On 20 October 2022 NCAT dismissed an application for orders under Court Security Act 1995 (NSW). NCAT did not see how publication of transcripts or sound recordings could promote transparency or accountability, according to the written reasons.
Information Commissioner keeps her lips sealed
Peter Zonnevylle made his application in June 2022. According to NCAT, the application sought to “reproduce, release or publish the sound recordings and/or transcript” without any limitation.
However, in September 2022 Mr Zonnevylle sent the email “unequivocally” withdrawing the application, member Theresa Simon found. Unexpectedly, member Simon also said she did not know if he asked to withdraw “in part” or “completely”.
In these circumstances, member Simon thought it better not to run a hearing. She reviewed Mr Zonnevylle withdrawn submissions “on the papers”. These were seen as insufficient to justify the orders initially sought.
[The] submissions do not demonstrate how publication of the transcript or sound recording in these proceedings would promote transparency or accountability,
Ms Simon said in the NCAT proceedings 2021/00247292.
The Information Commissioner, who was a named respondent in the landmark decision, made no submissions on the issue, NCAT noted.
publication will not stop abuses, NCAT finds
Mr Zonnevylle sought the orders under Court Security Act 1995 (NSW) to make sure the proceedings were transparent and to “stop abuses”, PM Simon said.
However, the publication of recordings was not the way to resolve the problems referred to by Mr Zonnevylle, NCAT said.
(…) [I]t is not in the interest of justice that sound recordings of Tribunal proceedings be made available to be published in whole or in part without an appropriate basis for the publication,
stated PM Simon in the NCAT proceedings 2021/00247292.
Officials nervous social media “a risk”
In later decisions PM Simon reused chunks of the landmark decision to dismiss similar applications by Mr Zonnevylle. In proceedings against the Department of Justice and Minister for Education both the Department and the Minister opposed Mr Zonnevylle. They said there was a risk that the sound recordings would end up on the internet. In particular, the Minister apprehended publications on the social media, according to NCAT.
NCAT made no findings as to the assertions of potential misuse. However, both applications for unlimited permission to publish were dismissed.
The applicant has not provided any evidence of how he proposes to use the recordings or where they will be published or reproduced,
Principal Member Simon explained in the proceedings 2020/00283065.
NCAT’s website does not say there is any requirement to inform where the recordings or transcripts are proposed to be published.
Mr Zonnevylle told FORCIN he would not be appealling the decisions. This was due to risk of unreasonable costs orders and lack of resources, he said.
Previously, Mr Zonnevylle tried to obtain other orders under Court Security Act 1995 (NSW). One of the orders repeatedly refused was the permission to record the NCAT proceedings to which he was a party. The landmark decision and the subsequent decisions in the NCAT proceedings 2020/00283065 and 2021/00287835 have not yet been published on the NSW Caselaw, FORCIN confirmed.
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