Graeber and Anor and Australian Prudential Regulatory Authority
[2007] AATA 1966
•19 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1966
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3750; and
GENERAL ADMINISTRATIVE DIVISION ) No 2007/3744
Re Juergen Graeber
Applicant
AndAustralian Prudential Regulatory Authority
Respondent
Re Henning Ludolphs
Applicant
AndAustralian Prudential Regulatory Authority
Respondent
TribunalProfessor GD Walker, Deputy President
Date of Decision 19 September 2007
Date of Written Reasons 16 November 2007
PlaceSydney
DecisionThe confidentiality order is denied.
................[sgd]............................
Professor GD Walker
Deputy President
CATCHWORDS – confidentiality order sought – tribunal has no power to make the pseudonym and name suppression orders sought in this case – confidentiality order is denied.
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RELEVANT ACT/S:
Insurance Act 1973 (Cth): Part VI, s 63
Administrative Appeals Tribunal Act 1975: ss 25,41, 35
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CITATIONS
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Scott v FCT (1966) 117 CLR 514
Re VBW and Australian Prudential Regulation Authority & Anor [2005] AATA 1294
Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Re VBN & Ors and Australian Prudential Regulation Authority & Anor [2006] AATA 718
John Fairfax Publications Pty Limited & Ors v Ryde Local Court & Ors [2005] 62 NSWLR 512
Grassby v The Queen (1989) 168 CLR 1
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Re Lawrance and CRS Australia & Ors [2004] AATA 1136
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REASONS FOR DECISION
16 November 2007
Professor GD Walker, Deputy President
Summary
1. Mr Juergen Graeber applied on 9 August 2007 for a stay of a decision made by the respondent, pending the completion of an internal review of that decision by the respondent pursuant to s 63 of the Insurance Act 1973 (Cth) (the Insurance Act). On the same date Mr Henning Ludolphs made a similar application. By consent the two matters were heard together.
2. A request for such an internal review gives this tribunal the power to grant a stay pursuant to s 41 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) as if the making of the request were the making of an application to this tribunal for a review of the decision (s 63(9) of the Insurance Act).
3. In addition to a stay of the decision dated 9 August 2007, the applicants sought a direction that the respondent might not publish or publicise the decision or the names of the applicants, and that the applicants be described by pseudonyms for the purpose of the applications.
4. The applications were heard on 13 and 14 August 2007. On 14 August I delivered an oral decision granting the stay sought, subject to certain agreed conditions, but declining to make the orders relating to publication and pseudonyms on the ground that the tribunal lacked the power to do so.
5. Immediately after I announced my decision and reasons, counsel for the applicants referred for the first time to certain authority supporting the proposition that the tribunal does have the power to make such orders. The matter was adjourned for further argument on 27 August 2007, written summaries of argument being exchanged in the meantime.
6. At the resumed hearing on 27 August, the applicants foreshadowed the making of a fresh application for the confidentiality orders under s 35(2) of the AAT Act in order to overcome the objection that, having announced its decision and reasons, the tribunal was functus officio as regards the first application. The second application was duly made.
Applicant’s submissions
7. The applicants’ counsel pointed out that the original Part VI of the Insurance Act, of which s 63 forms part, provided for decisions to be reviewed by a specially created insurance tribunal. After the AAT was created in 1975, the Insurance Act was amended in 1977 to give the jurisdiction to the AAT (the Amending Act).
8. The Amending Act inserted the present s 63, subsection 14 of which provides as follows:
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(14)The hearing of a proceeding relating to a reviewable decision of the Treasurer or APRA shall take place in private and the Administrative Appeals Tribunal may, by order:
(a)give directions as to the persons who may be present; and
(b)give directions of a kind referred to in paragraph 35(2)(b) or (c) of the Administrative Appeals Tribunal Act 1975.
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9. That subsection directs that review hearings should be conducted in private, and there are good reasons for that, Mr Greenwood said. Decisions made by the respondent under the Insurance Act can have a great impact on individuals and the organisations that they represent. A safeguard for the livelihoods and reputations of the persons affected pending the process of merits review is necessary. In order to ensure a proper hearing, there should be no disclosure until the decision under the internal review is reached.
10. The decision process is thus not a public one, and the orders the applicants are seeking are simply an extension of the same private process. There is no public interest in learning the names of applicants, as opposed to the contents of the full decision. The publication of names alone could give rise to ill-informed and damaging speculation.
11. It was sensible to treat orders suppressing names and providing for pseudonyms as part of the power to conduct private hearings. That had been the tribunal’s approach in many decisions to date. No objection had previously been taken to that approach.
