FEDERAL COURT OF AUSTRALIA Baptist Union of Queensland – Carinity v Roberts [2015] FCA 1068 Citation: Baptist Union of Queensland – Carinity v Roberts [2015] FCA 1068 Parties: THE BAPTIST UNION OF QUEENSLAND – CARINITY ABN 46 909 844 617 v PETER ROBERTS AS A DELEGATE OF THE SECRETARY OF THE DEPARTMENT OF SOCIAL SERVICES, TRACEY REES AS A DELEGATE OF THE CHIEF EXECUTIVE OF THE AUSTRALIAN AGED CARE QUALITY AGENCY, AUSTRALIAN AGED CARE QUALITY AGENCY and COMMONWEALTH OF AUSTRALIA File number: QUD 353 of 2015 Judge: RANGIAH J Date of judgment: 2 October 2015 Catchwords: PRACTICE AND PROCEDURE – non-party application to inspect documents – principle of open justice – meaning and effect of reading affidavits in open court – whether inspection prohibited under statute – consideration of "protected information" under the Aged Care Act 1997 (Cth) – meaning and scope of "personal information" – meaning of "reasonably identifiable" – where personal information to be redacted – leave to inspect documents granted PRACTICE AND PROCEDURE – application for non-publication order – whether order necessary to prevent prejudice to the proper administration of justice – where affidavits said to contain commercially sensitive information – limited non-publication order granted Legislation: Aged Care Act 1997 (Cth) ss 65-1, 86-1 and 86-8 Federal Court of Australia Act 1976 (Cth) ss 17(1), 37AG and 37AH Federal Court Rules 2011 (Cth) r 2.32 Privacy Act 1988 (Cth) s 6 Explanatory Memorandum, Privacy Amendment (Enhancing Privacy Protection) Bill 2012, pp 60–61 Cases cited: Attorney General v Leveller Magazine Ltd [1979] AC 440 cited Australian Competition & Consumer Commission v Origin Energy Electricity Limited [2015] FCA 278 cited Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 3) (2002) ATPR 41-873; [2002] FCA 609 cited Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 cited Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 cited Brown v Health Services Union (No 4) [2012] FCA 1376 cited Hogan v Australian Crime Commission (2010) 240 CLR 651 cited John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 cited John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 cited John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 cited Russell v Russell (1976) 134 CLR 495 cited Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1 cited Date of hearing: 10 August 2015 Date of last submissions: Applicant: 24 August 2015 First and Fourth Respondents: 24 August 2015 Second and Third Respondents: 26 August 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 66 Counsel for the Applicant: Mr S Keim SC Solicitor for the Applicant: Hynes Legal Counsel for the First and Fourth Respondents: Mr R Derrington QC with Mr M Ballans Solicitor for the First and Fourth Respondents: Clayton Utz Solicitor for the Second and Third Respondents: Mr M Palfrey of Sparke Helmore Solicitor for the Non-Party Applicants: Mr J Quill of M+K Lawyers IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 353 of 2015 BETWEEN: THE BAPTIST UNION OF QUEENSLAND – CARINITY ABN 46 909 844 617 Applicant AND: PETER ROBERTS AS A DELEGATE OF THE SECRETARY OF THE DEPARTMENT OF SOCIAL SERVICES First Respondent TRACEY REES AS A DELEGATE OF THE CHIEF EXECUTIVE OF THE AUSTRALIAN AGED CARE QUALITY AGENCY Second Respondent AUSTRALIAN AGED CARE QUALITY AGENCY Third Respondent COMMONWEALTH OF AUSTRALIA Fourth Respondent JUDGE: RANGIAH J DATE: 2 october 2015 PLACE: BRISBANE REASONS FOR JUDGMENT 1 Vanda Carson and Hedley Thomas, who are both journalists, have applied for leave to inspect a number of documents filed by the parties in the principal proceeding. The applicant and the respondents to the proceeding oppose the journalists' applications. Procedural history 2 The applicant is the operator of an aged care home known as "Karinya Village Care Centre" in Laidley in south-east Queensland. In its originating application, the applicant seeks review of a decision made by the first respondent to impose sanctions on the applicant pursuant to s 65-1 of the Aged Care Act 1997 (Cth). The applicant also seeks review of the conduct of the second respondent concerning the preparation of a "Serious Risk Report", which led to the decision to impose sanctions. 3 Following an internal review, the first respondent's decision to impose sanctions was set aside. The applicant no longer presses its case against the first and fourth respondents. However, it continues to seek relief against the second and third respondents. 4 The parties filed a number of affidavits. On 29 May 2015, a directions hearing was conducted. During that hearing, the parties read some of the affidavits in open court. 