1. Publication is prohibited of the caution and of other matters contained in documents filed with the Tribunal, including in the Agreed Statement of Facts.

2. In the alternative, publication of the matters contained in documents filed with the Tribunal, including in the Agreed Statement of Facts, is limited to those matters properly falling within the scope of the referral to this Tribunal.

1. The Psychologist seeks orders that the publication of the outcome and filed evidence in this matter is outweighed by the competing interest of natural justice pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The caution and the Agreed Statement of Facts arose from an agreement reached at the mediation between the parties held in February 2014.

1. On 1 July 2013 the Board referred this matter (the disciplinary proceedings) to the tribunal pursuant to section 190 of the Health Practitioner Regulation National Law (ACT) (National Law).
2. On 10 July 2013 the tribunal directed the Board to file a Statement of Particulars outlining the particulars of the matter referred to the tribunal under section 190 of the National Law. The content of the Statement of Particulars and associated issues were the subject of an interlocutory hearing held on 30 August 2013.
3. On 28 November 2013 the Tribunal published its decision on the interlocutory hearing Psychology Board of Australia v Fox (Fox)[1] in which it held that the scope of the matter referred to the tribunal under section 190 of the National Law was limited to those matters set out in the notice of hearing issued by the applicant on 20 September 2012 under section 184 of the National Law.[2]
4. In that decision, the tribunal made an order, on its own initiative, prohibiting the publication of the names of persons who had been clients of the Psychologist and suppressing any information that would allow their identity to be worked out. The tribunal made no orders prohibiting publication of any other material before the tribunal. No application was made by the Psychologist during those proceedings for non-publication of his name or any material referred to in that matter.
5. On 12 February 2014 the parties attended a mediation conference organised by the tribunal which resulted in the disciplinary proceedings being resolved by way of an agreed outcome, which was reduced to writing and filed with the tribunal.
6. On 14 March 2014 the tribunal indicated that the document filed by consent on 12 February 2014 was insufficient to enable the tribunal to make consent orders pursuant to section 55 of the ACAT Act and the parties were directed to file an Agreed Statement of Facts (Agreed Statement of Facts).
7. Ultimately, the Agreed Statement of Facts was filed with the tribunal by consent on 9 July 2014. A further version of the Agreed Statement of Facts, amended by consent at the request of the tribunal, was filed on 23 July 2014.
8. A consent order was made by the tribunal pursuant to section 55 of the ACAT Act on 21 August 2014.

1. It is alleged by the Psychologist that the parties reached agreement in part because the parties agreed that the caution would not be published on the website of the Australian Health Practitioner Regulation Agency (AHPRA) or on the website of the Psychology Board of Australia. The Psychologist argued that if the tribunal publishes the caution or the evidence in the Agreed Statement of Facts it would be contrary to the understanding of the parties which helped produce a mediated outcome with a consequential public benefit in terms of costs and tribunal time. The Psychologist submitted that a non-publication statement was an important part of his thinking in reaching the mediated agreement and he asserted that the Board's position in agreeing not to publish the outcome whilst simultaneously (it is alleged) harbouring an intention to seek publication through the tribunal 'sails perilously close to a breach of the model litigant guidelines'.
2. The Psychologist argued that section 38 of the ACAT Act (which states that the hearing of an application must be in public) has a more limited role in the current matter because it involves mediation which was private to the parties and the subsequent development of an Agreed Statement of Facts which was also the result of private correspondence and discussions between the parties. He argued that it overstates the true position to say that the tribunal is bound, as a matter of law, to publish evidence and decisions unless one of the exceptions in section 39 of the ACAT Act can be established. Rather, he contended that the tribunal's powers and obligations are conferred by statute and nothing in sections 38 and 39 of the ACAT Act expressly requires the publication of evidence. Furthermore, the tribunal may set its own procedures under section 23 of the ACAT Act.
3. Consequently, the Psychologist argued, common law cases regarding the administration of justice have a limited role to play. Nevertheless, it is clear from the High Court's reasoning in AON Risk Services Australia Ltd v The Australian National University[3] that consideration of the proper administration of justice extends to issues concerning the efficient use of court or tribunal resources, costs to the parties and accordingly to encouraging settlement and, in this regard, it is noteworthy that the legislature has provided the tribunal expressly with powers in the ACAT Act to make rules concerning the early resolution of matters.[4]
4. The Psychologist alleged that he would not have reached agreement without the benefit of knowing that the caution would not be published. He argued that publication would undermine the tribunal's attempts at mediation in the future and that the public benefit gained by encouraging settlement and consent orders would be lost if such an agreement could now not be given effect to.
5. The Psychologist pointed to several findings that were made against professionals by the tribunal where the sanctions imposed were more serious than a caution and the names of the professionals had been suppressed.[5] However, the Psychologist conceded that suppression of his name would not be effective in the present matter because publication of his name had occurred in Fox.[6]
6. The Psychologist contended that because the outcome is restricted to a caution it is demonstrated that his errors in the current matter are not at the more serious end of professional errors. Therefore he submitted that any public policy advantage of publication would be outweighed by the countervailing public policy advantage of reaching a just and efficient outcome in this case with the acknowledged learning by the respondent and changes to his way of undertaking professional practice.
7. The Psychologist alleged that the mediation occurred before clear statements were made by the tribunal concerning its role being:

to enable the community to be satisfied that the tribunal is through its proceedings protecting the public and enforcing appropriate professional standards. Comment should also be made [by the tribunal] for the guidance of other practitioners that they may be aware of the unfortunate circumstances that have arisen in this matter.[7]

