Australian National University v Dr Scott Morrison [2022] FWC 568 (15 March 2022)

[2022] FWC 568

Fair Work Act 2009

s.604 - Appeal of decision

Application to vary Order of Deputy President Dean in PR738523 issued on 18 February 2022 - Principle of open justice - Application refused.

• [1] This decision concerns an application by Dr Scott Morrison (the Respondent) to vary an order (confidentiality order)[1] made by Deputy President Dean pursuant to s. 594(1)(d) of the Fair Work Act 2009 (the Act). The confidentiality order prohibits the publication of a decision and reasons for the decision made on 21 February 2022[2] by the Deputy President, in relation to the Respondent's unfair dismissal application, made against the Australian National University in U2020/361 (decision). The confidentiality order is expressed to operate until 14 March 2022 and provided for either party to seek to make its terms absolute, by filing and serving material in support of this position, by 7 March 2022.

• [2] The application for a variation of the confidentiality order was made on 9 March 2022, and delegated to me to determine, by the presiding member of a Full Bench to which the hearing of an appeal by the Australian National University (the Appellant) against the decision, has been allocated. I have decided to refuse the application to vary the confidentiality order. To explain my reasons for this decision, it is necessary to set out some of the background to the matter.

• [3] The Respondent was an Associate Professor, employed by the Appellant in its Maths and Science Institute (MSI) and was dismissed following an investigation which found that he had engaged in serious misconduct involving a student. The Deputy President found that the conduct was not serious misconduct on the basis that it was wholly consensual and was encouraged by the student, and that the Respondent's dismissal was unfair. Based on that finding, the Deputy President made an order for reinstatement and the payment of an amount for lost remuneration, representing part of the Respondent's loss (reinstatement order)[3]. The reinstatement order required that the Respondent be reinstated on Monday 7 March 2022, 14 days after the decision and the making of the reinstatement order and seven days prior to the expiration of the confidentiality order.

• [4] The Appellant lodged its application to appeal the decision on 4 March 2022 and sought a stay of the reinstatement order, including an interim stay pending the hearing and determination of the stay application. The grounds upon which the stay was sought indicated that the confidentiality order was made on the Deputy President's own motion and that the stay was sought on an interim basis because the confidentiality orders prevented the Appellant's argument in support of the stay application from being fully ventilated, until the expiration of the confidentiality order.

• [5] The stay application was allocated to me and on 7 March 2022, I conducted a hearing and decided to stay the reinstatement order until the hearing and determination of the appeal.[4] To facilitate the hearing of the stay application, I also decided to issue an interim confidentiality order[5] to cover the period between 7 and 14 March 2022 (when the confidentiality order made by Deputy President Dean expired), in relation to submissions and material in the stay proceedings and publication of any decision and reasons in relation to the stay application.

• [6] I issued the interim confidentiality order based on my understanding of the submissions of both parties in the stay proceedings, that their intention at that time, was that neither would seek to extend the confidentiality order made by Deputy President Dean and that it would cease to operate on 14 March 2022. I was also of the view that making an interim confidentiality order was a more appropriate course compared to the alternative, of setting aside Deputy President Dean's confidentiality order, to enable the hearing of the stay application, particularly given that the confidentiality order was to expire on 14 March 2022. It was my intention to issue my reasons for granting the stay application on 14 March 2022 at which point the confidentiality order made by Deputy President Dean and the interim confidentiality order I had made, would have expired. The issuing of reasons for granting the stay has been overtaken by the present application.

The confidentiality order and the application to amend it

• [7] The submissions of the parties in relation to the confidentiality order indicate that the issue of confidentiality arose in several contexts in the proceedings before the Deputy President. An order was made by the Deputy President on 27 November 2020 prohibiting the publication of the name and address of the student whose complaint led to the Respondent's dismissal. An order was also issued by the Deputy President on 19 April 2021, prohibiting the publication of the name and address of a new witness who came forward after the proceedings before the Deputy President commenced and made a complaint about the Respondent's conduct and who was permitted to be called to give evidence by the Appellant.[6] Those orders also prescribed the manner in which the students were to give evidence and who would be present while this occurred. The orders were made prior to the students giving their evidence. There was no objection by either party to the orders and they are not the subject of the present application.

• [8] On 14 February 2022, prior to issuing the decision and reinstatement order, the Deputy President corresponded with the parties, indicating her view that a confidentiality order should be made prohibiting the publication of the decision and reasons and any reasons relating to remedy, and requesting that if either party objected to this course, reasons for the objection should be provided to chambers, by 16 February 2022. The Appellant responded to this correspondence indicating that it was unable to make informed submissions about the Deputy President's proposal without an opportunity to review the reasons for the decision and did not understand the proposal.

