NBRQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 3611

NBRQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 3611 (15 July 2022)

Division:GENERAL DIVISION

File Number(s):      2020/8360

Re:NBRQ  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr Linda Kirk

Date:15 July 2022

Place:Sydney

The Tribunal makes a non-publication direction under s 35 of the AAT Act to give the Applicant, her husband and her children pseudonyms and to remove any other personal identifiers in the Tribunal Decision dated 22 February 2022.

..............................[SGD]..........................................

Senior Member Dr Linda Kirk

Catchwords

PRACTICE AND PROCEDURE – publication of reasons for decision – suppression order – suppression of name of applicant – suppression of name of witnesses – norm of publication established by s 35 of AAT Act – protection of privacy of family members – where harm to applicant and witnesses may be prevented – considerations found to outweigh norm established by s 35 of AAT Act – direction made under s 35 of AAT Act – application granted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Citizenship Act 2007 (Cth)

Cases

ASIC v AAT [2009] FCAFC 185; (2009) 181 FCR 130; (2009) 113 ALD 449

Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130
Catena v ASIC [2010] FCA 598
Dimitropoulos and Australian Securities and Investment Commission [2017] AATA 1513
Global Financial Markets Pty Ltd and Australian Securities and Investments Commission [2017] AATA 1397
Huikeshoven v Secretary, DESE [2021] FCA 1359
JWTT and Commissioner of Taxation [2017] AATA 1612
Lee and Minister for Immigration and Border Protection [2019] AATA 84; (2019) 77 AAR 360
Panganiban v Australian Securities & Investments Commission [2016] AATA 703
Paul and Minister for Immigration and Citizenship [2011] AATA 831
Poidevin and Australian Securities and Investments Commission [2018] AATA 124
[REDACTED]
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Robins SM; Ex Parte West Australian Newspapers Ltd [1999] WASCA 16; (1999) 20 WAR 511

Tennant and Secretary, Department of Social Services [2014] AATA 92

Secondary Materials

Administrative Appeals Tribunal Guideline on the Disclosure and Non-Disclosure of Personal Information in AAT Decisions, 8 November 2017

Domestic violence, social security and the couple rule Australia’s National Research Organisation for Women’s Safety Limited (ANROWS)

REASONS FOR DECISION

Senior Member Dr Linda Kirk

15 July 2022

BACKGROUND AND REVIEW APPLICATION

1. On 17 December 2020, NBRQ (‘the Applicant’) lodged with the Tribunal an application for review[1] of a decision of a delegate of the Respondent dated 9 December 2020 (‘the Reviewable Decision’)[2] to refuse to approve her application made on 9 July 2020 for Australian citizenship by conferral under the Citizenship Act 2007 (Cth) (‘the Citizenship Act).[3]

   [1] Exhibit R1 T1, 1 -6.

   [2] Exhibit R1 T2, 7 - 19.

   [3] Exhibit R1 T11, 169 - 183.

2. During the Tribunal hearing on 23 July 2021, the Applicant made an application for a confidentiality order on privacy grounds. [REDACTED] The application was opposed by the Respondent. The Tribunal dismissed the application as it was not satisfied there were grounds for the orders sought under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).

3. On 22 February 2022 the Tribunal delivered its decision and affirmed the Reviewable Decision (‘the Tribunal Decision’).

4. By email dated 24 February 2022 the Applicant requested that the Tribunal Decision ‘not be freely available to the public or at least there be a way of anonymising the [decision].’[4] The Respondent notified the Tribunal of his opposition to the Applicant’s request.[5]

   [4] Email from Professor K Rubenstein dated 24 February 2022.

   [5] Email from Respondent dated 24 February 2022.

5. The Tribunal held an interlocutory hearing by video-conference on 7 March 2022 to hear arguments from the parties’ representatives in relation to the Applicant’s application for a confidentiality order in relation to the Tribunal Decision.

