JTMJ and Australian Securities and Investments Commission
[2010] AATA 471
•25 June 2010
CATCHWORDS – CORPORATIONS LAW – PRACTICE AND PROCEDURE – confidentiality order made pending hearing of application to review banning order – decision varied but banning order remained in place for shorter period - whether confidentiality order should be revoked or varied – relevance of Privacy Principles – confidentiality order varied.
Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222
Australian Broadcasting Commission v Parish and Ors (1980) 29 ALR 228
Australian Securities and Investments Commission v Rich 2002] NSWC 198
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Inland Revenue Commissioners v National Federation of Self Employed and Small Business Ltd [1982] AC 617
Jebb v Repatriation Commission (1988) 80 ALR 329
Minister for Immigration and Multicultural and Indigenous Affairs v X (2005) 147 FCR 243
Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority (1999) 58 ALD 581
Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208; (2006) 90 ALD 83; 42 AAR 144
Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 2 ALD 33
Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 200
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 83 ALD 545; 215 ALR 162; 79 ALJR 1009
Acts Interpretation Act 1901, s 33(3)
Administrative Appeals Tribunal Act 1975, s 35(1), (2) and (3), 39
Administrative Decisions (Judicial Review) Act 1977
Corporations Act 2001 ss 761A, 920E(2), (3) and (4), 922A(1) and Division 6 of Part 7.6
Federal Court of Australia Act 1976, s 50
Insurance Act 1973, s 25A
Judiciary Act 1903
Privacy Act 1988, s 6(1), s 14 (IPP11), 16
Superannuation (Resolution of Complaints) Act 1993, Part 6, Division 3
Corporations Regulations 2001, r 7.6.06(1)
DECISION AND REASONS FOR DECISION [2010] AATA 471
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2009/0315
GENERAL ADMINISTRATIVE DIVISION )
Re:JTMJ
Applicant
And:AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 25 June 2010
Decision:The Tribunal decides to:
.
1.set aside the order made on 17 March 2009 by Deputy President McDonald;
2.substitute an order that disclosure of the identity of the brokers identified by the letters A to O in my reasons dated 11 May 2010 and numbered [2010] AATA 350 be restricted to members and staff of the Tribunal and to the parties to the application and their legal advisers and, in the case of the respondent, its Commissioners and officers.
S A FORGIE
Deputy President
REASONS FOR DECISION
A delegate of the Australian Securities and Investments Commission (ASIC) decided on 19 January 2009 that the applicant be prohibited from providing a financial service for a period of ten years. I set that decision aside and, while also deciding that a banning order was appropriate, made it for a reduced period of three years from the date of my decision. Once a banning order has been made, s 920E(2) to (4) of the Corporations Act 2001 (Corporations Act) require ASIC to give notice of the banning order by publishing notice in the Commonwealth Gazette. ASIC must include such details as the person’s name, the day on which the banning order took effect and whether it is permanent or for a fixed period.[1] Section 922A(1) requires ASIC to establish and maintain one or more registers relating to financial services. The regulations prescribe the way in which that is done. Section 920E(3) regulates the contents of the notice and s 920E(4) requires ASIC to give further notice of banning orders made against persons participating in a licensed market or a licensed CS facility.[2]
[1] Corporations Regulations 2001, r 7.6.06(1)
[2] A “licensed market” is “a financial market the operation of which is authorised by an Australian market licence” (Corporations Act, s 761A) and so includes the financial market operated by the ASX.
The provisions of the Corporations Act would seem clear on their face but a question arises as to the inter-relationship of ASIC’s statutory obligations and an order made by Deputy President McDonald under s 35(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The first order was made on 27 January 2009 and made again on 3 February 2009 and 17 March 2009 in similar terms i.e. that “…the applicant continue to be described by the letters ‘JTMJ’ for the purposes of this application”. Given that the word “proceeding” includes among its meanings “an application to the Tribunal for review of a decision”, I take the two orders to be referring to the same thing. Neither was expressed to be for a finite period so that, for example, it ceased to have effect when the application was heard or until a further order was made. The orders were supported by other orders including the following:
“4. Pending the hearing of this application, publication of the name of the applicant as the applicant in this proceeding and of any material tending to identify him as the applicant in this proceeding, and including the names of the companies mentioned in paragraphs 3(a), (b), (c) and (e) and of the individual named in paragraph 3(c) herein where such publication would tend to identify the applicant as the applicant in this proceeding, except insofar as the parties may need to discuss evidence and these orders with those companies and that individual, and insofar as the respondent and the Commonwealth Director of Public Prosecutions may need to disclose any such identities and information or material to a court or to a person for the purposes of criminal proceedings against Mervyn Jacobson, Tamara Newing, and Geoffrey Edgar Newing, be restricted to members and staff of the Tribunal, the parties and their representatives, and staff of Auscript.
