Re VBW and Australian Prudential Regulation Authority
[2005] AATA 1294
•22 December 2005
CATCHWORDS – PRACTICE AND PROCEDURE – confidentiality order – application by media organisation to revoke or vary order – whether standing to make application – consequences of statutory requirement that Tribunal hold a hearing in private – principles governing power to restrict publication or disclosure of evidence or contents of documents – balancing principles of open justice and the administration of justice in a particular case in light of the requirement to hold a private hearing – whether Tribunal has power to make pseudonym or suppression orders – application refused.
SUPERANNUATION – legislative requirement that the hearing of a proceeding relating to a reviewable decision be held in private – modification of legislative requirement providing that all hearings shall be in public.
STATUTORY INTERPRETATION – WORDS AND PHRASES – “private hearing”
Administration of Justice Act 1960 (UK) s. 12
Administrative Appeals Tribunal Act 1975 ss. 25, 30, 35 and 35A
Commonwealth of Australia Constitution Act
Federal Court of Australia Act 1976 s. 50
Freedom of Information Act 1982 s. 58C
Industry Research and Development Act 1986 s. 39T
Insurance Act 1973 s. 25A
Migration Act 1958 s. 429
National Companies and Securities Commission Act 1979 s. 36
Occupational Standards Act 1987 s. 16
Superannuation Industry (Supervision) Act 1993 ss. 10, 120A, 254, 255, 256, 264, 265, 267, 268, 269, 270, 278, 279, 280, 281, 283, 284 and 344
Taxation Administration Act 1953 ss. 14ZZE and 14ZZK
A School v Human Rights and Equal Opportunity Commission (1998) 51 ALD 102
A v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 327
AAT Case 11,688 (1997) 35 ATR 1039
Applicant X v Australian Prudential Regulation Authority [2005] FCA 1288
Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222
Australian Broadcasting Commission v Parish (1980) 29 ALR 228
Brown v Federal Commissioner of Taxation [2001] FCA 276; (2001) 47 ATR 143
Department of Industrial Relations v Forrest (1989) 11 AAR 256; 90 ALR 417
Director of Public Prosecutions v Williams (2004) 10 VR 348
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Forbes v Smith [1998] 1 All ER 973
Grassby v R (1989) 168 CLR 1; 87 ALR 618
Guglielmin v Trescowthick (No 3) [2005] FCA 139; (2005) 220 ALR 535
Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673
Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Group Ltd (receivers and managers appointed) v The Local Court of New South Wales (1991) 26 NSWLR 131; 26 ALD 471
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101
Johnston v Cameron (2002) 124 FCR 160
Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217
Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154
National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217
NCSC v Bankers Trust Australia Ltd (1989) 24 FCR 217
Pelechowsk v Registrar, Court of Appeal (1999) 198 CLR 435
R v Stipendiary Magistrate at Southport ex parte Gibson [1993] 2 Qd R 687
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696
Re Kanina Banner and Minister for Health and Ageing (2002) 66 ALD 663
Re Lawrance and CRS Australia and Others [2004] AATA 1136
Re Maher and Attorney-General’s Department, CRA Ltd and Mary Kathleen Uranium Ltd (1985) 7 ALD N411
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247
Re Superannuation Appeals N91/439-442 (1992) 15 AAR 539
Re VYB and Insurance Superannuation Commissioner (1992) 24 ATR 1199
Re X and Insurance Superannuation Commissioner (1992) 27 ALD 343
Re Y and Commissioner for Superannuation (1982) 4 ALD 499
Russell v Russell (1976) 134 CLR 495
Scott v Scott [1911-13] All ER 1
Scott v Scott [1913] AC 417
Sterling Nicholas Duty Free Pty Ltd v Commonwealth (1971) 1 NSWLR 353
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
DECISION AND REASONS FOR DECISION [2005] AATA 1294
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/821
GENERAL ADMINISTRATIVE DIVISION )
Re VBW
Applicant
AndAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
AndVBT
Party Joined
DECISION
Tribunal: Deputy President S A Forgie
Mr B.H. Pascoe, Senior Member
Date: 22 December 2005
Place: Melbourne
Decision:Except to the extent necessary to permit publication of this decision and the reasons for it, the Tribunal refuses the application made by Nationwide News Pty Ltd to revoke or vary the Tribunal’s order made on 15 September 2005 and varied by it on 26 September 2005 and 25 October 2005.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 15 September 2005, an order was made that, for all practical purposes, suppressed the publication of the name of the applicant, any material identifying him and entities in which he has an interest, all affidavits, submissions and other documents filed in the Tribunal and any orders, directions or decisions of the Tribunal. It ordered that the applicant be known as VBW and was made in terms similar to those made in related matters. Nationwide News Pty Ltd (“Nationwide News”) asks that the order be varied to remove the suppression of the applicant’s name and of material identifying him or entities in which he has an interest. It does not seek a variation of the order in so far as it orders that the evidence and names of witnesses be confidential. The revocation or variation is opposed by VBW. He is supported in that by VBV, who is an applicant in another proceeding and to whom we gave leave to intervene. We have decided that the order should not be revoked or varied.
BACKGROUND
The Australian Prudential Regulation Authority (“APRA”) has disqualified VBW from being a trustee, investment manager or custodian of a superannuation entity. It has relied on its power under s. 120A(2) and (3) of the Superannuation Industry (Supervision) Act 1993 (“SIS Act”) to do so. VBW has applied for review of APRA’s decision.
On 15 September 2005, Senior Member Friedman made an order under s. 35 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”):
“1. the applicant shall be known as ‘VBW’ for the purposes of the application for review.
2.the respondent may not publish in the Commonwealth Government Gazette particulars of the notice given to ‘VBW’ under s 120A(6) or s 344(6) of the Superannuation Industry (Supervision) Act 1993; and make any public disclosure regarding the decision;
3.publication of and access to:
(a)the name of the applicant;
(b)any material tending to identify the applicant or any entities in which the applicant has an interest;
(c)any affidavits, outlines of submissions or other documents filed with the Tribunal; and
(d)any orders, directions decisions and reasons and decision of the Tribunal,
be restricted to:
(i)the applicant’s legal advisors;
(ii)the respondent and its professional advisors in the performance of their duties;
(iii)the member of the Tribunal as constituted to hear this matter;
(iv)the parties in proceedings V2005/686, V2005/793, V2005/710, V2005/712, V2005/713 and V2005/736 and AXA Asia Pacific Holdings Ltd (the employer sponsor) and their respective representatives and professional advisors;
(v)the staff of the Tribunal and Adscript in the performance of their duties;
4.all hearings shall be held in private; and
5.either party has liberty to apply at short notice.”
On 6 October 2005, Nationwide News applied for the revocation of the Tribunal’s order. Its application was heard on 11 November 2005. VBW opposed the application as did VBT but Deputy President Forgie decided that Nationwide News had standing to make its application. Reasons for her decision are given below. At that hearing, Nationwide News also asked to be informed of the names of the parties and for access to all material on the basis on which the orders of 15 September 2005 were heard. Further consideration of the matter was adjourned until 6 December 2005.
In relation to the orders of 15 September itself, Nationwide News sought revocation of orders 1, 3(a) and (b). In addition, to the extent that it goes beyond a prohibition on the publication of evidence and the names of witnesses, it sought revocation of order 3(d). The order was later amended on 25 October 2005 but the substance of these particular orders from the earlier order remains the same. We have treated its application as extending to the order as it now applies. Nationwide News also sought a variation of the order so that one of its officers might be permitted to observe the proceedings. That officer would be subject to appropriate confidentiality orders as would Nationwide News and its related entities. If this order were not made, Nationwide News sought an order that it be notified before the Tribunal makes its decision and reasons on the substantive hearing. It also asked that it be ordered that it be given an opportunity at that later time to make submissions on the continuation of the current orders or any supplementary or additional confidentiality orders made by the Tribunal.