   LEGISLATION

6. Section 35 of the AAT Act provides:

   Public hearings and orders for private hearings, non-publication and non-disclosure

   Public hearing

   (1) Subject to this section, the hearing of a proceeding before the Tribunal must be in public.

   Private hearing

   (2) The Tribunal may, by order:

   (a) direct that a hearing or part of a hearing is to take place in private; and

   (b) give directions in relation to the persons who may be present.

   Orders for non-publication or non-disclosure

   (3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:

   (a) information tending to reveal the identity of:

   (i) a party to or witness in a proceeding before the Tribunal; or

   (ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or

   (b) information otherwise concerning a person referred to in paragraph (a).

   (4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

   (a) relates to a proceeding; and

   (b) is any of the following:

   (i) information that comprises evidence or information about evidence;

   (ii) information lodged with or otherwise given to the Tribunal.

   (5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:

   (a) that hearings of proceedings before the Tribunal should be held in public; and

    (b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

   (c) that the contents of documents lodged with the Tribunal should be made available to all the parties.

   However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

7. Contravention of an order made under ss 35(3) or (4) constitutes an offence under s 62C of the AAT Act.

   TRIBUNAL POLICY

8. On 24 September 2020 the then President of the Tribunal, Justice DG Thomas, authorised the Tribunal’s Publication of Decisions policy.[6] It relevantly provides:

   [6] Publication of Decisions policy: AAT-Publication-of-Decisions-Policy.pdf

   1.    About this policy

   1.1The AAT is authorised to publish our decisions and the reasons for them by section 66B of the Administrative Appeals Tribunal Act 1975 (AAT Act). However, we must not publish information if its disclosure is prohibited or restricted by the AAT Act or by any other legislation that gives the AAT jurisdiction. In addition to requirements that apply generally to some categories of cases, a Tribunal member may make directions in an individual case under section 35 or 35AA of the AAT Act or section 378 or 440 of the Migration Act 1958 (Migration Act) to prohibit the publication of information relating to the case (non-publication directions).

   1.2In carrying out our functions, the AAT is required to pursue the objective of providing a mechanism of review that is accessible and promotes public trust and confidence in our decision-making. Publishing statements of reasons for AAT decisions (written decisions) contributes to achieving this objective and promotes the transparency of our operations by informing parties, representatives and the general public about our work, including:

   (a) our role and jurisdiction;

   (b) our procedures when conducting reviews;

   (c) how we interpret and apply law and policy when reviewing decisions; and

   (d) why we have made the decision in individual cases.

   1.3This document sets out the AAT's policy for the publication of our written decisions. It identifies:

   (a)the categories of written decisions that the AAT publishes and, where relevant, how they are selected for publication;

   (b)targets for the proportion of written decisions published for different categories of cases, including those in relation to which all written decisions are generally published;

   (c)the circumstances in which a written decision, or particular information contained in a written decision, may not be published;

   (d)other considerations relating to the inclusion of personal information in decisions that may be published; and

   (e)when published decisions may be recalled from publication or amended.

   1.4…

   2.    Written decisions published under this policy

   2.1   …

   2.2.A written decision is not published if:

   (a) any legislative provision prohibits the publication of the decision;

   (b)a Tribunal member makes a direction under section 35 or 35AA of the AAT Act or section 378 or 440 of the Migration Act to the effect that the decision not be published; or

   (c) the extent of the editing required to comply with non-disclosure requirements renders the written decision unintelligible.

   2.3In broad terms, a Tribunal member may make a direction under the AAT Act or the Migration Act that a decision not be published if satisfied in the circumstances of the case that the harm arising from the publication of the decision outweighs the public interest in publishing the decision.

   …

   3.Restrictions on the inclusion of information in decisions to be published

   3.1…

   3.2A Tribunal member may also make a direction under section 35 or 35AA of the AAT Act or section 378 or 440 of the Migration Act in an individual case, prohibiting or restricting the publication of particular information, including:

   (a) the name or other information tending to reveal the identity of a party, witness or other person related to or associated with any party or witness; and

   (b) information relating to evidence or other information given to the AAT.

