CM and National Disability Insurance Agency
[2023] AATA 4885
•17 April 2023
CM and National Disability Insurance Agency [2023] AATA 4885 (17 April 2023)
Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/5756, 2023/1743
Re: CM
APPLICANT
And National Disability Insurance Agency
RESPONDENT
And KT
OTHER PARTY
DECISION
Tribunal: Deputy President Mischin
Date: 17 April 2023
Place: Perth
The Tribunal DIRECTS that:
1.The Directions made by the Tribunal on 26 October 2022 be hereby vacated.
2.On or before 24 April 2023, the Respondent must give to the Tribunal and Applicant and Other Party the supplementary section 37 T-Documents filed on 16 November 2022, subject to the redactions from documents ST1 and ST2 directed by the Tribunal.
3.On or before 22 May 2023, the Applicant give to the Tribunal and Respondent and Other Party any further evidence upon which the Applicant intends to rely at the hearing of this matter.
4.On or before 19 June 2023, the Respondent must give to the Tribunal and Applicant and Other Party:
(a) a summary of evidence OR witness statement from all lay witnesses proposed to be called at the hearing;
(b) all reports, records and any other documents on which the Respondent intends to rely at the hearing; and
(c) a Statement of Issues, Facts and Contentions.
5.On or before 17 July 2023, the Applicant and Other Party are to give to the Tribunal and Respondent and the other party:
(a) a summary of evidence OR witness statement from all lay witnesses proposed to be called at the hearing;
(b) all reports, records and any other documents on which they intend to rely at the hearing; and
(c) a Statement of Issues, Facts and Contentions in reply.
............................[Sgd]..................................
Deputy President Mischin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – application for order under section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether directions should be made prohibiting or restricting disclosure of information to Applicant
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 35, 37
National Disability Insurance Scheme Act 2013 (Cth), ss 74, 75, 99, 100 National Disability Insurances Scheme (Children) Rules 2013, rr 4.8, 4.9
Cases
Nolan and Minister for Immigration and Ethnic Affairs [1986] 9 ALD 407
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Secondary Materials
Nil
REASONS FOR DECISION
Deputy President Mischin
INTRODUCTION
1.The issue before the Tribunal is whether, and if so to what extent, it should redact passages from documents the Respondent has filed with the Tribunal pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to restrict their disclosure to the Applicant.
2.The Applicant is the father of a seven-year-old child who is a participant in the National Disability Insurance Scheme (NDIS).
3.On 8 April 2022 a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) decided, under section 75(3) of the National Disability Insurance
Scheme Act 2013 (Cth) (the NDIS Act), that only the child’s mother (the Other Party) would have parental responsibility for the child.
4.That decision was reviewable by operation of section 99 of the NDIS Act. The Applicant requested an internal review of that decision.
5.On 11 July 2022 another delegate of the CEO reviewed the original decision and confirmed it. The Applicant, under section 100 of the NDIS Act, has sought a review of that decision by the Tribunal. His application for review was lodged on 12 July 2022.
6.The Applicant contended in his application for review that:
The delegate of the CEO has failed to consider the full range of material that they are required to; has given inappropriate weight to the material before the decision maker; and has relied on powers beyond that of which the delegate has, in order to make a decision on review. This has led to a wholly unreasonable decision in the circumstances.
7.Section 74 of the NDIS Act prescribes, materially, that if the Act requires or permits a thing to be done by or in relation to a child, the thing is to be done by or in relation to the person who has, or the persons who jointly have, parental responsibility for the child.
8.Section 75 of the NDIS Act defines who has parental responsibility under the Act, materially in this instance the child’s parents. Section 75(3) provides that if this would result in more than one person having parental responsibility for a child, the CEO may determine that one or more of those persons have parental responsibility for the child for the purposes of the Act.
9.The National Disability Insurances Scheme (Children) Rules 2013 (Children Rules), made under section 75(4) of the NDIS Act, set out requirements with which the CEO must comply, criteria that the CEO is to apply, and matters to which the CEO is to have regard, in deciding whether to make such a determination.
10.Rule 4.8 reflects the discretion vested in the CEO under section 75(3) of the NDIS Act.
11.The Children Rules introduce the concept of a ‘child’s representative’. It is not a term used in the NDIS Act. However, by operation of the Rules, it is the person who is regarded as having parental responsibility for the child and, so, act for the child in the way described in
section 74(1)(a) of the NDIS Act. The CEO’s determination of 8 April 2022 and confirmed on 11 July 2022, that the Other Party is to have sole parental responsibility for the child participant, means that the Applicant would not be the participant child’s representative for the purposes of the NDIS Act.
