CAP21 v Administrative Appeals Tribunal

BACKGROUND 5 In 2003, Mr Haywood commenced employment with the Department of the Environment. 6 From 2011, Mr Haywood reported directly to the applicant. 7 On 31 January 2012, Mr Haywood and another colleague attended a meeting with the applicant at which the applicant recounted a joke she had heard on a television program the previous night. Mr Haywood took offence at a word used in that joke. 8 On 9 December 2013, Mr Haywood submitted a claim for compensation to Comcare. 9 On 7 April 2014, Comcare denied liability in respect of Mr Haywood's claim. That position was affirmed on reconsideration on 4 July 2014. Mr Haywood then commenced a proceeding in the Tribunal seeking a review of Comcare's decision (First Tribunal Proceeding). 10 In April 2015, the applicant provided a signed written statement in the First Tribunal Proceeding and in June 2016, she gave evidence at the hearing of the First Tribunal Proceeding and was cross-examined by Mr Haywood. 11 On 31 August 2016, the Tribunal in the First Tribunal Proceeding affirmed the decision under review and published reasons for that affirmation (2016 Decision). 12 The 2016 Decision was published on the AustLII website. It referred to the applicant and the telling of a joke but did not refer to the content of the joke. 13 During September 2016, two newspapers published an article concerning the First Tribunal Proceeding which referred to Mr Haywood and his 'supervisors', but not to the applicant (First and Second Newspaper Articles). 14 Subsequently, a third newspaper published an article concerning the First Tribunal Proceeding which did refer to the applicant (Third Newspaper Article). 15 In February 2018, Mr Haywood submitted another compensation claim to Comcare. On 6 August 2018, Comcare declined Mr Haywood's claim for compensation and on 31 October 2018 affirmed that decision following a request for reconsideration by Mr Haywood. 16 On 11 December 2018, Mr Haywood commenced a proceeding in the Tribunal seeking review of Comcare's decision (Second Tribunal Proceeding). 17 In February 2020, the applicant made a witness statement in the Second Tribunal Proceeding. That statement made no reference to the Third Newspaper Article. 18 From 16 November to 18 November 2020, the Tribunal heard the Second Tribunal Proceeding with some attendees in person and others attending by Microsoft Teams. The applicant gave evidence on 17 November 2020 and was cross-examined by Mr Haywood. 19 On 16 March 2021, as noted above, the Tribunal delivered the 2021 Decision in the Second Tribunal Proceeding. 20 On 17 March 2021, the 2021 Decision was published on the AustLII website. On that day, a representative of the applicant's current employer wrote to the Tribunal on behalf of the applicant seeking urgent consideration of the redaction of the applicant's name and information identifying her from the 2021 Decision. 21 Also, on 17 March 2021, the applicant provided a written submission (applicant's submission) to the Tribunal. It did not refer to the Third Newspaper Article. 22 Following a request by the Tribunal, the applicant's submission was provided in a redacted form to Mr Haywood and Comcare and their response was sought. Comcare took a neutral position. 23 On 24 March 2021, Mr Haywood's submission was filed. Mr Haywood's submission referred to the publication of his name in "various media outlets" but did not identify any particular outlet (and in particular the Third Newspaper Article). 24 On 25 March 2021, the applicant provided further information to the Tribunal, in support of her application (applicant's further submission). That submission did not refer to the Third Newspaper Article. 25 On 12 April 2021, as noted above, the Tribunal made the s 35(3) Decision and on 28 April 2021 the Tribunal provided its Reasons. 26 On 11 May 2021, the Tribunal made an order preventing the publication of the 2021 Decision and the Reasons, pending the resolution of this application for judicial review.

