FEDERAL COURT OF AUSTRALIA

Chan v Commonwealth of Australia as represented by the NDIS Quality and Safeguards Commission (No 2) [2023] FCA 1538

ORDERS

THE COURT ORDERS THAT:

1.    The interim orders made by the Court under s 37AI(1) of the Federal Court of Australia Act 1976 (Cth) on 22 November 2023 be vacated with effect at 9.30am on 8 December 2023.

2.    The Amended Interlocutory Application be dismissed.

3.    The costs of and incidental to the Amended Interlocutory Application be reserved.

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

REASONS FOR JUDGMENT

SHARIFF J

INTRODUCTION

1    The Respondents seek orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) for the non-publication and suppression of certain information contained in documents that have been filed with the Court (the Relevant Court Documents). The information that is sought to be restricted has been marked by way of redactions made to the Relevant Court Documents. The redacted versions are annexed to the Respondents’ Amended Interlocutory Application.

2    On 22 November 2023, I made interim orders under s 37AI(1) of the FCA Act. As I explain at [7]–[9] below, I made those orders in circumstances where I had not determined the merits of the Respondents’ application. Since then, I have heard the Respondents’ application and been able to consider its merits with the benefit of both written and oral submissions from the parties and from an intervener.

3    The primary question raised for my determination is whether the orders sought by the Respondents are “necessary” to prevent prejudice to the proper administration of justice. I have concluded that the orders sought are not “necessary” and, accordingly, the Amended Interlocutory Application must be dismissed. These are my reasons for so concluding.

BACKGROUND

4    The background to the present application is set out in my separate reasons in Chan v Commonwealth of Australia as represented by the NDIS Quality and Safeguards Commission [2023] FCA 1458 (the Interlocutory Decision). Although the Interlocutory Decision was ready for publication on 24 November 2023, I have not published it in light of the Respondents’ application for non-publication and suppression orders. I will publish the Interlocutory Decision when the orders that I have made today take effect.

5    So that my reasons in relation to the discrete issue of the Respondents’ application for non-publication and suppression orders can be read separately to the Interlocutory Decision, I have endeavoured to set out some but not all of the salient facts below. For present purposes, it is sufficient that I record the following:

(a)    Dr Chan is employed by the First Respondent, the Commonwealth of Australia (represented by the NDIS Quality and Safeguards Commission) (NDIS Commission).

(b)    Dr Chan has been employed by the NDIS Commission since 9 July 2018, but has held this current position since in or about May to July 2022.

(c)    On 25 September 2023, the Australian Broadcasting Commission (ABC) aired an episode on the television program, Four Corners, entitled “Careless” (Four Corners Episode). The Four Corners Episode followed an investigation into exploitation, abuse and assault of persons with disabilities by various third party service providers including one particular service provider (the Third Party Service Provider). During an interview that was broadcast as part of the Four Corners Episode, the Second Respondent (Ms Mackey), the Commissioner of the NDIS Commission, mistakenly stated that the NDIS Commission had taken action to shut down the services provided by the Third Party Service Provider.

(d)    On the morning of 27 September 2023, the responsible Minister, the Hon. Mr Bill Shorten, MP, was interviewed on ABC Radio about the practises of the Third Party Service Provider and stated:

Minister: …I found the footage shocking and confronting…When Four Corners raised the issue, the [NDIS] Commission advised myself […] that…all of this had stopped in 2021…Late yesterday, Four Corners raised with us that they had some new evidence that it hadn’t shut for another eight months. We’ve certainly asked the [NDIS] Commission when Four Corners notified us as to the truth of the matter and that we also want the evidence that Four Corners has got and put it to the Commission to understand what’s really happened. So, I’m trying to get to the bottom of it right now.

…

Ms Karvelas:    Why didn’t the [NDIS] Commission penalise [the Third Party Service Provider], deregister them or take action against its then CEO after discovering it? I mean, that can’t be appropriate.

Minister: No, I was perplexed. I’m told that there was action taken at the time to shut the programme down and there was action taken against this particular service programme.

(e)    On the same day, Ms Mackey asked for further information about the Third Service Provider, including from Dr Chan. Ms Mackey learned that the Third Party Service Provider was still providing services under the NDIS. Ms Mackey apparently sought Dr Chan’s assistance in information to be provided to the Minister. What happened next is in dispute. On Dr Chan’s case, later that afternoon, Ms Mackey told him that she needed to take some action, and unilaterally directed Dr Chan to take a period of leave. On the Respondents’ case, Ms Mackey asked Dr Chan to take a period of leave, and he agreed.

(f)    In the weeks that followed, Dr Chan sought to contest the validity of the direction given to him to take leave. On 20 October 2023, Dr Chan received a letter from the Third Respondent (Ms Pulko), the Chief Operating Officer of the NDIS Commission, stating that she was considering suspending Dr Chan from his employment under reg 14 of the Public Service Regulations 2023 (Cth) (APS Regulations) and asked him to show cause why that course of action should not be taken (the Show Cause Letter). Dr Chan responded to the Show Cause Letter on 24 October 2023.

(g)    On 8 November 2023, Ms Pulko decided to suspend Dr Chan (the Suspension Decision).

(h)    At or about the time of the Suspension, it was announced that the Hon. Jennifer Boland AM had been commissioned to conduct a review based upon terms of reference that had been determined by the NDIS Commission (the Boland Review). The terms of reference for the Boland Review include an examination of the information that the NDIS Commission received about and from the Third Party Service Provider from 2019 onwards. The Boland Review will consider what was known, when it was known, and by whom it was known, and what, if anything, was done in relation to the matters that were known over a period of some 4 years. The Boland Review will also consider whether staff of the NDIS Commission fulfilled their duties under the APS Code of Conduct.

6    On 15 November 2023, Dr Chan commenced proceedings in this Court by way of an Originating Application of the same date in which he seeks to, amongst other things, review and set aside the Suspension Decision under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Dr Chan also seeks relief under the Fair Work Act 2009 (Cth), but his claims in this regard have not been fully articulated.

7    In response to the proceedings, the Respondents filed an Interlocutory Application dated 17 November 2023 seeking non-publication and suppression of certain information contained in the materials filed by Dr Chan pursuant to s 37AF of the FCA Act. In support of that Interlocutory Application, the Respondents relied upon an Affidavit of Mr Andersen dated 17 November 2023 (the Andersen Affidavit).

8    The application for the interlocutory injunction came before me for hearing on 22 November 2023 as Duty Judge. As set out in the Interlocutory Decision, I was satisfied that Dr Chan had established a serious question to be tried (though his case was, in my assessment, neither weak nor strong), and that the balance of convenience favoured the grant of relief. I indicated that I would give and publish reasons for the orders that I had made as soon as possible.

9    During the hearing of the parties’ respective interlocutory applications on 22 November 2023, I concluded that I was unable to determine the merits of the Respondents’ application for orders under s 37AF of the FCA Act at that time, and, accordingly, made interim orders under s 37AI(1). I indicated that I would list that matter for further hearing on an urgent basis in accordance with the obligation under s 37AI(2) to determine the application as a matter of urgency.

10    I listed the Respondents’ application for orders under s 37AF for hearing before me on 28 November 2023. At that hearing, Mr Rauf appeared with Mr Gvozdenovic as Counsel for the Respondents and Mr Mahendra appeared as Counsel for Dr Chan. At the commencement of the hearing, the Respondents indicated that they were seeking revised orders and I granted leave to the Respondents to file an Amended Interlocutory Application which annexed the relevant documents in respect of which orders were sought and containing the redactions that reflected that position. The only evidence that the Respondents read in support of the application was the Andersen Affidavit, though it was submitted that I should have regard to the evidence that was before me in the hearing of Dr Chan’s application for an interlocutory injunction. For his part, Dr Chan did not oppose the orders and redactions that sought to suppress the names of particular individuals but otherwise opposed the Respondents’ application.

11    During the hearing on 28 November 2023, I received an indication that journalists respectively from the ABC and the newspaper publication, The Saturday Paper, wished to be heard. I indicated that I would entertain such an application if properly made with the benefit of legal representatives. Subsequently, on the morning of 29 November 2023, I received an application from both the ABC and The Saturday Paper that they wished to be formally heard in opposition to the orders sought by the Respondents.

12    I listed the matter for further hearing at 2.15pm on 28 November 2023. Mr Emmett SC appeared with Mr Gvozdenovic as Counsel for the Respondents and Mr Pararajasingham appeared as Counsel for Dr Chan. Ms Roberts appeared as Counsel for the ABC. The parties indicated that there was no objection to the ABC being heard. A journalist from The Saturday Paper indicated that he had nothing to add to the submissions that would be made on behalf of the ABC.

13    Ms Roberts submitted to me that the ABC was not in a position to fully formulate its reasons for opposing the orders sought by the Respondents because the ABC had only recently received redacted versions of the Relevant Court Documents and needed to have access to unredacted documents to advance considered submissions.

