Health Insurance Act 1973 ss. 16A, 23DN, 23DO and 131

Pathology Services Accreditation Act 1984 (Vic) ss. 13 and 18A

Medical Practice Act 1994 (Vic)

Cancer Act 1958 (Vic)

The Herald and Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267

Otter Gold Mines Ltd v Deputy President GL McDonald of the Administrative Appeals Tribunal (1997) 48 ALD 222

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Re Maher and Attorney-General's Department, CRA Ltd and Mary Kathleen Uranium Ltd (1985) 7 ALD N411

McPherson v McPherson [1936] AC 177

Russell v Russell (1976) 134 CLR 495

Dickason v Dickason [1913] HCA 77; (1913) 17 CLR 50

R v Chief Registrar of Friendly Societies ex parte New Cross Building Society [1984] 2 All ER 27

The Herald & Weekly Times Ltd v The Magistrates' Court of Victoria and Others [1999] VSC 232; [1999] 2 VR 672

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247

Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority (1999) 58 ALD 581

Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407

Re Commonwealth and Quirke (986) [1986] AATA 57; 9 ALD 92

Re Repatriation Commission and Delkou (1993) 31 ALD 629

Re Dart and Director-General of Social Services (1982) 4 ALD 553

REASONS FOR DECISION [2002] AATA 169

On 4 March, 2002, I made an order pursuant to s. 35 of the Administrative Appeals Tribunal Act 1975 varying an earlier order I had made in relation to these proceedings. At the time I made it, I indicated that I would give reasons for my order and now set them out in the following paragraphs.

2. For the purposes of the stay application, I set out a chronology of some of the events, reports and responses that appear from the material lodged in the Tribunal either pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") ("T documents") or by the parties in the course of the proceedings to date. The chronology does not purport to set out either the reports or GDL's responses in their entirety.

(1) The applicant, Kanina Banner Pty Ltd ("Kanina Banner"), trades as General Diagnostic Laboratories ("GDL"). Kanina Banner is an Approved Pathology Authority ("APA") under the Health Insurance Act 1973 ("the Act"). Since 20 December, 1999, it has owned and operated a pathology laboratory. Prior to 20 December, 1999, the APA in respect of the laboratory had been held by Dr Max Wolf.

(2) Although there has been some confusion over the proper respondent in this case, it is the Minister for Health and Ageing ("the Minister"). The Minister has power to approve premises as an accredited pathology laboratory ("APL") and to vary or revoke that approval under the Act (s. 23DN). As has occurred in this case, a delegate of the Minister may exercise those powers but the Act provides that the Minister is deemed to have exercised them (s. 131). In general terms, a consequence of being an APL is that medicare benefits are payable in respect of services rendered in that APL (s. 16A).

(3) Before Kanina Banner purchased the laboratory, GDL gained accreditation from National Association of Testing Authorities Australia ("NATA") and the Royal College of Pathologists Australia ("RCPA") in October, 1997.

(4) GDL had been approved by the Minister as an APL Category 1 (e.g. 20 January, 1998 for 3 April, 1998 to 1 April, 1999 and 25 March, 1999 for 2 April, 1999 to 31 March, 2000). Approval had been given in respect of haematology, chemical, microbiology, immunology, tissue pathology, cytology, infertility and pregnancy.

(5) The GDL laboratory has been assessed on several occasions by NATA and reports of, and correspondence relating to, those assessments has been forwarded to the Health Insurance Commission ("Commission"). Copies of most, if not all, reports and correspondence have also been given to the Pathology Services Accreditation Board ("PSAB"), which has been established under the Pathology Services Accreditation Act 1984 (Vic). GDL has responded to the reports.

(a) Prior to GDL's being purchased by Kanina Banner, it was assessed in September, 1998 by a Medical Testing Accreditation Advisory Committee and re-visited on 6 May, 1999 to verify action taken in response to that assessment. In its report dated 9 June, 1999, the Committee found that the laboratory maintained a satisfactory standard of operation overall but required a response by 6 August, 1999 on five matters before it would recommend that accreditation continue. The two matters relating to anatomical pathology were that "The rescreening of gynaecological cytopathology must be 'blind'" and that "A system of assessing individual screener performance must be implemented for all screening staff, including part time staff." (T documents, page documents, page, page 39)

(6) As a result of its change in ownership on 20 December, 1999, GDL was deemed to be accredited as a Category G accredited service pursuant to s. 18A(1) of the Pathology Services Accreditation Act 1984 (Vic) ("PSA Act"). The PSAB described this as "provisional status" accorded to a pathology service until it was inspected, its suitability as a pathology service determined and it was either granted or refused accreditation under s. 13(8) of the PSA Act. (T documents, page 84)

(7) On 17 March, 2000, the Minister approved GDL as an APL Category GX for the period 1 April, 2000 to 31 March, 2001. Approval had been given in respect of haematology, chemical, microbiology, immunology, tissue pathology, cytology, infertility and pregnancy.

(8) On 26 September, 2000, NATA advised the Commission that it had received a letter of complaint from a general practitioner, Dr Marshal, "... in relation to the proportion of 'unsatisfactory' gynaecological cervical smears reported by one of its staff members." (T documents, page documents, page 51)

(a) NATA had asked GDL to respond to the matter and to submit internal quality control and external quality assurance results for review. Based on the review, a decision would be made as to whether an assessment of the laboratory's cytology reporting services would be required.

(b) GDL's response dated 13 October, 2000 was regarded as unsatisfactory and, while noting that Dr Marshal had continued to refer his gynaecological smears to GDL, NATA decided to conduct a further assessment of the laboratory. NATA advised GDL of its decision in a letter dated 19 December, 2000 and sent a copy to the Commission.

(c) On 7 March, 2001, NATA wrote to GDL (and copied it to the Commission) advising that two matters had been raised after referral of its (GDL's) responses to the Australian Society for Cytology.