   In broad terms, a Tribunal member may make such a direction if satisfied in the circumstances of the case that the harm arising from the publication of the information outweighs the public interest in publishing the information.

   3.3 …

9. Other considerations relating to the inclusion of personal information in decisions that may be published

4.1 The wide availability of published decisions gives rise to the potential for misuse of information contained in written decisions, including the risk of identity theft. When preparing reasons for decision, Tribunal members:

(a)should only include information about a party, witness or other person in reasons for decision if it is relevant to the findings or otherwise necessary for the cogency of the reasons; and

(b)should not generally set out in full unique personal identifiers such as dates of birth, dates of anniversaries, current or past residential addresses, telephone numbers, email addresses or other unique numbers, including bank account or credit card numbers, motor vehicle registration or driver's licence details, or Centrelink, child support, Medicare, passport or tax file numbers.[7]

[7] See also Administrative Appeals Tribunal Guideline on the Disclosure and Non-Disclosure of Personal Information in AAT Decisions, 8 November 2017.

1. The Tribunal’s Guideline on the Disclosure and Non-Disclosure of Personal Information in AAT Decisions (‘the Non-Disclosure Guideline’) applies to decisions made after 27 November 2017. It provides guidance for AAT members and staff in relation to the disclosure and non-disclosure of personal information, including personal identifiers, in statements of reasons for written decisions that may be published.

2. Under the Heading ‘General Principles’, the Non-Disclosure Guideline provides:

   Before finalising a decision, members should consider whether the circumstances may warrant making a non-publication direction under section 35 or 35AA of the AAT Act or section 378 or 440 of the Migration Act 1958 (Migration Act) if the publication of information included in the reasons for decision could cause harm. Such a direction is not required, however, if the disclosure of that information or identification of the person to whom it relates is already prohibited or restricted by legislation as outlined in the following section.

   (Emphasis added)

3. It recognises that ‘other sensitive information’ may be included in reasons for decisions and that Members must decide whether it is necessary for it to be included:

   OTHER SENSITIVE INFORMATION

   37. Reasons for decision may contain other information that is of a sensitive nature. This includes (but is not limited to):

   ·information relating to children, including adoption or the names of schools they attend

   ·…

   ·information concerning family violence or sexual abuse

   ·…

   38. Members must exercise particular care in deciding whether it is necessary to include sensitive information in reasons for decision and, if so, what to include. If the reasons for decision must include sensitive information and disclosure of the identity of the person to whom it relates is not otherwise prohibited, members should consider before finalising a decision whether the circumstances warrant making a non-publication direction under the AAT Act …

   SUBMISSIONS

   Applicant

4. The Applicant requests that the Tribunal’s decision dated 22 February 2022 not be freely available to the public, or alternatively that the decision be anonymised sufficiently so as to protect the Applicant’s privacy and prevent harm to the Applicant and her children. As another alternative, the Applicant seeks that particular sections of the decision be removed or redacted in order to protect her and her children from harm.[8]

   [8] Submissions of the Applicant dated 21 March 2022 [1]

5. The Applicant contends that the circumstances [REDACTED] surrounding the Applicant’s marriage to her former husband and the reasons for the alteration of her birth certificate are ‘deeply traumatic and unknown’ to her children.[9] This information is ‘extremely confidential’ and the identification of the Applicant’s name publicly and online means that her children may have access to this information which will cause both them and the Applicant harm.[10] It would be traumatic for her children to learn of this information, which is more likely to occur if the Tribunal’s decision is readily accessible online. Further harm would be caused to the Applicant if her children learn of this information. This harm includes her relationship with her children, and her sense of responsibility in causing her children anguish in finding out this information due to the Applicant seeking review of the primary decision.[11]