5.Publication of the evidence given before the Tribunal and of matters contained in documents lodged with the Tribunal insofar as the publication identifies the applicant as the applicant in these proceedings continue to be restricted to members and staff of the Tribunal, the parties and their respective and professional advisers except insofar as the respondent or the Commonwealth Department of Public Prosecutions may need to disclose any information material to a court or to a persons [sic] for the purposes of criminal proceedings against … [named persons]”.
On my view of the inter-relationship of the orders and of ASIC’s obligations under the Corporations Act, ASIC is entitled to, and indeed obliged, to publish the notices of JTMJ’s banning order and, in doing so, to identify him. The other member’s confidentiality order could continue to operate. ASIC’s publication would not be made for the “purpose of the application” or of the “proceeding”.
It would be for the purposes of carrying out a statutory obligation that arose on the making of the decision. The decision was the outcome of the application or of the proceeding but not the application or the proceeding itself.
There is another question that presents itself, though, and that is whether the order preserving confidentiality should be permitted to operate and, if so, the extent to which it should be permitted to operate. The parties were invited to make submissions but have indicated that there is no basis on which they could argue that the confidentiality order should remain in place. I agree with them but have decided that it should continue to operate to protect the identity of some of those who were engaged in the financial services industry as brokers and who were involved in trading shares in the Company. There may be some who may draw conclusions from the fact that they and their trades have been mentioned in reasons concerned with JTMJ’s share trades. They may draw the conclusion that my finding that JTMJ has been in breach of the Corporations Act means that they are also in breach or that their actions were questionable. That would be incorrect and unfair. Although I have made findings about the fact of their trading in the Company’s shares, I have not made any findings regarding the circumstances behind their doing so. I have not made any findings whether they were in breach of the Corporations Act. It would be unfair to risk aspersions’ being cast on their professional reputations when the Tribunal was not concerned with their activities and I made no findings about them.
I have decided that I should not continue to extend the confidentiality order to protect those against whom charges have been laid by the Director of Public Prosecutions in relation to their activities regarding the Company’s shares or to the stockbroking firm of whom JTMJ was an authorised representative. As to the identities of those who have previously engaged him, the references are historical and can only be understood in that way.
THE TRIBUNAL’S POWER UNDER S 35(2) OF THE AAT ACT
The principles underpinning the exercise of the power
In general, the hearing of a proceeding in the Tribunal must be in public.[3] Parliament has recognised that there will be circumstances in which it is desirable that a hearing should be held in private, the names and addresses of witnesses or the publication of evidence or of matters contained in documents lodged in the Tribunal or received in evidence should not be made available to the public.[4] There will also be circumstances in which it is desirable that not all of the evidence or the contents of a document lodged with the Tribunal or admitted in evidence be given to all or some of the parties themselves.[5] If the Tribunal is “… satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason …”[6], it may make an order restricting access to the public in those circumstances. Before the Tribunal may decide to make that order, it must:
“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.”
[3] AAT Act, s 35(1)
[4] AAT Act ,ss 35(2)(a), (aa) and (b)
[5] AAT Act, s 35(2)(c)
[6] AAT Act, s 35(2)
In directing the Tribunal to “take as the basis of its consideration” the matters that it sets out in s 35(3),[7] Parliament is directing the Tribunal to take those two matters as the “foundation or starting point”[8] of its consideration. The two matters are the public hearing and the availability of the evidence and contents of documents to the public and to the parties. They are the foundation but not the only considerations for s 35(3) recognises that any reasons given for reaching a contrary view must also be taken into consideration.
[7] “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…”.