The first was that screeners required continuing education to determine when a smear was unsatisfactory in order to address the instances in which GDL had appeared from results and action review sheets to have experienced difficulty in determining when a smear was unsatisfactory. It was suggested that "... it may be reasonable that the smears reported on Dr Marshal's patients as unsatisfactory to be referred to another laboratory for independent review. This is especially recommended as Dr Marshal's concerns have not been satisfied based on the information provided." (T documents, page documents, page 77)

Dr Marshal's complaint was also addressed in a later NATA report dated 5 September, 2001 when it was reported that NATA's Medical Testing Accreditation Advisory Committee ("Committee") had reviewed the smears and "The outcome of this review was that the laboratory's description of the smears was generally correct. However, the laboratory should have identified the reason for the unsatisfactory smears ie. the smear taker's technique, and provided advice on procedures for taking satisfactory smears to the smear taker ..." (T documents, page documents, page 274)

The second issue related to 1998 Quality Assurance Program ("QAP") Performance Standard 2 and was stated as:

"... the percentage of satisfactory smears reported as high grade epithelial abnormality. Your laboratory's rate was 0.28%, which is below the QAP suggested minimum of 0.5%. It is advisable to review this result and also any subsequent data to uncover whether a detection problem exists. It is noted that in some laboratories this figure is low because many cases are reported as 'inconclusive'. If your laboratory reports few 'inconclusive' results then a more formal review is required." (T documents, page documents, page 77)

Based on these independent review findings, NATA advised GDL that it would be necessary for a formal reassessment of its gynaecological cytology service. That assessment would be conducted in March or April, 2001.

(9) Approval of the laboratory as an APL was given to GDL by the Minister on 13 March, 2001 for the period 1 April, 2001 to 31 March, 2002. Approval had been given in respect of haematology, chemical, microbiology, immunology, tissue pathology, cytology, infertility and pregnancy.

(10) On 21 March, 2001, the PSA Board wrote to GDL advising that, once it had received NATA's assessment, it would make a decision to grant or refuse its accreditation under s. 13(8) of the PSA Act. (T documents, page 85)

(11) As foreshadowed in its report of 19 December, 2000, NATA conducted a further assessment of the gynaecological cytology service of GDL's laboratory and did so on 10 July, 2001. NATA's Committee reported on that assessment on 5 September, 2001. While addressing them in more detail later in its report, the Committee summarised nine matters that GDL needed to address before it would receive accreditation:

1. The laboratory must advise how it will address Standard 1 - Staff, of the National Pathology Accreditation Advisory Council (NPAAC) document, Requirements for Supervision of Pathology Laboratories 1999.

2. In accordance with NPAAC, Requirements for Gynaecological (Cervical) Cytology 1997_, clause 1.4, the continuing education and training needs of both the pathologists and cytoscreeners must be addressed._

3. The number of cytoscreeners for the current workload must be reviewed.

4. In accordance with the NPAAC, Requirements for Gynaecological (Cervical) Cytology 1997_, clause 1.1.2, the consultant pathologist must as a minimum see 20 abnormal smears per month._

5. In accordance with NPAAC, Requirements for Gynaecological (Cervical) Cytology 1997_, clause 3.2, access to a conference microscope (multiheader) must be available._

6. The laboratory must ensure that staff with appropriate expertise review internal QC and take appropriate follow-up action where required.

7. The laboratory must consistently review QAP results and take appropriate action to unsatisfactory results.

8. The laboratory must take action to address poor performance in the Performance Standards for Australian Laboratories Reporting Cervical Cytology_._

9. All patients' smears received for the years of unsatisfactory performance in the Performance Standards for Australian Laboratories Reporting Cervical Cytology must be referred to a laboratory accredited for gynaecology cytology for independent review." (T documents, pages 270-271)

"There is concern with the overall supervision of the laboratory and the ability of the current staff to interpret and report on gynaecological cervical smears. These concerns are supported by the requirements detailed in this report. The laboratory is to cease reporting patient smears until it can demonstrate satisfactory compliance with the above requirements. The laboratory's written response to these requirements, together with supporting evidence, is requested to be submitted by 5 October 2001. Upon review of this information a decision will be made as to whether accreditation will be considered. Should this be the case, an assessment will be conducted to confirm the action taken and for the laboratory to demonstrate competency in gynaecological cytology testing." (T documents, page documents, page 271)

(12) NATA sent the Commission a summary of the report on 12 September, 2001. (T documents, pages 81-82 and 282)

(13) On 12 September, 2001, the Commission wrote to GDL advising that it had received the summary and that it looked forward to GDL's "... early attention to the matters raised by NATA in which the laboratory does not comply with the requirements for accreditation." (T documents, page 83)

(14) On 13 September, 2001, the PSA Board wrote to GDL to advise that it "... is gravely concerned at the poor standards of operations revealed by the report and it directs the pathology service to take immediate steps to implement all of the nine requirements detailed therein. The Board will await advice from NATA concerning the response from the service which is required to be forwarded by NATA by 5 October 2001." (T documents, page 84)

(15) On 4 October, 2001, GDL's letter to the Commission had two aspects. The first related to its request to have access to the reports of NATA's assessors. Access had been refused when they had been sought under Commonwealth and Victorian freedom of information legislation. GDL contended that the assessors' reports had led to NATA's making incorrect conclusions, that it felt disadvantaged and had been unable to respond fully to NATA's report. The second aspect was a lengthy response to matters raised by NATA's report dated 5 September, 2001 on the information it had available to it at the time.

(16) On 5 October, 2001, GDL sent to the Commission and copied to the PSA Board and NATA its response dated 4 October, 2001 to NATA's report.

(17) On 11 October, 2001, NATA sent the Commission a copy of its full report dated 5 September, 2001.

(18) On 16 October, 2001, a delegate of the Minister, Mr Douglas Marshall, wrote to GDL advising it that he was "minded to vary approval" given to GDL pursuant to the Act. (T documents, pages 281-283)

(19) GDL wrote to the Commission on 30 October, 2001 making a number of points including:

(a) NATA inspected GDL's laboratory in October, 1999 prior to GDL's purchasing it in December, 2000. It accredited the laboratory, including its cytology service. NATA's accreditation indicated that it had no significant concerns about GDL's risk to public health.

(b) In October, 1999, NATA did not make any recommendations or requirements relevant to the supervision or competence of the laboratory's pathologist, the qualifications or competence of its scientific staff or its QAP results.

(c) GDL's operations are coordinated and run by a professional group of managers with the majority having experience in pathology over numerous years in both the public and private sectors.

(d) "GDL has appropriately responded to NATA's requirements and recommendations wherever that has been justified." (T documents, page 305) It has modified and improved its internal quality control processes. "GDL's external quality assurance results are of a high standard, in particular for 2001-year." (T documents, page 305)

(e) "The national statistical distribution is derived from all laboratories. It takes into account all specimens received by each laboratory. The position of GDL and 16 other laboratories nationally, is outside the desired range due to the composition of its referral base. It is important of the HIC and NATA to appreciate the general specimen type received from GDL's referral base.