14    After hearing further argument, I decided to grant leave to the ABC, the Respondents and Dr Chan to file submissions confined to particular issues. I indicated that I would stand over the question of whether I had power to grant the ABC’s legal representatives access to unredacted versions of the Relevant Court Documents depending on the conclusions I reached in relation to the Respondents’ application.

THE INFORMATION

15    The information in respect of which the Respondents seek non-publication and suppression orders fall into four broad categories as follows:

(a)    first, information that is about and relates to the Third Party Service Provider including documents and reports of various descriptions in relation to its alleged non-compliant activities (including when they had occurred, what they involved and their extent), and the steps that been taken and were being taken by way of compliance and enforcement activities on the part of various employees of the NDIS Commission (the Third Party Service Provider Information);

(b)    second, information that identifies the names of specific employees of the NDIS Commission and third party agencies who were dealing with the Third Party Service Provider Information (Employee Identification Information);

(c)    third, information that identified the positions of the specific employees of the NDIS Commission and third party agencies who were dealing with the Third Party Service Provider Information (Employee Position Information);

(d)    fourth, information that is, in part, a combination of the first three categories, being information that would identify that particular employees of the NDIS Commission who hold certain positions have done certain things, not done other things, or have expressed opinions or made statements in relation to the alleged acts, omissions and other conduct of the Third Party Service Provider (the Combined Identification Information).

16    The categorisation of the information in this way is no more than a convenient means by which to group together the types of information that is sought to be the subject of non-publication and suppression orders. It is a categorisation that Counsel for the Respondents accepted was an accurate and convenient means by which to address the orders sought by the Respondents.

17    It was also confirmed by Counsel for the Respondents that none of the information in respect of which orders were sought was about or related to personal health information of, or would identify, persons who are the recipient of services under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), being scheme participants. This confirmation accorded with my own review of the material in respect of which orders were sought.

THE CONTEXT - DR CHAN’S CLAIMS

18    In order to understand the significance of the information in the context of the proceedings before the Court, it is necessary to examine the case that Dr Chan advances. In doing so, it is to be noted that at this early stage of the proceedings, Dr Chan has only filed an Originating Application. By reason of other orders I made on 24 November 2023, Dr Chan is due to file a Statement of Claim on or by 8 December 2023.

19    The fact that pleadings have not closed needs to be seen within the context that Dr Chan has pressed a claim for interlocutory relief in which the nature of his claims were to some extent identified in written and oral submissions.

20    Dr Chan’s challenge to the Suspension Decision focuses upon there being no proper basis for Ms Pulko having made the decision to suspend him under reg 14(2) of the APS Regulations. That provision provides as follows:

(2)    An Agency Head may suspend an APS employee employed in the Agency from duties if the Agency Head believes on reasonable grounds that:

(a)    the employee has, or may have, breached the Code of Conduct; and

(b)    the employee's suspension is in the public, or the Agency's, interest.

21    Dr Chan contends both that Ms Pulko did not hold the beliefs required of her in reg 14(2)(a) and (b), and that, if she did hold such beliefs, she did not have reasonable grounds for holding them.

22    At this stage, the planks of Dr Chan’s arguments are as follows:

(a)    prior to assuming his current position as the Deputy Commissioner (Senior Practitioner, Behaviour Support), he had no supervisory role or oversight over the Third Party Service Provider, or the teams that were managing that entity;

(b)    even after assuming his current position, it was not part of his role to manage compliance and enforcement action of the NDIS Commission and that this was the role of a separate unit;

(c)    he accepts that his current role as a Deputy Commissioner involves overseeing and managing approved behaviour support plans including reporting in relation to them, but disputes that his role extended to taking compliance or enforcement action against third party service providers;

(d)    an email dated 30 August 2022 informed Dr Chan that relevant officers of the NDIS Commission were addressing the concerns that had been identified as to the Third Party Service Provider (30 August 2022 Email);

(e)    he followed up on what actions were being taken at regular fortnightly meetings;

(f)    on 24 October 2022, Dr Chan met with a senior officer of the NDIS Commission and was informed about a further alleged incident of non-compliance engaged in by the Third Party Service Provider and that an infringement notice had been issued. Dr Chan advised that the matter needed to be escalated to another senior officer responsible for enforcement and that “firm action” needed to be taken;

(g)    he escalated the matter by discussing it with Ms Mackey on 2 November 2022 and was asked to keep her informed about progress on the matter;

(h)    on 9 November 2022, Dr Chan requested confirmation that the Compliance Corrective Action had been executed and was informed that the matter was in hand;

(i)    on 28 November 2022, Dr Chan was sent a progress report outlining a timeline of the issues and the actions that had been taken. Dr Chan enquired as to why stronger action had not been taken and was informed that the Third Party Service Provider was required to be given an opportunity to respond to a “Compliance Corrective Action” letter that had been issued to it. Dr Chan sent an email stating that he would like to see “firmer compliance action proposed if they fail corrective actions”;

(j)    after receiving the progress report, he sent it to Ms Mackey by email and heard nothing further from her after this time;

(k)    he was thereafter informed that the “Corrective Action Letter” had been issued and had been complied with by the Third Party Service Provider;

(l)    he was being treated differently to other officers of the NDIS Commission and his suspension was an “exercise in deflection” and that media commentary had already been made to the effect that Dr Chan had been made a “scapegoat” following the Four Corners Episode.

23    Dr Chan contends that before making the Suspension Decision, Ms Pulko knew the following:

(a)    concerns in relation to the Third Party Service Provider had been held for some time, long before Dr Chan’s high level involvement in mid to late 2022;

(b)    employees in parts of the NDIS Commission (as well as from external bodies) more directly involved in compliance and enforcement activities, including those holding senior positions, were aware of the Third Party Service Provider’s approaches to the management of persons under its care, and were also aware that these approaches did not comply with standards and requirements set by the NDIS Commission;

(c)    audits had been conducted by employees of the NDIS Commission and at least one other agency and employees in senior positions were aware of numerous instances of non-compliance engaged in by the Third Party Service Provider;

(d)    notwithstanding the above, little or no compliance or enforcement action had been taken against the Third Party Service Provider well before any involvement Dr Chan had in the matter;

(e)    as soon as he was made aware of some of the issues, Dr Chan had directed that firm action been taken against the Third Party Service Provider and was awaiting confirmation of the steps being taken, but had also been informed that the Third Party Service Provider would need to have an opportunity to respond to the proposed action;

(f)    Dr Chan had raised his concerns with Ms Mackey, and also sent her an email to which there was no response;

(g)    Ms Mackey had made an inaccurate statement during the course of the Four Corners Episode and, as she was under pressure from the media exposure to this issue, as well as pressure from the Minister, she needed to take action to be seen to have held a senior officer responsible;

(h)    Dr Chan had been directed to take leave, and it was only after he complained that he had not agreed to take such leave that Ms Pulko had commenced a process by which to suspend him from his employment;

(i)    Dr Chan was the only person to have been directed to take leave and later to be suspended notwithstanding his limited involvement and evidence that many others had a more direct involvement.

24    Dr Chan submits that as these matters were all known to Ms Pulko, she had no reasonable grounds for holding the beliefs she claims to have held. Dr Chan contends that he has been “thrown under the bus” and made a “public scapegoat”. Dr Chan contends that these matters disclose that the Suspension Decision was beyond power, made in bad faith, for an improper purpose, and unreasonable, so as to be susceptible to review and set aside under the ADJR Act.

25    The Respondents have complained that none of Dr Chan’s contentions have been properly pleaded. That is to be expected at this early stage of the proceedings. However, I am satisfied that the various strands of Dr Chan’s case have in substance been raised in his written and oral submissions to date, and are matters that I have been able to discern through the course of the hearings before me. These are the arguments that I had to consider in the course of making an assessment as to whether Dr Chan’s claims gave rise to a serious question to be tried. The Respondents were in a position to make cogent submissions to the Court as to why Dr Chan’s claims were weak or that, in relation to some of them, there was no serious question to be tried.

