AX03C; Secretary, Department of Family and Community Services [2003] AATA 46 (17 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 46

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2002/451

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And AX03C

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date 17 January 2003

Place Canberra

Decision The tribunal directs that the name of the respondent in this application is not to be published.

.................[Sgd].......................

Senior Member

CATCHWORDS

PROCEDURE - confidentiality - whether reference to name of respondent should be prohibited - respondent sought prohibition of publication of name to protect his privacy - privacy interest in respondent's financial affairs

Administrative Appeals Tribunal Act 1975 s 35(2), (3)

Social Security Act 1991 s 23(1) ("protected information")

Social Security (Administration) Act 1999 s 3(4), 179, 204

Flood and Secretary, Department of Social Security, Re (1994) 33 ALD 182

Pochi and Minister for Immigration and Ethnic Affairs, Re (1979) 2 ALD 33

VC and Australian Federal Police, Re (1985) 8 ALD 587

REASONS FOR DECISION

17 January 2003 Mr M J Sassella, Senior Member

APPLICATION

1. In this matter the Social Security Appeals Tribunal ("the SSAT") on 30 October 2002 varied the decision under review before it. The decision under review had been made by a sub-delegate of the Secretary, Department of Family and Community Services ("the applicant"), located in Centrelink, on 7 August 2002. The SSAT's decision was favourable to AX03C ("the respondent").

2. On 27 November 2002 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the SSAT's decision.

3. The respondent sought a confidentiality order on 13 December 2002 on the basis that any decision the tribunal makes will be published on the Internet and his financial affairs will be made public in the decision. He said that his name is unusual and that he is probably the only person of that name of his age living in Canberra. He could, therefore, be easily identified by Canberra-based Internet users.

HEARING

4. The tribunal convened an interlocutory hearing in Canberra on 16 January 2003 to consider the respondent's application for a confidentiality order. The hearing was conducted by telephone. The respondent represented himself. The applicant was represented by Mr R Huttner of the Centrelink Advocacy and Administrative Law Team.

LAW

5. Section 35 of the Administrative Appeals Tribunal Act 1975 ("the Act") reads:

Hearings to be in public except in special circumstances

35 ...

(1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.

...

(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.

(3) In considering:

(a) whether the hearing of a proceeding should be held in private; or

(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;

the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.

APPLICANT'S ARGUMENTS

6. On 14 January 2003 the applicant's representative wrote to the tribunal indicating the applicant's objection to the grant of a confidentiality order. The reasons given were:

* Section 35 of the Act 1975 provides that hearings are to be in public unless there are special circumstances. The respondent had not demonstrated such special circumstances.

* Section 35(3) of the Act provides that it is prima facie desirable that tribunal proceedings be held in public. This includes publication of the tribunal's decisions. In Re Flood and Secretary, Department of Social Security (1994) 33 ALD 182 at 186 the tribunal said "...the public interest is best served by allowing publication of ... full reasons for decision without deletion".

* The discretion to prohibit or fully or partially restrict publication of proceedings before the tribunal should be exercised sparingly, and an entitlement to confidentiality not lightly established. The tribunal's decision in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 55 was cited as authority. At page 56 Brennan J said, "There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that the publication of the proceedings would be contrary to the public interest ...".

* Publication of the proceedings in this matter would not have such a deleterious impact on the respondent as to justify the protection of the legislation. "The public interest of securing effective administration of (Centrelink), of informing the public of the operation of the Act and of exposing the tribunal's decision-making to public scrutiny (Pochi (above) at 54, Flood (above) at 186), far outweighs the interest of the respondent in keeping his financial affairs private".

7. At the hearing Mr Huttner, for the applicant, added to the above arguments. He referred to the long-standing practice within the tribunal whereby social security decisions, even those involving such personal matters as marriage-like relationships, have been published with the parties named.

8. Mr Huttner referred also to the decision in Re VC and Australian Federal Police (1985) 8 ALD 587. Deputy President Thompson in that case reinforced Brennan J's approach in Pochi (above) in saying that the giving of a confidentiality direction requires strong justification.

