When publication or disclosure of information is prohibited or restricted > > ... > > 6.7 The Tribunal may also make a non-disclosure or prohibition order on its own initiative. > > Note 1: The Tribunal will make a non-disclosure order under section 70 of the Act at the earliest opportunity to protect the identity of a child participant or child applicant in a review of a decision under the National Disability Insurance Scheme Act 2013.

4. On 24 February 2025 a non-disclosure order was issued in the proceeding in the following 'standard' terms (non-disclosure order) :

The Tribunal by order, directs pursuant to sections 70(1) and 70(2) of the Administrative Review Tribunal Act 2024 that until further order: > > (1) the name and any other information tending to reveal the identity of the applicant must not be published; > > (2) the applicant's name is to be replaced with the pseudonym GYSV in documents relating to the proceeding filed or created after the date of this order; > > (3) the name and any other information tending to reveal the identity of any witness must not be published; and > > (4) information relating to the proceeding that comprises evidence, information about evidence or other information given to the Tribunal must not be published, except to the extent that it is contained in the Tribunal's written reasons for a decision in the proceeding.

5. Non-disclosure orders in respect of child and young person participants and applicants in NDIS proceedings made at the Tribunal's own initiative pursuant to s 6.7 of the Common Procedures Practice Direction are imposed 'automatically' and in the 'standard form' set out above. They do not involve any consultation with the parties in relation to the appropriateness of such an order, or its particulars, in the circumstances of the case.
6. That occurs in a context where the ART is designated a 'Commonwealth entity' within the meaning of ss 10(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act), being "(c) a listed entity". The relevant implication of this for present purposes is that the Tribunal's 'accountable authority',[3] being its Principal Registrar,[4] is reposed with a duty to establish and maintain appropriate systems relating to risk oversight, management and internal control.[5]
7. In that context the Australian Government, National Office for Child Safety, has published a Commonwealth Child Safe Framework[6] (Child Safe Framework) which applies to all non-corporate Commonwealth entitles, such as the Tribunal. The Principal Registrar, as the Tribunal's accountable authority, is responsible for the implementation of the Child Safe Framework within the Tribunal.[7]
8. In very short summary, the Child Safe Framework aims to protect children and young people from the risk of harm or abuse by establishing minimum standards for Commonwealth entities to create and maintain behaviours and practices that are safe for children.[8] It sets out four core requirements which together comprise the minimum standards required of Commonwealth entities to protect children. Relevantly, this includes 'requirement 3' which is the 'adoption and implementation of the National Principles for Child Safe Organisations' (National Principles).[9] There are 10 National Principles. Relevantly, National Principal 8 provides:
   1. Physical and online environments promote safety and wellbeing, while minimising the opportunity for children and young people to be harmed.
9. The mechanism by which the Tribunal has adopted the National Principles is its Child Safe Policy,[10] which applies to all staff of the Tribunal to the extent that it is consistent with the Tribunal's legislative obligations and mandate.[11]

1. The Applicant, by her parent representative, contends that the non-disclosure order ought to be revoked on the basis that it is not necessary to secure the proper administration of justice in this case. By reference to s 71 of the ART Act, it is submitted that it is not in the interests of open justice. It is submitted that the order has been imposed on the Applicant and her parents rather than it having been requested by them, and further, that the Applicant and her parents were not invited to make submissions, before it was imposed. It is submitted that the order has the effect of unreasonably preventing the Applicant's parents from discussing their experience in the proceedings and advocating for the Applicant outside the proceeding, presumably in relation to the dispute before the Tribunal. It is submitted that the Applicant's condition is so rare as to enable her identification from the Tribunal's reasons for decision despite the non-disclosure order, and that the order is therefore of no utility.
2. The Applicant also makes the following submission which it is appropriate to set out verbatim:
   1. We are not seeking for the judgement to be published under her full name. Rather, we should be permitted to discuss details of the case using our own names. We as her parents intend to protect [the Applicant's] right to privacy and minimise her digital footprint until she is able to manage those issues herself as an adult.
3. The Respondent neither consents to, nor opposes, the revocation application. Subject to that, the Respondent submits that the non-disclosure order has been made in accordance with s 6.7 of the ART's Common Procedures Practice Direction and that it is consistent with the Tribunal's obligations under the Commonwealth's Child Safe Framework. It is further submitted that the Applicant's parents have not been inhibited by the non-disclosure order from advocating for the Applicant in the proceedings and it would not prevent them from discussing the Applicant's condition with other parties. On this basis it is suggested the grounds for the application for a revocation order are unclear.

