Howard and Migration Agents Registration Authority - [2002] AATA 1245

DECISION AND REASONS FOR DECISION [2002] AATA 1245

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1637
N2002/266

GENERAL ADMINISTRATIVE DIVISION       )
           Re       MARGARET HOWARD
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY
  Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date4 December 2002
PlaceSydney

Decision The Tribunal refuses the application of Miss Margaret Howard to have her name suppressed pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975 in publication of the decisions in matters N2001/1637 and N2002/266, and of this decision, which gives reasons for so deciding.

[SGD] Ms G Ettinger
Senior Member
CATCHWORDS
Practice and procedure – proceedings – Administrative Appeals Tribunal - confidentiality order – principles applicable - whether section 35 order appropriate - application refused

LEGISLATION
Administrative Appeals Tribunal Act 1975 s 35(2)
Migration Act 1958

CASE LAW
Howard and Migration Agents Registration Authority [2001] AATA 978
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Minister for Immigration and Ethnic Affairs and Pochi (1980) 4 ALD 139
Re Maher and Attorney-General's Department (1985) 7 ALN N411
Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407
Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663
R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227
Scott v Scott [1913] AC 417
Flood v Secretary Department of Social Security (1994) 33 ALD 182
Bailey v Comcare Australia(AAT 10215, 1 June 1995)

REASONS FOR DECISION

4 December 2002 Ms G Ettinger - Senior Member

The decision before the Administrative Appeals Tribunal ("the Tribunal") was the application of Miss Margaret Howard at the close of the hearing in Matters N2001/1637 and N2002/266, to have her identity suppressed pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Miss Howard's substantive appeal had been against the decision of the Migration Agents Registration Authority, ("MARA"), dated 14 February 2002, (Exhibit R3), not to grant her re-registration as a migration agent pursuant to section 290(1) of the Migration Act 1958 ("the Act"). MARA refused registration on the basis that Miss Howard had breached various clauses of the Migration Agents Code of Conduct and it was satisfied that Miss Howard was not a person of integrity and otherwise not a fit and proper person to give immigration assistance.
The Applicant was represented by Ms Tzannes of counsel instructed by Nyman Gibson & Co, and the Respondent, MARA, by Ms S Hamer, solicitor of the Australian Government Solicitor, who had also represented the Respondent at the substantive hearing. The application to have Ms Howard's name treated as confidential pursuant to section 35(2) of the AAT Act was heard by telephone on 30 July 2002, some two weeks after the substantive hearing.
ISSUES BEFORE THE TRIBUNAL
The application made by Ms Tzannes after the close of proceedings in Matter N2001/1637 and N2002/266 which had been a hearing in public, was that the name of Miss Howard be suppressed in the decision of the Tribunal and on the MARA register, that is, that the decision of the Tribunal in relation to Miss Howard be reported without identifying her, but that the transcript and the exhibits not be treated as confidential.
LEGISLATIVE CONTEXT
The relevant legislation in this matter is the Administrative Appeals Tribunal Act 1975, in particular section 35 which follows:
"35 Hearings to be in public except in special circumstances
(1AA) This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
(1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.
(1A) If, at a time a hearing is in public, a person participates in the hearing by a means allowed under section 35A, the Tribunal is to take such steps as are reasonably necessary to ensure that the public nature of the hearing is preserved.
(2) Where 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, the Tribunal may, by order:
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
(3) In considering:
(a) whether the hearing of a proceeding should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted."

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the AAT Act and the following documents as in the substantive matter. There were no further documents lodged in relation to the application to suppress Miss Howard's name from publication.
Item    Date   Exhibit Number
List of certificates of Margaret Howard    Various dates           Exhibit A1
Various witness statements          Various dates           Exhibit A2
Applicant's Statement of Facts, Issues and Contentions        8 February 2002      Exhibit A3
Letter from R Fitzgerald to the Applicant 2 February 1997      Exhibit A4
Unsigned statement of account from R Fitzgerald to R Tangherian Undated        Exhibit A5
Telephone bill of the Applicant for August to September 1997           12 September 1997 Exhibit A6
Documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the T-documents, T1-T100 pp 1-369 and supplementary T-documents S1 pp1-168 Exhibit R1
Affidavit of R Tangherian   15 February 2002    Exhibit R2
Decision of MARA refusing Margaret Howard's application for registration 14 February 2002           Exhibit R3
Letter of the Law Society of New South Wales 22 March 2002        Exhibit R4
Respondent's Statement of Facts and Contentions     20 February 2002    Exhibit R5

