Boardman and Secretary, Department of Social Services (Social services second review) - [2021] AATA 3144

Boardman and Secretary, Department of Social Services (Social services second review) [2021] AATA 3144 (2 September 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1805
Re:John Boardman
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:2 September 2021
Place:Sydney

The application for the granting of a confidentiality order is refused.
..................................[sgd]......................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – interlocutory application for confidentiality order over documents before the Tribunal – general principle of public hearing – whether any harm or disadvantage would be suffered by the applicant – application for confidentiality order refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Archives Act 1983 (Cth) s 6
Child Support (Registration and Collection) Act 1988
Children (Criminal Proceedings) Act 1987 (NSW) s 15A
Family Law Act 1975 (Cth) s 121
Financial Institutions Supervisory Levies Collection Act 1998 (Cth)
Industry Research and Development Act 1986 (Cth)
Insurance Acquisitions and Takeovers Act 1991 (Cth)
Migration Act 1958 (Cth) s 91X
Paid Parental Leave Act 2010 (Cth)
Superannuation (Self-Managed Superannuation Funds) Taxation Act 1987 (Cth)
Taxation Administration Act 1953 (Cth)
CASES
Australian Careers Institute P/L and Australian Skills Quality Authority [2016] AATA 730
Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185
Flood and Secretary, Department of Social Security [1994] AATA 13
JWTT and Commissioner of Taxation [2017] AATA 1612
Kadeh and Migration Agents Registration Authority [2018] AATA 4461
Lee and Minister for Immigration and Border Protection [2019] AATA 84
Panganiban and Australian Securities & Investment Commission [2016] AATA 703
Opus Capital Ltd and Australian Securities and Investments Commission [2010] AATA 694
Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64
Poidevin and Australian Securities & Investment Commission [2018] AATA 124
Smart City Vocational College P/L v Australian Skills Quality Authority [2017] FCA 198
Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 107
VC and Australian Federal Police [1985] AATA 337
SECONDARY MATERIALS
Chris Puplick AM, “Justice: Now open to Whom?" in Judicial Review, Vol. 6, No. 1, September 2002
Commonwealth Director of Public Prosecutions, National Legal Directions: Suppression orders, Non-Publication Orders and Pseudonym Orders (March 2021)
Guideline on the Disclosure and Non-disclosure of Personal Information in AAT Decisions
Commonwealth, Parliamentary Debates, House of Representatives, 6 March 1975, 1186-1188
Naaman Zhou, “Suppression orders in Australia: why you can’t read what you may want to”, The Guardian, 14 December 2018
REASONS FOR DECISION
Chris Puplick AM, Senior Member
2 September 2021

This is an application for a confidentiality order to be made under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on behalf of Mr John Boardman (the Applicant).
The genesis of this request lies in proceedings which involve a dispute between the Applicant and the Secretary, Department of Social Services (the Respondent) regarding payment of family tax benefit (FTB) for the Applicant’s three children.
The issues involved in those proceedings are not of immediate concern in this hearing, other than to note than the Applicant has lodged an appeal against a decision made by the Social Services and Child Support Division of this Tribunal (AAT1) on 22 March 2021 affirming a decision by the Respondent to cancel the Applicant’s FTB payments.
The hearing took place on 23 August 2021 by telephone and in accordance with the Tribunal’s COVID-19 protocols.
THE REQUEST
The Applicant has refined his request which was initially cast in the following terms:[1]
“I refer to this matter which is currently proceeding in the General Division of the AAT, for which I am requesting a Confidentiality Order for the following reasons:
1. Documentary evidence provided for this matter includes information from my family’s confidential Centrelink file. It is not appropriate that this confidential information be made available for public access.
2. One of the points I have raised in relation to Section 24 of the A New Tax System (Family Assistance) Act 1999, concerns the medical condition of [Applicant’s family member]. It would not be appropriate to disclose in the public domain, the medical condition of a person that is not party to the matter.”