12. Originally, s 35(2)(aa) was not part of the AAT Act. It was introduced in 1995, because although paragraphs (a) to (c) covered the main position, the status of witnesses was unclear.
13. In Re VBW and Australian Prudential Regulation Authority & Anor [2005] AATA 1294, the tribunal had presented a careful and learned analysis of s 35(2). In its reasons the tribunal had this to say:
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61.Returning to the suppression of the name of the applicant, we consider that the power to do so lies in s. 35(2)(b). That is a power that enables the Tribunal, if it is satisfied that it is desirable to do so by reason for any reason, to prohibit or restrict publication of evidence given, or the contents of a document lodged with the Tribunal, in relation to a proceeding. The documents lodged on behalf of VBW, including his application for review, all contain his name and other identifying features. So too do some of the documents lodged by APRA. Provided it is otherwise in our power to make an order suppressing his name, we consider that this provision gives us the power. The use of a pseudonym, be it in the shape of letters, numbers or an adopted name, enables us to have some means by which to identify an applicant while implementing an order that we consider otherwise desirable to make.
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14. That passage must mean that if the power to suppress names is not otherwise available, s 35(2)(b) covers the situation. The main power derives from s 63(14) of the Insurance Act, which is much broader than s 35(2)(b), as it gives the tribunal the power to make directions “of a kind referred to in paragraph 35(2)(b) or (c)”. Consequently, the reasoning in VBW applied even more strongly in the present case than in VBW itself, which did not arise under the Insurance Act. Although VBW was concerned with the publication of evidence rather than names, it dealt with the same problem of publication giving rise to uninformed speculation.
15. Deputy President Forgie had referred to VBW in later cases, notably the associated matter of Re VBN & Ors and Australian Prudential Regulation Authority & Anor [2006] AATA 718. VBW had not been challenged on appeal. The decision to the contrary in Re Lawrance and CRS Australia & Ors [2004] AATA 1136 dealt with the point only briefly and should not be followed.
Consideration
16. The Insurance Act s 63(14) gives this tribunal power to make directions of a kind referred to in s 35(2)(b) or (c) of the AAT Act only. It thus modifies s 35 in the manner permitted by s 25(6)(b) of the AAT Act.
17. Consequently, when hearing stay applications pursuant to s 63(9) of the Insurance Act, this tribunal has no power to make directions under s 35(2)(a) or (aa) of the AAT Act.
18. Excluding paragraph (a) is of no consequence, as s 63(14) directs that hearings under s 63 are to be in private. But the exclusion of paragraph (aa) means that even if an applicant were to give evidence at the hearing, the tribunal could not make an order under paragraph (aa) prohibiting or restricting publication of the party’s name or address. That result would follow quite apart from any question about whether a party to a proceeding could properly be classified as a witness for the purposes of paragraph (aa).
19. Although paragraph (aa) does not apply in the present case, the tribunal must have regard to it when interpreting s 35 because statutes, like all other legal instruments, must be construed as a whole (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382; Scott v FCT (1966) 117 CLR 514 at 524).
20. The omission of any reference to “parties” in paragraph (aa) appears to be intentional. The paragraph was inserted in 1995 to meet a particular perceived need at a time when witness statements were not always required and the name and address of a witness might not appear in any document lodged in the tribunal, so as to activate paragraph (b) (VBW at para 60).
21. Further, paragraph (c) specifically refers to “parties to a proceeding” and makes special provision for them that it does not extend to witnesses. That special treatment of parties strengthens the likelihood that in paragraph (aa), when the legislature referred to “witnesses”, it did not intend to include parties. Treating witnesses and parties differently is quite appropriate, because witnesses can be compelled to attend and give evidence in proceedings in which they may have no personal interest.
22. To treat paragraph (b), which deals with evidence and the contents of documents, as indirectly creating a power in relation to publication of the names of parties as such strains the language of s 35(2), given that paragraph (aa) creates a power to suppress the names of witnesses but not parties, while paragraph (c) refers specifically to parties but creates no power to suppress their names.
23. That proposition gains support from two related principles of statutory interpretation, expressum facit cessare tacitum and generalia specialibus non derogant. A leading authority illustrating both maxims is Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7, in which Gavan Duffy CJ and Dixon J held that if a general power is conferred without limitations but a special power is expressed to be subject to limitations or qualifications, the general power cannot be exercised to do that which is the subject of the special power.
24. In this case the more general power is created by paragraph (b), while the special power in paragraph (aa) is limited to the names and addresses of witnesses. Further, the fact that s 63(14) excludes the operation of paragraph (aa) altogether for s 63(9) stay applications greatly strengthens the argument for applying either of the two maxims, or both.
