Huikeshoven v Secretary, Department of Education, Skills and Employment
[2021] FCA 1359
•5 November 2021
FEDERAL COURT OF AUSTRALIA
Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359
File number: SAD 145 of 2021 Judgment of: JACKSON J Date of judgment: 5 November 2021 Catchwords: PRACTICE AND PROCEDURE - application for suppression and/or non-publication orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) - identification of applicant and her child - whether order necessary to prevent prejudice to the proper administration of justice or to protect the safety of any person - application dismissed Legislation: A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 121, Part 5
Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 44
Federal Court of Australia Act 1976 (Cth) ss 17, 37AA, 37AE, 37AF, 37AG, Part VAA
Cases cited: AA v BB [2013] VSC 120; (2013) 296 ALR 353
AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202
AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46; (2019) 97 NSWLR 1046
AX v Stern [2008] VSC 400
BJP19 (as Litigation Guardian for BJQ19) v Office of the Australian Information Commissioner [2019] FCA 618
Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649
Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629
Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Lew v Priester (No 2) [2012] VSC 153; (2012) 35 VR 216
Porter v Australian Broadcasting Corporation [2021] FCA 863
PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; (2017) 53 VR 45
Russell v Russell (1976) 134 CLR 495
SRD v Australian Securities Commission (1994) 52 FCR 187
Stanford v DePuy International Ltd [2013] FCA 1304
Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81
X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630
Zivanovic v Australian Securities and Investments Commission [2017] FCA 1633
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 74 Date of last submissions: 1 October 2021 (respondent)
13 October 2021 (applicant)Date of hearing: Determined on the papers Counsel for the Applicant: Mr A Lazarevich Solicitor for the Applicant: Leventis Lawyers Counsel for the Respondent: Mr S Cummings Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
SAD 145 of 2021 BETWEEN: MELISSA HUIKESHOVEN
Applicant
AND: SECRETARY, DEPARTMENT OF EDUCATION, SKILLS AND EMPLOYMENT
Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Paragraphs 1 to 4 inclusive of the interlocutory application filed 7 September 2021 are dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKSON J:
This proceeding is an appeal (in the sense used in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) from a decision of the Administrative Appeals Tribunal (AAT) published on 29 June 2021. The AAT's decision was the latest in a chain of decisions arising from the rejection, by a delegate of the respondent (Secretary), of the applicant's claims for Child Care Benefit and Child Care Subsidy for the financial year ending 30 June 2018, and the cancellation of an earlier grant of Child Care Subsidy, with effect from 3 December 2018. The reason given for these decisions was that the applicant's child did not meet immunisation requirements which are conditions of eligibility for the receipt of the benefits.
By an interlocutory application, the applicant seeks orders under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) suppressing her name and that of her child, and prohibiting the publication of identifying details and the medical history and health of the child. An order is sought in the alternative for the anonymisation of the names of the applicant and her child. That order is sought under s 37AF(2), which authorises orders that the court thinks appropriate to give effect to orders under s 37AF(1). Section 37AF(2) could not, however, be available if no separate order under s 37AF(1) is made. I will proceed on the basis that since an order for the anonymisation of names is an order that restricts the disclosure of information, it too is required to be authorised under s 37AF(1): see s 37AA, definition of 'suppression order'. I will therefore refer to the various orders sought by using the broad term 'suppression orders'.
In the same interlocutory application the applicant seeks an order that she be permitted to adduce additional evidence in the appeal. That aspect of the application has been listed to be heard at the same time as the hearing of the appeal.
The Secretary does not oppose the application for suppression orders but did make submissions drawing the court's attention to various matters which, if accepted as significant, would be reasons why the orders should not be made.
While to date there has been no suppression of any names or other details of the court file, to the applicant's knowledge no person has yet asked for access to the file.
For the following reasons the application for suppression orders will be dismissed.
The basis of the application and of the Secretary's position
Section 37AF and s 37AG of the Federal Court Act are as follows:
37AF Power to make orders
(1)The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b)information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence; or
(ii)information obtained by the process of discovery; or
(iii)information produced under a subpoena; or
(iv)information lodged with or filed in the Court.
(2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
37AG Grounds for making an order
(1)The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
'Non-publication order' means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information), and 'suppression order' means an order that prohibits or restricts the disclosure of information (by publication or otherwise): s 37AA.
The present application is made on the ground that the orders sought are necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a)) and (or alternatively) are necessary to protect the safety of a person (s 37AG(1)(c)).
The applicant invokes the safety ground because the proceeding concerns questions about vaccination. As set out in an affidavit of the applicant described in further detail below, she fears that if the child's vaccination status becomes public knowledge, there is an increased risk that the child and the applicant may be exposed to bullying and violence. She says that her surname, and so that of her child, is distinctive, meaning that she and the child would be easily identified if the name were to be published in connection with the proceeding.
The applicant initially sought to establish the other ground, of prejudice to the administration of justice, on the basis of the following contentions:
(1)the subject matter of the proceeding concerns the medical history and health of a child, which would ordinarily be private;
(2)the identity of the child will not be essential to understanding the decision to be made on the appeal; and
(3)the child herself is not the applicant for the benefits and is not playing any active role in the proceeding.