1. The Psychologist further argued that many of the matters in the documents filed with the tribunal had not been tested in hearing or by cross-examination. The Agreed Statement of Facts had been developed by negotiation between the parties. It arose through a process of negotiation to implement the mediation outcome agreed to in February 2014. It did not arise through any fact-finding exercise by the tribunal. The Psychologist contended that it would be unfair to publish the caution or the factual reasons (based on matters in documents filed with the tribunal) now if the tribunal has not engaged in a fact-finding exercise.
2. In the alternative, the Psychologist submitted that any publication of material from the Agreed Statement of Facts should be limited to matters properly falling within the scope of what was properly referred to the tribunal. Without such an order, the tribunal's decision in Fox[8] would be rendered nugatory. An appropriately redacted Statement of Agreed Facts was attached to the application for interim orders.
3. In support of the alternative orders sought by the Psychologist, he argued that the minor redactions proposed were 'simply based on limiting any facts to the relevant time period'. The Psychologist asserted that if these redactions are not made, the Board would effectively be permitted to rely on material that would have been properly objectionable as beyond the scope of the charges referred to the tribunal.

1. The Board opposed the Psychologist's application for non-publication orders on the basis that his application did not disclose sufficient reasons for the matter not to be published and the public interest in publishing decisions of the tribunal in relation to occupational discipline matters is not outweighed by the public interests articulated by the Psychologist.
2. The Board's submissions pointed to the principle of open justice as a fundamental rule of common law that the administration of justice take place in an open court.[9]
3. The Board further argued that the fundamental importance of the principle of open hearings, and the publication of evidence and decisions of the tribunal, is clear from the statutory scheme under which the tribunal operates.
4. The Board argued that the statutory framework under which health practitioner regulatory matters are heard by the tribunal requires that matters ordinarily be heard and dealt with to finality in public under section 38 of the ACAT Act and secondly the exceptions in section 39 of the ACAT Act to the default statutory position (of full publication) must be established to justify the making of non-publication orders in the terms sought by the Psychologist. The Board further contended that the public interest in publishing decisions, particularly in a protective jurisdiction such as occupational discipline, is not outweighed by the matters raised by the Psychologist and there is no competing interest of natural justice.
5. The Board submitted that the tribunal is bound, as a matter of law, to publish evidence and decisions in occupational disciplinary matters, unless one of the exceptions in section 39 of the ACAT Act can be made out, or the relevant authorising Act expressly prohibits publication. The Board submitted that the tribunal should not be satisfied that either an exception to the general rule or an express statutory prohibition on publication has application in the current matter.
6. The Board emphasised that the inclusion of the term 'strictly necessary' in section 39(5)(c) of the ACAT Act reflects the importance of the fundamental principle of open or public hearings by the tribunal, which extends to making material received by, or filed with, the tribunal publicly available and implies that the exception will be narrowly applied.
7. The Board also argued that the use of the term 'special circumstances of the application' in section 39(5)(c) of the ACAT Act further implies that there must be something exceptional about the application, or the matter which is the subject of the application for non-publication, which warrants a departure from the ordinary rule of public hearings and no such circumstance applies in the present case.
8. The Board further stated that, contrary to the Psychologist's assertion, the Board did not reach an agreement at mediation on the basis that the caution would not be published on the website of AHPRA or the Psychology Board of Australia, nor did it understand that non-publication of any material filed with the tribunal in this matter would be a basis on which it agreed to the mediated outcome. The Board contended that sections 225 and 226 of the National Law provide the range of matters that the Board is required to record and publish on the National Register of health practitioners. As a 'caution' is not one of the matters that must be recorded on the register, publication of a caution in respect of a health practitioner is a discretion which the Board may or may not exercise. In the current matter, the Board exercised the discretion by agreeing not to publish the caution on the website of AHPRA, but no further consequences in respect of publication of the remainder of the Agreed Statement of Facts flow from that decision, either by implication or under the express terms of the relevant statutory scheme.
9. The Board submitted that, contrary to the Psychologist's assertion, the parties had only agreed that the caution not be published on the website of AHPRA. The Board asserted that no other agreement between the parties had been reached in respect of publication of the caution, or any other material relating to the matter, other than that the names of the clients, the complainant and her family be suppressed. The Board described the Psychologist's assertion that the publication of final orders or disclosure of material filed with the tribunal would deter parties from participating in mediation or negotiation as 'bare'. The fact that one party to a matter before the tribunal may have held such a view would not override the statutory framework which binds the tribunal to conduct its proceedings in public.
10. In response to the Psychologist's argument that the Agreed Statement of Facts does not arise out of any fact-finding exercise by the tribunal, the Board argued that certain facts have been admitted by the Psychologist in the Agreed Statement of Facts and that admission would be rendered nugatory if the Psychologist now seeks to limit the tribunal's reliance on those facts as the basis for final orders.
11. As regards the Psychologist's alternative submission that publication of the material from the Agreed Statement of Facts be limited to the redacted version attached to the application, the Board submitted that the publication of the Agreed Statement of Facts in full is consistent with the decision of the tribunal in Fox. The Board argued that the tribunal determined in Fox that it could not consider the allegations contained in paragraph [4] of the Statement of Particulars filed on 5 August 2013 but paragraph [4] of the disputed Statement of Particulars bears no relation to the text in the Agreed Statement of Facts that the Psychologist seeks to be redacted.
12. In response to the Psychologist's reliance upon cases where the recommended sanctions were more serious than a caution and the name of the professional was suppressed, the Board noted that the relevant cases involved legal practitioners and all appear to have been commenced in the Tribunal under the Legal Profession Act 2006 (Legal Profession Act), which expressly restricts publication of material which identifies the person who is the subject of disciplinary action or allows their identity to be worked out, but which may be published if certain conditions are met.[10] The Board submitted that the statutory framework surrounding the regulation of legal practitioners is materially different to that which governs the regulation of health practitioners and the ordinary rule in respect of health practitioners is that the hearing and any outcome of the hearing is to be published.
13. Accordingly, the Board submitted that because the Psychologist had failed to establish an exception under section 39(5) to sustain its application for non-publication of the Agreed Statement of Facts (either in full or in redacted form) or of any material filed with the tribunal, the Psychologist's application under section 39 of the ACAT Act should be dismissed and the Agreed Statement of Facts should be published in full.

