Haywood and Comcare (Compensation) - [2023] AATA 3360

Haywood and Comcare (Compensation) [2023] AATA 3360 (3 August 2023)
Division:GENERAL DIVISION
File Number(s): 2018/7279
2014/5839

Re:Gregory Haywood
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:3 August 2023
Place:Canberra

Application for confidentiality orders refused.
................[SGD].............................
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – request for confidentiality orders in respect of past decisions – discretionary power to make orders – factors relevant to exercise of discretion – alleged harm from publication of decisions – alleged abuse of power and bias – requirement for logically probative material – procedural fairness – adverse findings based on evidence put to applicant – public hearing – opportunity to be heard – failure to comply with direction – request for confidentiality orders not made out – application refused
Legislation
Administrative Appeals Tribunal Act 1975, s 33, 35, 39, 43, 44
Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14
Cases
ASIC v PTLZ [2008] FCAFC 164
Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185
CAP21 v Administrative Appeals Tribunal & Anor [2022] FCA 729
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Haywood and Comcare (Compensation) [2016] AATA 667
Haywood and Comcare [2021] AATA 504
Re Pochi and Minister for Ethnic Affairs (1979) 36 FCR 482
REASONS FOR DECISION
Mr S. Webb, Member
3 August 2023

Gregory Haywood made a request for confidentiality orders to redact his name from decisions made by the Tribunal in 2016 and in 2021, or to expunge the cases entirely.[1] The decisions were in respect of applications Mr Haywood lodged for review of decisions Comcare made to refuse his claims for compensation (application 2014/5839 and application 2018/7279) (substantive applications).
[1] Affidavit of Gregory Haywood (unwitnessed), 26 November 2022, at [27].
Mr Haywood’s request was made in the context of proceedings remitted by the Federal Court of Australia[2] in respect of a request for confidentiality orders by a witness (CAP21) who gave evidence in the substantive applications.
[2] CAP21 v AAT [2022] FCA 729.
This interlocutory decision addresses Mr Haywood’s request for confidentiality orders, alone.
Short facts and procedural history
As I comprehend Mr Haywood’s request, it relates to decisions of the Tribunal in each of the substantive applications, namely:
(a)Haywood and Comcare (Compensation) [2016] AATA 667 (2016 Decision); and
(b)Haywood and Comcare [2021] AATA 504 (2021 Decision).
Each of these decisions sets out factual findings which it is not necessary to recite in detail for present purposes.
Nonetheless, in order to assist understanding, it is helpful to set out short background facts drawn from these decisions.
On 9 December 2013, Mr Haywood claimed compensation for an alleged injury in his previous employment by the Commonwealth Department of Environment (Department) which he first noticed on 6 July 2012. The claimed injury allegedly arose from circumstances in his employment involving CAP21, his then supervisor. Mr Haywood asserts CAP21 was biased against him and treated him unfairly and subjected him to sexually harassment. Mr Haywood alleged he was falsely accused of wrongdoing in the workplace in a code of conduct counselling session with CAP21 and another person, and he was inappropriately pressured to sign a document. In November 2014, Comcare decided to refuse his compensation claim on grounds the adjustment disorder he suffered, which amounted to a ‘disease’ for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), was the result of reasonable administrative action taken in a reasonable manner in respect of his employment, and it was therefore excluded as an ‘injury’ under s 5A of the SRC Act. Mr Haywood applied for review of this decision by the Tribunal: application 2014/5839. On 31 August 2016, the Tribunal (differently constituted) decided to affirm Comcare’s decision and published written reasons: the 2016 Decision.
Mr Haywood’s raised assertions of bullying, sexual harassment and unfair treatment in his employment by the Department in the context of other actions he took seeking remedy. Mr Haywood raised an Australian Public Service code of conduct breach in respect of CAP21 in July 2014 and shortly thereafter, on 11 December 2014, his employment by the Department was terminated on misconduct grounds. This was a matter Mr Haywood took up in a further application to the Fair Work Commission alleging unfair dismissal. I understand in February 2015 a deed of settlement was agreed between Mr Haywood and the Department, the terms of which concluded Mr Haywood’s actions in the Fair Work Commission and provided for him to be paid a settlement sum by the Department.
