NMDR and Secretary, Department of Social Services (Social services second review)

[2018] AATA 3462

NMDR and Secretary, Department of Social Services (Social services second review) [2018] AATA 3462 (12 September 2018)

Division:GENERAL DIVISION

File Number:           

Re:NMDR

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:12 September 2018

Place:Perth

1.The Tribunal refuses the request for a confidentiality order under section 35 of the Administrative Appeals Tribunal Act 1975 in relation to the 2005 Hearing with NMDR as the Applicant and the Secretary of the Department of Employment and Workplace Relations as the Respondent.

2.Under section 35(4) of the Act, the Tribunal orders that information lodged with or otherwise given to the Tribunal in relation to the 2017 Hearing, with NMDR as the Applicant and the Secretary of the Department of Social Services as the Respondent, is restricted only to the Applicant, the Respondent and officers of the Tribunal, and is prohibited from publication to any other persons.

..............[sgd]..........................................................

Senior Member D. J. Morris

CATCHWORDS

PRACTICE AND PROCEDURE – request for confidential orders on two published decisions – jurisdiction of the Tribunal after hearings concluded – power of Tribunal to make such orders exercisable – basis for request - consideration of passage of time in relation to each hearing – whether parties aware of ability to seek orders before hearing – section 35 order restricting access to evidence in one hearing made

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 2A, s 29, s 35

Migration Act 1958 (Cth), s 501K

CASES

Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208

Re Sheepskin and Opal Exporters & Others and Export Development Grants Board [1984] AATA 406

REASONS FOR DECISION

Senior Member D. J. Morris

12 September 2018

Background

1. On 12 July 2018 the Applicant (NMDR) sent an email to the Tribunal seeking a confidentiality order in relation to two previous decisions of the Tribunal where NMDR was the Applicant, one in 2005 (the 2005 Hearing) and the other in 2017 (the 2017 Hearing).

2. NMDR sent a further email to the Tribunal on 16 July 2018 (the Applicant’s Submission) in which he expanded upon his request, stating:

   I would like confidentiality orders because the matters contain much medical information about me. I obviously don’t want my medical information to be available to the public.

   NMDR also said in the email that he no longer resided at the address he gave the Tribunal in relation to the 2017 Hearing and was currently overseas and only contactable by email.

3. The Tribunal contacted the Respondent to seek her view on NMDR’s request.  The Respondent made submissions received on 6 August 2018 (the Respondent’s Submission) opposing the request for orders in relation to both the 2005 Hearing and the 2017 Hearing. 

4. On 23 August 2018, the Tribunal contacted NMDR and said that a telephone hearing would be convened to consider the request for confidentiality orders or, if preferred, NMDR could make written submissions without the Tribunal holding a hearing.  On the same date NMDR indicated that written submissions would be provided and NMDR consented to the Tribunal proceeding to make a decision on the request without holding a hearing. 

5. On the same day that the Tribunal provided NMDR with the Respondent’s Submission, the Tribunal invited the Applicant to make any written response by 30 August 2018, after which the Tribunal would consider submissions from both parties and make a decision in relation to NMDR’s request.

6. On 29 August 2018, NMDR made a further written submission to the Tribunal in response to the Respondent’s Submission (the Applicant’s Reply Submission).

   Jurisdiction question

7. The Administrative Appeals Tribunal Act 1975 (Cth) (the Act) provides, at section 35, as follows:

   Public hearings and orders for private hearings, non-publication and
   non-disclosure

   Public hearing

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

   Private hearing

   (2)The Tribunal may, by order:

   (a)direct that a hearing or part of a hearing is to take place in private; and

   (b)give directions in relation to the persons who may be present.

   Orders for non-publication or non-disclosure

   (3)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:

   (a)information tending to reveal the identity of:

   (i)     a party to or witness in a proceeding before the Tribunal; or

   (ii)    any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or

   (b)information otherwise concerning a person referred to in paragraph (a).

   (4)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

   (a)relates to a proceeding; and

   (b)is any of the following:

   (i)     information that comprises evidence or information about evidence;

   (ii)    information lodged with or otherwise given to the Tribunal.

   (5)In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:

   (a)that hearings of proceedings before the Tribunal should be held in public; and

   (b)that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

   (c)that the contents of documents lodged with the Tribunal should be made available to all the parties.

   However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

   Not applicable to Security Division review of security assessment

   (6)This section does not apply in relation to a proceeding in the Security Division to which section 39A applies.

8. NMDR is taken to have made a request for an order under section 35(4) of the Act.

9. Having made decisions in relation to the 2005 Hearing and the 2017 Hearing, the Tribunal is functus officio in relation to the substantive matters reviewed in each of those decisions, but the Respondent submitted that the power of the Tribunal under section 35 of the Act is separate and capable of being exercised.