26    The Respondents deny the substance of Dr Chan’s claims. To date, the Respondents have contended that the question for the Court in a review of the Suspension Decision is not whether the Court would have made that Decision but whether Ms Pulko held the relevant beliefs based on her assessment of the matters known to her. In this regard, the Respondents have emphasised that Ms Pulko has made no determination that Dr Chan has actually breached the APS Code of Conduct, but only that he may have done so. In relation to the matters known to her, the Respondents have contended that:

(a)    notwithstanding Dr Chan’s contentions to the contrary, Ms Pulko had material before her to indicate that in his current position Dr Chan did have oversight of the teams managing the Third Party Service Provider;

(b)    Ms Pulko knew that Dr Chan was bound by the APS Code of Conduct and was thereby bound by the obligation to act with care and diligence;

(c)    Ms Pulko knew that Dr Chan had received a report attached to the 30 August 2022 Email and that this email and report raised serious concerns, but that Dr Chan did not raise that report with Ms Mackey until 2 November 2022;

(d)    Ms Pulko believed that Dr Chan may not have appropriately addressed the further allegation raised with him in October 2022 by escalating it;

(e)    Ms Pulko believed that Dr Chan’s role as Senior Practitioner included, but was not limited to, responsibility for performing certain statutory functions. She believed he was a senior executive and it was the NDIS Commission's long-standing expectation, consistent with the NDIS Commission's Code of Conduct and the APS Code of Conduct, that where a senior executive became aware of a significant compliance matter, that senior executive would take action to respond, including by working closely with other members of the senior leadership of the Commission to ensure that appropriate regulatory action was taken. Ms Pulko believed that Dr Chan was aware of these expectations from a “Performance and Development Agreement” and other documents;

(f)    for these and other reasons, Ms Pulko genuinely believed that Dr Chan may have breached s 13(2) of the APS Code of Conduct in that he may not have acted with care and diligence with respect to matters relating to the report attached to the 30 August 2022 Email by failing to take appropriate or adequate action and failing to draw the report to the attention of Ms Mackey and the senior leadership team in a timely manner;

(g)    Ms Pulko had not come to any conclusion as to whether Dr Chan had, in fact, breached his obligations, but merely held a belief on the materials known to her that he may have done so;

(h)    Ms Pulko believed that Dr Chan’s suspension was in the public interest because there were “real risks to the public’s confidence in the Commission” if he continued in his role and the integrity of the Boland Review would be assisted if he remained out of the workplace.

27    It is apparent to me that whilst the Respondents focus on the fact Ms Pulko had material available to her upon which to form the beliefs that she did, Dr Chan seeks to test most, if not all, of the grounds upon which she held those beliefs. These are all matters for a final hearing.

28    It is also evident to me that, at this stage, the proceedings before the Court do not involve any examination as to whether the Third Party Service Provider breached any of its obligations, or whether any employees of the NDIS Commission (other than Dr Chan) may or may not have breached their duties.

THE RESPONDENT’S CONTENTIONS

29    The Respondents’ primary contention is that the Court must have regard to and should not readily disclose information that is not in the public domain and falls within the meaning of “protected Commission information” as defined in s 9 of the NDIS Act. The Respondents contended that the Third Party Service Provider Information, the Employee Identification Information, the Employee Position Information and the Combined Identification Information all fell within the meaning of “protected Commission Information” and were thereby protected by the confidentiality regime established by Div 2 of Pt 2 of Ch 4 of the NDIS Act (the NDIS Confidentiality Regime).

30    The Respondents submitted that, if the information in respect of which orders were sought was to be disclosed, the administration of justice would be prejudiced because:

(a)    people (including the NDIS Commission, service providers, recipients of services under the NDIS and other members of the public) could not come to Court with confidence that their confidential and personal information will not be published;

(b)    members of the public (including service providers and recipients of services under the NDIS) need to have confidence that the information they provide to the NDIS Commission will be protected otherwise there is a risk that they will not come forward to provide information the NDIS Commission requires to carry out its functions.

31    All of the contentions had as their foundational point the existence of the NDIS Confidentiality Regime.

32    The Respondents contended that the Full Court had held, in an analogous context (specifically, “protected information” under Div 355 of Sch 1 of the Taxation Administration Act 1953 (Cth) (TA Act)) that an order under s 37AF must “strike a balance between the importance of open justice on one hand and achieving the objectives of the TAA 1953 on the other”: Buckeridge v Commissioner of Taxation [2013] FCA 897; 95 ATR 670 (Buckeridge) at [10]; Lee v Deputy Commissioner of Taxation (2023) 296 FCR 272 (Lee) at [99].

33    Relying upon Buckeridge and Lee, the Respondents contended that, by way of analogous reasoning, this Court must balance the objects of the NDIS Act against the principles of open justice. It was submitted that this was consistent with s 37AC of the FCA Act, which provides that Pt VAA (which includes s 37AF) “does not limit or otherwise affect the operation of a provision made by or under any Act … that prohibits or restricts … the publication or other disclosure of information in connection with proceedings”. It was submitted that Pt VAA of the Act cannot limit or affect the operation of the NDIS Act Confidentiality Provisions.

34    The Respondents contended each of the types of information in respect of which orders were sought fell within the meaning of “protected Commission Information” as defined in s 9 of the NDIS Act. That is because, so it was contended, the information was about either the Third Party Service Provider or employees of the NDIS Commission. The definition of “protected Commission information” is as follows:

protected Commission information means information about a person (including a deceased person) that is or was held in the records of the Commission, but does not include the following:

(a)    if there is publication of the NDIS Provider Register in whole or part as mentioned in paragraph 73ZS(7)(b)—information covered by that publication;

(b)    if there is publication of specified information entered on that Register as mentioned in that paragraph—that information.

35    The NDIS Act provides for two related (and largely similar) regimes for the protection of such information. One directed to the NDIS Agency as contained in Division 1 of Part 2 of Chapter 4 of the NDIS Act. The other is directed to the NDIS Commission contained in Division 2 of Part 3 of Chapter 4 of the NDIS Act.

36    In so far as the NDIS Commission is concerned, s 67A of the NDIS Act provides as follows:

67A  Protection of information held by the Commission etc.

(1)    A person may:

(a)    make a record of protected Commission information; or

(b)    disclose such information to any person; or

(c)    otherwise use such information;

if:

(d)    the making of the record, or the disclosure or use of the information, by the person is made:

(i)    for the purposes of this Act; or

(ii)    for the purpose for which the information was disclosed to the person under section 67E; or

(iii)    with the express or implied consent of the person to whom the information relates; or

(da)    the disclosure of the information by the person is to a State or Territory, or to an authority of a State or Territory, for one or more of the following purposes:

(i)    the carrying out of an NDIS worker screening check;

(ii)    any other purpose of an NDIS worker screening law;

(iii)    the screening of a worker employed or otherwise engaged by a registered NDIS provider, or of a member of the key personnel of a registered NDIS provider, as mentioned in paragraph 73T(3)(d); or

(db)    the disclosure of the information by the person is to a person or body, prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph, for the purpose prescribed by those rules; or

(e)    the person reasonably believes that the making of the record, or the disclosure or use of the information, by the person is for the purpose of, or in relation to, preventing or lessening a threat (whether current or future) to an individual’s life, health or safety; or

(f)    the person reasonably believes that the making of the record, or the     disclosure or use of the information, by the person is for the     purpose of, or in relation to, reporting a past threat to an individual’s life, health or safety.

(2)    Without limiting subsection (1), the recording, disclosure or use of information by a person is taken to be for the purposes of this Act if the Commissioner reasonably believes that it is reasonably necessary for one or more of the following purposes:

(a)    research into matters relevant to the National Disability Insurance Scheme;

(b)    policy development.

(3)    The Commissioner or a Commission officer may disclose protected Commission information to the Agency or an Agency officer if the disclosure is for, or in connection with, the performance of the Agency’s or CEO’s functions or the exercise of the Agency’s or CEO’s powers.

37    Section 67B makes it an offence for a person to record, disclose, or use “protected Commission information” if the person is not authorised or required by or under the NDIS Act to do so.

38    Section 67E provides that the NDIS Commissioner may in certain circumstances disclose “protected Commission information” and may do this in accordance with NDIS rules as contemplated by s 67F.

39    Importantly, ss 67G and 67H apply to both the NDIS Agency and the NDIS Commission. They provide as follows:

Division 3—Information generally

67G  Protection of certain documents etc. from production to court etc.

A person must not, except for the purposes of this Act or the Royal Commissions Act 1902, be required:

(a)    to produce any document in his or her possession because of the performance or exercise of his or her duties, functions or powers under this Act; or

(b)      to disclose any matter or thing of which he or she had notice because of the performance or exercise of such duties, functions or powers;

to a court, tribunal, authority or person that has power to require the production of documents or the answering of questions.

67H  Part does not affect the operation of the Freedom of Information Act 1982

The provisions of this Part that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982.

40    The Respondents contended that these provisions of the NDIS Act evince a legislative policy of (significantly) restricting the disclosure of “protected Commission information”.

41    In support of their contention that information about the Third Party Service Provider and employees of the NDIS Commission fell within the meaning of “protected Commission information”, the Respondents relied upon the Explanatory Memorandum to the NDIS Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (EM) which, at [42] and [47] in respect of s 67A of the NDIS Act states:

New section 67A sets out the measures that must be taken for the protection of personal information that the Commission may obtain in the course of performing its functions. A large amount of personal information will likely be acquired by the Commission through the performance of its functions, and the protection of that information and a person’s right to privacy is considered paramount. The new information sections are intended to protect the personal, and potentially sensitive, information of people who are affected by the establishment of the Commission and its functions.