[1] Applicant’s Submission dated 18 June 2020.
More latterly he submits:
Accordingly, the only evidentiary documents relevant to the hearing that have been lodged with the Tribunal, including those provided in the letter, dated 22 April 2021, from the respondent to the applicant enclosing the “T-documents”, are as follows:
·T5 page 29
·T17 pages 73 to 325
No other document including the “T documents” is relevant to the above two issues and therefore confidentiality is requested for the remainder of the “T-documents” and any other document. Confidential information should not be disclosed when it has no relevance to the issues to be considered. There would be an injustice if private and confidential documents submitted by the respondent with no relevance to the issues, is made public.[2]
[2] Applicant’s Submission dated 7 August 2021.
THE RELEVANT MATERIAL
The remaining material in the Tribunal documents (T-documents), which was submitted by the Respondent under section 37 of the AAT Act, for the purposes of the substantive hearing of the Applicant’s request for review, consists of:
(a)copies of formal applications for review to the Tribunal;
(b)records of decisions made by various departmental decision-makers;
(c)record of the decision of the AAT1:
(d)copies of relevant legislation: and
(e)Centrelink letters and records appertaining to the payments of family assistance allowance to the Applicant.
It is primarily the material in item (e) above which the Applicant seeks to have covered by a confidentiality order.
THE LEGISLATIVE FRAMEWORK
Section 35 of the AAT Act provides:
35 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.
Note: See section 35AA.
There is nothing in the Second Reading Speech[3] nor the Explanatory Memorandum to the Bill which elucidates any further the intent of this section which must simply be read at face value.
[3] Commonwealth, Parliamentary Debates, House of Representatives, 6 March 1975 at 1186-1188.
For the last 18 months or so the principle of public hearings has been compromised by the exigencies of the COVID-19 pandemic such that, faute de mieux, most Tribunal hearings have been conducted either by use of the Microsoft Teams platform or by telephone and have not been, in any genuine sense held “in public”.
Nevertheless, the principle remains.
What is important to note however, is that it is upon the Applicant that the burden falls when seeking to enliven the Tribunal’s powers under section 35 of the AAT Act. Unless otherwise constrained by statute (as will be discussed) the Tribunal must conduct its hearings in public and must publish its reasons and disclose the material upon which it based its findings. It is up to the applicant to make a compelling case for the Tribunal to depart from this procedure.
AN APPRECIATION OF PRIVACY ISSUES
The Tribunal understands fully the concerns of the Applicant and indeed is not entirely unsympathetic to them.
The Senior Member constituting the Tribunal in this instance was, from 1998 to 2003, the New South Wales Privacy Commissioner and in that capacity made a series of presentations to judicial authorities regarding the very issue now before the Tribunal.
These were:
(a)Justice: Open to Whom? : Address to the Annual Conference, Supreme Court of New South Wales, 25 August 2001.
(b)Justice: Now Open to Whom? : Address to Annual Conferences of Industrial Relations Commission and Compensation Court of New South Wales, 2 and 16 May 2002.
(c)Open Justice: Cui Bono? : Address to 3^rd Australian institute of Judicial Administration “Technology for Justice” Conference, 22 October 2002.
(d)Court Rulings and Privacy Issues: Address at SHIP Project Sixth International Symposium, Faculty of Law, Meiji University, Tokyo, Japan, 31 May 2003.
A printed version of these texts appeared as
·“How far should the Courts be exempted from Privacy Regulation” in Law Society Journal, Vol. 40, No.5, June 2002. This paper was referenced in KT v Sydney Local Health Network [2011] NSWADTAP 10 at [53].
·“Justice: Now open to Whom?” in Judicial Review, Vol. 6, No. 1, September 2002 at 95-109.