On the basis of those matters the applicant submitted that it is necessary to de-identify her and her child in order to protect against:
the disincentive [to] parents of children who may be eligible for Child Care Benefit and Child Care Subsidy not to exercise their legal rights to challenge decisions on that topic because, if those orders are not made, the Applicant will retain the fear that putting the child's medical history and health conditions before the Court (as must be done) could be to the disadvantage of the future of the child.
The applicant expanded on the administration of justice ground significantly in supplementary written submissions. These were filed with leave after it emerged that there had been confidentiality orders made in the AAT review from which the applicant now appeals (Second Review). She also relies on a legislative provision which required a previous review (First Review) to be held in private. Her submission was that the AAT's confidentiality order and the privacy of the previous review would be vitiated unless suppression and non-publication orders are made.
The evidence in support of the application
The child is currently 5 years old.
The focus of the Second Review before the AAT was a report prepared by a general practitioner expressing the opinion that the risk of an adverse reaction to vaccination of the child outweighs the benefits. The AAT also received a later report by the same doctor. In an affidavit affirmed in support of the interlocutory application, the applicant says that she has obtained a further report from the doctor which she wishes to adduce in evidence in this appeal. That further report contains material which the applicant regards as private to her child, including reference in comprehensive detail to the child's medical history, health conditions and the results of genetic testing the child has undergone.
The applicant's affidavit also contains extensive evidence to the effect that her surname is distinctive so that, by reference to that surname, her child can be easily identified. Further evidence on that point is contained in an affidavit affirmed by Casey Ellendon, a solicitor representing the applicant in the proceeding. It is not necessary for me to describe all that evidence. I accept that the applicant's surname is distinctive and that if it became publicly known and linked to the details of this proceeding, the applicant's child would be easily identified as the child referred to in any reasons for decision or any news report about the proceeding.
The applicant's affidavit expresses concern that if her child's vaccination status becomes public knowledge, the child will be at increased risk of suffering bullying, discrimination, 'lack of friendships' and violence. She holds these concerns because the topic of vaccination and 'anti‑vaxxers' is one of great interest to the media and the public at the moment. The applicant foresees media interest in her appeal since it raises the subject of vaccination. Also, staff at the child care centre attended by the child have told her that potential new parents routinely ask whether any of the children at the centre are unvaccinated.
The applicant's affidavit also expresses a more general concern about keeping medical information about her child out of the public sphere so as to protect the child's privacy and to 'protect [the child] from the effect that [the child's] vaccination status, medical history and health conditions will likely have on [the child's] wellbeing throughout [the child's] life'.
The applicant also says in her affidavit that she has concerns that if it becomes public knowledge that her child is unvaccinated, she will suffer the same consequences as the child. Her experience is that members of the community jump to conclusions about 'anti-vaxxers' and that she will be labelled as such, notwithstanding the real and genuine concerns which she says she holds about the reactions her child may have to certain vaccines. She refers to social media posts and the internet more generally in support of her view that matters relating to vaccination are prejudged. She also refers to an interaction with a work colleague in which the colleague expressed a refusal to talk to her for fear of saying something that she (the colleague) should not. That has caused the applicant to feel anxiety about the subject matter of this proceeding and 'the predicament facing my child'. She considers that the circumstances of the current pandemic will mean that the issue of vaccination will become increasingly emotionally charged and that persons with medical exemptions may become targeted.
The applicant also relies on a second affidavit of Mr Ellendon, which puts into evidence an interlocutory order that the AAT made under s 35(3) of the AAT Act prohibiting the publication or other disclosure of the name, address or any other identifying information of the applicant (other than to the Secretary and others involved in the AAT review). The order provided for the use of a pseudonym for the applicant. There was also an order under s 35(4) prohibiting the publication or other disclosure of such identifying information in respect of any person related to or otherwise associated with the applicant (subject to the same exceptions). It appears that the orders were made after the applicant asked the AAT in a written submission that the relevant names be 'suppressed for from the decision privacy reasons' [sic]. The submissions referred to the child's vaccination status and said that the applicant had 'personally had extremely negative experiences' due to that, 'including from family, friends, and strangers'.
There is also a reference on the cover page of the AAT's decision to anonymisation under the Child Support (Registration and Collection) Act 1988 (Cth), however it appears from Mr Ellendon's second affidavit that this was an error, and neither party relied on that Act.
Mr Ellendon's affidavit also provides information intended to show that the final reasons for decision of the court in this proceeding 'may have precedential value' because it will be the first to consider the particular legislative provision which appears to govern the question of what the doctor's report needed to say in this case, in order for the child to meet the immunisation requirements. I place little weight on this, but I accept in any event that the decision will be in the public domain and that there is a real and not remote chance that it will be reported in the media. I take judicial notice of the fact that during the present pandemic there is a high level of public and media interest in the subject matter of vaccination. It is a subject which can raise strong feelings in some people. It is not possible on the evidence to be any more specific than that.
