Federal Court (Full Court). Is the threshold that must be met by an application that seeks to establish that a non-publication order is 'necessary' under s 37AG(1)(a) of the FCA Act high? Do "mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears" suffice? Is the Court permitted to undertake a balancing exercise? Is the possibility that the Appellant could experience some sort of difficulty obtaining employment on the basis of the publicly available judgment sufficient?
After having exhausted his judicial review proceedings relating to a decision of the Minister for Immigration before the Full Court of the Federal Court (FCAFC), the Appellant sought an order that the FCAFC replace his name on the court file and in the Court’s reasons for judgment with a pseudonym, on the basis of s 37AG(1)(a) of the Federal Court Act 1975 (Cth) (Pt VAA), which read: "The Court may make a suppression order or non-publication order on one or more of the following grounds: ... the order is necessary to prevent prejudice to the proper administration of justice".
In summary, the basis for the order sought was that the Appellant was to be deported to England and feared the possible stigma and workplace discrimination that could result from the publication of his name in the judicial review proceedings.
In considering whether to make a suppression or non-publication order, the Court must consider s 37AE, which provided as follows: "In deciding whether to make a suppression order 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".
Some of the questions to the FCAFC were as follows:
Question 1: Is the threshold that must be met by an application that seeks to establish that a non-publication order is 'necessary' high?
Question 2: Can it be said that "mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice" for the purpose of satisfying s 37AG(1)(a)?
Question 3: Is the Court permitted to undertake a balancing exercise for the purpose of satisfying s 37AG(1)(a)?
Question 4: Does the possibility that the Appellant could experience some sort of difficulty obtaining employment on the basis of the publicly available judgment provide a basis for satisfaction of s 37AG(1)(a)?
Question 5: Do the considerations for the making of an order under the Court's implied power pursuant to ss 23 and 28(1)(b) of the FCA Act differ in any relevant sense from the test established by Pt VAA of the FCA Act?
The FCAFC answered those questions as follows: