VBN and Ors and Australian Prudential Regulation Authority and Anor
[2006] AATA 718
•18 August 2006
CATCHWORDS – PRACTICE AND PROCEDURE – confidentiality of proceedings – confidentiality orders vacated subject to condition
Administrative Appeals Tribunal Act 1975 ss 33, 35, 37 and 44
Superannuation Industry (Supervision) Act 1993 ss 120A and 344
Federal Court of Australia Act 1976 s 50
Freedom of Information Act 1982 ss 5 and 6
Insurance Act 1973 s 25A
Acts Interpretation Act 1901 s 26
Privacy Act 1988 ss 6, 10, 14 and 16
Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222
Australian Broadcasting Commission v Parish (1980) 29 ALR 228; 43 FLR 129
Australian Securities and Investments Commission v Rich [2002] NSWC 198
Johnston v Cameron (2002) 124 FCR 160; 195 ALR 300
Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217
Re an Applicant and Australian Prudential Regulation Authority and a Party Joined (2005) 89 ALD 643; [2005] AATA 1294
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696
Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 200
Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747; 41 AAR 97; 60 ATR 1013; [2005] AATA 642
Re VBN and Australian Prudential Regulation Authority and VBT [2005] AATA 1089
Re VBN and VBV and Australian Prudential Regulation Authority and VBT [2005] AATA 1060
Scott v Scott [1913] AC 417
VBN and Others and Australian Prudential Regulation Authority [2006] AATA 710
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
DECISION AND REASONS FOR DECISION [2006] AATA 718
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/686
GENERAL ADMINISTRATIVE DIVISION )
Re VBN
Applicant
AndAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
AndVBT
Party Joined
V2005/793
Re VBV
Applicant
AndAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
And VBT
Party Joined
V2005/821
Re VBW
Applicant
AndAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
AndVBT
Party Joined
V2005/906
Re VBO
Applicant
AndAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
AndVBT
Party Joined
V2005/907
Re VBP
Applicant
AndAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
AndVBT
Party Joined
V2005/908
Re VBQ
Applicant
AndAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
AndVBT
Party Joined
V2005/909
Re VBR
Applicant
AndAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent
AndVBT
Party Joined
DECISION
Tribunal: Deputy President S A Forgie
Date: 18 August 2006
Place: Melbourne
Decision:The Tribunal directs that:
1.with effect from 18 August 2006, all confidentiality orders in force up to and including 23 August 2005 are varied to the effect that they do not apply to this decision but continue to apply to the reasons for it in accordance with paragraph 2 hereof.
2.with effect from 5.00pm on Wednesday, 23 August 2006:
(1) all orders made under s 35 of the Administrative Appeals Tribunal Act 1975 in relation to all proceedings concerning all or any of the applicants and the party joined up to and including 17 August 2006 are vacated;
(2) all of the Tribunal’s reasons for its decisions together with a Legend identifying those persons previously referred to by pseudonyms are publicly available; and
(3) all documents lodged with the Tribunal and received in evidence during all of the Tribunal’s proceedings are publicly available other than information in documents lodged with the Tribunal or received in evidence by it that is:
(a) “personal information” within the meaning of the Privacy Act 1988; and
(b) irrelevant to the Tribunal’s review of the respondent’s decisions in relation to the applicants or any one of them.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 25 July 2006, Senior Member Pascoe and I gave our decision and reasons regarding applications by seven of nine former directors of a Trustee of a superannuation fund (Trustee). They sought review of decisions made by the respondent, the Australian Prudential Regulation Authority (APRA), to disqualify each of them as a director of the Trustee.[1] APRA had made its decisions on the basis that the Trustee had contravened the Superannuation Industry (Supervision) Act 1993 (SIS Act) and that the nature or seriousness of the Trustee’s contraventions provided grounds for the disqualification of each of them. It did so under s 120A(2). In relation to two of them, APRA also decided that two of them were not fit and proper persons to be responsible officers of a body corporate that is a trustee and disqualified them under s 120A(3). We set aside the decisions after finding that the Trustee had not contravened the SIS Act and that we were not satisfied that two of them were not fit and proper persons to be responsible officers of a body corporate that is a trustee. The effect of our setting aside all of APRA’s decisions is that none of the applicants is a disqualified person within the meaning of the SIS Act.