[8] “Basis”: Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Section 35(3) also serves other purposes. It explains why s 35(1) requires that, subject to the section and so to an order made by the Tribunal under
s 35(2), “the hearing of a proceeding before the Tribunal shall be in public”. Reading s 35(1) and ss 35(2)(a) and (b) together, Parliament is telling the Tribunal that it must hold its hearing of a proceeding in public because it is desirable to do so and because it is desirable that evidence given before the Tribunal and the contents of documents lodged with or received in evidence by the Tribunal should be made available to the public.
What s 35(3) does not do is to explain why it is desirable and that explanation is not found elsewhere in s 35 or in the AAT Act. It is found in the general law which requires any administrative body, including the Tribunal, to act according to notions of procedural fairness.[9] In relation to its actions towards the parties, this underpins s 39(1) of the AAT Act when it provides that, subject only to
s 35 (and ss 36 and 36B which rarely apply[10]):
“… the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”
[9] See, for example, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 83 ALD 545; 215 ALR 162; 79 ALJR 1009 at 354-55; 593-4; 211; 1045-1046 [207]-[208] per Haydon J
[10] They arise when the Commonwealth or a State Attorney-General has issued a public interest certificate protecting certain information from disclosure.
Procedural fairness is concerned with fairness to the parties in a particular case but, because the principles of procedural fairness have been developed over many years and over many cases, both administrative and civil, parties should be able to expect a consistent approach and so a fair process. That means a particular case should withstand scrutiny when its procedures are examined in isolation and when it is scrutinised against other cases. That does not mean that all will be in public or all will not. Principles provide for a consistent pattern rather than a single outcome. What it means is that the principles will have been applied consistently so that the reason for the variation can be seen and the place of the particular case can be seen in the overall pattern of cases.
To this point, there is no difference between a case heard by the Tribunal and a civil case heard by a court. After this, the difference becomes apparent. Civil cases are decided on the pleadings and on evidence called by the parties but the Tribunal’s task is to come to the correct or preferable decision. It is not limited to the cases put by the parties and, if those cases would not lead it to the correct or preferable decision, it is obliged not to accept either. This was explained by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs[11]
“ The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists …, that regard must be had to the relevant considerations, and that matters ‘absolutely apart from the matters which by law ought to be taken into consideration’ must be ignored …”
[11] (1979) 24 ALR 577; 2 ALD 60 at 539; 68-69
The Tribunal’s duty to reach the correct or preferable decision requires it to act fairly regarding the substantive outcome as well as fairly in the procedures it follows. This is not about a decision that is reasonable and fair between the parties unless Parliament has specified that as a criterion[12] but about a decision that is fair when viewed against all administrative decisions of that type. An example is found in taxation law. In Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses Ltd,[13] Lord Scarman expressed the administrative decision-maker’s duty to act fairly with regard to outcome. He was:
“… persuaded that the modern case law recognises a legal duty owed by the revenue to the general body of the taxpayers to treat taxpayers fairly; to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise; to ensure that there are no favourites and no sacrificial victims.”[14]
[12] Many of the decisions that the Superannuation Complaints Tribunal is empowered to make are, for example, predicated on its view of whether the decision complained of was fair and reasonable in all the circumstances to the complainant and to certain others: see generally Superannuation (Resolution of Complaints) Act 1993, Part 6, Division 3.
