SYRL and Australian Securities & Investments Commission

This matter concerned an application by a party, SYRL, for a confidentiality order against the Australian Securities & Investments Commission (ASIC) before the Administrative Appeals Tribunal (AAT). SYRL sought to restrict the publication or disclosure of information that could reveal its identity or other information concerning it within the proceeding.

The central legal issue before the Tribunal was whether to grant SYRL's application for a confidentiality order, which would involve directing that the hearing or part of it take place in private, or prohibiting or restricting the publication or disclosure of information concerning SYRL. This required the Tribunal to consider the principles of openness and open justice, as enshrined in section 35 of the *Administrative Appeals Tribunal Act 1975* (AAT Act), against the reasons put forward by SYRL for confidentiality.

The Tribunal reasoned that section 35 of the AAT Act mandates that hearings are generally to be held in public, and evidence and documents should be made available to the public and parties, as this promotes public confidence in the administration of justice. While the Tribunal has the power to make confidentiality orders, it must take openness as the basis of its consideration and only depart from this principle if there are proper and cogent reasons. The Tribunal found that SYRL's submissions did not displace the paramount consideration of open justice, nor did they establish that such orders were necessary for the proper administration of justice. The Tribunal noted that embarrassing or inconvenient facts are an unavoidable consequence of open justice and that the respondent's reviewable decision, being that of a public regulator, is ordinarily published openly.

Consequently, the Tribunal was not satisfied that the relief sought by SYRL should be granted, finding that the applicant's submissions failed to establish compelling grounds to bypass the foundational principle of open justice.