GDL services a referral base almost exclusively of general practitioners (close to 1000 in number), yet only services 1-2 specialist obstetrician/gynaecologists. Moreover, GDL services no specialist consulting rooms or private hospitals. If the Commission has regard to its computer records, these will bear out this profile.

It is generally accepted in the industry that the rate of detected abnormalities in the overall number of smears received from general practitioners is much lower than rate of abnormalities in smears received from specialists. The smears examined from obstetricians and gynaecologists yield a much higher rate of abnormal cases of cervical cytology. Major teaching hospitals are at the other end of this statistical distribution due to the higher number of abnormal slides that they review. We refer to this issue at paras 2 and 3 of our submissions to NATA at p25.

We also refer you to p26 of GDL's detailed response to the preliminary NATA report where anomalies in the evidence relied upon the report is shown to be deficient. You will be conscious that 16 other APAs who are currently accredited for cytology are also outside the standard. What this demonstrates is the risk of serious error in imposing broad-base standards and imputing under-recognition of abnormalities without having regard to the profile of the work done by a laboratory such as GDL.

The Laboratory also draws to your attention the impeccable record of GDL during the current record. Its RCPA QAP results for 2001 are 100%. Not only does this demonstrate the high standard of service provision at GDL, but also it draws attention to the absence of any significant public health risk from the way in which cytology screening is undertaken by GDL. This is canvassed at p22 of the Laboratory's detailed response to the preliminary NATA report." (T documents, pages 301-302)

(f) As NATA had contended that GDL had missed several serious medical conditions on some slides, GDL sent the slides in a blind study to three other laboratories (a private specialist in cytopathology in New South Wales, the pathology laboratory of a large Melbourne teaching hospital and a large Victorian cytopathology laboratory regarded as being the "gold standard" in Melbourne. GDL stated that the results showed two things: there is a level of subjectivity in cervical cytology screening; and the diagnoses reported by GDL cytology staff were substantiated and confirmed by the three other laboratories.

(g) GDL is operating its cytology department at a proficient level and public health is not at risk. In some six years of operations, GDL has never had any litigation regarding incorrect cytology reports. "There is no evidence that GDL's cytology results have placed any patient at risk." (T documents, page 306)

(20) On 31 October, 2001, Mr Marshall wrote to NATA enclosing a copy of GDL's response and seeking advice as to whether "... the concerns for public health raised in the NATA report of 11 July 2001 continue to stand." (T documents, page 309)

(21) On 12 November, 2001, NATA replied to the Commission advising that it had referred GDL's response for technical review and expected to receive that at the end of November, 2001. It also advised that the remainder of GDL's laboratory services were shortly due to be reassessed. At that time, it was "... anticipated that at that stage the gynaecological service will again be assessed to confirm the action taken to our requirements raised at the July assessment. (T documents, page 310). NATA could not offer the Commission any further advice until the review process had been completed.

(22) On 30 November, 2001, NATA wrote to GDL advising it of the review of GDL's response to the assessment in July, 2001. The action, or intended action, outlined in that response was noted. NATA continued:

"... however, there is still concern regarding the laboratory's results in the Performance Standards for Australian Laboratories Reporting Cervical Cytology_. In accordance with the National Pathology Accreditation Advisory Council (NPAAC), assessment to these standards is a requirement for accreditation. As raised at the assessment in July, your laboratory was an outlier for Standard 2(b) (_reporting categories for satisfactory smears collected by nurses and general practitioners - not less than 0.5% reported as high grade epithelial abnormality) for the last two survey results ie. 1999 (data collected for 1998) and 2000 (data collected for 1999).

Your response was referred for independent review with the identity of the laboratory not disclosed. Feedback received raised the point that from your response it could not be determined that the poor performance for Standard 2(b) has been appreciated by your laboratory, nor could it be established that patient smears reviewed have not been compromised during the years of poor performance.

The laboratory must demonstrate that patient results have not been compromised for the period of poor performance in the QAP for accreditation to be considered for gynaecological cytology. As such, the laboratory is urged to address the requirement (requirement 9 detailed on page 4 of the assessment report) that patient smears be referred for independent review to an accredited laboratory for those smears reported in the two years of poor performance for Standard 2(b). Advice received from the independent review that a minimum of 6000 smears must be reviewed, or 4 months worth of smears, for each of the two years.

Prior to referring these smears for independent review, you are to advise the Association of the accredited laboratory, which will perform the review. At this stage, the independent laboratory will be advised by the Association of the smears reported within the two years that are to be reviewed. Should this review indicate that the reports issued on patient smears have been compromised, then the remainder of smears for the two years should be independently rescreened.

I again remind you that the other disciplines offered by your laboratory are due for reassessment. This assessment is tentatively scheduled for February/March 2002 at which time your gynaecological cytology service will be assessed again to confirm the action taken. At that time it would be expected that the outcome of the rescreen of patient smears would have been performed in order for accreditation to be considered for gynaecological cytology." (T documents, pages 314-315)

(23) On 20 December, 2001, the delegate of the Minister wrote to Kanina Banner advising, in substance, that he had considered GDL's response to NATA's report of 5 September, 2001 and continued:

'... it could not be determined that the poor performance for Standard 2(b) has been appreciated by your laboratory, nor could it be established that patient smears reviewed have not been compromised during the years of poor performance.'

In addition, I note that NATA has drawn this conclusion in relation to gynaecological cytology. Within the Medicare Benefits Schedule (MBS) as published 1 November 2001, gynaecological cytology represents a sub-set of Group p6 - Cytology. In particular, gynaecological cytology is represented by MBS Items 73053, 73055, 73057.

Compelled by my concern of potential risk to public health and the conclusion of NATA in their letter of 30 November 2001 that the 'laboratory must demonstrate that patient results have not been compromised for the period of poor performance in the QAP for accreditation to be considered for gynaecological cytology', I have decided to vary approval granted to General Diagnostic Laboratories pursuant to subsection 23DN(6) of the Health Insurance Act 1973 (the Act) and remove MBS Items 73053, 73055 and 73057 from approval.

This decision shall take effect from today and as a result, from 20 December 2001, Medicare benefits will not be payable for any service conducted within the Laboratory in relation to MBS Items 73053, 73055 and 73057." (T documents, page 316)

(24) On 20 December, 2001, Kanina Banner applied to the Tribunal pursuant to s. 23DN(7) of the Act for review of the decision and applied under s. 41 of the AAT Act for a stay of the operation of that decision.