[13] [1982] AC 617
[14] [1982] AC 617 at 651
So the Tribunal is required to act with fairness in relation both to process and to outcome. It is to be hoped that it will do so and that, if it should not, any failure will be identified when scrutinised by a court either on an appeal under
s 44 of the AAT Act or on judicial review under the Administrative Decisions (Judicial Review) Act 1977 or s 39B of the Judiciary Act 1903. Not every case will be scrutinised in that way even if a party thinks that the Tribunal has been in error. Considerations of costs will often deter even those who think that there has been an error in circumstances in which they would have reasonable prospects of succeeding. As valuable as those avenues are, they are not sufficient to ensure scrutiny of the Tribunal’s decision-making and decisions. Public scrutiny, or the constant possibility of it, on the other hand is always available and not subject to the financial resources of a particular party. Its place in providing general scrutiny of the Tribunal’s proceedings and decisions was explained by Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs[15] when he said that public hearings are:
“… calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it.”[16]
[15] (1979) 26 ALR 247; 2 ALD 33
[16] (1979) 26 ALR 247; 2 ALD 33 at 270; 54
The same principle applies to most court proceedings despite the different roles carried out by courts and the Tribunal. In allowing public scrutiny of the process, a proceeding heard in public:
“… removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges’: by sitting in public, the judges are themselves accountable and on trial. This was powerfully expressed in the great aphorism that, ‘It is not merely of some importance but of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.”[17]
[17] Hamlyn Lectures (38th series) The Fabric of English Justice at 22 quoted by Lord Woolf MR in Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673 at 685
In any particular case, the Tribunal is called upon to take the desirability of the public nature of its hearings as the foundation of its consideration as well as reasons given to it why publicity should not attend the particular hearing. Section 35(3) does not provide any guidance as to how those two aspects are to be measured and weighed. It does not suggest that there are any particular categories of matter that may be regarded as exceptions to the principle that the proceedings be held in public. The reasons that may be put forward to justify an exception need only be reasons that relate to limiting the public nature of the proceedings in some way. It is inevitable, of course, that over the years it has become possible to develop categories of the reasons that have been accepted as tilting the balance against the public nature of the proceedings to a greater or lesser extent. There are, for example, cases in which an order has been made restricting access to certain information on the basis that its disclosure would lead to the Tribunal’s no longer being given certain type of information that an administrative body requires for its on-going decision-making and that information was necessary to secure effective administration. That was a relevant factor in Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority[18] and in Re Nolan and Minister for Immigration and Ethnic Affairs.[19] Re Nolan also took into account that disclosure would be contrary to the public interest in the effective administration of the prison system.[20] The case of Re Pochi also provides an example. In was a case in which Brennan J decided:
“… the public interest in protecting the sources of information used to combat crime was paramount, and it was necessary to ensure confidentiality of the evidence which referred to information of that kind given to Detective Jenkins. In a court of law, the evidence would not have been given at all … Accordingly, the applicant and the public (but not the applicant’s counsel and solicitors) were excluded while Detective Jenkins gave some of his evidence. …”[21]
16.. Powers not so dissimilar to those in s 35 have also been used to protect the identity of a party from public revelation. Section 50 of the Federal Court of Australia Act 1976 (FCA Act) gives the Federal Court power to make such suppression order “… as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.” The order has to be “necessary” to achieve the stated purpose and not merely “desirable”. In Minister for Immigration and Multicultural and Indigenous Affairs v X,[22] the Full Court of the Federal Court suppressed publication of X’s name in circumstances in which he had been refused a visa on the basis that he had not met the criterion that he not be a person who had a disease or condition likely to require healthcare or community services. X, who was HIV positive, had a surname that was unusual in Australia and would be readily identifiable at least in the expatriate community of his fellow nationals. Stigma would attach to his wife and children. Heerey and Weinberg JJ said:
“[21] Distress and embarrassment by reason of publication of the identity of a person involved in litigation does not in itself amount to prejudice to the administration of justice. The importance of justice being done in public has been affirmed time and again … Very often publicity is hurtful and embarrassing to someone but that is inherent in the nature of publication of court proceedings; often more hurtful and embarrassing the proceeding the more newsworthy the report of it.
[22] But there is a feature of the present case which takes it out of the ordinary run. There is a real risk that publication might dissuade other persons who might seek to challenge the legality of administrative decisions linked with a disease or condition that, no doubt wrongly but realistically as a matter of fact, carries a public stigma. An analogy might be found in the prohibition of the names of blackmail victims. If the names were published in court proceedings there would be a strong disincentive for those victims to complain to the police.”[23]
[18] (1999) 58 ALD 581 at 590
[19] (1986) 9 ALD 407
[20] (1986) 9 ALD 407 at 414
[21] (1979) 26 ALR 247; 2 ALD 33 at 274; 57
[22] (2005) 147 FCR 243
[23] (2005) 147 FCR 243 at 246
Section 50 has also been used to make orders restricting publication or disclosure of the names of the applicants or of the company of which they were senior managers when the Australian Prudential Regulation Authority (APRA) disqualified them under s 25A of the Insurance Act 1973.[24] The Full Court accepted that the company enjoyed an excellent reputation and standing in the insurance industry. Were the disqualification of the applicants to become known in the industry, the company’s reputation and standing would both be damaged. Both are important factors in determining a company’s credit rating in the insurance industry. At first instance, Lindgren J had decided that the question was whether APRA had purported to disqualify the applicants in circumstances in which it did not have the power to do so. If APRA was found to have acted without power, the applicants and the company would suffer irreparable damage that could not be remedied by the quashing, on the appeal, of the decision.