In March 2015, Mr Haywood claimed compensation for an alleged aggravation injury caused by circumstances in his employment in August and September 2014. Mr Haywood asserted baseless accusations had been made against him in a public forum and the Department had not followed medical recommendation to provide him a safe workplace, rather he had been subjected to ongoing harassment. In July 2015, Comcare decided to refuse Mr Haywood’s compensation claim on grounds it was not satisfied an aggravation injury was made out. Mr Haywood applied to the Tribunal for review of this decision, but subsequently withdrew the application in September 2016.
On 26 February 2018, Mr Haywood lodged a further claim for compensation in respect of an alleged injury which he first experienced on 30 June 2014. The claimed injury allegedly arose from employment circumstances involving CAP21. Mr Haywood asserts the claimed injury arose from reading CAP21’s response to his application for orders in the Fair Work Commission in respect of alleged bullying in the workplace. He alleges CAP21’s response contained false statements and lies. Comcare decided to refuse the claim on grounds it was not made out under s 14 of the SRC Act. Mr Haywood applied for review of this decision by the Tribunal: application 2018/7279. On 16 March 2021, the Tribunal (differently constituted) decided to affirm Comcare’s decision and published written reasons: the 2021 Decision.
On 17 March 2021 CAP21 applied for confidentiality orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to protect their identity from public disclosure in the 2021 Decision. Mr Haywood opposed CAP21’s application on fairness and other grounds, arguing justice must be done and must be seen to be done, and all public servants are accountable to taxpayers and the general public for their actions.
The Tribunal refused CAP21’s application and, on 28 April 2021, issued written reasons (Confidentiality Decision).
CAP21 appealed against the Confidentiality Decision in the Federal Court of Australia (Court).
By orders made on 27 June 2022, the Court set aside the Confidentiality Decision and remitted CAP21’s application for confidentiality orders to be heard and determined according to law - CAP21 v Administrative Appeals Tribunal & Anor [2022] FCA 729 (Remittal).
On 19 September 2022, the Tribunal made interim orders to ensure procedural fairness to all parties and to preserve the utility of the proceedings remitted by the Court:
1.In order to ensure procedural fairness to all parties and to preserve the utility of the proceedings remitted by the Federal Court of Australia in CAP21 v AAT [2022] FCA 729 (FCA 729), noting the parties will be given an opportunity to be heard in respect of these orders in the interlocutory hearing at 10.00am on 30 September 2022, in the interim until the conclusion of the proceedings and subject to further order, the Tribunal DIRECTS:
(a)pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act):
a.    the name, address or any other information tending to reveal the identity of the person identified as CAP21 in FCA 729 must not be published; and
b.    in these proceedings, the name of that person is to be replaced with the pseudonym CAP21; and
c.     the information specified in paragraph 1.(a)a. must not be disclosed to any person other than:
(i)the parties, their representatives and any other person directly involved with the preparation and conduct of a party’s case; and
(ii)members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties; and
(b)pursuant to section 35(4) of the AAT Act:
a.the following information must not be published:
(i)the documents given to the Tribunal, the transcript and the reasons for the decision in application 2014/5839; and
(ii)the documents given to the Tribunal, the transcripts and the written reasons given in respect of the substantive and interlocutory decisions in application 2018/7279;
b.the information specified in paragraph 1.(b)a. must not be disclosed to any person other than:
(i)the parties, their representatives and any other person directly involved with the preparation and conduct of a party’s case; and
(ii)members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties.
On 26 September 2022, CAP21 made a further application under s 35 of the AAT Act (Further s35 Application) in relation to the following decisions of the Tribunal:
(c)the 2016 Decision; and
(d)the Confidentiality Decision.