• [9] As an alternative, the Appellant proposed a timetable for the views of the parties to be sought by the Deputy President which provided for the Deputy President to make interim orders for confidentiality for a period of 21 days from the date of the decision and for the parties to be given an opportunity to provide written submissions, material on which they proposed to rely and a copy of proposed confidentiality orders (if any) for consideration by the Deputy President. The Deputy President adopted the Appellant's proposal and the following sequence of events ensued:

• A confidentiality order was issued on 18 February prohibiting the publication of the decision and reasons including reasons for any decision in relation to relief for a period of 21 days from the date of release;
• The decision and reinstatement order were issued on 21 February;
• The reinstatement order was required to be complied with by 7 March;
• Submissions in relation to the Deputy President's proposal for a confidentiality order in relation to the decision and the reinstatement order were required to be made by 7 March (14 days from the date of release of the decision and reinstatement order); and
• The confidentiality order was to expire on 14 March (21 days from the release of the decision and reinstatement order).

• [10] As previously noted, the Appellant lodged its appeal against the decision on 4 March 2022 and sought a stay of the reinstatement order which was required to be complied with by 7 March. The stay was granted by me on 7 March and an interim confidentiality order was made in relation to the submissions and material in the stay proceedings and publication of any decision and reasons in relation to the stay application, to cover the period from 7 to 14 March 2022 when the confidentiality order made by Deputy President Dean was also due to expire.

• [11] The application to vary the confidentiality order was made by correspondence sent by the Respondent's representative to the Commission on Friday 9 March 2022. The correspondence states that on 4 March 2022, both parties filed submissions directed to the Chambers of Deputy President Dean, on the ongoing issue of confidentiality. The submissions (attached to the correspondence) are summarised on the basis that the Respondent proposes publication with de-identification of the Appellant and Respondent and the Appellant proposes full publication. The correspondence advises that on 7 March 2022, Deputy President Dean corresponded with the parties and stated that she preferred the Respondent's submission and proposed to de-identify the decision and provided a draft de-identified copy for the parties to review.

• [12] The correspondence also advises that on 8 March 2022, the Appellant made submissions that it was inappropriate for Deputy President Dean to make any further orders in this matter given that the decision in U2020/3161 had been appealed and was before a Full Bench of the Commission. The Respondent's correspondence further advises that the Deputy President agreed with this proposition and "withdrew" from the matter without making any orders. The Respondent submits that as a result, the existing confidentiality order is set to expire on 14 March 2022, without the parties' submissions on ongoing confidentiality arrangements being determined by the Commission.

• [13] The Respondent seeks that the Commission (presumably the Full Bench to which the appeal against the Deputy President's decision is allocated) determine the ongoing confidentiality arrangements by varying the order in the manner proposed in its submission to Deputy President Dean on 4 March 2022 and is content for the matter to be determined based on the material filed by the parties and does not wish to be heard further. The Appellant responded to this correspondence objecting to any variation to the confidentiality order and proposing full publication of the Deputy President's decision. The Appellant also indicated that if the Full Bench sought to deal with the Respondent's application for additional confidentiality orders, the Appellant would like to be heard.

• [14] It was apparent from that correspondence that contrary to my understanding of the advice from the Respondent's legal representative in the stay proceedings, the Respondent had made submissions to Deputy President Dean, seeking to maintain the confidentiality order issued by the Deputy President, albeit in an amended form, which de-identified the Respondent and the Appellant and various other matters which may have facilitated their identification.

• [15] On 10 March 2022, my Associate corresponded with the parties advising that the Respondent's application to vary the confidentiality orders issued by Deputy President Dean had been allocated to me and that based on the Appellant's advice that it sought to be heard in relation to the application, that the matter would be listed for hearing on Monday 14 March 2022. The correspondence also stated that advice of any objection by either party to this course, was required to be provided by 12.00 midday on Friday 11 March 2022. The Appellant responded by providing a written submission reiterating its objection to the application for a variation to the confidentiality order sought by the Respondent and indicating that it did not object to the matter being dealt with by the Commission, in Chambers, on the papers.

• [16] I turn now to consider the submissions made to Deputy President Dean in response to her proposal with respect to extension of the confidentiality order made on 18 February 2022, which are relied on by the parties in the present application for the order to be varied.