5 On 24 July 2015, Mr Thomas completed a "Request by non-party for access to Court Documents" form seeking access to the following filed documents: No Filing Date Document Filed by 1 15 May 2015 Originating application Applicant 2 15 May 2015 Genuine steps statement Applicant 3 15 May 2015 Affidavit of Jon Campbell Applicant 4 15 May 2015 Affidavit of Nola Collman Applicant 5 15 May 2015 Affidavit of Susan Bell Applicant 6 15 May 2015 Affidavit of Steve Munro Applicant 7 15 May 2015 Affidavit of Rosemary Butterfield Applicant 8 19 May 2015 Notice of address for service First and Fourth Respondents 9 20 May 2015 Notice of address for service Second and Third Respondents 10 25 May 2015 Interlocutory application First and Fourth Respondents 11 25 May 2015 Affidavit of Michael Culhane First and Fourth Respondents 12 26 May 2015 Affidavit of Steve Munro Applicant 13 26 May 2015 Affidavit of Jacinta Geraghty Applicant 14 28 May 2015 Notice of objection to competency Second and Third Respondents 15 28 May 2015 Interlocutory application Second and Third Respondents 16 28 May 2015 Affidavit of Ross Bushrod Second and Third Respondents 17 28 May 2015 Affidavit of Emily Dinsey Applicant 18 28 May 2015 Affidavit of Jon Campbell Applicant 19 28 May 2015 Outline of submissions First and Fourth Respondents 6 Mr Thomas also sought access to an affidavit said to be filed on 8 May 2015, but there is no such affidavit. I have assumed that he instead intended to refer to the affidavit of Jon Campbell filed on 28 May 2015. 7 On 9 June 2015, Ms Carson sought access to each of the affidavits filed on 15 May, 25 May, 26 May and 28 May 2015 and the outline of submissions filed on 28 May 2015. Ms Carson requested access to three affidavits filed on 26 May 2015, but I infer that she intended to refer to the affidavit of Michael Culhane filed on 25 May 2015 and the two affidavits filed on 26 May 2015. 8 The journalists' requests for access to the documents were referred to me by the Registry for a decision. I proceeded by asking a Deputy District Registrar to write to the parties asking if they had any objection to access being granted to the journalists. Each of the parties replied indicating that they objected. The applicant and the first and fourth respondents also indicated that if the Court proposed to grant access to the documents, they would seek confidentiality orders in respect of the documents. 9 In these circumstances, I decided to treat each of the requests for access to the documents as applications for inspection of documents pursuant to r 2.32(4) of the Federal Court Rules 2011 (Cth). I also decided to treat the correspondence from the applicant's and the first and fourth respondents' solicitors as applications for suppression or non-publication orders pursuant to s 37AH(1) of the Federal Court of Australia Act 1976 (Cth). 10 A hearing of the applications was conducted on 10 August 2015. I granted the journalists leave to appear. All parties provided written submissions prior to the hearing and supplementary written submissions after the hearing. The legislative provisions Federal Court Rules 11 Rule 2.32 of the Federal Court Rules identifies the documents on the Court's file that a person who is not a party to a proceeding is entitled to inspect and those that such a person cannot inspect. The rule also provides for an application to be made for the inspection of other documents: 2.32 Inspection of documents … (2) A person who is not a party may inspect the following documents in a proceeding in the proper Registry: (a) an originating application or cross-claim; (b) a notice of address for service; (c) a pleading or particulars of a pleading or similar document; (d) a statement of agreed facts or an agreed statement of facts; (e) an interlocutory application; (f) a judgment or an order of the Court; (g) a notice of appeal or cross-appeal; (h) a notice of discontinuance; (i) a notice of change of lawyer; (j) a notice of ceasing to act; (k) in a proceeding to which Division 34.7 applies: (i) an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; or (ii) an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar; (l) reasons for judgment; (m) a transcript of a hearing heard in open Court. (3) However, a person who is not a party is not entitled to inspect a document that the Court has ordered: (a) be confidential; or (b) is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member. (4) A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect. (5) A person may be given a copy of a document, except a copy of the transcript in the proceeding, if the person: (a) is entitled to inspect the document; and (b) has paid the prescribed fee. Federal Court of Australia Act 12 Section 37AH of the Federal Court of Australia Act allows the Court to make suppression and non-publication orders: 37AH Procedure for making an order (1) The Court may make a suppression order or non-publication order on its own initiative or on the application of: (a) a party to the proceeding concerned; or (b) any other person considered by the Court to have a sufficient interest in the making of the order. (2) Each of the following persons is entitled to appear and be heard by the Court on an application for a suppression order or non-publication order: (a) the applicant for the order; (b) a party to the proceeding concerned; (c) the Government (or an agency of the Government) of the Commonwealth or a State or Territory; (d) a news publisher; (e) any other person who, in the Court's opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made. (3) A suppression order or non-publication order may be made at any time during a proceeding or after a proceeding has concluded. (4) A suppression order or non-publication order may be made subject to such exceptions and conditions as the Court thinks fit and specifies in the order. (5) 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. 