One of the central themes of these papers was stated as:
“Information produced in court is often produced as a result of the exercise of coercive powers and may be information which would never otherwise have entered the public domain. What happens when an individual is compelled in court - against their will perhaps - to provide information about their health status (that they have terminal cancer) or about their sexuality (that they are homosexual or transgender) or about their genetic relationship to another person, or where psychiatrists' subjective reports are involved - does the fact that the information was coerced from, or provided by, them in court then mean that it can be broadcast to the world at large in a way which would not be permitted were the disclosure made in some other forum?”[4]
[4] Chris Puplick AM, “Justice – Now open to Whom? in Judicial Review, Vol. 6, No. 1, September 2002 at 100.
RESTRICTIONS ON PUBLICATION
The Tribunal itself is bound in certain instances to withhold details from its published decisions or to substitute pseudonyms. These are set out in the Tribunal’s Guideline on the Disclosure and Non-disclosure of Personal Information in AAT Decisions. Deputy President Forgie has also issued a paper entitled Confidentiality and Privacy – a Rough Guide which is of assistance to Tribunal members.
By way of example it is noted that the AAT does not publish written decisions made on first review by the Social Services and Child Support Division of the Tribunal and certain other limited proceedings. Non-disclosure also applies to matters under section 35AA of the AAT Act dealing with Security Division proceedings or where the Attorney-General issues a certificate of non-disclosure on public interest grounds.
Other laws of both the Commonwealth or the States and Territories may inhibit publication of details by this Tribunal (and others). Some Commonwealth laws mandate private Tribunal hearings,[5] while others suggest that consideration should be given to section 35 orders.[6]
[5] Industry Research and Development Act 1986 (Cth); Insurance Acquisitions and Takeovers Act 1991 (Cth); Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 (Cth); Financial Institutions Supervisory Levies Collection Act 1998 (Cth) and Taxation Administration Act 1953 (Cth) (on application by the parties).
[6] Child Support (Registration and Collection) Act 1988 (Cth); Paid Parental Leave Act 2010 (Cth).
Section 91X of the Migration Act 1958 (Cth) prohibits the publication of “the persons’ name” in relation to certain matters involving Protection Visas.
Section 121 of the Family Law Act 1975 (Cth) make it an offence to publish certain details of proceedings under that Act.
The Commonwealth Director of Public Prosecutions has issued a paper in which it states:
“The CDPP is committed to the principle of open justice and the public’s right to know what is happening in the criminal justice system. The reporting of cases not only promotes public confidence in the judicial system and the administration of justice but reinforces the important role deterrence plays in sentencing criminal offenders.
The CDPP also recognises that the principle of open justice needs to be reconciled with other important considerations such as national security, ensuring a fair trial and the protection of vulnerable witnesses. As a general proposition, suppression orders will only be warranted in very special circumstances and should be limited in scope to only what is absolutely necessary to further the administration of justice in the particular circumstances of a case.
On the occasions that such protection is required, the CDPP may seek court orders to protect certain evidence or information or advise another Commonwealth agency or entity of the development of a situation where they may wish to make an application to the court. Courts have a limited power at common law to make suppression orders. However, suppression orders are more commonly made pursuant to Commonwealth, State or Territory legislation.”[7]
[7] Commonwealth Director of Public Prosecutions, National Legal Directions: Suppression orders, Non-Publication Orders and Pseudonym Orders (March 2021).
Suppression orders are often controversial, may cover a wide variety of circumstances and are generally opposed by representatives of the media restrained from reporting fully matters which are often of public interest.[8]
[8] Naaman Zhou: “Suppression orders in Australia: why you can’t read what you may want to”, The Guardian, 14 December 2018.
Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits the publication of the name of a minor child in relation to being either an offender or a victim of certain offences.
Of course, Australia also has “secret courts”. In early 2019 a person known only as “Witness K” was sentenced to a term of imprisonment of almost three years following a trial in which he was charged, convicted and sentenced in complete secrecy.