• [17] The Respondent seeks that the Commission make orders which essentially provide for publication, with de-identification. Specifically, the Respondent's Draft Orders:

• Provide for continuation of the confidentiality orders made by the Commission de-identifying the students who gave evidence; and
• Provide for further orders de-identifying the Applicant and Respondent.

• [18] In support of the Respondent's position which requires a minor modification to the usual principles of open justice, the Respondent makes what is described as "the obvious point" that he shares his name with the Prime Minister of Australia. As such, it is anticipated that publication of the decision without deidentification will unnecessarily and unfairly draw this matter to the attention of the Australian media and public, and as such, merely because of a naming coincidence, have negative effects on:

• The Respondent's ability to return to work, without adverse publicity, scrutiny and potentially hostility; and
• The Relevant Student's mental health.

• [19] It is submitted that the Respondent's return to work would be impeded by unfairly-wide dissemination of the decision, in circumstances where it is likely that the media will favour sensational headlines over a full, fair and nuanced report of the decision and some students and staff of the Respondent likely hold the incorrect view that the Applicant is something of a sexual predator, due to fact that the Respondent's Mr Stephen Roberts sent an email to staff and students dated 1 September 2020 (which has never been retracted) commenting on the Respondent's conduct in terms which are damaging to him. It is submitted that with the student population of the MSI primed with this email, combined with widespread media attention to the Applicant's return, publication of the decision in full without deidentification may cause unrest in a highly politicised student population.

• [20] Under a heading "Relevant Student's Mental Health", it is also submitted that the relevant student was distressed throughout the hearing before the Deputy President and may be further distressed by the contents of the decision which finds that the Respondent's conduct was "encouraged" by the Relevant Student, and otherwise that the Applicant's evidence is to be preferred over hers. Further de-identification would reduce the media attention to this matter and so reduce this aggravation and make it more likely that the relevant student would never be identified by the media or by her peers.

• [21] Further, de-identification would allow the Respondent and the Appellant to share the decision with those who are or become aware of the case, and who have a vested interest in the outcome (for example present and future colleagues. and prospective employers). This benefit would be denied if the Commission Proposal to prohibit the publication of the decision in full, were to be adopted.

• [22] It was further submitted that the Respondent's draft orders, if made, would strike an appropriate balance, taking into account the concerns of the Respondent and the interest of others in these proceedings. No weight should be afforded to the Appellant's submission that full publication is necessary to allow the University to "explain" the Respondent's reinstatement to the workplace. Human Resource matters (including staff coming and going from the University for a host of personal reasons) routinely contain elements of respect for that staff member's privacy. In any case, the Respondent submitted the Appellant is not obliged to "explain" the Applicant's return to the workplace to others.

• [23] If the Commission is not minded to make orders for further de-identification, the Respondent otherwise considers that the decision should be published in full (with the current orders remaining). In this regard, the Respondent considers that publication may assist to repair his damaged reputation (although he considers that further de-identification proposed by him may be more effective in achieving this aim).

• [24] The Appellant objects to any further confidentiality orders being made on the basis that:

1. Unfair dismissal decisions must be published (paragraph 601(1)(a) and (4)(a) of the Fair Work Act 2009 (Cth) (FW Act));

2. The Commission may only make an order restricting publication if it is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason (paragraph 594(1)(d) of the FW Act); and

3. Non-publication is inconsistent with the principles of open justice (Amie Mac v Bank of Queensland Limited & Ors [2019] FWC 2885).

• [25] In relation to point 2, Deputy President Dean made orders on 11 August 2020 and 19 April 2021 to protect the interests of the students who gave evidence. The Appellant sought orders of a limited scope, which did not prevent the publication of the decision at large, to balance the need to protect the students' interests with the principles of open justice. Now having reviewed the decision, the Appellant considers that no further order restricting the publication is required to protect the students' interests.

• [26] The Appellant also asserted in submissions to Deputy President Dean, that it did not understand the Deputy President's reasons for proposing that the decision not be published and stated that if the Deputy President was minded to make the order, then the Appellant requested that the matter be listed for hearing so that the parties may be heard in relation to those reasons. Otherwise, the Appellant respectfully requested that no further confidentiality order be made which would avoid the need for any further hearing.

• [27] Additionally, the Appellant submitted that orders prohibiting the publication of the decision would be problematic for the parties as there are a plethora of practical matters which would be adversely impacted. In line with the Deputy President's decision, the Respondent is to be re-instated as at 7 March 2022. If the Respondent is unable to communicate the outcome of the decision, it will be difficult for it to explain the Respondent's return. This is particularly problematic as the students who gave evidence in the matter attend the campus from time to time and ought to be provided with care and support considering the likelihood of them crossing paths with the Respondent. It will also be difficult for the parties to address situations that might arise out of gossip or innuendo if no explanation can be given about the Respondent's re-engagement.