On 4 October 2022, the parties were given opportunity to be heard on the procedure to be followed in respect of the Remittal and directions were issued requiring the parties and CAP21 to file and serve written submissions and supporting materials which they intended to rely upon. The Tribunal issued the following directions:
1. The Further s 35 Application and the Remittal (together, the Confidentiality Applications) are to be heard and determined together;
2. On or before 7 November 2022, CAP21 is to file all materials upon which CAP21 intends to rely and written submissions with respect to the Confidentiality Applications;
3. On or before 21 November 2022, the Applicant and the Respondent are to file all materials upon which they intend to rely and written submissions with respect of the Confidentiality Applications, or inform the Tribunal, CAP21 and each other that no materials will be relied upon or not submissions will be made; and
4. On or before 5 December 2022, CAP21 is to file any further submissions in reply with respect to the Confidentiality Applications.
On 7 and 9 November 2022, CAP21 filed and served extensive submissions and related materials.
On 20 November 2022, the Respondent informed the Tribunal it would not be making submissions on the Confidentiality Applications, effectively adopting a neutral position.
On 27 November 2022, Mr Haywood provided extensive written submissions and supporting materials. The materials Mr Haywood filed included the following request (Request):
27. In the strongest possible terms, I object to CAP21’s Confidentiality Applications. In these extraordinary circumstances, I submit that the Tribunal must finally act with a modicum of integrity by Deciding – in the interests of justice – to fully redact my name from both its Decisions of 2016 and 2021, or preferably expunge the cases entirely so that:
a. no further pain, humiliation, or injury can be inflicted on me by senior government bureaucrats abusing their power and using the media to publicise those corrupted Tribunal Decisions at the expense of my reputation, and
b. neither of those corrupted Tribunal Decisions can be used in future legal disputes that arise in Australia arguing the law of Apprehended Bias.
On 8 November 2022, Mr Haywood sent the following email to the Tribunal:
Re Haywood v Comcare [2016] AATA 667
Re Haywood v Comcare [2021] AATA 504
Out of an abundance of caution, I must put the Tribunal on notice that if it knowingly publishes my name on its internet site or on any documents it has been made aware of that are false and which in any way defame me, I reserve my right to take legal action against it.
On 8 November 2022, CAP21 filed written submissions in response to Mr Haywood’s submissions.
The Tribunal allowed time for the parties and CAP21 to advise if they wanted to be heard orally before the Confidentiality Applications were decided.
CAP21 and the Respondent advised they did not seek to be heard orally. Mr Haywood provided the following response on 16 December 2022:
Its pleasing to hear the government announcement today that your corrupted AAT is to be abolished.
Do I need to do anything more on this ridiculous legal matter?
I look forward to hearing (or not hearing) from your corrupted AAT.
The matter was listed to be heard on the papers on 27 January 2023. On 21 December 2022, listing notices were sent to each party and to CAP21.
On 27 January 2023, Mr Haywood informed the Tribunal he wanted to be heard orally but he was at work and not available. Consequently, in order to ensure My Haywood was provided an opportunity to be heard, the hearing on the papers was vacated and the Tribunal consulted the parties and CAP21 in respect of their availability on specified dates in May 2023. The parties and CAP21 each confirmed they were available for an interlocutory hearing on 23 May 2023.
On 31 January 2023 listing notices for an interlocutory hearing by video at 10:00am on 23 May 2023 were sent to the parties and to CAP21. The notices included a Microsoft Teams link and access information, as well as the words “If you cannot attend at the time listed above, you should advise us as soon as possible”.
On 17 May 2023, CAP21’s legal representative filed and served a collated bundle of documents relating to CAP21’s applications for confidentiality orders and authorities.
On 19 May 2023, a reminder of the listing on 23 May 2023 was sent to the parties and to CAP21 by SMS. Further listing notices were sent to the parties and to CAP21 confirming the interlocutory hearing by video at 10:00am on 23 May 2023. The notices included a Microsoft Teams link and access information, as well as the words “If you cannot attend at the time listed above, you should advise us as soon as possible”.