[1] [2006] AATA 710
At various times during the preliminary stages of the applications and during the applicant’s earlier applications seeking stay orders under s 41 in respect of APRA’s reviewable decisions before it reconsidered them, the applicants asked the Tribunal to make confidentiality orders under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act). Various orders were made with various degrees of limitation on publication but, for all practical purposes, suppressed the publication of the name of the applicants, any material identifying them and entities in which they had an interest, all affidavits, submissions and other documents filed in the Tribunal and any orders, directions or decisions of the Tribunal. They also ordered that each of the applicants be known by a pseudonym.[2]
[2] Confidentiality orders in relation to proceedings regarding APRA’s reviewable decisions as made initially and as affirmed were made or varied on 4 August 2005 (VBN), 5 August 2005 (VBO), 12 August 2005 (VBP and VBR), 7 September 2005 (VBV), 14 September 2005 (VBV), 15 September 2005 (VBW), 26 September 2005 (VBW), 4 October 2005 (VBV), 13 October 2005 (VBO, VBP, VBQ and VBR), 25 October 2005 (VBQ, VBV and VBW), 2 November 2005 (all applicants) and 25 November 2005 (VBN)
The orders have had the effect of suppressing the publication of reasons for my decisions regarding various applications leading to the hearing of the substantive applications in these matters. They are Re VBN and VBV and Australian Prudential Regulation Authority and VBT[3] dated 21 October 2005 relating to the documents lodged under s 37 of the AAT Act,[4] Re VBN and Australian Prudential Regulation Authority and VBT[5] dated 2 November 2005 and relating to the stay of operation of APRA’s affirmation of its disqualification decision. The orders also led to my reasons in Re VBJ and Australian Prudential Regulation Authority[6] being given in a redacted form as were the reasons given by Senior Member Pascoe and myself for a decision regarding an application made by Nationwide News Pty Ltd (Nationwide) in relation to the application lodged by VBW.[7] Nationwide had asked that the order made on VBW’s application be varied to remove the suppression of his name and of material identifying him or entities in which he had an interest. It did not seek a variation of the order in so far as it ordered that the evidence and names of witnesses be confidential. At the conclusion of our reasons for refusing Nationwide’s application in that case, we said that our decision would be reviewed at the conclusion of the hearing. This statement was consistent with earlier statements that I had made at various times in relation to each of the other confidentiality orders that I had made.
[3] [2005] AATA 1060
[4] An appeal to the Federal Court from this decision is reported as [2005] FCA 1868
[5] [2005] AATA 1089
[6] (2005) 87 ALD 747; 41 AAR 97; 60 ATR 1013; [2005] AATA 642
[7] Reported as Re an Applicant and Australian Prudential Regulation Authority and a Party Joined (2005) 89 ALD 643; [2005] AATA 1294
In essence, I have decided that, with one exception and with effect from 5.00pm on 23 August 2006, all confidentiality orders are vacated. The one exception relates to information that is contained in the documents lodged or evidence received in the Tribunal and that is “personal information” within the meaning of the Privacy Act 1988 (Privacy Act) but is irrelevant to the Tribunal’s review of the respondent’s decisions in relation to the applicants or any one of them.
LEGISLATIVE FRAMEWORK
Relevant provision of the SIS Act
Section 344(11) of the SIS Act relates to the hearing in the Tribunal:
“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.”
Directions of a kind referred to in ss 35(2)(b) and (c) of the AAT Act
Section 344(11)(b) specifically refers to directions of a kind referred to in ss 35(2)(b) or (c).Those sections provide:
Sections 35(2)(a) and (b) of the AAT Act provide that:
“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:
(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.”
The application of ss 35(2)(a) and (aa) is not preserved.The omission of s 35(2)(a) is understandable as it gives the Tribunal power to direct that a hearing, or part of it, shall take place in private and to give directions as to those who may be present. The Tribunal’s discretion in that regard is removed by the provision in s 344(11) of the SIS Act that the hearing of a proceeding is to take place in private. Section 344(11)(a) picks up the remainder of s 35(2)(a) by giving the Tribunal power to give directions as to the persons who may be present. Section 35(2)(aa) may be a different matter. It provides that directions may be made prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal. I will return to this below.
In considering whether to use its power, the Tribunal must have regard to the provisions of s 35(3). It provides:
“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.”
THE SUBMISSIONS
Confidentiality orders
On behalf of APRA, Ms Mortimer SC with Mr Hibble and Mr Rubenstein submitted that all of the confidentiality orders in force should be discharged and that the Tribunal’s most recent decision should be published immediately with the names of the applicants and other parties in the text.
Mr Santamaria QC submitted that the confidentiality orders relating to VBN should subsist until 29 August but that thereafter, there would be no confidentiality at all. If made, the order should, unless otherwise ordered by the Federal Court, prohibit publication of the decision and reasons for decision until on or after 29 August 2006. By that time, the period within which APRA might lodge an appeal to the Federal Court as provided for in s 44 of the AAT Act would have expired. Should APRA lodge an appeal, the applicants would have seven days within which they might choose to apply to the Federal Court for a confidentiality order pending the resolution of the appeal. He was supported in his application by Mr Sackar QC on behalf of VBV and VBW.