The applicant also relies on an affidavit affirmed by the principal of the firm representing her, Louis Leventis, from which it appears that the question of suppression in relation to the present proceeding was first raised with the Secretary on 23 August 2021 (the proceeding having been commenced on 27 July 2021).
Principles
When deciding whether to make a suppression or non-publication order, the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 37AE. In Russell v Russell (1976) 134 CLR 495 at 520 Gibbs J stated the rationale for the principle of open justice as follows:
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view'. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for 'publicity is the authentic hall-mark of judicial as distinct from administrative procedure'. To require a court invariably to sit in closed court is to alter the nature of the court.
Hence, the circumstances where it is appropriate to make an exception to the principle of open justice are limited. The court may only make a suppression or non-publication order if it is satisfied that such an order is necessary for one or more of the purposes set out in s 37AG of the Federal Court Act. It is well established that the word 'necessary', as it appears in s 37AG (and its statutory predecessor, former s 50) is a strong word: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30], applied in Stanford v DePuy International Ltd [2013] FCA 1304 at [19]‑[20]. In Hogan at [31] the High Court said:
It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics.
Cogent evidence is needed and a belief that the orders are necessary will not be sufficient: see Lew v Priester (No 2) [2012] VSC 153; (2012) 35 VR 216 at [14] (Davies J). That is not a matter of mere form but is for the purpose of ensuring that suppression orders are kept for exceptional cases. It is therefore necessary for the court to carefully scrutinise the justification for the proposed orders: PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; (2017) 53 VR 45 at [54].
The parties differed as to the relevance and applicability of other authorities, so it is necessary to go to them in some detail. One was AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 (AB v CD). There Nettle J held (at [14]) that the ground of necessity to protect the safety of any person (in equivalent legislation, namely s 77RF(1)(c) of the Judiciary Act 1903 (Cth)) did not require that it be established on the balance of probabilities that, absent the order, the person would suffer harm. Rather, it required 'satisfaction on the balance of probabilities that the order is necessary to protect the person's safety … being a conclusion informed by the nature, imminence and degree of likelihood of apprehended harm'. At [15] his Honour went on to explain:
The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of 'necessary to protect the safety of any person' that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.
In AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46; (2019) 97 NSWLR 1046 (AB (No 3)) at [58] this was described as a 'calculus of risk' approach (and adopted as the correct approach).
In AB v CD Nettle J decided that suppression orders were necessary in order to protect the safety of the applicant and her children. His Honour did so (at [17]) on the basis of:
unchallenged opinion evidence of very senior and appropriately experienced police officers that the current level of risk to the safety of HI and JK [the children] is 'acute' and will further increase with publication of EF's name and image upon expiration of current non-publication orders on 1 March 2019.
Nettle J went on to say (at [19]‑[20]):
Naturally, orders of the kind sought will not entirely eliminate the risk to HI and JK. But as is disclosed in one of the confidential affidavits filed in support of the application, which was not before the Court of Appeal, unless publication of HI and JK's names and images is prohibited, the publication of that information will surely aid in identifying HI and JK's location, erode the effectiveness of measures likely to be implemented to protect HI and JK, and thus maintain, and potentially increase, the risk of harm being done to them.
To that must be added that HI and JK are children of relatively tender years who were not and are not involved in any manner in the Supreme Court proceedings or these proceedings. It is not suggested that the interests or administration of justice would be at all compromised by non-publication of their names and images. There is no evident basis to suppose that public understanding of the judgments of the trial court or the Court of Appeal, or of this Court, would be affected. Nor is there any legitimate public interest in the publication of the details of EF's children in connection with the subject matter of the Supreme Court proceedings or these proceedings. The Royal Commission acknowledges that the names and images of the children are not relevant to its inquiry and that it has no interest in opposing the application. Neither CD nor the Commonwealth Director of Public Prosecutions opposes the application. And apart from The Age Company Ltd, responsible sections of the press and electronic media, represented in this Court pursuant to s 77RG(2) of the Judiciary Act under the rubric of the media interests, have rightly not sought to say anything against it.
It will be necessary to return to that passage later, as the present applicant relies on it.
The applicant also relies on AA v BB [2013] VSC 120; (2013) 296 ALR 353, where Bell J made orders suppressing the identities of a person who had been convicted of contraventions of the Family Violence Protection Act 2008 (Vic), his former spouse, and their child. In reaching his decision, Bell J had regard to the fact that the Family Violence Protection Act, and the Family Law Act 1975 (Cth) contained provisions restricting the publication of the names and identifying details of parties to proceedings under those pieces of legislation. The appellant and his former spouse were engaged in litigation under the Family Law Act at the time. His Honour found (at [165]) that unrestricted publication in relation to the proceeding before him would lead to identification of the parents and the child, contrary to the provisions and policy of the Family Law Act. That was an important consideration when determining whether to make suppression orders under the Supreme Court Act 1986 (Vic) (see also at [183]).