I was mindful that all the evidence given in the substantive matter was before me, as well as the Stay Decision given on 30 November 2001 (Howard and Migration Agents Registration Authority [2001] AATA 978), and the further submissions made by the representatives with regard to confidentiality.
SUBMISSIONS
The reasons for the making of a confidentiality order which suppressed the identification of Miss Howard only for publication in every mode, including on the MARA register and the internet, were, Ms Tzannes submitted, to ensure that the public interest would not be compromised. Miss Howard was still a practising solicitor, earned her income in that profession, and hoped to continue as such, Ms Tzannes submitted. She submitted that even with the identity of Miss Howard suppressed, relevant persons could still read the full reasons. Ms Tzannes submitted that the Hearing of the substantive matter had been held in public, and that the request for suppression of a name was not unprecedented. Ms Tzannes submitted that Miss Howard had been embarrassed while attending a continuing legal education seminar in which her AAT Stay Decision had been discussed.
Ms Hamer on the hand, submitted that the public scrutiny of cases enhanced public confidence in the powers of the Tribunal to review administrative powers.
The representatives then cited various cases in which confidentiality issues had been considered and which I have taken into account in coming to my decision. A brief comment follows:
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Minister for Immigration and Ethnic Affairs and Pochi (1980) 4 ALD 139
Ms Tzannes submitted citing Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, that the powers pursuant to section 35 of the AAT Act were present in the legislation to be used as appropriate, and publication of Miss Howard's name on the internet in particular, should be suppressed.
Ms Hamer submitted the starting point of section 35 of the AAT Act was that it was desirable in the first instance that disclosure of names and decisions be made public, emphasising however that unless there was a real possibility of injustice, or disclosure was contrary to the public interest, then that was the appropriate course of action. Ms Hamer submitted that the chief objective of the legislation was to see justice done, and the suppression of Miss Howard's name from the MARA register would be inconsistent with that aim.
Ms Hamer also submitted that it was recognised that the clients of migration agents, both present and future, were a vulnerable class of persons and as Miss Howard was still practising, they had a right to be aware of the decision. Miss Howard's embarrassment as stated by Ms Tzannes, was a private interest and insignificant as far as the public interest was concerned, Ms Hamer submitted.
I noted Brennan J's comment in Pochi (supra), an appeal against a deportation order by a person convicted of a drug offence, in which his Honour discussed the public interest in protecting the sources of information used to combat crime being paramount, and on keeping certain matters confidential or excluding certain people from hearings. His Honour also said:
"Yet the powers conferred upon this Tribunal by s.35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly."
It is worth noting the Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs and Pochi (1980) 4 ALD 139, upheld Brennan J's decision, although it did not deal specifically with matters relating to section 35 of the Act.

