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PRACTICE AND PROCEDURE - confidentiality order - applicant request for non-publication and non-disclosure of information tending to reveal the identity of applicant - general principle that hearings before Tribunal be held in public and that evidence before the Tribunal be made available to the public - whether the circumstances justify a departure from the general principle - media coverage concerning the applicant and the decisions and operations of the respondent - whether current and prospective students have a right to be informed of respondent's decision - whether possibility of adverse publicity sufficient to justify granting confidentiality order - whether order will have wide or narrow application - request for confidentiality order refused

Administrative Appeals Tribunal Act 1975 (Cth) ss 35(3), 35(4), 35(5)

Standards for Registered Training Organisations 2015

Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another [2009] FCAFC 185; (2009) 181 FCR 130

Re Opus Capital Ltd and Australian Securities and Investments Commission [2010] AATA 694; (2010) 117 ALD 608

1. In a letter dated 5 August 2016 the Australian Skills Quality Authority (ASQA) notified a Director of Australian Careers Institute Pty Ltd (ACI) that it intended to cancel accreditation of the course referred to as Diploma of Fitness Coaching (10067NAT). The cancellation was set to take effect on 12 September 2016.
2. As a result of that decision, ASQA informed ACI that from the date of cancellation, it was required to cease to advertise or represent the course as being nationally accredited within the Australian Qualities Framework and/or that a VET qualification would be issued upon its completion. Students enrolled in the course on the date of cancellation were entitled to complete the course in accordance with the teach out provisions in the Standards for Registered Training Organisations 2015.
3. On 29 August 2016 ACI lodged an application with the Tribunal seeking review of ASQA's decision. ACI also lodged with the Tribunal a request for a Stay Order. The earliest date which was available for the Tribunal to hear the Stay Application was 15 September 2016. Given that date was after the date on which ASQA indicated the cancellation would take effect, Mr John Pritchard, Manager Legal Services with ASQA, notified the Tribunal that the date of the effect of 12 September 2016 could be varied to cater for that date.
4. Immediately prior to the hearing commencing on 15 September 2016, the Tribunal received ACI's outline of submissions in respect of the stay application and also for confidentiality orders pursuant to s. 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
5. I heard submissions from Mr T Mitchell of counsel for ACI and Mr Pritchard for ASQA. I also had written submissions from both parties although ASQA's submissions dealt only with the stay application. At the conclusion of the hearing, I gave my decision in respect of the stay application, deciding that the operation and/or implementation of the decision made by ASQA on or about 5 August 2016 should be stayed until the final outcome of this matter had been determined by the Tribunal. I provided brief oral reasons.
6. However, I decided to reserve my decision regarding ACI's application for confidentiality orders. Having had a little more time to consider this application, I have decided that in the circumstances of this case, a confidentiality order is inappropriate. The following are my reasons for coming to that conclusion.
7. The confidentiality order sought by ACI was for non-publication and non-disclosure of information tending to reveal the identity of a party. Provision for such an order is found in s. 35 of the AAT Act. Relevantly, it provides:

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

(a) information tending to reveal the identity of:

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

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

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

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

(a) relates to a proceeding; and

(b) is of any of the following:

• (i) information that comprises evidence or information about evidence;
• (ii) information lodged with or otherwise given to the Tribunal.

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

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

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

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

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

1. Mr Mitchell submitted that the following compelling reasons to depart from the norm in this case were:
   • (a) ACI has a strong brand as a leading Registered Training Organisation (RTO);
   • (b) ACI complies with the VET Quality Framework and was recently audited and found to be compliant by ASQA;
   • (c) ACI has spent about $6M on sales and marketing strategies in respect of the ACI Course;
   • (d) public disclosure of the Decision may taint the reputation of fitness coaches and fitness coaching;
   • (e) news of the decision is likely to spread within the industry, which will have adverse consequences;
   • (f) the allegation of duplication made against ACI might suggest that ACI's course materials were not of its own when, in fact, the Training Package course duplicated what was already accredited in the ACI Course and that fact may not readily be comprehended by the public; and
   • (g) ASQA had made unfair comments, expressly and implicitly in its submissions on the stay application which have no proper basis and should not be made public as they may damage ACI's reputation.

LEGAL BASIS FOR GRANTING A CONFIDENTIALITY ORDER

1. The starting point for this analysis is the opening paragraph in subsection (5) where it is stated that the Tribunal must take as the basis of its consideration, the three principles set out thereunder. It should be immediately apparent that in order for a party applying for a confidentiality order to succeed, the circumstances of the case must be sufficiently strong to take the case out of the ordinary. The Full Court of the Federal Court of Australia (Moore, Downes and Jagot JJ) decision in Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another [2009] FCAFC 185; (2009) 181 FCR 130 provides guidance. That was a case where the Australian Securities and Investments Commission issued a banning order against the director of a company. The majority (Downes and Jagot JJ) said, at 148 - 149:

Again, we think it is important to emphasise certain aspects of the statutory provisions. Although s 35 (1) is subject to the balance of the section, it establishes a norm. The norm is that proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35 (3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under

s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect....