The Parties' Submissions regarding the objectives of and guiding principles in the National Law

1. The Board argued that the National Law also regulates this application, therefore the objectives and guiding principles stated in section 3 of the National Law must be considered when dealing with the application for interim orders, for example the protection of the public in section 3(3)(a) of the National Law, which favoured publication.
2. Conversely, the Psychologist contended that there are no issues concerning the protection of the public requiring further publication in this matter. The Psychologist stated that he has already significantly altered his practice so there is no real likelihood of any repetition of problems that gave rise to the application. Further, the efficient operation of the regulatory scheme can and should involve resolution of matters by agreement between members of the profession and the Board. Encouraging such mediation, said the Psychologist, is relevant to the guiding principle of efficiency and effectiveness of the scheme under section 3(3)(a) of the National Law. The transparent operation of the regulatory scheme requires that parties are aware of any new processes or procedures regarding the publication of consent orders or Statements of Agreed Facts in circumstances where the parties have reached an outcome by consent.

1. Section 38(1) of the ACAT Act states that the hearing of an application by the tribunal must be in public. However, section 38(2) states that the section does not apply if the tribunal makes an order under section 39 in relation to a hearing or part thereof.
2. Section 39 states as follows:
   1. Hearings in private or partly in private
      • (1) This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.

Note See s (5) in relation to competing interests.

(2) The tribunal may, by order, do 1 or more of the following:

(a) direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;

(b) give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.

(3) The tribunal may make an order under subsection (2) on application by a party or on its own initiative.

(4) A person must not contravene an order under subsection (2) (b) or (c).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

_(5) For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private - _

(a) to protect morals, public order or national security in a democratic society; or

(b) because the interest of the private lives of the parties require the privacy; or

(c) to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.

1. Section 39(1) requires the tribunal to be satisfied that the right to a public hearing is outweighed by competing interests before a suppression order may be made. The right to a public hearing will be outweighed by competing interests if the tribunal is satisfied that the application or part of the application, should be kept private pursuant to section 39(5).
2. Section 21 of the Human Rights Act 2004 (Human Rights Act) is also relevant to the application. This provision states:
   1. Fair trial

(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

_(2) However, the press and public may be excluded from all or part of a trial - _

(a) to protect morals, public order or national security in a democratic society; or

(b) if the interest of the private lives of the parties require the exclusion; or

(c) if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.

(3) But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.

The Health Practitioner Regulation National Law

1. To the extent that it applies, the National Law also regulates this application. Section 3 of the National Law states the objectives and guiding principles of the National Law which relevantly include:

(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are to be registered (section 3(2)(a));

(b) to facilitate access to services provided by health practitioners in accordance with the public interest (section 3(2)(d));

(c) that the scheme is to operate in a transparent, accountable, efficient, effective and fair way (section 3(3)(a));

(d) that restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality (section 3(3)(c)).

1. Section 4 of the National Law provides that an entity that has functions under the National Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3 of the National Law.
2. Section 198 of the National Law states that Part 8 Division 11 of that Act applies despite any provision to the contrary in the Act that establishes the responsible tribunal (in this case the ACAT Act) but does not otherwise limit that Act. Relevantly for this application, the National Law leaves a responsible tribunal to be governed by its own act. Whilst hearings before panels are not open to the public pursuant to section 189 of the National Law, the National Law does not otherwise regulate the conduct of hearings or the publication of decisions once a matter is referred to a responsible tribunal under section 190 of the National Law.