LEGISLATIVE FRAMEWORK
The SIS Act makes “… provision for the supervision of certain entities engaged in the superannuation industry, and for related purposes”.[1] Part 25 provides for the Regulator[2] to monitor and investigate superannuation entities.[3] In carrying out its monitoring function, the Regulator may require the trustee of a superannuation entity to give it information,[4] require the production of books[5] and gain access to premises.[6] The Regulator may carry out its investigative function if it appears to it that one of the situations specified in s. 263 exists.[7] In carrying out that function, it has powers to obtain information and freeze assets,[8] appoint inspectors[9] and exercise their powers,[10] enter premises,[11] require the production of books[12] and require assistance from and examine current and former relevant persons[13] of the superannuation entity.[14]
[1] SIS Act, Long Title
[2] The Regulator in this case is the Australian Prudential Regulation Authority: SIS Act, s. 10(1)
[3] A “superannuation entity” means a regulated superannuation fund, an approved deposit fund or a pooled superannuation fund: SIS Act, s. 10(1).
[4] SIS Act, s. 254(2)
[5] SIS Act, s. 255
[6] SIS Act, s. 256
[7] In general terms, those situations occur if it appears to the Regulator that a contravention of the Act or Regulations might have occurred or be occurring in relation to a superannuation entity, the superannuation entity’s financial position may be unsatisfactory or if the trustee of certain funds has failed to comply with certain directions of Superannuation Complaints Tribunal.
[8] SIS Act, s. 264
[9] SIS Act, s. 265
[10] SIS Act, s. 267
[11] SIS Act, s. 268
[12] SIS Act, s. 269
[13] A “relevant person” in relation to a fund or trust includes the trustee, or a responsible officer if the trustee is a body corporate, an auditor or an actuary of the fund or trust and a custodian in relation to the fund or trust: SIS Act, s. 10(1)
[14] SIS Act, s. 270
Where an inspector examines a person, that “… examination is to take place in private and the inspector may give directions about who may be present during it, or during part of it.”[15] A person may not be present unless that person is the inspector or the examinee, a member of the Regulator’s staff who has been authorised to attend or is entitled to be present under a direction made under either ss. 278(1) or 279(1).[16] The examinee’s lawyer may be present at the examination and may address the inspector and examine the examinee at such times as the inspector decides and about the matters on which the inspector has examined the examinee.[17] The inspector must arrange for a written record of the examination to be made.[18] If a person’s lawyer satisfies the Regulator that the person is carrying on or contemplating in good faith a proceeding in respect of a matter to which the examination related, the Regulator may give the lawyer a copy of a written record of the examination or a copy of that record and any related book.[19] If the Regulator gives such a copy, it may only be used or published or communicated to another person in connection with preparing, beginning or carrying on that proceeding.[20] The record is to accompany the investigator’s report of the investigation under s. 284.[21]
[15] SIS Act, s. 278(1)
[16] SIS Act, s. 278(2)
[17] SIS Act, s. 279(1)
[18] SIS Act, s. 280(1)
[19] SIS Act, s. 281
[20] SIS Act, s. 281(2)
[21] SIS Act, s. 283
In carrying out its functions, the Regulator may make a wide range of decisions. A number of them have been specified as “reviewable decisions”.[22] If a person is affected by a reviewable decision,[23] that person may ask the Regulator to reconsider it.[24] The Regulator may confirm, revoke or vary the decision.[25]
[22] SIS Act, s. 10(1)
[23] A person who is affected by a reviewable decision is qualified by s. 344(12)
[24] SIS Act, s. 344(1)
[25] SIS Act, s. 344(4) and see also s. 344(5) providing for a deemed confirmation of the reviewable decision if the Regulator does not make a decision within 60 days of receiving the request.
If confirmed or varied, a person may apply to the Tribunal.[26] Section 344(11) of the SIS Act provides that:
“The hearing of a proceeding relating to a reviewable decision is to take place in private and the Administrative Appeals Tribunal may, by order:
(a)give directions as to the persons who may be present; and
(b)give directions of a kind referred to in paragraph 35(2)(b) or (c) of the Administrative Appeals Tribunal Act 1975.”[27]
[26] SIS Act, s. 344(8)
[27] Section 25(6)(b) of the AAT Act provides that an enactment providing for applications to the Tribunal may add to, exclude or modify the operations of provisions of, among others, s. 35 in relation to those applications.
In broad terms, ss. 35(2)(b) and (c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) permit the Tribunal to prohibit or restrict the publication of evidence received by it or of matters in documents lodged with it. They must be seen in their context. That context begins with the general proposition in s. 35(1) that, subject to the section itself, “… the hearing of a proceeding before the Tribunal shall be in public.”[28] The public nature of the hearing is emphasised by the provisions of s. 35(1A), which makes provision for those persons appearing at a hearing of a proceeding held in public by means of a telephone, closed-circuit television or any other means of communication.[29] In those circumstances, the Tribunal is required to take those steps that are reasonably necessary to ensure that the public nature of the hearing is preserved.
[28] Section 35 does not apply to a proceeding in the Security Appeals Division: AAT Act, s. 35(1AA).
[29] AAT Act, s. 35A
The Tribunal is also able to direct that a hearing or part of a hearing is held in private. That is provided for in s. 35(2):
“Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a)direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.”
In deciding whether an order is desirable under s. 35(2), the Tribunal must have regard to the matters set out in s. 35(3):
“In considering:
(a)whether the hearing of a proceeding should be held in private; or
(b)whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”
CONSIDERATION
We will consider the issues raised by Nationwide News’ application under a number of headings. In doing so, we observe that Parliament drafts its laws against a background of the common law. The courts, and so this Tribunal, will interpret them according to their accepted legal meaning when used in a similar connection unless Parliament has indicated that a contrary meaning is intended.[30]
[30] See generally [3.33]-[3.34], DC Pearce and RS Geddes, Statutory Interpretation in Australia, 5th edition, 2001, Butterworths
Nationwide News’ standing to make an application
At an earlier stage of this hearing, the Tribunal constituted only by Deputy President Forgie decided that Nationwide News had standing to make an application to set aside the order made under s. 35 of the AAT Act. She did so on the basis that s. 35 requires that the Tribunal consider and determine where the balance lies between competing public interests. This she explained in Re Kanina Banner and Minister for Health and Ageing.[31] The parties to the proceeding are in a position to express a view as to where that balance should lie. They are not the only persons who are in a position to express an opinion as to where the public interest should lie when considering issues relating to s. 35. The very fact that the section has at its heart disclosure, or otherwise, of the Tribunal’s proceedings to the public must mean that there may well be members of the public who can reasonably be said to have sufficient interest in the matter to entitle them to be heard as to whether the Tribunal should exercise its powers under s. 35. That is so even though they are not parties and would not have interests affected by the decision to warrant their being made parties to the proceeding pursuant to s. 30(1A) should they apply.[32]
[31] (2002) 66 ALD 663 at [12]-[25]
[32] In Re Maher and Attorney-General’s Department, CRA Ltd and Mary Kathleen Uranium Ltd (1985) 7 ALD N411 at N413, the Tribunal said: “… a person other than a party may apply in relation to an order made pursuant to s 35(2) and be heard as to whether they have an interest in the particular order and to seek, for example, either the extension of the order, a variation of the order, or the revocation of that order.”
