FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217

PRACTICE AND PROCEDURE – application for order forbidding publication of respondent’s name – respondent infected with HIV – whether identifying respondent would “prevent prejudice to the administration of justice” – relevance of name being already in public domain

WORDS AND PHRASES –  “prevent prejudice to the administration of justice”

Federal Court of Australia Act 1976 (Cth) s 50

Imad v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1011 at [13]

Australian Broadcasting Commission v Parish (1980) 29 ALR 228

Johnston v Cameron (2002) 124 FCR 160

Attorney-General for the United Kingdom v Heineman Publishing Australia Pty Ltd (1987) 8 NSWLR 341 at 368-369, 374

John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v X

VID 422 OF 2005

HEEREY AND WEINBERG JJ

13 OCTOBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) the publication of the name of the respondent is forbidden in any report of this proceeding (including the proceeding at first instance) made on or after 13 October 2005, other than in any report made by or on behalf of the appellant or the Department of Immigration and Multicultural and Indigenous Affairs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     The respondent applied for a Student (Temporary) (Class TU) visa.  The grant of the visa was subject to certain public interest criteria set out in par 4005 of Sch 407 of the Migration Regulations 1994 (Cth) including the criterion that the applicant is not a person who has a disease or condition such that a person who has it would be likely to require “healthcare or community services” and that the provision of such care or services would be likely to result in a “significant cost to the Australian community”.

2                     A delegate of the Minister refused the application and that refusal was affirmed by the Migration Review Tribunal.  The respondent sought review in the Federal Court.  A single judge of the Court quashed the determination of the Tribunal.  On 29 September 2005 a Full Court consisting of the Chief Justice and ourselves upheld the Minister’s appeal: [2005] FCAFC 209.

3                     Before the Tribunal, the primary judge and the Full Court, the respondent was referred to by name. There was no application at any stage on his behalf for an order forbidding or restricting the publication of his name. The respondent by a motion now seeks an order under s 50 of the Federal Court of Australia Act 1976 (Cth) that the publication of his name is forbidden in any report of this proceeding, including the proceeding at first instance, made after the date of the order, other than in any report made by or on behalf of the Minister or the Department of Immigration and Multicultural and Indigenous Affairs.

4                     The Chief Justice is presently overseas and the parties have consented to our hearing and determining the motion pursuant to s 14(3) of the Federal Court of Australia Act.

5                     The basis of the application is that the judgments of the Full Court and the primary judge disclose that the respondent and his wife are HIV positive.  They have two children who are not infected.  The respondent says that the disclosure of his identity will cause severe distress and embarrassment to himself and his family.

Publication to date

6                     A copy of the Tribunal’s decision is currently on the database of the Australasian Legal Information Institute (AustLII) although the respondent’s surname is slightly misspelt.

7                     The decision of the primary judge is on the databases of AustLII and the Federal Court.  It received no general media coverage.  There was a brief note in the Victorian Law Institute Journal which identifies the respondent by name but does not go beyond a summary of the legal conclusion reached by his Honour.  It does not mention the respondent’s HIV status.

8                     Prior to the handing down of the Full Court’s decision, there had been no publication in the general media identifying the respondent and his condition.  This position altered as a result of a press release issued by a body called “Rights Australia Inc” on the afternoon of the Full Court decision.  The press release referred to the respondent by name and stated that he and his wife are HIV positive.  It said that the Full Court had overturned the primary judge’s ruling and indicated that under Australian Government regulations the immigration authorities are not obliged to consider the actual circumstances of the applicant’s illness but only the impact of a hypothetical case.

9                     That was not an accurate summary of the Full Court’s decision.  The fact that the regulation in question directs attention to a hypothetical person with the visa applicant’s disease or condition and not the actual visa applicant had been decided by an earlier Federal Court decision:  Imad v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1011 at [13].  That point was not an issue in the present case.  What was an issue was whether self-administered medication dispensed by a pharmacist pursuant to a medical practitioner’s prescription was “healthcare” within the meaning of the regulations.

10                  The statement quoted Rights Australia spokesman, Mr Greg Barns, as saying that the Full Court’s decision was “cruel and inhumane”.  The press release concluded by referring the reader to the full text of the decision on the AustLII website.

11                  On the same day a journalist from The Age contacted Mr Filip Gelev of Victoria Legal Aid, the respondent’s solicitor, to ask his views and, if possible, the respondent’s views about the case.  She told Mr Gelev she had only become aware of this decision through the Rights Australia press release being sent to a number of media organisations.  Subsequently a report appeared on The Age internet service and the website of The Sydney Morning Herald.  In both cases the respondent was identified by name.  The Sydney Morning Herald report became the subject of extended comment in an internet chat room known as the Green Room forum and was reported on the Yahoo News website.