On 23 May 2023, CAP21’s legal representative filed and served draft orders sought and further authorities which would be referred to during the interlocutory hearing.
The interlocutory hearing commenced at 10:00am on 23 May 2023.
Mr Haywood failed to appear.
The hearing was adjourned to allow time for Mr Haywood to appear or to contact the Tribunal. He did not contact the Tribunal. The Tribunal made several attempts to contact Mr Haywood by telephone, without success. The Tribunal left messages for Mr Haywood but received no response.
The hearing resumed at 10:25am, whereupon the Respondent and CAP21 agreed to the following procedure proposed by the Tribunal to ensure procedural fairness to the parties and CAP21 in the circumstances, before CAP21’s confidentiality applications are decided:
1. On or before 6 June 2023, CAP21 must give to the Tribunal and the parties further and better particulars in respect of the proposed orders and redactions sought in the 2016 Decision, the 2021 Decision and the Confidentiality Decision (Decisions).
2. On or before 20 June 2023, the Applicant must give to the Tribunal, the Respondent and CAP21 all further written submissions and any evidence on which he seeks to rely or inform the Tribunal no further submissions will be made.
3. On or before 27 June 2023, CAP21 and the Respondent must give to the Tribunal and the Applicant written submissions in reply or advise that no further submissions will be filed.
Thereafter, CAP21’s confidentiality applications will be decided without a further interlocutory hearing. Should any party or CAP21 make an application for a further interlocutory hearing, the Tribunal will consider the reasons for the application and any related submissions of the parties or CAP21 when determining the appropriate procedure.
As Mr Haywood failed to appear on 23 May 2023, the nature of and justification for any confidentiality orders he may be seeking further to the Request he made on 27 November 2022 could not be explored or determined. Consequently, on 24 May 2023, the Tribunal issued the following directions:
1. On or before 6 June 2023, the Applicant is to:
(a) inform the Tribunal and the Respondent if he presses an application for confidentiality orders; and if so
(b) give to the Tribunal and the Respondent written submissions explaining the application and attaching supporting materials on which he intends to rely.
2. On or before 20 June 2023, the Respondent must give to the Tribunal and the Applicant written submissions in response, including materials on which it seeks to rely.
It is to be noted, as CAP21 is a witness and not a party to the substantive proceedings, there is no basis to hear from CAP21 in respect of Mr Haywood’s application for confidentiality orders.
Mr Haywood failed to comply with Direction 1 issued on the 24 May 2023. Mr Haywood did not contact the Tribunal. Subsequently, after 6 June 2023, the Tribunal attempted to contact Mr Haywood by email and telephone on several occasions to ascertain if he required additional time. Mr Haywood did not respond or contact the Tribunal.
In these circumstances, it is not clear if Mr Haywood presses any application for confidentiality orders. Having considered his written submissions, noting the Request has not been withdrawn, I will proceed on the assumption he does press his Request. It is appropriate to proceed to decide the Request as Mr Haywood has been given a reasonable opportunity to be heard and to make any submissions in respect of it. In the circumstances it is not reasonable to leave the Request hanging and it is not reasonable to delay the matter any further. I note CAP21’s application for confidentiality orders is the subject of a separate decision.
Legislation
The matter is to be decided under applicable sections in s 35 of the AAT Act, namely:
(3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
(i) a party to or witness in a proceeding before the Tribunal; or
(ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b) information otherwise concerning a person referred to in paragraph (a).
(4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
(5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
As can be seen, the Tribunal has discretion to restrict publication or disclosure of information about a party and information relating to a proceeding, taking the principles set out in s 35(5) and any reasons for exercising the discretion as the basis of its consideration of Mr Haywood’s request.
Discretion