THE reasons 27 The reasoning of the Tribunal was as follows (references to paragraphs are to paragraphs of the Reasons). 28 The Tribunal set out the background to the application before it in a detailed narrative, including (at [16]) a reference to the First and Second Newspaper Articles and the Third Newspaper Article. The Tribunal's narrative was replete with footnotes. The First and Second Newspaper Articles were referred to in footnote 13 as part of an exhibit in the Second Tribunal Proceeding and by reference to its internet location. The Third Newspaper Article was referred to in footnote 14, but by reference only to its internet location. There was no reference to an exhibit. 29 The Tribunal commenced its reasoning (at [39]) by setting out its conclusion that it was not satisfied that a s 35(3) order should be made. The Tribunal acknowledged that the applicant had no doubt suffered (and continues to suffer) embarrassment, frustration and hurt over the many years that issues the subject of the Second Tribunal Proceeding had been ventilated in various fora but was of the view that these and other related matters covered in the applicant's submissions did not "displace the factors set out in subsection 35(5) … and the Tribunal's objectives in section 2A of the AAT Act". 30 The Tribunal then identified that s 35(3) empowers the Tribunal to make directions prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of a party or witness in a proceeding, including by the use of a pseudonym instead of the name of a party or witness (at [40]). 31 The Tribunal indicated its view that s 35(5) makes plain that in considering whether to make an order under s 35(3) the Tribunal is to take as the basis of its consideration that "it is desirable that hearings of proceedings before the Tribunal be held in public and that evidence given before the Tribunal and the contents of documents received in evidence should be made available to the public" (at [41]). 32 The Tribunal was of the view that the terms of s 35 require the Tribunal to generally conduct a proceeding on the basis of openness, in the interests of maintaining public confidence in the fairness and integrity of that proceeding, and that the Tribunal should only depart from this approach if it is satisfied that there are proper and cogent reasons for doing so (at [42]). 33 The Tribunal (at [43]-[47]) then referred to a series of authorities concerning the application of s 35, namely, Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33 at 55-56; Australian Securities and Investments Commission v Administrative Appeal Tribunal [2009] FCAFC 185; (2009) 181 FCR 130 at [75] and [79]; Re Lawrance and CRS Australia [2004] AATA 1136; (2004) 85 ALD 238; Devasahayam and Comcare [2010] AATA 784; and Modini and Tax Agents' Board of Queensland [2005] AATA 1200 at [87]-[91]. 34 The Tribunal considered the extent to which the applicant's identity was already discernible prior to the Second Tribunal Proceeding. In this regard, the Tribunal found that: (1) the applicant appeared as a witness in the First Tribunal Proceeding in 2016 (at [48]-[49]); (2) no s 35(3) order was made in connection with the First Tribunal Proceeding (at [49]); (3) the 2016 Decision in the First Tribunal Proceeding, in which the applicant's name appeared numerous times, remained publicly available without any confidentiality orders in place (at [48]); (4) the applicant's name featured in media reporting in 2016 following the publication of the 2016 Decision. The Tribunal cited, as an example, the Third Newspaper Article which stated that the applicant was Mr Haywood's supervisor at the Department and had told the joke that ultimately became a focus of the Second Tribunal Proceeding (at [49]); and (5) therefore, the applicant's name and some of the relevant subject matter of the Second Tribunal Proceeding were already in the public domain well in advance of the Second Tribunal Proceeding and the making of the 2021 Decision (at [49]). 35 The Tribunal also considered the opportunities that the applicant had to seek a s 35(3) order as part of the Second Tribunal Proceeding. In this regard, the Tribunal found that the applicant: (1) provided a written statement of evidence in February 2020 (at [49]); (2) appeared as a witness at the hearing in November 2020, at which time she was supported by a legal representative from her current employer (at [49] and [51]); (3) had access to all relevant documentation filed in the Second Tribunal Proceeding, at least from the time of giving her evidence at the hearing (at [49]); and (4) was aware in advance of the hearing of the substance of Mr Haywood's claims that gave rise to the Second Tribunal Proceeding (at [49]). 36 For the reasons set out in the previous two paragraphs, the Tribunal was not satisfied that the applicant had been or would be prejudiced by publication of her name and identifying details in the 2021 Decision. Nor was the Tribunal satisfied that the applicant would suffer an injustice or serious disadvantage following publication of her name and identifying details (at [49]). 37 The Tribunal then recorded its view that it was highly likely that, once the 2021 Decision was publicly available, anyone interested in it would be able to identify the applicant as the only witness with a Tribunal-applied pseudonym given the following: the content of her evidence in the Second Tribunal Proceeding; Mr Haywood's claims the subject of his application before the Tribunal and covered in the 2021 Decision; and the related history which was already publicly available in the 2016 Decision and the associated media reporting of the claims and of that decision (at [50]). 