Federal Court of Australia Deputy Commissioner of Taxation v Lee [2022] FCA 1307 File number: NSD 697 of 2021 Judgment of: BROMWICH J Date of judgment: 3 November 2022 Catchwords: PRACTICE AND PROCEDURE – interlocutory application by the respondents for suppression and related orders under s 37AF of the Federal Court of Australia 1976 (Cth) in relation to the entire court file – where a request for non-party access was made by a journalist under r 2.32 of the Federal Court Rules 2011 (Cth) in relation to affidavits relied upon to obtain freezing orders – where request is opposed by the respondents – whether a suppression order is necessary to prevent prejudice to the proper administration of justice – whether potential damage to reputation and thereby commercial interests is sufficient to justify a suppression order – whether the approval of the non-party access request is inconsistent with the confidentiality regime of the Tax Administration Act 1953 (Cth) – Held: interlocutory application dismissed and access request granted Legislation: Federal Court of Australia Act 1976 (Cth) Pt VAA, Div 2; ss 17, 37AE, 37AF, 37AF(1), 37AG(1), 37AG(1)(a), 37AG(1)(b), 37AG(1)(c), 37AG(1)(d), 50. Income Tax Assessment Act 1997 (Cth) s 960-100 International Arbitration Act 1974 (Cth) Taxation Administration Act 1953 (Cth) Sch 1, Ch 5, Pt 5-1, Div 355, Subdiv 355-A, 355-B, 355-C, 355-D; ss 3AA(2), 14ZZE, 355-1, 355-10, 355-20, 355-15(c), 355-15(c)(ii), 355-50(1), 355-150, 355-155, 355-155(b), 355-160, 355-165, 355-170 Federal Court Rules 2011 (Cth) rr 2.32, 2.32(2), 2.32(3), 2.32(3)(a), 2.32(3)(b), 2.32(4) Explanatory Memorandum, Taxation Administration Act 1953 (Cth) Cases cited: A v Federal Commissioner of Taxation [2016] FCA 1307 ASE16 v Australian Securities and Investments Commission [2016] FCA 321 Buckeridge v Commissioner of Taxation [2013] FCA 897; 95 ATR 670 Commonwealth of Australia v Kupang Resources Pty Ltd [2022] NSWCA 77 Deputy Commissioner of Taxation v Hawkins [2016] FCA 164; 341 ALR 255 Deputy Commissioner of Taxation v Shi (No 2) [2019] FCA 503 EBJ21 v EBO21 [2021] FCA 1406, Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507 Harman v Secretary of State for Home Department [1983] 1 AC 280 Hearne v Street [2008] HCA 36; 235 CLR 125 Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 Keyzer v La Trobe University [2019] FCA 646 KPTT v Commissioner of Taxation [2021] FCA 464 Kupang Resources Pty Ltd v Commonwealth of Australia [2021] NSWSC 1580 Oreb v Australian Securities and Investments Commission [2016] FCA 321; 112 ACSR 36 Oreb v Australian Securities and Investments Commission [2016] FCAFC 192; 247 FCR 316 Poole v Australian Pacific Touring Pty Ltd [2019] FCA 1459; 139 ACSR 264 Porter v Australian Broadcasting Corporation [2021] FCA 863 Seven Network v Cricket Australia (No 2) [2021] FCA 1032 Seven Network v Cricket Australia (No 3) [2021] FCA 1303 Tech Mahindra Limited v Commissioner of Taxation (No 2) [2016] FCAFC 136 The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377 Division: General Division Registry: New South Wales National Practice Area: Taxation Number of paragraphs: 90 Date of hearing: 14 February 2022 Counsel for the Applicant: Ms K Petch Solicitor for the Applicant: Craddock Murray Neumann Counsel for the Respondents: Mr B Sullivan SC Solicitor for the Respondents: PricewaterhouseCoopers Counsel for The Age Company Pty Ltd Mr E J Batrouney Solicitor for The Age Company Pty Ltd Mr S White of Nine Publishing ORDERS NSD 697 of 2021 BETWEEN: DEPUTY COMMISSIONER OF TAXATION Applicant AND: PHILLIP DONG FANG LEE First Respondent XIAO BEI SHI Second Respondent BAO LIN PTY LTD ACN 162 411 681 (and others named in the Schedule) Third Respondent order made by: BROMWICH J DATE OF ORDER: 3 November 2022 THE COURT ORDERS THAT: 1. The interlocutory application dated 2 December 2021 be dismissed. 2. The request seeking access to the two affidavits of Mr Yi Deng sworn 15 July 2021 be granted. 3. Order 2 be stayed until 4.00 pm on 17 November 2022, the date of the next case management hearing in this proceeding. 4. Any application for costs or for any further stay of order 2 be made at the case management hearing on 17 November 2022 or such other date as may be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMWICH J: 1 This is the determination of an interlocutory application made by the respondents under s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) for suppression and related orders in relation to the entire court file for this proceeding, and thereby for a journalist's request for access to documents on the court file to be refused. The suppression application is supported by an affidavit of the second respondent, sworn 2 December 2021. The following orders are sought: [1] The Court's file in this matter is to be marked suppressed. [2] Access to the Electronic Court File within the Court is to be limited to the chambers of Bromwich J and the Senior Co-ordinator responsible for his Honour's docket. [3] No access is to be granted to any document filed in this proceeding to any person apart from the parties or those representing them in these proceedings. [4] The following information is not to be published if it relates to this matter and is: a. information that comprises evidence or information about evidence; or b. information obtained by the process of discovery; or c. information produced under a subpoena; or d. information lodged with or filed in the Court. [5] The First Respondent to Eighth Respondent are to be identified as 'A', 'B', 'C', 'D', 'E', 'F', 'G' and 'H' respectively in all court documents including the transcript. [6] These orders are made because they are necessary to prevent prejudice to the proper administration of justice. [7] Orders 1 to 4 expire when the First Respondent commences proceedings under Part IVC of the Taxation Administration Act 1953 (Cth) in this Court. 2 On 15 July 2021, the applicant, the Deputy Commissioner of Taxation, filed an originating application seeking judgment against the first respondent in the sum of $278,561,080.63, a general interest charge on that amount, and freezing orders over certain assets of the respondents. The originating application was supported by two affidavits of Mr Yi Deng, both sworn 15 July 2021 (Deng affidavits). 3 On 15 July 2021, freezing orders were sought and obtained ex parte from the duty judge, Abraham J, relying upon the Deng affidavits which were read, written and oral submissions, and a chronology. On any view, the making of a freezing order is a substantial exercise of judicial power, ordinarily requiring open justice principles to be observed, including as to the basis upon which such a serious and invasive order is made, with the necessarily serious allegations that are commonly involved. That is so whether a proceeding takes place in a courtroom with the capacity of members of the public to be in attendance, or when it takes place when no-one other than one or more parties are present, either in a courtroom or online. 4 Subsection (1A) was added to s 17 of the FCA Act on 18 February 2022, making it express that the exercise of jurisdiction in open court includes it taking place online where it is made accessible to the public by way of video link, audio link or other appropriate means. It follows that the ex parte hearing of the Deputy Commissioner's application for a freezing order conducted online before that legislative change was arguably not a hearing in open court, despite the fact that it may have been theoretically possible for a member of the public to have attended online. 5 Open court is a means of advancing the objective of open justice. A hearing in which affidavit evidence is read and the substantial exercise of judicial power takes place otherwise than in open court only makes it more important that the principle of open justice be advanced, as addressed in the authorities discussed below. If anything, a proceeding that is not conducted in open court, or even in open court either ex parte or inter parties but with no-one else present, makes the adherence to the open justice principle even more important as a means by which the administration of justice is able to be made more transparent than it would otherwise be, not just legally, but practically. 6 On 27 September 2021, a journalist with The Age newspaper, Mr Nick McKenzie, made a request for non-party access to the Deng affidavits. As noted above, those affidavits were relied upon by the Deputy Commissioner when commencing this proceeding and when seeking the freezing orders. Mr McKenzie's request was made by filing a request form available on the Court's website. That request, instead of being determined ex parte in chambers as is most commonly the case, was listed to be heard at the same time as the respondents' interlocutory application, initially in December 2021, and subsequently in February 2022. 7 That approach was taken mainly because the respondents were advised by my chambers of the request to give them an opportunity to express any view, and they had responded by objecting to any such access being given upon the basis that: (a) the Deng affidavits were asserted to contain what was described in correspondence as highly sensitive, private and confidential information; and (b) that information in those affidavits was obtained by the use of information gathering powers in the Taxation Administration Act 1953 (Cth) (TAA) so as to be "protected information", such that consideration should be given to whether such on-disclosure was permitted by the provisions for the confidentiality of taxpayer information in Division 355 of Sch 1 to the TAA; and had subsequently foreshadowed and brought the present interlocutory application. Another request for access to the submissions and chronology was not pressed and does not need to be separately considered, although that material is also sought to be the subject of a suppression order. The evidence in support of the application for suppression orders 8 As noted above, the evidence in support of the application for suppression orders is the 2 December 2021 affidavit of the second respondent, who is the wife of the first respondent. The remaining respondents are corporations. The burden of that affidavit may be briefly summarised as follows: (a) she is a director of the third to eighth respondents; (b) under the heading "reputational damage", she deposes to: (i) the commencement of the substantive proceeding on 15 July 2021, and to numerous media reports (copies of which are annexed to her affidavit) that she read from September and October 2021 of the freezing order and Taxation Office (ATO) claims that were made about her and her husband and their assets, business interests and business activities (including aspects that have nothing to do with this proceeding); (ii) reactions to the media reporting that she experienced, including from friends and business associates; (iii) her fears about irreparable reputational damage to her, her family and their businesses; (c) under the heading "financial damage", she deposes to: (i) difficulties that had been experienced with one financial institution, which I note was not as a result of media reporting but as a result of debt enforcement steps that were taken by the ATO independently of, and prior to, the commencement of this proceeding; (ii) concerns about the reaction of other financial institutions if the allegations made by the Deputy Commissioner in this proceeding, that is, as set out in the Deng affidavits, are made public, and the difficulty that may occasion to obtaining funding or making financial investments in Australia. 