10. This question was considered by the Tribunal in Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208 (Le), where Deputy President Forgie said, at [12]:

    Once a Tribunal has decided an application and exercised its powers under s 43, it is generally said that it is functus officio. It has used up all of its powers because it has been given the task of reviewing a decision and, having done that, it has completed its task. Whether it has used up all of its powers is a slightly different question. Occasionally, it will have decided an application but there will be some ancillary questions that need to be answered. One might relate to whether the decision-maker should pay the costs of an applicant who successfully applies for review of a decision in the Tribunal’s compensation jurisdiction. The Tribunal has the power to decide such a question for it has not completed every aspect of its task. Expressed in a different way, s 35 is a separate head of power from that to review the decision and it persists after the decision has been reviewed.

11. Further, after discussing the removal or variation of existing section 35 orders, Deputy President Forgie continues, at [15]:

    The same reasoning leads me to conclude that new orders for confidentiality may also be made after the hearing and the decision has been handed down and the parties have had an opportunity to read and consider it. That is the time at which the parties are focused on the material and fully across the material and its implications. After that, parties may no longer be available or focused on the issues in the same way. That is not to say that the power cannot be used after the application has been heard and decided. Section 35 is not limited in its terms to the time at which an order may be made.

12. The Tribunal, with respect, agrees with this reasoning, and finds that the power to make an order under section 35 of the Act remains live and is exercisable in relation to both the 2005 Hearing and the 2017 Hearing.

    The Applicant’s submissions

13. As set out above, the reasons NMDR initially stated for seeking a section 35 order were that “the matters contain much medical information about me” (Applicant’s Submission).  NMDR expanded on this in the Applicant’s Reply Submission, received on 28 August 2018:

    … No person wants their medical information made public. A doctor is not allowed to divulge medical information about a person to others. The AAT should not be allowed to do this. Many of the documents I submitted are headed ‘Private and Confidential – To the AAT’ – meaning it should not be available to any others. I have never heard of a person’s medical history lawfully being made public, even after the person’s death, but if they went to the AAT the world can read the person’s medical history. This is absurd. This could be damaging to me, it could result in loss and discrimination against me.

    The Respondent’s Submission

14. The Respondent submitted that in consideration of the exercise of the power under section 35 of the Act, the Tribunal is required to consider certain matters, including the principle set out in subsection 35(5)(b) of the Act “that it is desirable…that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public...” (Respondent’s Submission, para [3]).

15. In response to the Applicant’s Submission relating to the matters containing medical information about the Applicant, the Respondent submitted that this (Respondent’s Submission, para [6]):

    …does not take the Applicant outside of the category of other claimants under the social security law who exercise their right to apply to the General Division for review of decisions. It is insufficient to displace the requirement that evidence and documents in the proceedings continue to be made available to the public in the Tribunal’s published decisions.

16. The Respondent submitted that if the Tribunal were to make the order sought, such a decision would also not contribute to the achievement of the objectives in section 2A of the Act (Respondent’s Submission, para [7]).

17. Section 2A of the Act sets out:

    2A Tribunal’s objective

    In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

    (a)is accessible; and

    (b)is fair, just, economical, informal and quick; and

    (c)is proportionate to the importance and complexity of the matter; and

    (d)promotes public trust and confidence in the decision-making of the Tribunal.

18. The Respondent submitted that consistency with established practice is relevant to the attainment of fairness and the promotion of public trust and confidence in the Tribunal’s decision-making (Respondent’s Submission, para [7].

    Consideration

19. In Re Sheepskin and Opal Exporters & Others and Export Development Grants Board [1984] AATA 406 (Sheepskin), the Tribunal, constituted by the then President, Davies J, with Member Pascoe, considered a request for a confidentiality order and an argument put in that matter that an order should be made unless there were exceptional circumstances for disclosure to persons other than the parties.  In response to that submission, the Tribunal stated, at [12]:

    …In our view, however, the general rule with respect to proceedings of the Tribunal must prevail. The general rule enunciated by s. 35 of the AAT Act is that proceedings before the Tribunal shall be in public unless good reason to the contrary is shown…

20. It is important to note that the Tribunal expressed this view where an enactment conferring a power of review on the Tribunal does not, itself, contain confidentiality provisions (cf, for example, section 501K of the Migration Act 1958).

    2005 Hearing

21. The Tribunal has considered NMDR’s request for a confidentiality order and the grounds put forward by the Applicant.  In relation to the 2005 Hearing, the Tribunal has carefully read the decision and is satisfied that it does not disclose any medical information in relation to the Applicant.  The practical utility of an order prohibiting the publication of information that has been published for some 13 years is also, in the view of the Tribunal, somewhat nugatory. 

22. The Tribunal refuses NMDR’s request for an order under section 35 of the Act in relation to the 2005 Hearing.

    2017 Hearing

23. In relation to the 2017 Hearing, the Tribunal is conscious that the decision was: made back in May 2017; published by the Tribunal at the time; and provided to the Australasian Legal Information Institute who published the decision on its website in accordance with regular practice for General Division decisions.

