Sydney Sterile Compounding Pty Limited and Minister for Health

The Administrative Appeals Tribunal (AAT) considered an application by Sydney Sterile Compounding Pty Limited (the applicant) for disclosure of documents produced by the Minister for Health (the respondent) under section 37 of the *Administrative Appeals Tribunal Act 1975* (AAT Act). The respondent sought confidentiality orders over certain documents, including those relating to Department of Immigration and Border Protection (DIBP) processes and intelligence capabilities, arguing that their disclosure would be contrary to the public interest. The applicant sought disclosure of these documents, at least to their legal representatives, contending that the respondent had not provided sufficient evidence to justify the claim for confidentiality.

The central legal issues before the Tribunal were whether the respondent had established a sufficient claim for public interest immunity to justify restricting or prohibiting the disclosure of the documents, and if so, to what extent disclosure should be permitted. The applicant argued that the Tribunal should not infer the current validity of the respondent's claim based on an outdated affidavit and that limited disclosure to legal representatives would not be inconsistent with a valid claim for restricted disclosure. The Tribunal was required to balance the principle of open justice, favouring public hearings and access to evidence for parties, against the need to protect confidential information where reasons favouring such protection exist.

The Tribunal considered the statutory provisions of the AAT Act, particularly section 35(4) which empowers the Tribunal to make orders restricting disclosure, and section 35(5) which mandates a basis of consideration that hearings and evidence should be public and available to parties. It also had regard to section 130 of the *Evidence Act*, which outlines factors to consider when determining claims for public interest immunity, including the importance of the information, the nature of the proceedings, and the potential effects of release. Drawing on case law, including *Mark Ryan v State of Victoria* and *Obeid v IPP*, the Tribunal acknowledged that information concerning law enforcement and systems that could be exploited by criminals is likely to warrant protection. The Tribunal found the affidavit of Mr Pragnell, sworn in May 2016, to be reliable regarding the practices that existed at that time.

The Tribunal granted the application for confidentiality orders, finding that the sensitivity of the information required that it not be disclosed to any other person beyond the limited disclosure already permitted.