9 Neither by the second respondent's affidavit, nor by submissions made by the respondents, was there any overt link or nexus advanced between the asserted reputational harm and any consequent harm and thereby the asserted need for a suppression order on the one hand, and the prevention of prejudice to the proper administration of justice on the other. Yet that was the ground for the making of a suppression order in s 37AG(1)(a) of the FCA Act, relied upon, as identified in [6] of the orders sought as set out at [1] above. The case advanced by the respondents was that such harm was of itself, and without more, necessary to prevent prejudice to the proper administration of justice. How and why that was so was never made clear except by reference to the reasons given in one case, namely A v Federal Commissioner of Taxation [2016] FCA 1307 (A v FCT), which I discuss further below, and which, read only on its face, may suggest that is sufficient. Legislative provisions for access to court documents (and related processes), and for suppression orders 10 It is convenient to set out the legislative provisions for access to court documents (and related processes) and for suppression orders, before turning to the competing arguments and case law. Access to Court documents 11 The regime for inspection of documents in a proceeding by a person who is a party and by a person who is not a party is governed by r 2.32 of the Federal Court Rules 2011 (Cth) (Rules), which provides as follows: 2.32 Inspection of documents (1) A party may inspect any document in the proceeding except: (a) a document for which a claim of privilege has been made: (i) but not decided by the Court; or (ii) that the Court has decided is privileged; or (b) a document that the Court has ordered be confidential. (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. Note: Native Title Registrar and Register of Native Title Claims are defined in the Dictionary. (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. Note: For the prohibition of publication of evidence or of the name of a party or witness, see sections 37AF and 37AI of the Act. (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. 12 It can be readily seen from the face of r 2.32 that, in relation to non-party access to documents: (a) the types of documents listed in r 2.32(2) are unrestricted, unless a confidentiality order, suppression order, or non-publication order has been made, as reflected in r 2.32(3); (b) there is no entitlement to inspect a document that the Court has ordered be confidential or the Court has ordered be forbidden from or restricted from publication; (c) there is no prohibition on access in the absence of a confidentiality order, suppression order, or non-publication order, but no prima facie entitlement to access either as for unrestricted documents; (d) by r 2.32(4), a person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect, which applies to affidavits and other evidence and submissions, because they are not listed in r 2.32(2). 13 The means by which a person who is not a party to a proceeding can seek inspection of a unrestricted document listed in r 2.32(2), and/or leave under r 2.32(4) to access a document that is not listed in r 2.32(2) and is therefore not unrestricted, is by completing and filing a form that is available on the Court's website. That is the routine and ordinary process that Mr McKenzie invoked. 14 The above interpretation of r 2.32(2) to (4) is consistent with the procedures for making such a request which are set out in a general practice note issued by the Chief Justice on 25 October 2016, the Access to Documents and Transcripts Practice Note (GPN-ACCS). GPN-ACCS includes the following information that is particularly relevant to this interlocutory application (footnote embedded): 2. GENERAL APPROACH 2.1 The principle of "open justice", including justice being seen to be done and ensuring that nothing is done to discourage the making of fair and accurate reports of proceedings, is an overarching principle which guides the Court in its judicial and procedural operations. This principle, which extends to questions of access to Court documents, is reflected in the Federal Court of Australia Act 1976 (Cth) [See s 17 – Exercise of jurisdiction in open court and in chambers.] ("Federal Court Act") and Federal Court Rules, particularly r 2.31 "Custody of Documents" and r 2.32 "Inspection of Documents", and other rules in specialist areas (eg. bankruptcy, corporations, admiralty or criminal proceedings). 2.2 However, the principle of open justice is not absolute, and must be balanced with the need of the Court to act at all times in the "interests of justice" and avoid prejudice to the administration of justice or avoid other potential harm. 2.3 "Interests of justice" is a broad concept that gives rise to many matters that the Court must consider when assessing a Request, including the interests of all parties (eg. questions of confidentiality and privacy), the community, the application of any Commonwealth law, and any reasonably necessary requirements to ensure the just and fair administration of justice. Further, the Court must consider whether a Request may be unreasonably burdensome on the administration of justice. 2.4 This open justice approach requires parties to be mindful that (subject to the requirements of the Federal Court Act, the Federal Court Rules and the discretion of the Court) upon a Request, any document that they have filed in the Court may potentially be made available to any member of public, including the media. … 4. ACCESS TO DOCUMENTS GENERALLY … Request by a Non-Party 4.5 Subject to any order or direction of the Court and certain exceptions (regarding confidentiality and restriction from publication), a non-party may inspect the "unrestricted" documents set out in r 2.32(2) of the Federal Court Rules. These include documents such as originating applications, pleadings (or particulars of a pleadings), certain formal notices and reasons for judgment. 4.6 Any document in a proceeding falling outside the categories set out in r 2.32(2) of the Federal Court Rules is, essentially, a "restricted" document. A non-party requires the leave of the Court to inspect such documents (r 2.32(4) of the Federal Court Rules). Lodging a Request 4.7 Depending on whether an Access Applicant is a party or a non-party, the respective Request form available on the Court's website should be used to make the Request. 4.8 The Court prefers to receive a Request electronically, via email. Information about how to make a Request by email or how to otherwise contact the relevant registry is available on the Court's website. Consideration of a Request 4.9 Some Requests are not straightforward, and the Court may require further information from an Access Applicant or certain steps to be taken by the Access Applicant before making a decision about the Request. It is therefore in the interests of the Access Applicant to include important relevant information in the Request, so as to minimise delays in considering the Request. 4.10 In considering a Request, the Court will consider a range of factors, including (but not limited to): (a) whether the Access Applicant is a party or non-party; (b) whether the documents fall initially within a restricted or unrestricted category; (c) the context surrounding, and purpose underpinning, the Request; (d) the nature of the documents sought (eg. whether the documents have been admitted into evidence or read out in open court, whether the documents are confidential, restricted from publication, the subject of legal privilege, contain scandalous material etc); (e) the principles set out in Part 2 of this practice note, including whether the Request may result in an undue burden on the Court. … 15 There is no specific power identified to make a confidentiality order of the kind contemplated by r 2.32(3)(a), and so it turns on powers that are readily implied to enable a court to control its processes, while the power to make a suppression order of the kind contemplated by r 2.32(3)(b) is in s 37AF, as part of the regime for suppression and non-publication orders in Pt VAA, Division 2 of the FCA Act. That regime is confined and considerably more limited than the access regime in r 2.32, as detailed below. Suppression and non-publication orders are usually only required, and therefore capable of being "necessary", at a time when information is going to be adduced in evidence in public, or otherwise made public: Poole v Australian Pacific Touring Pty Ltd [2019] FCA 1459; 139 ACSR 264 at [22]. The immediate need asserted by the respondents arises from the non-party access request made by Mr McKenzie, which will have the practical effect of making the Deputy Commissioner's allegations public if access is granted, and affected by the fact that this proceeding may never proceed to trial, so as to give the respondents an opportunity to address any allegations made in the Deng affidavits. Suppression orders under the Federal Court of Australia Act 1976 (Cth) (FCA Act) 16 While Pt VAA of the FCA Act deals with both suppression orders and non-publication orders, this application is only for a suppression order. The respondents declined to indicate any parts of the Deng affidavits that could have been redacted, and thereby be made the subject of a non-publication order to support such redactions. Whatever the reasons for that stance, which likely included the time and difficulty in isolating parts of concern from material that was not of concern, the application is therefore all or nothing. I was not taken to the Deng affidavits and no issue was taken with the general description of what was contained in them in the second respondent's affidavit. I have not needed to refer to their contents in these reasons. 17 The grant of the remedy of the suppression orders sought by the respondents is limited by the regime in the FCA Act for making such orders. In particular: (a) s 37AE provides for the primacy 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. (b) s 37AG provides limited and confined grounds for making a suppression or non-publication order, with each ground effectively requiring the applicant for such an order to demonstrate that it is "necessary": 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. 18 As noted above, the respondent's interlocutory application requires them to establish that the suppression order sought is "necessary to prevent prejudice to the proper administration of justice". As the authority considered below makes clear, that is a high threshold, necessary to give primacy to open justice. 19 In Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507, Mortimer J suggested at [8] that it would not be appropriate to make an order engaging the terms of r 2.32(3) in relation to inspection where the Court was not satisfied that the power in s 37AF(1) of the FCA Act should be exercised on the basis of one of the grounds in s 37AG(1). Her Honour was of the view that the content of the term "confidential" in r 2.32(3) should be construed commensurately with the grounds set out in s 37AG, read with s 37AE and s 37AF. While I can see the rationale for that consistency in interpretation, I do not think the r 2.32(3)(a) should be read as restrictively as that, although the Court must be astute to ensure that confidentiality orders are not used to bypass the strictures of open justice or the demanding test for the making of a suppression or non-publication order . 20 As I sought to explain in Poole at [22], there is an interplay between the obligation identified by the High Court in Hearne v Street [2008] HCA 36; 235 CLR 125), confidentiality, open justice and suppression and non-publication orders. The Hearne v Street obligation is a refinement of what was previously referred to as the Harman v Home Office implied undertaking, deriving its name from the English case of Harman v Secretary of State for Home Department [1983] 1 AC 280. There is room for confidentiality orders to be made at the point prior to, and even for the purposes of, a body of evidence being placed in the public domain, having regard to the interests of justice, and for redactions to be made to such material when, for example, that is shown to be "necessary to prevent prejudice to the proper administration of justice", per that ground in s 37AG(1)(a) of the FCA Act, or one of the other grounds of necessity is met in s 37AG(1)(b) to (d). 