Just as the Herald & Weekly Times Ltd could not be said in the Kanina Banner case to represent the various public interests that are relevant to a consideration under s. 35, nor can Nationwide News be said to do so in this. By virtue of its being the publisher of The Australian, one of Australia’s two national six day a week newspapers[33] it can, however, be said to represent aspects of those public interests. Those aspects are not insignificant. For that reason, it was decided that it was appropriate to hear Nationwide News’ application to vary the orders previously made by the Tribunal under s. 35.
[33] The Australian Financial Review is the other.
The general principles relating to the Tribunal
The Tribunal is not part of the Judicature established under Chapter III of the Commonwealth of Australia Constitution Act. Instead, it is part of the Executive established under Chapter II. At the same time, the very nature of the functions for which it is established and the way in which it should undertake those functions mean that it must stand to one side of the Executive and independent of it. In the beginning, it was based on the judicial model and its:
“… function is to decide appeals, not to advise the Executive. The remedies which it awards may be limited or large, but the remedies are incidental to the decision at which it arrives. The decision of the Tribunal in the particular circumstances of each case is therefore to be resolved according to its opinion as to the merits of that case. It forms that opinion after considering the views of the decision-maker but it is not bound by those views. …”.[34]
[34] Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ
Parliament has amended the AAT Act since those early days and made some changes that have taken aspects of the Tribunal and its constitution away from the judicial model.[35] For all that, the manner in which the Tribunal should carry out its function remains the same and has the judicial model at its core. In considering the merits of a case, the Tribunal carries out de novo review of the decision. It must satisfy itself that the decision it reaches on that review is objectively the right one to be made on the facts of the case and according to the law.[36] If only one decision may be lawfully made on the facts, the Tribunal is required to make that, and so the correct, decision. If more than one decision is open to it, it is required to reach the preferable decision of those decisions that may correctly be made.[37]
[35] e.g. amendment s. 8 of the AAT Act so that tenured appointments mirroring judicial appointments may not be made from 1 April 2005 and amendments since that date to the reconstitution of the Tribunal.
[36] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 599; 77 per Smithers J
[37] at 589; 68, per Bowen CJ and Deane J
General principles governing whether a proceeding in a court is heard in public
Given the manner in which the Tribunal is required to carry out its function, it is relevant to consider the general principles that apply at common law and in the courts to hearings in the courts. Should those hearings generally be held in public and, if so, when is it appropriate that they be held otherwise than in public?
The answer to the first part of the question is that they should generally be held in public. As for the reason:
“ Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial … the security of securities is publicity.”[38]
A more contemporary statement of the reason was given by Sir Jack IH Jacob QC:
“ The need for public justice … is that it 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 is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.’ …”[39]
[38] Bentham’s treatise on Judicial Evidence (1825) quoted with approval by the House of Lords in Scott v Scott [1913] AC 417 at 477
[39] 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
Both of these sources are English but the principle is equally embedded in Australian law. This is apparent from the extract from the judgment of Gibbs J in Russell v Russell:[40]
“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’ (Scott v Scott [1913] AC 417 at p. 441). 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’ (McPherson v McPherson [1936] AC 177 at p. 200). To require a court invariably to sit in closed court is to alter the nature of the court. …”[41]
[40] (1976) 134 CLR 495
[41] (1976) 134 CLR 495 at 520
The extent to which a public hearing entails disclosure of every document put before the court was considered by the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd v Ryde Local Court.[42] Spigelman CJ said:
[42] [2005] NSWCA 101
“… It is entirely appropriate for the court to ensure that the public is fully informed of the actual proceedings in court even though, perhaps by reason of efficient procedure or the application of particular rules of practice, the matter is not read out in open court, but is either taken as read or otherwise deployed in a manner which influences the actions of the judicial officer.
…
[68] It is unnecessary to determine a single test applicable in all situations to identify when a document has been put before the court in such a manner that it ought be made public. A useful test was proposed by Lord Clyde in Cunningham v The Scotsman Publications Ltd [1987] SLT 698 at 706:
‘The test in my view is not what is actually read out – although all that is read out is published – but what is in the presentation of the case intended to be published and so put in the same position as if it had been read out. If it is referred to and founded upon before the court with a view to advancing the submission which is being made, it is taken as published.’
[69] The underlying principle is as stated by Byrne J in Smith v Harris [1996] 2 VR 335 at 350:
‘... [T]he policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself.’”
Some differences between a public hearing, a hearing in private, in chambers or in camera in a court
For all that, some matters have not been held in an open court which the public is entitled to enter and listen. Instead, they have been heard “in chambers”, “in private” or “in camera”. Various meanings have been given to those expressions. At times, “in chambers” has been thought to mean “in private, secret, secluded behind closed doors” but that view was rejected by Lord Woolf in Hodgson v Imperial Tobacco Ltd[43] when he treated it to mean “in private” but not “secret”. In doing so, he endorsed the statement of Jacob J in Forbes v Smith:[44]
“ A chambers hearing is in private, in the sense that members of the public are not given admission as of right to the courtroom. Courts sit in chambers or in open court generally merely as a matter of administrative convenience. …”[45]
Lord Woolf went on to explain:
“ Proceedings in chambers, however, are always correctly described as being conducted in private. The word ‘chambers’ is used because of its association with the judge’s room so as to distinguish a hearing in chambers from a hearing in open court. While the public are generally free to come into and go from a court (as longer as there is capacity for them to do so) during court hearings the same is not true of chamber hearings. Other than the parties and their representatives the public need the permission of the judge to attend.”[46]
[43] [1998] 2 All ER 673
[44] [1998] 1 All ER 973
[45] [1998] 1 All ER 973 at 974 quoted with approval at [1998] 2 All ER 673 at 684
[46] [1998] 2 All ER 673 at 686
Reasons for conducting hearings in private in a court included their:
“… contribution to the administration of justice. They allow issues to be determined informally and expeditiously. They allow less strict rules as to representation to apply. They allow matters to be discussed which the parties might not wish to discuss in open court. They encourage openness. They are less intimidating to litigants which is particularly important in the case of the small claims jurisdiction. …”[47]
Despite those reasons, Lord Woolf continued:
“ … it remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings. That fact that the public do not have the same right to attend hearings in chambers as those in open court and there can be in addition practical difficulties in arranging physical access does not mean that such access as is practical should not be granted. Depending on the nature of the request reasonable arrangements will normally be able to be made by a judge … to ensure that the fact that the hearing takes place in chambers does not materially interfere with the right of the public, including the media, to know and observe what happens in chambers. Sometimes the solution may be to allow one representative of the press to attend. Another solution may be to give judgement in open court so that the judge is not only able to announce the order which he is making, but is also able to give an account of the proceedings in chambers. The decision as to what to do in any particular situation to provide information for the public will be for the discretion of the judge conducting the hearing. As long as he bears in mind the importance of the principle that justice should be administered in a manner which is as open as practical in the particular circumstances, higher courts will not interfere with the judge’s decision unless there is a good reason for doing so.”[48]
[47] [1998] 2 All ER 673 at 686
[48] [1998] 2 All ER 673 at 686
Hearings “in camera” may be a different matter. Literally, “in camera” means “in chamber” and it has come to have the meaning of a matter’s being heard in a judge’s private chambers or room. It has also come to be known generally as referring to a matter conducted in a court “… in secret or private session, not in public”[49] and in general usage to “…in private; in secret: the meeting was held in camera”.[50] Whether or not that is in fact the case depends on its context and it is not relevant to consider the matter beyond noting that it may in some contexts refer merely to a hearing’s being in private but not secret.[51]
[49] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press
[50] Macquarie Dictionary, 3rd edition, 2001, The Macquarie Library Pty Ltd
[51] e.g. Scott v Scott [1911-13] All ER 1. In NCSC v Bankers Trust Australia Ltd (1989) 24 FCR 217 at 221, Lockhart J saw little difference between the two in the context of that case.