13 Section 37AF describes the scope of the suppression and non-publication orders that the Court may make: 37AF Power to make orders (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). 14 Section 37AG sets out the grounds for making suppression and non-publication orders: 37AG Grounds for making an order (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) 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). (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made. 15 Section 37AE requires the Court to take into account the principle of open justice: 37AE Safeguarding public interest in open justice 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. Aged Care Act 16 There are provisions of the Aged Care Act which restrict the publication of information. Part 6.2 and Div 86 each have the heading "Protection of information" and contain the following provisions: 86-1 Meaning of protected information In this Part, protected information is information that: (a) was acquired under or for the purposes of this Act…; and (b) either: (i) is personal information; or (ii) relates to the affairs of an approved provider; or … 86-2 Use of protected information (1) A person is guilty of an offence if: (a) the person makes a record of, discloses or otherwise uses information; and (b) the information is protected information; and (c) the information was acquired by the person in the course of performing duties or exercising powers or functions under this Act... Penalty: Imprisonment for 2 years. (2) This section does not apply to: (a) conduct that is carried out in the performance of a function or duty under this Act…or the exercise of a power under, or in relation to, this Act…; or (b) the disclosure of information only to the person to whom it relates; or (c) conduct carried out by an approved provider; or (d) conduct that is authorised by the person to whom the information relates; or (e) conduct that is otherwise authorised under this or any other Act. … 86-8 Disclosure to court A court, or any other body or person that has power to require the production of documents or the answering of questions, may require a person to disclose protected information only if one of the following applies: (a) the disclosure is required for the purposes of this Act; … (c) the person to whom the information relates has consented, in writing, to the disclosure. 17 The expression "personal information" is defined in the Dictionary in Sch 1 to the Aged Care Act to have the same meaning as in the Privacy Act 1988 (Cth). I will set out that definition later in these reasons. Consideration 18 In written submissions filed before the hearing, the applicant opposed the journalists having leave to inspect any of the documents they seek access to. The respondents objected to the journalists having access to the affidavits, but not to the other documents. 19 In the course of the hearing, the positions of the applicant and the respondents moderated to some extent and became more aligned. The respondents' position is now that they only oppose the journalists having access to the affidavits that have not yet been read in the proceedings, and to those parts of the affidavits that have been read which contain "protected information" within the meaning of that expression in s 86-1 of the Aged Care Act. The first and fourth respondents have provided a draft of the orders which they propose. As the draft orders do not include suppression or non-publication orders, I infer that they no longer seek such orders. 20 The applicant's position is the same as that of the respondents except that it seeks a non-publication order in respect of parts of an affidavit containing "commercially sensitive information", and opposes the journalists having access to those parts of that affidavit. 21 A number of the documents sought by Mr Thomas are documents which he is entitled to inspect under r 2.32(2). These consist of the originating application, notices of address for service and the two interlocutory applications. As Mr Thomas is entitled to inspect them, it is unnecessary to make any orders as to access to the documents described by the numbers 1, 8, 9, 10 and 15 in para [5] of these reasons. 22 The parties do not oppose Mr Thomas having access to the applicant's genuine steps statement and the second and third respondents' notice of objection to competency. There should be an order that Mr Thomas have leave to inspect the documents numbered 2 and 14 in para [5] of these reasons. 23 The parties do not object to Mr Thomas having access to the first and fourth respondents' outline of submissions. There should be an order that Mr Thomas have leave to inspect the document numbered 19 in para [5] of these reasons. 24 I will next consider whether the journalists should be granted access to the affidavits that have been filed. 25 Section 17(1) of the Federal Court of Australia Act states that except where authorised by the Federal Court of Australia Act or other law, the jurisdiction of the Court is to be exercised in open court. That provision reflects the principle of open justice, which has been described as "one of the most fundamental aspects of the system of justice in Australia": John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at [18] per Spigelman CJ. 26 The rationale for the principle was described by Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520: It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted "publicly and in open view" (Scott v. Scott [1913] A.C. 417, at p. 