1. As regards the operation of section 39 of the ACAT Act, it is clear that both the caution and the Agreed Statement of Facts are part of matters contained in documents filed with the tribunal, therefore the tribunal may give directions prohibiting or restricting the publication of the matters contained in those documents under section 39(2)(a) of the ACAT Act.
2. As stated above, Section 39(1) requires the tribunal to be satisfied that the right to a public hearing is outweighed by competing interests before a suppression order may be made. The right to a public hearing will be outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private under section 39(5).

(a) to protect morals, public order or national security in a democratic society; or

(b) because the interests of the private lives of the parties require the privacy; or

(c) because publicity would otherwise prejudice the interests of justice but only to the extent that is privacy is strictly necessary in the special circumstances of the application.

1. The Psychologist relied upon subsections 39(2)(b) and s39(5)(c) of the ACAT Act to seek a suppression order that the caution and the Agreed Statement of Facts not be published. It is therefore necessary for the tribunal determine whether, in the special circumstances of the application, the publicity would otherwise prejudice the interests of justice. A suppression order would operate only to the extent that privacy is necessary in the special circumstances of the application.
2. When interpreting sections 38 and 39 of the ACAT Act, the Tribunal notes that section 38 uses obligatory language by stating that the hearing of an application by the tribunal must be in public.[11] Section 39 allows the tribunal to depart from the obligation in section 38 in certain specified circumstances. In interpreting sections 38 and 39, the Tribunal notes that open justice is a common law principle and it does not automatically apply to the tribunal, [12] which is 'a creature of statute'. [13] Therefore the Tribunal's task is to construe the relevant statutory provisions which confer the power, that is, sections 38 and 39 of the ACAT Act. It is certainly appropriate to construe these provisions by analogy with the common law even if the ACAT Act is the source of power.[14] Sections 38 and 39 of the ACAT Act are similar to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which was described by the Full Federal Court in Australia Securities and Investments Commission v Administrative Appeals Tribunal[15] as establishing a 'norm' that proceedings before the Administrative Appeals Tribunal (AAT) shall be in public. The Full Court continued:

This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 at 272 ; [1979] AATA 64; 2 ALD 33 at 55 ; [1979] AATA 64; 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised 'sparingly'.[16]

1. The Tribunal follows this reasoning, which is reinforced by the obligation of the tribunal to interpret the ACAT Act in accordance with the open justice principle stated in section 21 of the Human Rights Act. Section 21 of the Human Rights Act expressly applies to the tribunal by its reference to the forum being an 'independent and impartial court or tribunal'.[17] The word 'court' is defined in the Dictionary of the Human Rights Act to include ACAT. Section 30 of the Human Rights Act requires the Tribunal to interpret sections 38 and 39 of the ACAT Act in a way that is compatible with the express recognition of public hearings in section 21 of the Human Rights Act.[18]
2. The Tribunal considers that the proper interpretation of sections 38 and 39 is that the tribunal is bound by the open justice principle and therefore must conduct its hearings in public unless an exception stated in section 39 of the ACAT Act is met. There is no express statutory prohibition on publication that is relevant to this matter. There is some uncertainty whether the principle of open justice requires the publication of the consent order as opposed to making them available to the public. The act of publication by the tribunal of the consent orders is a further active step by the tribunal. As stated above, section 39(2)(b) contemplates prohibiting or restricting the publication of matters contained in documents filed with the tribunal. The prohibition or restriction of the publication would extend to the tribunal itself and to third parties publishing matters contained in filed documents. Although the Board submitted that the tribunal is bound, as a matter of law, to publish evidence and decisions in occupational discipline proceedings unless one of the exceptions under section 39 of the ACAT Act is met, the meaning of the word 'publish' in this submission was not elucidated. The relevant publication in the present case involves uploading the Agreed Statement of Facts (which includes the caution) to the tribunal's website and other legal repositories such as the Australasian Legal Information Institute (Austlii) website.
3. Clearly courts and tribunals regularly make decisions about publishing or not publishing material on websites. For example, they might decide to not publish a judgment or decision because there is no matter of principle involved. It has been held in the AAT that the open justice norm must be considered by the tribunal in deciding whether to order the suppression of names in a decision that had previously been published on the Austlii website.[19] To what extent should the open justice norm be considered when the tribunal is making decisions about this type of publication?
4. The Tribunal notes the Psychologist's submission that nothing in sections 38 and 39 of the ACAT Act expressly requires the tribunal to publish evidence in this manner. Furthermore, the tribunal may decide its own procedures under section 23 of the ACAT Act. The procedures that would be properly adopted by the Tribunal would fulfil its own objectives under section 6 of the ACAT Act, relevantly:

(c) to ensure that applications to the tribunal are resolved as

quickly as is consistent with achieving justice; and

(d) to ensure that decisions of the tribunal are fair; and

(e) to enhance the quality of decision making under legislation; and

(f) to encourage, and bring about, compliance in decision making

1. These objects reflect some of the arguments put by the Psychologist that the tribunal should encourage procedures that enable applications to the tribunal to be resolved as quickly as is consistent with achieving justice, to ensure that decisions are fair, and to enhance decision-making under legislation. Further, as an authorising law, the objectives and the guiding principles in section 3 of the National Law are also relevant, particularly to provide for the protection of the public by ensuring that health practitioners practise in a competent and ethical manner and the scheme operates in a transparent, accountable, efficient, effective and fair way.
2. Clearly the tribunal plays a critical role in protecting the public in occupational discipline matters and this must be taken into account when interpreting the tribunal's obligations under sections 38 and 39 of the ACAT Act. The Tribunal's protective role in this area (which has an extensive common law heritage and is expressed in the objectives of the National Law) together with the need to safeguard transparency and the proper administration of justice[20] means that the principle of open justice must be taken into account when deciding whether decisions and consent orders should be published.[21] It is not necessary for the Tribunal to decide whether this principle extends to the naming of health practitioners as part of a strategy of deterrence because the health practitioner in the present case has already been named.
3. The Tribunal agrees with the Board's submission that the Psychologist's impression about the tribunal's practices regarding publication in occupational regulation matters may have been distorted by the operation of section 423A of the Legal Profession Act which expressly restricts publication of material which identifies the person who is the subject of disciplinary action or allows their identity to be worked out. Health practitioners who are the subject of disciplinary proceedings under the National Law do not have the benefit of an equivalent of section 423A of the Legal Profession Act therefore the framework surrounding the publication of any hearing outcome is significantly different.
4. Nevertheless, in occupational regulation matters (including legal practitioner matters), the tribunal has developed a practice of publishing Agreed Statements of Facts when making consent orders under section 55 of the ACAT Act. This is buttressed by the clear statements previously made by the tribunal concerning its role, which is to enable the community to be satisfied that the tribunal is thorough in its proceedings, protecting the public and enforcing appropriate professional standards. This role may extend to comment that is made for the guidance of other practitioners.[22] This role was discussed by the Psychologist in his submissions and worth repeating here. Therefore, where the parties have reached an agreement about the outcome of a proceeding under the National Law, the tribunal must approve the outcome and there is a firmly established practice that the tribunal publishes both the proposed remedy obtainable under section 196 of the National Law and an Agreed Statement of Facts.
5. In this respect the Tribunal follows the approach adopted by Street CJ in David Syme & Co Limited v General Motors-Holden's Limited in relation to curial orders:

Important as it is that proceedings and reasons should be heard and stated in public, it is even more important that the solemn formality of a curial order should be capable of publication. To admit to exceptions to this requirement is a far reaching step.[23]

1. In interpreting section 39 of the ACAT Act, the Tribunal considers that the inclusion of the term 'strictly necessary' in section 39(5)(c) reflects the importance of the fundamental principle of open or public hearings by the tribunal which extends to material filed with the tribunal and implies that the exception will be narrowly applied. This is reinforced by the use of the term 'special circumstances of the application' in section 39(5)(c) which implies that there must be something exceptional about the application which warrants a departure from the ordinary rules of public hearings. Therefore, a general interpretation of sections 38 and 39 of the ACAT Act supports the tribunal's current practice.
2. The Tribunal considers that Psychologist's submission that publication of final consent orders will act as a general deterrent to parties participating in mediations or negotiations is a bare assertion that cannot be taken into account by the Tribunal. The Tribunal notes that the caution indicates that the breaches may not be at the serious end of professional errors, and that the Psychologist has made significant changes to his practice. However, the Psychologist did not offer evidence of specific harm that he would suffer as a consequence of the publication of the caution and the Agreed Statement of Facts. Therefore there is no evidence that the publication of the consent orders will 'unfairly impugn'[24] the Psychologist.
3. The Tribunal gives more weight to the submission made by the Psychologist that section 38 has a more limited role in the current matter because it involves a mediation which is private to the parties. The parties have waived the privilege concerning the contents of the mediation and the Psychologist submitted that he understood that the caution would not be published at all because it would not be published on the websites of AHPRA or the Psychology Board. The Psychologist alleged he would not have reached agreement without the benefit of knowing that a caution would not be published and that a non-publication statement was an important part of this thinking in reaching the mediated agreement. Although the Board agreed that it would exercise its discretion under sections 225 and 226 of the National Law not to publish the caution, the Board denies that the agreement reached in the mediation would have any wider effect regarding publication. In the present case the Psychologist argued that agreement was reached before any practices developed in the tribunal for publishing reasons for occupational regulations matters and it would be unfair for the tribunal to now publish the caution or Agreed Statement of Facts.
4. The Tribunal notes the Psychologist's submission that it would be unfair to publish the caution or factual reasons (based on matters in documents filed with the tribunal) if the tribunal has not engaged in a fact-finding exercise, for example, in a hearing. The Tribunal agrees with the Psychologist that this issue is significant and notes that some case law suggests that the requirements of open justice at the interlocutory stage may not be as rigorous as the hearing of a contested application.[25] However, in this case the Tribunal relies on the express words of section 39 of the ACAT Act which contemplates that the section 38 principle applies to a matter contained in a document filed with the tribunal. The fact that the tribunal may give directions prohibiting or restricting the publication of matters contained in the documents filed with the tribunal connotes that these documents are also covered by the norm expressed in section 38 of the ACAT Act.
5. The tribunal is not satisfied that the right to a public hearing expressed in section 38 of the ACAT Act and section 21 of the Human Rights Act in occupational discipline matters including publication of Agreed Statements of Facts is outweighed by these special circumstances. Although it is unfortunate that confusion arose about publication generally, (as opposed to publication on the AHPRA or the Psychology Board websites), there is no evidence that the Board actively misled the Psychologist (despite the assertions about breach of the model litigant guidelines which again amounted to bare assertion by the Psychologist) nor that the parties turned their minds to the practices of the tribunal or the operation of sections 38 and 39 of the ACAT Act during the mediation.
6. The Tribunal also notes that the parties had contemplated the publication by the tribunal of the Agreed Statement of Facts before it was filed as a joint consent order pursuant to section 55 of the ACAT Act because it contained the following statement in the final paragraph,.