Despite the rigour with which Lord Woolf argued for an open system of justice in Hodgson v Imperial Tobacco Ltd, he recognised that there might be compelling reasons for secrecy in some instances. Section 12(1) of the Administration of Justice Act 1960 (UK) has specified that such is the case when certain issues involving children or national security are concerned. In the absence of that legislative provision, the House of Lords in Scott v Scott had earlier recognised the need to protect certain persons when a court is exercising its parental jurisdiction[52] and is in truth concerned with private domestic affairs.[53] It also recognised that there are cases in which the secrecy of a process or manufacture or discovery or invention – trade secrets – is the very matter in contention. As Lord Shaw said: “… the rights of the subject are bound up with the preservation of the secret. To divulge it to the world, under the excuse of a report of proceedings in a court of law, would be to destroy that very protection which the subject seeks at the court’s hands. …”[54]
[52] [1911-13] All ER 1 at 13 per Earl Loreburn
[53] Scott v Scott [1911-13] All ER 1 at 33 per Lord Shaw
[54] Scott v Scott [1911-13] All ER 1 at 33 per Lord Shaw
The reasons for these exceptions are found in a second principle that must at least stand with that of openness if not underpin it. That is the principle that “… the chief object of courts of justice must be to secure that justice is done.[55]In Scott v Scott, Earl Loreburn expressed it in this way:
“… It would be impossible to enumerate or anticipate all possible contingencies, but in all cases where the public has been excluded with admitted propriety, the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or because the parties entitled to justice would be reasonably deterred from seeking it at the hands of the court.”[56]
[55] Scott v Scott [1911-13] All ER 1 at 9 per Viscount Haldane LC
[56] Scott v Scott [1911-13] All ER 1 at 14
The High Court has also recognised that there are exceptions that are consistent with those to which we have already referred. Gibbs J in Russell v Russell said of them:
“… Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. …”[57]
[57] (1976) 134 CLR 495 at 520
Section 50 of the Federal Court of Australia Act 1976 gives statutory recognition of the principles developed at common law. It permits the Federal Court to make such a 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”. In Australian Broadcasting Commission v Parish,[58] Deane J said:
“The provisions of s 50 neither require nor warrant the court’s abandoning, as its prima facie approach, the ordinary common law rule that justice should be administered in public and that there should be public access to the evidence placed before the court in public hearing. What the section … recognises is that there are occasions where the administrative or interests of justice will make it desirable that there be a departure from the ordinary principle of the public administration of justice in open court.”[59]
[58] (1980) 29 ALR 228
[59] (1980) 29 ALR 228 at 253
Section 50 has been considered more recently in Johnston v Cameron[60] and Minister for Immigration and Multicultural and Indigenous Affairs v X.[61] In the latter case, Heerey and Weinberg JJ considered whether the identity of an applicant for a visa should be revealed. The visa had been refused 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. The applicant was HIV positive. Their Honours observed that s. 50 requires that an order must appear “necessary” to the court and not simply “desirable” or that there be “undue hardship” or “damage to reputation” if it were not made. The applicant was not a public figure but, given that his surname was quite uncommon in Australia, he would be readily identifiable and particularly those in the expatriate community of his fellow nationals. Stigma would attach to his wife and children. Heerey and Weinberg JJ said:
“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 the more hurtful and embarrassing the proceeding the more newsworthy the report of it.
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.”[62]
[60] (2002) 124 FCR 160
[61] [2005] FCAFC 217
[62] [2005] FCAFC 217 at [21]-[22]
Section 50 has also been considered by the Full Court of the Federal Court in Applicant Y v Australian Prudential Regulation Authority.[63] X and Y had been disqualified under s. 25A of the Insurance Act 1973 on the basis that APRA was satisfied that they were not fit and proper persons to be or to act as a director or senior manager of certain insurers or non-operating holding companies. X and Y had sought declarations that APRA did not have the power to disqualify them. Lindgren J had heard the applications and, in doing so, made orders under s. 50 of the Federal Court Act.[64] The Full Court accepted that X and Y were each a senior manager of Z Co. Z Co had an excellent reputation and standing in the insurance industry and would be damaged if APRA’s serious adverse conclusions and the disqualification of X and Y were to become known in the insurance industry. The reputation and performance of a company’s management team is one of the most important factors in determining a company’s credit rating in the insurance industry, the Full Court noted. If APRA had purported to disqualify X and Y in circumstances in which it did not have the power to do so, and Lindgren J had accepted that the question was not without doubt, X, Y and Z Co would suffer irreparable damage that could not be remedied by the quashing, on appeal, of the decision to do so.
[63] [2005] FCAFC 222
[64] Applicant X v Australian Prudential Regulation Authority [2005] FCA 1288
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.[65] In doing so, the Full Court referred to the principles established in Australian Broadcasting Commission v Parish and, in particular, to:
“The public interest, that the Court should effectively endeavour to achieve in considering the exercise of power 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.
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 on 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.”[66]
[65] [2005] FCAFC 222 at [16]
[66] [2005] FCAFC 222 at [14]-[15]
Even if orders securing the confidentiality of proceedings are made in cases referred to above, there is a question whether there is an order that can be made that can require a person to remain silent about what has happened. In Hodgson v Imperial Tobacco Ltd, Lord Shaw referred to a ward after the period of tutelage and to a person who was temporarily insane but who had recovered his sanity. He knew of no principle that would entitle either to remain silent or to require silence about proceedings to protect a trade secret when the secrecy or confidentiality had been abandoned and the facts had become public property.[67]
[67] Scott v Scott [1911-13] All ER 1 at 34
That takes us back to the facts of Scott v Scott[68] in which the court had ordered that a petition for a declaration of nullity on the grounds of non-consummation of the marriage be heard in camera. When the petitioner obtained and sent a copy of the transcript of the proceedings to her husband’s family, she was found guilty of contempt. The conviction was overturned on appeal on the basis that an order that the hearing be held in camera was not effective to suppress reports of what had passed at the hearing after it had concluded.