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for "publicity is the authentic hall-mark of judicial as distinct from administrative procedure" (McPherson v. McPherson [1936] A.C. 177, at p. 200). To require a court invariably to sit in closed court is to alter the nature of the court. 27 The principle of open justice does not confer any legal right upon non-parties to have access to the Court's records. In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512, Spigelman CJ said: 29 Neither the claimants, nor the public at large, have a right of access to court documents. The "principle of open justice" is a principle, it is not a freestanding right. It does not create some form of freedom of information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right. 28 A further limitation is that the principle of open justice is engaged only when the relevant material is "used" or "deployed" in open court: John Fairfax Publications Pty Ltd v Ryde Local Court per Spigelman CJ at [32], [65], Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1 at [26] per Sackville J. An affidavit can be described as "used" or "deployed" when it is "read" in open court: see John Fairfax Publications Pty Ltd v Ryde Local Court at [66]–[68]. An announcement that an affidavit is "read" is usually taken as deeming all the words in the affidavit to be treated as though they had been read aloud: Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 at [9], per Edelman J. 29 At the directions hearing held on 29 May 2010 the parties read some, but not all, of the affidavits that had been filed. The journalists should not have access to affidavits which have been filed in the proceedings but not yet read. The affidavits of Michael Culhane numbered 11 and Ross Bushrod numbered 16 in para [5] have not been read. I do not propose to grant the journalists leave to inspect those affidavits. 30 That leaves for consideration the question of whether the journalists should be given leave to inspect the affidavits which were read at the directions hearing on 29 May 2015. These consist of the affidavits of Rosemary Butterfield, Nola Collman, Susan Bell, Emily Dinsey, Jacinta Geraghty, Steve Munro and Jon Campbell. Although these affidavits were "read" in the sense described above, their contents were not in fact revealed to anyone other than the parties and the Court. 31 The respondents have marked-up a copy of Mr Munro's affidavit filed on 15 May 2015 to identify what they assert is "protected information" within the meaning of that expression in s 86-1 of the Aged Care Act. That information is principally contained in the Serious Risk Report, which is annexed to Mr Munro's affidavit. It is also contained in the notice of the first respondent's decision to impose sanctions which reproduces portions of the Serious Risk Report and which is also annexed to Mr Munro's affidavit. 32 The controversial parts of the Serious Risk Report appear under the subheading "Reason and evidence for serious risk". In that section, the report describes a number of incidents which are said to demonstrate that the applicant did not have systems to provide a safe environment for residents with cognitive impairments. For example, it describes several incidents involving residents wandering away from the home. In respect of each incident, the resident who is involved is named and the nature of the incident is described. The incidents are described in varying levels of detail. 33 In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 3) (2002) ATPR 41-873; [2002] FCA 609, Finkelstein J considered the approach to be applied in determining applications by non-parties for leave to inspect documents on the Court's file. His Honour said: [7] The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required… In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position. (Underlining added.) 34 In Seven Network Ltd v News Ltd, Sackville J said: [27] …[U]nless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. 35 Similarly, in Brown v Health Services Union (No 4) [2012] FCA 1376, Flick J said: [44] …[I]t is nevertheless important in all litigation to bear in mind that any member of the public has an entitlement to be as fully informed as possible about the nature of the issues or the disputes being resolved. That entitlement does not extend to unfettered access to the court file: P v Australian Crime Commission [2008] FCA 1336 at [19], 250 ALR 66 at 70 per Emmett J. But where Affidavit evidence has been read in open court, access to such material should normally be allowed. 