People need to have confidence that the information they provide to the Commission will be protected otherwise there is a risk that they will not come forward to provide information the Commission requires to carry out its functions. This is particularly important as recent inquiries into disability services have demonstrated regulatory failures in the current mechanisms in place to record and report incidents and to protect and prevent harm to people with disability.

42    Reliance was also placed on the statement in the EM at [49] that, pursuant to s 67B:

…it is inherently recognised that any unauthorised recording, disclosure or use of protected Commission information is harmful. It is inherently harmful because:

•    the Commission will work with people with disability, who are widely viewed as some of the most vulnerable in the Australian community and will be holding information about them;

•    the Commission will also be working with providers who work with people with disability;

•    there is a need for the Commission to establish and maintain public trust and confidence and act in the public interest;

•    there is a need to assure the community (which includes people with disability, providers and people who work for providers) that the Commission will adequately protect information it has been given in the course of carrying out its functions. (emphasis added)

43    During oral submissions, the Respondents emphasised the words “inherently harmful” as they appear in the EM at [49], and drew attention to the protective purposes of the NDIS Act.

44    The Respondents contended that this extrinsic material, coupled with the ordinary meaning of the statutory language of the NDIS Act, indicated that the legislature had “placed a premium on—indeed, the interests of justice would be served by—the maintenance of the confidentiality of protected Commission information.”

45    The Respondents contended that the word “person” in the definition of “protected Commission information” must be given its full breadth of meaning so as to recognise the fact that in the discharge of their functions both the NDIS Agency and the NDIS Commission would receive, collect and use information about a range of persons both external and internal to the Commission. It was submitted that there were no words of limitation to the ambit of the protective quality of the definition having regard to the broad objects of the NDIS Act.

46    In support of these contentions as to the breadth of the word “person”, the Respondents submitted that there were three “safeguards” in relation to confidentiality and privacy introduced by the NDIS Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017. The first being that the NDIS Commissioner’s information gathering and disclosure powers in s 67A sets out the limited circumstances in which a person may make a record of, disclose, or use Commission information: ss 67A-67D. The second being the creation of offences for unauthorised access to, use or disclosure of, soliciting disclosure of and offering to supply Commission information: ss 67B-67D. The third being the enactment of s 67G which protects certain documents from production to court except for the purposes of the NDIS Act. In relation to these matters, the Respondents drew attention to the Statement of compatibility with human rights at p 12 of the EM which states as follows:

The legitimate object of these amendments is to ensure that the Commissioner has access to information in response to allegations of provider non-compliance to be able to take immediate action to ensure the safety of people with disability and the quality of NDIS supports. The amendments enable appropriate safeguards to be applied in relation to the handling of sensitive information.

The amendments are necessary to provide a mechanism for the Commissioner to gather relevant information, particularly in relation to unregistered providers in response to allegations or information that a provider is not complying with its obligations. Without the amendments, the Commissioner will not be able to fulfil its object to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS.

The amendments include protections to encourage the appropriate use of information and ensure that such information is not used for personal or other gain. Information provided and stored in Commission records about a person is defined to be protected Commission information (section 9). The stringent conditions attached to the treatment of protected Commission information under this Bill also serve to support and protect the right to privacy under the [Convention on the Rights of Persons with Disabilities] and [International Covenant on Civil and Political Rights].

47    The Respondents contended that, on its ordinary language, the statutory text is apt to include information “about a person” who is an employee of the Commission and that the stated policy or purpose of the legislation does not provide a basis for reading down the ordinary language. It was submitted that it is to be expected that employees will provide information about themselves which are recorded – including their opinions or records about particular steps they have taken (including in relation to scheme participants or service providers). The Respondents contended that the statutory policy of ensuring full and frank provision of information and deliberation is promoted by reading the word “person” to include an employee of the NDIS Commission.

48    The redactions proposed by the Respondents had sought to draw a line which did not prevent disclosure of “the general workings of the Commission”. In relation to the information I have identified as the Employee Identification Information, the Employee Position Information and the Combined Identification Information, the Respondents submitted that their proposed redactions enabled disclosure of the general workings of the Commission, while ensuring that such disclosure does not disclose at the same time information “about a person” being the employees in question.

49    In support of their submissions about the breadth and extent of the NDIS Act Confidentiality Provisions and the underlying policy rationale about them, the Respondents relied upon the decisions in Schmidt (a pseudonym) v Walter; Wagner (a pseudonym) v Walter (No 2) [2020] VSC 122; 20 ASTLR 165 at [92]; also [80]-[94]) and Tasmania v T J G [2021] TASSC 47 at [15]. Specific reliance was placed upon Pearce J’s observation in Tasmania v TJG [2021] TASSC 47 at [15] that:

Because documents and information held by the Agency and the Commission are dealt with by Divisions 1 and 2, it is plain that s 67G applies to persons other than within those two bodies exercising duties or functions under the Act. Regardless of whether s 67G may apply to persons within the Agency or the Commission, the reference to a person in that provision must extend to all persons. If the Parliament had intended that the operation of s 67G be confined to persons with the Agency or the Commission, it would have said so. The reference to a person includes a body politic or corporate, as well as an individual: Acts Interpretation Act 1901 (Cth), s 2C. Section 67G is drafted in very broad terms.

50    Reliance was also placed on the decision of Daly AsJ in Schmidt (a pseudonym) v Walter; Wagner (a pseudonym) v Walter (No 2) [2020] VSC 122; 20 ASTLR 165 and, in particular, the following observations:

(a)    “the privacy provisions of the relevant provisions involve real practical difficulties for agencies … and other parties involved in proceedings where the needs of NDIS beneficiaries are in issue” (at [78]; also at [80]);

(b)    “the privacy provisions of the NDIS Act did affect the adducing of relevant evidence at the trial of the proceeding” (at [90]);

(c)    “in the absence of any broad ranging exemption to the privacy provisions of the NDIS Act for the purpose of court proceedings, [giving evidence of what was said by an NDIA representative at a meeting] was at risk of giving evidence which would disclose protected Agency information, notwithstanding that the evidence that would have been adduced could well have been of substantial relevance to an issue in the proceeding” (at [92]).

51    Daly AsJ further observed at [92] that “…there are real practical difficulties facing parties in proceedings seeking further provision under part 4 of the Act, given that the nature and value of NDIS services provided to claimants and beneficiaries may be of significant relevance to the outcome of such proceedings, particularly when such proceedings concern modest estates”.

52    My attention was also drawn to Lonergan J’s observation in Sharp v Home Care Service of NSW [2018] NSWSC 1319 at [38] that “the way [s.67G] is drafted is unhelpful and somewhat unclear”.

53    The Respondents accepted that s 67G of the NDIS Act was not drafted in a pellucid way. Nevertheless, it was submitted that the text of the provision was drafted in broad terms, and provided no exemption for the purpose of court proceedings. Whilst this may create real and practical difficulties for parties to receive and give evidence at trial, the Respondents submitted that legislature had ultimately balanced this consideration against the need to maintain and protect the privacy and confidentiality of information obtained by the NDIS Commission, and through the terms of the statutory provision, given greater weight to the latter. In support of this construction, the Respondent drew attention to the EM at [65] that states:

[Section 67G] is an important protection and discretion which enables people to provide information to the Commission without fear of it being used against them in proceedings which do not relate to the purposes of the Act. The new section does not prevent a subpoena being issued to any person who provided the information to the Commission.

54    In relation to s 67H of the NDIS Act, the Respondents observed that identical or analogous wording can be found in various other Commonwealth statutes. For example, s 207 of the Social Security Administration Act 1999 (Cth) (SSA Act) provides that “an officer must not, except for the purposes of the social security law or the Royal Commissions Act 1902, be required [to produce or disclose documents] because of the performance or exercise of his or her duties, functions or powers under the social security law to [a court or person] having power to require the production of documents or the answering of questions”. Section 201(2) of the SSA Act provides that “the provisions of this Division [being Division 3—Confidentiality, which includes s.207] that relate to the disclosure of information do not affect the operation of the [FOI Act]”. In Stopford Malloy & Malloy (No 2) [2022] FedCFamC1F 118, Harper J held that s 207 of the SSA Act “protects an essential right to privacy. Documents held by officers of Centrelink, because of the [SSA Act], are not amenable to production by subpoena”, citing (inter alia) Tahana v Hines [2021] NSWSC 564 at [41].