   [9] Submissions of the Applicant dated 21 March 2022 [2]

   [10] Submissions of the Applicant dated 21 March 2022 [8]

   [11] Submissions of the Applicant dated 21 March 2022 [3]

   Non-publication of decision

6. The Applicant accepts that the general principle is that decisions of the Tribunal and the rule of law will normally require the full decision to be fully accessible to the public.[12] The Applicant’s motivation is not to prevent the principle being applied, but to have it recognised that no harm should be caused to an individual in relying on their rights under a review framework.[13] Provisions of the AAT Act recognise that there may be some circumstances in which there are reasons to consider either the decision not be reported or that some other measures be taken to protect the privacy of the individual.[14]

   [12] Transcript of proceedings 7 March 2022, 3

   [13] Ibid.

   [14] Transcript, 7 March 2022 at 3.

7. Each of the earlier reported matters involving the Applicant were all procedurally focussed matters around Freedom of Information provisions or the cancellation of a citizenship approval. The personal information of the Applicant was ‘peripheral’ to the central issue in the matter and the decisions do not include significant details about the Applicant’s extremely private information.[15] Taking into account the highly confidential nature of the Applicant’s circumstances in her current citizenship application, non-publication of the decision is the most effective way for the Tribunal to protect the Applicant’s children from the harm of finding out the circumstances of their birth that they would not otherwise readily have had access to, and is consistent with the objectives of section 2A and the purpose of section 35 of the Act.[16]

   [15] Applicant’s submissions [11]

   [16] Applicant’s submissions [14]

   Anonymisation of decision

8. The Applicant’s second contention is that all names in the Tribunal’s decision be redacted and replaced by initials or pseudonyms in accordance with the guidelines for ‘Redacting decisions for publication’ released by the AAT.[17] The Applicant, her children and husband all live and work in Australia, and the Applicant is well respected in the community, her employment and her church. Anonymising the decision would protect the Applicant from the harm arising from damage to her children who are known to be related to all the named persons in the decision.[18] The accessibility of the Tribunal’s decision to the Applicant’s children is likely to cause harm to her relationships with the children. This is particularly the case where the Applicant has kept the information [REDACTED] secret from her children. The children’s psychological harm in discovering this information is relevant to the anonymising of other known members of their families’ names in the decision.[19]

   [17] Applicant’s submissions [15]

   [18] Applicant’s submissions [16]

   [19] Applicant’s submissions [17]

9. The Applicant contends that removing identifiable names from the Tribunal’s decision does not prejudice public confidence in the proceedings to administer justice.[20] Protecting individuals’ identities is likely to give the public greater confidence that their privacy and autonomy can be maintained if they engage in legal processes and appropriately seek review by the Tribunal of a government decision without compromising their privacy.[21] The Applicant contends that anonymising her name does not undermine the accessibility of the public to the legal value of her matter to future applicants.[22]

   [20] Applicant’s submissions [20] referring to Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 270

   [21] Applicant’s submissions [20]

   [22] Applicant’s submissions [22]

   Removal or redaction of text from decision

10. In the alternative, the Applicant submits that selected text from the decision be removed or redacted so that the specific details of the [REDACTED] circumstances of her marriage to her former husband and alteration of her birth certificate are not publicly available to her children.[23] Details of the Applicant’s abusive relationship with her former husband are intimate details of a relationship and should be excluded.[24] This is particularly so when the intimate details have an impact on the Applicant’s children and will be available to them by virtue of the decision being publicly available online.[25]

    [23] Applicant’s submissions [23] citing Tennant and Secretary, Department of Social Services [2014] AATA 92 at [17]

    [24] Applicant’s submissions [24]

    [25] Applicant’s submissions [25]

11. The Applicant further contends that redacting the traumatic events is likely to provide the public with confidence in legal processes, in particular that future applicants’ privacy can be maintained even where decisions are made available to the public.[26] The open and transparent administration of justice is not harmed by redacting reference to [REDACTED] and other similar information.[27]

    [26] Applicant’s submissions [33]

    [27] Applicant’s submissions [34]

    Respondent

1. The Respondent contends that there is no basis for the Tribunal to make non-publication orders under s 35(3) of the AAT Act.[28]

   [28] Reply Submissions of the Respondent dated 25 March 2022 [2]-[3].