24. When a person makes an application to the Tribunal for review of a decision under section 29 of the Act, it is the practice of the Tribunal to send a written acknowledgement. NMDR was sent a written acknowledgement on 6 July 2016 in relation to what became the 2017 Hearing. Amongst other information, that letter stated:

    If you give us information that the respondent or any other party to the review does not have, we usually give them a copy. 

    Limited information about a case is usually made available to the public on request and can be accessed using eCase Search, our online case search tool. This information includes the names of the parties and any representatives, the type of application, dates of case events, the types of key documents given to us by the parties and the outcome of the application.

    More information is usually made publicly available if we hold a hearing and make a decision in the case. Our hearings are usually open to the public, and most of our decisions are published on the internet.

    We can order that information be kept confidential if we believe there is good reason to do so. You can apply for an order by writing to us stating what you want kept confidential and why. In some cases, legislation requires that information be kept confidential.

    For more information, see our fact sheet Privacy and confidentiality at the AAT and our Privacy Policy. Our Privacy Policy tells you how you can access and seek correction of personal information we hold about you, how to make a complaint about the way we have handled your personal information and how we will deal with such a complaint.

    The fact sheet and Privacy Policy are on our website, or ask us and we will send them to you.

25. When a matter is listed for hearing, parties are also sent a letter which includes the following paragraph:

    Our hearings are usually open to the public. Our decisions are usually made available to the public, including on the internet. Where there is good reason to do so, we may order that a hearing be held in private or that the identity of a person is kept confidential. We can also restrict the publication of evidence given to us or information contained in documents given to us.

26. I am satisfied that NMDR was made well aware of the ability to seek a confidentiality order in relation to the 2017 Hearing, both when the Tribunal acknowledged the application in July 2016 and again when NMDR was notified in March 2017 of the hearing date.  NMDR chose not to make any such request at that time, or in the hearing itself.

27. The Tribunal accepts that the inclusion of certain medical information in a published decision may be a source of discomfort to an applicant.  However, in the case of the 2017 Hearing, certain medical facts were directly germane to the matter which NMDR had brought to the Tribunal for review because the principal question before the Tribunal in that matter was whether or not the Applicant’s medical conditions meant that NMDR had an inability to work.

28. In Le, Deputy President Forgie stated, at [46]:

    I am not prepared to make an order restricting the publication of the applicant’s name, in whole or in part, or of other material in the reasons. Whether he was aware of it or not, the proceedings were public proceedings. They related to his application for Austudy from the Department. As the basis of his application was homelessness, the reasons contain some material whose recitation he might find disquieting but it is not material that describes his current circumstances. The reasons do not dwell on the evidence and refer to only so much as is necessary to explain the Tribunal’s reasoning processes. It is important that those processes remain exposed to public scrutiny not only that others may refer to the reasons but that it can be seen that the Tribunal was not acting, and does not act, in an arbitrary fashion in deciding each case…It may be embarrassing at times but that is not a reason for restricting publication.

29. I adopt the same reasoning in relation to the publication of the decision in the 2017 Hearing.

30. As the decision in Sheepskin makes clear, the construction of section 35 requires that, in considering whether to make orders prohibiting or restricting the publication of information relating to a proceeding, the Tribunal must take as the basis of its consideration that: hearings should be held in public; evidence and the contents of documents received in evidence should be available to the public; and the contents of documents lodged with the Tribunal should be available to all parties.

31. The Tribunal accepts that certain medical information contained in documents lodged by parties in relation to the 2017 Hearing may be reasonably considered to be personal to NMDR.  After careful consideration, the Tribunal concludes that amending the published decision in relation to the 2017 Hearing well over a year after it has been published would be a somewhat futile exercise, especially given that the Tribunal does not control internet search engines which may have re-published the decision on >

    However, the Tribunal is satisfied that the medical and other personal information of NMDR included in the documents considered at the 2017 Hearing should not be available for public access and, therefore, an appropriate order will be made under section 35(4) of the Act in relation to the 2017 Hearing.

    DECISION

32. The Tribunal refuses the request for an order under section 35 of the Act in relation to the 2005 Hearing with NMDR as the Applicant and the Secretary of the Department of Employment and Workplace Relations as the Respondent.

33. Under section 35(4) of the Act, the Tribunal orders that information lodged with or otherwise given to the Tribunal in relation to the 2017 Hearing, with NMDR as the Applicant and the Secretary of the Department of Social Services as the Respondent, is restricted only to the Applicant and the Respondent, and officers of the Tribunal, and is prohibited from publication to any other persons.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..............[sgd]..........................................................

Administrative Assistant Legal

Dated: 12 September 2018

Date of hearing: On the papers