55    The Respondents submitted that similar logic applied in the present context. Section 67G protects a right to privacy and is intended to promote the full and frank flow of information. The Respondents contended that the NDIS Confidentiality Regime more generally was intended to protect information “about a person” held by the Commission and promote a stated legislative policy in relation to that information. It was submitted that, by contrast, the Freedom of Information Act 1982 (Cth) (FOI Act) is intended to promote open government in relation to handling of information (which may include personal information). The objects of the FOI Act include consideration of a range of grounds on which information might ultimately not be disclosed. The in-built protections in the FOI Act may lead to documents being exempt (strictly or conditionally) on a range of grounds which include certain forms of confidentiality, deliberative processes, prejudice to certain operations of agencies (including a substantial adverse effect on the management of personnel or the proper and efficient conduct of the agency: s 47E) or personal privacy. In this respect, it was submitted that the FOI Act gives effect to a materially different legislative policy from the policy that emerges from Part VAA of the FCA Act.

56    The Respondents contended that it may be inferred that Parliament intended to preserve the legislative policy in the FOI Act (with the limitations or restrictions that emerge from the FOI Act), but did not consider that court proceedings would provide a basis per se for records to be compulsorily disclosed, unless the disclosure is for the purposes of the NDIS Act.

57    The Respondents submitted that the Court would not rely on the preservation of the FOI Act as a reason to ignore or minimise the relevance of the policy in the NDIS Act. Rather, it was submitted that the Court should give full force to that policy in its assessment of what is “necessary”, mindful that this would not prevent other persons requesting access to that information pursuant to the FOI Act.

58    Relying upon these arguments, the Respondents contended that the Third Party Service Provider Information was information about a “person” and was therefore protected. Although the Respondents accepted that some information about the identity and activities of the Third Party Service Provider were in the public domain including by reason of the Four Corners Episode, it was submitted that the information in respect of which orders were sought were not in the public domain. To this end, the Respondents did not redact all bare references to the Third Party Service Provider but redacted mainly information that was not in the public domain so that “the cat is not out of the bag”: cf De Pyle v Commonwealth of Australia [2023] FCA 597 at [24].

59    In relation to the Employee Identification Information and the Employee Position Information, the Respondents initially submitted that this too was information about a “person” (namely, each employee) that was not in the public domain. However, when it was pointed out that both Dr Chan and the Respondents had already put before the Court in the interlocutory proceedings various organisational charts which were not redacted and from which the positions and identifies of various employees could be ascertained from publicly available information, the Respondents accepted that this was likely the case in relation to senior employees but did not extend to all employees of the NDIS Commission.

60    It was submitted that even if these types of information did not fall within the meaning of “protected Commission information”, it was information about individuals who were not parties to the proceedings or otherwise involved in the decisions to which the proceedings related, and that they had not had an opportunity to address their involvement. In this regard, reliance was placed on the observations made by the Full Federal in Lee at [97]:

A suppression order might be shown to be ‘necessary to prevent prejudice to the proper administration of justice’, for example, where it is made in respect of particular information which could be misused or cause significant harm, being information which is not germane to securing the objective of open justice. If the principle of open justice is not advanced by publication of particular information in the evidence (such as bank account details or passwords), the publication of which might reasonably be expected to facilitate wrongdoing, it might reasonably be concluded that a suppression order is ‘necessary to prevent prejudice to the proper administration of justice’.

61    Reliance was also placed on the observations made by Jagot J in Porter v Australian Broadcasting Corporation [2021] FCA 863 (Porter) at [84] that:

The administration of justice may be prejudiced in a variety of ways. If, for example, people cannot come to a court confident that some kinds of information can be protected from disclosure if necessary (such as commercially confidential information valuable to a person or a third party, or sensitive information about a person’s health, or personal information about parties or third parties of no more than prurient interest to others) then public confidence in and access to justice may itself be undermined.

62    In relation to the Combined Identification Information, the Respondents submitted that even if the Court was not satisfied that orders were necessary in respect of the other categories of information, the names and positions held by various employees should nevertheless be redacted because the fact an employee had done or not done something, or had expressed an opinion or made a statement, in relation to the Third Party Service Provider was not in the public domain.

63    It was submitted that in light of the early stages of the proceedings, orders in the nature of the interim orders should be made pending further consideration at or prior to the final hearing of these proceedings at which time Dr Chan’s case could be better understood and an assessment made as to whether the orders continued to be necessary at that time.

64    In all other respects, the Respondents contended that the orders should simply be made until further order, but subsequently submitted that in the exercise of the Court’s discretion the orders should operate for a period of 3 years. The Respondents submitted that this would allow sufficient time for the proceedings to be finalised.

65    The Respondents also submitted that the present proceedings were not the appropriate ones for an examination of the conduct of other employees and would be dealt with in the Boland Review.

66    Finally, the Respondents submitted that if I were minded to dismiss the Amended Interlocutory Application, I should stay that order for a period of 48 hours to allow the Respondents to inform affected employees that their names had been disclosed in proceedings before this Court.

DR CHAN’S CONTENTIONS

67    Although Dr Chan did not oppose orders being made in relation to the Employee Identification Information, he submitted that it was ultimately a matter for the Respondents to persuade the Court as to the necessity for making the orders. Dr Chan accepted that it “was arguable” that s 67A of the NDIS Act would protect the identity of both third party service providers and individuals employed by the NDIS Commission but did not wish to be heard about the matter. However, Dr Chan submitted that any such protection could not extend to steps taken by Dr Chan relating to the Third Party Service Provider and other activities of the NDIS Commission in relation to that entity, given the materials that were already available in the public domain.

68    Dr Chan further submitted that no evidence had been led by the Respondents as to the duration of the orders that they sought.

THE ABC’S CONTENTIONS

69    The ABC noted that given the paucity of information available to it, it had been limited to making submissions about matters of law. It reserved its right to be further heard if I was minded to make orders upholding some or all of the Respondent’s orders.

70    The ABC contended that for the purpose of the defined term “protected Commission information” it was not clear what precisely would fall within “information about a person” and there had been no judicial consideration of the point. The ABC submitted that the expression “information about a person” should be read having regard to purpose and context as being directed at information about participants in the NDIS scheme such as persons obtaining financial assistance for needs arising from a disability third party service providers and their employees. It was submitted that this did not extend to the NDIS Commission’s employees, operations or views held by employees about service providers.

71    The ABC submitted that, even if s 67A did extend to some of the information that had been redacted by the Respondents, neither that section, nor s 67G of the NDIS Act, provide a basis for the Court to restrict the access of the public to that material. The ABC relied upon s 67H of the NDIS Act to indicate that the fact that the Freedom of Information Act 1982 (Cth) continued to apply was consistent with the Part not operating to shield the Respondents from scrutiny.

CONSIDERATION

The principle of open justice

72    Part VAA of the FCA Act empowers the Court to make suppression and non-publication orders. As Perram J pointed out in Motorola Solutions, Inc v Hytera Communications Corp Ltd (No 2) [2018] FCA 17 (Motorola) at [6], the principles applicable to the operation and application of Part VAA are well settled and do not need elaboration. I only elaborate upon them in these reasons because of the arguments advanced by the Respondents which sought to address questions of underlying policy, and rival policy, across statutory regimes.

73    The principles of open justice are foundational to the exercise of judicial power under Chapter III of the Constitution: see Hogan v Hinch (2011) 243 CLR 506 (Hogan) per French CJ at [20]. They are also foundational to the exercise of judicial power at common law: see Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293 at [22] per Mortimer J (as her Honour then was) citing John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 at 140–142.

74    As was pointed out by the Full Court in Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (2022) 294 FCR 221 (Ogawa) at [23], by reason of s 17 of the FCA Act, except where that Act or another law of the Commonwealth authorises, the jurisdiction of this Court is to be exercised in open court. This reflects the fundamental rule of the common law that, with very limited exceptions, the administration of justice occur in open Court: Ogawa at [23] and the cases cited therein.

75    Sections 37AF(1) and (2) of the FCA Act empower the Court to make orders prohibiting or restricting the publication or disclosure of information tending to reveal the identity of, or otherwise concerning, any party to, or witness in, a proceeding on one or more of the grounds in s 37AG(1). The grounds so specified are as follows:

(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).

76    If the Court makes an order, s 37AG(2) requires it to specify the ground or grounds for doing so. Section 37AJ(1) provides that a suppression or non-publication order operates for the period decided by the Court and specified in the order. Section 37AJ(2) provides that in deciding the period for which such an order is to operate, the Court is “to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made”. By reason of s 37AJ(3), such an order may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

77    Underlying the exercise of power under Part VAA is the interest of the administration of justice. Section 37AE provides that the Court must take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”.