Mr Murdoch QC with Mr Senathirajah of counsel indicated that VBQ has no interest in the outcome of the proceedings either way. On behalf of VBO, VBP and VBR, Mr Murdoch submitted that all documents and all reasons for decisions remain confidential with their publication confined to the parties to the proceedings. Should his primary submission not be accepted, he asked that the decisions and reasons for decision be published employing pseudonyms and without any Legend identifying VBO, VBP or VBR. He also asked that all documents filed in the proceedings remain confidential.
At the foundation of Mr Murdoch’s submissions was Parliament’s decision that the hearing of a reviewable decision is to take place in private. It had done so in recognition of the risks that would arise if those proceedings did not take place in private. “What is the point”, he said:
“… of Parliament making provision for the hearing to be private for – in order that a party not be harmed, in the event that he is to be relieved of any disqualification by a regulatory authority, only to be later identified as a person who was the subject of inquiry in relation to particular matters and to be, perhaps, met with the proposition, ‘Yes, allegations were made against you. All that happened is that the person who made the allegations wasn’t able to sustain them on the balance of probabilities or no some broader test.’
But … [they are] still seen as person about whom complaints were made. And the mere fact that a Tribunal vindicates them by finding that the charges against them were not to be substantiated still doesn’t help in our community where there very much is the attitude of where there is smoke there is fire. …”[8]
[8] Transcript at 33
The Tribunal had previously made orders under s 35 and nothing had changed in the meantime. While it was now no longer a case of material being disclosed on a piecemeal basis, why should the applicants’ reputations be at risk? How would the administration of justice be preserved? Anonymity could still be preserved even if the reasons for the decision were published. It might be useful to some applicants to have their names disclosed so that they could speak to the facts and vindicate themselves in the circles in which they move but disclosure was of no assistance to applicants such as VBO, VBP and VBR. They do not have the positions of power and authority to protect themselves that others might have should the media deal with the issues in a way that brings their names into question. VBO, VBP and VBR were people who ought not to have been the subject of a disqualification decision in the first place and APRA ought not now be heard to be seeking orders that might have a detrimental effect on their lives.
In view of the different positions taken by its former directors, Mr Collinson SC advised, the Trustee remained neutral. On another issue, Mr Collinson referred to information which is to be found in the documents lodged under s 37 of the AAT Act (T documents) and which was admitted as exhibits, that relates to the private affairs of persons having nothing to do with the issues in this matter. That information relates, for example, to the superannuation entitlements of individuals discussed at Board meetings of the directors of the Trustee and recorded in the minutes of those meetings. It should not be in the public domain, he submitted and was supported in this by counsel for the other applicants.
CONSIDERATION
The Tribunal’s reasons for its decisions
In the reasons for decisions published as Re VBJ and Australian Prudential Regulation Authority and Re an Applicant and Australian Prudential Regulation Authority and a Party Joined, I set out at some length the principles as I understand them. I adopt my reasons for them but, without repeating the principles at length, at their foundation in this case lie the following propositions:
Section 35
s 35(2) of the AAT Act distinguishes between the hearing and other aspects of a proceeding such as the evidence or the names of any witnesses;
the hearing is to be in public and the Tribunal must try to ensure the preservation of the public nature of that hearing even when it permits a person to attend otherwise than in person;[9]
[9] AAT Act, ss 35(1A) and 35A
a “private hearing” means no more than that the public is excluded from the hearing; it does not of itself render confidential what has passed at the hearing;[10]
[10] (2005) 89 ALD 643 at 665-659 and 663
if what has passed is to be rendered confidential, an order must be made under s 35(2) of the AAT Act;[11]
[11] (2005) 89 ALD 643 at 663
in making an order under s 35(2), the Tribunal must have regard to those matters in s 35(3);
the matters in s 35(3) require the Tribunal to have regard to:
(a)the desirability of:
(i)hearings of proceedings before the Tribunal being held in public; and
(ii)making available to the public and all parties, evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal; and
(b)reasons given as to 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.