• [28] In further submissions filed by email on 11 March 2022, the Appellant stated that it did not consent to the application by the Respondent's legal representatives, seeking to have the Full Bench make orders which de-identify the party names in the decision on appeal in C2022/1533 and submitted that no such order should be made, for the following reasons.

• [29] First, the proceedings are already the subject of a published decision, in which the parties' names appear: Scott Morrison v Australian National University.[7] That decision related to the Appellant's application to reopen the proceedings to lead evidence from the new witness. Among other things, that decision refers in summary form to an issue in the substantive proceedings, namely, whether the Appellant had a valid reason to dismiss the Respondent because he demonstrated inappropriate conduct by a senior academic with respect to an undergraduate student.[8]

• [30] Second, such an order would be contrary to the principles of open justice, to which paramount consideration should be given. Departure from that principle will usually only be permitted where not to do so would defeat the proper administration of justice.[9] This is not such a case. The primary reason given by the Respondent for seeking such an order appears to be the potential for embarrassment, distress or damage to his reputation. The Full Bench, and the Courts, have made clear on several occasions that this will not usually be a sufficient basis by itself for the making of confidentiality orders.[10] Related to this, to the extent that the Respondent submits that this matter will be "unnecessarily and unfairly" drawn to the attention of the press by reason of him sharing a surname with the Australian Prime Minister, this should not and does not provide a proper basis for an order to be made which is contrary to the principles of open justice.

• [31] Thirdly, it is in the public interest that the decision be published, for the same reasons that it is in the public interest that leave to appeal be granted, as set out in the Notice of Appeal section 3.1. These include that the decision is disharmonious with other decisions of the Commission with respect to the role of educators and the need to maintain professional boundaries with students. Further, the decision raises issues of serious importance and general application in connection with the operation of the Appellant, as well as other academic institutions, with respect to (mis)conduct between academics and students.

• [32] Related to the latter point, the Appellant needs to be able to refer to the decision, whether it is successful or unsuccessful on appeal, as these matters are relevant to the Appellant's operations and how it deals with academics and students. The Appellant also needs to be able to refer to the decision with respect to any ongoing management of the Respondent if he is reinstated.

• [33] Finally, and in any event, there is no good reason to make the order sought in this case. The names of the relevant student witnesses are already subject to confidentiality orders, which protect those names from being disclosed. De-identification of the party names will afford no protection to the relevant student (or new witness), that is not already afforded by reason of the existing confidentiality orders.

• [34] To the extent that the Respondent's legal representative suggests that publication of his name will have "negative effects on the relevant student's mental health", or that she would be "distressed", the Appellant contends that the Respondent is in no position to make submissions on her behalf and to attempt to use her for his own benefit. Furthermore, the Appellant is very concerned by the Respondent deploying the student's purported mental health to assist his argument. There was no, and is no, evidence before the Commission that the student suffers from a mental health condition. The Appellant submits this should be withdrawn.

• [35] The fact of these proceedings and the matters raised within them, have already been the subject of reporting in the press.[11] That is, the names of the parties, and summaries of the conduct at issue have already been published. In these circumstances there is, again, no basis for a further order keeping the names of the parties confidential.

• [36] To the extent that the Respondent suggests that his return to work would somehow be "impeded" by "unfairly wide dissemination of the decision", the Appellant does not understand the basis for this submission given Deputy President Dean's reasons and conclusions with respect to the Respondent's conduct. Indeed, publication of the reasons would appear to address entirely the concerns raised by the Respondent in his submissions of 4 March 2022.

• [37] Accordingly, the Appellant submitted the Respondent has identified no proper basis for the making of such orders and they should not be made.

• [38] In Amie Mac v Bank of Queensland Limited and Ors[12], Vice President Hatcher, dealing with an application for de-identification of individuals named in an application for an order to stop or prevent bullying said:

"[6] The principle of open justice will usually be the paramount consideration in determining whether a confidentiality order of the type sought by the respondents ought be made. The main features of that principle were usefully summarised in the NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1) as follows:

"[2] The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L& A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.

[3] There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).

[4] The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.

[5] To avoid the consequences that sometimes follow from the conduct of proceedings publicly and in open view, parties can, and frequently do, choose to litigate their disputes by private commercial arbitration. But if they choose to litigate in court, they must accept the necessity for the Court to conduct its proceedings openly and with transparency."

