Federal Court of Australia

Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    On 1 October 2020, the Court ordered that the appeal be dismissed: Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165 (Swannick (No 1)). In the appeal, and in judicial review proceedings in the Court’s original jurisdiction, Mr Swannick (the appellant) sought to challenge a decision of the Minister (the respondent) not to revoke the mandatory cancellation of Mr Swannick’s visa after being convicted of a series of offences which meant that he no longer passed the character test.

2    By an interlocutory application lodged on 7 April 2021 and accepted for filing on 13 April 2021, Mr Swannick seeks an order that the Court replace his name on the court file and in the Court’s reasons for judgment with a pseudonym.

3    In support of his application Mr Swannick relies on an affidavit and written submissions that make clear that he is to be deported back to England shortly because his bid to stay in Australia has been denied. He intends to rebuild his life but he says, fairly, that it is going to be hard for him. He has lived practically all of his life in Western Australia. He observes that a simple Google search produces results that include links to the Court’s judgment in these proceedings against the Minister which reveals all the aspects of his life including his convictions.

4    Mr Swannick apologises for matters giving rise to his charges and convictions and says he is not proud of them. He says:

The biggest problem that I face is that of possible stigma and workplace discrimination. The United Kingdom has a different style of housing compared to Australia. They live-in high-density Suburbs and if anyone were to dig into my past, getting accommodation or a job and friends will become extremely hard. This will simply ruin my chances of rebuilding my past.

5    He goes on to say that:

When I was in Prison, I enrolled myself in a lot of rehabilitation programmes that were both relevant to my rehabilitation and personal growth. I successfully completed them and when I applied for probation I was released on that basis. I managed to reform my offending behaviour and identify the root cause. I am not implicating that I am a perfect human being now, but I am quite positive that I am not going to re-offend again.

6    Mr Swannick attaches copies of the courses in which he was involved. He notes that his father has Alzheimer’s syndrome, and his mother is struggling with his situation and the financial stress that this condition is putting on their budget. He notes that if he can get a job on arrival in the United Kingdom he would be able to ease the financial strain that his mother is experiencing.

CONSIDERATION

7    These reasons should be read with those in the judgment of Stewart  J in Swannick (No 1) which set out the relevant facts and details of Mr Swannick’s case (at [39]-[46]).

The Court’s power to allocate a pseudonym to a party

8    Although the concept of a pseudonym has a particular significance and meaning in the migration context in relation to protection visa applicants (s 91X of the Migration Act 1958 (Cth)), the Court’s discretionary power to allocate a pseudonym in other circumstances is found in Pt VAA of the Federal Court of Australia Act 1976 (Cth) which deals with the making of non-publication and suppression orders in various circumstances. Mr Swannick’s application is best understood as one for a non-publication order with respect to his identity by replacement of his name with a pseudonym. Mr Swannick is permitted to bring this application even though the proceedings have concluded: s 37AH(3) of the Federal Court Act.

9    Section 37AF of the Federal Court Act relevantly provides as follows:

37AF    Power to make orders

(1)    The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b)    information that relates to a proceeding before the Court and is:

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

(ii)    information obtained by the process of discovery; or

(iii)    information produced under a subpoena; or

(iv)    information lodged with or filed in the Court.

(2)    The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

10    Section 37AG then specifies the grounds upon which a non-publication (or suppression) order can be made. It provides:

37AG    Grounds for making an order

(1)    The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)    the order is necessary to protect the safety of any person;

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

(2)    A suppression order or non-publication order must specify the ground or grounds on which the order is made.

Mr Swannick has not made any claim on this application to fear for his safety if he is not given a pseudonym. He must therefore demonstrate that a non-publication order with respect to his identity is necessary to prevent prejudice to the proper administration of justice.

Is a non-publication order necessary to prevent prejudice to the proper administration of justice?

11    Importantly, in considering whether a non-publication order should be made on one of the grounds specified in s 37AG, the Court must have regard to s 37AE which provides:

37AE    Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

12    The wording of s 37AG(1)(a) is essentially the same as its predecessor provision, s 50 of the Federal Court Act which has been comprehensively explained in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]-[33]) (Hogan v ACC): see Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 per Perram J (at [18]-[21]) (ACCC v Air New Zealand (No 3)).

