Federal Court of Australia

Pett v National Disability Insurance Agency (No 2) [2026] FCA 600

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground set out in s 37AG(1)(a), disclosure (by publication or otherwise) of the following documents be prohibited until further order:

(a)    the documents that comprised Exhibit G in the Tribunal, named:

(i)    CRA 3.13 Calculator Task Card Pett LEX2112 Hospital.xlsx;

(ii)    CRA 3.13 Calculator Task Card Pett LEX2112 Physio.xlsx;

(iii)    CRA3.13Calculation_Pett_combinedsettlement (13).xlsx;

and any copies or adaptations made of them including:

(iv)    the zip file entitled NDIA CRA Calculator Tool.zip emailed by the applicant to the Court on 11 June 2025;

(v)    the documents at pages 2-11, 12-21 and 22-31 of the document “Application Book Supplement” submitted to the Court by the applicant by email on 12 March 2025;

(vi)    the documents at pages 22–31 and 383–392, 32–41 and 393–402, and 42–51 and 403–412 of the document entitled “Supplementary Application Book” submitted to the Court by the applicant by email on 11 June 2025.

2.    The prohibition does not extend to disclosure to:

(a)    the Court;

(b)    the parties and their legal representatives.

3.    The documents referred to in paragraph 1 are to be:

(a)    confidential under r 2.32(1)(b) and r 2.32(3)(a); and

(b)    are not to be inspected by a non-party under r 2.32(3)(b).

4.    The Registrar be directed to:

(a)    place a notation on the Electronic Court File maintained by the Court to the effect that a non-party is prohibited from inspecting each of the documents referred to in paragraphs 1, 2 and 3 of these orders until further order;

(b)    place a notation on the Electronic Court File to the effect that any application made to inspect the documents must be referred to a judge of the Court together with a copy of these orders and the reasons for these orders; and

(c)    refer any application made to a judge of the Court together with a copy of these orders and the reasons for these orders.

5.    These orders may be revoked upon the application of any person demonstrating a sufficient interest in the subject matter and in any event by any member of the media.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    In this action Mrs Amanda Pett, appealed from a decision of the former Administrative Appeals Tribunal relating to her entitlements under a scheme established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The Tribunal affirmed a decision of the respondent, National Disability Insurance Agency (NDIA), to reduce Mrs Pett’s entitlements by reference to amounts of compensation she had previously received in connection with the injuries that qualified her as a participant in the scheme.

2    Orders allowing the appeal were made on 15 October 2025: Pett v National Disability Insurance Agency [2025] FCA 1252. An issue on the appeal was the applicability and quantification of a “compensation reduction amount” (CRA) related to sums received by Mrs Pett in settlement of claims she had made against those she alleged had caused her qualifying personal injuries. The CRA affected Mrs Pett’s entitlement to receive benefits under the NDIS scheme in accordance with the National Disability Insurance Scheme (Supports for Participants – Accounting for Compensation) Rules 2013 (Cth).

3    In the course of the hearing, interim suppression and confidentiality orders were made in respect of a number of Spreadsheets in native .xlsx format and copies in .pdf format. Some of that material had been in evidence before the Tribunal and had at that time been the subject of a confidentiality order in the course of its review.

4    Following the delivery of judgment, NDIA applied for orders to the effect that the Spreadsheets be suppressed and otherwise kept confidential on an ongoing basis. The interim orders have been maintained pending the resolution of that application.

5    For the reasons that follow, I am satisfied that a suppression order is necessary in the interests of justice in the particular circumstances of this case, in respect of the Spreadsheets in both formats.

THE SPREADSHEETS

6    NDIA utilises spreadsheets as internal working documents in the performance of its decision-making functions under the NDIS Act to (among other things) assist in the calculation of the CRA for scheme participants, as it did in Mrs Pett’s case. As internal working documents they take the form of spreadsheets in .xlsx format. In that format, they contain formulae utilised by NDIA in the discharge of its functions more generally, as well as information relevant to Mrs Pett’s personal facts and circumstances. To complete the calculation, the user inputs information of the following kind:

(1)    the participant’s name, date of birth, participant number, and first date of access to the NDIS scheme;

(2)    details of the settlement, including the date of the compensable event, the date of the settlement, the amount of the settlement, and amounts payable to other statutory schemes;

(3)    data obtained from the Office of Scheme Actuary about the participant’s life expectancy and estimated lifetime support needs; and

(4)    historical data about the participant and the scheme, including the date and amount of the scheme recovered from the participant’s compensation, plan start and end dates, and any previous compensation reduction amounts that may have been applied.