12                  After speaking to the respondent Mr Gelev contacted The Age journalist whose editors ultimately agreed to withhold the name of the respondent from the print article which appeared in the paper the following day.  She declined to give any undertaking in relation to future articles.  A report of the case the next day which appeared in The Sydney Morning Herald contained the name of the respondent, as did an article in The Daily Telegraph.

13                  Mr Gelev spoke to Mr Barns who agreed to withhold the name from the version of the press release archived on the Rights Australia website.

Lack of opposition

14                  The Minister was represented by counsel and did not oppose the order sought.

15                  Mr Gelev served copies of the notice of motion and supporting affidavits (in some instances without exhibits) on the publishers of:

• The Age
• The Sydney Morning Herald
• The Daily Telegraph
• Yahoo News
• The Green Room chatroom

and on:

• The Law Institute of Victoria
• The Law Society of New South Wales

16                  None of the organisations served appeared on the hearing of the motion.

Prejudice to the administration of justice

17                  Section 50 provides that the Court “may, at any time during or after 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”.

18                  Section 50 has been considered by Full Courts of this Court on two occasions:  Australian Broadcasting Commission v Parish (1980) 29 ALR 228; Johnston v Cameron (2002) 124 FCR 160.  As pointed out by Tamberlin J in Johnston at [68], s 50 imposes a strict test.  It must appear to the Court “necessary” to make an order prohibiting publication.  This is to be contrasted with some comparable legislative provisions in other jurisdictions which use such terms as “desirable”, “undue hardship” or “damage to reputation”.  Nevertheless, s 50 confers a discretion on the Court.  It is not necessary to discuss in any detail these authorities, which arose out of quite different situations such as the need to protect commercial confidentiality (Parish) or the public interest in alleged criminal conduct of a prominent union official (Johnston).

19                  In the present case the operation of the regulations on persons with HIV or other medical conditions is plainly a matter of public interest.  However the identity of the respondent is not.  Apart from his involvement in this litigation he is in no sense a public figure.

20                  There could be no doubt that the public identification of a person as being HIV positive could be a source of extreme distress and embarrassment.  On the evidence the respondent has had this reaction.  According to telephone book searches the respondent’s surname is quite uncommon in Australia.  He would be readily identified especially by those in the expatriate community of his fellow nationals.  Further, there would be stigma attached to his wife and children.

21                  Distress and embarrassment by reason of publication of the identity of a person involved in litigation does not in itself amount to prejudice to the administration of justice.  The importance of justice being done in public has been affirmed time and again by decisions which it would be a formality to cite.  Very often publicity is hurtful and embarrassing to someone but that is inherent in the nature of publication of court proceedings; often the more hurtful and embarrassing the proceeding the more newsworthy the report of it.

22                  But there is a feature of the present case which takes it out of the ordinary run.  There is a real risk that publication might dissuade other persons who might seek to challenge the legality of administrative decisions linked with a disease or condition that, no doubt wrongly but realistically as a matter of fact, carries a public stigma.  An analogy might be found in the prohibition of the names of blackmail victims.  If the names were published in court proceedings there would be a strong disincentive for those victims to complain to the police.

23                  There has already been substantial publication of the respondent’s identity.  In some situations the fact that information has passed into the public domain would inevitably lead to the refusal of an order prohibiting publication:  see eg Attorney-General for the United Kingdom v Heineman Publishing Australia Pty Ltd (1987) 8 NSWLR 341 at 368-369, 374.  A court will not usually make orders which are, and are seen to be, futile.  However, information as to the respondent’s HIV status is not like a commercially sensitive fact which, once published, loses the value which confidentiality confers.  Here each further publication can inflict a new wound.

24                  As Dr Collins, counsel for the respondent, submitted, the order sought can still have utility.  The order will not operate directly to bind non-parties to take positive actions such as the removal of information from websites.  Nevertheless conduct which deliberately violates the effect of an order would constitute a contempt of court:  John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477.  There is a practical and tangible benefit to the respondent in prohibiting further publication.

25                  Further, the fact that media organisations, usually strenuous opponents of suppression orders, have not sought to intervene in the present case suggests that an order might bring the respondent some voluntary co-operation by way of removal of his name from websites.  That the respondent might receive a benefit beyond the strict terms of the order is not, in the present circumstances, a reason for not making it.

26                  Accordingly there will be orders in the terms sought.  There will be no order as to costs.

Associate:

Dated:              13 October 2005