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

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

1. In his written and oral submissions Mr Mitchell referred to the Tribunal (Deputy President PE Hack) decision in Re Opus Capital Ltd and Australian Securities and Investments Commission [2010] AATA 694; (2010) 117 ALD 608. That case involved the cancellation of the Applicant's financial services licence. Deputy President Hack referred to the Federal Court decision which I have set out above. However, in that case, DP Hack granted the confidentiality order. Apparently there was, in the decision, no suggestion of any unfitness on the part of Opus to manage funds or any criticism in the way in which they had done so in the past. However because it was put that there was concern regarding a measure of general financial standing, it was submitted that there was a risk that the cancellation decision and the evidence supporting it would not be properly understood by the investor public and might be understood, wrongly, as reflecting on the security of funds invested with Opus. Deputy President Hack then said, at 615:

And the case for preventing public access to material lodged in the tribunal is made all the more compelling by references in the commission's submissions to "serious concern... about the solvency of [Opus]", "precarious financial situation", "parlous financial position" and similar epithets. These issues formed no part of the decision and, so far as I am aware, are not supported by any evidence. Publication of material of such a nature could cause serious and irreparable damage to the reputation and standing of Opus and quite wrongly undermine investor confidence in Opus to the detriment of investors.

1. Mr Mitchell submitted that the circumstances described by Deputy President Hack are not dissimilar to what has been said about ACI in two examples of media reporting which he tendered. The first was an article published by Mr Eryk Bagshaw in the Sydney Morning Herald titled: Biggest Loser star Commando Steve's 'cutting edge' fitness diploma under fire. It referred to the Sage Institute of Fitness. That is one of a number of business names used by ACI. All of them use the word Sage in their description. In particular, Mr Bagshaw said:

The government body responsible for monitoring the private college sector, the Australian Skills and Quality Authority, has issued the Sage Institute of Fitness with a show-cause notice stating an intention to cancel the accreditation of the course this year.

An ASQA spokesman said the regulator determine the course no-longer complied with the standard set by ASQA after it found the diploma duplicated parts of the fitness training package. The decision is currently under review.

1. While those statements appear to be reasonably accurate, the article then linked ASQA's decision to the fact that the course was funded through what was described as: the scandal plagued VET-FEE HELP scheme which was expected to blow out to $4 billion in taxpayer debt in that year. The article was also highly critical of the facilities and course structure, that information said to have been provided by a former staff member.
2. On the material before me, those subsequent comments are not evidence based and played no part whatsoever in ASQA's decision.
3. Mr Mitchell also referred me to a radio interview on the station 2 GB where Mr Ross Greenwood, a journalist, interviewed Mr Bagshaw. Essentially, that interview focused on public expenditure through the FEE-HELP scheme where it was said students incurred massive fees but did not get what they had paid for.
4. While I readily accept Mr Mitchell's concerns regarding the way in which ASQA's decision has been reported by media entities, obviously, making an order for confidentiality at this stage appears to be too late as any damage may have already been caused and knowledge of the decision is plainly in the public domain. Furthermore, there appears to be nothing which would prevent ACI from making its own statement and in fact, a spokesperson for the company was quoted in the radio interview. In other words, there at least appears to have been an attempt to balance the reporting.
5. The major criticisms levied in both media reports to which I have referred appear to be unrelated to the concerns expressed by ASQA. However, the concerns expressed by ASQA are important as far as current students are concerned and, possibly, any persons contemplating becoming students in the particular course in question. Those concerns need to be made public so that any persons intending to enrol in the course may be aware of possible limitations in the form of those concerns expressed by ASQA that may apply. The FEE-HELP issue and the state of facilities provided by the Sage entity in question would seem to be concerns which would be expressed in any event. Persons who have read or heard those concerns are, in my opinion, unlikely to associate those concerns with the claimed duplicated outcomes which concern ASQA. I do not accept Mr Mitchell's submission that the allegation of duplication made against ACI suggests that its course materials were not its own.
6. Although Mr Mitchell also submitted that making public ASQA's claims regarding duplication would give ACI's competitors an unfair advantage and result in adverse consequences to ACI, there was no evidence before me of such a possibility. At present, that claim appears to be speculative. Although Mr Mitchell, rather boisterously, submitted that it was notorious that media outlets regularly presented articles about the government cracking down on dodgy RTOs, I had no evidence before me other than the two items described above.
7. In my opinion, the circumstances of this case are not analogous to the matter in the Opus case. There, the financial standing of Opus was likely to have been brought into question and may have infected a significant portion of the investment market. The confidentiality order in that case, while protecting Opus, had a much wider application. In this case, the only party to benefit from the confidentiality order would be ACI. In the scheme of things, it is my opinion that the orders made under s. 35 of the AAT Act were not designed for this purpose. As the Federal Court said in the ASIC case to which I have referred above, publicity may often disadvantage parties but that, by itself, is no reason to make such a confidentiality order. That risk is inherent in the nature of the decision made by ASQA to cancel the registration of the course in question. Current and prospective students have a right to be informed about such a decision.

1. ACI's request for non-publication and non-disclosure orders pursuant to s. 35 of the AAT Act should be refused.

1. I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of:
2. Egon Fice, Senior Member

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