21 The factual substratum for the suppression orders that the respondents seek are set out in their written submissions in chief, and have not been disputed. It is convenient to reproduce them: [8] The First and Second Respondents are closely associated with a group of companies that hold a number of business and real estate assets in New South Wales. A necessary part of the Respondents' dealings involve financial dealings with third party financial institutions, including obtaining funding from financial institutions. [9] The revelation of the fact that the Respondents are involved in a substantial dispute with the Commissioner has already had a negative impact on the Respondents: (a) As set out in [5]-[7] of the Affidavit, the publicity from the proceedings has already negatively impacted the First and Second Respondents' reputation and relationships with community stakeholders in the area around property that is owned by the Fifth Respondent in which [the second respondent] owns 100% of the shares. (b) As set out in [8]-[11] of the Affidavit, the release to the news media of material by the Applicant has and will give rise to reputational damage to [the second respondent], her family and their associated businesses. (c) Credit Suisse informed [the second respondent] that it was conducting an internal review following the receipt of the garnishee notices and freezing orders relating to the current proceedings: Affidavit at [13]-[15]. Credit Suisse subsequently sent a letter to [the second respondent] terminating a $30,000,000 facility, which includes requiring her to repay approximately $20,000,000 that had been drawn under the facility: Affidavit at [16]. Credit Suisse has also informed the Second Respondent's son that they will close his account on 27 January 2022: Affidavit at [17]. It was necessary for [the second respondent] to sell shares in Apple Inc, National Australia Bank Ltd, Lynas Rare Earths Limited and 29Metals Limited as well as 10,000 ounces of silver to raise funds to repay the funds outstanding under facility: Affidavit at [18]-[19]. (d) [The second respondent] is also concerned that NAB, Westpac, HSBC and ANZ, which she holds accounts with, may also terminate her accounts if there is further publicity as a result of the material that the ATO has adduced being released to the news media. Ms Shi expects that this would make it difficult for her to obtain funding from those financial entities and from other lenders, or to make financial investments in Australia: Affidavit at [20]. [10] The allegations against the First Respondent include allegations of serious misconduct. He has not yet had an opportunity to respond to those allegations in these proceedings, and is unlikely to be able to respond in these proceedings if they are (as seems probable) resolved by agreement between the Commissioner and the Respondents. [11] The inclusion of the Second to Eighth Respondents in the proceedings commenced by the Commissioner has and will result in them being negatively impacted. Although the First Respondent is not a director of any of the group entities that engage in these transactions, his position within, and his relationship with, the group as a whole means that he is sufficiently closely associated such that reputational damage to him will adversely affect the commercial interests of the group. 22 The respondents contend that the orders sought in their interlocutory application are necessary to prevent prejudice to the proper administration of justice, relying upon s 37AG(1)(a) in two ways: (a) damage to their reputation and thereby damage to their commercial interests by the release of serious allegations to which they have not been able to respond in these proceedings (commercial damage argument); and (b) upon the alternative basis that the object of the confidentiality regime with respect to the "protected information" of taxpayers under Div 355 of Schedule 1 to the TAA, is that such information should only be disclosed in the specific circumstances permitted by that Division, and that granting access under r 2.32 is not such a circumstance, such that suppression orders as sought would be consonant with the statutory objects of Div 355, whereas the provision of access would result in the commission by some entity of an offence pursuant to s 355-155 of Sch 1 to the TAA (TAA argument). 23 The TAA argument was originally advanced outside the terms of the interlocutory application as being a reason why Mr McKenzie's non-party access request should be refused because release of the affidavits sought would be inconsistent with those statutory objectives. 24 It can readily be seen that the underlying interest that the respondents, and in particular the first and second respondents, who are the only natural person respondents, seek to protect is reputational and financial in nature. The second respondent's affidavit goes no further than that. She places reliance on media reporting on the tax office claims and freezing orders obtained by the Deputy Commissioner that has already taken place and the adverse impact that has already had upon her and her husband, the first respondent, by them being named, and their reputation and thereby their business and financial interests, deposing to the damaging effect of further detail being released via access being granted to the Deng affidavits. The respondents logically and correctly contend that if the suppression order they seek is made, Mr McKenzie's request must be refused. That conclusion directly flows from the terms of r 2.32(3)(b). 25 The Deputy Commissioner's involvement in the respondents' application and seeking of alternative relief was confined to assisting the Court with written submissions addressing the terms and effect of Subdivision 355-C of Schedule 1 to the TAA. The Deputy Commissioner neither consents to, nor opposes, the suppression orders sought. 26 Counsel appeared for The Age and made written and oral submissions opposing any suppression order being made, and pressing Mr McKenzie's access request. Suppression order case law 27 In Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 the High Court considered the operation of s 50 of the FCA Act, which at that time provided: The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. 28 All five justices of the High Court (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) said (footnotes omitted): [30] As it appears in s 50, "necessary" is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth "suggests Parliament was not dealing with trivialities". Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) "the administration of justice" spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest. [31] It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some "balancing exercise", the order appears to have one or more of those characteristics. 29 In The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377, Allsop CJ, Wigney and Abraham JJ said, in the context of refusing an application for the continuation of a suppression order over the Full Court's substantive judgment due to an impending criminal jury trial (emphasis in original): [8] Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 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]; Rinehart v Rinehart at [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; [2010] HCA 21 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; [2012] NSWCCA 125 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 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 Limited (No 3) [2012] FCA 1430 at [21]. 30 In A v FCT, Perram J granted a suppression order in circumstances similar to the present. His Honour said: [6] The applicant is closely associated with a group of companies providing services in a particular industry. The industry is international in nature, and the group has members in a number of nations. There are other businesses providing similar services in the industry, albeit these are few in number. There was evidence before me from the group's Chief Executive Officer that revelation of the fact that the applicant was involved in a dispute with the Commissioner of Taxation in which it was alleged that he had engaged in fraud and evasion was likely to have three effects: (a) a negative impact on the reputation of the applicant; (b) a negative impact on the business interests of the group of companies with which the applicant is associated; and (c) industry participants with which the group transacts its business would be less likely to do business with it in the future. [7] The business in which the group is involved is substantial. The industry in which it operates is also large and important. There was evidence that the group's clients commonly ask, during the negotiations leading to transactions with it, whether any of its directors are presently being accused of any crime. Although the applicant apparently is not a director of any of the group entities that engage in these transactions, his position within, and his relationship with, the group as a whole means that he is sufficiently closely associated with it that it can be said that reputational damage to him will accrue to it. [8] I accept these matters. I also accept that: (a) the allegations against the applicant involve allegations of serious misconduct in response to which he has yet to adequately put his side of the story and have it considered; (b) in the present proceeding he will have no opportunity to put his side of the story, as the issues will be confined to technical questions concerned with whether the notices should be set aside; (c) there is a real risk that the revelation of the existence of this dispute will cause the group to lose customers to its competitors; and (d) there is a certainty that the reputation of the applicant will be damaged. [9] At the moment, the whole dispute between the applicant and the Commissioner is subject to statutory requirements of confidentiality. The tax dispute has not yet found its way to this Court as an appeal under Pt IVC of the Taxation Administration Act 1953. The present action, in a sense, relates to a procedural question arising as part of the taxation assessment process which, leaving aside proceedings of the present kind, is ordinarily required to be conducted in private. [10] The grounds for making a confidentiality order are set out in s 37AG of the FCAA, which is as follows: 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. Only 1(a) is relevant. [11] The principles governing whether and, if so, in what circumstances an order should be made suppressing publication of certain aspects of a proceeding are well-known. They were usefully collected by Jacobson J in Rinehart v Rinehart (2014) 320 ALR 195 at [21]-[31]. There is no need to set them out, but it should at least be said that the order must be 'necessary' to prevent prejudice to the administration of justice (which is a high standard) and that the principle of open justice is a fundamental aspect of the system of justice in Australia. In itself, therefore, embarrassment is not a reason to make an order, except in criminal cases of a sexual nature. [12] Apart from that circumstance, as Jacobson J observed in Rinehart (at [28]), the reputational distress which litigation often brings about is a distress which happens in an arena where the parties are heard and in which each may make a response to the other. [13] But in a case such as the present this will not occur. If limits are not placed on the extent to which this proceeding may be publicised, then the allegations against the applicant will be placed in the public domain. But this will occur in circumstances where the applicant will have had no opportunity to respond, because the correctness of the Commissioner's views will not be a matter calling for resolution in the present proceeding. Furthermore, the revelation of the dispute is likely to cause commercial damage to the group. Finally, it is not without relevance that the taxation process currently in train is required by statute to be conducted in private, although by itself this would perhaps not be such a strong point. [14] Rather similar circumstances led Markovic J to conclude that her Honour should make suppression and anonymisation orders in ASE16 v Australian Securities and Investments Commission [2016] FCA 321 at [86]-[94]. I agree with her Honour's approach to the issue and propose to follow it. The key aspects are the commercial damage which will accrue to the group, and the inability of the applicant usefully to respond to the Commissioner's fraud and evasion opinions in the present proceeding. [15] In those circumstances, I conclude that it is necessary for the applicant's identity and that of the group to be suppressed to prevent prejudice to the proper administration of justice. It seems to me that these orders should remain in place until any Part IVC proceedings in this Court are commenced or the expiration of ten years, whichever comes first. I will list the matter for further directions in two years' time to review the matter. The orders will be expressed to be made as s 37AG(2) requires, on the basis that they are necessary to prevent prejudice to the proper administration of justice. 