Re Maher and Attorney-General's Department (1985) 7 ALN N411

Ms Tzannes submitted that in that case, the question of public interest had been paramount.
I noted that Re Maher (supra) was an application under the Freedom of Information Act 1982 where the Tribunal made an order pursuant to section 35(2) of the AAT Act prohibiting the publication of some evidence. On appeal, holding that a third party had standing to apply in regard to an order made, the Tribunal stated that:
"It cannot be said that any one party to a proceeding necessarily represents the public interest. In many instances the parties may have in fact quite contrary interests to those which are described as the 'public interest' . It is therefore our opinion that a person other than a party may apply in relation to an order made pursuant to section 35(2) and be heard …"
Re Maher (supra) can be distinguished on the facts from this case because whilst the principles applying in section 35 cases remain, the situation in Miss Howard's case does not relate to a third party applying to have orders varied.
Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407
Ms Tzannes submitted that the Deputy President in that case had commented on balancing the public versus the private interest. She submitted he had found that the public interest was not compromised by the suppression of Mr Nolan's name.
I was mindful that Deputy President Thompson in Nolan (supra), followed Pochi (supra), and held that the balance of public interest required that certain material included in documents before the Tribunal not be disclosed, and that it was appropriate to apply a section 35(2) order to them.
Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663
Ms Tzannes contrasted the abovementioned case with that of Miss Howard in that in Kanina Banner (supra), many women were affected; they needed to know information regarding laboratory standards in the matter of cervical smears, and in fact, in accordance with that requirement, the confidentiality order had been lifted. Ms Tzannes submitted that by way of contrast, Miss Howard had not practised as a migration agent since October 2001, and there were no clients who would be affected by the act of having her name kept confidential. Kanina Banner (supra) could therefore be distinguished Ms Tzannes submitted.
Ms Hamer however submitted that the public interest was a big issue in Miss Howard's case, and potential migration clients needed to be informed about persons such as the Applicant. They were a vulnerable class of persons she submitted, and should know. Further, Miss Howard was still in practice and it was important the public should be informed Miss Hamer submitted. The considerations in Kanina Banner (supra), were therefore of relevance Ms Hamer submitted.
I was mindful of the submissions of both parties, noting that the suppression order was lifted after there had been a public outing of the issue in the media. However, the principles expressed in that case are sound principles and the suppression order was made out of concern that until the full case had been heard, and the issues aired, the facts could not be fully established. Deputy President Forgie stated in that case:
"(31)… there can be no question that the public has a very great interest in the issues that will be considered during the hearing. Issues relating to the quality of pathology tests in general and to gynaecological pathology tests in particular are of very grave concern to it. There can be no question that individual women who have been tested by GDL will have a very great interest in those issues and particularly in whether their own health has been in any way compromised. Public health matters such as these are of the gravest concern to all members of the public whether directly affected or not. That concern is reflected in the very provisions of the Act with which I am concerned that is, the accreditation provisions relating to pathology laboratories. It is also reflected in Victorian legislation establishing the PSA Board, to which I have referred (Pathology Services Accreditation Act 1984(Vic)), and the Cervical Register maintained by the Victorian Cytology (Gynaecological) Registry (Cancer Act 1958 (Vic)). Although the details of the Victorian legislation were not canvassed at the hearing and it is not appropriate to examine them in the context of this case, it is relevant to note that pathologists in Victoria are subject to regulation at both the Commonwealth and State levels. In broad terms, Victorian legislation and institutions are responsible for the regulation of the quality of the pathology services. Decisions made under s. 23DN of the Act take into account whether or not a pathology service has met a certain standard in its testing procedures and results but the Act itself is not responsible for setting that standard or in assessing them against that standard. Instead, the Act is concerned with the payment of medicare benefits to pathology services which meet standards set and assessed by others.
(32) Acceptance that the quality of pathology tests is of the utmost gravity does not lead automatically to the conclusion that the tribunal's review of a decision of the commission founded upon its concerns about GDL's test results should be held in public. There are other issues to be considered in addition to the matters of public interest to which I have already referred.
(33) I must take into account the nature of the proceedings themselves. Evidence is necessarily given at a hearing piece by piece and it is impossible to have regard to the whole of it until the conclusion of the case. Given the very real concern that the public, and particularly women, have regarding any lack of quality in gynaecological pathology testing, the piecemeal approach is likely to exacerbate those concerns and, indeed, is even likely to extend to engendering very real fear amongst members of the community who may have no cause to fear once the whole of the evidence is known. At this stage prior to the hearing, the tribunal has only a small part of the evidence that will be relevant in determining whether or not the minister's decision was the correct or preferable decision."
In Miss Howard's case, by contrast, the full evidence had been heard by the time of the application to have her name suppressed.
R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227
Scott v Scott [1913] AC 417
The abovenamed cases were raised. Ms Hamer submitted that Miss Howard claimed embarrassment at having her name published, but that if it was not disclosed, then justice would not be seen to have been done. One of the chief objectives of the legislation was to see that justice was done, Ms Hamer submitted. She submitted that the suppression of Miss Howard's name from the MARA register would be inconsistent with that aim.
Ms Hamer submitted that the English case law was not of assistance to the Tribunal as it was not binding on the Tribunal, a submission I accepted.
Flood v Secretary Department of Social Security (1994) 33 ALD 182
The abovenamed case was also drawn to my attention and I noted that the Tribunal in that case made an order restricting access to the exhibits tendered and transcript of the hearing, but otherwise published the decision in full.
THE TRIBUNAL'S DELIBERATIONS
In coming to a decision whether Miss Howard's name should be kept confidential pursuant to section 35 of the AAT Act, I was mindful of the submissions of the parties, the evidence before me, and the relevant case law and legislation. The applications were made in particular in relation to sections 35(2)(aa) (dealing with restriction of the publication of Miss Howard's name and address), and 35(3)(b) (dealing with disclosure of information given at the hearing), of the Act.
I was mindful that the fundamental principle expressed in section 35 of the AAT Act directs the Tribunal to conduct its proceedings in public. This is so on the basis of openness in the interests of maintaining public confidence in the fairness and integrity of those proceedings. The Tribunal should only depart from this approach if it is satisfied that there are proper and cogent reasons for doing so. Section 35(2) of the AAT Act provides that the Tribunal may make certain orders which have the effect relevantly, of restricting the publication of certain matters.
As recognised by both parties, a leading case, Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 was relevant to my decision-making. I noted that the then President of the Tribunal, Brennan J, said (at pp 55-56):
"Yet the powers conferred upon this Tribunal by s.35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s.36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s.35(2) authorises it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases - that is to say, where 'the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public' cannot be applied."

