Federal Court of Australia

Zhang v Australian Information Commissioner (No 2) [2023] FCA 151

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 27 February 2023 be dismissed.

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

REASONS FOR JUDGMENT

Ex tempore

(Revised from transcript)

SNADEN J:

1    The court has today pronounced judgment in this matter. A hearing was scheduled for that purpose and the parties were given notice of it. In the intervening period, the applicant, Ms Zhang, indicated that she wished to press for orders to suppress publication of her identity: more specifically, for “an order that makes the case confidential and suppressed”.

2    On the morning of 27 February 2023, the court received from Ms Zhang an application for judicial review. Although irregular in form, it is apparent that it was intended to serve as Ms Zhang’s application for suppression. That intention was confirmed by the court’s receipt later on 27 February of an interlocutory application that assumed substantially the same form. I am content to proceed on the basis that Ms Zhang makes application for orders under Part VAA of the Federal Court of Australia Act 1976 (Cth) (hereafter, the “FCA Act”), specifically for what are known thereby as suppression or non-publication orders.

3    The bases upon which Ms Zhang presses for such orders are set out in the applications that were received on 27 February 2023 (which I have resolved to treat as a single interlocutory application). They may be summarised as follows. Ms Zhang maintains that suppression or non-publication orders are necessary:

(1)    to protect her safety and that of others to whom some of the evidence received in the substantive matter referred; and

(2)    to prevent prejudice to the proper administration of justice.

4    No affidavit evidence was led to substantiate either basis; but, during a brief hearing that took place after the substantive judgment was pronounced, Ms Zhang did make oral submissions in respect of them, by which she advanced some factual propositions that I am prepared to assume as established for present purposes.

5    As regards the first of her two bases, Ms Zhang contends that orders are appropriate because she is the holder of a protection visa. That is said also to be the case for at least some (and perhaps most or all) of those whose identity is disclosed in the evidence that was received on the substantive application. Ms Zhang told the court that, as a protection visa holder, she feels compelled to take action to protect herself and her family from threats, albeit threats that were unspecified.

6    As regards the second of Ms Zhang’s two bases, it is said that unless an order is made, there is a prospect of further litigation being commenced against the respondent by one or more of those whose identities are apparent from the evidence that was relied upon in the substantive matter. At the hearing of her application for suppression, Ms Zhang appeared to abandon that ground; but I will address it in any event.

7    Orders under Part VAA of the FCA Act are unusual. They involve a departure from the important principle of open justice, consistently with which the court is otherwise compelled to operate. An order under Part VAA will be made only in the event that it is necessary to achieve one of the objectives listed in section 37AG(1) of the FCA Act.

8    Presently, there is no basis apparent to me why it should be thought now that an order is necessary to protect Ms Zhang’s safety, or that of anybody else. That she and others are the holders of protection visas is not nearly sufficient to establish that. There is no immediate or apparent threat to anybody’s safety that should warrant orders of the kind for which Ms Zhang moves.

9    Likewise, there is nothing apparent about any aspect of the administration of justice that might be imperilled unless an order of the kind for which Ms Zhang now moves is made. I do not accept that Ms Zhang has established any such basis.

10    There is, then, no reason for the court to depart from the standard position of open justice. Ms Zhang’s application of 27 February 2023 will, therefore, be dismissed.

Associate:

Dated:    28 February 2023