31 In ASE16 v Australian Securities and Investments Commission [2016] FCA 321, cited and relied upon by Perram J in A v FCT at [14], reproduced above, Markovic J drew a connection between necessity and the proper administration of justice by the following reasoning: [90] The task before me is to determine whether it is necessary to make the order sought to prevent prejudice to the proper administration of justice. In doing so I must take into account the objective set out in s 37AE of the FCA Act that a primary objective of the administration of justice is to safeguard the public interest in open justice. [91] In Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 at [30] Foster J, after noting that the threshold which a suppression order must satisfy is high, observed that "[m]ere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice". That is not this case. The evidence before me is that the applicants fear more than mere embarrassment or inconvenience. They fear that as a result of their association with these proceedings their commercial reputation will come under scrutiny, their competitors will gain a competitive advantage and their business will be affected. [92] The process that ASIC follows under s 206F is private. It is only when the process is complete, after the person on whom a notice is served has had an opportunity to be heard, and ASIC has made a determination that disqualification is justified pursuant to s 206F(2) and has served the requisite notice on the person the subject of such a determination pursuant to s 206F(3) that the process becomes public. That is because ASIC is required by s 1274AA of the Act to maintain a register of persons who have been disqualified pursuant to, among others, s 206F. But for these proceedings the fact of service of the Notices would not be a matter of public record. [93] It is not in the interests of the administration of justice that trade competitors should get an advantage, or conversely that the applicants should be disadvantaged, by the very fact of these proceedings. These proceedings will not finally determine the outcome of the process under s 206F of the Act. That is so despite the conclusion I have reached on the substantive application that is before this Court in relation to the interpretation of s 206F(1)(a)(ii). It is in the interests of the administration of justice and in my view it is necessary to prevent prejudice to the proper administration of justice that an order be made pursuant to s 37AF of the FCA Act restricting the publication of the names of the applicants, the companies of which they were formerly officers and the evidence relied on by the parties in the proceedings. 32 While Markovic J did refer to reputational harm, this was linked to the proper administration of justice not being a vehicle for unfair advantage, remembering that the applicant for the relief sought by way of a suppression order was also the applicant bringing the proceeding and seeking to vindicate a right. It was prejudicial to the proper administration of justice that he be dissuaded from, or disadvantaged in, doing so. It seems apparent that reputational harm and what might flow from that alone would not have sufficed, yet that is the case now advanced by the respondents. 33 The limitations in relying upon ASE16 do not stop there. That decision was subsequently published and reported as Oreb v Australian Securities and Investments Commission [2016] FCA 321; 112 ACSR 36 after the suppression orders made were set aside by the Full Court in Oreb v Australian Securities and Investments Commission [2016] FCAFC 192; 247 FCR 316 (Oreb Full Court). There are some similarities between the orders that were set aside and those presently sought by the respondents in their present application, and it is in any event necessary to know what their terms were in order to understand the Full Court's reasons below, and the exposition of the limits to making suppression orders. The relevant orders were: [1] Information tending to reveal the identity of the applicants including the companies with which they were and are associated not be disclosed by publication or otherwise. [2] The affidavits: (a) affirmed by Jonathan Edward O'Loughlin on 2 September 2015; (b) sworn by the second applicant on 23 September 2015; and (c) affirmed by Jennifer Parbery on 23 September 2015; not be disclosed or made available for inspection to any person other than the respondent or its legal representatives. [3] Orders 1 and 2 shall operate until 30 September 2016. [4] Orders 1 and 2 are made on the ground that non-disclosure of the applicants' identity, including the companies with which they were and are associated, and of the evidence is necessary to prevent prejudice to the proper administration of justice. 34 In Oreb Full Court, Rares, Davies and Gleeson JJ held (emphasis in original): [16] In our opinion, the suppression orders that her Honour made, with or without the modifications that the appellants seek us to make in this appeal, were beyond the Court's jurisdiction to make and should be set aside. [17] First, order 1 was cast in terms that are too broad, as the order is not confined to the facts or circumstances of the proceeding below but binds anyone from disclosing the identity of the appellants and companies with which they were associated. An order that has such an operation is not within the power of the Court to make: see Police Tribunal 5 NSWLR at 477, A-C where McHugh JA said, Glass JA agreeing: … an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient … Courts have no general authority … to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative – not judicial-power. (emphasis added) Thus, the primary judge had no jurisdiction to make order 1 in the form that her Honour did. [18] Secondly, in any event, the orders made by the primary judge went beyond what was necessary to protect any legitimate interests of the appellants in the administration of justice. By the time of the making of the suppression orders, the appellants' names and evidence had been publicly disclosed in connection with the proceedings without any prior limitation on their publication. In those circumstances, the suppression orders could not have been necessary to secure the proper administration of justice. [19] Her Honour's reasons demonstrated that, at the time she made her suppression orders on 1 April 2016, four months had passed since the hearing, the names of the appellants had been publicly disclosed in Court lists on at least two occasions, and appellants' evidence had been read in open Court without any confidentiality order. In those circumstances, there could be no necessity, months later, to make an order suppressing or prohibiting publication of the appellants' identity or their connection to the proceedings. That "secret", if it ever had been a secret, was out and had been out for some time. [20] In Eastman 9 ACTLR 178, the Full Court discussed the powers of a court to deal with a situation of the kind considered by Gleeson CJ, Clarke and Sheller JJA in R v Smith (1996) 86 A Crim R 308 at 313. In R v Smith, during committal proceedings before a magistrate, the names of two police informers were disclosed in open court, prompting an application for an order that their true identities be concealed. The magistrate refused the order but on appeal, the Court of Appeal held that as the informers' true identities were protected by public interest immunity, the suppression order was necessary for the administration of justice. In Eastman 9 ACTLR at 236 [188], the Full Court said: It follows that the Full Court has power to protect from further disclosure information or a document that has been disclosed but that properly attracts public interest, or matter of state, immunity, although whether and to what extent it can or will do so will depend on the extent or degree of the existing disclosure. Different considerations will arise if the information has become a matter of public knowledge the subject of widespread publication: Smith 86 at 313. It must always be necessary to make such an order in the interests of justice to justify the exercise of the power. Ordinarily, once the secret is out to the point that it is beyond the capacity of the Court to control its disclosure, it will be difficult, if not impossible, to satisfy the jurisdictional threshold of necessity in the interests of justice to make a suppression or non-publication order: cf Attorney-General v Leveller Magazine Ltd [1979] AC 440 eg at 468F-G per Lord Russell of Killowen. (emphasis added) [21] The fallacy behind the appellants' submissions is demonstrated by the decision in Leveller [1979] AC 440, once it is appreciated that their names had been already publicly disclosed in connection with the proceedings well before her Honour made the suppression orders. The file numbers of proceedings, also appear in the Court's lists so that a subsequent pseudonym applied to a party's name would not prevent, in the absence of evidence to the contrary, someone searching earlier Court lists to make the connection. Any member of the public, who had seen the Court lists, or who had been present in open Court when the proceedings had been before the primary judge, could have made the connection between the appellants and the proceedings below. Moreover, the appellants' identities and names are matters of public record in connection with their relationships to the companies in liquidation the subject of the notices. [22] Her Honour's reasons referred to the information already in the public domain that connected the appellants to the proceedings below. As a result, in our opinion, in those circumstances the orders that operated to suppress their identity and that of companies with which they were associated as well as the whole of their affidavits in the proceedings that had been read in open Court months before, could not have been necessary to protect the administration of justice. Here the publication of the appellants' names in the Court lists and the substance of their evidence had occurred in open Court without a suppression order. Their names had been used publicly in association with the proceedings in Court and this had been a matter of public record from the inception of the proceedings. [23] In our opinion, those publications having happened without any steps being taken to suppress the appellants' names at the inception of the proceedings, meant that it would have been very difficult to argue later for any form of suppression order in accordance with the principles of open justice: Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed; Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664-665 [30]-[34], 667 [42]-[43] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. [24] In addition, in any event, the appellants' past commercial activities by which they had been associated with companies that had gone into liquidation were matters of public record, on which any members of the public, including commercial competitors, could comment. No doubt some deficiencies in the administration of one or more companies in liquidation with which the appellants were associated were publicly known, including through the liquidators' reports or by reason of non-confidential information that creditors, who were owed money, may have had or made public themselves. This meant that there was no necessity to make suppression orders of the kind that her Honour made or as the appellants now seek in this appeal. 