(25) On 21 December, 2001, the Tribunal ordered that the operation of the Minister's decision be stayed from and including 21 December, 2001 until the determination of the application or until further order. It did so after taking into account various matters, one of which was an undertaking given by Kanina Banner that it would refer 5% of samples for re-screening on a random basis to an independent interstate laboratory from 21 December, 2001.

(26) On 15 February, 2002 and after requesting an extension of the time permitted by s. 37 of the AAT Act, the Commission lodged the T documents. The Commission's solicitors sought an adjournment of a directions hearing scheduled for 5 February, 2002 to a date after 18 February, 2002 and Kanina Banner consented to that adjournment.

(27) On 21 February, 2002, indicated to the applicant and the Tribunal that it would be seeking an order that the order made under s. 41 be either

revoked or varied. If varied, it sought a variation to the undertaking given by Kanina Banner. Directions in relation to the hearing of that application were given on 25 February, 2002. A hearing to determine that issue was, after much discussion between the parties, ultimately scheduled for 4 March, 2002.

(28) On 1 March, 2002, Kanina Banner sought an order under s. 35 of the AAT Act restricting the publication of its identity. After hearing the parties, I made an order by consent between the parties. The substantive part of that order read:

"until the conclusion of the hearing on Monday, 4 March, 2002 relating to the stay order made on 21 December, 2001, publication of the name and address of the applicant and of any material tending to identify the applicant be restricted to members and staff of the Tribunal, the parties and their representatives and staff of Auscript."

(29) At the commencement of the hearing on 4 March, 2002, The Herald & Weekly Times Ltd ("HWT") appeared by its solicitor, Mr Quill. HWT sought an order vacating the order made on 1 March, 2002. The position adopted by the parties was:

(a) Vacation of the order was opposed by Kanina Banner, which was represented by Mr Southall QC with Dr Freckelton of counsel and it sought a more restrictive order.

(b) The Minister, represented by Mrs Crennan QC with Mr Ginnane of counsel adopted the position that her client (whom she stated to be the delegate of the Minister) was "... not mixing in" but that her client "... wouldn't oppose the suppression order continuing for the time being" (transcript, 4 March, 2002, pages 11-12). Later, Mrs Crennan reiterated that her instructions were "... not to oppose the making of an order provided that it didn't go beyond protection of identity because that is important to the commercial reputation" (page 35).

"... until the determination of the application for review or until otherwise ordered:

1. the hearing of the application for review will be held in private and access to the evidence given at the hearing of any proceeding and any material lodged in the Tribunal in relation to any proceeding in relation to the application for review is restricted to members and staff of the Tribunal, the parties and their representatives, staff of Auscript and, in so far as it is necessary for them to have access, witnesses; and

2. publication of the name and address of the applicant and of any material tending to identify the applicant be restricted to members and staff of the Tribunal, the parties and their representatives, staff of Auscript and witnesses."

3. There were two issues in this case. The first is whether HWT has standing to seek a vacation of an order made under s. 35 of the AAT Act. The second is whether the order should be revoked or varied. Both issues require a consideration of the provisions of s. 35.

Section 35 of the AAT Act

4. The fundamental principle is expressed in s. 35(1) of the AAT Act and that is to the effect that the hearing of a proceeding before the Tribunal shall be in public. A "proceeding" is defined in s. 3(1) and does not extend to conferences, which are held under s. 34 and which are confidential. So fundamental is the fundamental principle that, as a general rule, the Tribunal is required to take such steps as are reasonably necessary to ensure that the public nature of the hearing of a proceeding is preserved when a person participates in a hearing by telephone, closed-circuit television or any other means of communication (s. 35(1A) and 35A). The only exceptions to the general rule are in relation to the Security Appeals Division (s. 35(1AA) and see s. 35AA), in cases in which the Commonwealth Attorney-General or a State Attorney-General issues a certificate that disclosure would be contrary to public interest on certain grounds or intervenes in the hearing on the same grounds (ss. 36, 36A, 36B, 36C and 36D), in cases in which Parliament has made particular provision to the contrary in legislation other than the AAT Act in relation to particular decisions reviewed by the Tribunal (e.g. Migration Act 1958, s. 501K) and in cases in which the Tribunal has made an order under s. 35(2) of the AAT Act.

5. Section 35(2) provides that the Tribunal may make certain orders that have the effect of restricting the public nature of the hearing. It may make such orders when it "... is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason..." (s. 35(2)). The types of orders that the Tribunal may make are:

"(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding." (s. 35(2))

6. In considering whether a hearing of a proceeding should be held in private or whether publication, or disclosure to some or all of the parties, of evidence given in, or received by, the Tribunal or of matter in documents lodged in the Tribunal (s. 35(3)) should be prohibited or restricted, the Tribunal must take as the basis of its consideration the principle that it is desirable that the hearing be held in public. That means not only that it is desirable that the proceedings be held in public but also that it is desirable that evidence given in, or received by, the Tribunal and that matter in documents lodged with the Tribunal should be made available both to the public and to the parties. Although this principle is at the foundation of its consideration, the Tribunal is required to give due regard to any reasons given to it as to why the hearing should be held in private or why publication or disclosure of the evidence or of matter in a document lodged with the Tribunal should be prohibited or restricted (s. 35(3)).

7. In support of his submission that HWT has standing to seek a variation of the order, Mr Quill relied on the judgement of Hedigan J in The Herald and Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267. Hedigan J considered an order made by the Medical Practitioners Board suppressing a medical practitioner's name. HWT sought to be heard in relation to the suppression order but the Board decided that it did not have standing to apply to it in relation to the suppression order. Before the Supreme Court of Victoria, HWT contended that it had standing and that the Board did not have power to make the order.

