Federal Court of Australia

Mashni v The Herald and Weekly Times Pty Ltd [2026] FCA 545

ORDERS

THE COURT NOTES THAT:

A.    Paragraphs 1 to 5 and 7 to 12 of these orders are made with the consent of the parties

THE COURT ORDERS THAT:

1.    The proceeding continue by way of pleadings.

2.    On or before 4:00pm on 29 May 2026, the applicants are to file and serve a statement of claim.

3.    On or before 4:00pm on 26 June 2026, the respondents are to file and serve their defences.

4.    On or before 4:00pm on 10 July 2026, the applicants are to file and serve any reply.

5.    The proceeding be listed for case management hearing at 9:30am on a date to be fixed after 3 August 2026.

6.    The application made by the third to sixth applicants for the continuation of pseudonym orders and related non-publication orders be dismissed.

7.    Pursuant to s 37AH of the Federal Court of Australia Act 1976 (Cth) (the Act), on the ground set out in s 37AG(1)(a) of the Act, there be no disclosure, by publication or otherwise, of the names of the third to sixth applicants.

8.    Paragraph 7 does not prevent disclosures to and between the following people:

(a)    Judges of this Court;

(b)    court staff (including transcription service providers);

(c)    the applicants and their legal representatives; and

(d)    legal representatives of the respondents instructed in these proceedings, including in-house counsel of the respondents.

9.    Paragraph 7 applies until:

(a)    5:00pm on 5 May 2026; or

(b)    in the event that one or more of the third to sixth applicants makes an application for leave to appeal in relation to paragraph 6 of these orders, until finalisation or withdrawal of that application for leave and any appeal.

10.    Pursuant to s 37AH of the Act, on the ground set out in s 37AG(1)(a) of the Act, there be no publication of the name of any of the third to sixth applicants who file a notice of discontinuance before 5:00pm on 5 May 2026.

11.    Subject to any further order, paragraph 10 of these orders is to apply until the date that is 12 months from the final judgment in these proceedings.

12.    There be liberty to apply on 3 days’ notice.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    The applicants in this proceeding, Mr Nasser Mashni, Ms Engy Abdelsalam, and others, allege unlawful discrimination under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and the Racial Discrimination Act 1975 (Cth) against four major Australian media outlets. In essence, the applicants allege that each of the respondents has published or broadcast, or caused to be published or broadcast, discriminatory content. Each of the applicants identifies as being Palestinian, of Palestinian background, or Palestinian Australian.

2    Pursuant to s 37AH(1)(a) of the Federal Court of Australia Act 1976 (Cth) (the Act), the third to sixth applicants seek orders pursuant to s 37AG of the Act that they each be permitted to continue the proceeding under a pseudonym, and that material that would tend to identify them in this proceeding not be published. The orders are sought on the basis that they are necessary to protect the safety and mental health of the third to sixth applicants and enable them to participate fully in the proceeding.

3    On 1 April 2026 a Registrar of the Court made interim orders that each of the third to seventh applicants be assigned a pseudonym, and that the Originating Process and supporting affidavit dated 27 March 2026 be suppressed on the court file. The seventh applicant no longer presses his application in this regard. The effect of the applicants’ present application would be that the interim orders of the Registrar would become permanent with respect to the third to sixth applicants.

4    In support of their application the applicants rely upon written submissions dated 28 April 2026, and an affidavit of each of the third to sixth applicants sworn on that date.

5    The respondents oppose the orders sought by the third to sixth applicants on the basis that the evidence that has been filed by them does not establish that the orders are “necessary” and therefore that, consistently with the principles of open justice, the orders should not be made. In support of their position the respondents rely upon written submissions dated 29 April 2026 and an affidavit of the respondents’ legal representative, Ms Amelia CausleyTodd, affirmed on that date.