SOME PRINCIPLES FROM CASE LAW
In Pochi the Tribunal held as follows:
In the ordinary exercise of this Tribunal's jurisdiction, the Tribunal is required by its statute (s.36(4)) to apply the principle that the parties "should be made aware of all relevant matters", and that is a principle from which the Tribunal departs with reluctance…
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). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. 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 publication of the proceedings would be contrary to the public interest…[9]
[9] Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64.
Under the heading “The Section 35(2) Issues”, the Full Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 stated (at [74]-[76]):
Again, we think it is important to emphasise certain aspects of the statutory provisions. Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised "sparingly". It also explains the approach in Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559; [2008] FCAFC 164 at [6], [41] and [42] (an appeal to the Full Court of the Federal Court from the decision of the AAT in Re PTLZ and Australian Securities and Investments Commission (2008) 100 ALD 648; [2008] AATA 106) emphasising that the words of s 35(3) require this principle of the desirability of hearings to be in public to be "the basis" of the AAT’s consideration of adopting a different approach (in contrast, for example, to "a basis" for that consideration).
Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.
When measured against the existence of the norm of a public hearing and the scheme established by the Corporations Act with respect to banning orders, it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient’s reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order.

In a slightly more ambiguous determination, the Tribunal held that:
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. …So I am proceeding on the basis that VC has to show that there are good grounds for the direction prohibiting disclosure or publication of his identity as the applicant in these proceedings to continue in force.[10]
[10] VC and Australian Federal Police [1985] AATA 337.
More briefly:
·in Panganiban, Poidevin and Lee[11] it was held that “reputational damage” will generally not be a persuasive ground for a confidentiality order;
·in Kadeh and Australian Careers Institute P/L[12] the Tribunal stressed the “protective purpose” of the relevant statutory scheme which would be compromised if full details were not made available to the public;
·in JWTT[13] it was recognised that a “commitment to transparency can come as an uncomfortable surprise to applicant and witnesses”;
·in Flood[14] the Tribunal stressed that the public interest supported the “general disclosure of all matters relevant to the decision-making processes of the Tribunal” (emphasis added);
·in Smart City Vocational College P/L[15] the Federal Court held that once the publication of the decision had taken place, “publication of the reasons… is unlikely to add much, if anything, to the damage that will otherwise be incurred”;
·in Soames[16] the applicant raised the question of a “potential to cause distress if details of his son’s medical and legal issues were to be raised” and the Tribunal found that they were not relevant to the issue before the Tribunal and so did not reference them at all in its decision; and
·in Opus Capital Ltd[17] on the other hand the Tribunal granted a confidentiality order where there was a strong case advanced that publication, at that particular time, would be likely to have a major impact on the financial viability of one of the parties.
[11] Panganiban and Australian Securities & Investment Commission [2016] AATA 703; Poidevin and Australian Securities & Investment Commission [2018] AATA 124; Lee and Minister for Immigration and Border Protection [2019] AATA 84.
[12] Kadeh and Migration Agents Registration Authority [2018] AATA 4461; Australian Careers Institute P/L and Australian Skills Quality Authority [2016] AATA 730.
[13] JWTT and Commissioner of Taxation [2017] AATA 1612 at [16].
[14] Flood and Secretary, Department of Social Security [1994] AATA 13 at [12].
[15] Smart City Vocational College P/L v Australian Skills Quality Authority [2017] FCA 198 at [9].
[16] Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 107 at [65].
[17] Opus Capital Ltd and Australian Securities and Investments Commission [2010] AATA 694.
THE RESPONDENT’S POSITION
As noted, the Respondent relies upon the general principle set out in section 35(1) of the AAT Act that its hearings should be held in public. It further relies, heavily, on the fact that the onus in this matter lies upon the Applicant to persuade the Tribunal to grant such orders.