8. His Honour concluded that the Board did not have power to suppress the identity of the medical practitioner. It was constituted under the Medical Practice Act 1994 (Vic) and that legislation neither expressly nor impliedly conferred on the Board any power to make a suppression order. Although that conclusion determined the matter, Hedigan J reviewed the authorities regarding the standing of the media to make an application to an inferior court or to a tribunal. He concluded that the authorities revealed "the expression of differing judicial opinions" (page 297). After further consideration, he went on:

"It appears to me that the current of modern authority is to the effect that there is standing in media interests to make application to the tribunal proposing to make a suppression or pseudonym order, at least in the case where the allegation is that the order proposed is to be made beyond power, that is, in cases where it is argued that there is an excess of jurisdiction. The better view is that it is entirely up to the relevant tribunal to decide the circumstances and time at which it will hear any such application, consistent with the efficient and just disposition of the dispute committed to it for determination." (page 297)

9. His Honour clearly recognised that his views were obiter dicta. They would, of course, carry weight if they were relevant in this case but they are clearly not relevant. It is clear from this passage and from the context in which it appears that Hedigan J's views must be limited to a case in which it is alleged that a suppression order has been made without power. The Tribunal has power under s. 35 to make an order restricting what would otherwise be the public nature of its hearings. Indeed, Mr Quill did not seek to suggest that the Tribunal does not have power to make such an order. Rather, he made it clear that, on behalf of HWT, he sought to vacate the order made on 1 March, 2002.

10. Whether or not HWT may ask the Tribunal to vacate the order depends upon whether or not it is permitted to do so under the AAT Act. That follows from the fact that the Tribunal is a creation of statute. Unlike a superior court of unlimited jurisdiction, it does not have inherent jurisdiction. Its powers must be found either expressly stated in the AAT Act or another enactment or, if not expressly stated, must be incidental or necessary to the exercise of the jurisdiction or powers conferred upon it (Otter Gold Mines Ltd v Deputy President GL McDonald of the Administrative Appeals Tribunal (1997) 48 ALD 222 at 227).

11. Do similar principles determine those who may come to the Tribunal to request it to exercise its powers? The AAT Act makes express provision in some cases as to who may request it to do so. It does so, for example, in the case of those who may seek review of a decision in respect of which the Tribunal has jurisdiction. Section 27 expressly provides that any person whose interests are affected by the decision may make an application in the Tribunal. Section 30 makes express provision for those who may apply to be made a party to the proceeding and s. 41 expressly provides who may request the Tribunal to make an order affecting the operation or implementation of a decision of which review is sought. In contrast to these express provisions, s. 35 is silent on the issue of those persons, if any, who may ask the Tribunal to exercise its powers. Instead, the Tribunal is simply directed, subject to the powers given in the section itself to order to the contrary, to ensure that hearings are in public.

12. I consider below the principles behind the power given in s. 35 in some detail. In summary, it seems to me that s. 35 requires that the Tribunal consider and determine where the balance lies between competing public interests. The parties to the proceeding are in a position to express a view as to where the balance should lie. That is so when it is remembered that the purpose of the review proceedings is to determine the correct or preferable decision on the material before the Tribunal and not, as in a court, to determine whether the decision was "... one which an administrator acting reasonably might have made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (per Smithers J at 599 and per Bowen CJ and Deane JJ at 589). As determination of that correct or preferable decision is the Tribunal's task, it is a necessary corollary of it that the submissions and material produced by the parties are also directed to that end and not simply directed to either attacking or defending the decision under review. This is implicit in s. 37(1)(b) of the AAT Act requiring that the decision-maker must not only give a statement of reasons for his or her decision but also lodge with the Tribunal those documents in his or her control that he or she considers "to be relevant to the review of the decision". Were it otherwise, the decision-maker would be required to lodge simply those documents upon which he or she relied and leave other relevant documents to be obtained by the other party and the Tribunal by other means.

13. For all that, the parties cannot be considered to be the only persons who are in a position to express an opinion as to where the public interest should lie when considering issues relating to s. 35. The very fact that the section has at its heart disclosure, or otherwise, of the Tribunal's proceedings to the public must mean that there may well be members of the public who are not parties and who would not have interests affected by the decision to warrant their being made parties to the proceeding pursuant to s. 30(1A) should they apply but who can reasonably be said to have sufficient interest in the matter to entitle them to be heard as to whether the Tribunal should exercise its powers under s. 35. As the Tribunal said in Re Maher and Attorney-General's Department, CRA Ltd and Mary Kathleen Uranium Ltd (1985) 7 ALD N411 (Deputy President Layton and Sir Ernest Coates and Mr Trinick, Members):

"... a person other than a party may apply in relation to an order made pursuant to s 35(2) and be heard as to whether they have an interest in the particular order and to seek, for example, either the extension of the order, a variation of the order, or the revocation of that order." (page N413)

14. Turning to the position of HWT in these proceedings, it cannot be said to represent the various public interests that are relevant to my consideration under s. 35. By virtue of its being the publisher of one of Melbourne's two daily newspapers it can, however, be said to represent aspects of those public interests. For that reason, I consider that it was appropriate to hear it in relation to an exercise of the powers given under s. 35.

General principles relating to s. 35 of the AAT Act

15. Mr Quill based his submission on the proposition that s. 35(1) of the AAT Act embodies the proposition already established in the courts and that is that the hearing should be in public. It must be so unless there is a good reason for concluding that it should not and that conclusion is only reached after balancing the interests of justice and the public interest. In the context of this case, Mr Quill identified two competing interests; that of Kanina Banner and its financial position and that of the public interest in having the Tribunal conduct its hearing in public. On reviewing several cases, to which I will return, the essence of Mr Quill's submission was that the public interest in reporting the proceeding is so great that it would outweigh the financial loss to Kanina Banner.

16. In speaking of the courts, the fundamental principles were set out by Gibbs J in Russell v Russell (1976) 134 CLR 495:

"_It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view' (_Scott v Scott _[1913] AC 417 at p. 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for 'publicity is the authentic hall-mark of judicial as distinct from administrative procedure' (_McPherson v McPherson [1936] AC 177 at p. 200). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. ..." (page 520)

17. The presence or otherwise of the public at any particular hearing in a court is not to the point provided the hearing is open to it. As Lord Blanesburgh said in delivering the judgement of the Privy Council in McPherson v McPherson:

"The actual presence of the public is never of course necessary. Where Courts are held in remote parts of the Province, as they frequently must be, there may be no members of the public available to attend. But even so, the Court must be open to any who may present themselves for admission. The remoteness of the possibility of any public attendance must never by judicial action be reduced to the certainty that there will be none." ([1936] AC 177 at 200)

18. Gibbs J in Russell v Russell made reference to exceptions to the general principle that hearings are held in open court. The inference to be drawn from the passage I have set out above from his Honour's judgement is that the courts themselves may not create further categories. As Barton ACJ said in Dickason v Dickason [1913] HCA 77; (1913) 17 CLR 50:

"... there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law, but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice. On the contrary, secs. 15 and 16 of the Judiciary Act show clearly an intention on the part of the legislature that the jurisdiction of this Court should be publicly exercised." (page 51)

19. Cases such as R v Chief Registrar of Friendly Societies ex parte New Cross Building Society [1984] 2 All ER 27 and The Herald & Weekly Times Ltd v The Magistrates' Court of Victoria and Others [1999] VSC 232; [1999] 2 VR 672, to which Mr Quill referred, are examples of the implementation of these general principles in the courts.