2. Sub-section 35(1) of the AAT Act establishes a norm that the proceedings before the Tribunal shall be in public. This norm is reinforced by the requirements of s 35(5) of the AAT Act which expressly state that the Tribunal is required to consider this principle in deciding whether to make confidentiality orders. The power to depart from this norm is one that is to be exercised sparingly. The reason Tribunal proceedings are not kept secret is the overriding importance of justice being administered openly and in public. When measured against the existence of the norm of a public hearing and the scheme established by the Citizenship Act with respect to applications for conferral approval, it is apparent that the Tribunal would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to an applicant’s reputation resulting from public awareness of the basis for a decision made by the Tribunal will be a sufficiently cogent reason to justify a departure from that norm.[29]

   [29] Submissions of the Respondent dated 4 March 2022 [11] citing ASIC v AAT [2009] FCAFC 185; (2009) 181 FCR 130; (2009) 113 ALD 449 at 465-466 [74]-[76]; Catena v ASIC [2010] FCA 598 at [22]-[24]; and Lee and Minister for Immigration and Border Protection [2019] AATA 84; (2019) 77 AAR 360 (‘Lee’) at [10]-[16].

3. Section 35(5) of the AAT Act makes clear the importance which the Tribunal must attach to transparency in its processes. Such transparency can come as an uncomfortable surprise to applicants and witnesses who assume that their interactions with the Tribunal will be like those with the primary decision-maker which are private. Confidentiality orders not only force justice behind closed doors, which can undermine public confidence, they also undermine the normative role of the Tribunal.[30]

   [30] Submissions of the Respondent 4 March 2022 [12]

4. The Applicant has failed to establish a sufficiently cogent basis for the Tribunal to depart from the norm established by s 35(1) of the AAT Act for the following reasons:

   ·     ‘the horse has left the barn’ – there are more than 10 published decisions which are available to the public that directly relate to the Applicant’s eligibility for Australian citizenship and her personal circumstances relevant to the same. These specifically reference the Applicant’s children by name, her marriage to her former husband, and the allegations made surrounding that history in considerable detail.[31]

   ·     The Applicant’s embarrassment does not of itself provide a valid basis for orders suppressing her identity or the Tribunal’s decision, and there is no relevant medical evidence before the Tribunal which would support this application.[32]

   ·     There is significant public interest in the community being appraised of Tribunal decisions concerning whether persons should be conferred the privilege of citizenship.[33]

   [31] Respondent’s submissions [16.1]

   [32] Respondent’s submissions [16.2]

   [33] Respondent’s submissions [16.3]

5. The Applicant’s argument that publication of ‘extremely private information’ may cause the public to lose confidence and not seek review of government decisions for fear fearing that such information may be disclosed entirely overlooks the very purpose of both ss 2A and 35 of the AAT Act and the overarching concepts of open justice and a fair hearing which they recognise.[34] Section 35 provides confidence to parties that the Tribunal will concern itself with whether information should be disclosed, and will give ‘due regard’ to why information should not be disclosed. Section 35 makes proceedings more accessible by providing a clear statutory basis for parties to seek orders for confidentiality and authorising the Tribunal to make those orders should the circumstances require. Section 2A does not indicate otherwise.[35]

   [34] Reply Submissions of the Respondent dated 25 March 2022 [5]

   [35] Citing Explanatory Memorandum to Tribunals Amalgamation Act 2015 (Cth) at [40]- [45], which cites Art 14(1) of the International Covenant on Civil and Political Rights (ICCPR), that the starting point is and must be that AAT hearings and reasons for decision should be in public. Section 35 adopts this with the exception that the AAT Act and enabling Acts require or permit private hearings in specified circumstances, which include refugee, child support or security division matters.