35 The reasoning in Oreb Full Court casts substantial doubt upon the approach taken by Perram J in A v FCT of apparently relying upon no more than reputational harm and the economic consequences flowing from that in circumstances in which there was no apparent suggestion of this impeding the bringing of proceedings then or in a future case, nor any other link to the proper administration of justice identified. 36 In Porter v Australian Broadcasting Corporation [2021] FCA 863, referred to in the quote from Seven Network v Cricket Australia (No 2) [2021] FCA 1032 at [13], reproduced at [46] below, Jagot J observed: [83] It is also appropriate to say something about the interactions of the various Court Rules and the Court Act [Federal Court of Australia 1976 (Cth)]. The Court Act is clear – a primary objective of the administration of justice is to safeguard the public interest in open justice: s 37AE. The fact that this is "a" not "the" primary objective of the administration of justice reflects the fact that there are other primary objectives, including those in s 37M of the Court Act to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. [84] Sections 37AE-37AL of the Court Act recognise that in order to do justice it is sometimes necessary that information filed or given in a proceeding not be disclosed or published. This is because justice will be undermined if people are not free to seek the exercise of judicial power confident that, amongst other things, their safety and the safety of others will not be compromised, that national or international security will not be prejudiced, and that the administration of justice will not itself be prejudiced: s 37AG(1). The administration of justice may be prejudiced in a variety of ways. If, for example, people cannot come to a court confident that some kinds of information can be protected from disclosure if necessary (such as commercially confidential information valuable to a person or a third party, or sensitive information about a person's health, or personal information about parties or third parties of no more than prurient interest to others) then public confidence in and access to justice may itself be undermined. [85] The purpose of the principle of open justice has been said to be at least two-fold, to "enable public scrutiny of the way in which courts decide cases" and "to enable the public to understand how the justice system works and why decisions are taken": Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629 at [42]-[43]. That said, there are well-recognised cases in which the overall administration of justice requires the suppression of some information from the public, reflected in s 37AG(1) of the Court Act. In Dring at [46] these well-recognised categories were said to include "national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality". [86] While "mere embarrassment, inconvenience or annoyance will not suffice to ground an application for suppression or non-publication" (Keyzer at [29]) and the principle of open justice, that justice must not only be done but be seen to be done, is fundamental (Scott v Scott [1913] UKHL 2; [1913] AC 417), the principle has never been absolute. The principle has always yielded to contrary necessity (an appropriately high bar specified in s 37AG(1), in contrast to the mere convenience or preference of parties). The requirement of "necessity" was explained in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [31] by contrast to the notion that such an order would be "convenient, reasonable or sensible, or [would] serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics". This approach may be contrasted with that in the United Kingdom where the person seeking access to documents must "show a good reason why [access] will advance the open justice principle": Dring at [47]. Rule 2.32(2) of the Court Rules, in contrast, assumes that the principle of open justice is advanced by public access to the nominated document, subject to contrary order as identified in r 2.32(3). 37 Particular weight needs to be paid the observations by Jagot J in Porter at [85] concerning the purpose of open justice in the context of freezing orders being obtained in reliance upon affidavits that were read, albeit ex parte. 38 Jagot J had earlier said in KPTT v Commissioner of Taxation [2021] FCA 464 at [7], also referred to in Porter, with a particular emphasis on subpara (d): The relevant principles were identified in Rinehart v Rinehart [2014] FCA 1241; (2014) 320 ALR 195 at [21]-[31] (cited with approval in The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 at [8]), and can be summarised as follows: (a) orders made under s 37AG must be "necessary" to prevent prejudice to the administration of justice and thus should only be made in exceptional circumstances; (b) the Court's departure from open justice can only be justified where its observance would frustrate the administration of justice or a public interest for whose protection Parliament has modified the open justice rule; (c) the primary objective of the administration of justice is to safeguard the public interest in open justice; (d) publication can only be avoided where necessity compels departure from the open justice principle; (e) the entitlement of the media to report on court proceedings is a corollary of the right of access to the court by all members of the public; (d) parties must accept the damage to their reputation, and the possibility of consequential loss, which may be inherent in being involved in litigation; and (e) there are exceptions to the principles of open justice, such as cases involving blackmail or disclosure of information that would seriously affect the commercial value of the subject matter by revealing information to competitors. 39 Recently in Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160, Rares, Perry and Hespe JJ observed: [27] Considerations of embarrassment, convenience or personal sensitivity to the publication of personal and often very private circumstances given in evidence or revealed in the course of a proceeding in open court, of themselves, cannot justify or support the exercise of any inherent or implied power of a court to suppress or prohibit the publication of those matters. None of the grounds in s 37AG(1) for a statutory suppression or non-publication order refers to such a basis other than, perhaps, the ground in s 37AG(1)(d) (which, however, only applies in a criminal proceeding). The reason that considerations of embarrassment, convenience or personal sensitivity are not relevant to a Court's inherent and statutory powers to derogate from the principle of open justice is that the principle is a fundamental condition for the exercise of every court's jurisdiction, subject to any common law or statutory exception. As French CJ, Gummow, Hayne, Heydon and Kiefel JJ said in Hogan 240 CLR at 664 [31] in respect of an analogue of s 37AF (and see too: R v Tait (1979) 46 FLR 386 at 404 per Brennan, Deane and Gallop JJ and The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216 at 220–223 [18]–[29] per Rares J): It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some "balancing exercise", the order appears to have one or more of those characteristics. (footnote omitted) [28] Thus, at common law, subject to very limited exceptions, a court has power to make an order derogating from the law's insistence that it exercise its jurisdiction in open court in accordance with the principle of open justice only where the public disclosure of evidence or other matter, or the identity of a party to, or a person involved in, a proceeding would frustrate the administration of justice. In Scott [1913] AC at 437–438, Viscount Haldane LC instanced that exceptions to this principle include the wardship and lunacy jurisdictions as well as the protection of trade secrets and confidential information. [29] The Court may only depart from hearing a proceeding in open court in accordance with the principle of open justice where such a course is necessary so as to enable it to do justice. The paramount consideration as to the court's power to prohibit or restrict publication, or exclude the public, in any particular situation is whether justice cannot be done in any other way: Scott [1913] AC at 438; cf Hogan v Hinch (2011) 243 CLR 506 at 552–553 [87]–[88] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 40 It is therefore critical that a connection be made between the asserted necessity, and the prevention of prejudice to the proper administration of justice. Both ingredients and a genuine connection between them are essential. The express terms of s 37AG(1)(a) demands no less. 41 A possible example of a situation meeting the requirements of s 37AG(1)(a) referred to in the authorities quoted above is when a failure to make such an order will adversely affect the willingness of litigants in a like position to be candid in the future, so as to justify suppressing commercial in confidence material that collaterally protects the administration of justice in that way, noting that this was never a feature of the present case. The concern is with adverse allegations and the effect that them becoming public might produce. 42 Yet the freezing order is an exercise of a most invasive judicial power. There is a particularly strong interest of open justice of the kind identified by Jagot J in Porter of enabling public scrutiny of the way in which it was decided to make such an order, and to enable the public to understand how the justice system works in this respect and why that decision was made. There being no balancing of competing interests involved, it was for the respondents to establish that it was necessary in the proper administration of justice that this interest be overridden. Commercial damage argument 43 In relation to the commercial damage argument, the respondents rely upon A v FCT, quoted at length above at [30], in which Perram J made suppression orders in similar circumstances, and in particular upon his Honour's reasoning, which they accurately enough characterise as follows, submitting that the same reasoning and outcome should apply to them: (a) at [6]: revelation of the fact that the applicant was involved in a dispute with the Commissioner in which it was alleged that he had engaged in fraud and evasion was likely to have a negative impact on the reputation of the applicant. The same matter arises here; (b) at [8] and [13]: the reputation of the applicant would be damaged, and the allegations against the taxpayer included contentions of serious misconduct to which the taxpayer had not had an opportunity to respond, and was unlikely in those proceedings to have an opportunity to respond. There was a real risk of commercial damage to the taxpayer; (c) at [9] and [13]: the dispute between the taxpayer and the Commissioner was at a stage (the objection process) where it was required by statute (Division 355 of Schedule 1 to the Taxation Administration Act 1953 (Cth) (TAA)) to be conducted in private. The present circumstances are at a similar stage, in that the First Respondent, Mr Lee, has lodged notices of objection against the Commissioner's assessments. 