20. As can be seen from the judgement of Gibbs J in Russell v Russell, a distinction is drawn at common law between the proceedings of courts and the activities of administrative officials. While the Tribunal does not come within the description of "administrative officials" it is clearly a part of the executive, and not the judicial, arm of government under the Commonwealth government. While more modern statutory provisions require that notice is given of at least the making of certain administrative decisions (e.g. s. 27, AAT Act) if not the decision-maker's reasons for them (e.g. Veterans' Entitlements Act 1986, s. 34), it is the case that, in the absence of such provisions, the deliberations of officers of the executive would not be open to any form of direct public scrutiny as opposed to judicial scrutiny under the Administrative Decisions (Judicial Review) Act 1977.

21. The same would be the case in respect of the proceedings of the Tribunal if it were not for the provisions of s. 35 of the AAT Act. It is clear from s. 35(1) that the principle of openness is adopted in relation to a hearing of a proceeding in the Tribunal and that principle is reinforced in ss. 35(1A) and 35A. There have been statutory exceptions in relation to, for example, applications for review under the Income Tax Assessment Act 1936, and continue to be in relation to, for example, applications for review under s. 501K of the Migration Act 1958. There is also the more general exception found in s. 35(2) of the AAT Act. What must be weighed in the balance as a result of that section are the desirability of the Tribunal's proceedings being in public and the contents of material received by, or lodged with, it being available to the public on the one side and the reasons for confidentiality on the other. There is no guidance in s. 35(2) as to how the two sides of the scale should be weighted in order to determine the side to which they will ultimately tilt.

22. In order to determine that weighting, there needs to be an understanding of why the public nature of the Tribunal's hearings is important. When that is done, it is found that the reasons reflect those given to explain the public nature of court proceedings. In Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 at 270, Brennan J said that public hearings are:

"_calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (_McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it." (page 270)

23. While that is inherent in s. 35(1) of the Act, Brennan J said in Re Pochi:

"... the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A Court may be constrained to violate that confidentiality in order to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.

An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must be a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that the publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described in s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove these impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases - that is to say, where the 'principle that it is desirable that hearings of proceedings before the Tribunal should be held in public' cannot be applied. Some of these exceptional cases are statutorily defined: see the Insurance Act 1973 s 63(14)." (pages 272-273)

24. Unlike the situation in the courts and bearing in mind that the class of case justifying the exclusion of the public is a narrow one, it is clear that s. 35(3) does not suggest that there are any particular categories of matter that may be regarded as exceptions to the principle that the proceedings be held in public. The reasons that may be put forward to be weighed in the scales need only be reasons that relate to limiting the public nature of the proceedings in some way. It is inevitable, of course, that over the years it has become possible to develop categories of the reasons that have been accepted as tilting the balance against the public nature of the proceedings to a greater or lesser extent. There are, for example, cases in which an order has been made restricting access to certain information on the basis that its disclosure would lead to the Tribunal's no longer being given access to a certain type of information that an administrative body requires for its on-going decision-making and that information was necessary to secure effective administration. That was a relevant factor in Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority (1999) 58 ALD 581 at 590 and Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407 at 414. Re Nolan also took into account that disclosure would be contrary to the public interest in the effective administration of the prison system (9 ALD at 414).

25. In other cases, the Tribunal has made orders excluding access to material not only by the public but also by the applicant. Such a step is a grave one and not one taken lightly. That is all the more so because it effectively overrides a basic principle that a person is entitled at common law and under the AAT Act (s. 36(4)) to be "... made aware of all relevant matters" that are to be taken into account in determining the issues affecting him or her. It was a step taken in Re Pochi when Brennan J concluded that a party could only be excluded when:

"... an applicant's interest in a fair hearing to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: 'When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.'

In the present case, the public interest in protecting the confidentiality of the sources of information obtained to combat crime conflicted with the interests of the applicant in meeting the case made against him. The public interest prevailed, as it did in Hosenball's case ..." (page 273)

Should the order under s. 35 dated 1 March, 2002 be vacated or varied?

26. This case provides a clear example of the differences between the administrative processes that apply generally in Commonwealth agencies and in the merits review process. Taking first the administrative processes leading to an administrative decision's being made prior to its being reviewed and speaking generally, those processes and the agency's deliberations are not open to public scrutiny. Administrators are, of course, required to observe procedural fairness towards those who will be affected by a decision that is under consideration but that does not translate in any way to an obligation to make its deliberations known publicly. This case provides an example of the general position. As can be seen from the chronology, GDL has been assessed by NATA both before and after its acquisition by Kanina Banner on 20 December, 1999. The Commission has been kept informed of those assessments over the years. At the same time, it has also been kept informed of the issues raised by NATA with GDL and of GDL's responses. Amongst the three, there appeared to be, with the exception of NATA's assessors' reports to which I will return, a regular exchange of information. It would also appear that copies of NATA's reports have been given to the PSA Board. GDL has been given an opportunity to respond to NATA's reports and to respond to the Commission. It has been advised of the Commission's decision. In keeping with the general position that applies in administrative decision-making, at no time during those years was the Commission's process open to public scrutiny or the public informed of the nature of its deliberations in relation to GDL.

27. Once review was sought of the Commission's decision in this Tribunal, the review process was, unless otherwise ordered, public. Any consideration of whether that review process is anything less than public must proceed from the basis that it is desirable that proceedings in the Tribunal be held in public. It is desirable because the exposure of its proceedings to public scrutiny is intended to enhance the public's confidence in both the review process and the outcome of that review process. Exposure achieves this by enabling the public to observe the Tribunal's procedures, hear oral evidence given by witnesses and have access to material lodged in particular cases as well as hearing or reading the Tribunal's decision at the conclusion of the review. In this way, the public is able to observe the opportunities given to the parties to present their evidence and make submissions and, over the course of time, to assess the Tribunal's consistency and fairness both in its procedures and in its decision-making. Not only is consistency and fairness in the administrative review process in the public interest but so too is the public's ability to observe that consistency and fairness are achieved in that process.

