Azzopardi and Secretary, Department of Social Services (Social services second review)
[2019] AATA 105
•8 February 2019
Azzopardi and Secretary, Department of Social Services (Social services second review) [2019] AATA 105 (8 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3033
Re:Joseph Azzopardi
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
File Number(s):2018/3040
Re:Theodora Azzopardi
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:8 February 2019
Place:Sydney
The Tribunal declines to make a confidentiality order under 35 of the Administrative Appeals Tribunal Act 1975.
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Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for confidentiality order – Tribunal is not satisfied that there are cogent reasons to grant order – request for confidentiality order declined by the Tribunal
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Children (Criminal Proceedings) Act 1987 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Freedom of Information Act 1982 (Cth)
Social Security Act1991 (Cth)
CASES
Australian Careers Institute Pty Ltd and Australian Skills Quality Authority [2016] AATA 730
Australian Securities and Investment Commission v Administrative Appeals Tribunal [2009] FCAFC 185
Flood v Secretary, Department of Social Security [1994] AATA 13
Global Financial Markets Pty Ltd and Australian Securities and Investments Commission [2017] AATA 1397
JWTT v Commissioner of Taxation [2017] AATA 1612
Opus Capital Limited and Australian Securities and Investments Commission [2010] 17 AATA 694
Panganiban v Australian Securities and Investments Commission [2016] AATA 703
Paul and Minister for Immigration and Citizenship [2011] AATA 831
Poidevin v Australian Securities and Investment Commission [2018] AATA 124
Re Andy Soames and Secretary, Department of Housing, Community Services and Indigenous Affairs [2012] AATA 107
Re Confidential A and Commissioner of Taxation [2013] AATA 24
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 33
Re Sheepskin and Opal Exporters and Export Development Grants Board (1984) 6 ALD 594
Re VC and Australian Federal Police (1985) 8 ALD 587
Smart City Vocational College Pty Ltd v Australian Skills Quality Authority [2017] FCA 198
SECONDARY MATERIALS
Pearce, David, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworths, 2015)
Puplick, Chris, ‘Justice: Now Open to Whom?’ (2002) 6(1) Judicial Review 95
REASONS FOR DECISION
Chris Puplick AM, Senior Member
8 February 2019
THE APPLICATION
This is an application by Mr Ursola Azzopardi who is authorised to act on behalf of the Applicants, her parents (Mr Joseph Azzopardi and Mrs Theodora Azzopardi), for matters related to her parents’ appeal against a decision by the Social Services and Child Support Division of this Tribunal (AAT1), to be granted an order of confidentiality under section 35(3) of the Administrative Appeals Tribunal Act 1975 (the Act).
The application is opposed by the Secretary, Department of Social Services (the Respondent).
Both parties appeared before the Tribunal by telephone on 6 February 2019 with the matter scheduled for a full merits review/hearing on 18 February 2019.
THE LEGISLATION
Section 35 of the Act is in the following terms:
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.
GOVERNING PRINCIPLES
It will be clear from the express terms of the Act that, unless there are clear reasons why confidentiality orders should be imposed, hearings and decisions should be open to the public or made public. It is from this point that any consideration of the issuing of confidentiality orders must proceed (Global Financial Markets Pty Ltd and Australian Securities and Investments Commission [2017] AATA 1397 at [51]).
Where there is a broad public interest in preserving the confidentiality of names or the position or details of individuals or companies, such orders can be granted, especially if the order is one with only sort-term application (Opus Capital Limited and Australian Securities and Investments Commission [2010] 17 AATA 694) .
Similarly, it may be appropriate for confidentiality orders to be made where matters relate to Protection Visas or refugee claims or identification of the names of children involved in court proceedings.[1]
[1] Such confidentiality requirements may also be imposed by statute: Children (Criminal Proceedings) Act 1987 (NSW), Children and Young Persons (Care and Protection) Act 1998 (NSW).
There are special provisions that cover some matters in the taxation area (Re Confidential A and Commissioner of Taxation [2013] AATA 24) or where the release of certain documents under the Freedom of Information Act 1982 is in dispute (Re Telstra Corporation Ltd and Department of Broadband, Communications and the Digital Economy [2007] AATA 2100).
In past cases the Tribunal has made orders suppressing names or granting pseudonyms in other instances, such as: prejudice to future employment prospects; the need to avoid publicity to assist rehabilitation; being prejudicial to reputation; adverse impact on business activities; where stay applications were on foot; where third parties could be identified or where prejudice to criminal proceedings may occur.[2]
[2] An extensive list of such cases may be found in Pearce D, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworth, Australia7 2015) at [11.15].
However, the preferable position is for the business of the Tribunal to be conducted in public (Australian Securities and Investment Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [75]-[76].) and its decisions to be published regardless of potential “reputational damage.” (Poidevin v Australian Securities and Investment Commission [2018] AATA 124 at [17]; Panganiban v Australian Securities and Investments Commission [2016] AATA 703 at [12]).
Consideration may be given to confidentiality orders where the interest of third parties may be at issue (Australian Careers Institute Pty Ltd and Australian Skills Quality Authority [2016] AATA 730 at [18]) although it is more than likely that the interest of third parties will be best protected by full disclosure.
