Angela Tosun and Secretary, Department of Social Services Mark Hyman, Member 4 September 2014 Canberra
[2014] AATA 641
[2014] AATA 641
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4961
Re
Angela Tosun
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Mark Hyman, Member
Date 4 September 2014 Place Canberra The request for a confidentiality order under section 35 is denied. The request to withdraw a line of argument pursued in the hearing is likewise denied.
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Mark Hyman, Member
PRACTICE AND PROCEDURE – request for a confidentiality order under s 35 – where request made subsequent to hearing – request to abandon line of argument put at hearing - requests denied-
Legislation
Administrative Appeals Tribunal Act 1975, ss 35, 42A, 43
Cases
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 309
Dornan v Riordan (1990) 24 FCR 564
Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
REASONS FOR DECISION
Mark Hyman, Member
4 September 2014
This is an interlocutory decision dealing with two matters raised after a hearing held before me on 31 July 2014. The substantive application concerned whether or not the applicant, Ms Angela Tosun, should receive the baby bonus in respect of her son, who was born in January 2012. Towards the end of the hearing Ms Tosun and her husband, Mr Ugur Tosun, expressed some anxiety about the public nature of the Tribunal process and of the Tribunal decision once made. There followed some discussion of the Tribunal’s powers under section 35 of the Administrative Appeals Tribunal Act 1975 (the Act), and of the Tribunal’s approach to dealing with private information in a decision. At the hearing no direct request was made for a confidentiality order under section 35.
Subsequent to the hearing, and prior to a decision being finalised, Ms Tosun contacted the Tribunal and once again expressed an elevated level of concern at the potential treatment of material which she regarded as very private and personal in the Tribunal’s forthcoming decision. Ms Tosun sent an email to the Tribunal requesting that all personal information, especially relating to financial, health and medical matters, be treated as confidential. The respondent neither supported nor opposed the making of an order, but provided a helpful submission on the considerations that the case law has identified as appropriately guiding the operation of section 35.
On the basis of Ms Tosun’s email, an interlocutory hearing was held by telephone on 21 August 2014. At the interlocutory hearing Ms Tosun sought a confidentiality order under section 35 of the Act. I ruled against the making of such an order. What follows are my reasons for that ruling.
Ms Tosun’s argument for confidentiality related to a particular line of argument put forward at the substantive hearing. At that hearing Ms Tosun had advanced two lines of argument in support of her case for receiving the baby bonus. One of these lines of argument revealed information that she stated was highly private both to her and her son. She said that to have this argument and the evidence in relation to it made public in a Tribunal decision would be extremely embarrassing. The material should not be made known to the general public. An order should be made, therefore, to prevent the material becoming generally available.
The statutory context – section 35
Section 35(1) provides that the Tribunal should hold its hearings in public. Section 35(2) allows the Tribunal, where it considers it desirable to do so, to direct that hearings be held in private, or that evidence, or the names of witnesses, or various other aspects of a proceeding, be not disclosed. Section 35(3) directs that the Tribunal, in deciding whether to make a direction under section 35(2), take as the basis of its decision that hearings and related material should be public, but that it must take into account any reasons put forward in support of the direction sought.
Consideration – confidentiality orders
The leading case on the public nature of Tribunal proceedings is Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64. In that case Brennan J noted that the powers conferred on the Tribunal by section 35(2) were there to be used, but to be used sparingly. The major reason for the grant of an order would be to ensure that information comes forward to the Tribunal to enable an informed decision to be made – that is, the principal purpose of making an order under section 35(2) is to promote a more complete and informed determination of a matter before the Tribunal.
Other cases have followed similar logic. The thread running through them is that there must be a reason, and a substantial reason, for departing from the principle set out in s 35(1) and reinforced in s 35(3). Such a reason might be that an order would allow information to be brought forward that would otherwise not be available, or that it might avert a direct threat to a witness, or that a party’s mental health might be directly impacted by disclosure.