Section 344(11)
s 344(11) removes the Tribunal’s discretion as to whether a hearing shall be in public or private by requiring that it be in private;
it leaves intact the Tribunal’s discretion regarding two other aspects of its power in s 35(2): that in ss 35(2)(b) and (c);
that power may be used to ensure that the hearing is private and not public;[12]
restriction on publication during the course of a private hearing does not lead automatically to the conclusion that it should be restricted for all time;[13]
the omission of any reference in s 344(11) to s 35(2)(aa) relating to the prohibition or restriction of the names and addresses of witnesses appearing before the Tribunal does not affect its power to make orders to that effect at least in relation to the names of the parties;[14]
in making an order under s 35(2)(b) or (c), the Tribunal must have regard to the matters in s 35(3) and to the directive in s 344(11) of the SIS Act that the hearing must be in private;[15]
the fact that there has already been substantial publication of a party’s identity is relevant in deciding whether an order prohibiting disclosure would be futile but not determinative of that issue.[16]
[12] (2005) 89 ALD 643 at 656-657
[13] (2005) 89 ALD 643 at 656-657
[14] (2005) 89 ALD 643 at 665-666
[15] (2005) 89 ALD 643 at 663
[16] (2005) 89 ALD 643 at 661
Although the passages were set out in the previous published reasons, I will repeat two passages from the reasons of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs.[17]He said in relation to 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.”[18]
The concept in this passage is inherent in s 35(1) of the AAT Act. Brennan J went on to consider the application of s 35(2). It is the operation of two important paragraphs of that provision that are preserved by s 344(11)(b) of the SIS Act. Brennan J 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 conduct its proceedings in public; but the Tribunal’s powers are intended 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 those 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).”[19]
[17] (1979) 26 ALR 247 at 270; 2 ALD 33
[18] (1979) 26 ALR 247; 2 ALD 33 at 270, 54
[19] (1979) 26 ALR 247; 2 ALD 33 at 272-3, 55-6
Both passages have a strong emphasis on the importance of a public hearing but the final sentences acknowledge that a public hearing is not appropriate in some circumstances either because of legislative stricture or otherwise. Brennan J does not say in such cases that the power under s 35(2) should be used to ensure that information received at that hearing is never made public. Instead, he says that “the power is conferred in order to do justice … where the ‘principle that it is desirable that hearings of proceedings before the Tribunal should be held in public’ cannot be applied”[20] (emphasis added).
[20] (1979) 26 ALR 247; 2 ALD 33 at 273, 56. I note that when Parliament enacted the Freedom of Information Act 1982 some three years after Brennan J’s decision, it chose not to limit its application to administrative matters as it did in the case of the courts (s 5) and certain tribunals listed in Schedule 1 (s 6).
When Parliament enacted the SIS Act in 1993, Re Pochi had been decided long before and Scott v Scott[21] at an even earlier time. In Scott v Scott, the petitioner for a declaration of nullity on the grounds of non-consummation of the marriage heard in camera obtained and sent a copy of the transcript of the proceedings to her husband’s family. Her conviction for contempt was overturned when the House of Lords decided 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. Knowing of statements to this effect, Parliament still chose to give the Tribunal power to make an order under ss 35(2)(b) or (c) rather than directing, for example, that documents lodged in the Tribunal and evidence received by it, together with the identity of all parties and witnesses, remain confidential. It recognised the distinction between the public nature of the hearing and the availability of the evidence and matter just as it had when it passed the AAT Act with s 35 in its original form. It has been amended since then but the distinction remains. One does not determine the other.
[21] [1913] AC 417
That means that I must consider the matter in light of the principles in s 35(3)(b). The fact that s 344(11) of the SIS Act requires the hearing to be in private is one of the reasons to be taken into account as to why publication or disclosure of the evidence or matter should be prohibited or restricted. Others were incorporated in the submissions made on behalf of the applicants and referred to in their previous affidavits. “Due regard” must be paid to those reasons while bearing in mind that s 35(3) requires me to take as the basis of my consideration the principle that it is desirable that the contents of documents lodged or received in evidence should be made available to the public.
The positions of VBO, VBP and VBR have given me most cause for concern in this matter. In effect, Mr Murdoch described his clients as persons with little position or power in public life and so without the means to protect themselves should the media deal with the issues in a way that brings their names into question. I accept that this may well be so but there are other factors that must also be taken into account. One is that, like the other applicants, they were directors of the Trustee. Section 89(1) of the SIS Act required equal number of employer representatives and member representatives. The definitions in s 10(1) prescribed how they were to be appointed. Differences in their appointment, however, do not indicate that there are any differences under the SIS Act in relation to their responsibilities as directors of the Trustee. There is nothing else in the SIS Act that suggests that. The paths of VBO, VBP and VBR might not have crossed paths with the likes of VBN, VBV or VBW in other aspects of their professional lives but, in the boardroom of the Trustee, they were equal. They were equals with equal responsibilities to perform their duties under the SIS Act and with equal responsibilities for the actions of the Trustee while they were directors. Their actions have been subject to equal scrutiny by APRA and by the Tribunal.
