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3.8.2.4 Hearings Involving Confidential Material

Date Published

On rare occasions, a hearing can involve consideration of confidential material. This may arise when the hearing involves an application that is not OPI, where reg 4.3(2)(b) has been invoked in respect of certain documents, or where reg 4.3(2)(a) applies, there being a relevant court or tribunal order in respect of certain material. Where consideration of confidential material is required, special requirements apply:

  • usually hearings before the Commissioner are open to the public. Where confidential material is being discussed, the hearing should be closed to the public. For an example of a hearing closed to the public, see Iluka Midwest Limited v Industrial Minerals Pty Ltd [2001] APO 58.
  • in the overall decision-making process, hearing officers should ensure that there is an appropriate degree of security with any confidential material in their possession (including the recordings of the hearing).
  • if the reasons for a decision need to discuss the confidential material (such that the reasons will result in disclosure of the confidential material), the hearing officer will need to write two versions of the decision; a “full” decision for the parties, which can specifically refer to confidential information, and an “edited” version for publication, which omits this material (Hassle v Commissioner 14 IPR 578). For examples, see Secton v Delawood 21 IPR 136 at 197, where entire paragraphs which referred to confidential material were omitted, Hassle v Commissioner of Patents 14 IPR 585, where confidential figures were replaced by “x” and Iluka Midwest Limited v Industrial Minerals Pty Ltd (supra).
  • there will need to be an appropriate degree of security when forwarding the full reasons for the decision to the parties and storing the recordings of the hearing.
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