At [181] Bell J observed that an order is not necessary simply because a party wishes to avoid publicity or media scrutiny or to keep matters private and confidential. The making of an order is not justified simply to save a party or a witness from public embarrassment. A real risk of serious interference with the administration of justice must be demonstrated. At [182] his Honour said (footnotes removed):
Making a non-publication order may be necessary in cases where, in the absence of an order, parties would be deterred from bringing proceedings for the vindication of their legal rights, such as cases involving victims of blackmail, negligence or sexual assault where the person would suffer public ridicule or acute personal embarrassment if his or her identity were to be disclosed in legal proceedings. An order may be made in proceedings involving people with a mental illness, wards of the state or children in the parens patriae jurisdiction and in proceedings involving trade secrets. It may be necessary to make an order for the avoidance of prejudice to the administration of justice where publicity would destroy or imperil the subject matter of the proceeding. The categories of proceeding in which an order may be made are not closed.
Bell J decided that orders supressing the identities of the appellant, his former spouse and their child were necessary in order not to prejudice the administration of justice: at [187]. That was because the proceeding before him was an appeal from a proceeding under the Family Violence Protection Act in which the persons involved had statutory privacy protection, and it would defeat the purpose of those protections if they were applicable in the Magistrates Court but not on appeal: at [188]. Also (at [189]):
The rationale for the publication restrictions in the substantive proceeding in the Magistrates' Court apply equally in an appeal proceeding in this court. People needing protection from family violence should not fear the loss of their privacy in an appeal. It would deter people from seeking that protection if privacy protection was not to be provided in a subsequent appeal proceeding. The same consideration applies to the other persons involved in a substantive proceeding in the Magistrates' Court, such as respondents, witnesses and children. They should not be discouraged from participation in such proceedings by a fear of being identified in an appeal to this court.
Bell J also considered that the family privacy protection provisions in the Family Law Act should be taken into account: at [190]. At [191] he held:
This case falls into categories in which it is acknowledged that non-publication orders might be made. Unless orders were to be made, people - especially vulnerable women and children - would be deterred from seeking legal protection which they need and to which they are entitled. Others would be discouraged from becoming involved in proceedings. Unless orders were to be made, the subject matter of the proceeding would be destroyed. The subject matter of a family violence proceeding is the protection of the safety and wellbeing of the protected person, children and other family members. It would be destroyed or imperilled by loss of privacy in an appeal. Unless orders were to be made, the privacy protections in the Family Violence Protection Act and the Family Law Act would be undermined or lost. It would prejudice the administration of justice in all of these respects for orders not to be made.
Bell J went on to characterise the power under the relevant provisions of the Supreme Court Act as involving the exercise of a discretion. Whether or not that is so, with respect, it is clear that the equivalent provisions under the Federal Court Act do not involve a balancing exercise: see Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81 at [15] (McKerracher, White and Stewart JJ); Zivanovic v Australian Securities and Investments Commission [2017] FCA 1633 at [28] (Gleeson J); Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 at [14] (Griffiths J); and Hogan at [31]‑[33].
Also, Bell J's observations about the relevance of the privacy of proceedings in the Magistrates Court are not applicable by analogy to this case, an appeal from the AAT. That is clear from a decision of the Full Court of this court, Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435 (HWT v Williams) (Merkel J, Finn and Stone JJ agreeing). The respondent in that case, Mr Williams, was a prominent Australian Rules footballer who had been the subject of allegations of tax evasion or fraud which had been aired in a review in the AAT. There was both a legislative provision to the effect that the hearing of the proceeding in the AAT was to be private if Mr Williams requested (Taxation Administration Act 1953 (Cth) s 14ZZE) and an order by the AAT under s 35(2) of the AAT Act supressing his name and any identifying material. Mr Williams unsuccessfully sought certain particulars in the AAT review and then applied to the court for judicial review to restrain the AAT from proceeding in the absence of those particulars. So the AAT proceeding was still on foot when the matter came before the court.
The primary judge made a suppression order to protect Mr Williams' identity. On appeal, Merkel J said (at [26], emphases in original):
Williams' entitlement to maintain the privacy and confidentiality of the application for administrative review in the AAT, which arises under s 14ZZE of the Taxation Administration Act and ss 35(2) and 63(d) of the AAT Act, relates to the application for administrative review in the AAT. Upon a proceeding being commenced in the Federal Court an entirely discrete and different statutory regime applies in respect of court documents, evidence and submissions. Under that regime, subject to certain exceptions, the jurisdiction of the court 'shall be exercised in open court': see s 17(1) of the FCA Act. The exception that is relevant to the present case is s 50 of the FCA Act which, unlike s 35 of the AAT Act (which empowers the AAT to make a suppression order if it is 'desirable to do so'), only empowers the court to exercise its discretion to make such an order where the order appears to the court to be 'necessary in order to prevent prejudice to the administration of justice'. Williams applied to the primary judge for, and was granted, a suppression order, not in respect of material before the AAT but, rather, in respect of material before the court. The fact that some of the material before the court reproduced material before the AAT is not to the point. Once the material was filed in or was otherwise before the court, subject to any specific statutory exceptions, the court's, and not the AAT's, statutory regime applied to it.