The bases on which Mr Haywood asserted his Request have not been spelled out or supported by detailed submissions. This is somewhat problematic as, without Mr Haywood providing further explication or justification, his request is, at best, skeletal.
Nevertheless, his request is contained in an unwitnessed affidavit he gave the Tribunal in respect of his objections to CAP21’s Confidentiality Applications. In this document, Mr Haywood sets out the grounds of his objections in a manner which serves to illuminate matters underlying his Request.
Proceeding on that basis, doing the best with the available materials, it appears his request is raised on two limbs which may be summarised as personal and reputational harm, and perversion of the course of justice, including apprehension of bias.
The first limb of Mr Haywood’s request in respect of personal and reputational harm can be understood in terms. Mr Haywood refers to pain, humiliation and injury. He alleges he was targeted with repeated acts of workplace sexual harassment and malicious lies by CAP21 after 14 November 2011,[3] which perverted the course of justice.[4] In his submission, he is the injured victim of repeated acts of workplace sexual harassment and he has been punished beyond measure by having [his] career, health and reputation destroyed with [his] name being dragged through the gutter by the national press.[5] He asserts publication of false allegations made against him results in personal and reputational harm and, by inference at least, this justifies non-publication orders in respect of the 2016 Decision, the 2021 Decision and the Confidentiality Decision, or redaction of his name from those decisions.
[3] Ibid at [8].
[4] Ibid at [19]
[5] Ibid at [26].
The second limb of his request in respect of apprehension of bias can be understood in two ways. Firstly, he refers to concerns about the integrity of the Tribunal raised in the media by members of Parliament and the Attorney-General. Secondly, his submissions may be understood as an imputation of bias against him by the Tribunal as previously constituted.
Like any request for confidentiality orders under s 35 of the AAT Act, Mr Haywood’s request must be decided on the basis of principle under s 35(5) within the broader scope and objects of the AAT Act. The desirability that Tribunal hearings should be public and evidence before the Tribunal should be made available to the public is the basis of the Tribunal’s consideration of the discretion to depart from the norm,[6] albeit a discretionary power which should be exercised sparingly.[7] Just as it is desirable for the oral and documentary evidence in the Tribunal proceedings to be publicly available unless there is a reason to make a contrary order for the purposes of s 35(4), so too should the Tribunal’s decision in the proceedings and the reasons for it. It is inherent that the public should be able to fully comprehend and scrutinize the reasons for a decision of the Tribunal.
[6] ASIC v PTLZ [2008] FCAFC 164 at [41]-[42].
[7] Re Pochi and Minister for Ethnic Affairs (1979) 36 FCR 482 at 510.
It is on the basis of the norm established by s 35(1) and the principle set out in s 35(5), and the values it is intended to protect,[8] the Tribunal considers any reasons for making confidentiality orders, including the risk of harm and apprehension of prejudice or disadvantage which will result if the orders sought are not made. The nature of the information which would be supressed, the extent to which the information is in the public domain, whether publication of the information could cause harm or discourage potential witnesses from giving full and frank account of relevant circumstances, the apprehended consequence of further publication or disclosure, the materiality of the information to the Tribunal’s decision, and the statutory scheme under which the reviewable decision was made are relevant considerations.
[8] Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [74]-[76].
Public trust and confidence in the propriety of Tribunal processes, free from abuse, is at the heart of these considerations. Public scrutiny is a powerful means of ensuring the impartiality of Tribunal decisions and related findings in any case. The work of the Tribunal in any case must not only be properly done; it must be seen to be properly done. It is against this public interest any reasons for granting confidentiality orders under s 35(3) or (4) must be weighed.
Mere apprehension of potential harm from publication of a Tribunal decision, without more, may not be sufficient reason to depart from the norm and supress all or part of the decision. In order to depart from the norm and the principles of open justice, the Tribunal should be satisfied there is a real possibility of injustice or serious disadvantage being inflicted upon the person, or that publication would be contrary to the public interest.