[68] [1913] AC 417, [1911-13] All ER 1
Principles relating to the interpretation of powers to direct a hearing be in public or in private
Where a power is given to a statutory body, be it a court or a tribunal, it carries with it, by implication, the power to do everything necessary for its effective exercise.[69] This has been described as the “test of necessity” but, as the Court of Appeal recognised in John Fairfax Publications Pty Ltd v Ryde Local Court:
“… such a test can be applied with varying levels of strictness. Where the principle of open justice is engaged, as it is when determining whether a court may sit in camera or prevent publication of its proceedings and orders, the test will be strictly applied. (See Scott v Scott [1913] AC 417 at 438 and the other authorities discussed in John Fairfax Publications Pty Ltd v District Court supra esp at [38]-[48].) As I said in John Fairfax Publications Pty Ltd v District Court supra:
‘[51]Where, as here, the implication is of a power which conflicts with the principle of open justice, the test of necessity must be applied with strictness. Accordingly, it is necessary to determine that the objective of ensuring the fairness of a subsequent trail cannot be achieved in any other way …’”[70]
[69] Grassby v R (1989) 168 CLR 1; 87 ALR 618 at 16; 628 per Dawson J. In their joint judgment in Pelechowsk v Registrar, Court of Appeal (1999) 198 CLR 435 at 452, Gaudron, Gummow and Callinan JJ explained what was meant by “necessary” in the passage from Dawson J’s judgment in Grassby v R:[70] [2005] NSWCA 101 at [40]
National Companies and Securities Commission v Bankers Trust Australia Ltd[71] is a case in which the Full Court of the Federal Court considered the implications of a private hearing. The Chairman of the former National Companies and Securities Commission (“NCSC”) had made a non-disclosure order directing a witness and his legal counsel not to discuss his evidence with anyone other than each other. Under s. 36(2) of the National Companies and Securities Commission Act 1979 (“NCSC Act”), the NCSC had power to decide whether the hearing was held in private or in public. It could direct who might be present at a private hearing.[72] Where the hearing was held in public, it could order that part of the hearing was held in private, direct who might be present and restrict publication of the evidence and the contents of documents.[73]
[71] (1989) 24 FCR 217
[72] NCSC Act, s. 36(5)
[73] NCSC Act, s. 36(6)
The power to direct a private hearing was not expressed to contain a power to restrict the publication of evidence and the contents of documents. That it did not threw into sharp relief the outer limits of a power to order a private hearing. Those outer limits were explored by Lockhart J who was in agreement with the majority, Beaumont and Lockhart JJ on this aspect of the case:
“… The essence of a private hearing before the Commission is that what takes place is in private and, therefore, by definition and of necessity not open or accessible to the public.
The power of the Commission to maintain the privacy of the evidence is a necessary element in the private hearing itself. Alternatively, it may be regarded as a power which is incidental to or consequential upon the express power of the Commission to hold a hearing in private … The hearing which must be implied is a power to take all reasonable steps to ensure that the hearing takes place privately.”[74]
The implication of powers beyond that, his Honour considered, was doubtful. Relying on John Fairfax & Sons Ltd v Police Tribunal of New South Wales,[75] he said:
“ There are, however, limitations upon this power. It is doubtful if it can extend to giving directions to persons who are not before the Commission, whether as witnesses, representatives or otherwise …”[76]
[74] (1989) 24 FCR 217 at 221
[75] (1986) 5 NSWLR 465
[76] (1989) 24 FCR 217 at 221
Beaumont and Einfeld JJ expanded the notion a little and focused on the orders necessary to secure the private nature of the hearing. As they expressed it:
“… in order to conduct a hearing properly, it is necessary that the Commission have the power to prohibit, at least during the hearing itself, the disclosure of information obtained at the hearing. Publication of that material before the conclusion of the hearing could prejudice the effective conduct of the hearing. It follows, in our opinion, that it is proper to imply in the Act a power in the Commission to prevent or restrict the premature publication of evidence given at the hearing; or to put the matter positively rather than negatively, the Commission had the power, by necessary implication, to take all reasonable steps which were necessary to secure a ‘private’, rather than a ‘public’, hearing. The question then arises whether, in the present circumstances, the non-disclosure order was a reasonable step, viewed objectively, taken with a view to secure the privacy or secrecy of the hearing.”[77]
They also imposed limitations upon the exercise of the implied power in temporal terms:
“… It was appropriate to limit the order to persons present and to evidence given at the hearing. … It is one thing to secure the secrecy of the hearing by prohibiting disclosure during the currency of the hearing, or, perhaps, within a reasonable time after it has concluded. … It is a very different thing … to seek to prohibit disclosure indefinitely, or at least unless and until an order of discharge, if any, is made. For all practical purposes, the order would have operated as a permanent restraint upon future publication. Put differently, the order, in our view, travelled beyond the period in respect of which the Commission’s implied power to prohibit disclosure could reasonably operate …”[78]
[77] (1989) 24 FCR 217 at 232-233
[78] (1989) 24 FCR 217 at 233
Apart from the SIS Act with which we are concerned, Parliament has chosen other occasions on which to provide that a hearing will be in private. One is found in s. 429 of the Migration Act 1958 when it provides that “The hearing of an application for review by the [Refugee Review] Tribunal must be in private.” This was considered by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW.[79] Moore J interpreted the notion of a private hearing to be “… one where members of the public could not attend. No greater limitation on how the hearing was to be conducted was suggested by the word ‘private’.”[80] In appropriate circumstances, a hearing retained the quality of a private hearing even if the Refugee Review Tribunal (“RRT”) heard an application concurrently with one or more other applications. It could also retain that quality if a person other than the applicants and the witnesses were permitted to attend the hearing. Weinberg J, agreeing with Moore J, noted a hearing restricted to particular persons was not in any sense open to the public.[81] Moore J made some observations regarding those who could be thought to have some connection with the case and so not be regarded as members of the public. In some circumstances, those persons may include a close personal friend or relative who are able to offer emotional support. The position of a person who has given evidence in support of one party or another again depends on the circumstances but it is feasible that:
“… a person giving evidence intended to be generally supportive of the applicant’s case … could be present during some or all of the hearing without violating the requirement that the hearing be ‘in private’. Indeed, it is likely that in many cases it would be to the advantage of an applicant for the person giving evidence in support of the applicant’s case to hear evidence from people in the same position.”[82]
[79] [2005] FCAFC 154
[80] [2005] FCAFC 154 at [14]
[81] [2005] FCAFC 154 at [13]
[82] [2005] FCAFC 154 at [18]
The Full Court of the Federal Court did not have to concern itself with the question of whether evidence or information received by the RRT could restrict publication outside the hearing. Consequently, it had no need to consider s. 440 of the Migration Act empowering the RRT to direct that evidence, information or the contents of documents not be published or disclosed if it considers it in the public interest not to do so.
Another example of a statutory requirement that a hearing be held in private is found in the Taxation Administration Act 1953 (“TA Act”). If an applicant for review of a reviewable objection decision in the Tribunal requests that the hearing be held in private, the Tribunal must hold it in private. This is provided in s. 14ZZE of the TA Act, which begins by stating that “Despite section 35 of the AAT Act, the hearing of a proceeding … is to be in private.” In considering this section, Emmett J in Brown v Federal Commissioner of Taxation[83] read the reference to a “private hearing” in s. 14ZZE of the TA Act as meaning nothing more than the similar words contained in s. 35(2)(a) of the AAT Act.[84] It did not extend to the matters in ss. 35(2)(aa), (b) and (c) of the AAT Act, which are distinct and separate matters from the matter of the privacy of the hearing.[85] In his Honour’s view:
“… it would be a most unusual case where the Tribunal, if asked, did not give directions that are contemplated by s 35(2) in a proceeding to which s. 14ZEE applies. The tribunal is empowered to give such directions for any reason, where it is satisfied that it is desirable to do so. Where a party exercised the right, under s 14ZZE, to have a hearing in private, that would be a very cogent reason for the tribunal to make an order under s 35(2)(b).”[86]
[83] [2001] FCA 276; (2001) 47 ATR 143
[84] [2001] FCA 276; (2001) 47 ATR 143 at [8]; 145
[85] [2001] FCA 276; (2001) 47 ATR 143 at [9]; 145
[86] [2001] FCA 276; (2001) 47 ATR 143 at [10]; 145-146
A matter that might be relevant to the Tribunal’s consideration, but which Emmett J did not need to turn to, is found in s. 14ZZK(2D) of the TA Act. It provides that, if a hearing of a proceeding for the review of a decision is not conducted in public and a notice of appeal has not been lodged in the Federal Court “…the Tribunal must ensure, as far as practicable, that its reasons for decision are framed so as not to be likely to enable the identification of the person who applied for the review.”