Once final determinations are made, there is a general public interest that they be published on the basis that their publication is unlikely to cause any additional damage to interests which have already been the subject of negative regulatory or Tribunal findings (Smart City Vocational College Pty Ltd v Australian Skills Quality Authority [2017] FCA 198 at [9]-[10] per Rangiah J.; Re Andy Soames and Secretary, Department of Housing, Community Services and Indigenous Affairs [2012] AATA 107.)
Given the clear provisions of the Act, it is incumbent upon applicants for administrative review to understand that the default position will always be in favour of open hearings and maximum disclosure (Re Sheepskin and Opal Exporters and Export Development Grants Board (1984) 6 ALD 594). Applicants seeking a confidentiality order to redact their names from public view bear the onus to establish that they have good grounds for this (Re VC and Australian Federal Police (1985) 8 ALD 587). As this Tribunal has said, their “case must be sufficiently strong to take the case out of the ordinary.”[3]
[3] Australian Careers Institute Pty Ltd and Australian Skills Quality Authority [2016] AATA 730 at [9].
Furthermore, in doing so, such a grant must be shown to be in the public interest (Re Pochi and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 33). The Tribunal has characterised the public interest as being “paramount in any application for an order pursuant to s 35 of the Act” (Flood v Secretary, Department of Social Security [1994] AATA 13 at [11]).
When this matter goes to a full hearing, those proceedings would (unless an order is made to the contrary) be public. The proceedings are, in that respect, not like those in the AAT1 where matters are heard without the direct participation of other parties and where decisions are not published. The nature of the proceedings embarked upon by an applicant are thus of a different character. In this respect, the comments of Deputy President McCabe are apposite:
“ ….the Tribunal must attach to transparency in its processes. That commitment to transparency can come as an uncomfortable surprise to applicants and witnesses who assume they could deal with the Tribunal in the same way they dealt with the original decision-maker where privacy is the order of the day. Applicants do not necessarily appreciate that, to the extent the Tribunal is an instrument of justice, it is important that justice be done and be seen to be done. Confidentiality orders force justice behind closed doors, which can undermine public confidence.” (JWTT v Commissioner of Taxation [2017] AATA 1612 at [16]).
As the Tribunal has noted, there are some areas of public administration where a degree of confidentiality is necessary for the effective operation and discharge of the underlying public policy objectives. However the Social Security Act1991 is not one of those. Indeed, to the contrary, there is a clear public interest in seeing that its operations are open, transparent and subject to public scrutiny (Flood at [17]).
The protection of privacy is an important public policy objective, even within the ambit of the Australian system of “open justice”, and this is well understood by the Tribunal.[4]
[4] See Chris Puplick, ‘Justice: Now Open to Whom?’ (2002) Judicial Review, Vol.6 No.1 95-109. < Delivered to the Annual Conference of the Industrial Relations Commission of New South Wales, 1-3 May 2002, originally delivered to the Supreme Court of New South Wales Annual Conference, 24-26 August 2001.
On the other hand, secrecy in the proceedings of courts and tribunals is obviously corrosive of public understanding of, and trust in their operations. In this respect the Tribunal has given greater weight to the “openness principle” and ensuring that its decision-making is “conducted and seen to be conducted in a transparent and open manner” (Paul and Minister for Immigration and Citizenship [2011] AATA 831 at [26]).
THE APPLICANT’S SUBMISSION
The Applicant has put to the Tribunal that her father is “afraid” and “fearful” of personal information about him, especially his health status, residential address or asset worth appearing “on the internet”. In her formal communication with the Tribunal, the applicant stated:
“I would like my parents information not to be published online is simply for my they’re (sic) own privacy.”[5]
[5] Applicant’s email to the Tribunal dated 12 December 2018.
No reason was advanced as to why Mr Azzopardi might hold such fears and none was elaborated in oral testimony. Nevertheless the Tribunal understands that people may have genuine concerns about the release of their personal information for any variety of reasons.
It is of course not always necessary that details which are not immediately relevant to the determination of the matter before the Tribunal be released in full. For example, matters of health status, if not relevant to the determination, need not (and probably should not) be mentioned. It is not always necessary to reveal residential addresses.
These are matters which can be brought to the attention of the Tribunal in its hearings and which the Tribunal would be expected to consider appropriately at the time. There will be no inhibition on the Applicant doing so in this case.
CONSIDERATION
The Applicant has simply not advanced any cogent reasons as to why a departure from normal Tribunal practice should be countenanced, therefore the Tribunal cannot accept that a sufficient ground to invoke section 35(3) of the Act has been made out.
Given that the Applicant bears the onus of establishing that such confidentiality orders should be granted and that, in this instance, has failed to do so, the application must fail.
DECISION
The Tribunal declines to make a confidentiality order under 35 of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 8 February 2019
Date(s) of hearing: 6 February 2019 Advocate for the Applicant: Ms U Azzopardi (by phone) Solicitors for the Respondent: Mr S Agnello, Department of Human Services (by phone)
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