I have considered the submissions made regarding the applicability of the principles enunciated in Re Maher (supra) noting that Ms Tzannes submitted that in that case, the question of public interest had been paramount.
I noted that Re Maher (supra) was an application under the Freedom of Information Act 1982 where the Tribunal made an order pursuant to section 35(2) of the AAT Act prohibiting the publication of some evidence. On appeal, holding that a third party had standing to apply in regard to an order made, the Tribunal stated that:
"It cannot be said that any one party to a proceeding necessarily represents the public interest. In many instances the parties may have in fact quite contrary interests to those which are described as the 'public interest'. It is therefore our opinion that a person other than a party may apply in relation to an order made pursuant to section 35(2) and be heard …"
Re Maher (supra) can be distinguished on the facts from this case because whilst the principles applying in section 35 cases remain, the situation in Miss Howard's case does not relate to a third party applying to have orders varied.
I have considered the submissions made regarding the application of the principles in Nolan (supra) to this case, noting that the decision regarding suppression of publication of information in Nolan (supra) dealt with the effective administration of the prison system, hardly relevant to the present case.
I have considered the arguments made in Kanina Banner (supra), noting that Deputy President Forgie in that case at paragraph 30 of her decision, stated:
"As in a court, mere financial strain or embarrassment is not a sufficient reason for making a suppression order in the tribunal."