It is unusual for a request for a confidentiality order to be made after a hearing is concluded. Clearly some aspects of the matter are already public by that time. The hearing itself in this matter was held in public and the evidence was given in public. A confidentiality order applying to those parts of the proceedings would seem to little purpose. Nevertheless, Ms Tosun observed - accurately enough - that Tribunal decisions are public documents and remain publicly available indefinitely. What is more, they are more readily accessible to ordinary members of the public than are most other parts of the material connected with any given hearing. It would be possible, therefore, by a suitably constructed confidentiality order, to limit the degree to which certain matters were accessible to the public, if that were indicated taking into account the considerations mentioned in s 35.
In the event, I formed the view that Ms Tosun had failed to articulate a sufficiently compelling reason for imposing a confidentiality order. Ms Tosun’s strong views on the privacy of the matters concerned, and on the potential embarrassment to her family, do not amount to a persuasive reason why the presumption that the Tribunal hears matters in public should be put to one side. For that reason I ruled against the application.
Following that ruling, Mr Tosun raised further reasons for confidentiality, suggesting that public disclosure of the matters of concern had the potential to put the family, and their son in particular, at risk. Having made a ruling, I was not disposed to revisit it; but even if I had been so inclined, I cannot see that these further reasons would have led to a different outcome: Mr Tosun’s reasons were unduly speculative as a foundation for a confidentiality order, in all the circumstances.
Consideration - withdrawal of argument
Following the ruling against the confidentiality order, Mr and Ms Tosun requested that the entire line of argument that raised the matters they wish to be kept private should be abandoned. They said that this argument had been raised only because they had been encouraged by Centrelink to include it to strengthen their case and that they would rather drop the entire line of argument than have the matters involved made public. The remainder of these reasons explains my response to that request.
Again, it is unusual for an applicant to make a request of this kind. Generally speaking, the hearing is where the issues that are raised in respect of the review are canvassed. At the end of the hearing, the issues raised are entrusted to the Tribunal for decision. Under section 42A(1B) of the Act, where an applicant discontinues or withdraws an application in writing, at any time, the Tribunal is taken to have dismissed the application without proceeding to a hearing. But the Act does not provide for some issue, or some line of argument, to be withdrawn, or a matter to be discontinued in part.
It is well established that the Tribunal is bound to consider any argument put to it in the course of a hearing; and even when no argument is put, to consider any matter squarely raised by the material before it (see for example Minister for Health v CharvidPty Ltd (1986) 10 ALD 124; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263). The Tribunal is obliged by sections 43(2) and 43(2B) of the Act to give reasons for its decision. Those reasons must disclose material findings of fact made by the Tribunal and the process of reasoning by which the Tribunal reached its decision. A failure to do so adequately is an error of law (see Dornan v Riordan (1990) 24 FCR 564 at 573; Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 309).
Taking these considerations together, it is inescapable that, given the stage the proceeding has arrived at, the decision on this matter must address both lines of argument put by the applicant (as well as argument put by the respondent). Issues that were ventilated at the hearing must be considered in the decision. The Tribunal’s decision must address those issues and the arguments that relate to them, make material findings of fact, and set out the reasons for the decision that flows from them.
Ms and Mr Tosun suggested that if they could not withdraw their line of argument they would withdraw the application entirely. That is a matter for them. It is perhaps relevant, however, to provide a reminder of the Tribunal’s approach to privacy matters in its decisions. The Tribunal’s practice is only to disclose an applicant’s private information to the extent necessary for the resolution of the issue or issues before the Tribunal. While the need to explore the matters of concern to the Tosuns can only be finally determined in the decision itself, I will make every effort to maintain their privacy.
DECISION
The request for a confidentiality order under section 35 is denied. The request to withdraw a line of argument pursued in the hearing is likewise denied.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member .............................[sgd]...........................................
Associate
Dated 4 September 2014
Date of hearing 22 August 2014 Applicant In person Advocate for the Respondent Stephanie Wende Solicitors for the Respondent Sparke Helmore
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