38 The Tribunal then explained that it had been required in the 2021 Decision to address all elements raised by Mr Haywood in his claim and submissions, most of which focused on the applicant and that she was central to the application in the Second Tribunal Proceeding (at [51]). The Tribunal indicated that it was satisfied that the making of a s 35(3) order would not promote public trust and confidence in the decision-making of the Tribunal pursuant to its objectives in s 2A of the Act. In this regard the Tribunal noted that: (1) Mr Haywood appeared in the Second Tribunal Proceeding as a self-represented applicant; (2) it was mindful of its broader objectives under the Act to ensure that he received a "fair review"; and (3) the hearing of the Second Tribunal Proceeding had been conducted in public, both in person and by Microsoft Teams. For each of the three days of the hearing, it was referred to on the "Daily listings" page of the Tribunal's website, containing information of hearings open to the public and how to request access to a hearing (at [51]). 39 The Tribunal then noted that the applicant had made no application for a s 35(3) order in advance of, or during the hearing of the Second Tribunal Proceeding, and she made no such application during the four month period between the November 2020 hearing and the publication of the 2021 Decision in March 2021. The Tribunal did note that this fact (the making of the s 35(3) application after the 2021 Decision had been published) did not weigh against the applicant's application and that it merely illustrated the opportunities that were available up until publication of the 2021 Decision for a confidentiality order to be sought from the Tribunal and that none was in place for the hearing, including in relation to witnesses or their evidence (at [51]). 40 The Tribunal (at [52]) stated that, in making the s 35(3) Decision, it sought to reflect the Tribunal's legislatively prescribed objectives and that the anonymisation of the applicant's name would not fulfil those objectives. As a result, the reasons put forward by the applicant did not displace the considerations required under s 35(5), such as the desirability of public hearings and that evidence given to the Tribunal and documents received into evidence be made available to the public. 41 The Tribunal then turned (at [52]) to the question of confidentiality of the applicant's name. It recorded that it was not satisfied that any of the information regarding the applicant in this proceeding was confidential in nature, noting again that some of this material had previously been publicised as a result of the First Tribunal Proceeding. The Tribunal noted that, as found in Pochi, confidentiality is 'not lightly established'. 42 The Tribunal then found (at [53]), contrary to the applicant's submission to it, that it was not satisfied that the 2021 Decision damaged the applicant's professional reputation or standing in the community or that it was slanderous. To this end, the Tribunal noted (at [53]) that it had made no adverse findings against the applicant in the 2021 Decision, in which it stated that it did not accept Mr Haywood's assertions concerning the applicant's fitness for employment, alleged breaches of the Public Service Act 1999 (Cth) and various other instruments related to her employment, alleged perjury and alleged 'illegal acts' against Mr Haywood. 43 Finally, the Tribunal (at [54]) recorded its sympathy for the applicant's position. The Tribunal noted that the applicant was a longstanding public servant against whom Mr Haywood had made numerous allegations over many years; that she gave evidence in each of the Tribunal Proceedings; that no adverse findings had been made against her in either of these proceedings; and that Mr Haywood had been unsuccessful in both proceedings. The Tribunal acknowledged that despite this, the details of the claims made in the Tribunal are no doubt hurtful and embarrassing. However, on balance, the Tribunal was not satisfied that these factors, nor the reasons advanced by the applicant, were sufficient to depart from the Tribunal's broad objectives and considerations in providing its review process in this proceeding under the Act.

consideration 44 The Court's task is to determine, by reference to the grounds of judicial review advanced by the applicant, whether the s 35(3) Decision was made within the authority conferred upon the Tribunal by the Act. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [29]-[30], Kiefel CJ, Gageler, Keane and Gleeson JJ explained (footnotes omitted): [29] The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid. [30] The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation. 45 The applicant contended that the Tribunal had acted beyond the authority conferred upon it by the Act and in particular that it had failed to afford her procedural fairness; it had failed to consider mandatory relevant considerations and had considered irrelevant considerations; it had acted legally unreasonably; and it had made errors of law. 46 I turn now to consider whether the Tribunal failed to afford procedural fairness to the applicant. The Tribunal is subject to an obligation generally to afford procedural fairness: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582-584; Fletcher v Federal Commissioner of Taxation [1988] FCA 362; (1988) 19 FCR 442 at 454-455 (Lockhart, Wilcox and Burchett JJ). Section 39 of the Act provides, more specifically, as follows: 39 Rights of parties to present case - Divisions other than Security Division (1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. (2) This section does not apply to: (a) a proceeding in the Security Division to which section 39A applies; or (b) the agency party to a proceeding in the Social Services and Child Support Division. (3) This section does not limit subsection 25(4A) (Tribunal may determine scope of review). 47 Sections 35, 36 and 36B of the Act are not presently relevant and s 39(2) is not engaged on the present facts. Further, "proceeding" is defined in s 3 of the Act as including "(f) any other application to the Tribunal under this Act …", a phrase which encompasses an application under s 35(3). 