7    In its reasons, the Tribunal explained that NDIA had provided Mrs Pett with a spreadsheet to assist her to understand how her supports under the NDIS Act had been calculated. In fact, there were three spreadsheets provided, as follows:

(1)    “CRA 3.13 Calculator Task Card Pett LEX2112 Hospital.xlsx”;

(2)    “CRA 3.13 Calculator Task Card Pett LEX2112 Physio.xlsx”; and

(3)    “CRA3.13Calculation_Pett_combinedsettlement (13).xlsx”.

8    The first two spreadsheets relate to the two settlements under consideration. The third is a combination of them.

9    Those materials were provided to Mrs Pett after the Tribunal made a non-publication order under s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth), covering “any spreadsheet provided by the Respondent which contains information regarding the Applicant's life expectancy, lifetime cost estimate and calculations”. When put before the Tribunal the three electronic spreadsheets referred to above became Exhibit G for the purposes of the review.

10    In its reasons, the Tribunal mentioned that Mrs Pett had prepared her own version of those spreadsheets by inputting different data, which she submitted yielded the correct outcome. The modified versions became Exhibit F. The Tribunal concluded (unsurprisingly) that the outcome of each method of calculation depended upon the information used, and that the two spreadsheets reflected the parties’ competing positions. The Tribunal said that neither spreadsheet was of any assistance for the purpose of its review and reached its own decision without further reference to them.

11    As in the proceeding before the Tribunal, on this appeal Mrs Pett sought to rely on modified versions of the spreadsheets (contained in a book titled “Application Book Supplement”). Those modified versions were also contained (and then further duplicated) within a book titled “Supplementary Application Book”. As contained in the books they are in .pdf format. In that format the formulae embedded in the cells of the .xlsx documents are not able to be seen or manipulated.

12    To create the modified .pdf versions, Mrs Pett altered each of the .xlsx spreadsheets by causing them to produce a “nil” amount for the CRA, reflecting her underlying contention that she had not received “compensation” for her personal injuries. She did so by selecting “yes” in a drop down menu, which had the effect of changing the values in some of the formulae and fields in the spreadsheets, so reducing the CRA amount to nil.

13    The spreadsheets comprising Exhibit G were not contained in the Court Book prepared by NDIA in this proceeding, notwithstanding that they were in evidence before the Tribunal. Nor were they contained in the Application Book Supplement or the Supplementary Application Book. The Supplementary Application Book was adduced in evidence. The Application Book Supplement was not.

14    Mrs Pett (by her representative) sent the spreadsheets comprising Exhibit G to the Registry by email on 16 June 2025. By that email Mrs Pett informed the Registry that she had experienced difficulties lodging the materials via the Court Portal and asked that the documents be accepted for filing. For reasons that are not apparent on the Court file, Exhibit G was neither accepted nor rejected for filing by the Registry. Other documents lodged by the same email (including the Supplementary Application Book) were accepted for fling and form a part of the Court file in this matter.

15    In this proceeding the spreadsheets were referred to as the CRA Calculator Tool. In her written submissions, Mrs Pett submitted that the “NDIA’s own internal CRA Calculator Tool, which was withheld from the Court Book, confirms that” NDIA’s calculation of the CRA was not justified. She made submissions as to how the tool should operate and made allegations that NDIA had withheld evidence (presumably Exhibit G and Exhibit F) from this Court. She made further submissions as to how the tool ought to have operated on the facts and law as she contended them to be, specifically by reference to the modified versions. That was done by reference to the modified .pdf spreadsheets contained in the Supplementary Application Book.

16    Mrs Pett otherwise submitted that NDIA had incorrectly and improperly input dates in the spreadsheets contained in Exhibit G, but did not seek to take the Court to those spreadsheets in written or oral submissions.

17    In the resolution of this appeal I concluded that the Tribunal had not erred in failing to have regard to the spreadsheets in Exhibits G and F as then before it, nor had it erred in failing to accept and adopt Mrs Pett’s submissions to the effect that the CRA Calculator Tool should yield a nil CRA on the facts of her case: Pett at [99] – [102]. The reasons for judgment do not otherwise disclose information drawn from the Spreadsheets in any form. The reasons do not disclose any particular formula contained within any particular field of any particular spreadsheet. Nor did the oral or written submissions of either party descend into that detail. To the extent that reference in the reasons is made to Mrs Pett’s personal circumstances, that information is sourced in other evidence.

THE POWER TO SUPPRESS

18    Section 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) is as follows:

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

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

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

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

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

(iii)    information produced under a subpoena; or

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

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

19    A suppression or non-publication order must specify the ground or grounds on which it is made: FCA Act, s 37AG(2). The grounds are limited to those listed in s 37AG(1), namely:

(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).

20    In accordance with s 37AH(5) of the FCA Act, a suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which the order is made.

21    When deciding whether to make a suppression or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: FCA Act, s 37AE. As explained by Allsop CJ in Minister for Immigration and Border Protection v Egan [2018] FCA 1320 (at [4]):

The principle of open justice is one of the overarching principles in the administration of justice, in this Court and all others. It lies at the heart of the exercise of judicial power as part of the wider democratic process. The principle involves justice being seen to be done. A key part of this task is enabling accurate and fair public reports of proceedings. Open justice is not an absolute concept, unbending in its form. It must on occasion be balanced with other considerations, including but not limited to considerations such as the avoidance of prejudice in the administration of justice or the protection of victims. Nevertheless, an order restricting the ordinary open justice approach is not lightly made. This balancing exercise is reflected in ss 17, 37AE and 37AG of the Federal Court of Australia Act 1976 (Cth), as well as in the Federal Court Rules 2011 (Cth): see e.g. rr 2.31, 2.32.

22    The principal focus of the present application is the ground in s 37AG(2): the orders sought are said to be necessary to prevent prejudice to the proper administration of justice. The exceptional nature of a suppression order supported by that ground was emphasised by the Full Court (Allsop CJ, Wigney and Abraham JJ) in Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] 275 FCR 377:

8    Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311 (Rinehart v Welker) at [27]; Rinehart v Rinehart (2014) 320 ALR 195 (Rinehart v Rinehart) at [23]. That is both because the operative word in s 37AG(1)(a) is ‘necessary’ and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; at Rinehart v Rinehart [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

9     The critical question is whether the making of a suppression or non-publication order is ‘necessary to prevent prejudice to the proper administration of justice’. The word ‘necessary’ in that context is a ‘strong word’: Hogan v Australian Crime Commission (2010) 240 CLR 651 (Hogan) at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 (Ibrahim) at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 at [21].

23    The Court’s power to make an order that a document be kept confidential is implicitly conferred under r 2.32 of the Federal Court Rules 2011 (Cth). Subrule 2.32(1) entitles a party to inspect “any document in the proceeding” except (relevantly) a document that the Court has ordered be confidential. Similarly, a non-party’s entitlement to inspect a document in a proceeding does not extend to documents that the Court has ordered be confidential, or that is forbidden or restricted from publication by virtue of an order made under s 37AF of the FCA Act. Each of the Spreadsheets meets the broad description of a “document in a proceeding” for the purposes of the rule, whether or not adduced in evidence: Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142 at [66] – [67] (Feutrill J).

24    In Pigozzo, Feutrill J expressed the view that the principle of open justice is not engaged at the time of the filing of proceeding, and that it is only when relevant material is used in open court that the principle comes into play: see also Saw v Seven Network (Operations) Ltd [2024] 305 FCR 340 (Perram J). That view is not uniformly held: see Sharma v Northern Territory of Australia [2026] FCA 315 (McDonald J). In my view the open justice principle is engaged in the broad array of occasions in which the Court has the power to make a suppression order. Those occasions are expressly identified in s 37AF of the FCA Act, and include the circumstance that a document has been lodged or filed. The administration of justice in this Court commences upon its jurisdiction first being invoked, and the legitimate public interest in what happens next arises from that moment. The principle is invoked in the present case in respect of the three spreadsheets in .xlsx format because those documents were lodged by Mrs Pett on 16 July 2025. They meet the description in s 37AF(1)(b)(i). The spreadsheets in .pdf format were adduced in evidence when the Court was asked to receive into evidence the Supplementary Application Book. They meet the description in s 37AF(1)(b)(iv).

