DLH v Nationwide News Pty Ltd

[2018] NSWCATAD 92

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92
Hearing dates:	28 March 2018
Date of orders:	27 April 2018
Decision date:	27 April 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. Disclosure of the applicant’s name is prohibited.
Catchwords:	INTERLOCUTORY PROCEEDINGS – application to prohibit disclosure of applicant’s name – where applicant is a transgender person – whether desirable to make a suppression order – applicability of common law principle of open justice
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW) (repealed) Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), s 49, s 64 Magistrates’ Court Act 1989 (Vic) Privacy Act 1988 (Cth), s 6 Privacy and Personal Information Protection Act 1998 (NSW), s 4
Cases Cited:	ACE v State of NSW (TAFE Commission and DET (No 2) [2011] NSWADT 77 Carroll v Tokdogan [2015] NSWCATAD 200 Dezfouli v State of NSW (Justice Health) [2008] NSWADT 155 Herald & Weekly Times v The Magistrates’ Court of Victoria [1999] 2 VR 672 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 M v A and U [2007] QADT 8 Re VC and Australian Federal Police (1985) 8 ALD 587 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
Texts Cited:	The Australian Government Guidelines on the Recognition of Gender and Sex, updated November 2015
Category:	Procedural and other rulings
Parties:	DLH (Applicant) Nationwide News Pty Ltd (Respondent)
Representation:	Applicant (self-represented) Macpherson Kelley Lawyers (Respondent)
File Number(s):	2017/00230190
Publication restriction:	Disclosure of the applicant’s name is prohibited.Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

1. DLH has complained that, in breach of the Anti-Discrimination Act 1977 (NSW), Nationwide News Pty Ltd vilified transgender people by publishing an article on its Daily Telegraph website. As a transgender person herself, DLH is able to complain even though the article does not relate to her. To protect her privacy and to minimise the likelihood of being discriminated against, DLH has applied to the Tribunal for an order prohibiting the disclosure of her name. Nationwide News opposes the application on the basis that DLH’s reasons for the application are not strong enough to displace the presumption of open justice.

2. A suppression order would involve giving DLH a pseudonym in any written reasons for decision and prohibiting anyone from disclosing her name or any information which may lead to her identification in connection with these proceedings.

3. I have decided to make a suppression order because I am satisfied that it is desirable to do so. I have weighed several considerations in reaching this decision including the reasons DLH has put forward for wanting the order, the presumption that hearings should be held in public and parties names should be disclosed and the fact that DLH is seeking a suppression order, not a confidential hearing.

4. DLH also applied for an order prohibiting the publication of her history of medical treatment for gender dysphoria. That information was provided in attachments 1, 2 and 3 to DLH’s statement dated 14 December 2017. Nationwide News did not object to the removal of those attachments from the statement. As DLH’s standing to make the complaint of transgender vilification is not in dispute, DLH does not need to rely on these documents as evidence in the proceedings. In those circumstances, she may wish to apply to withdraw these documents from her filed statement.

Legal principles

5. Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) gives the Tribunal power to make an order prohibiting the disclosure of the name of any person involved in proceedings. The relevant parts of s 64 are set out below.

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

…

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

6. An equivalent provision to s 64 has been the subject of close analysis by the Appeal Panel of the Administrative Decisions Tribunal. In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69, the Appeal Panel was considering the meaning of s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW). After a comprehensive analysis of the statute and the case law the Tribunal drew attention to the following points relevant to its decision in that case:

81   … (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

7. The first principle mentioned by the Appeal Panel, “the presumption in favour of open justice”, is a common law principle. Kirby P explained the principle in the following terms in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 (citations deleted):

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.

8. The importance of the common law principle of open justice when exercising the discretion in s 64 of the NCAT Act was highlighted by the Appeal Panel in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61]:

… it is unthinkable that the word ‘desirable’ in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is ‘desirable’ under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.

9. The respondent relied on the Supreme Court of Victoria’s decision in Herald & Weekly Times v The Magistrates’ Court of Victoria [1999] 2 VR 672 at 677 to submit that s 64 should be interpreted “strictly and narrowly”. Under s 126 of the Magistrates’ Court Act 1989 (Vic), the court had power to make a suppression order “if in its opinion it is necessary to do so in order not to” do certain things such as prejudice the administration of justice. (Emphasis added.) The test in s 64 of the NCAT Act is not expressed in that way. The criterion of “desirability” in s 64 is comparatively broad: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [63], [64] and [81]. In addition, the Appeal Panel has criticised a “strict and narrow” approach to the interpretation of s 75(2) (the equivalent of s 64 of the NCAT Act). In our view, the Appeal Panel’s discussion of the applicable law at [46] to [80] of that decision and the principles distilled at [81] above apply equally to s 64 of the NCAT Act.

10. This means that the starting point when determining an application for a non-disclosure order is to identify the reasons which are said to favour the making of such an order. The reasons may be “the confidential nature of any evidence or matter or any other reason”. The reason must be “good grounds for making the order”: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81]. Generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, but there may be unusual circumstances where this is the principal consideration underlying an order.

11. After identifying the reason for the application, the next step is for the Tribunal to take into account any other relevant considerations, particularly the presumption in favour of open justice. The Tribunal observed in Carroll v Tokdogan [2015] NSWCATAD 200 at [8] that that principle of open justice means that “the power contained in s 64 should be exercised sparingly”. Other relevant factors include the nature of the order being sought.

Consideration

12. The reasons DLH identified for making a suppression order were that:

1. her status as a transgender person is a matter of a “confidential nature” within the meaning of those words in s 64(1) of the NCAT Act; and

2. there is considerable prejudice and discrimination against transgender people both among the Australian community and by foreign governments. If DLH’s name is disclosed in connection with these proceedings, she may be subjected to such prejudice and discrimination.

13. One basis on which the Tribunal may be satisfied that it is desirable to make a suppression order is the confidential nature of DLH’s transgender status. The words “confidential nature” in s 64(1) of the NCAT Act are not defined. In my view, to be of a “confidential nature” the information must be personal information or be inherently confidential or private for some other reason and it must not be a matter of public knowledge.

14. In most cases, a person’s transgender status will be “personal information” as defined in the Privacy Act 1988 (Cth), s 6 and the Privacy and Personal Information Protection Act 1998 (NSW), s 4. The Australian Government Guidelines on the Recognition of Gender and Sex, updated November 2015, state at paragraph 38, that:

Consistent with Australian Privacy Principle 11, to protect the privacy of an individual who has changed their sex and/or gender on Australian Government records, departments and agencies should ensure an individual’s history of changes of sex/gender or name is protected from interference, subject to appropriate security controls and is recorded and accessed only when the person’s history is relevant to a decision being made. Information which is no longer needed or required must be de-identified or destroyed.

15. The Administrative Decisions Tribunal has found in relation to the equivalent provision to s 64, that a person’s sexual preference is a matter which is confidential: Dezfouli v State of NSW (Justice Health) [2008] NSWADT 155 at [12]. The Administrative Decisions Tribunal has also expressed the view that “the nature of the information as to the applicant's mental health is of a sensitive character”: ACE v State of NSW (TAFE Commission and DET (No 2) [2011] NSWADT 77 at [22]. Contrary to the respondent’s submission, the fact that there is no authority for that proposition in relation to transgender status, is not a reason for rejecting it.

16. The degree to which the information is public knowledge is also a relevant matter in determining whether the matter is of a confidential nature. Nationwide News submitted that DLH’s transgender status is not confidential because she has previously made her transgender status known to the public. I have not set out the evidentiary basis for that submission because it may lead to the identification of DLH. In summary the Nationwide News identified three websites where DLH’s name is linked to information about her transgender status. One of those references has since been deleted. DLH acknowledged that she has identified herself as a transgender person in at least one publication. She understands that that information cannot be deleted from the internet and I accept that evidence.

17. In an analogous context, the Appeal Panel of the Administrative Decisions Tribunal has held that the existence of information in the public domain about a confidential matter does not necessarily make an application for a stay order futile. In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [94] the Appeal Panel held that:

... the fact that the employee's name was in the public domain - i.e., in the reports of the Tribunal's earlier decision - for the period of some weeks between the delivery of that decision and the interim order made on 8 August 2008 does not render continuance of that order a futile exercise. It might have been otherwise if this had been a case attracting massive publicity.

18. I agree with DLH when she says that a person’s transgender status is not something which can easily be kept confidential. There is almost always some information in the public domain about a person’s transgender status because:

1. sex reassignment is a highly visible process that usually takes place over a long period of time and is observable by other people;

2. pre-transition photos and documents such as school photographs, and graduation records, provide a record of a person’s former identify and appearance which can be linked to a person’s current identity.

