Brindabella Christian Education Limited and Minister for Education and Youth

[2021] AATA 3814

Brindabella Christian Education Limited and Minister for Education and Youth [2021] AATA 3814 (19 October 2021)

Division: GENERAL DIVISION

File Number(s):2021/3753      

Re:Brindabella Christian Education Limited  

APPLICANT

Minister for Education and YouthAnd  

RESPONDENT

Tribunal:Senior Member Damien O'Donovan

Date: 19 October 2021

Place:Canberra

The Tribunal directs that the respondent lodge with the Tribunal and give to the applicant unredacted copies of pages 1039 and 1223 of the T-Documents.

……………….[sgd]……………….
Senior Member Damien O'Donovan

CATCHWORDS

PRACTICE AND PROCEDURE  - confidentiality orders under section 35 – protection of names and positions of public servants – desirable that the contents of documents lodged with the Tribunal be made available to the parties

LEGISLATION

Administrative Appeals Tribunal Act 1975 ss 35, 37.

WRITTEN REASONS FOR DECISION

Senior Member Damien O’Donovan

19 October 2021

1. The applicant is an approved authority under the Australian Education Act 2013 (the Education Act) in respect of Brindabella Christian College, a private secondary school in the ACT.

2. The decision under review in these proceedings is a decision of a delegate of the respondent dated 17 May 2021 by which the applicant’s approval under the Education Act was varied, making the approval subject to certain conditions.

3. The applicant applied for review of this decision on 8 June 2021.

4. On 12 July 2021 in discharge of obligations imposed by section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) the respondent uploaded to the Tribunal’s Canberra registry server a set of T-Documents. The T-Documents uploaded contained two documents from which certain material had been redacted.

5. The first document which had redactions was entitled Audit of an approved authority Brindabella Christian School Limited Final Audit Report. The redactions were at Appendix C which was entitled ‘List of stakeholders consulted during the audit of BCEL’. The audit referred to is an audit conducted by Bellchambers Barrett for the Department of Education, Skills and Employment. The original redactions covered 12 people, their professional title and the period during which they were consulted. Subsequently the respondent provided a document which had redactions over only the names and details of 5 people. I have been given access to an unredacted set of T-Documents which discloses a complete list of persons consulted during the audit along with their professional title and the dates of consultation.

6. The second document which had redactions is Appendix 2 to T54 which is entitled Letter, Bellchambers Barrett to Department, attaching Bellchambers Barrett response to correspondence from Hicksons Lawyers (who I understand are the lawyers for the applicant). The title of Appendix 2 is – List of stakeholders consulted during the BCEL follow-up review. In the version initially lodged with the Tribunal and provided to the applicant, all of the names of the people consulted were redacted along with their title and the month of consultation. There were four names in total. I have since been given access to an unredacted version of the document.

7. It is worth noting at this point that the AAT Act provides in section 37(1AF) for a process whereby the respondent can exclude documents from the T Documents pending determination of a confidentiality claim. To engage this process the respondent must provide copies to the Tribunal of the documents which it wishes to keep confidential along with an application for confidentiality orders under section 35. Following this procedure relieves the respondent from the obligation to give copies of documents which are subject to the claim to the other party (as required by section 37(1AE)) until the Tribunal has had an opportunity to consider the application for a confidentiality order. The application however must be made within the period in which the respondent was required to file the T-Documents. No application was made within the relevant time frame. By redacting parts of documents on the grounds of confidentiality, without testing the claims using the procedures provided for by the AAT Act, the respondent was making redactions without proper authority and in breach of its obligations under section 37.

8. The respondent has however taken steps to remedy this breach by applying for orders under section 35 in relation to the redacted passages of T43 and T54. I am treating the application as one made under section 35 rather than under section 37(1AF) as the procedure outlined there was not followed. For the purposes of resolving this application, nothing turns on it.