Section 58C(2)(a)(i) to (iv) of the Freedom of Information Act 1982 (“FOI Act”) provides that the Tribunal must “hold in private the hearing of any part of the proceeding during which evidence or information is given, or a document is produced to the Tribunal by … an agency or an officer of an agency … or during which a submission is made … in relation to the claim … in the case of a document in respect of which there is in force a certificate under … section 34 … that the document is an exempt document.” To enable it to ensure the privacy of the hearing, s. 58C(3) may direct those who may be present at the hearing and shall give directions prohibiting the publication of any evidence or information given to the Tribunal and the contents of any document lodged with or submission made to the Tribunal at any such private hearing.
The two provisions were considered by the Full Court of the Federal Court in Department of Industrial Relations v Forrest.[87] Northrop J said that, in providing that the Tribunal “may” direct those who may be present, Parliament imposed a duty on it to exercise that power to give effect to the mandatory provisions of s. 58C(2).[88] It was already clear from the terms of s. 58C(3) that the Tribunal was required to exercise the powers it conferred and so there was no need to comment upon it.
[87] (1989) 11 AAR 256; 91 ALR 417
[88] (1989) 11 AAR 256; 91 ALR 417 at 259-260 ;425
How has the Tribunal seen the implications of a private hearing?
Our attention was drawn to several cases in which the Tribunal has considered the consequences of its being required to conduct a private hearing. In AAT Case 11,668,[89] an application made under the Industry Research and Development Act 1986 was heard in private as required by s. 39T(4) of that legislation. The Tribunal said:
“… The subsection makes no mention of the procedure to be adopted in publishing reasons for a decision. The purpose of a private hearing, however, would be defeated by a public relation of all the identifying details in a decision. These reasons are cast therefore in such a way as to preserve the confidential identity of the applicant. …”[90]
[89] (1997) 35 ATR 1039
[90] (1997) 35 ATR 1039 at 1040
Earlier, in Re Superannuation Appeals N91/439-442,[91] which is reported also as Re X and Insurance Superannuation Commissioner,[92] the Tribunal considered s. 16(9) of the Occupational Standards Act 1987. That section required the Tribunal to hold the hearing of a proceeding relating to a reviewable decision in private. It might direct those who might be present and give directions of a kind referred to in ss. 35(2)(b) and (c). The Tribunal considered that the section had not modified s. 35 of the AAT Act but repealed it for the purposes of the review of the particular class of reviewable decisions concerned. It concluded that “… It would frustrate the privacy of a hearing if the result were published so as to disclose the identity of the applicant. …”[93] This conclusion was adopted later that year in Re VYB and Insurance Superannuation Commissioner[94] when it gave its reasons in a form intended to preserve the privacy of the applicant and of the superannuation scheme of which he was formerly a member. In carrying out that intention, it referred to the applicant by a pseudonym.
[91] (1992) 15 AAR 539
[92] (1992) 27 ALD 343
[93] (1992) 15 AAR 539 at 540
[94] (1992) 24 ATR 1199 at 1201
What of pseudonym or suppression orders?
To some extent, we have already referred to cases concerned with pseudonyms above including Applicant X v Australian Prudential Regulation Authority in the Federal Court and various cases in the Tribunal. We refer also to Guglielmin v Trescowthick (No 3),[95] in which Mansfield J said:
“[55] The decision in Parish makes it clear that what must be done in a situation such as the present is to balance the competing public interests of open justice and the desire to avoid prejudice: see for example Bowen CJ at 234; see also Hill J in SRD v Australian Securities Commission (1994) 123 ALR 730 at 734.
[56] Embarrassment or damage to a reputation is not enough for a party’s name to be suppressed, as was pointed out by Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142:
‘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: see, eg, David Syme & Co Ltd v General Motors-Holden’s Ltd (at 307); Raybos Australia Pty Ltd v Jones (at 58); R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 at 235; R v Bromfield, Malcolm CJ (at 22); Rockett v Smith, per Derrington J (at 7). 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.’”[96]
[95] [2005] FCA 139; (2005) 220 ALR 535
[96] [2005] FCA 139; (2005) 220 ALR 535 at [55]-[56]; 548
The question of pseudonyms was also addressed by the New South Wales Court of Appeal in John Fairfax Group Ltd (receivers and managers appointed) v The Local Court of New South Wales.[97] Mahoney JA, with whom Hope AJA concurred, referred to authorities in which a pseudonym order had been made to protect the identity of an informer, in relation to blackmail and in relation to national security. The case confronting the Court of Appeal concerned an extortion claim. There was no authority granting a pseudonym order in such a case but Mahoney JA accepted that revealing names of victims in all such cases may cause both damage to them and mischief to the public. Concealment of their identities by pseudonym orders might avoid both.[98] The test to be applied was whether it is “really necessary to secure the proper administration of justice in the proceedings”.[99] Mahoney JA went on to consider what is meant by “necessary to secure the proper administration of justice”:
“… The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceedings will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be — or at least will be assumed to be — that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: …
It follows from this that pseudonym orders may be seen to be ‘really necessary to secure the proper administration of justice’ in extortion cases of the present kind, if such an order is not made, results of this kind will follow or may be assumed to follow.”[100]
[97] (1991) 26 NSWLR 131; 26 ALD 471
[98] (1991) 26 NSWLR 131; 26 ALD 471 at 160; 488
[99] (1991) 26 NSWLR 131; 26 ALD 471 at 161; 489 from John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476.
[100] (1991) 26 NSWLR 131; 26 ALD 471 at 161; 489
The relevance of prior publication
This was a matter touched upon by Heerey and Weinberg JJ in Minister for Immigration and Multicultural and Indigenous Affairs v X. Before the Migration Review Tribunal, the primary judge in the Federal Court and the Full Court, X had not made an application to restrict publication of his name. The judgment of the primary judge had appeared on the databases of AusLII and of the Federal Court as well as in a summary of the law in the Victorian Law Institute Journal. X’s name was used in a Press Release issued by Rights Australia Inc and later in some newspaper reports online and in print. Of this, Heerey and Weinberg JJ said:
“There has already been substantial publication of the respondent’s identity. In some situations the fact that information has passed into the public domain would inevitably lead to the refusal of an order prohibiting publication: see eg Attorney-General for the United Kingdom v Heineman Publishing Australia Pty Ltd (1987) 8 NSWLR 341 at 368-369, 374. A court will not usually make orders which are, and are seen to be, futile. However, information as to the respondent’s HIV status is not like a commercially sensitive fact which, once published, loses the value which confidentiality confers. Here each further publication can inflict a new wound.”[101]
[101] [2005] FCAFC 217 at 23
What of the media in being given access to court proceedings?