At [29] Merkel J endorsed a 'fundamental difference' described in a previous case (SRD v Australian Securities Commission (1994) 52 FCR 187) between the AAT, as 'one of the layers of administrative decision-making by the Commonwealth', and the court, exercising the judicial power of the Commonwealth. At [30]‑[31] his Honour said:
The fundamental differences between the AAT and the court, and the different criteria that are to be applied in respect of suppression orders under s 35 of the AAT Act and s 50 of the FCA Act, afford strong support for the view that there is no legislative intention that the privacy and confidentiality in relation to a matter in the AAT should continue when that matter, or a part thereof, comes before the court. When the matter comes before the court pursuant to ss 44 or 45 of the AAT Act, s 39B of the Judiciary Act 1903 (Cth) or s 5 of the Administration Decisions (Judicial Review) Act 1977 (Cth) the criterion prescribed by s 50 must be satisfied before a suppression order may be made.
Thus, before exercising the power conferred by s 50 of the FCA Act the primary judge was required to determine whether it appears that the order sought was 'necessary in order to prevent prejudice to the administration of justice'. Section 50 is concerned with prejudice in respect of the exercise by the court of the judicial power of the Commonwealth, rather than prejudice in respect of the exercise by the AAT of the administrative power of the Commonwealth. Maintaining or, as the primary judge put it, 'giving practical effect' to Williams' statutory entitlements to privacy and confidentiality in relation to the application for administrative review in the AAT may, or may not, be necessary in order to prevent prejudice to the exercise by the AAT of its powers but cannot, standing alone, be necessary in order to prevent prejudice to the exercise by the court of its judicial powers.
Thus (at [33]) Merkel J concluded:
It follows from the foregoing discussion that maintaining the 'practical effect' of Williams' statutory entitlements in respect of privacy and confidentiality in relation to Williams' proceeding in the AAT cannot afford a proper basis for the primary judge to determine that a similar order appears to be 'necessary in order to prevent prejudice to the administration of justice'. As the primary judge made the suppression order on the basis of a consideration that is irrelevant to whether the criterion in s 50 of the FCA Act was satisfied his Honour erred in law.
The distinction which Merkel J draws between the administrative and judicial functions is consistent with Gibbs J's observations in Russell that are quoted above. Although HWT v Williams was decided under the previous s 50 of the Federal Court Act and not the current Part VAA, that is not a relevant point of distinction: see e.g. Zivanovic at [24]‑[25].
The applicant also relied on the following observations of Jagot J in Porter v Australian Broadcasting Corporation [2021] FCA 863 at [84]:
Sections 37AE-37AL of the [Federal] Court Act recognise that in order to do justice it is sometimes necessary that information filed or given in a proceeding not be disclosed or published. This is because justice will be undermined if people are not free to seek the exercise of judicial power confident that, amongst other things, their safety and the safety of others will not be compromised, that national or international security will not be prejudiced, and that the administration of justice will not itself be prejudiced: s 37AG(1). The administration of justice may be prejudiced in a variety of ways. If, for example, people cannot come to a court confident that some kinds of information can be protected from disclosure if necessary (such as commercially confidential information valuable to a person or a third party, or sensitive information about a person's health, or personal information about parties or third parties of no more than prurient interest to others) then public confidence in and access to justice may itself be undermined.
And at [85], Jagot J held:
The purpose of the principle of open justice has been said to be at least two-fold, to 'enable public scrutiny of the way in which courts decide cases' and 'to enable the public to understand how the justice system works and why decisions are taken': Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629 at [42]-[43]. That said, there are well-recognised cases in which the overall administration of justice requires the suppression of some information from the public, reflected in s 37AG(1) of the [Federal] Court Act. In Dring at [46] these well-recognised categories were said to include 'national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality'.
It is important to note, however, that the statement in Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629 to which her Honour refers here was made in the context of a question about whether a non-party should have access to documents that were put before the court. The passage in the judgment of Baroness Hale PSC on behalf of the Supreme Court was (at [45]‑[46]):
… On the one hand will be 'the purpose of the open justice principle and the potential value of the information in question in advancing that purpose'.
On the other hand will be 'any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others'. There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. In civil cases, a party may be compelled to disclose documents to the other side which remain confidential unless and until they are deployed for the purpose of the proceedings. But even then there may be good reasons for preserving their confidentiality, for example, in a patent case.
Her Ladyship was referring in a general way to reasons which can be relevant in the balancing exercise the court needed to undertake in deciding whether to give access to material. The task before this court is not a balancing exercise (Swannick at [15]; Zivanovic at [28]; and Chen at [14]) and does not permit 'the legitimate interests of others' to be weighed except to the extent that it may bear upon the safety of any person or prejudice the administration of justice. In any event, neither Lady Hale PSC nor Jagot J were purporting to lay down any generally applicable principle to the effect that the protection of the interests of children is necessary to prevent prejudice to the proper administration of justice, in the strong sense required by Hogan.