36 There is a strong presumption that any member of the public should be given leave to inspect a document which has been read in open court. However, leave should be refused where required by the interests of justice. Leave should also be refused where there is a statutory provision which requires that result. The applicant and the respondents submit that both the terms of the Aged Care Act and the interests of justice require that the journalists should not have full access to the affidavits that have been read. 37 Section 86-8 of the Aged Care Act is in absolute terms. A Court may not require a person to "disclose protected information" unless one of the circumstances set out in that provision applies. However, I do not think that provision has any direct application to the journalists' application for access to filed documents. The journalists do not seek an order requiring any person to disclose protected information to them. That information has already been voluntarily disclosed to the Court by the parties and read in open court. Rather, the journalists seek an order under r 2.32(4) of the Federal Court Rules for leave to inspect the documents. Such an order would not require any person to disclose protected information. 38 Even though s 86-8 does not apply directly, the provisions of Div 86 of the Aged Care Act do have relevance to the question of whether leave to inspect documents should be refused in the interests of justice. The policy and object of the non-disclosure provisions of the Aged Care Act is that "protected information" should not be disclosed except in the limited circumstances provided for under those provisions. The rationale for that policy is readily apparent in cases involving the personal information of elderly residents of aged care facilities. Many such residents are less able or unable to care for themselves because of physical or mental infirmity. They rely upon the care and services provided by commercial and quasi-commercial providers. Division 86 seeks to protect the privacy of such residents by restricting the disclosure of their personal information by those who acquire it under or for the purposes of the Aged Care Act. 39 The privacy of residents of the applicant's facility has not been protected so far. A number of residents are named in the affidavits. The affidavits have been filed and read in open court by the parties to the proceeding. The residents are not parties, are not willing actors in the proceeding and have not consented to the use of information concerning their conduct and treatment. In fact, descriptions of the behaviours of some of the residents suggest that they may not be capable of giving consent. 40 There is a public interest in facilitating a fair and accurate report of proceedings in court: Attorney General v Leveller Magazine Ltd [1979] AC 440 at 456, John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481, John Fairfax Publications Pty Ltd v Ryde Local Court at [47]. However, in deciding whether the journalists should have leave to inspect the whole of the affidavits, the need to protect the privacy of the residents must also be taken into account. 41 Section 86-1 of the Aged Care Act defines "protected information" as "personal information", or information which "relates to the affairs of an approved provider." The applicant and respondents have not suggested that the relevant information falls within the latter category. 42 A balance between the principle of open justice and the privacy of the residents can be struck by allowing the journalists access to copies of the affidavits which have the "personal information" of the residents obscured. The difficulty lies in determining what is and is not "personal information". 43 The expression "personal information" is defined in the Dictionary for the Aged Care Act by reference to the meaning of that expression in the Privacy Act. That expression is defined in s 6 of the Privacy Act: personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not. 44 There is no doubt that the name of a resident is "personal information". The journalists do not contend to the contrary. The Serious Risk Report should be redacted so that the names of the residents are obscured. 45 The more difficult question is the extent to which the descriptions of the incidents involving the residents should be redacted. Merely obscuring the names of the residents may not be enough because "personal information" is defined in s 6 of the Privacy Act to include information about an individual who is "reasonably identifiable". The issue is whether any of the residents will be "reasonably identifiable" from the descriptions of the various incidents. 46 The applicant and the respondents submit that a broad view should be taken of what constitutes information from which an individual is "reasonably identifiable" and that the whole of the descriptions of the incidents in the Serious Risk Report should be redacted. They submit that various members of the applicant's staff are aware of the incidents, and those staff members will be able to identify the residents involved from the mere descriptions of the incidents set out in the Serious Risk Report. They submit that if the identity of an individual is reasonably able to be ascertained from the information by even one other person, then the individual is "reasonably identifiable". 