As it turned out, the Tribunal’s conclusions regarding the Trustee’s actions meant that it did not have to look at the actions of VBO, VBP, VBQ or VBR as APRA had not made a decision that they were not fit and proper persons within the meaning of s 120A(3). Mr Murdoch submitted that exoneration of his clients provided a cogent additional ground for the maintenance of the confidentiality orders. I do not accept that it does. Exoneration or otherwise is not at the heart of the principle set out in s 35(3) requiring me to take as the basis of my consideration the principle that it is desirable that the contents of documents lodged or received in evidence should be made available to the public. What is at the heart of it is the need to ensure that public confidence in the proceedings is maintained. Exposure to public scrutiny is calculated to enhance greater public confidence in the administrative process. Clearly, I have taken the words of Brennan J that he used in relation to public hearings. They are no less apposite to the contents of documents lodged or received in evidence in a Tribunal based on the judicial model.[22] The public needs to have confidence in the Tribunal’s independence and fairness in carrying out its functions. In order to do so must be able to scrutinise the Tribunal’s processes that lead to its reaching its decision. The evidence given to the Tribunal or the documents lodged with it are part of those processes.
[22] 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
The orders that were made and maintained on previous occasions incidentally preserved the private nature of the hearing. In making them regard was had to the piecemeal public revelation of evidence that might occur over the period of a lengthy hearing if the orders were not made. Piecemeal disclosure meant that there was a very real chance that VBW’s reputation would have been greatly diminished and the effectiveness of the review process diminished.[23] The same was equally true of the other applicants who were not under consideration in the application leading to our decision in Re an Applicant and Australian Prudential Regulation Authority and a Party Joined.
[23] (2005) 89 ALD 643 at 666
As we said in Re an Applicant and Australian Prudential Regulation Authority and a Party Joined, revelation during the hearing and revelation after our decision is made and our reasons given is a different matter. We must, as in the earlier stages of the proceedings, have regard to the provisions of the SIS Act and their intention to protect the public. The public has been excluded from the hearing process but consideration needs to be given to its being able to observe that the Tribunal’s processes in reviewing a decision that has been made as part of a scheme intended to afford some protection of the public and their investments.
Permanent suppression of the applicants’ names is sought by VBO, VBP and VBR but not by VBN, VBV or VBW. This brings me to another aspect of the matter. Certainly, it may be that the Tribunal’s processes, decisions and reasons for those decisions could be disclosed without reference to the names. This, though, would be contrary to the principles that have been developed in the courts at common law and in the interpretation of related statutory provisions and that are relevant in considering the scope of the Tribunal’s discretion. I refer, for example, to those considered by the Federal Court in the context of s 50 of the Federal Court of Australia Act 1976. 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,[24] 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 … recognizes is that there are occasions where the administration 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.”[25]
[24] (1980) 29 ALR 228; 43 FLR 129
[25] (1980) 29 ALR 228; 43 FLR 129 at 253
In Re an Applicant and Australian Prudential Regulation Authority and a Party Joined, we referred to other cases that considered the application of s 50: Johnston v Cameron[26] and Minister for Immigration and Multicultural and Indigenous Affairs v X.[27] In the latter case, Heerey and Weinberg JJ 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. They 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.”[28]
[26] (2002) 124 FCR 160; 195 ALR 300
[27] [2005] FCAFC 217
[28] [2005] FCAFC 217 at [21]
In a context closely associated with this case, the Full Court of the Federal Court considered s 50 in Applicant Y v Australian Prudential Regulation Authority.[29] Again, we referred to this in Re an Applicant and Australian Prudential Regulation Authority and a Party Joined. The Full Court dismissed an appeal from an order of Lindgren J under s 50 restricting disclosure of the identities of X and Y, who 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. 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.[30]
[29] [2005] FCAFC 222
[30] [2005] FCAFC 222 at [16]
In doing so, the Full Court considered the principle of open justice saying that it was one of the matters that must be placed in the scales in deciding whether to exercise the discretion under s 50. Other matters relate to any prejudice to the administration of justice. In that case, the Full Court had regard to X and Y’s positions as senior managers 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.
The case of Applicant Y v Australian Prudential Regulation Authority is illustrative of the types of considerations that were relevant while the case we must consider was yet to be decided. The administration of justice would, in the circumstances as they prevailed at the time, have been prejudiced by disclosure and that prejudice outweighed the public interest in disclosing the documents and evidence in the Tribunal. That time has now passed. The matter has been heard. The prejudice in the administration of justice is lessened now that APRA’s decisions and all of the material relating to them can be disclosed at the one time rather than in a piecemeal fashion.