48 Thus, the Tribunal in considering the applicant's s 35(3) application was obliged to ensure that the applicant, as a party to that "proceeding", was "given a reasonable opportunity to present … her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents": see also O'Sullivan v Repatriation Commission [2003] FCA 387; (2003) 128 FCR 590 at 601 [44]-[45] (Sackville J) and Repatriation Commission v Farley-Smith [2007] FCA 1058; (2007) 96 ALD 348 at [54] (Middleton J). 49 It is clear that the Tribunal had regard (at [49] and [50]) to the Third Newspaper Article in reaching its decision on the s 35(3) application. In particular, the Tribunal regarded the Third Newspaper Article as evidence that the applicant's name and some of the relevant subject matter of the 2021 Decision was already in the public domain well in advance of the Second Tribunal Proceeding; and as supportive of the Tribunal's finding that the applicant had not been or would not be prejudiced or suffer an injustice or serious disadvantage from the publication of her name and identifying details in the 2021 Decision. 50 It is also clear that the Tribunal did not provide to the applicant an opportunity to inspect the Third Newspaper Article and to make submissions upon it. No inference is available that she otherwise had an opportunity to inspect it or make submissions about it. In this regard, the Third Newspaper Article was not referred to in the applicant's witness statement in the Second Tribunal Proceeding or in any of her submissions. Further, to the extent that it could be considered that knowledge of documents tendered in a proceeding is attributable to a witness (which is doubtful), it appears that the Third Newspaper Article was not in any event an exhibit in the Second Tribunal Proceeding and that the Tribunal may have informed itself of the existence of that article (see [28] above). 51 Thus, the Tribunal failed to accord procedural fairness to the applicant. 52 I accept that, as the applicant submitted, this error was material to the outcome in that there was a possibility of a different outcome if an opportunity to inspect the Third Newspaper Article and to make submissions had been afforded to the applicant. The applicant could have addressed the level of prejudice to her caused by the Third Newspaper Article (which dealt with the 2016 Decision and which had noted that the content of the joke was not disclosed in that decision) and the relativity of such prejudice to the prejudice that she might suffer if the 2021 Decision (which referred to the content of the joke) were not to be redacted. In particular, as the applicant submitted, she would have had the opportunity to seek to persuade the Tribunal that the prejudice which flowed from the Third Newspaper Article was relatively minor when compared to the prejudice that would flow from the publication of the unredacted 2021 Decision because of the differences in the subject matter, evidence and findings of the First and Second Tribunal Proceedings. 53 It follows that the Tribunal fell into jurisdictional error and the s 35(3) Decision should be set aside; and the applicant's application for an order under s 35 should be remitted to the Tribunal for determination according to law. 54 It is thus unnecessary to consider the applicant's remaining grounds of review (failure to consider mandatory relevant considerations; taking into account irrelevant considerations; legal unreasonableness; and errors of law): AFD21 v Minister for Home Affairs [2021] FCAFC 167; (2021) 393 ALR 398 at 415 [61].

mr haywood's evidence and submissions 55 Mr Haywood provided extensive evidence and submissions. Much of his evidence was admitted subject to objections as to relevance or because it was not material that was before the Tribunal. To the extent that such objections were taken, they are upheld. 56 Mr Haywood's case was not directed at answering the applicant's application for judicial review of the s 35(3) Decision, despite the indication that the Court provided to him at a case management hearing on 30 March 2022 that the matter for determination was a narrow one, namely, whether the Tribunal made an error in not making a confidentiality order in favour of the applicant with respect to the 2021 Decision. 57 Instead, Mr Haywood's case was wide-ranging and in effect sought to overturn the 2016 Decision and the 2021 Decision (in respect of which decisions Mr Haywood did not seek judicial review or lodge an appeal (on a question of law) under s 44 of the Act); and to make a miscellany of complaints about the manner in which he had been treated. Whilst there can be no doubt that Mr Haywood feels aggrieved, such matters are quite irrelevant to the applicant's application for judicial review of the s 35(3) Decision. 58 Mr Haywood sought to justify his approach on the basis that the orders he sought (including orders overturning the 2016 Decision and the 2021 Decision and for punitive damages payable by the applicant for her alleged conduct) were orders that the Court could (and should) make because the applicant's Further Amended Originating Application for judicial review included within the "Orders Sought": "Such further or other order as this Honourable Court thinks fit". 59 That attempted justification is misconceived. The "Orders Sought" were sought by the applicant and not by Mr Haywood and were sought within the confines of her application for judicial review. As noted above, Mr Haywood did not seek judicial review of, or appeal, either the 2016 Decision or the 2021 Decision.

conclusion 60 For the reasons set out above, the s 35(3) Decision should be set aside and the applicant's application for an order under s 35 of the Act should be remitted to the Tribunal for determination according to law. I will make orders accordingly. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.