47 On the other hand, the journalists submit that only the following information should be redacted: the names and ages or dates of birth of any residents; the precise dates (but leaving in the year) of any specific incidents; when the resident became or ceased being a resident; and the names of any treating medical staff. The journalists submit that if these details are omitted, the residents will not be reasonably identifiable. The journalists contend that information is not "personal information" merely because a person or a few persons with knowledge of the particular incident will be able to identify the residents involved from the description of the incidents, but do not make any specific submission as to why this is so. 48 As to what the words "reasonably identifiable" mean, at least part of the answer can be found in the history of the definition of "personal information" in the Privacy Act and the relevant extrinsic material. 49 Prior to amendments made by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 ("the Amending Act"), both the Schedule to the Aged Care Act and s 6 of the Privacy Act defined "personal information" as: personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. (Underlining added.) 50 The Explanatory Memorandum to the Privacy Amendment (Enhancing Privacy Protection) Bill 2012, pp 60–61 outlined the basis for the amendment to the current definition of "personal information", as follows: Item 36 Subsection 6(1) (definition of 'personal information') Item 36 will update the definition of ' personal information' in subsection 6(1) of the Privacy Act. The new definition will reflect the Government's acceptance of the ALRC's recommendation that, "personal information" should be defined as "information or an opinion, whether true or not, and whether recorded in a material form or not, about an identified or reasonably identifiable individual" (ALRC Recommendation 6-1). … The Privacy Act refers to "an individual whose identity is apparent, or can reasonably be ascertained". The new definition will use the terms "identified" and "reasonably identifiable". The new definition has been cast in terms of identification of individuals because this language is more consistent with the APEC Privacy Framework and other international instruments, which means that international jurisprudence and explanatory material will be more directly relevant to the Privacy Act. The new definition will refer to an individual who is, "reasonably identifiable". Whether an individual can be identified or is reasonably identifiable depends on context and circumstances. While it may be technically possible for an agency or organisation to identify individuals from information it holds, for example, by linking the information with other information held by it, or another entity, it may be that it is not practically possible. For example, logistics or legislation may prevent such linkage. In these circumstances, individuals are not "reasonably identifiable". Whether an individual is reasonably identifiable from certain information requires a consideration of the cost, difficulty, practicality and likelihood that the information will be linked in such a way as to identify him or her. (Underlining added.) 51 The Australian Law Reform Commission Report Numbered 108 entitled "For Your Information: Australia Privacy Law and Practice", upon which the amendment to the definition of "personal information" was based, stated: 6.55 In addition, the definition of "personal information" should not be limited, as it currently is, to information about an individual whose identity is apparent or can reasonably be ascertained "from the information". An individual is "reasonably identifiable", when the individual can be identified from information in the possession of an agency or organisation or from that information and other information the agency or organisation may access without unreasonable cost or difficulty. … 6.57 As noted by Microsoft Asia Pacific, whether an individual is "reasonably identifiable" from certain information requires a consideration of the cost, difficulty, practicality and likelihood that the information will be linked in such a way as to identify him or her. This is an appropriate formulation of the test. The ALRC does not agree with the Australian Privacy Foundation that the test should be whether an individual is "potentially identifiable". A great deal of information is about potentially identifiable individuals but where identifying the individuals would involve unreasonable expense or difficulty, and is unlikely to happen, the ALRC is of the view that the information is not "personal information" for the purposes of the Privacy Act. (Underlining added.) 52 The former definition of "personal information" was limited to information from which the identity of an individual was apparent or could reasonably be ascertained. One purpose of the amendment of the definition under the Amending Act was to ensure the modernisation of the definition and to align its wording with international instruments. Another purpose was to expand the scope of the protected information to information which can be linked with other information to identify an individual. 53 However, as the extrinsic material indicates, information is not "personal information" merely because the identity of an individual may potentially be ascertained from that information, or from that information in combination with other information. What is required is that the identity of the person can reasonably be ascertained by a person hearing or reading the information, or the information in combination with other information, taking into account the likelihood, cost, difficulty and practicality of that occurring. 