THE GROUNDS OF THE APPLICATION AND RELEVANT PRINCIPLES

6    Pursuant to s 17 of the Act, the starting point with respect to an application of the present nature is that the jurisdiction of the Court is to be exercised in open court. Section 17(1) is in the following terms:

(1)     Except where, as authorized by this Act or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.

7    This provision reflects a fundamental principle of the common law of great antiquity that publicity is the very soul of justice: Scott v Scott [1913] AC 417 at 477 (Lord Shaw of Dunfermline). The importance of justice being conducted openly by the courts has been repeatedly affirmed by the High Court: see, for example, Hogan v Hinch (2011) 243 CLR 506 at [20] (French CJ), [87]–[88] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

8    However, there are circumstances in which the principle of open justice must be balanced against other considerations, including the risk to the safety of persons that may be caused by the conduct of proceedings: see, to mention only one example, HKW25 v National Disability Insurance Agency [2025] FCA 1379 at [14]–[15] (Snaden J) (HKW25). This is apparent from s 37AG of the Act, which empowers the court to make suppression and non-publication orders in certain circumstances. Section 37AG of the Act is relevantly in the following terms:

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

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

(b)      …

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

(d)      …

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

9    The present application is made by the applicants in reliance on the grounds in both s 37AG(1)(a) and (c).

10    In the affidavits that have been filed, each of the third to sixth applicants give evidence as to the basis of the application. Their evidence relates principally to concerns about their safety; that is, the potential for unwarranted public opprobrium, harassment, threats, and violence should their identities be disclosed and disseminated in consequence of the proceeding. The applicants also describe the chilling effect they apprehend that the disclosure of their identities may have, including that it may affect their ability to provide full and frank evidence, and even to pursue the substantive application which is the subject of the proceeding.

11    At the hearing of the application counsel for the applicants submitted that because of the nature of the substantive application it is the characteristics of the third to sixth applicants that are relevant, rather than their identities beyond those characteristics. It was submitted that for this reason there would be no prejudice to the conduct of the proceeding should the third to sixth applicants be permitted to retain their pseudonyms.

12    The applicants also submit that by reason of the nature of the proceeding they have little confidence that the reporting of the proceeding by the respondents will be fair and temperate.

13    The third to sixth applicants accept that for orders to be made in the terms they seek, it must be “necessary” to do so. By reference to the affidavit material they maintain that such pseudonym and non-publication orders meet the test of necessity pursuant to s 37AG(1). The applicants submit that the orders sought are limited to the degree necessary so as to achieve the purpose for which they are sought, and that it is for that reason they do not seek full suppression of the proceeding.

14    It is desirable to record certain principles that are relevant to the court’s determination of whether to exercise the discretion pursuant to s 37AG(1) of the Act. First, as the respondents submit, such an order should only be made in exceptional circumstances: see Rush v Nationwide News Pty Ltd [2018] FCA 357 at [186] (Wigney J), citing Rinehart v Welker (2011) 93 NSWLR 311 at [27] (Bathurst CJ and McColl JA, agreeing with Young JA) (Rinehart).

15    Secondly, it should be emphasised that “necessary” is a strong word: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) (Hogan). An order pursuant to s 37AG(1) is not “necessary” if it appears to the court to be no more than convenient, reasonable, sensible or desirable: Hogan at [31]; C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 at [14] (Katzmann, Wigney and Abraham JJ) (C7A/2017). The court is not to engage in a “balancing exercise” in which competing considerations are weighed: see Hogan at [31]; C7A/2017 at [12].

16    Thirdly, 37AE of the Act provides that a primary objective of the administration of justice is to safeguard the public interest in open justice.

17    Fourthly, the court’s discretion to make orders pursuant to s 37AG(1) requires there to be material or evidence before it upon which it may be concluded that the orders are necessary: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476–7 (McHugh JA, Glass JA agreeing) (John Fairfax); Rinehart at [27]; see also AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at [56]–[58] (Hoeben CJ at CL, Price and Adamson JJ) (AB (No 3)), citing AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6 at [15] (Nettle J) (AB v CD). Mere belief that such an order is necessary is not generally sufficient: John Fairfax at 477; A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713 at [83]–[84] (Cavanagh J).