Other than that, its Submissions Opposing Application for Confidentiality Order (at [25]) merely sets out relevant authority in the matter and concludes making the point about publication that:
“Further, the Secretary contends that the publication of decisions provides guidance and clarification on often complex factual scenarios and technical legislative provisions. This information is invaluable to the government departments which administer the legislation, lawyers representing clients, welfare rights advocates and applicants who may be in similar situations. The Secretary contends that the restriction on the publication of decisions limits understanding on the application of the law and of what can be expected in future matters.”
ISSUES OF “RELEVANCE”
The Applicant’s basic position is that he seeks to exclude by way of confidentiality order reference to material which he does not regard as “relevant” to the issue which must ultimately be decided by the Tribunal.
It is not the task of this Tribunal to determine what might or might not be relevant at some future hearing, nor does it advance any understanding for the Respondent to simply state that all the material was material previously before the AAT1. Deciding relevance is a task for the substantive hearing.
However, one example may suffice. The Applicant seeks exclusion of all the documents listed in the Index to the Tribunal Documents as “Centrelink notice – family assistance”. These however will be critically relevant documents to decide the Applicant’s claims about what he was or was not told by Centrelink about his reporting obligations. No sense could be made of the claim in the absence of these documents and no external party could appreciate whether or not the Tribunal was correct in making a determination if these records were excluded for external review by a confidentiality order.
HARM OR DISADVANTAGE
The Applicant has advanced no substantial claims, supported by evidence, of what realistic damage might be suffered by him or members of his family were certain details of his personal and financial position to be made public.
In the first instance it is drawing a long bow for the Applicant to claim that the mere existence of material before the Tribunal constitutes, in his words, “an invitation to voyeurs” to pry into his private life. There is no evidence why anyone would want to, or be motivated to, let alone that they would have the capacity to do so.
The documents themselves are not published in the way that decisions of the Tribunal are published. For a person to access them they would need, in the first instance, to know about them, then make an application for access to them and then persuade the Tribunal to grant that access, provided that the documents had not been destroyed as part of the Tribunal’s regular practice of culling documents in line with National Archives Disposal Authority regime.[18]
[18] Archives Act 1983 (Cth) s 6(h).
It may well be, at the substantive hearing, that the Applicant objects to the tender into evidence of any material, in which case the Tribunal at that time can determine whether or not to admit the material in question.
Equally the Applicant is free to ask the Tribunal or record to grant a pseudonym relacing his proper name in the public record. That again is a matter for another time and place.
The Tribunal also notes that the Applicant does not appear to have contemplated the potential position arising from the creation of a transcript of the Tribunal hearings. It is standard practice for all Tribunal hearings to be recorded and, at the request of a party, a written copy of that transcript can be produced. It may well be that discussions in that hearing, and evidence, given under oath, could constitute far more of a concern to the Applicant than copies of dreary departmental documents.
In relation to the specific matter of the health of a member of the Applicant’s family, the Respondent rightly points out that the family member is not identified by name in any of the documents. In the unlikely event that this becomes a matter of relevance it will be open to the parties or the Tribunal to refer in an anodyne fashion to “the ill health of a family member” or some such formulation.
CONCLUSIONS
The starting point in all such considerations must be the explicit words of the Act that, “[s]ubject to this section, the hearing of a proceeding before the Tribunal must be in public.”
To derogate from that principle the Applicant must show good cause why such derogation is warranted. Mere embarrassment or indeed potential reputational damage is not enough; nor is some hypothetical concern about voyeurs lurking in the musty archival records of the Tribunal’s storerooms.
The Applicant will be able, at the substantive hearing to direct the Tribunal’s attention to matters of relevance and then some of the onus might revert to the Respondent to establish that.
For now however, no good reason has been given for the granting of any form of confidentiality order.
DECISION
The application for the granting of a confidentiality order is refused.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 2 September 2021

Date(s) of hearing: 23 August 2021

Applicant: In person

Solicitors for the Respondent: Ms B Erak, Services Australia

Date(s) of hearing:	23 August 2021
Applicant:	In person
Solicitors for the Respondent:	Ms B Erak, Services Australia