[24] Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222
The Full Court accepted that “… there would be a real prejudice to the administration of justice if the appellants succeeded in their appeals and established that APRA has no power to disqualify X and Y, but suffered irreparable damage from the publication of the Reasons and the disclosure of the adverse findings” of APRA.[25] It referred to principles established in Australian Broadcasting Commission v Parish and Ors:[26]
“[14] The public interest, that the Court should effectively endeavour to achieve in considering the exercise of powers under s 50, is the object of doing justice between the parties. That is the function that the Court is appointed to discharge. Where refusal to make an order might well undermine or defeat the purpose of achieving justice between the parties, and disappoint the public interest in having the Court deal responsibly with the affairs of citizens, it may be appropriate to make an order pursuant to s 50 – see Australian Broadcasting Commission v Parish & Ors (1980) 49 FLR 129 at 133.
[15] The Court must, however, take into account what s 50 does not explicitly state, but is the underlying assumption upon which it is based, namely, the principle of open justice. The importance of the principle of open justice is not in doubt. On the other hand, the possibility of prejudice to the administration of justice must be weighed against the public interest in maintaining open justice. Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle that must be placed in the scales. The derogation from the principle that might be involved in making an order under s 50 may be very great, or it might be very small. The degree of derogation from the principle involved in the proposed order is an important matter to be considered in balancing the principle against possible prejudice to the administration of justice – see Australian Broadcasting Commission v Parish & Ors at 136.”[27]
[25] Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222 at [16]
[26] (1980) 29 ALR 228
[27] [2005] FCAFC 222
In other cases, the Tribunal has made orders excluding access to material not only by the public but also by the applicant. Such a step is a grave one and not one taken lightly. That is all the more so because it effectively overrides a basic principle that a person is entitled at common law and under the AAT Act to be “… made aware of all relevant matters”[28] that are to be taken into account in determining the issues affecting him or her. It was a step taken in Re Pochi when Brennan J concluded that a party could only be excluded when:
“… an applicant’s interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: ‘When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.’
In the present case, the public interest in protecting the confidentiality of the sources of information obtained to combat crime conflicted with the interests of the applicant in meeting the case made against him. The public interest prevailed, as it did in Hosenball’s case …”[29]
From time to time, the Tribunal makes orders under s 35 to exclude an applicant from part of the hearing of an application to review a decision refusing access to documents under the FOI Act on the basis that they are exempt under a provision of Part IV of that legislation.
[28] AAT Act, s 36(4)
[29] (1979) 26 ALR 247; 2 ALD 33 at 273; 56
Once it has made an order, the Tribunal may vary or revoke its order. That follows from the fact that s 33(3) of the Acts Interpretation Act 1901 (AI Act) provides that an enactment conferring a power is to be “… construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument” unless a contrary intention appears. There is nothing in s 35 or in the AAT Act generally that is contrary to that construction.
Application of principles to the order in so far as it affects JTMJ
I have decided that the confidentiality order should be revoked in so far as it relates to JTMJ. In view of s 33(3) of the AI Act, the principles that apply to the making of an order under s 35 of the AAT Act apply equally to its revocation. When I do that, I must take as the basis of my consideration the principle that it is desirable that its hearings be held in public and that the evidence given before it and the contents of documents lodged in it be available to the public. It is true that my decision and reasons for it came after the hearing and cannot be described either as evidence or a document lodged in the Tribunal. That does not mean that they cannot be subject to s 35 for they reflect what happened at that hearing, the evidence that was given and the documents that were considered. They are a consequence of the hearing when an oral decision has not been given at the conclusion of the hearing or when a party has asked for written reasons under s 43(2A) of the AAT Act. They must be written in terms that do not breach the order that was made.