28. As important as public hearings are, there is also a public interest in ensuring that the Tribunal is able to carry out its review processes effectively. This aspect of the public interest has been explored more fully in the context of the Tribunal's power to make an order under s. 41 staying or otherwise affecting the operation of a decision. Under that section, it may only make an order that it "... considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review" (s. 41(2)). Cases such as Re Commonwealth and Quirke [1986] AATA 57; (1986) 9 ALD 92 (The Hon JBK Williams, Senior Member), Re Repatriation Commission and Delkou (1993) 31 ALD 629 (Deputy President Hall) and Re Dart and Director-General of Social Services (1982) 4 ALD 553 (Davies J) indicate that the consequences to the applicant if he, she or it should be successful are relevant to a consideration of what order, if any, is appropriate to secure the effectiveness of the hearing. Where an individual is unable to maintain him or herself without ongoing social security payments, for example, that is a relevant consideration to be taken into account in deciding whether to stay the implementation of a decision cancelling or reducing payment of that social security payment.

29. These principles are also relevant in considering an application under s. 35. Oral evidence was given by Mr Mario Theocharous, who is the operations manager of GDL, in an open hearing as well as in an affidavit dated 21 December, 2001. On the basis of that evidence, I am satisfied that GDL provides a "one-stop shop" service to general practitioners in the sense that general practitioners choose to refer all of their pathology, and not simply their gynaecological cytology pathology, to GDL. Cytology represents approximately 10% of its work. Were GDL's identity to become known in connection with the proceedings in the Tribunal, it is more probable than not that its reputation would be damaged. Pathology is a very competitive industry and GDL would lose not only its work in relation to gynaecological pathology but in relation to all of its pathology work. That in turn would lead not only to a loss of income from its gynaecological cytology work but also in relation to a loss of income from a much broader range of its work. I am satisfied that the nature of the loss is such that it would lead to enduring commercial damage.

30. As in a court, mere financial strain or embarrassment is not a sufficient reason for making a suppression order in the Tribunal. In this case, however, I am satisfied that public disclosure of its identity would go beyond mere financial strain or embarrassment but would threaten the very existence of GDL. In doing so, it would threaten the Tribunal's ability to carry out its review processes effectively for the review would be pointless. Even if Kanina Banner were ultimately successful in its application, the decision set aside and its approval as an APL restored, it is likely to be a hollow victory and of no practical consequence to it in view of the enduring commercial loss it would suffer in the meantime. Such a consequence is contrary to the public interest in persons being affected by a decision made under s. 23DN being able to have effective recourse to the right of review established by Parliament pursuant to s. 25 of the AAT Act and s. 23DO(5) of the Act in relation to decisions made under s. 23DN.

31. On behalf of HWT, Mr Quill submitted that the public interest lies in publishing details of all of the issues in the case as well as the name of Kanina Banner. There can be no question that the public has a very great interest in the issues that will be considered during the hearing. Issues relating to the quality of pathology tests in general and to gynaecological pathology tests in particular are of very grave concern to it. There can be no question that individual women who have been tested by GDL will have a very great interest in those issues and particularly in whether their own health has been in any way compromised. Public health matters such as these are of the gravest concern to all members of the public whether directly affected or not. That concern is reflected in the very provisions of the Act with which I am concerned i.e. the accreditation provisions relating to pathology laboratories. It is also reflected in Victorian legislation establishing the PSA Board, to which I have referred (Pathology Services Accreditation Act 1984(Vic)), and the Cervical Register maintained by the Victorian Cytology (Gynaecological) Registry (Cancer Act 1958 (Vic)). Although the details of the Victorian legislation were not canvassed at the hearing and it is not appropriate to examine them in the context of this case, it is relevant to note that pathologists in Victoria are subject to regulation at both the Commonwealth and State levels. In broad terms, Victorian legislation and institutions are responsible for the regulation of the quality of the pathology services. Decisions made under s. 23DN of the Act take into account whether or not a pathology service has met a certain standard in its testing procedures and results but the Act itself is not responsible for setting that standard or in assessing them against that standard. Instead, the Act is concerned with the payment of medicare benefits to pathology services which meet standards set and assessed by others.

32. Acceptance that the quality of pathology tests is of the utmost gravity does not lead automatically to the conclusion that the Tribunal's review of a decision of the Commission founded upon its concerns about GDL's test results should be held in public. There are other issues to be considered in addition to the matters of public interest to which I have already referred.

33. I must take into account the nature of the proceedings themselves. Evidence is necessarily given at a hearing piece by piece and it is impossible to have regard to the whole of it until the conclusion of the case. Given the very real concern that the public, and particularly women, have regarding any lack of quality in gynaecological pathology testing, the piecemeal approach is likely to exacerbate those concerns and, indeed, is even likely to extend to engendering very real fear amongst members of the community who may have no cause to fear once the whole of the evidence is known. At this stage prior to the hearing, the Tribunal has only a small part of the evidence that will be relevant in determining whether or not the Minister's decision was the correct or preferable decision.

34. I have also taken into account the focus of the Tribunal's review. The review cannot take the form of a general enquiry into the practice of gynaecological cytology but must be focused upon whether or not the Commission's decision to revoke the approval of GDL as an APL was the correct or preferable decision at the time that it was made. It would appear from the face of the material lodged in the Tribunal to date that by that time, NATA's concerns (as reflected in its letter of 30 November, 2001) had narrowed to focus only on the last two survey results obtained in 1999 and 2000 in respect of data collected in the years 1998 and 1999 respectively and steps taken in relation to those results. NATA did not express any concerns regarding GDL's ongoing testing or practices. GDL's results for 1998 and 1999 fell outside the statistical norm established under Standard 2(b) of the Performance Standards for Australian Laboratories Reporting Cervical Cytology in that it had reported fewer than 0.5% as high grade epithelial abnormality. NATA did not assert that it necessarily followed from GDL's poor performance when assessed on a statistical basis against other laboratories that GDL had not properly tested its smears. It did, though, require GDL to demonstrate that patient results had not been compromised during 1998 and 1999.