VBN, VBV and VBW do not seek confidentiality orders indefinitely. For the reasons I give below, I do not propose to extend them for even the short period that they seek. Whatever the date on which they are lifted, the practical effect is that their identities will be known to the public very shortly.[31] It is impractical to maintain the confidentiality of those who were directors at the relevant times. It is unfair to leave the public to engage in a guessing game as to who among them was disqualified and who was not. All directors must take responsibility for what they did and did not do in the course of their duties. APRA’s interest in what they do and do not do is part and parcel of being a director as is their right to ask the Tribunal to review any decisions APRA might make. It will be most unfortunate if the view is taken that, even though the Tribunal’s decision has set aside APRA’s decisions, the course of events is used to tarnish the directors’ reputations on the basis of “where there is smoke there is fire”. If I am misguided in thinking that the Australian community is more balanced than to take that view, I am of the view that secrecy is likely to make the imagined fire greater than it is; an imagined fire of intensity may well consume reputations more fiercely than any smoke from favourable decisions and a reading of the reasons for them.
[31] As is clear from the media reports exhibited to the affidavit of Mr Jason Holandsjo, the identity of one of the applicants is already known.
Mr Santamaria, Mr Sackar and Mr Scerri QC would have me postpone the disclosure of the decisions and the reasons for them until after the appeal period and seven days have passed. I do not propose to do this. The reasons for maintaining the confidentiality of the matter in the Tribunal has come to an end. Should APRA decide to lodge an appeal to the Federal Court, there is no legislative requirement that confidentiality be maintained. In view of that, it seems to me that I should decide the matter on the basis of what is before the Tribunal and not on the basis of what may happen at a future time. Mr Santamaria submitted that:
“It would be grossly unfair to us to have to go off to the Federal Court to make an application enjoining an officer of the Commonwealth from publishing this material when it would be an easy thing for, you know, APRA to just either let us know or a simple thing for your orders to persist until say seven days after 22 August which would give us plenty of time to go to the Federal Court if people were minded to. I am not seeking to suggest that people will. If people were minded to go and seek confidentiality from the Federal Court if an appeal was brought.”[32]
[32] Transcript at 16
I do not consider that it would be grossly unfair. Taking all matters into account, it seems to me that the balance of the scales tilted in favour of openness as soon as we gave our decision and reasons. If the applicants wish to seek orders from the Federal Court restraining the Tribunal from doing so, that is a matter for them. I do not consider it to be grossly unfair to the applicants and I do not consider that the fact that they might feel compelled to do so alters the conclusion I have reached. I do, however, consider it appropriate to give the parties a three day opportunity to seek judicial review of this decision should they wish. As it turns out, that will take them one day past the end of the period within which APRA might lodge an appeal.
The parties have been concerned about the privacy of certain persons in the written documents lodged with the Tribunal or received in evidence. The concern is based on their having nothing to do with events surrounding the reviewable decisions. No mention has been made of the witnesses or of other persons mentioned in the documents because of their professional involvement with the Trustee and the directors. On the basis of the usual principles that the processes of the Tribunal should be available for scrutiny as they are in a court, I consider that there is no basis for restricting publication of their identities or of their evidence. I have reached this conclusion even though it may be open to debate whether the Tribunal has power to make such an order in view of the omission from s 344(11) of the SIS Act of any reference to s 35(2)(aa) of the AAT Act.
References to matters such as the beneficiaries of the superannuation fund in documents lodged with the Tribunal or received in evidence
That leaves for consideration the documents lodged in the Tribunal or received in evidence by it. With one exception and for the reasons I have already given in relation to the reasons for decision and that I give below in relation to the disclosure of material may assist the public in understanding the proceedings in the Tribunal, I consider that access to the documents lodged and evidence received should not be restricted. The exception relates to the references found throughout the documents that have been lodged and those that were received in evidence to subjects such as the beneficiaries of the superannuation fund and matters associated with the receipt of their benefits under it. Those references have nothing to do with the reviewable decisions or with the Tribunal’s review of them and yet they form part of the documents lodged in the Tribunal and the evidence received by the Tribunal. Should they be made available to the public on request or should they be protected by an order under s 35(2)?