The applicant also relied on BJP19 (as Litigation Guardian for BJQ19) v Office of the Australian Information Commissioner [2019] FCA 618, in which Kerr J supressed the names of the applicant and her litigation representative. The applicant was a 6‑year‑old girl who sought judicial review of a decision of the Australian Information Commissioner not to investigate a complaint that the school at which she was a pupil had interfered with her privacy in certain ways. At [15]‑[16] his Honour held:
Having regard to the nature of these proceedings and the party bringing them, the Court is satisfied that it is necessary to prevent prejudice to the interests of justice that an order substantially in the form made on 2 April 2019 on an interim basis should now be made on a continuing basis pursuant to s 37AF of the FCA Act.
The interests of justice, in the Court's opinion, extend to enabling a child of tender years to bring proceedings relating to an allegation of a failure in the Commissioner lawfully to address a complaint they had made regarding their privacy, without having their name being made public. A child should not be required to sacrifice more of his or her privacy than is essential for the Court to undertake its judicial functions in a manner that is transparent to the public. In my opinion, at least in this particular instance, that will not require the child or her mother to be identified.
The parties referred to AX v Stern [2008] VSC 400, where prospective plaintiffs sought suppression of details (apparently, identifying details of the plaintiffs and their children) where they wished to sue doctors over in vitro fertilisation treatment after one of their children was born with a disability. The court made the orders, on the basis of evidence that the plaintiffs would not proceed with the action if the orders were not made because they would not want it publicly known that they would have considered terminating the foetus.
Finally, I would also refer to the comments of Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142‑143 (citations removed):
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. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.
In that regard it is significant in my view that s 37AG(1) only refers to undue distress or embarrassment in connection with a criminal proceeding involving an offence of a sexual nature: see s 37AG(1)(d). That is not to say that such distress or embarrassment cannot be relevant to satisfaction of one of the other grounds in s 37AG(1), but it does suggest that it will not be enough on its own, except in proceedings involving sex offences.
Consideration
Of course the interests of a 5‑year‑old child must be considered with care and sympathy. The court will seek to avoid any damage to those interests from the proceeding if that can be done consistently with the strictures of Part VAA of the Federal Court Act governing suppression and non-publication orders, which reflect the fundamental principle of open justice. For example, if the name of a child is not necessary in order for the public to understand the course of the proceeding or the reasons for any decision, the court may anonymise the child's name in those reasons. That can be done without the need to make any order prohibiting the parties or other persons from publishing or otherwise disclosing identifying details, and will not necessarily engage Part VAA. It is part of the inherent power of the court to protect from needless harm persons who become involved in court processes: see X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630 at [88]‑[89] (Kirby J).
But such an approach would be of little use here because, as I have already found, the distinctiveness of the applicant's surname means that the child will be readily identifiable even if the child's name is not disclosed in any publication of the court. If the identity of the child is to be kept out of the public domain, an order under s 37AF will be needed, so one of the grounds in s 37AG must be made out. In focussing on the child I do not overlook that the application is also based on the interests of the applicant.
The safety of persons
I do not accept that the applicant has established that the orders she seeks are necessary to protect the safety of any person. Proceeding on the construction of the legislation adopted by Nettle J in AB v CD, it is still necessary for the court to be 'satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable': AB v CD at [15].
The evidence here simply does not establish a real risk of any harm to any person. It amounts to a generalised expression of concern on the part of the applicant that she and her child will be subject to an increased risk of suffering bullying, discrimination, 'lack of friendships' and violence. But no substantial basis to fear consequences as extreme as bullying or violence appears in the applicant's affidavit. While I make no finding that the applicant would merit the description 'anti-vaxxer', it may be accepted that this is a view that others may reach and it may be accepted that the applicant may be subject to adverse attention as a result. But the probability of that occurring is impossible to assess, and there is no real basis to think that it will take the form of threats of violence or actual violence. As I have said, the topic of vaccination has excited strong feelings, especially in recent times, and there are many people in the community who make their opposition to vaccination well known (whether it is vaccination against COVID-19 or more generally). And yet the applicant adduced no evidence of any threats or violence having been directed against any person as a result. All she takes from her experience of social media is that matters relating to vaccination 'are often prejudged'. There is even less basis to think that bullying, violence or threats will be directed at a small child attending child care or pre-school, as part of a group of other small children.
While psychological harm can fall within the concept of a risk to the safety of any person (see AB (No 3) at [59]), there is no real evidence of it here, either on the part of the applicant or in relation to her child. I do not take the applicant's brief mention of experiencing anxiety as a reference to any psychological harm. The only specific incident to which the applicant refers can at most be described as harsh words (directed at the applicant, not at her child). If publication of this litigation were to lead to such an incident, at its highest it would amount to regrettable but unavoidable distress which engagement in the public process of litigation can occasion.