54 It is unnecessary for me to consider the potentially difficult issue of whether the definition of "personal information" includes information from which an individual is reasonably identifiable by even a single person or a small group of persons who have specific knowledge of an event described in the relevant information. That is because I consider that the descriptions of the incidents can be redacted in a way that would not make it reasonably practicable for even members of the applicant's staff to identify the individual residents involved, while still allowing the journalists to ascertain the substance of most of the incidents. 55 The journalists should be permitted to inspect copies of Mr Munro's affidavit subject to the following information in the Serious Risk Report being obscured: the names of the residents; any street names; where a wandering resident was located by a person, the position or other description of the person; the month and day of the incident (but leaving in the year); any information concerning the medical conditions of the residents; all the words between the word "assaulted" and the words "there has been no review…" on page 11 (on the basis that the incidents are so singular and peculiar that description of the incidents may reveal the identities of the residents involved). 56 The corresponding information in the first respondent's notice of decision annexed to Mr Munro's affidavit to impose sanctions should also be obscured. 57 The name of the resident appearing on pages 5 and 6 of Mr Munro's affidavit should be obscured. 58 I was not specifically addressed upon the remaining affidavits that were read at the directions hearing on 29 May 2015 (see para [30]), but the observations I have made in para [55] apply equally to those affidavits. 59 The applicant also seeks a non-publication order in respect of what it calls "commercially sensitive information". That information is financial information concerning the applicant's business. In its final written submissions, the applicant indicates that this application is now confined to paragraphs 13 and 14 and annexure SM 4 of the affidavit of Mr Munro filed on 15 May 2015. 60 In another affidavit, Mr Munro, a manager employed by the applicant, deposes that if the financial information were made available to competitors operating in the same market, it would be likely to be used by those competitors to gain a market advantage over the applicant. Mr Munro does not give any explanation as to how that information is likely to be used by competitors, or how they could use it to gain a market advantage. 61 Section 37AG(1)(a) allows the Court to make a suppression order or non-publication order if "the order is necessary to prevent prejudice to the proper administration of justice". In Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30] the High Court said, in relation to the predecessor of s 37AG, that "'necessary' is a strong word". 62 In Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607, Foster J said at [30]: The threshold which a suppression order applicant must satisfy is high. Mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice. 63 In Australian Competition & Consumer Commission v Origin Energy Electricity Limited [2015] FCA 278, Katzmann J said at [148]: The evidence discloses that the information is not in the public domain and is confidential to SalesForce and its parent company. It is commercially sensitive. If the information were disclosed, it could be used by competitors of SalesForce and damage SalesForce in the market in which it operates. It is not in the interests of the administration of justice that the proceedings "become a vehicle for advantaging or prejudicing trade rivals": Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010) FCA 1082 at [23]. It is in the interests of the proper administration of justice that the value of confidential information not be destroyed or diminished. Otherwise, the parties and members of the public might lose confidence in the court and the court's processes "might open the way to abuse": Australian Broadcasting Commission v Parrish (1980) 29 ALR 228; 43 FLR 129 at 134. 64 I accept that it is necessary to prevent prejudice to the proper administration of justice that the amounts of the daily and weekly losses set out in paras 13 and 14 of the affidavit of Mr Munro filed on 15 May 2015 should be the subject of a non-publication order. The non-publication order should extend to the sub-totalled figures under the heading "Income Loss" in para 13. The applicant has not demonstrated that the remainder of its financial information is "commercially sensitive information" that could be used by competitors to damage the applicant if disclosed. A non-publication order should not be made in respect of the total amount of the loss quantified in para 13, or the subsidy loss, or the cost of a nurse advisor. Neither should such an order be made in respect of annexure SM 4. 65 I propose to make a non-publication order in respect of the figures I have indicated. I would only allow the journalists leave to inspect copies of Mr Munro's affidavit with those figures obscured. 66 I will hear the parties as to the appropriate orders to give effect to these reasons. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 2 October 2015