35. The relevance of and the weight that should be given to statistical results formulated in 1999 and 2000 in reviewing the Commission's revocation decision made in December, 2001 is a matter in dispute between the parties. It is a matter upon which there will need to be substantial evidence as to matters such as the basis and formulation of the statistical standards and whether those standards of themselves indicate whether or not the results of a pathology service are questionable. That leads to another issue and that is whether or not GDL fell outside the statistical norm, has its testing been inaccurate and has women's health in fact been compromised. At all times, it must be remembered that exploration of these issues must be confined to a review of the Minister's decision to revoke GDL's approval as an APL. The consequence of that decision is the cessation of the payment of medicare benefits in respect of services it performs in relation to gynaecological cytology. The review process cannot be used to conduct a wide ranging review of gynaecology cytology. It must be directed to, and relevant to, the review of the Minister's decision.

36. Although NATA referred only to Standard 2(b) of the Performance Standards for Australian Laboratories Reporting Cervical Cytology, it is not clear from the course of correspondence to which I have referred in the chronology whether NATA has, or has not, accepted as satisfactory GDL's response in relation to the concerns raised in NATA's report of 5 September, 2001. The scope of the issues to be addressed at the hearing of the application for review remains to be clarified. So too does the scope of the relevant material for it will be necessary to have available not only the NATA reports upon which the Commission relied but also the reports of the individual assessors' who conducted the assessments.

37. It is essential that regard also be given to the gravity of the concerns that a case such as this raises for the public and to which I have already referred. In that regard, I have taken into account an undertaking by Kanina Banner on 21 December, 2001 that it would refer 5% of samples for re-screening on a random basis to an independent interstate laboratory. I have also had regard to its further undertaking given on 4 March, 2002 that it will:

"1. on a weekly basis from 4 March, 2002, refer to an independent interstate laboratory 10% of samples for re-screening,

2. on a weekly basis from 4 March, 2002, advise the respondent of the results it has obtained in respect of those samples, and

3. on a fortnightly basis from 4 March, 2002, advise the respondent of the results obtained in respect of those samples by the independent interstate laboratory."

38. In addition, and although no evidence was led on the subject, I have also had regard to the existence of the Cervical Register maintained by the Victorian Cytology (Gynaecological) Service. That is not a panacea for poor quality control but is a tool that may be used in monitoring gynaecological tests. I have also had regard to the recommendation that women be screened every two years. It is a matter of public knowledge that it is usual practice for women to be sent a reminder at or about the time that they are due for re-screening. Again, that is not a panacea for poor quality control in a pathology service but is a tool that may be used in monitoring gynaecological tests and so in going some way to ensuring that women's health is not jeopardised.

39. I have also taken into account the fact that the application has been expedited in the Tribunal's list and given an early hearing date. The hearing is to commence on 1 May, 2002 and eight days have been allocated. Expedition of the hearing will necessarily mean expedition of the Tribunal's decision and reasons.

40. Taking all of the matters to which I have referred into account, it seems to me that the balance of the public interest is such that I should make, in effect, two orders. The first is to continue, in effect and with only a slight modification to accommodate disclosure to witnesses, the first order made on 1 March, 2002. That is the order to which both parties consented on that day and which, on 4 March, 2002, Mrs Crennan's client did not oppose being continued. The second order is to take the matter much further. It is to make the hearing of the application for review a private hearing and to restrict access to the evidence given at the hearing of any proceeding and any material lodged in the Tribunal in relation to any proceeding in relation to the application for review. Access is restricted to members and staff of the Tribunal, the parties and their representatives, staff of Auscript and, in so far as it is necessary for them to have access, witnesses. That is an order sought by Mr Southall but not consented to by Mrs Crennan (whose instructions did not extend beyond not opposing the making of the order providing it did not go beyond protecting Kanina Banner's identity) and certainly not by Mr Quill.

41. I have decided upon these restrictions for it seems to me that the public interest is best served by having a hearing in private. By adopting such a course, the issues can be aired fully and without fear of creating the gravest concern, if not panic, amongst the public at a time when neither the Tribunal nor the public is in possession of all of the evidence and material. Without that full range of material neither the Tribunal nor the public can make a proper assessment of the issues and to determine what was the correct or preferable decision for the Minister to make on 20 December, 2001. By adopting such a course, the integrity of the right of review created by Parliament is preserved for regard is paid to the very serious, if not crippling, financial consequences likely to be suffered by Kanina Banner were its identity to be revealed before all of the relevant information is gleaned, assembled and analysed. At the same time, regard is paid to the public's interest in being fully informed about a very important and grave matter relating to public health by the provision of an expedited hearing and expedited review. At the conclusion of that process, it is to be expected that the public will be in a position to assess the basis upon which Kanina Banner's test results have been assessed. It will also be in a position to assess whether Kanina Banner's test results have, quite apart from any statistical aberration, in fact been compromised and, if so, the extent to which they have been so compromised. If they have been compromised, the public will be able to direct its attention to the areas of compromise rather than be left to fear the worst in relation to all cytology tests conducted by GDL as would be the case if the proceedings were heard in public.

42. Although there are varying views as to the effectiveness of its undertaking given by GDL, its referral of 10% of its samples for re-screening is intended to address the public's concern with the quality of GDL's ongoing cytology testing. That re-screening will continue until the resolution of Kanina Banner's application. The monitoring role effected by the Cervical Register maintained by the Victorian Cytology (Gynaecological) Service and in ongoing regular screening of women is also relevant in addressing that concern.

43. As the confidentiality orders come to an end in their own terms once the Tribunal has made its decision, it is to be expected that the public will then have access not only to the identity of Kanina Banner but a detailed analysis of the full range of evidence and issues as well as the full range of evidence given to assist it in its full consideration of the issues. If it should transpire that the quality of the gynaecological cytology tests conducted by GDL has in fact been compromised, the extent of that compromise will be apparent. It would follow that the extent and nature of any remedial action required to address could be identified and so better targeted.

44. For these reasons, I ordered on 4 March, 2002:

"...that until the determination of the application for review or until otherwise ordered:

1. the hearing of the application for review will be held in private and access to the evidence given at the hearing of any proceeding and any material lodged in the Tribunal in relation to any proceeding in relation to the application for review is restricted to members and staff of the Tribunal, the parties and their representatives, staff of Auscript and, in so far as it is necessary for them to have access, witnesses; and

2. publication of the name and address of the applicant and of any material tending to identify the applicant be restricted to members and staff of the Tribunal, the parties and their representatives, staff of Auscript and witnesses."

I certify that the forty-four preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: .....................................................................................

Counsel for the Applicant Mr Southall QC and Dr Freckelton

Counsel for the Respondent Mrs Crennan QC and Mr Ginnane

Solicitor for the Respondent Australian Government Solicitor