I did not make the order under s 35 and Deputy President McDonald’s reasons for doing so were given at the hearing he held on 30 January 2009. In summary, he had regard to the “… balance between the rights of the individual and rights of others who may be affected, such as, in this case, JTMJ’s employer might be adversely affected if there is publication at this stage, and the interests of the public.”[30] The damage caused to JTMJ and his employer would be unlikely to be remedied if JTMJ were to be successful in his application for review. The seriousness of the allegations and of ASIC’s findings regarding JTMJ’s conduct were also relevant but two years had passed since the events complained of and his conduct had not been called into question in that time. The public interest in permitting justice to be seen to be done could be accommodated by having an open hearing but prohibiting any reporting or publicising of the proceedings. The logistics of conducting a public hearing while restricting publication in accordance with orders 4 and 5 reproduced in [2] above were not addressed.
[30] Transcript at 21
I take as the basis of my consideration that it is desirable that the evidence and contents of documents lodged in the Tribunal be available to the public and then consider whether the reasons given by Deputy President McDonald or any other reasons continue to lead to the conclusion that the confidentiality order should be continued.
Now that the matter has been heard and my decision was not favourable to JTMJ, it seems to me that it is no longer possible to argue that his reputation will be diminished or damaged if ASIC’s decision to make the banning order and the outcome of the review of its decision were to be available to the public. That fact will become known when ASIC complies with its obligation to publish a notice in the Gazette and in the register relating to financial services. What will not be known from those published details will be the events that led to ASIC’s making the banning order. To have access to the bare details of the banning order without the background seems inconsistent with the principles underpinning s 35 and to which I have referred. The bare details do not afford members of the public any opportunity to understand the basis on which the banning order was made or to assess whether its being made was consistent with the Corporations Act and if the circumstances in which it was made were consistent with other banning orders that have been made against other persons. Revocation of the confidentiality order at this stage will mean that the evidence regarding the background, or most of it, will be available. It will no longer be an unbalanced view reflecting to a large extent ASIC’s view of events as would have been the case had a confidentiality order not be made at all. Now that all of the material has been presented and the decision reviewed, JTMJ has had the opportunity to put his view of events and relevant material to the Tribunal. His view, as well as ASIC’s, has been included in the reasons for decision and is available in the material on the Tribunal’s file. Although dealing with the media rather than the public generally, the words of Barrett J in Australian Securities and Investments Commission v Rich[31] are equally applicable in this case. His Honour explained the relevance of making documents available:
“… It is in that context that the court has an undoubted and clear role to play in assisting the media to obtain a full and fair understanding of what has transpired so that informed reporting can occur without incomplete appreciation of source materials and in a way which enables the various matters which have come out in court, whether or not actually spoken aloud, to be understood in the full context of the case. …”[32]
[31] [2002] NSWSC 198
[32] [2002] NSWSC 198 at [9]
Publication of the background facts to the banning order at this time is also consistent with the Tribunal’s place in administrative decision-making. As explained by Davies J in Jebb v Repatriation Commission,[33] that “… the general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal’s function as part of that continuum …”.[34] It has played its role in the process as ASIC did before it and as the Federal Court would have done after it had JTMJ lodged an appeal under s 44 of the AAT Act. That role must be to complement those of the others who play their part in the continuum. On this occasion, it is to complement ASIC’s role in fulfilling its statutory duties under the Corporations Act.
[33] (1988) 80 ALR 329
[34] (1988) 80 ALR 329 at 333
What of those whose activities touch upon those of JTMJ?
In the documents lodged in the Tribunal and, to a lesser extent during the course of the evidence at the hearing, reference is made to the activities of others such as those who worked at the SB Firm with JTMJ or who also traded in shares in the Company. To what extent should their activities be disclosed? That takes me to the Privacy Act 1988 to consider whether it has any relevance in considering the exercise of my powers under s 35 of the AAT Act.