Further, the parties note that publication of reasons is a matter within the discretion of the Tribunal.[26]

1. So, whatever misunderstandings had arisen at the mediation or during the negotiation of the terms of the agreed outcome, the Psychologist had decided to file joint consent orders containing the caution and the Agreed Statement of Facts notwithstanding that the Tribunal might decide to publish that material.
2. The Tribunal is not satisfied that, on balance, publicity would prejudice the interests of justice in the special circumstances of the application pursuant to section 39(5)(c) of the ACAT Act therefore the application for Order 1 of the application for interim orders sought by the Psychologist on 14 July 2014 is dismissed.
3. The Tribunal notes that the parties made further submissions regarding Psychology Board of Australia v D[27] and the naming of health practitioners in disciplinary proceedings. It is not necessary for the Tribunal to decide this point because, as stated above, the Psychologist has been named.

1. In the alternative, the Psychologist sought that redactions be made to the Agreed Statement of Facts because he alleged that the material that he sought to be redacted disclosed incidents or facts that fall outside the relevant period of time for the purposes of the matter referred to the tribunal under section 190 of the National Law. The Psychologist argued that this material would have been successfully objected to had the material been tested in a hearing or through cross-examination. The Board notes that the Agreed Statement of Facts does not arise out of any fact-finding exercise by the tribunal and that certain facts have been admitted by the Psychologist which would be rendered nugatory if the Psychologist seeks to limit the tribunal's reliance on those facts as the basis for final orders.
2. As discussed above, the power in section 39 of the ACAT Act may be exercised at an interlocutory stage as regards matters contained in documents filed in the tribunal so the operation of the open justice norm is wider than a contested hearing. Nevertheless, even if the Tribunal accepted the Psychologist's argument, it is unclear whether the redactions sought would necessarily have been struck out from the evidence in a hearing. One of the redactions sought by the Psychologist in paragraph 12(b) will be made as a consequence of compliance with the suppression orders made on 28 November 2013 regarding the Psychologist's clients. It is unclear whether the remaining fifteen words sought to be redacted from the Agreed Statement of Facts would be interpreted as not falling within the scope of matters referred to the tribunal under section 190 of the National Law.
3. More importantly, it is not for the tribunal to second-guess consent orders that have been filed by the parties by use of non-publication orders under sections 38 and 39 of the ACAT Act. The proper challenge to a consent order for this reason would be under section 55 of the ACAT Act which would require the parties to bring the matter to the tribunal's attention because the agreed terms would not be within the powers of the tribunal or not appropriate for the tribunal to make. No such application was made to the tribunal and the Tribunal considers that an application for redaction under sections 38 and 39 of the ACAT Act for these reasons is both inappropriate and does not satisfy the test in section 39(5)(c) of the ACAT Act.
4. Therefore the application for Order 2 of the application for interim orders sought by the Psychologist on 14 July 2014 is also dismissed.
5. The parties are required by 10 April 2015 to file a further copy of the Agreed Statement of Facts which redacts the names of and other material which identifies the persons referred to in the Tribunal's orders of 28 November 2013.
6. After the amended Agreed Statement of Facts is filed, the tribunal will publish this decision and attach the amended Agreed Statement of Facts.

1. The Tribunal has concluded that it is not satisfied that the publicity generated by publication of the caution and other matters contained in documents filed with the tribunal, including the Agreed Statement of Facts, will prejudice the interests of justice in the special circumstances of this application and therefore dismisses the application for interim orders sought by the respondent.

CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR13/22

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2008 (ACT)

Tribunal : Professor P Spender - Presidential Member

1. the parties have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to them; and
2. the terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and

1. the Tribunal is satisfied that a decision consistent with those terms would be within the powers of the Tribunal;

by consent, the Tribunal makes orders in the terms of the agreement signed by the parties and annexed hereto as Attachment A.