19. The fact that a person has changed their sex is a deeply personal matter which a person may understandably not want to disclose to the general public. There are very few references to DLH’s transgender status on the internet. She has not actively sought to disclose her status to the general public. I am satisfied that despite the existence of some information on the internet connecting the applicant’s name with her transgender status, that that status is nevertheless a matter of a “confidential nature” within the meaning of that expression in s 64(1).

20. Even if that conclusion is not correct, the applicant may rely on “any other reason” as a basis for an application for a suppression order.

21. Apart from the confidential nature of the information, DLH says that another reason for seeking a suppression order is that there is considerable prejudice and discrimination against transgender people both among the Australian community and by foreign governments. If DLH’s name is disclosed in connection with these proceedings, she may be subjected to such prejudice and discrimination.

22. DLH provided generic evidence in support of the proposition that there is considerable prejudice and discrimination against transgender people among the Australian community. She provided extracts from the website of Beyond Blue and the Australian Human Rights Commission and findings by the Queensland Anti-Discrimination Tribunal in M v A and U [2007] QADT 8 at [9]. Despite the generality of the evidence, I accept that there is a real risk that if DLH’s transgender status is disclosed to the general public, she will be subjected to prejudice and discrimination.

23. DLH also provided detailed evidence that disclosure of her transgender status may endanger her physical safety and her ability to travel to some foreign countries, such as Russia, Chechnya, the United Arab Emirates, Indonesia and Malaysia. In her statement DLH set out various places to which she had travelled and stated that she anticipates that she will be called upon to travel internationally as part of her employment in the future. She attached an email from a Russian based organisation dated 7 December 2017 inquiring as to whether DLH was interested in a temporary position for several months in 2018.

24. The website smarttraveller.gov.au, administered by the Australian Government Department of Foreign Affairs and Trade states that “some countries or regions have laws criminalising persons who dress or ‘pose’ as a person of another sex or gender” and “local laws affecting LGBTI travellers may be applied in an arbitrary or inconsistent manner”. The website does not specify the countries to which it was referring.

25. According to the Nationwide News, DLH does not provide any specific examples of ways in which she has suffered, or expects to suffer, prejudice or discrimination if her name is disclosed. For example, she does not state which countries she intends to visit in the future, either for work or for personal purposes. Nationwide News also submitted that it is not desirable for the Tribunal to make a confidentiality order on the basis of mere hypotheticals or possibilities raised by DLH in relation to countries she may visit in future. DLH’s claims of possible discrimination in the future “is far too farfetched to be considered valid”.

26. DLH does not have to prove that she is likely to be discriminated against if her name is disclosed. Rather, the Tribunal needs to be satisfied that it is desirable for the order to be made taking into account all relevant considerations. DLH is not saying that publication of her name will embarrass her or affect her reputation. She has provided evidence of the nature and extent of discrimination against transgender people both at home and overseas. She has not widely publicised her transgender status and the risk of discrimination is real if her name is disclosed.

27. DLH is seeking an order prohibiting the disclosure of her name. A reference to a person’s name includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person: NCAT Act, s 64(4).

28. It has been held that information about the identity of an applicant is of “considerably lower” public interest than ensuring that hearings are conduct in public and evidence is available for public scrutiny: Re VC and Australian Federal Police (1985) 8 ALD 587 at [18]. The respondent acknowledges that this may be so, but cited other cases which have emphasised the importance of disclosing the full name of parties to proceedings. In one case, the rationale for the disclosure was said to be so that the proceedings may be reported fairly and accurately “without fear of prosecution for contempt or action for defamation or other civil wrong”: John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at [140].

29. The general rule in the Tribunal is that hearings are open to the public: Civil and Administrative Tribunal Act 2013 (NSW), s 49. Publication of the names of parties is important because it facilitates open justice but the fact remains that DLH has not applied for the hearing to be closed. She has applied for her name and other identifying information not be disclosed. That is a matter of considerably lower public interest than ensuring hearings are open to the public.

19. There is a strong public interest in the names of parties and other persons involved in proceedings being disclosed. However, in this case, there is a real risk that if DLH’s transgender status is disclosed to the general public, she will be subjected to prejudice and discrimination. In circumstances where that fact is not widely known, I am satisfied that it is desirable to make the order sought.

Order

1. Disclosure of the applicant’s name is prohibited.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 27 April 2018