Case: Australian Broadcasting Commission v Parish and Ors (1980) 43 FLR 129
Outcome: referred to
Australian Broadcasting Commission v Parish and Ors (1980) 43 FLR 129 Bowen CJ stated at 132-3: 'Under s 50 an order may be made forbidding or restricting the publication of particular evidence or the name of a party or witness where it appears to the court "to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth". Again, we are familiar with cases where an order forbidding or restricting publication is appropriate. Thus, where the proceedings concern a secret process and publication of the process would destroy the subject matter of the proceedings and render them nugatory, an order is necessary to prevent prejudice to the administration of justice. Where proceedings are brought to restrain publication of confidential material, similar considerations apply. Disclosure would prejudice the court's proper exercise of the function it was appointed to discharge, to do justice between the parties. The possible cases where an order may be necessary to prevent prejudice to the administration of justice range fairly widely. The categories of this public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and legislation develop (see D. v National Society for Prevention of Cruelty to Children [[1978] AC 171 at 230] per Lord Hailsham ; Science Research Council v Nass&eacute; [[1979] 3 WLR 762 at 784] per Lord Fraser ...' Bowen CJ added (at 133) that ' Open justice is the underlying assumption of s 50 ... '. Deane J observed at 158: 'The decision whether an order under s 50 should be made will be the outcome of a balancing process in respect of which there will commonly be room for differences of opinion as to the weight to be attached to particular factors to be placed in the balance and, in the result, as to the precise outcome of the process itself.' The Australian Prudential Regulation Authority ('APRA') has provided six reasons in support of the continuation of order 8 and denial of access under O 46 r 6(3) of the Federal Court Rules . Firstly, it says that certain documents have not been admitted into evidence. Secondly, it says that certain documents contain information which it would be an offence to disclose under s 56(2) of the Australian Prudential Regulation Authority Act 1998 (Cth) ('APRA Act'). Thirdly, it says that certain documents were supplied to the applicant subject to non-disclosure conditions under s 56(5)(b) of the APRA Act. Fourthly, it says certain documents are subject to a duty of confidentiality pursuant to s 60 of the Insurance Act 1973 (Cth). Fifthly, it says that certain documents contain information about third parties, the disclosure of which may damage reputations or result in a denial of procedural fairness by APRA. Sixthly, it says that certain documents disclose the investigative processes of APRA. Apart from the question of statutory prohibition, these documents were provided by the respondent to the applicant on a confidential basis. Documents which the Court could not have ordered be provided to a party or to the Court, and which are provided voluntarily on a confidential basis to a party, should not in my opinion be released to non-parties by the Court. I note the observations of Deane J in Parish (at 157) that: 'The interests of the administration of justice plainly make it desirable that obligations of confidence be not lightly overruled and that legitimate expectations of confidentiality as to private and confidential transactions and affairs be not lightly disregarded. ' Further, I consider that any documents which contain information derived from documents subject to s 56 of the APRA Act should remain the subject of an order under s 50, except where that information is otherwise in the public domain. Although documents created by the applicant in response to the reports may not, in all cases, be themselves covered by the operation of s 56, it would, in my opinion, undermine the operation of s 56 if they were not also restrained from publication. Further, it would be likely that organisations such as APRA would cease to provide such documents to external interested parties if they could not ensure that confidentiality of the material contained within them would be maintained. I accept that in some circumstances, documents which disclose the investigative processes of APRA might be appropriately restrained from publication. In the present case, however, having considered those documents which fall outside the restrictions already discussed, I do not consider that the material contains significant details which would prejudice APRA's conduct of future investigations if it were publicly revealed. Accordingly, I do not consider that any additional material should be withheld by order under s 50 on the basis that it reveals APRA's investigative processes. In respect of the suggestion that a duty of confidentiality applies by virtue of s 60 of the Insurance Act 1973 (Cth), I agree with this submission but only to a limited extent. I accept that information relating to the contents of the final report would be subject to a duty of confidentiality, on the basis that publication is prohibited without the agreement of the Attorney-General. It is possible that this duty would extend also to the contents of the draft reports, but it is unnecessary to decide this point at present since s 56 of the APRA Act applies to the draft reports. However I do not consider that s 60 of the Insurance Act would prevent the applicant disclosing his knowledge of the investigation by APRA outside of these parameters. I have read the file and considered the documents contained in it. I propose to amend order 8 of the orders of 14 July 2006 to restrict its operation to those portions of the documents which I believe fall into one of the two categories referred to above (namely, documents to which s 56 of the APRA Act applies, or documents derived from documents to which s 56 applies). Because of the nature of the documents in question, I have prepared a schedule of those documents to which I consider the s 50 order should continue to apply. Any further documents filed in the proceedings will need to be subject to consideration on a case-by-case basis.