1. Section 70 of the ART Act provides, relevantly:

70 Tribunal may restrict publication or disclosure or disclosure of information > > Information about parties, witnesses and others > > (1) 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 in the Tribunal; or

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

(b) Information otherwise concerning a party, witness or other person mentioned in paragraph (a).

Note 1: The power must be exercised in accordance with section 71.

Note 2: Breach of a non-publication or non-disclosure order is an offence (see section 119).

Information relating to proceeding

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

(a) relates to a proceeding in the Tribunal; and

(b) is any of the following:

(i) information that comprises evidence or information about evidence;

(ii) information given to the Tribunal.

Note 1: The power must be exercised in accordance with section 71.

Note 2: Breach of a non-publication or non-disclosure order is an offence (see section 119).

(3) Without limiting subsection (2), the order may prohibit or restrict the publication or other disclosure to some or all of the parties to the proceeding.

Order can be made on application or on Tribunal's initiative

(4) The Tribunal may make an order under this section on application by a person or on its own initiative.

71 Requirements for Tribunal orders about hearings, publication and disclosure > > Practice directions > > (1) In making an order under ... s 70, the Tribunal must comply with the requirements (if any) specified in the practice directions. > > Considerations > > (2) In considering whether to make an order under ... section 70 in relation to a proceeding, the Tribunal must have regard to the following:

(a) the principle that it is desirable that hearings of proceedings in the Tribunal are held in public;

(b) the principle that it is desirable that evidence given before the Tribunal is made available to the public;

(c) the principle that it is desirable that evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding;

(d) any reasons in favour of making an order, including the following:

(i) in any case - the circumstances of the parties to the proceeding and other persons connected to the proceeding;

(ii) in any case - the harm (if any) that is likely to occur to a person if the order is not made;

(iii) in relation to an order under s 70 - the confidential nature (if any) of the information.

(e) any other matters the Tribunal considers relevant.

1. Section 119 of the ART Act makes it an offence to breach a non-disclosure order:

119 Offence - breach of non-publication or non-disclosure order > > A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct contravenes an order under section 70 (Tribunal may restrict publication or disclosure of information) ...

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

1. Subsection 36(1) of the ART Act authorises the President to make practice directions for the purposes of proceedings before the Tribunal, including relevantly, in relation to the procedure of the Tribunal: paragraph 36(1)(b). The Common Procedures Practice Direction is made pursuant to that power.[12] Sections 6.6 to 6.8 of the Common Procedures Practice Direction set out the circumstances in which publication or disclosure of information in a proceeding is prohibited or restricted. Section 6.7 is relevant in the present case and has been set out above.