The Privacy Act 1988
Section 16 of the Privacy Act provides that an agency shall not do an act or engage in a practice that breaches an Information Privacy Principle (IPP). The Tribunal is an agency[35] as is the Federal Court.[36] It is also a record-keeper for, subject to exceptions that are not relevant in this case:
“… an agency that is in possession or control of a record of personal information shall be regarded, for the purposes of this Act, as the record-keeper in relation to that record.”[37]
[35] Privacy Act, s 6(1)
[36] Privacy Act, (g) of s 6(1) when read with s 26(b) of the Acts Interpretation Act 1901 which provides that “Federal Court shall mean the High Court or any court created by the Parliament”.
[37] Privacy Act, s 10(1)
The IPPs are set out in s 14. IPP11 provides that:
“1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
(a)the individual concerned is reasonably likely to have been aware, or made aware under Principle 2,[[38]] that information of that kind is usually passed to that person, body or agency;
(b)the individual concerned has consented to the disclosure;
(c)the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health or the individual concerned or of another person;
(d)the disclosure is required or authorised by or under law; or
(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
2.Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.
3.A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.”
[38] IPP 2 is concerned with the solicitation of personal information from the person concerned.
The prohibition on disclosure of information imposed by IPP11 is a qualified prohibition. The qualifications that are relevant in this case are that the applicant is “… reasonably likely to have been aware … that information of the kind is usually passed to that person …”[39] or that disclosure is “… required or authorised by or under law”.[40] I am not satisfied that those at SB Firm or other financial service providers would be reasonably likely to have been aware that information relating to their activities would be made public if they were not the subject of a banning order by ASIC. That leaves the second qualification.
[39] IPP11, cl 1(a)
[40] IPP11, cl 1(d)
In Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs,[41] I considered the meaning of the words “authorised” and “required” as they are used in cl 1(d). I concluded that there was:
“… no reason to depart from these ordinary meanings. If a law gives someone the power to disclose personal information or the right or permission to obtain it or if the law demands that personal information be disclosed, the record-keeper is not prevented from disclosing it by operation of cl. 1 of IPP 11.
36. Regard must be had to the terms of particular laws that authorise or require disclosure of personal information. …”[42]
[41] [2005] AATA 200
[42] [2005] AATA 200 at [35]-[36]
I went on to consider whether the Tribunal is required or authorised to reveal documents that have been lodged in the Tribunal when there has yet to be a hearing of the application. Assuming that the Tribunal could direct the disclosure of documents to a person unconnected with the case using its power under s 33 of the AAT Act, that would not mean that disclosure would be required under a law within the meaning of IPP11, cl 1(a). It would mean that it is authorised in the sense that the direction gives someone the right or permission to have access to the information. As I said in Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs:
“52. The exercise of the power under s. 33 would be discretionary but it would not be unfettered. It would need to take account of its duty to review decisions so that it reaches the correct or preferable decision, that it is bound to observe procedural fairness and so give the parties a reasonable opportunity to present their cases and that it is established on the judicial model. At the same time, it would need to take account of the principles of open justice. Each case will need to be decided on its merits.”
In Re Le and Secretary, Department of Education, Science and Training,[43] I considered the application of IPP11 to the contents of the Tribunal’s reasons for decision and concluded that the Tribunal may reveal as much of a person’s personal information as is necessary to meet the requirements of s 43(2B) of the AAT Act. That is the section that sets out the criteria that the Tribunal’s decision must meet.[44]
[43] [2006] AATA 208; (2006) 90 ALD 83; 42 AAR 144
[44] [2006] AATA 208 at [37]
In so far as s 35 of the AAT Act is concerned, I did not accept a submission in Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs that it required disclosure. Rather, I concluded, it was a law giving the Tribunal the power to restrict disclosure of information but that did not equate with a law requiring or authorising disclosure.[45] I do not resile from that conclusion in so far as an order made by the Tribunal is concerned but I do think that authorisation of disclosure is inherent in the section itself. In it, Parliament has authorised the publication of evidence and the contents of documents lodged in the Tribunal but, for all practical purposes, it permits the Tribunal to make an order qualifying that publication.
[45] [2005] AATA 200 at [50]
Precisely what disclosure is ultimately authorised by s 35 in any particular case is another question to be determined in each case by reference to several factors. First, there are the fundamental principles of open hearings and public access to documents established by the authorities to which I have referred. When it comes to presenting evidence and lodging documents, these principles must be tempered by notions of relevance of the evidence or of the information in the documents to the Tribunal’s review of a decision. Access to documents and the evidence may assist the public in understanding the proceedings in the Tribunal but only in so far as they are relevant. The Tribunal’s procedures are tailored to ensuring that that is the nature of the evidence given and the information in the documents lodged.