The answer to that question lies partly in s 35(2) and the principles that underpin it but partly in the Privacy Act. Section 16 of the Privacy Act provides that an agency shall not do an act or engage in a practice that breaches and Information Privacy Principle (IPP). The Tribunal is an agency[33] as is the Federal Court.[34] It is also a record-keeper for, subject to exceptions that are not relevant in this case:
“… an agency that is in possession or control of a record of personal information shall be regarded, for the purposes of this Act, as the record-keeper in relation to that record.”[35]
[33] Privacy Act, s 6(1)
[34] Privacy Act, (g) of s 6(1) when read with s 26(b) of the Acts Interpretation Act 1901 which provides that “Federal Court shall mean the High Court or any court created by the Parliament”.
[35] Privacy Act, s 10(1)
The IPPs are set out in s 14. IPP11 provides that:
“1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
(a)the individual concerned is reasonably likely to have been aware, or made aware under Principle 2,[[36]] that information of that kind is usually passed to that person, body or agency;
(b)the individual concerned has consented to the disclosure;
(c)the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious imminent threat to the life or health or the individual concerned or of another person;
(d)the disclosure is required or authorised by or under law; or
(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
2.Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.
3.A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.”
[36] IPP 2 is concerned with the solicitation of personal information from the person concerned.
The prohibition on disclosure of information imposed by IPP11 is a qualified prohibition. The qualifications that are relevant in this case are that the applicant is “… reasonably likely to have been aware … that information of the kind is usually passed to that person …”[37] or that disclosure is “… required or authorised by or under law”.[38] There is no suggestion in this case, and I am not satisfied, that the beneficiaries of the superannuation fund would be reasonably likely to have been aware that information relating to their personal circumstances given to the trustee of a superannuation fund would be made public. That leaves the second qualification.
[37] IPP11, cl 1(a)
[38] IPP11, cl 1(d)
In Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs,[39] I considered the meaning of the words “authorised” and “required” as they are used in cl 1(d). I concluded that there was:
“… no reason to depart from these ordinary meanings. If a law gives someone the power to disclose personal information or the right or permission to obtain it or if the law demands that personal information be disclosed, the record-keeper is not prevented from disclosing it by operation of cl. 1 of IPP 11.
36. Regard must be had to the terms of particular laws that authorise or require disclosure of personal information. …”[40]
[39] [2005] AATA 200
[40] [2005] AATA 200 at [35]-[36]
I went on to consider whether the Tribunal is required or authorised to reveal documents that have been lodged in the Tribunal but there has yet to be a hearing of the application. Assuming that the Tribunal could direct the disclosure of documents to a person unconnected with the case using its power under s 33 of the AAT Act, that would not mean that disclosure would be required under a law within the meaning of IPP11, cl 1(a). It would mean that it is authorised in the sense that the direction gives someone the right or permission to have access to the information. As I said in Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs:
“52. The exercise of the power under s. 33 would be discretionary but it would not be unfettered. It would need to take account of its duty to review decisions so that it reaches the correct or preferable decision, that it is bound to observe procedural fairness and so give the parties a reasonable opportunity to present their cases and that it is established on the judicial model. At the same time, it would need to take account of the principles of open justice. Each case will need to be decided on its merits.”
In Re Le and Secretary, Department of Education, Science and Training,[41] I considered the application of IPP11 to the contents of the Tribunal’s reasons for decision and concluded that the Tribunal may reveal as much of a person’s personal information as is necessary to meet the requirements of s 43(2B) of the AAT Act. That is the section that sets out the criteria that the Tribunal’s decision must meet.[42]
[41] [2006] AATA 208
[42] [2006] AATA 208 at [37]
In so far as s 35 of the AAT Act is concerned, I did not accept a submission in Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs that it required disclosure. Rather, I concluded, it was a law giving the Tribunal the power to restrict disclosure of information but that did not equate with a law requiring or authorising disclosure. [43] I do not resile from that conclusion in so far as an order made by the Tribunal is concerned but I do think that authorisation of disclosure is inherent in the section itself.
[43] [2005] AATA 200 at [50]
Precisely what disclosure is authorised by s 35 is another question to be determined in each case by reference to several factors. First, there are the fundamental principles of open hearings and public access to documents. These principles must be tempered by notions of relevance of the documents to the Tribunal’s review of a decision. Access to documents and the evidence may assist the public in understanding the proceedings in the Tribunal. In Australian Securities and Investments Commission v Rich[44] and in the context of considering whether documents should be released to the media, Barrett J explained the relevance of making documents available:
“… It is in that context that the court has an undoubted and clear role to play in assisting the media to obtain a full and fair understanding of what has transpired so that informed reporting can occur without incomplete appreciation of source materials and in a way which enables the various matters which have come out in court, whether or not actually spoken aloud, to be understood in the full context of the case. …”[45]
[44] [2002] NSWC 198
[45] [2002] NSWC 198 at [9]
The principles are no less relevant in the Tribunal but access to material that is irrelevant is of no assistance in requiring a full and fair understanding of the matter. By “irrelevant” I do not mean material that we did not specifically mention in our reasons or that we did not prefer to other material. I mean material that is irrelevant on any view of the matter. That would clearly include references to individual beneficiaries of the superannuation fund. It is “personal information” within the meaning of the Privacy Act. I do not consider that disclosure of that personal information can be said to be authorised by s 35 if it is irrelevant to the review in any way.