9. There was one further feature of the T-Documents lodged with the Tribunal and given to applicant on 12 July 2021 which has created an issue. The version originally uploaded and provided to the applicant included a version of T48 which included what are described as ‘highlighting and internal comments’. A version of the T-Documents without the highlighting and internal comments was subsequently provided to the applicant. I have not been advised of, nor have I been able to discern from the materials available to me, what the ‘highlighting and internal comments’ consisted of, but I understand that the respondent does not want the applicant to have access to those features of the document and subsequently provided a different version of the document when the first version of the T-Documents was replaced. The applicant did however read the original version provided and as far as I am aware has not been asked to return it.

10. It is against this background that the respondent seeks a direction for confidentiality over redacted parts of the T-Documents which consist of the ‘names, positions and contact details of employees of the Department of Education, Skills and Employment (Department) including within the School Assurance Branch of the Department and employees of the Respondent’s solicitor’.

11. Separately, the applicant takes issue with the respondent’s decision to lodge and provide a new set of T-Documents with a modified T48 which excludes the ‘highlighting and internal comments’.

    Consideration

12. Before considering the application, I note a number of features of the confidentiality provisions in the AAT Act and procedures adopted by the Tribunal.

13. Section 35 relevantly provides:

    (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.

14. There are two things that should be noted about this regime. The first is that it is desirable for parties to have access to the contents of documents lodged with the Tribunal. Second, that it is desirable for the public to have access to the contents of documents received into evidence by the Tribunal.

15. At this stage, the matter is not listed for hearing and we are a long way from taking any documents into evidence. Accordingly, the only question to be determined is whether confidentiality claims should be upheld notwithstanding the principle that it is desirable that the contents of documents lodged with the Tribunal should be made available to all the parties.

16. The respondent submits that ‘the redacted individuals are entitled to confidentiality over their names, positions and contact details.’ There is no elaboration as to why this is the case.

17. In my view it is not the case. What is in issue at present is whether the names and details of those persons should be disclosed to the other party to the proceedings. The disclosure takes place in circumstances where the other party is subject to the implied undertaking to use documents and information obtained solely for the purposes of the proceedings. The individuals in question are mentioned in the documents because they were performing public duties in relation to a decision made exercising public powers. There should be no presumption on the part of public servants that their identities will be routinely hidden from parties affected by decisions if they have participated in the decision-making process. Indeed, given the structure of the provisions in the AAT Act they should assume the opposite. The starting point is that it is desirable that the contents of documents lodged with the Tribunal will be made available to the parties.

18. There is certainly nothing confidential about the fact that a person is a public servant or that they work in a particular position within a particular department. Indeed, those facts are routinely disclosed in the Government Gazette. Further, the fact that a person is working in a particular area is a matter which they are entitled to discuss with others and those that they share the information with would not be betraying a confidence if they were to pass it on. I am satisfied that there is nothing confidential about the information which the respondent is seeking to prevent the applicant having access to. The respondent has not made out any basis for the making of an order withholding certain parts of documents from the applicant. The respondent is obliged by section 37 (1AE) to give a copy of the unredacted documents to the applicant and should do so.

19. The respondent may wish to renew his application for a confidentiality order if a point is reached where the two documents the subject of this application are to be tendered into evidence. Taking the documents into evidence would significantly increase the range of persons who could lawfully access the documents. However, even in those circumstances, evidence of some specific risk associated with the publication of documents revealing the identity and (business) contact details of a public servant working in a Department would be required to support the making of a section 35 order. That however is not a question I need to address at this point.

20. In relation to the version of T 48 which was originally lodged with the Tribunal and served on the applicant, it is unnecessary at this stage for me to make a decision in relation to that document. The applicant is lawfully in possession of the document having received it pursuant to section 37(1AE). If it turns out to be a document which has relevance in these proceedings the applicant may tender it. Any question concerning its relevance can be determined at a later stage of the proceedings. There is no evidence before me that would justify the making of a confidentiality order in relation to it.

    If there are other orders which are necessary to deal with questions of confidentiality which arise in relation to documents to be included in the T-Documents, these should be dealt with using the procedures outlined in the AAT Act.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O'Donovan

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

Associate

Dated: 19 October 2021

Date(s) of hearing:	Matter dealt with on the papers
Solicitors for the Applicant:	Hicksons Lawyers
Solicitors for the Respondent:	Sparke Helmore