78    But what does open justice actually mean? In Lee at [84], the Full Court extracted the following passage from the decision of Elliott J in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) [2019] VSC 417; 58 VR 611 at [63]:

The rationale of the principle of open justice is to expose court proceedings, and the evidence in court proceedings, to “public and professional scrutiny”. Such scrutiny informs the public as to how judicial power is exercised, and on what evidential basis. Relatedly, it helps ensure courts are held accountable, and so guards against the possibility of the misuse of judicial power. As a result, it aids in maintaining public confidence in the integrity and independence of the courts. The issue required by the statute to be addressed was whether the making of a suppression order (a non-publication order was not sought) was, in the proved circumstances, “necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a) (emphasis added)

79    Explaining further the principle of open justice, the Full Court in Ogawa remarked at [26] that:

One reason for the common law’s insistence that justice be administered in public, transparently, in open court, that is reflected in ss 17(1) and 37AE of the Federal Court Act, is the importance of the common law right of any person to make fair and accurate reports of judicial proceedings: Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450A–B; [1979] 1 All ER 745 (Leveller) per Lord Diplock; Police Tribunal at 477A, 481C–E. As McHugh JA said (at 481E–F):

Without the publication of the reports of court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so (2022) 406 ALR 346 at 352 often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice. It is a right which can only be taken away by words of plain intendment. (emphasis added)

80    Given these foundational values, it has been held that the onus that lies on the party seeking an order under s 37AF is a “very heavy one”:  Giddings v Australian Information Commissioner [2017] FCAFC 225 at [25] cited by Mortimer J in EU19 v Minister for Immigration, Citizenship and Multicultural Affairs (2019) 165 ALD 566 at [89]. The party seeking such orders needs to demonstrate and establish that the orders are “necessary” to prevent prejudice to the proper administration of justice: s 37AG(1)(a). It was held in Hogan (in relation to a similar but not identical provision) that the word “necessary” is a “strong word”:  at [30]. In Hogan, French CJ, Gummow, Hayne, Heydon and Kiefel JJ stated at [31] that:

It is insufficient that the making or continuation of an order under s 50 [of the FCA Act] 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.

81    Having regard to the heavy burden to establish that orders are “necessary”, it follows that the relevant applicant must “identify the contended prejudice to the proper administration of justice that would result if the order is not made”: Lee at [90]. In Lee at [95], the Full Court upheld as correct the finding made by the primary judge, Bromwich J, that there was a “necessity” to establish “a link between the contended harm and s 37AG(1)(a)”. Bromwich J had stated that it was “critical that a connection be made between the asserted necessity, and the prevention of prejudice to the proper administration of justice”: see Lee at [93].

82    There are “categories” of situations which may give rise to a prejudice to the proper administration of justice that arise more regularly than others, but there is no set of closed “categories”. In Porter, Jagot J observed at [85] that:  

…there are well-recognised cases in which the overall administration of justice requires the suppression of some information from the public, reflected in s 37AG(1) of the Court Act. In Dring at [46] these well-recognised categories were said to include “national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality”.

83    Other well recognised categories include trade secrets and commercially sensitive information: see Motorola at [7]-[8]; Deputy Commissioner of Taxation v State Grid International Australia Development Co Ltd [2022] FCA 577 at [16] per Thawley J. To these categories, the Full Court in Lee added at [97]:

A suppression order might be shown to be “necessary to prevent prejudice to the proper administration of justice”, for example, where it is made in respect of particular information which could be misused or cause significant harm, being information which is not germane to securing the objective of open justice. If the principle of open justice is not advanced by publication of particular information in the evidence (such as bank account details or passwords), the publication of which might reasonably be expected to facilitate wrongdoing, it might reasonably be concluded that a suppression order is “necessary to prevent prejudice to the proper administration of justice. 

84    These categories, which are by no means closed, reflect, as Jagot J observed in Porter at [83] that s 37AE of the FCA Act recognises that the principles of open justice are a not the primary objective of the administration of justice.

85    However, it has been held time and again that that in determining whether there is prejudice to the proper administration of justice, considerations of embarrassment, convenience or personal sensitivity to the publication of personal and often very private circumstances given in evidence or revealed in the course of a proceeding in open court, of themselves, cannot justify or support the exercise of any inherent or implied power of a court to suppress or prohibit the publication of those matters: Ogawa at [27]. To this end, as Heerey J observed in Williams v Forgie [2003] FCA 991 at [14]:

…it is an inevitable feature of litigation in open court that persons who are mentioned in passing may suffer embarrassment and distress. But that is a price the community has to pay for the undoubted benefit of court proceedings being, except in very exceptional circumstances, conducted in public. As Lord Atkinson said in Scott v Scott [1913] AC 417 at 463, in a passage cited by the Full Court in the present case at [35]:

The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses...but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect. (emphasis added)

86    In appropriate cases, the name of a party or witness may be the subject of a suppression order. The power to permit use of a pseudonym to anonymise the name of a party to, or witness in, a judicial proceeding is based on considerations of the public interest in the administration of justice, and so, is exercisable only in limited circumstances: Ogawa at [30] citing R v C A L (1993) 67 A Crim R 562 at 565 per Hunt CJ at CL, with whom Smart and James JJ agreed. However, the Court must determine that justice cannot be done if the proceeding is heard in open court or without the use of a pseudonym or other derogation from open justice: Ogawa at [30]. It was stated in Ogawa at [30] that:

The Court would have to conclude that there is no other way to administer justice in the proceeding than to make the order, suppressing or prohibiting the publication of the particular evidence, matter or identity, or to adopt a procedure that achieves a similar result. As Viscount Haldane LC said in Scott at 438, the person seeking an order, such as a pseudonym, “must satisfy the Court that by nothing short of the exclusion of the public can justice be done”.

87    There are statutory regimes where, in some instances, the use of pseudonyms to suppress the identity of parties or witnesses is mandated. Section s 91X of the Migration Act 1958 (Cth) is one such example. Outside of any statutory requirement, the use of pseudonyms in this Court is a matter that falls to be resolved on the application of the principles relating to s 37AF of the FCA Act. The Full Court’s decision in Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81 (Swannick) is an example of a principled approach to the question despite the embarrassment and inconvenience that may befall a party. The applicant in that case had sought orders suppressing his identity as it was apprehended that publication of the fact of his historical criminal convictions would give rise to a stigma that would attach to him in future applications for employment and public housing. The Full Court stated at [16]:

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…[he] 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.

88    At [18], the Full Court concluded by observing:

…the Court is certainly cognisant of the difficulties confronting [the Applicant] 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.

89    No one case will dictate the outcome in another, but the decision in Swannick is a demonstration of the point made in Hogan at [31] that the statutory task is not to be discharged on the basis of what appears to the Court to be convenient, reasonable or sensible, or to serve some notion of the public interest.

The relevance of the NDIS Confidentiality Regime

90    The Respondents relied upon the existence and operation of the NDIS Confidentiality Regime as the basis for most, if not all, of their contentions. As noted above, it was submitted that this Court should “not readily disclose “protected Commission information” (as defined) that is not in the public domain”.

91    It may be accepted that Commonwealth, State and Territory legislatures have enacted statutes seeking to protect personal, health related and other confidential information of various types and for different reasons. Whilst such provisions are relevant to an assessment as to what is “necessary” for the purpose of s 37AF of the FCA Act, they are not determinative of that question.

92    In Lee, the Full Court considered the “protected information” provisions of the TA Act and stated at [99]:

None of this is altered by adding to the relevant considerations the fact that Div 355 of Sch 1 contains a statutory regime aimed at preserving the secrecy of “protected information”. Those provisions operate according to their terms. They do not directly address the present circumstances. The terms of that regime cannot dictate the answer in a separate statutory regime — see, by analogy: Herald & Weekly Times Ltd v Williams (formerly identified as VAI) (2003) 130 FCR 435; 201 ALR 489; 76 ALD 72; [2003] FCAFC 217 . As noted earlier, that is not to say that the existence of the regime is irrelevant in considering whether a suppression order is “necessary” in any given case. The existence of the regime, and its application (or non-application), is a part of what falls to be considered in deciding whether a suppression order is “necessary to prevent prejudice to the proper administration of justice.

93    During oral submissions, Counsel for the Respondents accepted that the Full Court in Lee at [99] had held that the terms of the TA Act operated according to their terms and that the “terms of that regime cannot dictate the answer in a separate statutory regime”. Counsel for the Respondents also accepted that, consistent with Lee at [99], the existence of statutory secrecy, confidentiality and privacy regimes are not irrelevant to considering whether a suppression order is necessary in any given case, but those provisions are not determinative of what is necessary to prevent the proper administration of justice.

94    As noted above, the Respondents placed reliance upon the fact that s 67G provides in substance that a “person” cannot be compelled to produce a document to a court if that document is in the person’s possession due to performance of duties under the NDIS Act. It was submitted that this provision revealed an intention that the legislature did not intend particular types of information to be compellable in certain circumstances. It was submitted that this provision added to the argument that litigants expect to come to this Court with knowledge that information that is “protected Commission information” will be protected, and this would foster the public purpose of encouraging members of the public to be forthcoming in the information to be provided to the NDIS Commission.