There are any number of such references in the very many volumes of documents that were lodged with the Tribunal and that were received in evidence. I do not propose to go through each of them to attempt to identify the references in order to make an order under s 35 to protect it from public disclosure. It may be that access to it will never be requested and a great deal of time will have been expended for no constructive purpose. Instead, I will make a general order that access not be given to documents that contain personal information that was irrelevant to the review of the decisions to anybody other than the parties and their legal representatives. In practical terms, this will mean that access to the files will not be able to be given to other persons on request. Before access can be given, the documents will need to be examined for such personal information. That task may be quite onerous and the Tribunal and its staff will look to the parties for assistance in identifying it.
Orders
For the reasons I have given:
1.with effect from 18 August 2006, all confidentiality orders in force up to and including 23 August 2005 are varied to the effect that they do not apply to this decision but continue to apply to the reasons for it in accordance with paragraph 2 hereof.
2.with effect from 5.00pm on Wednesday, 23 August 2006:
(1)all orders made under s 35 of the Administrative Appeals Tribunal Act 1975 in relation to all proceedings concerning all or any of the applicants and the party joined up to and including 17 August 2006 are vacated;
(2)all of the Tribunal’s reasons for its decisions together with a Legend identifying those persons previously referred to by pseudonyms are publicly available; and
(3)all documents lodged with the Tribunal and received in evidence during all of the Tribunal’s proceedings are publicly available other than information in documents lodged with the Tribunal or received in evidence by it that is:
(a) “personal information” within the meaning of the Privacy Act 1988; and
(b) irrelevant to the Tribunal’s review of the respondent’s decisions in relation to the applicants or any one of them.
I certify that the forty-five preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie
Signed: …………………....................................
Jayne Rathjen Associate
Date of Directions Hearing 10 August 2006
Date of Decision 18 August 2006
Counsel for VBN Mr J Santamaria QC with
Mr S McLeishSolicitor for VBN Corrs Chambers Westgarth
Counsel for VBV Mr C Scerri QC with Mr S Sharpley
Solicitor for VBV Arnold Bloch Leibler
Counsel for VBW Mr J Sackar QC
Solicitor for VBW Allens Arthur Robinson
Counsel for VBO, VBP, VBQ
and VBRMr P Murdoch QC with Mr S Senathirajah
Solicitor for VBO VBP, VBQ,
and VBRPhillips Fox
Counsel for the respondent Ms D Mortimer SC with Mr S Hibble
and Mr S Rubenstein
Solicitor for the respondent Australian Prudential Regulation Authority
Counsel for VBT, party joined Mr P Collinson SC
Solicitor for VBT, party joined Freehills
LEGEND
VBN =Trevor Duncan Lloyd
VBO =Keat Seng Chew
VBP =Jason William Brown
VBQ =Craig Robert Dainton
VBR =Howard Wayne Coleman
VBV =Melvyn Keith Ward
VBW =Andrew Richard Penn
ND1 =Jane Lovell Perry
C1 =Mark Philip Delaney
C2 =Ross Andrew Wilson
C3 =Stephen Douglas Spiller
C4 =Neil Roderick Whiteside
C5 =Frank Allan Catlin
MS1 =Andrea Piaia
MS2 =Laurence Dalton
MS3 =Kate Maartensz
MS4 =Kim Webber
Plan Actuary A = Kristain Fok
Plan Actuary B = John Smith
Plan Actuary C = Paul Shallue
Actuary D = Paul Francis (Employer’s consultant actuary from Towers Perrin)
Actuary E = Steven John Schubert (a second Employer’s consultant actuary from Towers Perrin)
CEO =Les Owen
Plan Executive = Cyril Twomey
Accumulation Category = AXA Select
Actuarial Firm = NSP Buck Pty Ltd
EC1 =Michael Baker
Employer Plan
Superannuation Committee = AXA’s Superannuation Plan Steering Committee
Employer’s Plan
Representative = Richard Veale
FS = Mallesons Stephen Jaques
FSS = Christopher Martin Beeny
PD1 = Colin Royce Grenfell
TS = Bruce Akiva Goldman
TSF = Deacons Lawyers
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