The principles are no less relevant when preparing written reasons for decision. They must be directed to the evidence and information that is relevant to the issues to be decided. Access to material that is irrelevant is of no assistance in requiring a full and fair understanding of the matter. By “irrelevant” I do not mean material that we did not specifically mention in our reasons or that we did not prefer to other material. I mean material that is irrelevant on any view of the matter. In the case of JTMJ, the identity of brokers who transacted in the Company’s shares was irrelevant to the outcome of the review. I have described them as Brokers A to O in my earlier reasons. Neither JTMJ nor ASIC called them as witnesses. They were not questioned as to their activities and any findings have been made without the benefit of their evidence. It is “personal information” within the meaning of the Privacy Act.[46] I do not consider that disclosure of that personal information can be said to be authorised by s 35 if it is irrelevant to the review in any way.
[46] The expression “personal information”:
“... means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”: Privacy Act, s 6(1).
What is not irrelevant is the identity of SB Firm which engaged JTMJ. SB Firm has obligations under the Corporations Act in relation to its authorised representatives.[47] This is another illustration of the administrative decision-making process being a continuum. The role of the SB Firm was not the subject of ASIC’s decision or of the Tribunal’s review of it but the decision has possible consequences for that firm under the Corporations Act. Its relationship to JTMJ should not be protected from public knowledge by an order under s 35 of the AAT Act. I have decided that the identity of the CA Adviser in the SB Firm should also be disclosed. He gave evidence that was relevant to the review.
[47] Division 6 of Part 7.6 of Chapter 7 of the Corporations Act prescribes the circumstances in which a financial services licensee is responsible for the conduct of its authorised representative.
I reach the same conclusion in relation to those on whose behalf JTMJ purchased shares in the Company. Their identity and relationship to the Company and/or to each other was relevant in the review as is the identity of the Company.
In view of my decision, I will reissue my earlier decision and reasons and attach a copy of the list of pseudonyms identifying all of the persons I have named with the exception of brokers A to O.
Order varying previous order
For the reasons I have given, I:
1.set aside the order made on 17 March 2009 by Deputy President McDonald;
2.substitute an order that disclosure of the identity of the brokers identified by the letters A to O in my reasons dated 11 May 2010 and numbered [2010] AATA 350 be restricted to members and staff of the Tribunal and to the parties to the application and their legal advisers and, in the case of the respondent, its Commissioners and officers.
I certify that the forty six paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Kate Conners Associate
Date of Hearing 5-8 May and 9-10 November 2009
Date of Decision 25 June 2010
Counsel for the Applicant Anthony YoungSolicitor for the Applicant Tony Hargreaves
Tony Hargreaves and PartnersCounsel for the Respondent David Gilbertson
Solicitor for the Respondent Tim Chalke
ASIC
PSEUDONYMS SUBSTITUTED FOR NAMES IN REASONS FOR DECISION
ASB FirmFalkiners Stockbroking
AMDBIDAmended Bid
Broker A - O Identities are still subject to a s 35(2) confidentiality order
Broker No. of Tolhurst Limited
CA AdviserRaffaele Papa, Compliance and Audit Adviser employed by Tolhurst Noall Ltd and later Tohurst Limited
CompanyGenetic Technologies Ltd
DORMervyn Jacobson
EB SystemGBST Adviser, which is the electronic broking system operated by Tolhurst Limited
ElizabethGail Bratz
FredaPriscilla Bond
JTMJClive Achalen Henley
JTMJ Home Office Office used by Clive Achalen Henley at Airlie Beach in Queensland
JTMJUNClive Achalen Henley’s unique client adviser identity at Tolhurst Noall Limited and then Tolhurst Limited
SB FirmTolhurst Noall Limited at the relevant time (later known as Tolhurst Limited and now known as Patersons Securities Ltd)
SBF Home Office Office used by Clive Achalen Henley at the Melbourne offices of Tolhurst Noall Limited in Victoria
State 1Victoria
State 2Queensland
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