25    As a matter of statutory construction, to the extent that a document contains information described in s 37AF of the FCA Act, the power to make a suppression order is conditioned by the requirement in s 37AE. In all cases where the power is enlivened the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The weight to be afforded that consideration will depend on the facts and circumstances of the particular case.

SUBMISSIONS

26    Broadly summarised, NDIA’s position is as follows:

(1)    In the proceedings before the Tribunal, the spreadsheets contained in Exhibit G were only provided to Mrs Pett on the condition that the Tribunal first made a confidentiality order in respect of them.

(2)    They were provided to assist Mrs Pett to understand how NDIA had arrived at the CRA in her particular case and hence were provided for the purpose of facilitating the just resolution of the dispute by way of settlement.

(3)    The spreadsheets in Exhibit F (being spreadsheets as used and presented by Mrs Pett) had their origin in the same source.

(4)    The CRA Calculation Tool embedded in the Spreadsheets is the product of information contained in the underlying formula, including actuarial modelling. That information has not previously been made available to the public.

(5)    The Spreadsheets in evidence in this Court are the same or substantially the same as those subject to the confidentiality order made by the Tribunal.

(6)    If a suppression order were not made in this Court, publication of information contained in the Spreadsheets might be permitted by this Court whilst at the same time being prohibited by reason of the ongoing confidentiality order made by the Tribunal.

(7)    The Spreadsheets in all formats contain information that is highly personal to Mrs Pett. That information constitutes “personal information’ for the purposes of the Privacy Act 1988 (Cth) and “protected Agency information” under the NDIS Act. If a suppression order were not made there is a risk that either or both of those statutory regimes may be contravened. A suppression order is otherwise consistent with the objectives of those provisions.

(8)    If the Spreadsheets were to be made publicly available there is a risk that other participants in the NDIS scheme would surmise that the information and calculations contained in them were up to date or otherwise misunderstand their operation and purpose, so leading to unnecessary disputes.

27    Mrs Pett was afforded an opportunity to make submissions in support or opposition to the orders but has not done so.

CONSIDERATION

28    On the material before me I do not accept that the spreadsheets contained in Exhibit G were provided to Mrs Pett for the purpose of facilitating the settlement of the dispute. The written submissions advance that contention, but the supporting affidavit does not assert the facts necessary to support it. The affidavit states that Mrs Pett was provided with the spreadsheets “to assist the applicant in her preparation”. Moreover, the reasons of the Tribunal make it plain that NDIA itself had made submissions directly in relation to those documents and so sought to put them to forensic use in support of its own case.

29    Moreover, to the extent that the spreadsheets forming Exhibit G formed a part of the reasoning process culminating in the decision under review by the Tribunal it is difficult to understand how NDIA could legitimately withhold that material from Mrs Pett or, for that matter, from the Tribunal itself.

30    Nonetheless, a representative of NDIA has deposed on oath that the spreadsheets would not have been disclosed had the Tribunal not made a confidentiality order in respect of them. That assertion has not been challenged by Mrs Pett. I proceed on the basis that NDIA has sought to maintain confidentiality in the information contained in Exhibit G so as to confine the disclosure to Mrs Pett and her representatives and to prevent wider disclosure to the public.

31    Against that background it may be observed that there are two categories of information contained in the Spreadsheets. The first is the formulae embedded in the .xlsx versions of them, those formulae giving the Spreadsheets the character of a calculator or tool. The second is the information specific to Mrs Pett’s personal facts and circumstances.

32    On this application it is appropriate to consider each category of information separately.

Spreadsheet formulae

33    The spreadsheets contained in Exhibit G are in an electronic form and in .xlsx format. In that form, the underlying formulae can be displayed by clicking on the cells where they reside. They were emailed to the Court in that form by Mrs Pett’s husband on 16 July 2025.

34    On the basis of NDIA’s supporting affidavit, I am satisfied that the formulae embedded in the native format spreadsheets comprising Exhibit G were not at that time (and are not presently) in the public domain. The information includes actuarial modelling data and the internal methodologies employed by NDIA when assessing claims. I also accept that the Spreadsheets are not an exclusive or compulsory tool but are rather in the nature of internal working aides employed to assist administrative decision-making. The outcomes produced by them are not necessarily reflective of the ultimate administrative decision in a particular case. The supporting affidavit asserts that they may be used for the purpose of an initial assessment or in the triaging of claims.