6. The Respondent contends there is no reason for the Tribunal to depart from the norm that proceedings before the Tribunal should be in public and that confidentiality orders should be used sparingly.[36] There is a heavy evidentiary onus on the party seeking any restriction which has not been discharged by the Applicant.[37]

   [36] Reply Submissions of the Respondent dated 25 March 2022 [10]

   [37] Reply Submissions of the Respondent dated 25 March 2022 [12] citing Re Robins SM; Ex Parte West Australian Newspapers Ltd [1999] WASCA 16; (1999) 20 WAR 511 at 516 [16]; Huikeshoven v Secretary, DESE [2021] FCA 1359 at [26].

7. The Respondent does not oppose the Tribunal making orders under s 35(4) of the AAT Act, however the requested orders lack utility. The information sought to be prevented from publication is information that is already published.[38] For example, in [REDACTED] under the heading ‘Applicant’s Position’, the Tribunal states:[39]

   1)       …

   2)In early 1979, the Applicant, then just over 12 years of age states that [REDACTED]

   3) [REDACTED], the Applicant’s father arranged with the family [REDACTED] for the couple to be formally married. As the Applicant was under the legal age for marriage (that being 18 years) the Applicant’s father changed the details on her birth certificate from 13 November 1966 to 13 November 1954.

   4) The arranged wedding took place with both a civil and church ceremony and in October 1979 the Applicant gave birth to a daughter.

   5) The couple remained together and in 1981 another wedding ceremony took place. In May 1982 the Applicant gave birth to a second child, a son…

   [38] Reply Submissions of the Respondent dated 25 March 2022 [16]

   [39] At [28]

8. Further, the harm that the Applicant claims will be caused to her and her children ought not be given any weight. She says that the children have not accessed or learnt of the sensitive information despite it being publicly available for more than two years. This is not a case where the interests of the Applicant and her adult children are such that it is desirable to make orders under s 35 of the AAT Act in the strong sense required by that section.[40]

   [40] Reply Submissions of the Respondent dated 25 March 2022 [17]

9. The Respondent acknowledges that the Applicant’s children will be upset if they learn of the circumstances [REDACTED]. However, this does not outweigh the principles of open justice. Embarrassing, damaging and dangerous facts occasionally come to light in proceedings, however such interests must be sacrificed to the greater public interest in adhering to an open system of justice.[41]

   [41] Reply Submissions of the Respondent dated 25 March 2022 [18]

10. The Respondent submits that any order under s 35(3)-(4) of the AAT is not appropriate in the circumstances of this case.[42]

    CONSIDERATION AND REASONS

    [42] Reply Submissions of the Respondent dated 25 March 2022 [19].

    General principles and relevant authorities

11. The Tribunal’s review function generally involves a public hearing, the public availability of evidence, and the publication of Tribunal decisions and reasons: section 35(5) AAT Act. As the Tribunal observed in Global Financial Markets Pty Ltd and Australian Securities and Investments Commission,[43] section 35 ‘gives effect to the basic principle that proceedings before [the] Tribunal are to be open and documents and other material lodged with the Tribunal in the course of a proceeding should also be available to the public.’ This principle is ‘the starting point in any analysis as to whether confidentiality or suppression orders should be made.’ [44]

    [43] [2017] AATA 1397 at [51]

    [44] Ibid.