Importantly, any application for confidentiality orders under s 35 of the AATA turns on relevant facts in the particular circumstances. It may be for this reason Mr Haywood’s objection to CAP21’s application for confidentiality orders does not align with his own request for orders to redact his name from the 2016 Decision, the 2021 Decision (and probably the Confidentiality Decision) or to expunge the cases entirely.[9] In relation to the former, Mr Haywood argues justice must be seen to be done and humiliation a public servant might experience about conduct in their workplace is not sufficient reason to justify confidentiality orders. In the latter, he argues confidentiality orders are justified by harms or disadvantage caused by or which may result from publication of his name in the particular Tribunal decisions.
[9] Affidavit of Gregory Haywood (unwitnessed), 26 November 2022, at [27]
Humiliation, embarrassment and even risk of disadvantage are not, without more, sufficient grounds on which to depart from the norm. The assertion Mr Haywood’s career, health and reputation has been destroyed is not a matter which can be prevented by the making of confidentiality orders and no case has been made that such orders might prevent any further adverse effect of a similar kind. The circumstances in which Mr Haywood’s previous employment ended were discussed in the 2021 Decision.[10] The Tribunal found the adjustment disorder Mr Haywood suffered in 2012 in the context of his employment at that time was not aggravated by events on or about 30 June 2014, and he had not, therefore, suffered a further injury for the purposes of s 14 of the SRC Act. In the 2016 Decision, the Tribunal (differently constituted) found Mr Haywood had not suffered an ‘injury’ for the purposes of the SRC Act, even though circumstances in his employment significantly contributed to the ailment for which he claimed compensation.
[10] 2021 Decision at [41]-[45].
It can be accepted that publication of information about disputed events involving allegations of sexual harassment and misconduct in the workplace might well cause Mr Haywood embarrassment, humiliation and even disadvantage. This is perhaps especially so within the public sector in Canberra. These considerations must be weighed against the values protected by the norm in s 35(1) of the AAT Act and approached on the basis of the principle in s 35(5). Without more, the pain and humiliation of which Mr Haywood complains do not amount to a sufficient reason to make orders under s 35(4) or to depart from the principle that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public.
The proposition Mr Haywood’s health has been destroyed or is at risk of being adversely affected by publicity surrounding the 2016 Decision, the 2021 Decision and the Confidentiality Decision is not supported by material of any probative value. To the extent Mr Haywood’s complaint is directed against past publication and related publicity, while perceived harms inflicted by past events cannot be righted by orders made under s 35 of the AAT Act, orders might be justified where further publication might inflict further harm. Even if some risk to Mr Haywood’s health, career or reputation might be apprehended should his name or the contents of the 2016 Decision, the 2021 Decision and the Confidentiality Decision be published, on the present materials no such prospective apprehension has crystalized.
Mr Haywood has cast aspersions about the integrity of the Tribunal and he has cavilled with the 2016 Decision, the 2021 Decision and the Confidentiality Decision on grounds of imputed bias and the apprehension of bias principle discussed in Ebner v Official Trustee in Bankruptcy[11]. These are not compelling reasons to supress those decisions from publication or to redact Mr Haywood’s name from them. To the extent Mr Haywood considers the decisions to be affected by legal error, his avenue for appeal lies in the Federal Court, although the appeal period has now long elapsed. Mr Haywood made no appeal against these decisions.
[11] [2000] HCA 63.
If, as appears, Mr Haywood cavils with the factual findings of the Tribunal, or with the evidence given when those applications were heard, or with the materials produced in the related proceedings, the opportunity to do so was while those proceedings were on foot. In each of the substantive proceedings, Mr Haywood was provided a reasonable opportunity to present his case, and to adduce and test evidence before the Tribunal, including extensive cross-examination of CAP21. Cavilling with such matters now and making largely unsupported submissions about perceived falsehoods and lies, without more probative material and cogent reasoning at least, is not firm ground on which to request suppression orders and it does not provide a cogent or persuasive reason to depart from the principle set out in s 35(5).