35    I accept NDIA’s submission that express reference to the Spreadsheets in this proceeding has been very limited indeed. The spreadsheets comprising Exhibit G in electronic format were emailed to the Registry. The Court was not otherwise taken to them in the course of the proceeding. It was not invited to use them as a tool in its own decision making. There is a reference to their existence in Mrs Pett’s written submissions, but that reference did not have the effect of adducing them in evidence, nor did the reference describe their content. NDIA submitted that the circumstances just described meant that the open justice principle was not engaged. As explained above, I do not agree. In my view, the documents were “lodged” with the Court when emailed on Mrs Pett’s behalf by her husband as her authorised representative in the proceeding and I must comply with s 37AE of the FCA Act when determining this application so far as it extends to them.

36    Nothing in Mrs Pett’s submission required disclosure, dispute or analysis of the formula embedded within the Spreadsheets. Nor did Mrs Pett seek to take issue with the formula themselves. Indeed, she implicitly embraced the CRA Calculator Tool as a whole and sought to make use of it by manipulating the inputs to show that it should yield a nil result. In turn, she submitted that the Tribunal had made an error of law by failing to utilise NDIA’s tool in the course of the review (albeit by inputting factual data that reflected her view of her case).

37    A limited question arising on the appeal was whether the Tribunal had so erred. Resolution of that question did not require consideration to be given to the formula embedded in the .xlsx version of the Spreadsheets. The reasons for judgment confirm that Mrs Pett’s entitlements did not turn upon any of the Spreadsheets (rejecting her erroneous insistence that they did).

38    Those circumstances fall to be considered in light of the extant confidentiality order made by the Tribunal. Mrs Pett has not sought to have that order discharged and I do not have before me any submission to the effect that the order was wrongly made or that it should not now be maintained. I do not consider it appropriate to determine for myself whether the confidentiality order of the Tribunal was made in accordance with the law. In the absence of submissions on the question, I proceed upon the assumption that it was. It remains extant.

39    It is that unique combination of factors that in my view makes it necessary in the interests of justice to make orders suppressing the formula embedded in the .xlsx spreadsheets. It is not in the interests of the administration of justice for this Court to permit the publication of material originating in the Tribunal and in respect of which the Tribunal has made a confidentiality order under its own statutory regime and in circumstances where that the maintenance of that earlier order is not subject to challenge. The lifting of the interim order without an ongoing order in substitution would create an inconsistency having real and practical implications for those seeking to access and use the material. If a suppression order is not made, there is the potential that the administration of justice will be brought into disrepute. The appropriate response is to make the ongoing suppression order subject to revocation on the application of any person determined to have a sufficient interest in the subject matter.

40    For the purposes of s 37AH(5) of the FCA Act I am not satisfied that it is practicable to extract the formulae from the spreadsheets in their native .xlsx format. Accordingly, the whole of the documents will be suppressed.

41    I have given separate consideration to the spreadsheets in .pdf format. They are documents having their original source in the spreadsheets contained in Exhibit G before the Tribunal. They are static documents in the sense that the formula embedded in the .xlsx versions are not able to be viewed by clicking on the spreadsheet cells. As discussed above, they differ from the .xlsx versions because the data inputs have been manipulated to reflect Mrs Pett’s case. In my view, a suppression order is necessary in the interests of justice with respect to that material. That is because the documents had their source in the material obtained by Mrs Pett under the cover of a confidentiality order of the Tribunal. The effect of the Tribunal’s order was to prohibit Mrs Pett from publishing that material to the world at large. In my view, it would constitute a form of publication for Mrs Pett to adduce in open court modified versions of the same material absent a suppression order in this Court restricting its further publication. The wider publication of the material as adduced in this Court was restricted by the interim suppression orders. In my view an ongoing suppression order is necessary to avoid the same kind of inconsistency arising in respect of the .xlsx versions of the spreadsheets. In addition, I am satisfied that a person inspecting the .pdf versions of the spreadsheets may to some extent ascertain the content of formulae embedded in the original .xlsx version.

42    That is not to say that the principle of open justice is inoperable with respect to that material. The principle operates, but is undermined to the extent that members of the public will not have access to all of the material to which Mrs Pett referred when advancing her case on this appeal. In accordance with s 37AE of the FCA Act, those considerations have been taken into account. Their weight is affected by the circumstances I have mentioned, including the limited use to which the spreadsheets in any form featured in the scope of the dispute on this appeal and the ultimate resolution of it.