1. Mr Ziji Peter-John Fox (the respondent) was born on 26 August 1949. He graduated from the University of New South Wales with a Bachelor of Science majoring in psychology in 1973. The respondent also completed his Masters of Psychology at the Australian National University in 1980.
2. The respondent commenced his career as a clinical psychologist in 1973 at Prince Henry Hospital, in the Department of Psychiatry. From 1974 to 1979 the respondent moved to Canberra and commenced working in ACT Health as a clinical psychologist working in the child guidance clinic, disability services and the child and adolescent unit.
3. From 1979 to the present, the respondent has been in private practice, where he provides psychological services to client groups including children, adolescents, adults, couples and family, specialising in couples therapy and trauma. During this time, for a period of four years, the respondent was also a clinical supervisor of Lifeline Canberra from 1989 to 1993.
4. The respondent also has a number of professional affiliations. He was a member of Australian Psychology Society from 1978 to 2010 and a member of the College of Clinical Psychology from 1986 to 2010. From 2010 the respondent was a founding member of Australian Clinical Psychologists Association.
5. The respondent first registered as a psychologist on 5 October 1995 and currently holds general registration as a psychologist, which expires on 30 November 2014 (Annexure A). His approved area of practice is clinical psychology. No conditions, undertakings or reprimands currently attach to the respondent's registration.

1. The complainant, KS, is the daughter of PC. PC received psychological services from the respondent between approximately 1991 and 2005 (the relevant period), when the conduct complained of occurred. The complainant claimed that the respondent had been both a family friend of long standing and provided psychological services to members of her family.

1. The application before the Tribunal consists of the following allegations:

1. that in the relevant period, the respondent maintained a social relationship with PC and members of his family, including but not limited to SP, SS and DC; 2. that in the relevant period, the respondent provided psychological services to PC and members of his family, including but not limited to SP, SS & DC;

1. that the respondent engaged in unprofessional conduct by breaching clause B.7 of the Australian Psychological Society Code of Ethics (2003) (APS Code of Ethics 2003) and its predecessors, that clause reading as follows:

(B.)7. Members must avoid dual relationships that could impair their professional judgment or increase the risk of exploitation. Examples of such dual relationships include, but are not limited to, provision of psychological services to employees, students, supervisees, close friends or relatives.

A copy of the APS Code of Ethics Translation Table, comparing the 2003 and 2007 Codes appears at Annexure B.

1. Section 40 of the Health Practitioner Regulation National Law (ACT) (National Law) provides, in summary, that a code or guideline approved by a National Board is admissible in proceedings under the National Law against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the relevant health profession. The APS Code of Ethics 2003 and its predecessors is such a code.

1. The respondent admits, and the applicant accepts, the following facts.
2. In the relevant period, the respondent provided psychological services to the following relevant people:

1. HK, also known as HC and wife of PC, sought treatment for herself and then for other family members. This treatment included counselling about her family with PC and about specific incidents she experienced when she was a young person. This treatment also included referral out to Ms Margaret Groube, clinical psychologist, to deal with specific issues concerning PC, which issues the respondent considered inappropriate for him to deal with; 2. PC received psychological services from the respondent, including the respondent recommending a referral through PC's general practitioner to psychiatrist, Dr John Saboisky. This recommendation was taken up;

1. DC, son of PC and SP, initially sought treatment about issues concerning the family, then about his relationship with "M" and then, jointly with M, about their relationship;

1. SS, a daughter of PC and SP, did not see the respondent for treatment until 1996 when she attended for two sessions, one of which was with her father, PC. SS later returned to seek counselling from the respondent about her then partner. In relation to the issues relating to PC, the respondent referred SS to Lynette Geary, psychologist; 2. CC and BC, children of PC and HK, when minors, both attended one or two sessions about family issues with their parents. In these sessions, one or both of their parents were always present. In addition, CC attended for counselling once, at the insistence of HK, concerning his non-attendance at school.
2. In the relevant period, the respondent did not provide psychological services to:
   1. SP, formerly SC and former wife of PC; or
   2. KS, complainant, daughter of PC and SP.
3. In the relevant period, the respondent also had non-professional contact with PC and members of his families as follows:

1. In about 1992-1993, the respondent provided training to a group of Lifeline leaders, which included PC; 2. In 1999, KS telephoned and emailed the respondent requesting that he provide a written reference for KS application to the University of Melbourne (Annexure C). The respondent provided that reference on 7 October 1999 which included a statement that he had 'known KS and her families for over twenty years' and he was aware of her personal and socio-economic difficulties 'resulting from the abusive and broadly dysfunctional family environments in which she grew up'. The respondent knew of KS' circumstances because of his counselling of her father and other family members. The respondent had had no prior social or professional contact with KS herself.