18    With respect to s 37AG(1)(c), as Besanko J observed in Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 (at [16]–[17]), the test is not whether it is probable that a person will suffer harm, but whether the court is satisfied on the balance of probabilities that the order sought is necessary to protect a person’s safety. His Honour held that the proper construction of s 37AG(1)(c) requires consideration to be given to the possibility or probability of a risk eventuating, but also the likely consequences if it does. This has been referred to and applied as the “calculus of risk” approach: see AB v CD at [14]; AB (No 3) at [56]. As will be apparent, the applicants maintain that the test is satisfied and that the assessment of risk favours orders in the terms sought in the present circumstances on the basis of the affidavit evidence.

19    The enquiry for the purposes of s 37AG(1)(c) is also directed to the question of whether a “suppression order would be likely to prevent or minimise any existing risk and to whether there are alternative actions that might be taken in response to that risk which would otherwise achieve the same outcome”: see R v AB (No 1) (2018) 97 NSWLR 1015 at [42] (Meagher JA, Rothman and Garling JJ agreeing).

20    At the hearing of the application counsel for the applicants drew the court’s attention to PQR v Secretary, Department of Justice and Regulation [2017] VSC 513 at [74]ff in which Bell J recognised that being deterred from participation in legal proceedings may be a basis for some form of suppression. It may be accepted that this is so, but the circumstances where some form of suppression on this basis would be appropriate will be rare. There is, as the respondents submit, no general principle that the ground for making a suppression or non-publication orders in s 37AG(1)(a) is engaged where a party submits that it would be deterred from conducting proceedings at all if they were to be required to do so openly.

21    The applicants concede that there would be difficulty on the part of the respondents in this proceeding if they were not to be informed of the identities of the third to sixth applicants. The applicants do not therefore propose that the respondents be kept unaware of the identities of the third to sixth applicants. It is simply intended by the third to sixth applicants, they submit, that the orders prohibiting publication of material that would tend to identify them would (of course) also apply to the respondents.

22    The applicants submit that the orders sought represent a modest incursion into the principle of open justice that would have no significant prejudicial effect on the respondents if any at all. In this connection they submit that they have sought the relevant orders as promptly as possible, and note that they have provided redacted versions of the relevant documents to the respondents, in order to minimise the impact on open justice and any short-term prejudice to them.

ARE THE ORDERS SOUGHT BY THE APPLICANTS “NECESSARY” PURSUANT TO S 37ag(1) OF THE act?

23    Notwithstanding the submissions of the third to sixth applicants, I determined at the conclusion of the hearing on 1 May 2026 that they should not have orders in the terms that they sought. I accepted, as the respondents submit, that the evidence before the court did not demonstrate that such orders are necessary to protect the safety of any persons, or to prevent prejudice to the proper administration of justice, as is required pursuant to s 37AG(1)(c) and (a) of the Act.

24    Turning first to s 37AG(1)(c) of the Act, which was the primary basis of the application, having had careful regard to the affidavit material filed by the third to sixth applicants I am not satisfied that this material establishes that the orders sought are necessary to protect their safety or the safety of any other person. Each of the third to sixth applicants deposes to a subjective concern that they will be subject to harassment, hostility, threats, and “public discourse” if they were to be identified as an applicant in this proceeding. As the respondent submits, there is no objective evidence given by any of the applicants that any such risk exists. I accept that the concerns the subject of the evidence are, at best, speculative.

25    Further, and critically, I accept that the concerns the third to sixth applicants depose to holding are undermined by the evidence that they have already been publicly identified as being associated with pro-Palestinian advocacy, and subject to one exception, the lack of evidence of any adverse ramifications. This may be demonstrated with respect to each of the relevant applicants as follows.