44 The respondents also rely upon the granting of a suppression order in Tech Mahindra Limited v Commissioner of Taxation (No 2) [2016] FCAFC 136 (Robertson, Davies and Wigney JJ), following judgment by the Full Court. The respondents characterise the basis of the decision as being the prevention of damage to the taxpayer's commercial interests if certain information was disclosed. That is something of an oversimplification of the basis on which the orders were made, such that it is best to reproduce Tech Mahindra at [10]: The substance of these two affidavits concerned what was said to be damage to the appellant's commercial interests if the information which was highlighted, a small fraction of the original claim, fell into the hands of the appellant's competitors. In relation to the historic nature of the material, the second affidavit stated that even though the highlighted information related to the year ended 30 June 2008, the appellant considered that information as commercial-in-confidence information as all but 41 named customers remained customers of the appellant and, it was stated, any competitor of the appellant armed with a list of the appellant's customers from the year ended 30 June 2008, together with the revenue generated by each of those customers for the appellant for that year could use that information in order to approach those customers to attempt to entice the business of those customers away from the appellant and so cause damage to the appellant's business. 45 Thus, Tech Mahindra was a case in which confidential information relied upon by an applicant in their appeal from an objection decision was said to allow a business competitor to cause damage to the appellant's business if it was not suppressed, tying the need for the orders and the consequences of not making them to the administration of justice. Even then, the Full Court did not grant the application for more than a subset of the information over which it was sought: see [14]. 46 The respondents also rely upon Seven Network v Cricket Australia (No 3) [2021] FCA 1303 per Anastassiou J at [7], where potential prejudice to Cricket Australia's commercial interests was found to be sufficient to justify a suppression order pursuant to s 37AF. The information in question was an expert determination relied upon in the proceedings it had brought which was commercially sensitive and could undermine its commercial bargaining position. The difference between that case and this application is material. An important distinction between that case and the present application is the fact that Seven Network sought only to maintain confidentiality of specific parts of information for the purpose of protecting a commercial bargaining position, whereas the respondents here seek a suppression order over all of the information in the Deng affidavits and indeed the entire court file. No attempt is made to demonstrate any such nexus to the administration of justice in this case. As his Honour had pointed out in the immediately preceding judgment in Seven Network v Cricket Australia (No 2) at [13]: One of the ways in which the administration of justice may be prejudiced is if people cannot come to the Court with confidence that commercially sensitive information (that might either be valuable to that party or to a third party) won't be disclosed: see, eg, Porter at [84]. 47 The respondents also rely upon Buckeridge v Commissioner of Taxation [2013] FCA 897; 95 ATR 670, which was a challenge to a private ruling in relation to a proposed future corporate restructure. The Commissioner had filed documents under r 33.04 of the Rules containing commercially sensitive information provided by the taxpayer. That was "protected information" under Division 355 of Schedule 1 to the TAA and was not in the public domain. The commercially sensitive nature of the information, together with the fact that it was protected information under Division 355, were matters sufficient to ground the making of suppression orders pursuant to s 37AF. McKerracher J stated: [7] As indicated by Perram J in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 (at [35]), 'commercial sensitivity can be a basis for the making of an order of the present kind', where his Honour was referring to s 37AF of the Federal Court of Australia Act 1976 (Cth). … [10] The terms of the orders as proposed, in my view, strike a balance between the importance of open justice on the one hand and achieving the objectives of the TAA 1953 on the other. Buckeridge is addressed below in the course of considering the TAA argument. 48 The respondents also rely upon a number of lesser arguments, which turn on more general concerns about legislation functioning coherently if suppression orders are not made in circumstances such as these, such as the International Arbitration Act 1974 (Cth), considered by Stewart J in EBJ21 v EBO21 [2021] FCA 1406, and the capacity to request a private appeal hearing when challenging the correctness of assessments in the Administrative Appeals Tribunal under s 14ZZE of the TAA. However, if the main arguments do not succeed, these points will not be enough to carry the day; and if the main arguments do succeed, these points are not needed. 49 The respondents also rely upon Nicols, Re Anatax Pty Ltd (In Liq) [2020] FCA 1320, submitting in writing that Markovic J found that 37AF orders should be made to protect the commercial ability of the Commissioner to enter into future commercial arrangements. However, in that case the suppression order sought was confined to a particular exhibit, being a deed of assignment between a liquidator and the Deputy Commissioner of Taxation, and was advanced as having a bearing on the proper administration of justice upon the basis that the deed was commercially sensitive and confidential as between the parties. There was a specific confidentiality clause that governed the deed. The identified adverse effect on the proper administration of justice was the interest of the Deputy Commissioner entering into other similar types of deeds, including damage to the Deputy Commissioner's capacity to advance such negotiations. This bears no reasonable relationship to the present case. 50 The submissions for The Age newspaper largely rely upon the plain text of s 37AG(1)(a), asserting, correctly, that it is well established that mere embarrassment, inconvenience or annoyance will not suffice as supported by Keyzer v La Trobe University [2019] FCA 646 per Anastassiou J at [29] and John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 per Kirby P at 142-143: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms … A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. Consideration of the commercial damage argument 51 The respondents' asserted interests of damage to reputation, flowing into commercial and financial interests, may be accepted for present purposes because they have not been challenged. But following the authority discussed above, that alone is not enough. At the hearing of the respondents' application, senior counsel was unable to identify the necessary connection or advancement of the proper administration of justice involved. In those circumstances, I am not satisfied as I must be that the necessary ground has been established to exercise the power to make a suppression order of any kind. 52 For completeness, the anonymity orders sought would not in any event have been able to be justified given the media reporting on the making of the freezing orders that has already taken place. The identity of the first and second respondents in particular is already in the public domain. TAA argument 53 The Deputy Commissioner overtly expresses no view either way as to whether the discretion to allow access under r 2.32 should be exercised in favour of that taking place, but submits that the effect of Subdivisions 355-D and 355-C should not be factored into that assessment. In that context, the Deputy Commissioner seeks to assist the Court with submissions to the effect that the TAA confidentiality regime has no bearing on the grant or refusal of the access request. 54 As a primary argument, the Deputy Commissioner submits that if the Court was to grant access to the Deng affidavits, that access will have been provided by the Court and not by any entity and the information also will not have been acquired under an exception, such that there is no offence committed under s 355-155 and no other prohibition applies. If that information or some part of it, upon being provided pursuant to the request, was published, that provision would not be engaged for the same reason. 55 As an alternative argument, the Deputy Commissioner submits that even if, contrary to the primary argument, the offence provision in s 355-155 does apply, s 355-170 creates an exception for the on-disclosure of publicly available information. 56 The respondents submit that both arguments are incorrect. The confidentiality regime under the Taxation Administration Act (TAA) 57 The following explanation of the regime in Div 355 to the TAA (in Sch 1, Ch 5, Pt 5-1), titled "Confidentiality of taxpayer information" is in part drawn from the Deputy Commissioner's submissions which are of amicus curiae assistance to the Court because of the absence of any interest or submission either way in the outcome of the access request or the suppression application. That explanation is supplemented by further provisions, including those upon which the respondents additionally rely. 58 The guide to Div 355 in s 355-1 states: The disclosure of information about the tax affairs of a particular entity is prohibited, except in certain specified circumstances. Those exceptions are designed having regard to the principle that disclosure of information should be permitted only if the public benefit derived from the disclosure outweighs the entity's privacy. 59 The meaning of "entity" as that term is used in the TAA is key. Section 3AA(2) of the TAA provides that an expression in Sch 1 of the TAA has the same meaning as in the Income Tax Assessment Act 1997 (Cth) (ITAA 97), with s 960-100(1) defining entity exhaustively: Entity means any of the following: (a) an individual; (b) a body corporate; (c) a body politic; (d) a partnership; (e) any other unincorporated association or body of persons; (f) a trust; (g) a *superannuation fund; (h) an *approved deposit fund. 60 That definition of entity does not in terms refer to or otherwise describe a court (or tribunal). Moreover, where a court or tribunal is referred to in numerous provisions, it is used in contradistinction to an entity, including in a key provision, s 355-155, which makes on-disclosure by persons other than taxation officers a criminal offence. That provision is addressed below. 61 Div 355 includes the following three relevant subdivisions A, B and C (as well as D and E that are not presently relevant): (a) Subdiv 355-A—Objects and application of Division; (b) Subdiv 355-B—Disclosure of protected information by taxation officers; and (c) Subdiv 355-C—On-disclosure of protected information by other people. 62 In Subdiv 355-A: (a) the objects of Div 355 are stated in s 355-10: The objects of this Division are: (a) to protect the confidentiality of taxpayers' affairs by imposing strict obligations on *taxation officers (and others who acquire protected tax information), and so encourage taxpayers to provide correct information to the Commissioner; and (b) to facilitate efficient and effective government administration and law enforcement by allowing disclosures of protected tax information for specific, appropriate purposes. (b) the application of Div 355 is stated in s 355-15: This Division applies in relation to the following entities in the same way as it applies in relation to *taxation officers: (a) an entity engaged to provide services relating to the Australian Taxation Office; (b) an individual employed by, or otherwise performing services for, an entity referred to in paragraph (a); (c) an individual: (i) appointed or employed by, or performing services for, the Commonwealth or an authority of the Commonwealth; and (ii) performing functions or exercising powers under or for the purposes of a *taxation law. 63 Section 355-20 states what Subdiv 355-B is about: The main protection for taxpayer confidentiality is in this Subdivision. It is an offence for taxation officers to disclose tax information that identifies an entity, or is reasonably capable of being used to identify an entity, except in certain specified circumstances. 