1. In 1999, the respondent met KS socially in public. She had invited him (in the course of contact about the abovementioned reference) to see her before her concert in Melbourne on New Year's Eve. The respondent was already going to be in Melbourne at that time for family reasons. He and his wife visited the concert site prior to the concert and both of them spent about 10 minutes chatting to KS, who had to go off to continue setting up her band for the concert. The respondent and his wife went off to their pre-arranged family gathering and did not see the concert.
2. The respondent accepts that by providing psychological services to multiple members of the same family, including family members he was acquainted with prior to the relevant period, that multiple or dual relationships could have developed.
3. The respondent further accepts that having non-professional contact with KS when he was providing psychological services to members of her family could also lead to dual relationships.
4. The respondent accepts that those multiple or dual relationships may have impaired his professional judgment.
5. The respondent further accepts that these multiple or dual relationships may have caused unnecessary confusion in the mind of KS and wishes to acknowledge the distress of the complainant caused by such dual relationships.
6. By failing to avoid dual relationships within the same family, the respondent accepts that his conduct was in breach of the former clause B7 of the APS Code of Ethics and amounted to unprofessional conduct within the meaning of section 5 of the National Law.
7. Since 2008, when the complaint was made, the respondent has practised without restriction and without any further allegation of unprofessional conduct.
8. The respondent advises that, as a protective measure, he has implemented the following changes to his practice in response to the complaint:
   • (a) the respondent no longer sees more than two members of a family for treatment, and even then requires them to complete an eight page questionnaire (Annexure D), which questionnaire asks about other family members potentially involved or that could be affected by the respondent's services;
   • (b) the respondent generally avoids clients from his new home town in case they have social networks overlapping with his;
   • (c) the respondent has moved his primary practice to a city away from his home town; and
   • (d) the respondent ensures that all clients understand expressly that they are clients in perpetuity and can never have any non-client relationship with him.

1. For the purposes of section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), the parties consent to, and ask the Tribunal to make, the following orders:
   1. An order that the respondent has behaved in a way that constitutes unprofessional conduct (pursuant to section 196(1)(b)(ii) of the National Law); and
   2. A caution of the respondent in relation to his conduct, as set out in paragraphs [10] to [17] above (pursuant to section 196(2)(a) of the National Law), in the following form:

"The practitioner is cautioned in relation to not avoiding dual or multiple relationships within the same family".

1. That the time since the conduct alleged is noted, in particular the significant changes that have already been made by the respondent to his practice as set out in paragraph [19] above;

1. That the names of the clients, complainant and their families be suppressed; and

1. Further, the parties note that publication of reasons is a matter within the discretion of the Tribunal.

[](ref SHAPE * MERGEFORMAT )

[1] Psychology Board of Australia v Fox [2013] ACAT 75

[2] Psychology Board of Australia v Fox [2013] ACAT 75 at [62]

[3] [2009] HCA 27; (2009) 239 CLR 175 (eg, at [5], [24]-[26], [30], [93-95] )

[5] Council of the Law Society of the ACT & The Legal Practitioner E [2013] ACAT 57 (11 November 2013); Council of the Law Society of the ACT v Legal Practitioner D2 [2014] ACAT 6 (12 February 2014); Council of the Law Society of the ACT v Legal Practitioner D1 [2014] ACAT 17 (28 March 2014); The Legal Practitioner M v Council of the Law Society of the ACT [2014] ACAT 18 (31 March 2014).

[6] Psychology Board of Australia v Fox [2013] ACAT 75

[7] Council of the Law Society of the ACT v Tiirikainen & Anor [2014] ACAT 29 (13 May 2014) at [3]; Council of the Law Society of the ACT v Giles & Anor [2014] ACAT 30 (13 May 2014) at [3]

[8] [2013] ACAT 75

[9] John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors [2004]

NSWCA 324 at [40] and [47]; David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294 at 301D-F

[10] Section 423A Legal Profession Act 2006 (ACT)

[11] D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (LexisNexis, 2014), page 425

[12] John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [76]- [88]

[13] Respondent's Submissions in Reply 4 August 2014

[14] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [78]

[15] (2009) 181 FCR 130, (2009) 263 ALR 411, [2009] FCAFC 185

[16] Australia Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, (2009) 263 ALR 411, [2009] FCAFC 185 at [74]

[17] Section 21(1) Human Rights Act 2004

[18] R v Meegan [2014] ACTSC 263

[19] Re Paul and Minister for Immigration and Citizenship (2011) 128 ALD 604; (2011) 56 AAR 190; [2011] AATA 831

[20] John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

[21] John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 per McHugh JA at 476-477

[22] Council of the Law Society of the ACT v Tiirikainen & Anor [2014] ACAT 29 (13 May 2014) at [3]; Council of the Law Society of the ACT v Giles & Anor [2014] ACAT 30 (13 May 2014) at [3]

[23] [1984] 2 NSWLR 294 at 301D-F

[24] Director of Proceedings v Candish [2013] NZHRRT 40 at [10.8]

[25] Anon 2 v XYZ [2008] VSC 466 at [98]; National Australia Bank Ltd v KRDV (2012) 292 ALR 639; [2012] FCA 543 at [98]

[26] [21] of the Consent Orders dated 21 August 2014

[27] [2010] VSC 375