I was mindful also that the Deputy President was however satisfied that in Kanina Banner (supra), the situation went far beyond that, and granted suppression orders pursuant to section 35 of the AAT Act. The principles expressed in that case are sound principles and the suppression order was made out of concern that until the full case had been heard, and the issues aired, the facts could not be fully established. Deputy President Forgie stated in that case:
"(31)… there can be no question that the public has a very great interest in the issues that will be considered during the hearing. Issues relating to the quality of pathology tests in general and to gynaecological pathology tests in particular are of very grave concern to it. There can be no question that individual women who have been tested by GDL will have a very great interest in those issues and particularly in whether their own health has been in any way compromised. Public health matters such as these are of the gravest concern to all members of the public whether directly affected or not. That concern is reflected in the very provisions of the Act with which I am concerned that is, the accreditation provisions relating to pathology laboratories. It is also reflected in Victorian legislation establishing the PSA Board, to which I have referred (Pathology Services Accreditation Act 1984(Vic)), and the Cervical Register maintained by the Victorian Cytology (Gynaecological) Registry (Cancer Act 1958 (Vic)). Although the details of the Victorian legislation were not canvassed at the hearing and it is not appropriate to examine them in the context of this case, it is relevant to note that pathologists in Victoria are subject to regulation at both the Commonwealth and State levels. In broad terms, Victorian legislation and institutions are responsible for the regulation of the quality of the pathology services. Decisions made under s. 23DN of the Act take into account whether or not a pathology service has met a certain standard in its testing procedures and results but the Act itself is not responsible for setting that standard or in assessing them against that standard. Instead, the Act is concerned with the payment of medicare benefits to pathology services which meet standards set and assessed by others.
(32) Acceptance that the quality of pathology tests is of the utmost gravity does not lead automatically to the conclusion that the tribunal's review of a decision of the commission founded upon its concerns about GDL's test results should be held in public. There are other issues to be considered in addition to the matters of public interest to which I have already referred.
(33) I must take into account the nature of the proceedings themselves. Evidence is necessarily given at a hearing piece by piece and it is impossible to have regard to the whole of it until the conclusion of the case. Given the very real concern that the public, and particularly women, have regarding any lack of quality in gynaecological pathology testing, the piecemeal approach is likely to exacerbate those concerns and, indeed, is even likely to extend to engendering very real fear amongst members of the community who may have no cause to fear once the whole of the evidence is known. At this stage prior to the hearing, the tribunal has only a small part of the evidence that will be relevant in determining whether or not the minister's decision was the correct or preferable decision." (my emphasis)
In Miss Howard's case, by contrast, the full evidence had been heard by the time of the application to have her name suppressed.
I find that Kanina Banner (supra) was a very different situation from the present one, where I find that fear of loss of income due to publication of Miss Howard's name in connection with the refusal by MARA to re-register her, and embarrassment already suffered in a CLE situation where her case was mentioned prompted this application, and were the main reasons given for the application.
I have considered the cases of R v Chief Registrar of Friendly Societies , Ex parte New Cross Building Society [1984] 1 QB 227 and Scott v Scott [1913] AC 417, both English cases, and whilst their principles are not at odds with those I must consider, I am not, as Ms Hamer submitted, bound by them. In coming to a decision, I have therefore preferred to rely on the other abovenamed authorities which do bind me.
I have also considered the case of Flood (supra) where the Tribunal made an order restricting access to the exhibits tendered and transcript of the hearing, but otherwise published the decision in full.
I found that the submissions made on behalf of the Applicant in this case, were, in my opinion, concerned more with avoiding possible personal embarrassment to Miss Howard and preserving her income, than with preventing injustice or other substantial disadvantage to her (Kanina Banner (supra)). I was mindful that Senior Member Hotop (now Deputy President Hotop), refused an application for confidentiality in Bailey v Comcare Australia(AAT 10215, 1 June 1995) on the basis that it appeared to him Bailey was simply concerned with avoiding personal embarrassment.
I noted that in addition to the hearings having been held in public, Miss Howard's name was published, as is the Tribunal's usual practice in the Sydney Morning Herald:

on the day of the Stay Hearing conducted on 14 November 2001;
on the day of publication of the Stay decision on 30 November 2001;
announcing the substantive hearings regarding the appeal in matters N2001/1637 and N2002/262 on 17 and 18 July 2002;
and again in announcement of the Hearing to consider submissions of the parties with regard to the suppression of Miss Howard's name from publication, which was held on 30 July 2002.

I have come to the conclusion after considering the case law and the submissions of the parties that the reasons advanced on behalf of the Applicant were insufficient to satisfy me that I should depart in this case, from the normal practice of openness in publication of the full details of the decision I have made with regard to Miss Howard's application for registration as a migration agent. Accordingly, the request for a confidentiality order under section 35(2) of the AAT Act is refused.
DECISION
The Tribunal refuses the application of Miss Margaret Howard to have her name suppressed pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975 in publication of the decisions in matter N2001/1637 and N2002/266, and of this decision which gives reasons for so doing.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed: H Sim         .....................................................................................
  Associate
Date of Hearing  30 July 2002
Date of Decision  4 December 2002
Counsel for the Applicant        Ms M Tzannes
Solicitor for the Applicant         Nyman Gibson & Co
Solicitor for the Respondent    Ms S Hamer, Australian Government Solicitor