64 In Subdiv 355-B, the key concepts of protected information and taxation officer are defined in s 355-30 as follows: (1) Protected information means information that: (a) was disclosed or obtained under or for the purposes of a law that was a *taxation law (other than the Tax Agent Services Act 2009) when the information was disclosed or obtained; and (b) relates to the affairs of an entity; and (c) identifies, or is reasonably capable of being used to identify, the entity. Note: Tax file numbers do not constitute protected information because they are not, by themselves, reasonably capable of being used to identify an entity. For offences relating to tax file numbers, see Subdivision BA of Division 2 of Part III. (2) Taxation officer means: (a) the Commissioner or a *Second Commissioner; or (b) an individual appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office. Note: This Division applies to certain other entities as if they were taxation officers: see section 355-15. 65 Section 355-25(1) makes it an offence for a taxation officer to disclose protected information, including to a court, when it was acquired in that capacity, unless an exception applies: (1) An entity commits an offence if: (a) the entity is or was a *taxation officer; and (b) the entity: (i) makes a record of information; or (ii) discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and (c) the information is *protected information; and (d) the information was acquired by the first-mentioned entity as a taxation officer. Penalty: Imprisonment for 2 years. 66 One of the exceptions to the offence in s 355-25(1) is that a disclosure was made by an entity who is a taxation officer in the course of performing duties: s 355-50(1). Examples of when that exception applies are set out in the table to that provision: Records or disclosures in performing duties Item The record is made for or the disclosure is to ... and the record or disclosure ... 1 any entity, court or tribunal is for the purpose of administering any *taxation law. 2 … … 3 any entity, court or tribunal is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to a *taxation law. … … … 67 It is common ground that the Deng affidavits relied upon for the seeking and making of the freezing orders include documents containing information that is protected information because it was acquired by a taxation officer under or for the purposes of a taxation law. That information was disclosed to a taxation officer for both the purpose of administering taxation laws and for the purpose of civil proceedings related to that law. And that information was disclosed by a taxation officer, Mr Deng, to this Court via his affidavits for the purposes of administering a taxation law and for the purpose of civil proceedings that are related to a taxation law. That disclosure therefore fell within the two exceptions in the table to s 355-50 reproduced above, so that the offence in s 355-25(1) did not apply. The disclosure to the Court was not an offence. 68 Further, the respondents ultimately accepted that employees of the Court do not meet the description in s 355-15(c)(ii) because, in dealing with material furnished to the Court, they are not performing functions or exercising powers under or for the purposes of a taxation law, and therefore are not subject to Subdiv 355-B. However, the respondents maintain that such employees are subject to the operation of Subdiv 355-C, relevantly set out below. The issue is therefore one of on-disclosure, governed by Subdiv 355-C. 69 Subdivision 355-C relates to on-disclosure of protected information. The guide to that subdivision in s 355-150 states that "Someone who is not a taxation officer is prohibited from disclosing protected information, except in certain specified circumstances." 70 Section 355-155 makes it an offence for protected information to be on-disclosed in particular circumstances: 355-155 Offence—on-disclosure of protected information by other people An entity commits an offence if: (a) the entity: (i) makes a record of information; or (ii) discloses information to another entity (other than the entity to whom the information relates or that entity's agent in relation to the information) or to a court or tribunal; and (b) the information was acquired by the first-mentioned entity under an exception in this Subdivision or in Subdivision 355-B (except subsection 355-65(1) operating in relation to item 7 in the table in subsection 355-65(4)); and (c) the first-mentioned entity did not acquire the information as a *taxation officer. Penalty: Imprisonment for 2 years. The offence in s 355-155 71 The respondents first rely upon the activities of entities being carried out by the individuals who work for them, such that the distinction does not avoid an individual being liable for a breach. They rely upon Kupang Resources Pty Ltd v Commonwealth of Australia [2021] NSWSC 1580. Kupang was overturned in Commonwealth of Australia v Kupang Resources Pty Ltd [2022] NSWCA 77, but not on the point presently advanced; a challenge to the present point was advanced in a notice of contention filed by Kupang Resources Pty Ltd as respondent to the appeal, but abandoned. In Kupang, Ball J was dealing with an application by the Commonwealth to set aside a notice to produce upon the basis that production was prohibited by the provisions of Subdiv 355-B. The first argument advanced by the company was that the documents were held by the Commonwealth, which was not a taxation officer, so that there was no prohibition on production for that reason. His Honour rejected that argument, finding that the fact that the Commonwealth is a separate entity did not mean that the documents were no longer held by a taxation officer or that they would not be produced by a taxation officer, given that the Australian Taxation Office (ATO) had to act through natural persons: [12]-[13]. 72 The problem for the respondents is that this argument is all well and good as far as it goes, dealing with the prohibition on disclosure by a taxation officer. But it does not engage with the argument advanced by the Deputy Commissioner, namely that the offence provision in s 355-155 only applies to when the entity obtains the information from another entity; it does not apply when a person obtains information from a court, which is not an entity. It does not apply where a person obtains the information from a court because, unlike the ATO, a court is not an entity, being described in contradistinction to an entity, including in s 355-155 itself. The reasoning in Kupang does not assist the respondents. 73 By reason of s 355-155(b), the s 355-155 offence provision only applies if the information in question was acquired by an entity on-providing it under an exception in Subdiv-B (excluding a carve out not applicable here) or under an exception in Subdiv-C. The Deng affidavits were provided under either or both of the exceptions in Subdiv-B set out in the extract from the table to s 355-50(1) reproduced and addressed above. But those affidavits were provided to the Court, which is not an entity. If and to the extent that the Court causes the Deng affidavits to pass to a person who has made a request for access through the hands of a member of staff of the Court as its agent, even if it is characterised as being acquired by that member of staff, that acquisition is not under any exception in Subdiv B or C, but pursuant to an order or direction of the Court. 74 To the extent that any employees of the Court received the Deng affidavits, they never received them in their own capacity and therefore never received them as an entity. Those affidavits were received by the Court as a court, with the employees being a manifestation of the Court. The nonsense alternative would be for the Court itself to have to deal with all tax-related materials itself, and also to implement any appropriate access request itself. Accordingly, the provision of access to the Deng affidavits as a result of granting the access request could not be an offence under s 355-155. 75 Secondly, the respondents rely upon the terms of s 355-15(c), which provides that Div 355 applies to "an individual: (i) appointed or employed by, or performing services for, the Commonwealth or an authority of the Commonwealth; and (ii) performing functions or exercising powers under or for the purposes of a *taxation law" in "the same way at is applies in relation to *taxation officers". The respondents submit that the effect of s 355-15(c) is that Div 355 applies to all individuals employed by, or performing services for, the Commonwealth, an expression which extends to all individuals employed to work in the Commonwealth courts. That is said to be significant because action disclosing information may be taken by individual persons such that the prohibition against disclosure applies to those persons even where the protected information has been provided to a body which is not an entity. 76 The problem with this argument is that it ignores the conjunctive second limb of s 355-15(c)(ii). An associate to a judge of the Court, or other Court employee, is not, in physically facilitating the grant of access pursuant to a request made under r 2.32(2), performing functions or exercising powers under or for the purposes of a taxation law. The extended operation of Div 355 that the respondents rely upon for this purpose does not exist. 77 It follows that I am satisfied that s 355-155 does not apply to this situation and is not a reason either for making a suppression order, or declining to grant the access request. The exception to s 355-155 in s 355-170 78 In light of the above conclusion, strictly speaking, the Deputy Commissioner's alternative argument based on the exception to s 355-155 in s 355-170 does not arise for consideration. However, the point has been taken, and it is prudent to address it in case my conclusion that s 355-155 does not apply to this situation is wrong. The Deputy Commissioner submits that even if s 355-155 does apply, s 355-170 creates an exception for the on-disclosure of information that is already available to the public except by reason of a contravention of Div 355: 355-170 Exception—on-disclosure of publicly available information Section 355-155 does not apply if the information was already available to the public (otherwise than as a result of a contravention of Div 355). 79 While the phrase "already available to the public" is not defined, the Explanatory Memorandum at [4.35] gives some common sense guidance by stating: A publicly available source would include things such as the electoral role, open court records, books, the Internet, newspapers and other material that is generally available to the public. The information does not cease to be 'publicly available' if a member of the public has to pay a fee to access that information. 80 The Deputy Commissioner submits that the originating application is publicly available per r 2.32(1)(a). That aspect of the access request has not been opposed. 