Mr Haywood has made serious allegations against members of the Tribunal. His allegations of corruption, incompetence and ideological opposition to worker rights lack substantiation or any reasonable justification. Even though Mr Haywood has not named any member of the Tribunal, it is clear enough his allegations are levelled at the members of the Tribunal who heard and decided his applications. There is no material of any probative value and no cogent reason to believe the conduct of the individual members is a reason to suppress the decisions made or to redact Mr Haywood’s name from the decisions.
Mr Haywood has not challenged the 2016 Decision, the 2021 Decision or the Confidentiality Decision in the Federal Court. It was open for Mr Haywood to squarely raise any apprehension of bias he may have perceived during proceedings which resulted in the 2016 Decision, the 2021 Decision or the Confidentiality Decision with the Tribunal. Levelling serious allegations against the individual members long after their decisions were published goes well beyond a reasonable expression of disagreement with the decisions made. Conduct of this kind may amount to contempt within the terms of s 63 of the AAT Act: an offence which, if proved, carries a financial or custodial penalty. Even though Mr Haywood’s conduct might approach the threshold of contempt, and without diminishing the seriousness of his conduct, I do not propose to consider these matters under the contempt provisions in s 63 of the AAT Act. Other legal consequences of such allegations are for the particular individuals to consider. Allegations against individual members of the Tribunal of this kind do not justify the suppression orders Mr Haywood is seeking.
Mr Haywood refers to public comments made by the Attorney-General and Members of Parliament as justification for the allegations. This is misguided. To the extent the Attorney-General or any Member of Parliament has made comments about the Tribunal, in explaining the reasons for conducting a review of the Tribunal for example, the comments are matters of public record. Mr Haywood’s representation of such comments is not entirely accurate, and it appears to be gilded by his own perceptions of the Tribunal. Whatever gloss Mr Haywood might put on such public comments, they do not amount to a cogent reason to make suppression orders of the kind he is seeking.
Conclusion
In conclusion, Mr Haywood’s request for confidentiality orders is not made out. His request has a skeletal character, at best, and it is not clear if Mr Haywood presses the request. In those circumstances, for clarity and completeness, it is preferable to decide his request on the available materials.
I have considered his request in the terms and context in which it was made, having regard to the submissions of present relevance he has made and the relevant available documents.
On balance, the reasons drawn from the submissions Mr Haywood made are not persuasive or in any material way substantiated. I am satisfied they do not outweigh the principle set out in s 35(5) which is the basis for the Tribunal’s consideration, namely that the hearing of an application and evidence given to the Tribunal should be public. No other reasons have been put forward by Mr Haywood, who failed to appear and failed to comply with the Tribunal’s direction, despite him being provided with ample opportunity to do so.
The risk of personal or reputational harm to Mr Haywood from publication of his name and the 2016 Decision, the 2021 Decision and the Confidentiality Decision is outweighed by the desirability of the Tribunal proceedings, the Tribunal decisions and the evidence on which they were made being public.
In order to preserve the utility of Mr Haywood’s application during the period in which an appeal in respect of this decision under s 44 of the AAT Act may be lodged in the Federal Court, it is appropriate to issue interim orders under s 35(4) to restrict publication of this decision to the parties for the period of 28 days after this decision is given to Mr Haywood, whereupon if no appeal is lodged the interim orders will end.
Decision
Application for confidentiality orders refused.

65. I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

.................[SGD].........................
Associate
Dated: 3 August 2023

Application decided on the papers

Date for final submissions

5 July 2023

Applicant:

Self-represented

Solicitor for Respondent:

Mr S Marris, Sparke Helmore

Application decided on the papers
Date for final submissions	5 July 2023
Applicant:	Self-represented
Solicitor for Respondent:	Mr S Marris, Sparke Helmore