[7] The above passage describes the open justice principle in relation to courts, but I consider that the passage is equally applicable to a tribunal such as this Commission which conducts its processes in a quasi-judicial fashion."

• [39] Vice President Hatcher went on to identify circumstances where a departure from the principle of open justice may be permitted including, where not to do so, would defeat the proper administration of justice.[13] Further, it was observed that it is not sufficient to justify the making of a non-disclosure order merely that allegations have been made which are embarrassing, distressing or damaging to reputations. In relation to anti-bullying applications, Vice President Hatcher observed that the findings of the Commission will usually appropriately resolve concerns about embarrassment, distress or damage to reputations by either vindicating the position of persons alleged to be perpetrators or if allegations are substantiated, by publicly identifying perpetrators. In either case, the public scrutiny will have a deterrent effect that is in the public interest - in the former case against the making of unfounded allegations and in the latter case against engaging in bullying behaviour.[14] Those observations are apposite in the present case.

• [40] In this regard, I accept the Appellant's submission that the primary reason for the Respondent seeking to amend the confidentiality order appears to be embarrassment, distress and damage to his reputation. It is also the case that the Deputy President's decision contains findings in favour of the Respondent, including that the conduct for which he was dismissed was consensual. Those findings directly contradict the comments made in the email dated 1 September 2020 about which the Respondent complains. If staff and students of the MSI were "primed" with the email with a consequential risk of unrest being created by publication of the decision and related media attention, it is equally likely that the publication of the Deputy President's decision, including her analysis of, and conclusions about, the Respondent's conduct, will reduce any such unrest.

• [41] I also accept that if I was positively satisfied that the publication of the Deputy President's decision would seriously endanger the health and welfare of the relevant students, or cause them distress, that this would be a basis to grant the application to vary the confidentiality order. However, there is no evidence of any such effects on the students, or even the likelihood of such effects. Assertions that one of the students was visibly distressed while giving her evidence, do not provide a sufficient basis for the maintenance of a confidentiality order. It is not uncommon for persons given evidence in unfair dismissal proceedings, which are adversarial in nature, to be distressed, particularly where the evidence relates to allegations involving those persons or conduct alleged to have been perpetrated against them. Orders have already been made suppressing the identities of the relevant students and there is no application to disturb those orders.

• [42] It is also relevant that neither party sought confidentiality orders other than those relating to the students who gave evidence in the proceedings. The confidentiality order upon which the current application centres, was made at the initiative of the Deputy President just prior to the decision being released. Accordingly, at the time the students gave their evidence the only orders that were in contemplation were those suppressing their names and addresses and establishing the manner in which their evidence would be given. The students did not give their evidence in reliance on the suppression of the decision in its totality or on the basis that the Respondent and the Appellant would be de-identified.

• [43] There is nothing in the Deputy President's decision or the submissions of the parties in the present proceedings, to indicate that the students did not willingly give evidence in the proceedings albeit that they may have been distressed by the process of appearing in the Commission to give evidence and being subjected to cross-examination - not an unusual reaction. The students gave evidence in the Appellant's case, and it is not appropriate for the Respondent to make submissions purporting to advance the interests of witnesses who gave evidence against him, particularly where the submission also advances his own interests.

• [44] Finally, the fact that the Respondent shares his name with the Australian Prime Minister is not a basis for extending the confidentiality orders. There is no reason why this fact should attract media attention in the context of any interest in the case generally and it is likely that the amount of information about the Prime Minister on the internet will result in references to the Respondent being more difficult for those who engage in searching the internet, to locate.

• [45] For these reasons, the application by the Respondent to amend the confidentiality order made by Deputy President Dean on 18 February 2022 is refused. As a result, that order and the confidentiality order made by me on 7 March 2022, cease to operate on 14 March 2022 in accordance with their terms, with the result that there is no impediment to the publication of the Deputy President's decision and reinstatement order in U2020/3161.

[1] PR738523.

[2] Scott Morrison v Australian National University [2022] FWC 301.

[3] PR738352.

[4] PR739076

[5] PR739087.

[6] PR728781.

[7] [2021] FWC 1250.

[8] [2021] FWC 1250 at [8].

[9] Bei Zhang v Wealth for Life Institute Pty Ltd [2021] FWCFB 2605 at [22].

[10] Zhang ibid at [22] citing Amie Mac v Bank of Queensland Limited [2015] FWC 774 at [6]- [10]; Appleroth v Ferrari Australasia Pty Ltd [2020] FCA 756 at [12]- [13] and the authorities cited therein.

[11] See e.g. [2021] FWC 1250 at [3].

[12] [2015] FWC 774.

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