26    The third applicant deposes that her Palestinian identity is central to who she is: her profession, her advocacy, her published writing and her community life. She holds formal roles with organisations involved in Palestinian Australian relief, advocacy organisations and professional bodies, and is the author of a book titled “From the River to the Sea”. The third applicant does not depose to having suffered any particular harassment, hostility, threats or ramifications of any other kind due to having already been publicly identified as associated with pro-Palestinian causes.

27    The fourth applicant deposes to being a member of a Palestinian solidarity organisation based in the Illawarra region, and that she has at times acted as a spokesperson for that organisation. Her evidence is that in that capacity she has given multiple interviews to local news media in the Illawarra region regarding actions in solidarity with Palestinians. She maintains publicly accessible social media profiles associated with her advocacy activities. Whilst the fourth applicant deposes to having received harassment and hostile and hateful communications online, she has not given any evidence of the actual communications to which she refers. I accept, as the respondents submit, that in these circumstances the court is unable to assess those communications, or give them any material weight in a consideration of whether they place the safety of the fourth applicant at risk. Further, while the fourth applicant deposes to a concern about the impact that the disclosure of her identify in connection with the proceeding may have on the medical care of her child, the evidence that she gives to support there being a link between disclosure and such an impact may fairly be regarded as tenuous. In my assessment any risk to the fourth applicant’s child is so remote that it does not assist the applicant in demonstrating that the orders sought are necessary to protect that child.

28    The fifth applicant deposes to having previously been the subject of reporting by media organisations, including by the Australian Broadcasting Corporation, in an article with respect to pro-Palestinian rallies. He does not depose to having suffered any particular harassment or vilification as a result of having been so publicly identified.

29    Similarly, the sixth applicant deposes that her Palestinian heritage is central to her identity and community life, and that she has attended several pro-Palestinian rallies. Her evidence is also that she has previously been involved with a Palestinian Australian advocacy organisation, has appeared in a number of interviews which are publicly accessible, and has engaged in public advocacy activities in connection with Palestinian rights. Her name was previously published in connection with a public action in Brisbane. The sixth applicant does not depose to having suffered any particular harassment, threats or other adverse ramifications due to her having already been publicly identified as being involved in advocacy activities in connection with Palestinian rights. While she gives evidence that her house was broken into in 2024, she does not explain the reason that she believes this is linked to her advocacy activities. Further, the sixth applicant’s evidence about the impact that disclosure of her identify may have on one of her children is also highly speculative and discloses only a remote risk, if any.

30    It is important to note also, as is apparent from Ms CausleyTodd’s affidavit, that there has already been reporting of these proceedings that includes identification of Mr Mashni, the first applicant, and statements made by him. Indeed, it would seem that the applicant’s solicitors issued what they termed a “Media Release” on 13 November 2025 advertising that the Australian Human Rights Commission had accepted complaints “accusing multiple News Corp media outlets, journalists and commentators of discrimination and racial hatred”. As the respondents submit, there is no evidence that Mr Mashni, or indeed the other named applicants in this proceeding, have suffered any harassment, abuse, vilification, threats, or any other adverse reaction as a result of that public identification.

31    In my assessment, therefore, the evidence (or lack thereof) demonstrates that the concerns held by the third to sixth applicants are more illusory than real.

32    At the hearing of the application counsel for the applicants appeared to accept that the third to sixth applicants have been the subject of media reporting and public attention due substantially to their advocacy activities. It was submitted, however, that the public attention those applicants have received, and continue to receive in this respect, can be distinguished from the level of public recognition and potential for adverse ramifications that would arise in commencing a proceeding of this nature. That is to say, that their involvement in this proceeding will bring a substantially greater focus on them and their activities than has been the case to date. The dichotomy that the third to sixth applicants present in this respect seems to me to be difficult to maintain. I do not accept that it is especially likely that their involvement in this proceeding is going to subject them to a qualitatively different form of public exposure than that to which they have already subjected themselves by their advocacy.