1. Subsection 71(1) of the ART Act imposes an obligation on the Tribunal to comply with the requirements, if any, of the Common Procedures Practice Direction in making an order under s 70. Section 6.7 of the Common Procedures Practice Direction is to be considered in that context. However, that practice direction is expressed in permissive rather than mandatory terms, consistent with the statutory discretion conferred by s 70 of the ART Act to which it relates. Note 1 to s 6.7 is to read consistently with this discretion. In my opinion, the word 'will' is to be understood as expressing a Tribunal intention, not as expressing a mandatory requirement. If a mandatory requirement had been intended, the word 'must' would have been used. It follows from this that the Tribunal retains discretion to revoke a non-disclosure order made under s 70 of the Act in a proceeding for review of a decision made under the NDIS Act where the participant or applicant is a child or young person. Note 1 to s 6.7 does not prevent this.
2. Section 241 of the ART Act concerns the application of the PGPA Act to the Tribunal. It provides that the 'listed entity' for the purposes of that Act is the following group of persons: the Principal Registrar, Tribunal staff members, persons engaged under ss 90(1) (being persons engaged to conduct dispute resolution processes) and consultants engaged under section 240 of the ART Act. The 'listed entity' does not include members of the Tribunal appointed under Division 3 of Part 8 of the Act. It follows from this that the Child Safe Framework and the National Principles for Child Safe Organisations do not apply to members in the exercise of their functions under the ART Act. Of course, this is not to say that the policy they contain is not relevant in the exercise of member functions, including in the exercise of the discretion conferred by s 70. They plainly are.
3. The discretion conferred by s 70 to make (and therefore to revoke pursuant to s 86) a non-disclosure order is to be exercised in accordance with s 71. Subsection 71(2) sets out a non-exhaustive list of relevant considerations in the exercise of the discretion. Paragraphs 71(2)(a) to (c) each embrace the principle of open justice.
4. The principle of open justice is a fundamental rule of the common law related to the judicial functions of courts. In Russell v Russell[13] Gibbs J observed that it is the 'ordinary rule' of the courts of Australia that their proceedings shall be conducted 'publicly and in open view' because without public scrutiny 'abuses may flourish undetected', and 'the public administration of justice tends to maintain confidence in the integrity and independence of the courts'.[14] However, the principle of open justice is not absolute even in judicial proceedings. It operates subject to limits, including where such limits are necessary to secure the proper administration of justice or where such limits are otherwise in the public interest.[15]
5. The ART is an administrative body, not a court. Nevertheless, it is established to provide an independent mechanism for the review of government decisions that, among other things, is fair and just, improves the transparency and quality of government decision-making and which promotes public trust and confidence in the Tribunal.[16] The principle of open justice is facultative of those objectives. To apply French CJ's observation in Hogan v Hinch 'it is a means to those ends'. [17] Consequently, the Tribunal will not lightly depart from the principle of open justice in its procedure, there must be good reason to do so.[18]
6. Paragraph 71(2)(d) sets out relevant considerations in the exercise of the discretion to limit the operation of the principle of open justice in a particular case, without limiting those matters that may be considered. These are the circumstances of the parties, the harm (if any) that is likely to occur to a person if an order limiting the principle of open justice is not made, and the confidential nature of any information in the proceeding.
7. The non-disclosure order made in this proceeding may be taken to be founded upon the first two considerations. That is, that the Applicant's relevant circumstances are that she is a child, and because of that fact, there is a potential risk of harm to her if her identity and personal information in connection with the proceedings is publicly disclosed. However, the 'automatic' making of the non-disclosure order immediately post-lodgement of the application for review involved no specific consideration of the Applicant's circumstances beyond the fact of her age and the general assumption as to her age-related vulnerability. As already stated, the views of her parent representative were not sought and considered prior to the making of the order.
8. It is relevant to note that the review in this case concerns a decision made under the NDIS Act related to the funding of early intervention supports for the Applicant. In this respect it concerns a dispute about a personal entitlement to that support. That dispute necessarily involves consideration of the Applicant's sensitive personal health information. In this respect, the character of the review might be viewed as personal and private, rather than as public. Such a case might be contrasted to cases arising in other jurisdictional areas of the Tribunal, such as in the business regulation and discipline lists, which broadly concern disputes about the application of consumer protection legislation. Although these reviews impact on individual Applicants, they also involve the public interest. While the ss 71(2) considerations apply in the exercise of the discretion conferred by s 70 across these divergent lists the lens through which they are viewed may be significantly different because of the character of the underlying jurisdiction.
9. However, this does not mean that there is not a public interest in the review of decisions made under the NDIS Act. The NDIS Act is unique for its values-driven, social insurance and entitlement-based approach to the provision and funding of supports for persons with significant disability. It involves substantial public expenditure. Decisions made under the Act therefore have the potential to generate significant public interest because of their implications for others in similar circumstances and for the administration of the NDIS. Application of the paragraph 71(2)(d) considerations therefore does not inevitably lead to the conclusion that there should be a limitation on the principle of open justice in a NDIS case, even when the case involves a participant or applicant who is a child or young person.