TRIBUNAL'S FINDINGS

9. The tribunal was grateful to Mr Huttner for his citation of relevant authorities and for his written submissions. The tribunal has considered the authorities and comments as follows on them.

pochi

10. The facts in Pochi (above) were quite different from those in this case. It was the Commonwealth seeking confidentiality in that case in two respects. The request was (i) to have the individual applicant excluded from the hearing room while certain evidence was given and (ii) to produce a part of the reasons for decision that would not be provided to the applicant. The tribunal in the instant case considers that the confidentiality requested here is of a very minor nature compared to that. The tribunal in Pochi (above) nevertheless granted the confidentiality requested. Indeed, the tribunal considers that most of Brennan J's remarks in Pochi (above) were heavily influenced by the context. He makes frequent reference in his reasons to issues of excluding persons from the hearing room. However, Brennan J makes some comments that I see as pertinent in the current context:

"To exclude the public from a hearing is a serious step, for the Tribunal is required by statute (s 35 (3)) to 'take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be in public'. This is a principle which is binding upon courts of justice (see R v Tait Federal Court of Australia, 1 May 1979, unreported), and which is calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it.

"Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him -a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal.

...

"Yet the powers conferred upon this Tribunal by s 35 (2) are not intended to lie dormant - they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established)." (Pages 54-55)

11. Brennan J nowhere addressed the situation where the proposal is only to suppress the name of a party. It would appear to this tribunal, however, that the value of introducing transparency into administrative decision-making, a value identified as desirable of protection in Pochi (above), is not compromised where, as the respondent requested in the instant case, the only confidential element would be the respondent's name. Brennan J's other remarks are directed at exclusion of persons from the hearing and are not directly relevant. The tribunal notes, however, that he saw the powers in s 35(2) of the Act as not dormant and as there to be used.

flood

12. In this case the applicant had a medical malpractice action on foot at the same time as his tribunal application. He was concerned that the tribunal might, in its published reasons, address factual matters or make findings that could be picked up and used against him in the other legal proceedings. He sought suppression of any such material in the tribunal's reasons for decision as published. The tribunal refrained from making the order sought. This tribunal notes that, again, the case cited is different from the instant case. The respondent in the instant case agrees that the full reasons should be published, albeit without his identity being exposed. Nevertheless, again the tribunal offered pertinent remarks:

" ... Section 35 (3) provides that in deciding whether to order any such restriction the tribunal must take as the basis of its consideration the principle that it is desirable that evidence given before the tribunal and the contents of documents lodged with the tribunal or received in evidence by the tribunal shall be made available to the public, but must pay due regard to any reasons given to the tribunal why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.

"(17) We do not necessarily go so far as to say, as the tribunal did in Re Maher and; Re Bragg, that the public interest must always be paramount. We consider that the legislation requires a balancing of public and private interests. The public interests we identify in this matter are similar to those in; Re Nolan. We consider that weight must be given to the public interests of securing effective administration of the DSS, of informing the public as to the operation of the Act and of exposing the tribunal's decision-making to public scrutiny." (Page 186)

13. The tribunal draws from Flood (above) that the subsections in s 35 of the Act suggest a balancing of the private interests of a party before the tribunal against the public interest in transparency in decision-making. Again, this tribunal sees the values in s 35(3) as largely unaffected by the granting of an order under s 35(2)(aa) that does no more than suppress a name.

vc

14. This was a case where the applicant sought suppression of his name by the tribunal. He was a prominent businessman and was concerned that, if it became known that he had made a freedom of information application to the Australian Federal Police regarding himself, it would adversely affect his public reputation. The tribunal granted the request. Deputy President Thompson said:

"(14) The availability to members of the public of information regarding the identity of an applicant in proceedings before the Administrative Appeals Tribunal is, in my view, not a matter of such great public interest as that proceedings should be heard in public. The Tribunal is generally more willing to give directions prohibiting the disclosure of an applicant's identity, if there is a risk that he will suffer embarrassment or prejudice by reason of such disclosure.

...

"(18) That finding having been made, it is necessary to consider whether it justifies the continued prohibition of publication and disclosure of the fact that he has made the application. Dr Buchanan submitted that sub-s (3) of s 35 discloses a clear legislative intention that directions should not be given under sub-s (2), unless the harm that is likely to result if no such direction is given outweighs the public interest in the public having full knowledge of the proceedings. Sub-section (3) is expressly concerned with directions relating to the hearing being held in private; but I accept that it does reflect the general legislative intention to which Dr Buchanan referred. However, as I have already observed, the public interest in having information about the identity of an applicant in proceedings before the Administrative Appeals Tribunal is of a considerably lower order than in the Tribunal's hearings being conducted in public and the evidence given being available for public scrutiny. There may well be a public interest in having information as to what proceedings are commenced in the Tribunal and subsequently withdrawn and by whom they were commenced; if that is so, it is still, I consider, an interest of a considerably lower order than the interest in hearings being in public and in the evidence being available for public scrutiny.

