In deciding whether to make a suppression or non-publication order, the Court must uphold the mandatory consideration of safeguarding the public interest in open justice enshrined in s 37AE Federal Court of Australia Act 1976 (Cth).
Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81 (26 May 2021)
Intro:-
By an interlocutory application lodged on 7 April 2021 and accepted for filing on 13 April 2021, Mr Swannick seeks an order that the Court replace his name on the court file and in the Court’s reasons for judgment with a pseudonym.
Facts:-
On 1 October 2020, the Court ordered that the appeal be dismissed: Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165 (Swannick (No 1)). In the appeal, and in judicial review proceedings in the Court’s original jurisdiction, Mr Swannick (the appellant) sought to challenge a decision of the Minister (the respondent) not to revoke the mandatory cancellation of Mr Swannick’s visa after being convicted of a series of offences which meant that he no longer passed the character test.
In support of his application Mr Swannick relies on an affidavit and written submissions that make clear that he is to be deported back to England shortly because his bid to stay in Australia has been denied. He intends to rebuild his life but he says, fairly, that it is going to be hard for him. He has lived practically all of his life in Western Australia. He observes that a simple Google search produces results that include links to the Court’s judgment in these proceedings against the Minister which reveals all the aspects of his life including his convictions.
Mr Swannick apologises for matters giving rise to his charges and convictions and says he is not proud of them. He says:
"The biggest problem that I face is that of possible stigma and workplace discrimination. The United Kingdom has a different style of housing compared to Australia. They live-in high-density Suburbs and if anyone were to dig into my past, getting accommodation or a job and friends will become extremely hard. This will simply ruin my chances of rebuilding my past."
He goes on to say that:
"When I was in Prison, I enrolled myself in a lot of rehabilitation programmes that were both relevant to my rehabilitation and personal growth. I successfully completed them and when I applied for probation I was released on that basis. I managed to reform my offending behaviour and identify the root cause. I am not implicating that I am a perfect human being now, but I am quite positive that I am not going to re-offend again."
Mr Swannick attaches copies of the courses in which he was involved. He notes that his father has Alzheimer’s syndrome, and his mother is struggling with his situation and the financial stress that this condition is putting on their budget. He notes that if he can get a job on arrival in the United Kingdom he would be able to ease the financial strain that his mother is experiencing.
Issue:-
Even though proceedings have concluded, are there grounds for Mr Swannick’s application for a non-publication order with respect to his identity by replacement of his name with a pseudonym?
Analysis:-
Mr Swannick has not made any claim on this application to fear for his safety if he is not given a pseudonym. He must therefore demonstrate that a non-publication order with respect to his identity is necessary to prevent prejudice to the proper administration of justice.
The High Court’s approach in Hogan v ACC and the mandatory consideration of safeguarding the public interest in open justice enshrined in s 37AE confirm that the Court’s discretion in granting an order under s 37AF is confined to an assessment of whether or not the applicant has satisfied the threshold of demonstrating that the order is necessary to prevent prejudice to the proper administration of justice. As explained by Griffiths J in Chen, this Court is not permitted to undertake a balancing exercise.
Mr Swannick’s concern that the public availability of the details of his convictions could impede his ability to secure work in the United Kingdom is not without substance. Though he has not provided any specific evidence, that is not unexpected in circumstances where he has made the application in advance of his departure from Australia. The possibility that he could experience some sort of difficulty obtaining employment on the basis of the publicly available judgment in Swannick (No 1) cannot be discounted. This could in turn lead to some financial or economic hardship. But these considerations do not provide any basis for this Court to be satisfied that a pseudonym is necessary to prevent prejudice to the proper administration of justice. Mr Swannick is for present purposes in no different position from anyone who is convicted of a criminal offence and whose conviction may result in it being harder to obtain employment. The fact of a conviction becoming known by members of the public and the effects of that knowledge, including any resulting difficulties in obtaining employment has not in the past and does not now provide any basis for departing from the open justice principle.
Conclusion:-
As the reasoning in Swannick (No 1) was intended to convey, the Court is certainly cognisant of the difficulties confronting Mr Swannick and it continues to be so, but the difficulties to which he points do not establish a principled basis for departure from the rule of open justice in that they do not demonstrate any basis upon which an order for a pseudonym is necessary to prevent prejudice to the proper administration of justice.
The interlocutory application must be dismissed with cost