95    However, Counsel for the Respondents accepted that s 67G of the NDIS Act does not apply to the Court when exercising its powers under Part VAA of the FCA Act. That provision may well operate as a limit on what documents are compellable to be produced to the Court and by whom, but the provision does not apply in the current circumstances where there are no questions before the Court about production. I do not need to resolve any question about production at this stage. The question before me is whether the non-publication and suppression orders sought are necessary.

96    The Respondents invited me to give precedence to the public policy reasons underlying the NDIS Confidentiality Regime and not rely upon the preservation of the FOI Act under s 67H as providing a basis upon which to ignore or minimise those policy reasons.

97    It cannot be assumed that the NDIS Act pursues a singular policy of protection of “protected Commission information” for all purposes in an immutable way without exception. The NDIS Act, like other Commonwealth statutes, appears on its face to involve a calibration of different policy objectives. This is underscored by s 67H, but is not limited to just that provision. Whilst it may be accepted that the FOI Act contains bases upon which documents may be exempt from disclosure (including on a conditional basis), it is apparent that the legislature intended the NDIS Commission not to be exempt from the principles of open government (such as they are) as manifested in the FOI Act.

98    The NDIS Act empowers the NDIS Commission to take compliance, investigative and enforcement action in respect of service providers: see Division 8 of Part 3A. These powers include the enforcement in Court of civil penalty provisions in accordance with the Regulatory Powers (Standard Provisions) Act 2014 (Cth): see s 73ZK. The NDIS Commissioner is required to keep a register of service providers and the NDIS Rules may provide for their publication: see s 73ZS. Section 67E provides that the NDIS Commissioner may disclose information in particular circumstances in accordance with the NDIS rules.

99    I did not receive detailed submissions as to the interaction of these and other provisions of the NDIS Act or seeking to reconcile them with a singular immutable purpose as to the secrecy of “protected Commission information” without exception.

100    Moreover, s 181U(1) of the NDIS Act provides that the staff of the NDIS Commission must be persons engaged under the Public Service Act 1999 (Cth) (APS Act). It follows that the exercise of functions and duties of the staff of the NDIS Commission are governed by the APS Values in s 10 of the APS Act. These include in s 10(4) of the APS Act that the “APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility”. Nothing in the NDIS Act seeks to derogate from these values. The laws of Australia to which the APS is subject include both the NDIS Act and the FCA Act.

101    Thus, whilst it may be accepted that the NDIS Act, understandably, creates a regime for the protection of confidential and personal information, it is not be assumed that the policy underlying that regime is absolute.

102    The underlying principles of personal privacy, open government and an accountable public service provide for interesting excursions, but they are not the policy with which this Court is concerned in applications under s 37AF. Other policy considerations may well inform the primary purpose of promoting and safeguarding the administration of justice, but they are not determinative. In written submissions, the Respondents stated that “…this Court must balance the objects of the NDIS Act against the principles of open justice”. That submission is at odds with Hogan at [31].

103    I do not consider it is helpful to approach the primary issue before me in this case on the basis of an assumption that persons dealing with the NDIS Commission have an expectation that their personal or confidential information will not be disclosed in proceedings before this Court or that members of the public will not be fulsome in the information they provide to the NDIS Commission if non-publication and suppression orders are not made. As a counterpoint, litigants and members of the public may also expect that the NDIS Commission, staffed as it is by members of the APS, will be accountable and act in a timely way upon information received in the discharge of the Commission’s duties and functions and expect that such information to be laid bare in open court in accordance with the principles of open justice when such information relates to a fact in issue. Such rival points reveal that, for every assumption made, there may be others. It is for this reason, I did not consider these submissions to be helpful to the immediate question at hand.

104    Nevertheless, I have taken into account that the Parliament has enacted a statutory privacy and confidentiality regime in the NDIS Act. I accept that it has relevance to the question that I have to decide, but in accordance with the Full Court’s reasoning in Lee at [99] I do not regard the existence and operation of that regime as being determinative.

The proper construction and scope of the protections under the NDIS Act

105    The Respondents and the ABC were at issue as to whether information about third party service providers and employees of the NDIS Commission (including as to their respective acts, omissions, opinions, and so on) fell within the meaning of “protected Commission information”.

106    The word “person” is one of broad import. Upon first review of the definition of “protected Commission information” and an examination of the objects of the NDIS Act, it did appear to me that the word “person” was intended to relate to those persons who are the recipients of benefits or services under the NDIS Act – that is, scheme participants. However, I do not think the answer to this question is as simple as that.

107    The NDIS Act contains definitions of “participant”, “participant’s impairment” and “participant’s statement of goals and aspirations”: see s 9. It is apparent from these definitions and the other parts of the NDIS Act that the statutory nomenclature of “participant” is intended to refer to the person who receives benefits or services. The fact that the definition of “protected Commission information” is not limited to persons who are “participants” tends to indicate that the legislature had contemplated a broader class for the purpose of that definition.

108    Another example of the broad scope of the word “person” for the purpose of the definition of “protected Commission information” appears from s 67A(da) which provides that a person may disclose protected information to a State or Territory, or to an authority of a State or Territory, for one or more reasons including for the purpose of carrying of an “NDIS worker screening check”, for the purpose of an “NDIS worker screening law” or for the purpose of the screening of a worker employed or otherwise engaged by an “NDIS provider”. By operation of s 67B, a person commits an offence if that person makes a record of information, discloses it or otherwise makes use of it in a way that is not authorised or required by or under the NDIS Act. Thus, it may follow, for example, that the disclosure of information about an NDIS provider or an NDIS worker outside the purposes prescribed in s 67A(da) or otherwise authorised in some way, may give rise to an offence. This example suggests that the legislature contemplated that information about an “NDIS provider” or “NDIS worker” would fall within the meaning of “protected Commission information”.

109    Once it is accepted that the word “person” is broader than a “participant” and includes, for example, an “NDIS worker”, it is difficult as a matter of statutory construction to divine a bright line so as to determine which persons fall within or outside the definition of “protected Commission information”. However, I do not need to decide this issue. I am prepared for present purposes to proceed on the basis (without deciding) that information relating to third party service providers (be they registered or not) and employees of the NDIS Commission falls within the meaning of “protected Commission information”.

Orders relating to the Third Party Service Provider Information are not necessary

110    The first category of information relates to information pertaining to Third Party Service Provider.

111    There is already considerable public information available about the Third Party Service Provider. This information includes material both broadcast through the Four Corners Episode and in other media. The facts that are already publicly available about the Third Party Service Provider include:

(a)    its name, and the names of its senior and other officers;

(b)    the fact that it operated as an NDIS-approved service-provider;

(c)    the fact that it provided services to participants under the NDIS Act who have autism;

(d)    allegations that it implemented practices in relation to such participants that have been described as shocking and confronting by the responsible Minister and by experts in the industry;

(e)    allegations that the NDIS Commission was not responsive to complaints raised by parents in relation to these practices;

(f)    the fact that Ms Mackey, as the NDIS Commissioner, publicly stated that there were a range of actions that could be taken against the Third Party Service Provider;

(g)    the fact that Ms Mackey stated that the services of the Third Party Service Provider had been shut down, which was later accepted to be an incorrect statement. Implicit within this statement (even if it was not correct) is that the Third Party Service Provider had been the subject of regulatory review and action;

(h)    the fact that the Boland Review will seek to examine various matters in relation to the Third Party Service Provider and whether staff of the NDIS Commission fulfilled their duties.

112    The Respondents accepted these facts and amended the orders sought by them to permit for the publication of the identity of the Third Party Service Provider and some limited other matters. However, the Respondents maintained their positions in relation to other information relating to the Third Party Service Provider including audits, findings of audits, compliance notices or corrective action letters, reports and internal correspondence.

113    I pressed Counsel for the Respondents to identify with precision the prejudice that would be occasioned to the proper administration of justice if non-publication and suppression orders were not made. It was submitted that it would be contrary to the legislative policy underlying the NDIS Confidentiality Regime. When I pressed further as to what other prejudice would arise, it was again submitted that litigants coming to this Court had an expectation that their personal and confidential information would be protected and that if such information was disclosed it may not lead to full and frank disclosure of such information to the NDIS Commission in the future.

114    I do not accept the Respondents’ contentions. None of the information here is about the personal or health-related information of a scheme participant, which may have called for different considerations. The information here relates to a service provider, and the compliance and investigatory activities pertaining to that service provider. No evidence was put before me that would suggest that any of this information about the Third Party Service Provider was commercially sensitive or would impair any regulatory or other action being taken against the Third Party Service Provider or its officers. It has been held “there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication”: Liverpool City Council v McGraw-Hill Financial, Inc [2018] FCA 1289 at [110] per Lee J; Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719 at [22]-[25] per Thawley J.