In Victoria, Cummins J has summarised the principles to be taken into account in deciding whether to prohibit the media from publishing, in printed or electronic form, certain evidence given in a criminal trial.[102] The test to be applied is whether there is a real risk of serious interference with the administration of justice. Some of the principles that were relevant to the application of the test were:
·The court has power to protect its own processes, primarily that of a fair trial and to ensure that accused persons are given a fair trial and that they are seen to be given a fair trial;[103] and
·The court will not interfere with matters of legitimate public concern or legitimate public discussion and the court will not stifle public discussion and will not muzzle the media in the fulfilment of that public discussion, subject to the avoidance of the risk of serious interference with the administration of justice.[104]
[102] Director of Public Prosecutions v Williams (2004) 10 VR 348 at 349-350; [5] and [14]
[103] (2004) 10 VR 348 at 352; [18]
[104] (2004) 10 VR 348 at 352; [19]
The Tribunal’s previous interpretation of its powers under s. 35
The powers conferred on the Tribunal by s. 35(2) as it was then enacted were considered in its early days. In Re Pochi and Minister for Immigration and Ethnic Affairs[105] Brennan J 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.”[106]
[105] (1979) 2 ALD 33; 26 ALR 247
[106] (1979) 2 ALD 33; 26 ALR 247 at 54; 270
Brennan J also said:
“… the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant – they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A Court may be constrained to violate that confidentiality in order to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must be a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that the publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described in s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove these impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases – that is to say, where the ‘principle that it is desirable that hearings of proceedings before the Tribunal should be held in public’ cannot be applied. Some of these exceptional cases are statutorily defined: see the Insurance Act 1973 s 63(14).”[107]
[107] (1979) 2 ALD 33; 26 ALR 247 at 55-56; 272-3
The reasons for decision given in Re Kanina Banner and Minister for Health and Ageing set out some examples of cases in which the Tribunal has made directions under s. 35(2):
“… 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 access to a 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 (1999) 58 ALD 581 at 590 and Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407 at 414. Re Nolan also took into account that disclosure would be contrary to the public interest in the effective administration of the prison system (9 ALD at 414).
25. 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 (s. 36(4)) to be ‘… made aware of all relevant matters’ 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 fair hearing 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 …’(page 273)”[108]
[108] (2002) 66 ALD 663 at [24]-[25]
Another example occurs in the case of Re Y and Commissioner for Superannuation.[109] The Tribunal was satisfied that revelation of the applicant’s problems before his employment with the Commonwealth were such that revelation of them would have a catastrophic effect on his life. Its conclusion led to its deciding to restrict publication of the evidence and documents as well as its reasons to certain persons. It also directed that the applicant be known as “Y” when making any publication permitted by its order.
[109] (1982) 4 ALD 499
What of the confidentiality order relating to VBW?
In view of the authorities to which we have referred, we have concluded that the requirement of s. 344(11) of the SIS Act that the hearing of a proceeding relating to a reviewable decision does no more than require the Tribunal to do just that. It must exclude the public from any such hearing. As a necessary corollary of that power, s. 344(11)(a) gives the Tribunal power to direct those persons who may be present. That power must be exercised bearing in mind the directive that the hearing must be in private and so exclude the public. Acceding to Nationwide’s request to permit a journalist to observe the proceedings would be an inappropriate use of the power. Nationwide represents one of the range of public interests in the community and is a means through which the public may gain some insight into matters heard in the Tribunal. It has, however, no role to play in the proceedings and no connection with either of the parties. In enacting s. 344(11), Parliament has modified the operation of s. 35 by removing the requirement that hearings be held in public. It has decided that privacy outweighs notions of public access in proceedings relating to a reviewable decision under the SIS Act. Consequently, to permit it to attend the hearing in such circumstances would be inconsistent with the requirement that the hearing be heard in private.
Nationwide has also asked that we remove the confidentiality orders relating to VBW’s name. It is apparent from the authorities to which we have referred above that the requirement that the hearing be held in private does not lead to any requirement that access to the evidence or material given at the hearing be kept private.
In considering that matter, we will have considerable regard to the law and the practice and procedure of the courts regulating the manner in which they uphold, protect and fulfil their functions. That follows from the fact that the Tribunal is based on the judicial model. The principles upon which the law and practice and procedure in the courts are based have been developed and tested over many years and in many contexts. It is apparent from the structure of s. 35 of the AAT Act that it has its roots in those principles.
Just what are those principles? We have set them out at length above. It is apparent from each of the authorities to which we have referred under the various headings that the principle that hearings should be held in public is balanced against what is necessary to secure the proper administration of justice in the proceedings in a particular case. The requirement that cases be heard in public is directed towards ensuring that proceedings are fully exposed to public and professional scrutiny and criticism. Openness assists in ensuring that they are conducted without arbitrariness and the outcome is similarly without arbitrariness and uninfluenced by matters that have not been openly tested. At a more general level, openness tends to maintain confidence in the integrity and independence of the decision-making process be it of the courts or of the Tribunal. The proper administration of justice in a particular case requires that it be conducted fairly and not only that all relevant material can be given to the decision-maker for consideration but that the proceedings are conducted so that it is given. It also requires that the outcome of the proceedings is not rendered nugatory. Just where the balance lies between the two principles in any particular case will include a consideration of whether the proper administration of justice can be secured in any way other than by impinging on the openness of the hearing process. It is apparent from the cases to which we have referred that it is not appropriate to adopt what might be described as a “formulaic” approach. While there have, for example, been cases in which the courts have traditionally suppressed information from the public, it is no longer possible to see those cases as the only circumstances in which it is appropriate to make such an order. The pseudonym cases provide an illustration. Traditionally, cases concerned with blackmail, informers and national security have led to pseudonym orders. The damage that can be done by the release of an informer’s name or of a blackmail attempt is accepted. More recent cases have shown that pseudonym orders have been made in cases relating to extortion[110] and beyond.[111] They have determined that the damage that is likely to be done by revealing the information outweighed the principle of open justice.
[110] John Fairfax Group Ltd (receivers and managers appointed) v The Local Court of New South Wales
[111] Examples include an anti-discrimination action brought against a school, which would not be able to recover from the adverse publicity even if it were ultimately successful in defending the action (A School v Human Rights and Equal Opportunity Commission (1998) 51 ALD 102) and a claim by a person that he was a refugee in circumstances in which the claim was not plainly untenable and he feared persecution as a result of making the application (A v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 327)
The principle that the Tribunal conduct its hearings in public is a fundamental principle enshrined in s. 35(1) but, equally, s. 35(2) recognises that there are occasions and reasons when not all that happens in the Tribunal should be subject to public scrutiny. Section 35(2) does not try to suggest any boundaries on the occasions on which Brennan J said that the power is “… there to be exercised, albeit sparingly …”[112] just as it is in the courts.
[112] Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247 at 54; 270
It is apparent that the context in which s. 35 operates is a little different from that in which the principles were developed in the courts. That may mean that the Tribunal will, at times, be concerned with matters of public policy that may not have the same emphasis in the courts. It may mean that the Tribunal is concerned with different factual situations from those facing the courts. As is clear from s. 35, though, it is clear that the principles apply equally in the Tribunal as to the courts.