12. Despite this overriding principle, the Tribunal is empowered to make an order prohibiting or restricting the publication of the identity of a party or witness in a proceeding before the Tribunal: s 35(3) AAT Act. Whereas the Tribunal may make a confidentiality order under section 35(3), ‘the desirability of the publicity of Tribunal proceedings must be taken as the basis of the Tribunal’s consideration in determining any application to depart from the general statutory obligation requiring a public hearing (refer ss 35(1) & (5) of the AAT Act)’: Poidevin and Australian Securities and Investments Commission (‘Poidevin’).[45] In Australian Securities & Investments Commission v Administrative Appeals Tribunal (‘ASIC v AAT’), [46] Downes and Jagot JJ emphasised that s 35(1) of the AAT Act establishes a ‘norm’ that proceedings before the Tribunal will be in public and when the Tribunal is considering the exercise of its powers to make a confidentiality order it is ‘required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect’.[47] As their Honours observed:[48]

    Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.

    When measured against the existence of the norm of a public hearing and the scheme established by the Corporations Act with respect to banning orders, it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient’s reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order.

    [45] [2018] AATA 124 at [15]

    [46] [2009] FCAFC 185; (2009) 181 FCR 130

    [47] at [74]

    [48] at [75] and [76]

13. As Deputy President McCabe emphasised in JWTT and Commissioner of Taxation (‘JWTT’),[49] section 35(5) makes clear ‘the importance which the Tribunal must attach to transparency in its processes.’ Such transparency ‘can come as an uncomfortable surprise to applicants and witnesses who assume they could deal with the Tribunal in the same way they dealt with the original decision-maker where privacy is the order of the day.’ [50] Confidentiality orders not only ‘force justice behind closed doors, which can undermine public confidence,’[51] they also undermine the normative role of the Tribunal. Tribunal decisions in individual cases are designed ‘to model behaviour that promotes the integrity and quality of government decision-making more generally.’[52] If the reasons for decisions are not accessible, ‘[i]t is difficult to communicate lessons for future decision-makers.’ [53]

    [49] [2017] AATA 1612 at [16],

    [50] Ibid at [16].

    [51] Ibid at [16].

    [52] Ibid at [16].

    [53] Ibid at [16].

14. The disclosure of the names of parties to Tribunal proceedings ‘enhances public confidence in the system of Commonwealth merits review by ensuring that it is conducted and seen to be conducted in a transparent and open manner.’[54] This ‘openness principle is not generally trumped by personal privacy interests’.[55]

    [54] Paul and Minister for Immigration and Citizenship [2011] AATA 831 at [26].

    [55] Tennant and Secretary, Department of Social Services [2014] AATA 92 at [29].

15. Sub-section 35(5) of the AAT Act requires the Tribunal to ‘pay due regard to any reasons in favour of giving such a direction, including ... the confidential nature (if applicable) of the information’. The sub-section does not specify what other considerations may be relevant to making a section 35 order. It is left to the Tribunal ‘to identify what is relevant in each case with the assistance of the parties. [The Tribunal] must then perform the balancing exercise required by the sub-section’.[56]

    [56] JWTT at [19].

16. As Senior Member Taylor observed in Panganiban v Australian Securities & Investments Commission (‘Panganiban’),[57] reputational damage will rarely provide a persuasive ground for a confidentiality order:

    … mere apprehension about the potential for reputational harm directly resulting from the reviewable decision will usually not provide a persuasive basis for restricting the publicity of review proceedings.[58]

    [57] [2016] AATA 703 at [12],

    [58] See further Dimitropoulos and Australian Securities and Investment Commission [2017] AATA 1513 at [75] and [78] SM Taylor.

17. This approach was endorsed by Deputy President Redfern in Poidevin:[59]

    … Tribunal proceedings should be conducted openly and in public unless there are ‘sufficiently cogent reasons’ why this should not be the case. Reputational damage will generally not be enough and it is for the applicant to satisfy the Tribunal that there should be a departure from the ‘norm.’

    [59] at [17]

    Non-publication of names

18. The Tribunal has had regard to the principles and relevant authorities outlined above in relation to the making of confidentiality orders and finds for the following reasons that there is a cogent reason in this matter to depart from the norm of the publicity of Tribunal proceedings, including the name of the Applicant.