Mrs Pett’s personal information

43    It is strictly unnecessary to address NDIA’s remaining arguments relating to Mrs Pett’s personal information. The arguments turn upon the construction of the Privacy Act and confidentiality provisions contained in the NDIS Act. For completeness I will explain why I would not have made suppression orders on that alternate basis.

44    Section 13H of the Privacy Act is a civil penalty provision. It will be contravened if a person interferes with the privacy of an individual. An interference with the privacy of an individual occurs if (relevantly) an act is done in breach of the Australian Privacy Principles in relation to “personal information” of the individual: Privacy Act, s 13. The Spreadsheets in all formats contain information falling within the definition “personal information” in s 6 of the Privacy Act. The Australian Privacy Principles would be breached if personal information is used other than for a purpose for which it is obtained: Privacy Act, sch. 1, cl. 6.1.

45    The NDIS Act contains provisions directed to the protection of the confidentiality of information held in NDIA’s records, referred to as “protected Agency information”.

46    Section 62 of the NDIS Act creates a criminal offence in the following terms:

A person commits an offence if:

(a)    the person:

(i)     makes a record of information; or

(ii)     discloses information to any other person; or

(iii)     otherwise makes use of information; and

(b)    the person is not authorised or required by or under this Act to make the record, disclosure or use of the information that is made by the person; and

(c)    the information is protected Agency information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

47    Section 60(2) authorises the use and disclosure of information by a person if (relevantly) the disclosure or use is made “for the purposes of this Act” (s 60(2)(d)(i)) or “with the express or implied consent of the person to whom the information relates” (s 60(2)(d)(iii)). Section 66 authorises disclosure of information by the CEO of NDIA for broadly described purposes, including “such purposes as the CEO determines”.

48    I do not accept the submission that the provisions of the NDIS Act or the Privacy Act would be contravened if a suppression order was not made over the Spreadsheets. Mrs Pett’s personal information was disclosed in the Tribunal proceedings and in this proceeding by several means other than the admission into evidence or the lodging for filing of any one of the Spreadsheets. Neither party sought suppression or confidentiality orders over the submissions or evidentiary materials in which her most intimate health details were disclosed. Those wide and uninhibited disclosures did not constitute a breach of the above-mentioned provisions, either because they were made by Mrs Pett (and not by NDIA) or because, to the extent that they were disclosed by NDIA, there were made for the purposes of the administration of the NDIS Act. The administration of the NDIS Act includes the involvement by NDIA and participants in the scheme in all review and appeal processes provided for or contemplated by the legislation. In my view it would create an absurdity to suppress personal information contained in the Spreadsheets whilst leaving unsuppressed the very same information contained in documents adduced and referred to in open Court and also finding expression in the judgment.

49    Were it not for the unique justification for suppression relating to the Tribunal’s confidentiality order I would not have made a suppression order based solely on the circumstance that the material relates to Mrs Pett’s private information. In and of itself, the maintenance of personal privacy per se is not a ground specified under s 37AG of the FCA Act and I am not satisfied that any one of the exhaustive list of grounds for suppression in s 37AG(2) exists.

Other scheme participants

50    It remains to consider NDIA’s submission to the effect that disclosure of the spreadsheets would introduce confusion and unnecessary disputation should other scheme participants seek to wrongly deploy them. I would not have granted suppression and confidentiality orders on that basis for two reasons. First, the reasons of the Tribunal and of this Court have emphasised the limited utility of the spreadsheets in the resolution of the present dispute. Mrs Pett was unsuccessful in her attempt to deploy them for forensic purposes. It would be open to NDIA to ignore or correct remonstrations by other scheme participants who sought to wrongly deploy the materials. Second, whilst I accept that the inappropriate deployment of the Spreadsheets by other scheme participants may cause unnecessary inconvenience or disputation, that of itself does not render it necessary in the interests of justice to suppress the materials. The provisions of the FCA Act are not concerned to avoid inconvenience, breach of privacy or hardship per se. They are to be applied in accordance with their terms.

confidentiality orders

51    Confidentiality orders will be made to protect confidentiality in the subject matter and otherwise to facilitate the administration of the public access regime.

Associate:

Dated:    13 May 2026