13    In Hogan v ACC, the High Court considered the effect of the co-location of the word “necessary” as a qualifier to the phrase “to prevent prejudice to the administration of justice.” The Court reasoned (at [31]-[33]) that:

30    As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “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; this is a more specific discipline than broader notions of the public interest.

31    It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

32    If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.

33    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. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth

(Citations omitted.)

14    Accordingly, the threshold to be met by an applicant seeking to demonstrate that a non-publication order is necessary is high: ASE16 v Australian Securities and Investments Commission [2016] FCA 321 per Markovic J (at [80]). Although such orders, including pseudonym orders, have been made to prevent the disclosure of commercially sensitive information (see for instance ASE16, ACCC v Air New Zealand (No 3) and Australian Competition and Consumer Commission v Origin Energy Electricity Limited [2015] FCA 278), “mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice”: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68; [2015] FCA 607 per Foster J (at [30]) and Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 per Griffiths J (at [11]).

15    The High Court’s approach in Hogan v ACC and the mandatory consideration of safeguarding the public interest in open justice enshrined in s 37AE confirm that the Court’s discretion in granting an order under s 37AF is confined to an assessment of whether or not the applicant has satisfied the threshold of demonstrating that the order is necessary to prevent prejudice to the proper administration of justice. As explained by Griffiths J in Chen (at [14]) this Court is not permitted to undertake a balancing exercise:

It is important to bear in mind that in assessing whether or not to make an order under s 37AF no balancing exercise is involved by weighing up, on the one hand, the interests of open justice and, on the other hand, the prejudice which may occur if information is released. Rather, the test is whether it is necessary to make the order to prevent prejudice to the proper administration of justice (see Hogan at [31]-[32]). The applicant’s case did not reflect that approach. Rather, it was submitted on his behalf that “while there may generally be a public interest in open justice, in this particular case there is little perceptible public interest in requiring the applicant’s name to appear in publications or listings”. This was because, so it was submitted, the appeal involves a very narrow point of law. The applicant further submitted that, in the circumstances of this particular case, “the open justice consideration is of less weight than in other cases”. That approach to the matter assumes, erroneously in my view, that the correct test is one which does involve the balancing of competing interests.

16    Although Mr Swannick did not make submissions of the kind rejected by Griffiths J in Chen, the above passage illustrates the confined nature of the Court’s discretion to make orders for a pseudonym under s 37AG(1)(a). Mr Swannick’s concern that the public availability of the details of his convictions could impede his ability to secure work in the United Kingdom is not without substance. Though he has not provided any specific evidence, that is not unexpected in circumstances where he has made the application in advance of his departure from Australia. The possibility that he could experience some sort of difficulty obtaining employment on the basis of the publicly available judgment in Swannick (No 1) cannot be discounted. This could in turn lead to some financial or economic hardship. But these considerations do not provide any basis for this Court to be satisfied that a pseudonym is necessary to prevent prejudice to the proper administration of justice. Mr Swannick is for present purposes in no different position from anyone who is convicted of a criminal offence and whose conviction may result in it being harder to obtain employment. The fact of a conviction becoming known by members of the public and the effects of that knowledge, including any resulting difficulties in obtaining employment has not in the past and does not now provide any basis for departing from the open justice principle.

17    The Minister sought to resist Mr Swannick’s application exclusively on the basis of the Court’s implied power to order a pseudonym pursuant to ss 23 and 28(1)(b) of the Federal Court Act. It is doubtful whether the considerations for the making of such an order under the implied power differ in any relevant sense from the test established by Pt VAA (as explained in Hogan v ACC): Stanford v DePuy International Ltd [2013] FCA 1304 per Robertson J (at [21], [43] and [67]); Chen per Griffiths J (at [16] and the authorities cited therein). It follows that regardless of the source of the Court’s power Mr Swannick’s application must be dismissed.

CONCLUSION

18    As the reasoning in Swannick (No 1) was intended to convey, the Court is certainly cognisant of the difficulties confronting Mr Swannick and it continues to be so, but the difficulties to which he points do not establish a principled basis for departure from the rule of open justice in that they do not demonstrate any basis upon which an order for a pseudonym is necessary to prevent prejudice to the proper administration of justice.

19    The interlocutory application must be dismissed with costs.

Associate:

Dated:    26 May 2021