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 at this stage of the matter is having regard to the considerations in s 71(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) should confidentiality orders be made under ss 69 and 70 of the ART Act.
It is understood that the Applicant is seeking that the hearing be held in private (s 69), and that the publication or disclosure of information tending to reveal the identity of a party or witness and others to the proceedings is restricted (s. 70) using pseudonyms.
LEGAL PRINCIPLES
Section 69 of the ART Act provides that, as a general rule, the hearing of a Tribunal proceeding must be in public unless an exception applies. Those exceptions are where the practice directions require a private hearing or the Tribunal orders that:
(a)the hearing (or part of it) is to be in private; and
(b)only certain persons can be present.
The Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (Explanatory Memorandum) states that section 69 is equivalent to ss 35(1) and 35(2) of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).[1] However, the ability for the practice directions to prescribe when a hearing must be held in private is a new addition.[2] The Explanatory Memorandum also states the new addition recognises the important principles of transparency and open justice while also acknowledging that there are circumstances in which a private hearing is justified.[3] The Explanatory Memorandum also states that allowing rules to be specified in the practice directions offers clarity to applicants regarding when they can expect their hearing to be held in private and when they need to apply for a specific order.[4] Relevantly, the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 provides that if a party wishes that a hearing should be held in private they must make an application to the Tribunal advising the reason why this is necessary.[5]
[1] Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024, page 78.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] At [5.7].
Section 70 of the ART Act provides the Tribunal with the power to order that information tending to reveal the identity of the parties, witnesses and person related or otherwise associated with them not be published or disclosed. The order may prohibit or restrict the publication or other disclosure to some or all of the parties to the proceeding. Section 70 is in similar terms to ss 35(3) and 35(4) of the AAT Act.[6] The standard practice that has been used to restrict publication or disclosure is by the Tribunal allocating a pseudonym to the Applicant etc. instead of their name or the non-publishing of the reasons for decision.
[6] Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024, page 79.
Section 71 sets out the requirements that apply to the Tribunal’s consideration when deciding whether to make an order under ss 69 and 70.
SUMMARY OF SUBMISSIONS RECEIVED
Applicant’s submission
The Applicant provides that the primary reason for requesting the confidentiality orders is medical.[7] In support of his application, a letter from Dr Aung Lynn was provided to the Tribunal which confirmed that the Applicant has experienced significant mental and physical harm resulting from the decisions made by the Respondent.[8] Dr Lynn’s letter also states that the Applicant reported signs and symptoms consistent with Major Depressive Disorder and Post Traumatic Stress Disorder following details of the decision made by the Respondent being placed on the public record.[9]
[7] Applicant’s submissions on confidentiality application, page 2.
[8] Letter to the Administrative Review Tribunal from Dr Aung Lynn, 11 April 2025.
[9] Ibid.
The Applicant submits that the effect of the reporting of his previous case Carter and Tax Practitioners Board[10] in 2017 is that incorrect information that was submitted by the Respondent remains for public view. He also submits that the public record reflects a gross misrepresentation of the actual facts of the matter.
[10] [2017] AATA 528.
Respondent’s submissions
The Respondent submits that the general principle of open justice is a fundamental aspect of the administration of justice, the rule of law and public accountability. The Respondent also submits that the ART Act expressly contains provisions endorsing this principle.[11]
[11] Respondent’s submission in relation to the Applicant’s confidentiality application at [7]–[8].
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.
Section 71(2) of the ART Act is cast in slightly different terms to s 35(5) of the AAT Act in that s 71(2) requires that the Tribunal must have regard to a number of considerations when deciding whether to make an order, including reasons in favour of making an order:
(2) In considering whether to make an order under subsection 69(3) or section 70 in relation to a proceeding, the Tribunal must have regard to the following:
(a) the principle that it is desirable that hearings of proceedings in the Tribunal are held in public;
(b) the principle that it is desirable that evidence given before the Tribunal is made available to the public;
(c) the principle that it is desirable that evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding;
(d) any reasons in favour of making an order, including the following:
(i) in any case--the circumstances of the parties to the proceeding and other persons connected to the proceeding;
(ii) in any case--the harm (if any) that is likely to occur to a person if the order is not made;
(iii) in relation to an order under section 70--the confidential nature (if any) of the information;
(e) any other matters that the Tribunal considers relevant.
