Chief Executive Officer of the Australian Transaction Reports and Analysis Centre v TAB Ltd

[2022] FCA 1522

FEDERAL COURT OF AUSTRALIA

Chief Executive Officer of the Australian Transaction Reports and Analysis Centre v TAB Ltd [2022] FCA 1522  

File number:	NSD 852 of 2015
Judgment of:	WIGNEY J
Date of judgment:	16 December 2022
Catchwords:	PRACTICE AND PROCEDURE – respondents' application for extension of non-publication order – where order made for five years expiring in December 2022 – where need to suppress respondents' systems and processes to address risk of respondents' services being used for money laundering or terrorism financing substantially the same as at the time the expiring non-publication order was made – confidentiality order made under s 37AF of Federal Court of Australia Act 1976 (Cth)
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37AF
Cases cited:	Chief Executive Officer of the Australian Transaction Reports and Analysis Centre v TAB Limited (No 4) [2017] FCA 1532
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Economic Regulator, Competition and Access
Number of paragraphs:	6
Date of last submission:	13 December 2022
Date of hearing:	Determined on the papers
Solicitor for the applicant:	Australian Government Solicitor
Counsel for the respondents:	Ms E Bathurst
Solicitor for the respondents:	Herbert Smith Freehills

ORDERS

NSD 852 of 2015

BETWEEN:

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN TRANSACTION REPORTS AND ANALYSIS CENTRE

Applicant

AND:

TAB LIMITED

First Respondent

TABCORP HOLDINGS LIMITED

Second Respondent

TABCORP WAGERING (VIC) PTY LTD

Third Respondent

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	16 DECEMBER 2022

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the information identified in Schedule A, being information contained in the document entitled “Confidential Annexure 1” to the statement of agreed facts filed on 22 February 2017 (Agreed Facts), be kept confidential and not be published or otherwise disclosed to any person other than the parties or their legal representatives on the grounds that the order is necessary to prevent prejudice to the proper administration of justice.

2.Order 1 will operate for a period of 5 years from these date of these orders, being 16 December 2022.

3.Liberty to apply on 3 days’ notice.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1. On 18 December 2017, a Judge of this Court made a non-publication order in this proceeding pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) the effect of which was that certain specified information in a statement of agreed facts be kept confidential and not be published or disclosed other than to the parties or their legal representatives. The stated ground for the making of the order was that it was necessary to prevent prejudice to the proper administration of justice. The judge ordered that the non-publication order was to operate for 5 years from the date of the orders: see Chief Executive Officer of the Australian Transaction Reports and Analysis Centre v TAB Limited (No 4) [2017] FCA 1532 at [19]-[20].

2. The non-publication order is about to expire.  The respondent to the proceeding, TAB Limited, has applied for another non-publication order to be made in respect of the information covered by the original non-publication order.  The further non-publication order would operate for five years from the date of the order.  The applicant in the proceeding, the Chief Executive Officer of the Australian Transaction Reports and Analysis Centre, consents to the making of the orders sought by TAB.

3. TAB’s application was supported by an affidavit affirmed by its Chief Legal and Risk Officer, Mr John Fitzgerald.  The substance and effect of Mr Fitzgerald’s evidence was that the information that was the subject of the original non-publication order remains confidential and that the need to retain the confidentiality of the information is as strong now as it was when the original non-publication orders were made. 

4. In summary, the information concerns systems and processes that TAB and associated companies put in place some years ago in order to address the risk that individuals will use their wagering services to launder money or finance terrorism.  Subject to some minor variations, those systems and processes essentially remain operative today.  They enable TAB and its associated companies to detect and monitor certain activity, such as unusual and potentially suspicious transactions.  They also enable TAB and its associated companies to comply with their obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act2006 (Cth). The information is not public knowledge. Mr Fitzgerald’s evidence was that if the confidential information was disclosed, there is a risk that individuals would be able to circumvent those systems and processes.

5. I have carefully read Mr Fitzgerald’s affidavit and the documents to which reference is made therein. I am satisfied that the making of a further non-publication order is necessary to prevent prejudice to the proper administration of justice for essentially the same reasons as those given by the Judge who made the original non-publication orders. Disclosure of the confidential information would create a risk that individuals would circumvent the systems and processes that TAB has put in place to comply with their obligations under the Anti-Money Laundering Act and to prevent money laundering and the financing of terrorism. I am also satisfied, for the purposes of s 37AF(2) of the Federal Court Act, that it is reasonably necessary for the new non-publication order to have a duration of five years in order to achieve the purpose for which it is made.

6. Orders will accordingly be made in accordance with the short minutes of orders that TAB provided to the Court.           

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.

Associate:

Dated:       16 December 2022

Schedule A

Federal Court of Australia No. NSD 852 of 2015

District Registry: New South Wales

Division: General

Item	Paragraph	Parts of the Agreed Facts to be kept confidential
1	[116(a)]	The words following the words “ACTRAP was an automated system” and to the end of that sub-paragraph.
2	[116(b)]	The words following the words “The BANA system is” and to the end of that sub-paragraph.
3	[117(a)]	The words following the words “REX is a system that” and to the end of that sub-paragraph.
4	[117(c)]	The words following the words “HULC is a system that” and to the end of that sub-paragraph.
5	[118(a)]	The whole of the sub-paragraph.
6	[118(b)]	The whole of the sub-paragraph.
7	[118(c)]	The whole of the sub-paragraph.