81 In relation to the Deng affidavits that have been read, including exhibits, they should generally be available for inspection unless the interests of justice require otherwise, following Deputy Commissioner of Taxation v Hawkins [2016] FCA 164; 341 ALR 255 and Deputy Commissioner of Taxation v Shi (No 2) [2019] FCA 503. Those cases also have some relevance to the preceding commercial damage argument, but are principally relevant to this alternative argument of the Deng affidavits being available to the public by the access request process in r 2.32(4). 82 In Hawkins, in relation to affidavits that were read ex parte, in support of an application for a freezing order, Pagone J said at [9]: [9] Affidavits and exhibits which have been read in proceedings are treated as evidence that has been given orally in open court and should generally be available for inspection by anyone wishing to do so unless the interests of justice require otherwise. An affidavit which has not been read in open court is treated differently because it may never be admitted into evidence and may contain untested prejudicial material that would be unfair to a party to be available for inspection by virtue only of the fact that it had been filed in a court registry. In Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149 [; 241 FCR 397] Mortimer J said at [24] to [27]: 24 The power to permit inspection of a document under r 2.32(4) is discretionary. In exercising that discretion, it is appropriate for the Court to consider first, the delineation apparent in the terms of r 2.32(2) and other documents which may be on the court file. Subject to the operation of ss 37AE to 37AL and r 2.32(3), the delineation is this. A non-party (and therefore, any member of the public) is entitled to know who the parties to a proceeding in this Court are, and to have an address (through a notice of address for service) for those parties. A member of the public is entitled to see those documents which will enable that person to understand what a proceeding in this Court is about, and how the parties' respective cases are framed: namely, the originating application and the pleadings. The public is entitled to be able to follow the course of the proceedings through processes such as interlocutory applications, appeals and discontinuances. The public is entitled to be able to see the Court's reasons for the disposition of a proceeding. 25 If there is a transcript of a hearing held in public on the Court's file, then by r 2.32(2)(m) that document may be inspected. The rationale for that document being available as of right would appear to be to mirror the ability of the public to be present in court and to listen to the evidence and argument in the course of a proceeding. 26 The entitlement of the public to be present when evidence is given in a proceeding (read with the underlying principles apparent in ss 17 and 37AE of the Federal Court Act) would suggest, subject to any competing discretionary considerations, that an affidavit which is "read" in a proceeding, and thus treated as if that evidence had been given orally in open court, should be made available for inspection: see Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 at [6]-[10], per Edelman J. An affidavit which is read is thus in no different position to oral evidence-in-chief given by a witness. To permit inspection of such an affidavit is consistent with inspection of transcript being available without leave under r 2.32(2)(m). 27 An affidavit which has not been read is likely to be treated quite differently, for the same reasons. Before it is read, it is not a person's evidence. It may never be admitted as the evidence of the deponent, for a variety of reasons. At that stage, it is a document yet to become part of the process of open justice. That is not to suggest an affidavit on a court file and not yet read in court may never be subject to an order under r 2.32(4). There may be no objection from the parties, and there may in any given case be discretionary considerations which favour its inspection. The purpose and rationale for allowing inspection is at least in part to enable members of the public to see why and how the Court had disposed of matters before it. That will usually mean that materials which have been used or deployed by the court will be available for inspection by any member of the public unless there is a countervailing reason not to allow inspection: see Seven Network Ltd v News Ltd (No 9) (2008) 148 FCR 1, [25]-[27]. Inspection will be allowed not because the party seeking inspection can show a right to the documents as against a party to the proceedings but because the workings of the Court should be open whatever may be the motive for the request to inspect. [10] The affidavits and exhibits which were referred to by the Commissioner in the application before her Honour for freezing orders may, therefore, be inspected by Matrix and Mr Oates. These formed part of the evidence given by the Commissioner in open court in the proceeding which have become part of the process of open justice. The documents may have been relied upon by the Commissioner without testing or may have been referred to in open court (as was submitted by counsel for Mr Hawkins and Pegela) only when "addressed in an abridged manner in response to questions from the Court", but they have been used and deployed by the Court and were part of the material upon which orders of the Court were made in open court. The fact that some of the material may have been read by her Honour in chambers without detailed reference in open court may be a stronger circumstance for the need to permit public inspection. In that regard Finkelstein J said in Australian Competition and Consumer Commission v ABB Transmission and Distributors Ltd (No 3) [2002] FCA 609 at [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 giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. 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. In this proceeding the Commissioner tendered a number of affidavits and exhibits for use in obtaining orders from the Court without seeking orders for confidentiality, suppression or other restrictions upon publication. The material relied upon by the Commissioner included transcripts of answers which had been given, and materials which had been provided, pursuant to the exercise by the Commissioner of compulsory powers under s 264 of the Income Tax Assessment Act 1936 (Cth). It may be assumed, as was submitted, that the information and documents tendered by the Commissioner fell within the class of "protected information" within the meaning of s 355-30(1) of Schedule 1 to the Taxation Administration Act 1953 (Cth) the disclosure of which by a taxation officer without authority would be an offence. However, the prohibition against disclosure in s 355-25(1) is subject to the exception in s 355-50(1) where the disclosure is made in performing the duties of a taxation officer. There is no suggestion that any of the information or documents to which access is sought was other than properly disclosed by the Commissioner in the exercise of the Commissioner's duties or that orders for confidentiality, suppression or other restrictions upon publication ought to have been made. The Commissioner's application occurred in open court and no confidentiality or suppression order was sought by the Commissioner nor was one subsequently sought by Mr Hawkins or Pegela. 83 I do not accept the respondents' submission that Hawkins does not support the Deputy Commissioner's submissions merely because that was a case in which no confidentiality or suppression orders had been sought, no argument was put about s 355-155, and the argument advanced concerned an impermissible forensic advantage and Harman v Home Office implied undertaking considerations (perhaps now better put as the Hearne v Street obligation considerations). The analysis by Pagone J, and the antecedent analysis by Mortimer J is highly relevant to the resolution of this dispute. 84 In Shi (No 2), again in relation to affidavits read in open court in support of an application for a freezing order, but ex parte, Steward J, when a member of this Court, quoted at [13] most of [9] in Hawkins reproduced above, and stated at [14]: In contrast, where an affidavit is not read or admitted into evidence, the "open justice" rule is not engaged. As Sackville J observed in Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 at [21]: Of course, the position may well be different where leave is sought to inspect affidavits that have not been read in open court. For example, as Santow J recognised in eisa Ltd v Brady [[2000] NSWSC 929], there is a risk of serious injustice if untested allegations contained in affidavits or pleadings can be published to the world at large without the usual constraints of defamation law applying. … See also Hawkins at [9] quoting Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149 [; 241 FCR 397] at [27] per Mortimer J. 85 Steward J in Shi (No 2) also said at [26] that the fact that the affidavits were read in ex parte proceedings made no difference to the open justice principle, quoting with approval Hawkins at [10] reproduced above. 86 I do not accept the respondents' submission that Shi (No 2), a suppression order application case, does not assist in this proceeding because it does not address the two arguments advanced by them and had different circumstances and arguments that were advanced. It is again a highly relevant case. 87 I am satisfied that if, contrary to my primary finding, s 355-155 does apply to employees of the Court dealing with the Deng affidavits, the exception in s 355-170 does apply to such dealing by reason of the very process of being able to request access under r 2.32(4), and the open justice reasons for granting such access to an affidavit once it has been read, especially when it has been acted upon and a serious and substantial exercise of judicial power has taken place. Remaining arguments advanced by the respondents 88 The respondents' further written submissions also take issue with the interpretation advanced by the Deputy Commissioner, first suggesting that the approach taken in Buckeridge should be preferred. I am unable to accept that submission. It is apparent that Buckeridge was decided without the benefit of contrary arguments advanced and accepted much later in both Hawkins and in Shi (No 2). 89 As a further point, the respondents submit that the fact that information with respect to their taxation affairs is in the possession of the ATO and is information for which confidentiality is protected by Div 355, is significant and supports the appropriateness of orders they seek pursuant to s 37AF so that the statutory objects of Div 355 will not be defeated. Again, I am unable to accept that submission in light of both Hawkins and in Shi (No 2). Different consideration apply once such information has been the subject of evidence adduced in this Court, bringing to bear the principal consideration of open justice. So long as the statutory regime does not proscribe giving access to the information by way of granting access, the fact that the TAA confidentiality regime that would otherwise apply would proscribe it taking place is of little moment. To contemplate otherwise is not to proceed in accordance with that regime, but to proceed in a manner that is contrary to what it permits. It entails giving the provisions a greater reach than they possess in their own terms. Conclusion 90 The application for a suppression order must be refused with costs. There is no reason for the access request to be refused, and I therefore order that it be granted. I will stay the access order for 14 days. I will hear the parties on costs. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate: Dated: 3 November 2022 SCHEDULE OF PARTIES NSD 697 of 2021 Respondents Fourth Respondent: LANE COVE WEST DEVELOPMENT PTY LTD ACN 095 268 330 Fifth Respondent: TEA GARDEN FARMS PTY LTD ACN 121 160 503 Sixth Respondent: AUSTRALIAN PINE PRODUCTS PTY LIMITED ACN 617 399 158 Seventh Respondent: MINGZE PTY LTD ACN 630 719 176 Eighth Respondent: LANDMARK DEVELOPMENT & FINANCE GROUP PTY LTD ACN 101 469 372