The Explanatory Memorandum states that s 71(2) is equivalent to s 35(5) of the AAT Act. However, the Explanatory Memorandum also states that refinements have been made to ensure there is an ‘adequate balance between the principle of open justice and the need to protect sensitive, confidential and/or personal information’.[14] The Explanatory Memorandum provides examples of considerations that may favour the granting of an order such as the particular vulnerabilities of the parties, whether the information may cause reputational damage to the party and whether the safety of a party may be compromised.[15]
[14] Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 at page 79.
[15] Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 at page 79.
The statement that clause 71(2) is equivalent to s 35(5) of the AAT Act has presumably been made to ensure that the wording changes do not upset the body of jurisprudence that that has built up around the making of confidentiality orders. This makes the authorities relevant to the principles to be applied in respect of s 35(5) of the AAT Act still relevant. However, the greater specificity that is provided in the new section provides clarity around how that balance can be struck. I find such clarity useful for this matter given that the Applicant is claiming that harm will occur if confidentiality orders are not made.
As stated above, the requirement for the Tribunal to balance the principles of open justice and procedural fairness with the circumstances of the parties and the harm that could result if an order is not made has not changed.
The consideration that may favour the granting of an order relevant to this matter is found in s 71(2)(d)(ii) ‘the harm (if any) that is likely to occur to a person if the order is not made.’
The ‘harm’ the Applicant is asserting is ‘medical’. The evidence that has been provided about whether such harm is ‘likely to occur’ is a letter from his doctor.
The Applicant’s doctor confirmed that he did experience significant mental and physical harm resulting from the impact of the previous decisions made by the Tax Practitioners Board.[16] His doctor further states that it was following the details of those decisions being placed on the public record that he reported signs and symptoms consistent with the stated mental disorders. The Applicant’s doctor says that it may be acceptable for Mr Carter to continue with his application if it was subject to a confidentiality order.[17]
[16] Letter to the Administrative Review Tribunal from Dr Aung Lynn, 11 April 2025.
[17] Ibid.
The Applicant submits that the details of the decisions are incorrect and that the public record reflects a gross misrepresentation of the circumstances and facts.[18]
[18] Applicant’s submissions on confidentiality application, page 2.
Therefore, any harm to the Applicant caused by previous interactions with the Respondent and the Tribunal appears to have arisen from decisions which he considers are wrong and the consequential placing of what he considers to be misinformation on the public record.
The Applicant’s submissions did not support that restricting the public availability of information was necessary to secure the proper administration of justice.[19] The only indication of justice being frustrated if confidentiality orders were not granted is the Applicant’s doctor statement ‘that it may be acceptable for Mr Carter to continue with the action if it was subject to a confidentiality order’ meaning that if orders are not granted, the Applicant should not continue. However, the Applicant’s doctor has made this statement without consideration of the impact that the correctness, preferability or otherwise of the Tribunal’s decision has had on the Applicant’s health. In any event, the making of confidentiality orders will not prevent harm being caused to the Applicant if the decision of the Tribunal does not go his way.
[19] Hanieh at [42]. Senior Member Benk with reference Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33. The departure from the principle of open justice is only justified where observance of the principle would frustrate the administration of justice.
In addition, unforeseen reputational damage is not a cogent reason for departing from the principle of open justice.[20] I appreciate that the Applicant may have experienced humiliation, embarrassment and reputational damage from the publication of the decision and reasons on his previous matter before the Tribunal. However, he does not provide details of the reputational harm that actually occurred or is likely to occur if further information about his dealings with the Respondent are placed on the public record. His doctor said that the impact to his health was exacerbated by the ‘dispersions cast upon his character’ which were made public. This statement appears to be premised on the basis of the Tribunal’s decision not being correct or preferable. As stated in Hanieh the fact that embarrassing, damaging and inconvenient facts come to light during as a result legal proceedings is sometimes an ‘unavoidable by-product, and a necessary consequence, of the applicant of the principle of open justice’.[21]
[20] Hanieh at [45]. Senior Member Benk with reference to Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185.
[21] Ibid at [46iii].
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.