115    When I pressed Counsel for the Respondents about the absence of evidence of this type, it was submitted that the Respondents relied upon the statutory scheme. I accept that the “material” upon which the Court could make an assessment as to “necessity” might in an appropriate case be limited to examination of legislative and extrinsic material, or may be apparent from facts that are known. However, in the present case, I received no evidence as to what harm would arise from the publication of the Third Party Service Provider Information, let alone harm to the proper administration of justice. I do not accept that the mere existence of the NDIS Confidentiality Regime, in and of itself and without more, was a circumstance that gave rise to the necessity for the making of the orders sought by the Respondents in this case.

116    The Respondents’ bore a heavy onus. They have not discharged it.

Orders relating to the Employee Identification, Employee Position Information and the Combined Identification Information are not necessary

117    It is convenient for me to deal with the Respondents’ contentions relating to the Employee Identification Information, Employee Position Information and Combined Identification Information together as there is an overlap between these categories.

118    The Employee Identification Information is that information which identifies the names of various employees of the NDIS Commission. The Employee Position Information is that information which identifies the positions held by various employees of the NDIS Commission. The Combined Identification Information is that information which would disclose that specific employees holding particular offices did or did not do something in relation to the Third Party Service Provider, or expressed views and opinions about it.

119    Both Dr Chan and the NDIS Commission adduced evidence (without objection) of organisational charts and the identification of the duties and delegations attaching to some positions within the NDIS Commission. Some of the evidence disclosed the names of employees holding various positions within the NDIS Commission. The Respondents did not seek orders in respect of this information. I was informed that some information as to employees of the NDIS Commission and the positions held by them was publicly available. When I pressed Counsel for the Respondents as to whether it was possible from publicly available information to ascertain the identity of the employees who held various positions within the NDIS Commission, it was conceded that this was likely the case with senior positions but not all positions. It was also submitted that what would not be publicly available is identification of which employee did or did not do certain things in relation to the Third Party Service Provider.

120    It was submitted that:

The disclosure of employees’ names and positions does not advance the principle of open justice, not least because it would signal that protected Commission information (including, information about third parties of no more than prurient interest to others) will not be protected from disclosure such that public confidence in the administration of justice may itself be undermined. It is appropriate, in these circumstances, for pseudonyms to be applied over their names.

121    The Respondents’ contentions framed in this way address the wrong question. The question is not whether disclosure of employees’ names and positions would or would not advance the principle of open justice, but whether the making of an order suppressing their names is necessary to prevent prejudice to the proper administration of justice. The natural first step in the question before the Court would be to identify the relevant prejudice to the proper administration of justice and then link that to the necessity for the suppression order.

122    I pressed Counsel for the Respondents to articulate with precision the prejudice that would be occasioned to the proper administration of justice if there was disclosure of information that a particular person held a specific position. As with other arguments, the response was that such disclosure would be at odds with the NDIS Confidentiality Regime and that employees had an expectation that, in line with that regime, the Court would make orders that their personal information be supressed. I reject these contentions.

123    Without suggesting that there is any rule about this, I may have been persuaded to make orders about matters truly personal to the relevant employees such as personal home addresses, bank account details or health information. That type of information would be in line with that which the Full Court in Lee at [91] and [97] had in mind as being information that could be misused, cause significant harm, facilitate wrongdoing, or wholly irrelevant. No such case was advanced here.

124    The information that was sought to be supressed here relates to APS employees performing public functions and duties as staff of a public agency. How this information would impair the proper administration of justice was not demonstrated. The employees of the NDIS Commission are all members of the APS. By reason of the “APS Value” contained in s 10(4) of the APS Act, the Australian Public Service is accountable to the Australian community subject to Australian law and frameworks for Ministerial confidence. Nothing was put to me to suggest that the information was even remotely connected to matters of national security, or Ministerial or cabinet-in-confidence.

125    It may be that by reason of a broad definition of “protected Commission information” staff of the NDIS Commission may have an expectation that information relating to them will not be disclosed. However, such an expectation, if it exists, is not one that attends to the present question before the Court, which is whether an order restricting or suppressing the publication of identities and positions of staff is necessary to prevent prejudice to the proper administration of justice. It may be accepted that it is inconvenient, and even embarrassing, for members of the NDIS Commission to be mentioned in passing or as witnesses in proceedings before the Court, but that is not enough to enliven concerns about prejudice to the proper administration of justice, and the Respondents did not contend that this was the case. The inconvenience, or even embarrassment, to the NDIS Commission or its staff, including Dr Chan, is an ordinary part of litigation.

126    The Respondents submitted that the alleged acts and omissions of other employees of the NDIS Commission was “prurient”. It was also submitted that the Boland Review is the appropriate process by which the conduct of the employees of the NDIS Commission will be examined. I do not accept either argument. I do not consider the first to be a correct characterisation of the purpose for which the evidence has been led in the context of Dr Chan’s claims. As Mortimer J observed in Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293 at [22], the question as to what is “prurient” is one which stems no doubt from the parties’ particular perspectives. Here, the evidence about other employees has been adduced as part of Dr Chan’s case so as to establish the apparently objective facts and circumstances that were known to Ms Pulko, the decision maker. As to the second, again, it addresses the wrong question. The fact that the Boland Review will consider various issues relating to the Third Party Service Provider and the conduct of the NDIS Commission’s employees is not determinative as to what is necessary here.

127    The Respondents’ contentions in relation to the Combined Identification Information was in essence a submission that sought to aggregate all the various types of information so as to characterise them as information that particular employees holding particular positions had views about the Third Party Service Provider or had done or not done certain things in relation to that Third Party Service Provider. I accept that this information is not publicly available, but I do not accept that its disclosure would prejudice the administration of justice.

128    To the extent that the Respondents faintly suggested that the evidence about other employees was not relevant to the proceedings or only of marginal relevance, much of the evidence was not objected to by the Respondents on the ground of relevance and, in fact, the Respondents led some of that evidence. For example, the contents of the 30 August 2022 Email formed part of the reasons for Ms Pulko in making the Suspension Decision. This is a matter of some significance. If the orders sought by the Respondents were to be made, it would involve non-publication and suppression of information that formed part of the written reasons of the relevant decision maker. I do not accept that this would be appropriate.

129    The present matter is one that quintessentially calls for an open and public hearing. One member of the APS (Ms Pulko) made a decision to suspend another member of the APS (Dr Chan) on the basis that he may have breached the APS Code of Conduct including on the basis that he did not escalate matters based on information given to him by way of emails and reports sent by other employees of the APS. In his case, Dr Chan says that the same material would have demonstrated to Ms Pulko that there had been abject and systemic failures within the NDIS Commission long before his involvement and that, to the extent he became involved, he was seeking that “firm action” be taken. Both parties have rival views about whether that information provided reasonable grounds for Ms Pulko to have formed the beliefs that she did. These are matters that should be ventilated in open court in the usual way and the processes of this Court and its adjudication of the dispute between the parties should be available to the public for scrutiny and fair reporting.

130    During and by the close of the substantive proceedings in this matter and when the Court’s judgment is given, the parties and the public might expect that the relevant issues and evidence put before the Court will be tested in the open and for the Court to lay out its reasoning as to why it has reached its conclusions by reference to the arguments and evidence of both parties. This is what open justice involves. As has been observed, “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Sussex Justices; Ex parte McCarthy [1923] EWHC KB 1; [1924] 1 KB 256 at 259; see Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452 at [3]-[6] per Lee J.

131    Far from being prejudicial to the proper administration of justice, I regard that the unredacted publication of the Employee Identification Information, the Employee Position Information or the Combined Identification Information as promoting a primary objective of the administration of justice, being the safeguarding of the public interest in open justice: e.g., see CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs (2019) 165 ALD 566 at [97]ff and s 37AE of the FCA Act.

132    In arriving at these conclusions, it is necessary for me to make it clear that, in so far as there is evidence that has been adduced about other employees, it has been adduced as the basis upon which Ms Pulko made the Suspension Decision and upon which Dr Chan challenges that decision.

DISPOSITION

133    For all of the above reasons, I dismiss the Amended Interlocutory Application.

134    The Respondents submitted that if I were minded to dismiss that part of their application relating to the Employee Identification Information, the Employee Position Information and the Combined Identification Information, I should stay my decision for a period of 48 hours to enable the relevant employees to be informed. The Respondents relied upon Naude v Dra Global Limited [2023] FCA 493 per Snaden J. The ABC accepted that I had powers to make such orders, and pointed to the fact that similar orders were made by Jagot J in Porter.

135    Having regard to the fact that I made interim orders under s 37AI of the FCA Act on 22 November 2023 which will dissolve on my dismissal of the Amended Interlocutory Application, I will make an order vacating those orders to take effect at 9.30am on Friday, 8 December 2023. That will allow the parties a period of 48 hours to attend to refiling documents and taking such other steps as they respectively consider appropriate.

Associate:

Dated:    6 December 2023