tribunal (Common Procedures) Practice Direction 2024
Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024
Statement of Reasons
INTRODUCTION

The Applicant has requested the making of confidentiality orders under ss 69 and 70 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) in relation to his application lodged on 28 December 2024 for review of a decision by the Tax Practitioners Board (Respondent) to refuse his application to be registered as a tax agent under the Tax Agent Services Regulations 2022 (Cth).
BACKGROUND
At a directions hearing on 24 February 2025, the Applicant made an oral request for confidentiality orders. Following the directions hearing, I directed the Respondent to advise the Tribunal on or before 7 March 2025 of its position in relation to the making of confidentiality orders. I also directed that the matter be listed for conference and, if that event fails to settle the matter, be listed for a further Directions Hearing to confirm if the Applicant wishes the Tribunal to list the matter for hearing.
The matter did not proceed to conference due to receiving the Applicant’s written request for confidentiality orders and confirmation by the Respondent that it opposed the making of such orders. It was therefore listed for an interlocutory hearing on 22 April 2025 to hear the parties’ submissions on this issue. Due to some unfortunate miscommunication between the Tribunal and the Respondent, the Respondent’s representative failed to attend. Considering this and due to the poor state of the Applicant’s mental and physical health, I decided that relisting the matter for hearing was not the best course of action given the written submissions I had before me were comprehensive and enabled me to adequately determine the application. In addition, by this stage, the Respondent had also filed their statement of facts, issues and contentions and the Applicant had provided his written submissions. The parties agreed to this approach.
ISSUE
The issue…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 632
Decision Date: 21 May 2025

CaseChat Overview and Summary

In the matter of Carter and Tax Practitioners Board, the applicant sought confidentiality orders under sections 69 and 70 of the Administrative Review Tribunal Act 2024 (Cth). The dispute centred around the presumption of openness and transparency in the proceedings and the appropriate considerations for granting confidentiality orders. The court was tasked with determining whether harm was likely to occur and whether reputational damage was likely if the proceedings were not kept confidential.

The legal issues revolved around the principles of open justice and the circumstances under which confidentiality orders should be granted. The court had to consider whether the nature of the reviewable decision warranted confidentiality and whether the public interest in transparency outweighed the applicant's concerns about potential harm. The respondent argued that the default position for tribunal proceedings is openness and maximum disclosure, and that confidentiality orders should only be made if there are clear and compelling reasons to do so.

The court held that there was nothing inherently sensitive about the reviewable decision, which was a standard regulatory decision by a public regulator. Given the public interest in ensuring that regulatory matters are heard and determined in a public forum, the court refused to issue confidentiality orders. The court emphasised that open justice was a paramount consideration and that issuing confidentiality orders in this case would thwart the objective of promoting public trust and confidence in the tribunal's proceedings.

The court concluded that the application for confidentiality orders was refused. The decision underscored the importance of open justice and the principle that regulatory decisions should be made public to maintain the integrity of the regulatory scheme. The court found that the applicant had not established the necessary factors to warrant the departure from the default position of openness and transparency in tribunal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GM J

Like in Hanieh, there is nothing inherently sensitive or confidential about the Respondent’s reviewable decision.[22] It is a standard regulatory decision by a public regulator and therefore to ensure the integrity of the regulatory scheme should be made public. The Respondent made a choice to engage with the regulatory scheme and was in a position to foresee the risk of doing so. [22] Ibid at [46v].CONCLUSION In summing up, it would thwart open justice if confidentiality orders were issued to prevent the likelihood of harm occurring to an Applicant because a review of a reviewable decision may not go the way they want and they may not necessarily agree with the reasons why. To issue confidentiality orders in such circumstances would not advance the Tribunal’s statutory objective of promoting public trust and confidence in the Tribunal by conducting proceedings in an open and transparent way. The application for confidentiality orders under ss 69 and 70 of the Administrative Review Tribunal Act 2024 (Cth) is refused.

Ratio Decidendi

Legal Principle Established

Established by: GM J

The Respondent relied on several Tribunal and Court authorities to submit that:(a)open hearings and maximum disclosure are the ‘default’ for Tribunal proceedings;(b)confidentiality orders should not be made unless the case is extraordinary and there are clear and good reasons for making such orders;(c)orders should only be made if the administration of justice would otherwise be frustrated;(d)to depart from the default position stated above, the Tribunal needs to determine whether the making of confidentiality orders would be in the public interest;(e)the by-product of open justice is that extremely personal, damaging and confidential information may become public;(f)there is a particular public interest in ensuring that regulatory matters of the type involved here are heard and determined in a public forum; and(g)the Applicant bears the onus of establishing the relevant factors above with proper material.[12] [12] Ibid at [10–14].CONSIDERATION On the issue of the general rule in s 69 of the ART Act that hearings of proceedings before the Tribunal should be in public, the consequence of conducting a hearing virtually using the Microsoft Teams platform means that in practice usually only the parties and their representatives are admitted to the virtual hearing. Given the Applicant’s health concerns, a hearing using the Microsoft Teams platform rather than in person would appear an appropriate way to manage such concerns. Asides from that, I do not consider there to be other good or valid reasons to depart from the normal way in which the Tribunal conducts its proceedings. In its submissions, the Respondent referred the Tribunal to Hanieh and Tax Practitioners Board[13] (Hanieh) where Senior Member Benk said that: “the Tribunal must generally conduct a proceeding on the basis of openness, in the interests of maintaining public confidence in the fairness and integrity of that proceeding, and that the Tribunal should only depart from this approach if it is satisfied that there are proper and cogent reasons for doing so… [Confidentiality] orders would hinder ‘open justice’, which is the paramount consideration in assessing whether such orders are to be made. This, in my view, is a crucial and central feature of our legal system. The reason for the principle of open justice is that, if the proceedings are fully exposed to public and professional scrutiny and criticism, interested observers are able to follow and comprehend the evidence, submissions and reasons for judgment, then public administration of justice will be enhanced and confidence in the integrity and independence of the Tribunal will be maintained. Not only does the conduct of proceedings publicly, and in open view, assist in removing doubts and misapprehensions about the operation of the system, it also limits the opportunity for abuse and injustice …”[13] [2024] AATA 3251 at [42] and [46(i)]. I give these comments great respect and regard. However, I need to consider whether the circumstances in Hanieh are analogous to the circumstances in this matter. This is because no physical or mental health concerns were raised by the applicant in Hanieh and it was decided under the AAT Act that did not explicitly state for consideration the reasons in favour of making an order.