33    In this regard, to the extent that the applicants made a submission that the respondents would engage in “vigilante” reporting of this proceeding and that this is a basis for the risk to their safety that they fear, I accept the respondents’ submissions that such a possibility is unfounded and also speculative. There is no evidence before the court on this application that would support such an assertion, and I do not accord it any weight in my consideration as to the necessity of the orders sought.

34    Further, even assuming in their favour that there is something of a risk of the third to sixth applicants suffering online harassment due to their involvement in this proceeding, the evidence is insufficient to establish that the orders sought are necessary to protect their safety or the safety or any other person in the sense of there being any real physical threat or risk to psychological health. I accept that the risk of harassment, and the mere assertion of a potential for distress, stress or anxiety as a result of that harassment (or otherwise) are insufficient to provide a basis to make an order under s 37AG(1) of the Act.

35    Turning then to the question of whether the orders sought are necessary to protect the proper administration of justice pursuant to s 37AG(1)(a), as has been mentioned the basis of the applicants’ reliance on that ground is that in the absence of the orders they seek, each of the third to sixth applicants would be deterred from giving full and frank evidence, and from participating honestly and freely in the proceeding.

36    As has been mentioned, there is no general principle that the ground for making suppression or non-publication orders in s 37AG(1)(a) is engaged where a party submits that it would be deterred from conducting proceedings at all if it was required to do so openly. To the extent that the applicants suggest otherwise, I do not accept that submission.

37    All things considered I accept the respondents’ submissions that there is not a proper basis for the court to make the orders sought by the applicants on this basis of s 37AG(1)(a). The present circumstances are not ones where some form of suppression on this basis would be appropriate. They are obviously different in nature to those that arose in HKW25 and Alpert v Commonwealth [2023] FCA 784 (Snaden J). I accept that the consequence of making an order in the terms sought by the applicants would have the effect of permitting any party to a proceeding in this Court to obtain pseudonym order were they to present evidence that they would be deterred from participating completely and freely in the proceeding. As the respondents submit, such an effect would fundamentally undermine the principle of open justice.

38    In these circumstances the court should be slow to conclude that pseudonym or suppression orders are necessary pursuant to s 37AG(1)(a) when sought by an applicant in a proceeding on the basis of an assertion that they will only be able to participate fully and freely in the proceeding if such orders are made. This is especially so here, as the respondents submit, where the substantive proceeding does not turn in any respect on the personal identities of third to sixth applicants themselves. This case would be able to continue in much the same way as it otherwise would in the event that the third to sixth applicants elect to withdraw from the proceeding in their capacity as applicants. It may be accepted, in this regard, that there would be little if any prejudice to the administration of justice were this to occur. Should the third to sixth applicants discontinue the proceeding but later wish to give evidence in support of the application, there is presently no apparent reason why they could not do so. Any application for some form of suppression, if made, could be considered on its merits at that time.

39    It is for these reasons that after the hearing on 1 May 2026 I dismissed the third to sixth applicants’ application that they be permitted to proceed by way of pseudonyms and for related non-publication orders.

40    In these circumstances and due to the orders made by the Registrar on 1 April 2026 having ceased to have effect, at the hearing of the application the applicants sought interim orders in relation to the pseudonyms and non-publication of the identity of the third to sixth applicants in order to preserve their right to seek leave to appeal with anonymity, and to prevent their identities being disclosed at all in the event that they wished to discontinue the proceeding. The respondents did not oppose this course. There will therefore also be orders in the form set out at the commencement of these reasons to protect the applicants’ rights in this regard.

41    Having regard to the operation of s 46PSA of the AHRC Act, the respondents ultimately did not seek their costs of the application.

Associate:

Dated:    4 May 2026

SCHEDULE OF PARTIES