The principles governing the making of a confidentiality order
9 The power of the Court to make confidentiality orders in respect of materials in proceedings in the Court and the principles or criteria by which that power should be exercised have recently been discussed by the High Court of Australia in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (Hogan) (the Court: French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
10 Section 50 of the Federal Court Act, as it stood at the time of Hogan, was in the same terms as s 50(1) now stands. Since the time of the orders made and considered by the High Court in Hogan, s 50 has been amended by the addition of subs (2).
11 Section 50 of the Federal Court Act now provides:
(1) The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
(2) This section does not limit section 23HC.
12 So far as s 23HC of the Federal Court Act is concerned, it is not presently relevant as it has to do with protecting witnesses and the power of the Court to make such orders as it thinks appropriate in that regard.
13 Nothing in s 50(2) as it now stands has, in my view, the effect of qualifying or limiting or otherwise effecting the principles enunciated in Hogan by the High Court concerning the application of s 50(1).
14 In Hogan the Court, at [7], made two points about what is now s 50(1). First, that it qualifies the general provision in s 17(1) of the Federal Court Act that the jurisdiction of the Federal Court is to be exercised in open court. Secondly, that the Federal Court is entrusted with the duty to ensure that "the administration of justice" is respected; it is not a duty that falls to the parties.
15 The touchstone for the making of a confidentiality order (an order forbidding or restricting the publication of particular evidence or the name of a party or witness) is whether it is "necessary" in order to "prevent prejudice to the administration of justice" or "the security of the Commonwealth". In this case, as in Hogan, the security of the Commonwealth is not in issue. The question here, as it was there, is whether it is "necessary" in order to "prevent prejudice to the administration of justice" that the confidentiality orders proposed by the respondents be continued in some form.
16 In Hogan, at [30], the Court emphasised that "necessary" is a strong word. In that regard, Parliament was not dealing with "trivialities".
17 The Court also emphasised, at [30], that "the administration of justice" spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; and "this is a more specific discipline than broader notions of the public interest".
18 I take the last admonition to mean that the Court should not simply consider what the "public interest" might require by way of disclosure or nondisclosure in a particular case, but whether or not confidentiality is "necessary" to "prevent prejudice to the administration of justice" quite specifically.
19 In this same vein, the Court, at [33], emphasised that it may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a "discretion" when entertaining an application under s 50. Accordingly, it would be a misreading of s 50 to treat it as empowering the Court to refuse to make the order, or to leave in operation an impugned order, if it has reached the requisite state of satisfaction. In other words, effectively it would not be open to the Court to refuse to make a s 50 order where it appeared to the Court to be necessary to prevent prejudice to the security of the Commonwealth, for example.
20 All of this focuses the mind of the Court in this case on whether an order under s 50 is necessary to prevent prejudice to the administration of justice. Put another way, the central question here is what prejudice there might be to the administration of justice if the current interim order were to be fully discharged.
21 In Hogan, at [42], the Court made it plain that the administration of justice by the Federal Court, which is the focus of s 50, includes not only the generally recognised interest in open justice, but also restraints upon disclosure where this would prejudice the proper exercise of its adjudicative function. In this, the Court referred to what Bowen CJ of the Federal Court of Australia said in Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 43 FLR 129 at 133. There, his Honour described the litigation in the Court in that case as analogous to a case where confidential information is "the subject matter of the proceedings". The Chief Justice concluded that it was in the interests of justice that the processes for determination of those very proceedings not destroy or seriously depreciate the value of that subject matter: 43 FLR at 135. The Court in Hogan, at [43], noted that the case before it was not such a case, that is to say a case concerning confidential information that might be destroyed or seriously depreciated in value. The Court also noted that Mr Hogan, not the other party, had put on the evidence which he then sought to protect from disclosure by way of a confidentiality order.