19. The Tribunal finds that the existence of the norm and the values it is intended to protect are factors that are outweighed by the considerations identified by the Applicant. These considerations are specifically the potential emotional distress and/or psychological harm to the Applicant and her children arising from the publication of her name and other relevant identifiers in the review proceedings. In making this finding, the Tribunal has had regard to the Publication of Decisions policy, specifically paragraph 3 detailed in [8] above. This paragraph notes the Tribunal’s power to make a direction under section 35 of the AAT Act to restrict or prohibit publication of the name or other information revealing the identity of a party if it is satisfied in the circumstances of the case that the harm arising from the publication of the information outweighs the public interest in publishing the information.

20. The Tribunal also has had regard to the Non-Disclosure Guideline detailed in [9]-[11] above which relevantly states:

    If the reasons for decision must include sensitive information and disclosure of the identity of the person to whom it relates is not otherwise prohibited, members should consider before finalising a decision whether the circumstances warrant making a non-publication direction under the AAT Act …

21. [REDACTED]

22. The Tribunal Decision includes sensitive information [REDACTED]. The Tribunal accepts that if this information about the Applicant were to be made public it could cause emotional distress and/or psychological harm to the Applicant and/or her children. The Tribunal is satisfied in the circumstances of the case that the harm arising from the publication of the information outweighs the public interest in publishing the information.

23. The harm inflicted by perpetrators of domestic and family violence is widely recognised and well documented. The Tribunal has an obligation to ensure that it does not exacerbate that harm by including in its reasons for decision information which reveals the identity of victim survivors and their families.

24. In its July 2019 research report, Domestic violence, social security and the couple rule Australia’s National Research Organisation for Women’s Safety Limited (ANROWS)[60] examined 70 AAT decisions published from 1992 to 2016 involving the ‘couples rule’ and family violence. It observed:

    The publication of identifiable and locatable details about individuals, including women who had experienced domestic violence, occurred in almost every AAT social security decision. This is concerning, given the decisions are publicly available via the website. Full names, street addresses, places of work and children’s schools were disclosed in AAT couple rule decisions that involved domestic violence. This is a serious violation of privacy for all involved and poses a safety risk to women and their children who may be located by past perpetrators through this disclosure.[61]

    …

    It also prevents women from keeping a difficult period of their lives private.[62]

    [60] Australia’s National Research Organisation for Women’s Safety Limited is an independent, not-for-profit research organisation established to produce evidence to support the reduction of violence against women and their children.

    [61] At 53

    [62] At 10

25. The report recommended that Tribunal decisions be edited to remove and de-identify such information:

    New reports should omit identifiable information before the decisions are made publicly available, and existing reports should be edited to omit this information.[63]

    [63] At 10

26. The de-identification or anonymisation of the names and other identifiable details of the Applicant, her husband and her children in the Tribunal Decision will protect them against further harm [REDACTED]. The making of a non-publication direction to give the Applicant, her husband and her children pseudonyms in the Tribunal Decision will not ‘force justice behind closed doors’ as the findings of the Tribunal in relation to the Applicant will be made publicly available following the publication of the Decision. This course will maintain public confidence in the Tribunal and not impact its important normative role in the administrative justice system.

27. The Tribunal finds that there is a sufficiently cogent basis for it to depart from the norm established by s 35(1) of the AAT Act and that the making of a confidentiality order, specifically a non-publication direction, is appropriate in this matter.

    DECISION

28. The Tribunal makes a non-publication direction under s 35 of the AAT Act to give the Applicant, her husband and her children pseudonyms and to remove any other personal identifiers in the Tribunal Decision dated 22 February 2022.

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

..................................[SGD]......................................

Associate

Dated: 15 July 2022

Date(s) of hearing:	7 March 2022
Date final submissions received:	25 March 2022
Advocate for the Applicant:	Professor K Rubenstein
Solicitors for the Respondent:	Mr J Papalia, Australian Government Solicitor