10. The non-disclosure order made in this case applies to the name of the applicant and 'any other information tending to reveal [her] identity'. It must be accepted that the Applicant's parents' names tend to reveal her identity (their parental relationship is capable of being known). The order also applies to 'the name and other information tending to reveal the identity of a witness'. The Applicant's mother appeared as a witness in the proceeding. The order therefore prevents the disclosure of the Applicant's mother's name in relation to the proceeding. The order also applies to information comprising evidence, information about evidence, and other information except to the extent that it is contained in the Tribunal's written reasons for a decision in the proceedings. It therefore has a plenary impact on the public disclosure of information that is before the Tribunal in the proceeding, except to the extent that this information is referred to in the Tribunal's reasons for decision.
11. These are each significant limitations on the principle of open justice. It must be accepted that they would prevent, or at least severely inhibit, the Applicant's parents from engaging in public discussion of the Applicants' case. If they did so it would expose them to prosecution for breach of the s 119 offence, which carries a maximum penalty of 12 months imprisonment or a fine of $19,800.00, or both.[19] That is a very serious potential consequence of the order and one that must be given some weight in consideration of whether it should remain in place.
12. Subsection 71(2) requires a balancing of the competing interests of the principle of open justice with those factors which weigh in favour of its limitation. In the circumstances of this case that occurs in a circumstance where the order has been made presumptively without any consideration of the Applicant's individual circumstances, and where the Applicant by her parent representative does not want these limitations, except to the extent that the Applicant's name is deidentified in my reasons for decision.
13. The Applicant is a member of an intact family in which both her parents have parental responsibility for her. 'Parental responsibility', in relation to a child, is relevantly defined in s 61B of the Family Law Act 1975 (Cth) to mean 'all the duties, powers, responsibility and authority which, by law, parents have in relation to children.' Uncontroversially, this includes the duty to protect a child from harm.
14. Both the Applicant's parents participated in the substantive hearing conducted before me: her father as her legal representative, and her mother as instructing NDIS parent representative and witness. Their affection for their daughter and their concern for her best interests could not reasonably be in any doubt. Moreover, as I have set out above, the submissions filed by the Applicant in support of the application to revoke the non-disclosure order demonstrate awareness of and commitment to the Applicant's privacy, including in cyberspace, until she is able to manage those issues as herself as an adult. I have no reason to doubt the sincerity or conviction of that submission.
15. The discretion conferred by s 70 to make a non-disclosure order may be exercised by the Tribunal on its own initiative, and the Tribunal is not bound by the views of the parties to the proceedings as to the appropriateness of such an order. It may exercise that discretion contrary to the views of a person with parental responsibility for a child or young person in a specific case if the circumstances warrant this. However, in my view, it would only be appropriate to make or continue such an order over the objection of a parent representative where it was demonstrably in the best interests of the child or young person to do so. Such a decision would not be made lightly, and certainly not 'automatically'.
16. In the circumstances of this case, I am satisfied that the Tribunal is in no better position than the Applicant's parents to protect her from any potential harm that may arise from public discussion of her case by her parents. In this respect the purpose of the order was to protect the Applicant from harm, not to prevent her parents from engaging in such discussion.
17. I will therefore revoke the non-disclosure order made on 24 February 2026 and replace it with a much more limited order maintaining the pseudonym for the Applicant assigned by that order. While this is a relatively weak non-disclosure order it is consistent with what the Applicant, by her parent representative, wants and it offers at least some degree of protection of her identity from disclosure.

[1] By the Administrative Review Tribunal (Common Procedures) Practice Direction 2026; s 6.7 of this practice direction is in the same terms.

[2] I was subsequently constituted as the Tribunal for the purposes of the proceeding under s 37 of the ART Act, which is the capacity in which I am dealing with the case now.

[6] Australian Government National Office for Child Safety, Commonwealth Child Safe Framework, Second Edition, December 2020 (Child Safe Framework).

[10] Administrative Review Tribunal, Child Safe Policy, 14 October 2024, section 6, pages 3-4.

[12] Common Procedures Practice Direction, page 1.

[13] (1976) 134 CLR 495.

[15] Hogan v Hinch (2011) 243 CLR 506 at [21] (Hogan v Hinch) per French CJ; John Fairax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465, [476] - [477]

[18] See, for example, Azzopardi and Secretary, Department of Social Services (Social Services Second Review) [2019] AATA 105 at [5]; M&A Corporate Accountants Pty Ltd and Tax Practitioners Board [2021] AATA 4523 at [28], being decisions referencing s 35 of the former Administrative Appeals Tribunal Act 1975 (Cth) which was in essentially the same terms as s 71.

[19] s 4AA Crimes Act 1914 (Cth); a penalty unit being $330.00 from 7 November 2024.