Of course, the evidence which justified the orders in AB v CD, being the evidence of senior police officers that the risk to the safety of the children was acute, does not state any minimum standard which every applicant must satisfy. But the generality with which the present applicant expresses her concern means that the evidence here does not establish that suppression or other non-publication orders are necessary to protect the safety of any person, in the sense which Nettle J explained. No orders will be made on the ground in s 37AG(1)(c).
Prejudice to the proper administration of justice
As I have said, the applicant went on to rely on the further passage from AB v CD at [20], which is quoted at [30] above, concerning the effect on the administration of justice of non‑publication of the names and images of children. However I do not consider that the passage supports the orders sought here. The suppression orders which Nettle J made were based on the equivalent to s 37AG(1)(c) concerning the safety of persons, and not on prejudice to the administration of justice. While, as the applicant submitted, Nettle J earlier in the decision referred to the administration of justice ground as relevant, his Honour did not rest his orders on the equivalent to s 37AG(1)(a) or make any assessment of whether that ground was satisfied. As the Secretary submitted, his Honour's comments at [20] are part of his assessment of the safety ground. And in saying that the interests of the administration of justice will not be compromised by non-publication of their names and images, his Honour was not indicating that the obverse had been established before him, that non-publication was necessary to prevent prejudice to the proper administration of justice.
The applicant also relies on the observations from AA v BB, Porter and AX v Stern that are referred to above to submit that those decisions recognise that the interests of children can justify suppression orders. But, once again, that is at too high a level of generality to assist the applicant here. Doubtless the interests of children can form the ground of a suppression order. But it does not follow that they always will.
It is true that in AA v BB and Porter, Bell J and Jagot J recognised that deterring persons from taking legal action to vindicate their rights for fear that sensitive information may be disclosed can be a form of prejudice to the administration of justice. But Bell J was careful to illustrate that general proposition with specific examples, such as victims of blackmail, negligence or sexual assault, while acknowledging that the categories were not closed. In the case of children, his Honour referred only to the special and highly sensitive parens patriae jurisdiction, in which the courts may be asked to override the wishes of parents in matters of life or death for the child.
As for Porter, the observations of Jagot J on which the applicant relied were examples given in general remarks about the principles of open justice, which were made in the course of pointing out anomalies in the provisions of the Federal Court Rules 2011 (Cth) governing public access to court documents when compared with the principles in Part VAA of the Federal Court Act. Her Honour was not purporting to summarise the principles that specifically apply to orders sought under s 37AF. And at [86] her Honour pointed out that the passages in Dring to which she referred related to a different principle under which a non-party seeking access to documents must 'show a good reason why [access] will advance the open justice principle': Dring at [47].
I do not consider that the observations in AA v BB, Porter or Dring can be generalised so far as to support a conclusion that the orders sought here are necessary to prevent prejudice to the proper administration of justice in this case.
As for AX v Stern, the court in that case clearly placed considerable importance on the evidence that the prospective plaintiffs would not proceed with the litigation if their identities and those of their children were not supressed. That does not mean that an 'ultimatum' (the applicant's term) of that kind is always a pre-requisite in such cases. But its absence in this case is surely relevant. HWT v Williams was a case where the respondent, a prominent Australian Rules footballer, would be likely to experience embarrassing and damaging publicity if a suppression order was not made: see [34]. At [36] Merkel J drew a contrast between that and a case where there was a real risk that the embarrassment or damage might prevent or deter a person from prosecuting a proceeding in the court. But Mr Williams had given no evidence to that effect and had commenced the proceeding in circumstances where it must have been doubtful that any suppression order would be made. In those circumstances, Merkel J was not prepared to infer that Mr Williams would have been prevented or deterred from commencing or prosecuting the proceeding if a suppression order was not made: see [37].
In my view, the absence of evidence leads to a similar conclusion in this case. There is nothing inherent in the nature of an appeal from a decision to refuse Child Care Benefit or Child Care Subsidy which indicates that persons generally will be deterred from making such appeals if their privacy is not protected, and the applicant has given no evidence that she will be so deterred in her particular case. To the contrary, she commenced this proceeding without any assurance that the suppression orders would be made and did not raise the possibility of making them until approximately one month after. So the applicant's submissions on this point resolve to the expression of a wish to avoid her child experiencing a loss of privacy or embarrassment. As understandable and reasonable as that wish is, it does not establish that the orders sought are necessary to prevent prejudice to the administration of justice.
The remaining arguments raised by the applicant were based on the impact on the privacy or confidentiality of proceedings in the AAT if no suppression orders are made in this proceeding. The applicant relied on s 121 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (FA Act). Part 5 of that Act provides for internal departmental reviews of certain decisions and then up to two further reviews by the AAT. That is what took place here. Section 121 provides in respect of a first review before the AAT:
(1)The hearing of an AAT first review must be in private.
(2)The AAT may give directions, in writing or otherwise, as to the persons who may be present at any hearing of an AAT first review.
(3)In giving directions, the AAT must have regard to the wishes of the parties and the need to protect their privacy.
(4)Subsections 35(1) and (2) of the AAT Act do not apply in relation to the hearing of an AAT first review.