25. The applicants argued that the words “of a kind referred to” in s 63(14)(b) have the effect of broadening the tribunal’s power in s 35(2)(b), because if the legislature had intended the power in (b) to remain unchanged, it would have used words such as “pursuant to” rather than “of a kind referred to”. But I agree with Mr Stevenson that those words merely identify the powers reposed in the tribunal, rather than enlarging them. It may be that the legislature thought that a phrase such as “pursuant to” would be infelicitous because the directions could be seen as “pursuant to” the Insurance Act as much as to the AAT Act. In any event, a grant of power to make directions “of a kind referred to” in (b) seems insufficient to encompass directions of a kind not referred to in (b).
26. The applicants submitted that the words “or for any other reason” in s 35(2) provide a further legislative basis for reading paragraph (b) to include the names of parties. But that phrase appears in the introductory language of the subsection and relates to the grounds on which a direction may be made, not to the classes of directions that may be made.
27. Nor can a power to restrict publication of the name of an applicant be inferred from the requirement that hearings be held in private. As Deputy President Forgie pointed out in VBN at para 16:
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A "private hearing" means no more than that the public is excluded from the hearing; it does not of itself render confidential what has passed at the hearing; … if what has passed is to be rendered confidential, an order must be made under s 35(2) of the AAT Act.
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28. The applicants also submitted that a power to make name suppression or pseudonym orders could be regarded as incidental to, or implied from, the legislature’s creation of a decision-making process that is not public. The New South Wales Court of Appeal considered such an argument in the analogous situation of an application for access to documents held by the Local Court. In John Fairfax Publications Pty Limited & Ors v Ryde Local Court & Ors [2005] 62 NSWLR 512, their Honours noted that the Local Court is a statutory court and as such has powers that are conferred expressly, or necessarily to be implied from, the express conferral of powers. Following the High Court in Grassby v The Queen (1989) 168 CLR 1, their Honours accepted that implied powers will be recognised “whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’” (at 522).
29. The test of necessity, the Court noted, can be applied at varying levels of strictness. It should be rigorously applied where the openness of proceedings is in issue:
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Where the principle of open justice is engaged, as it is when determining whether a court may sit in camera or prevent publication of its proceedings and orders, the test will strictly applied (at 522).
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30. The applicants submitted that publication of names would lead to damaging and uninformed speculation, but gave no cogent reason why it would undermine the effective exercise of the jurisdiction. As Kirby J pointed out in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142:
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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 ….
31. Further, the need to prevent speculation can work in favour of publication as much as against it. One of the reasons for the openness of criminal trials, including publication of defendants’ names and details, is to prevent leaks, rumour and speculation from creating confusion and doubt about the identity of the defendant, with potentially serious consequences for the reputations of other persons who, for example, may have names similar to that of the defendant.
32. In a case such as this, where the legislature has specifically addressed itself to the extent of the powers conferred on the tribunal, and where it has not been shown that the suppression of names or the use of pseudonyms is necessary for the effectiveness of the hearing, it is not appropriate to imply a power that has not been specifically conferred. In the absence of specific legislative exceptions such as s 35(2)(aa), s 35(3)’s direction to treat openness of proceedings as the basis of the tribunal’s consideration must be given full force and effect (see Lawrance at paras 8-12).
33. Mr Greenwood submitted that there is no cogent authority contradicting the learned and detailed reasons given in VBW. The reasons are indeed learned and detailed, but as Mr Stevenson countered, on the issue of the proper construction of s 35(2)(b), the reasoning is not substantially more extensive than that in Lawrance, to which the tribunal makes reference in footnote 116. The tribunal noted the different approach taken by Senior Member Allen in that case and concluded that the divergence “is part of the development of the law and, in due course, the issue will be decided one way or another by the Federal Court”. I respectfully support that conclusion.
34. In my view, therefore, the tribunal has no power to make the pseudonym and name suppression orders sought, and the applications fail.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ...........................[sgd].........................................
R. Wallace, AssociateDate/s of Hearing: 13, 14 and 27 August 2007
Date of Decision: 19 September 2007
Date of Written Reasons: 16 November 2007
Solicitor for the Applicant: Ms C Murray, Minter Ellison Lawyers
Counsel for the Applicant: P Greenwood,SC & D Hogan-Doran
Solicitor for the Respondent: Mr A Carter, Sparke Helmore Lawyers
Counsel for the Respondent: J Stevenson, SC & V Whittaker
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