"(19) When application is made for a direction prohibiting the disclosure or publication of an applicant's identity, the nature of the legislation under which the proceedings are instituted may be a relevant consideration. Those instituted by VC were under a provision of the FOI Act. The object of that Act is set out in s 3. It is 'to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth'. To say that the legislature intended to encourage members of the public to seek access to information about themselves in the possession of government agencies may be an overstatement; but it is, I think, quite clear from s 3 that it was parliament's intention that members of the public ought not to be discouraged or deterred from doing so. If, against VC's wishes and in spite of his fears of prejudice from disclosure of his identity as the applicant in these proceedings, his identity could be freely disclosed and publicised together with the nature of the decision under review, there would, I consider, be a substantial risk that other persons might be discouraged or deterred from making application to the Tribunal under the FOI Act." (Pages 591-593)

15. This tribunal accepts and agrees with the learned Deputy President. It is a matter of much less import to suppress the name of a party or a witness than to close a hearing. The tribunal also agrees with the learned Deputy President that, in considering a request for an order suppressing the name of a party, it can be relevant to consider the nature of the legislation under which the proceedings are instituted.

16. In the present case the proceedings are brought under the Social Security Law as defined in s 3(4) of the Social Security (Administration) Act 1999 ("the Administration Act"):

A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the 1991 Act or any other Act that is expressed to form part of the social security law.

17. The respondent's substantive social security rights are regulated by the 1991 Act. The applicant's right to seek review of the SSAT decision emanates from s 179 of the Administration Act. The Administration Act in s 204 contains strong protections in relation to the personal information of social security recipients and others (referred to as "protected information"):

Offence--unauthorised use of protected information

204 (1) If:

(a) a person intentionally:

(i) makes a record of; or

(ii) discloses to any other person; or

(iii) otherwise makes use of;

information; and

(b) the person is not authorised or required by or under the social security law or the Farm Household Support Act 1992 to make the record, disclosure or use of the information that is made by the person; and

(c) the person knows or ought reasonably to know that the information is protected information;

the person is guilty of an offence.

(2) An offence against subsection (1) is punishable on conviction by imprisonment for a term not exceeding 2 years.

(3) Strict liability applies to the element of an offence against subsection (1) that a person not authorised or required to do something is not authorised or required by or under the social security law or the Farm Household Support Act 1992 to do that thing.

18. "Protected information" is defined in s 23(1) of the 1991 Act:

protected information means:

(a) information about a person that is or was held in the records of the Department or of the Agency; or

...

19. This statutory scheme reflects essentials of the administration of the Australian social security system. The Australian system is generally needs-based. This requires Centrelink to retain voluminous personal or protected information on its files and databases concerning recipients and those associated with them. The system also depends on recipients notifying Centrelink of personal information touching on such personal matters as the whereabouts, finances, family arrangements and employment of recipients and others associated with them. As a quid pro quo the system offers explicit statutory protection in relation to such personal information.

20. The statutory scheme under which the tribunal operates has to work for a multiplicity of statutory environments affecting the overall operations of government. The tribunal's scheme favours openness in proceedings and decision-making. However, s 35 of the Act provides for derogation from that degree of openness in appropriate circumstances. The cases discussed earlier show how the tribunal has gone about that task.

21. In the social security context very few tribunal decisions are published with the name of a party suppressed. This reflects the fact that few social security recipients coming before the tribunal request that this occur. Where such a request is forthcoming the tribunal, as currently constituted, is inclined to treat the request seriously in view of the specific provisions in the Social Security Law, especially where the request leaves open the publication of full reasons for decision and an open hearing.

CONCLUSION

22. The tribunal has decided that it is appropriate to accede to the respondent's request that his name not be published by the tribunal.

DECISION

23. The tribunal directs that the name of the respondent in this application is not to be published.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

Signed: David Reed..........................................................

Associate

Date of hearing 16 January 2003

Date of decision 17 January 2003

Advocate for the applicant Mr R Huttner, Centrelink Advocacy and Administrative Law Team

Counsel for the respondent Self-represented