The effect of s 35(1) and (2) of the AAT Act is that, subject to any direction by the AAT that a hearing take place in private, AAT hearings must be public.
The applicant also relied on what she said would be the vitiation of the effect of the AAT's confidentiality orders if no suppression orders are made by this court.
However, HWT v Williams, discussed above, is binding authority for the proposition that there is no legislative intention that privacy or confidentiality in the AAT should continue when the matter comes before the court. Further, the case establishes that the prejudice to the administration of justice which the applicant must establish is prejudice in the exercise by the court of the judicial power of the Commonwealth, not prejudice to the exercise by the AAT of administrative power.
The applicant maintains that the legislative intention behind s 121 of the FA Act does not 'evaporate' merely because the protections it enacts were not expressly enacted for subsequent AAT reviews or for appeals. But HWT v Williams is clear authority for the proposition that legislative intentions of that kind do not continue when the matter comes before the court. The applicant submits that that case and others which follow it are relevantly distinguishable, because they did not concern the FA Act. But HWT v Williams was principally based on the different functions of the AAT and the court and the respective statutory regimes that applied to each of them. The applicant identified no reason why the terms of s 121 of the FA Act, a provision similar in its apparent intent to s 14ZZE of the Taxation Administration Act 1953 (Cth), would lead to a different outcome. In my view, HWT v Williams is relevantly on all fours with this case. If anything, it was a stronger case for suppression because there was, at least, an ongoing confidential proceeding in the AAT which might have been affected. Here, the proceedings in the AAT are complete.
It might be said that Bell J's observations in AA v BB about the Family Violence Protection Act and the Family Law Act would assist the applicant here. But even so, I would be bound by HWT v Williams to take a different approach. In truth I do not, with respect, consider that the two cases are inconsistent. Bell J was dealing with a different legislative regime and in particular proceedings in the Magistrate's Court which did not engage the distinction between administrative and judicial functions which was central to HWT v Williams. And it is plain that Bell J made suppression orders on the basis of a number of matters, including that people needing protection from family violence should not fear loss of their privacy in an appeal, and that the subject matter of the proceeding would be destroyed or imperilled by loss of privacy. That is also the reason why Kerr J's decision in BJP19 does not assist the applicant; the passage I have quoted above shows that it too was based on the fact that the very subject matter of the proceeding was to protect the child applicant's privacy. To the extent that his Honour made comments couched in broader terms, in my respectful view they too should be understood as pertaining to the particular context of the subject matter of the proceeding before him.
The applicant has now chosen to invoke the jurisdiction of this court, which is to be exercised in open court: Federal Court Act s 17(1). It is clear that before the court may depart from that principle, the applicant must establish one of the criteria in s 37AG(1) of that Act and, in relying on s 37AG(1)(a), she must establish likely prejudice to the administration of justice as conducted by this court. She has articulated no way in which the loss of any privacy that was protected in the AAT will lead to such prejudice now. Rather, her argument is that if the court does not make suppression orders, the effect of s 121 of the FA Act, governing the conduct of a first review by the AAT, and the effect of the confidentiality orders made by the AAT may be undermined. On the authority of HWT v Williams, even if the applicant were to establish those matters, by themselves they would provide no support for the making of any orders under s 37AF of the Federal Court Act.
In any event I do not accept that any policy underlying the FA Act will be undermined if suppression orders are not made here. For while the first review must be held in private, there is no requirement to hold the second review, which the Act also contemplates, in private. Historically, the distinction between the two stages of review appears to have been drawn when the first review was conducted by the former Social Security Appeals Tribunal, while the second was conducted in the AAT. The reason for a continuing distinction between the two stages of review, now both conducted by the AAT, is not apparent from the legislation. But it is the Second Review which is the subject of the appeal in the present case. The legislature must be taken to have made a conscious decision that, absent an order under s 35(2) of the AAT Act, a second review must be held in public. No policy evident in the FA Act as a whole will be undermined if the details of an appeal from such a second review are similarly public.
The applicant has not established that the suppression orders are necessary to prevent prejudice to the proper administration of justice in this court, so the ground in s 37AG(1)(a) is not made out.
Conclusion
The interlocutory application for suppression orders must be dismissed. There is no basis on which the court can prohibit the disclosure or publication of the applicant's name or the name of her child in connection with the proceeding. Nor is there any basis for the court to make any order prohibiting disclosure or publication of information revealing the medical history and health conditions of the applicant's child. The court will make every reasonable effort to minimise unnecessary encroachments into the privacy of the child in the publication of any future reasons for decision in the matter. But it is not possible at this stage to say to what extent it will be necessary to publish such details in order that the court's ultimate reasons for decision may be understood.
These reasons will, however, not be made publicly available for seven days after they are provided to the parties, in case the applicant wishes to appeal.
Had I reached a different conclusion about the suppression orders, it may have been necessary to list this proceeding in open court rather than determine it on the papers: see Porter at [82].
The Secretary's submissions were not made on the basis of opposition to the suppression orders, but were expressed to be for the assistance of the court, so no order for costs will be made.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate:
Dated: 5 November 2021
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