There is a question whether s. 35 permits the Tribunal to make a pseudonym order in relation to the names of the parties. Section 35(2)(aa) specifically provides that the Tribunal may prohibit or restrict the publication of the names and addresses of witnesses appearing before the Tribunal but makes no reference to the names of parties. We do not think that this omission means that it may not make such an order in relation to the names of parties. At or about the time that s. 35(2)(aa) was inserted in the AAT Act, there was some doubt whether publication of the names and addresses of witnesses could be restricted. That debate does not appear from cl. 22 of the Explanatory Memorandum to the Law and Justice Legislation Amendment Bill (No 3) 1994 introducing the amendment but from cases decided at or about that time. One view was represented by the judgement of the Full Court of the Supreme Court of Queensland given in R v Stipendiary Magistrate at Southport ex parte Gibson.[113] The Full Court held that the name of a witness must be disclosed to the defence at a trial. The other is represented by the judgment of Brooking J of the Supreme Court of Victoria in Jarvie v Magistrates’ Court of Victoria.[114] His Honour found that the Court had a discretion to grant anonymity in respect of undercover police officers called to give evidence. He held that the considerations that had led to the protection of informers should lead also to their protection. There was a public interest also in a defendant’s eliciting or establishing facts and that was an aspect of the wider public interest in defendants’ having a fair trial. The public interests had to be weighed in any case but, if there was good reason to think that disclosure might be of substantial assistance to a defendant, the identity of a witness could not be withheld from a defendant. For the Tribunal at least, the enactment of s. 35(2)(aa) made its power clear at a time when witness statements were not always required and it might be the case that the name and address of a witness did not appear in any document lodged in the Tribunal
[113] [1993] 2 Qd R 687
[114] [1995] 1 VR 84
Returning to the suppression of the name of the applicant, we consider that the power to do so lies in s. 35(2)(b). That is a power that enables the Tribunal, if it is satisfied that it is desirable to do so by reason for any reason, to prohibit or restrict publication of evidence given, or the contents of a document lodged with the Tribunal, in relation to a proceeding. The documents lodged on behalf of VBW, including his application for review,[115] all contain his name and other identifying features. So too do some of the documents lodged by APRA. Provided it is otherwise in our power to make an order suppressing his name, we consider that this provision gives us the power. The use of a pseudonym, be it in the shape of letters, numbers or an adopted name, enables us to have some means by which to identify an applicant while implementing an order that we consider otherwise desirable to make.[116]
[115] An application, for example, is lodged in accordance with s. 29(1)(d) of the AAT Act.
[116] We note that our conclusion is contrary to that reached by Senior Member Allen in Re Lawrance and CRS Australia and Others [2004] AATA 1136 at [5] when he saw “… not authority in s 35 to order that the Applicant’s name be suppressed and that she be known only by a code for example a series of letters.” While it is undesirable to foster inconsistency between the Tribunal’s decisions, it is inevitable that different views of the law will at times be reached by differently constituted Tribunals just as happens, on occasion, in the courts. It is part of the development of the law and, in due course, the issue will be decided one way or another by the Federal Court.
As to whether it is appropriate to make an order suppressing the applicant’s name in this case and to all material tending to identify him and entities in which he has an interest as well as documents filed in the matter, we have had regard to his affidavit lodged on 14 September 2005. On the basis of the material in that affidavit, we are satisfied that it is desirable to make such an order. Clearly, a disqualification order of the sort that may be made by APRA may well have an impact not only on a person’s good name but also on their ability to work in their chosen field in the future. On the material that we have, we are satisfied that the industries that are regulated by APRA are industries in which a person’s good name is an essential factor in that person’s career prospects. If there is doubt about that good name, then career prospects can be tarnished. At the beginning of the twenty first century, the commercial value of a good name in some circles equates with the commercial value of trade secrets that the courts thought appropriate to protect at the beginning of the twentieth. That is not to say that it is always so in all circles but we are satisfied that it is so in this case.
If APRA’s decision is to stand then that will raise different issues. In the meantime, its decision is under review. It may be that the decision will be affirmed, set aside or varied. That will only be known when all of the material is on the table and it is possible to see all sides of the case. VBW’s application is being heard in a hearing extending over several weeks. The evidence is being given over that period. If the evidence were to be reported over that period or to be publicly available, there is a very real chance that the evidence would not be viewed as it should: in its entirety. There is a very real chance that VBW’s reputation will be diminished by piecemeal revelation of any evidence. If that were to happen, we are satisfied that it could not be restored even if the decision were to be set aside. That would mean that the effectiveness of the review process in the Tribunal would be greatly diminished if not rendered nugatory. Even if VBW were to be successful in having APRA’s decision set aside, it would be unlikely that his position in the industry would be restored. Questions and doubts would linger in the minds of many once they have been raised in the first place. In coming to our decision, we have also borne in mind that VBW has stood aside from any activities that he may not undertake in any event as a result of APRA’s decision. That is essential given the provisions of the SIS Act and their intention to protect the public.
If the effectiveness of the Tribunal process is compromised as we find, it cannot hope to administer justice in the individual case. Given that Parliament has already moved the balance from a public to a private hearing in cases concerning reviewable decisions under the SIS Act, we are persuaded that we should maintain the confidentiality order that was made in this case. Whether we will maintain that order at the end of this case is a very different matter. Considerations that we will need to take into account at that stage will include the fact that all of the evidence will be on the table, the parties’ submissions about that evidence will be fully known and the decision will have been made. In short, the case will be able to be seen in its entirety. Also relevant will be the consideration that it is desirable that the public be able to observe the Tribunal’s processes in reviewing reviewable decisions under the SIS Act even if it cannot observe the hearings themselves. That is consistent with the inherent purpose of the SIS Act to protect the public and their investments.
In reaching our conclusion, we have taken account of the various annexures to the affidavit of Ms Jane Summerhayes. They include various references to an individual and the corporation of which that individual is a part. They are all in the public domain. To a greater or lesser extent, they may or may not relate to aspects of the case that we must consider. In some cases, public disclosure may make a difference to whether or not confidentiality should be maintained. In this, we do not think that it does. As we have said, it is a case in which we consider that revelation of the proceedings on a piecemeal basis will render nugatory the outcome, even if favourable to VBW.
Nationwide News has asked that it be given access to VBW’s affidavit lodged in support of his application for confidentiality. For the reasons that we have already given, we do not consider that we should. While we understand and appreciate the role of the media in providing one of the avenues by which the work of the Tribunal is known to the public, Parliament has not cast it in the role of the Tribunal’s supervisor. Having decided that it is inappropriate that the material we have identified be made available to the public, it is inappropriate that we qualify our order to allow a section, albeit a limited section, to have access.
For the reasons that we have given in relation to the documents that have been filed, we consider that the confidentiality of any decisions on any preliminary, or interlocutory, matters should equally be maintained. Information in such matters can be readily added to other information in the public arena and it is not appropriate that the effectiveness of the review process be jeopardised at this stage in a case such as this. Again, our decision will be reviewed at the conclusion of the hearing.
Nationwide News has asked that it be advised when the decision on the application is to be handed down. We think that is an appropriate request and that it is appropriate that it be given the opportunity to renew its application at or after that time.
For the reasons we have given, we have decided not to revoke or vary the order made by the Tribunal on 15 September 2005 and varied by it on 26 September 2005 and 25 October 2005 except in so far as is necessary to permit the publication of this decision and our reasons for it.
I certify that the sixty-nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie and
Mr B.H. Pascoe, Senior Member
Signed: ...............................................................
Nathaniel Wills Associate
Date of Directions Hearing 11 November 2005
Date of s.35 Hearing 6 December 2005
Date of Decision 22 December 2005
Counsel for the Applicant Mr M Moshinsky
Solicitor for the Applicant Allens Arthur Robinson
Counsel for the Respondent Mr S Rubenstein
Solicitor for the Respondent Australian Prudential Regulation Authority
Counsel for the Party Joined Mr R Macaw QC with Ms M Tran
Solicitor for the Party Joined Freehills
Counsel for Nationwide News Mr T Blackburn SC with Mr A LeopoldSolicitor for Nationwide News Ms J Summerhayes,
C/- Nationwide News
“The term ‘necessary’ in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker (1849)3 Ex 242 at 255-256, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Division 4 of Part 3 of the District Court Act. In this setting, the term ‘necessary’ does not have the meaning of ‘essential’; rather it is to be ‘subjected to the touchstone of reasonableness’: State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447 at 452.”
10