12.Before the first Tribunal case conference before a conference registrar on 28 September 2022, the Respondent filed and served a Statement of Issues and ‘T-Documents’ pursuant to section 37 of the AAT Act.
13.Following that conference, the Tribunal directed that the Respondent file any supplementary T-Documents by a certain date.
14.The Respondent identified certain documents and filed them with the Tribunal on 16 November 2022, ‘the Supplementary T-Documents’. However, the Respondent was concerned that the documents ‘contained information that may be confidential in nature’ and sought to be excused from serving a copy on the Applicant and the Other Party. The Respondent asked that the matter be listed for a hearing ‘to consider any appropriate confidentiality orders under section 35(4)’ of the AAT Act. This was that hearing.
15.The Respondent’s concern arises out of the relationship between the Applicant and the Other Party. The Applicant and the Other Party are estranged and engaged in Family Court of Australia proceedings. The Tribunal understands that the proceedings before the Family Court are part-heard. Furthermore, the Other Party has made allegations that the Applicant has perpetrated acts of family violence against her, and against the child participant and its sibling. The Other Party has obtained a form of restraining order against the Applicant from her State’s Magistrates Court to protect herself and the children.
16.It is this that informs the Respondent’s concern about providing the Applicant with the Supplementary T-Documents.
17.The Supplementary T-Documents consist of three broad categories of documents, comprising 47 pages numbered 148-197:
(a)ST1, pages 148-149, is an email from the Other Party to Respondent dated 3 February 2022, with attachments. The email is just over a page in length, but it is accompanied by 36 pages of attachments pages 150-185;
(b)ST2, pages 186-192, is a NDIS Form ‘Request for extra privacy – restricted access’ dated 1 April 2022;
Page 193 is blank;
(c)ST3, pages 194-197, is described in the table of contents as ‘Interaction records’ dated 1 June 2022.
18.By reason of communication restrictions and sensitivities surrounding revealing possible sensitive information, the hearing had to be conducted in an other-than-orthodox manner, with the Tribunal hearing separately from the Applicant and Other Party.
19.At the hearing, the Respondent took a ‘neutral’ position on the question of confidentiality, making no submissions for or against an order.
20.However, before the hearing, at the Tribunal’s request, the Respondent’s legal representatives did explore with the Other Party what, if any, portions of the documents she may wish to have redacted. This assisted in narrowing the matters in issue and facilitated the Tribunal’s ability to identify, when hearing from her, the portions of documents of concern to her. It should be said that during that exercise, she was measured and pragmatic. She did not, despite the circumstances, indiscriminately assert concerns and she readily admitted that there were many elements of the documents that could be disclosed.
21.Putting aside for a moment ST1, it appears that much of the documentation is not of concern to her.
22.She is unconcerned at all about ST3. As she points out, these consist of internal NDIA ‘interaction notes’, noting contact between the Applicant and officers of the Respondent Agency and acting as file records or aide-memoires of those contacts.
23.ST2 is a NDIS Form intituled ‘Request for extra privacy – restricted access’. It is a form to be completed by those who seek greater privacy protection for themselves, or for another person’s NDIS information. The form is dated 1 April 2022 and signed by the Other Party. Much of it consists of information directed to the person completing the form, with captioned blank spaces able to be populated by relevant detail.
24.In the end, the Other Party only wished to have redacted two lines of text on page 187 forming part of her reasons for her request for further privacy protection, five lines of text on page 189, and five lines on page 190. She also asked that her address, telephone details and email be redacted.
25.ST1, as mentioned, is an email from the Other Party to the Respondent. It refers to attachments and sets out her concerns about the Applicant.
26.The attachments consist of an affidavit of the Other Party to support an application for a restraining order against the Applicant. It is accompanied by several orders made in the Federal Circuit and Family Courts of Australia. The Other Party is unconcerned about these, as the Applicant will already be in possession of them.
27.Of more moment is the covering email. There are only certain passages that the Other Party seeks to have redacted. She explained her concerns about the Applicant seeing what she had written.
28.Whether those concerns are well founded or not, it is impossible for the Tribunal to say. However, given the estrangement of the parents, the fact of a restraining order, and the unresolved Family Court proceedings, the Tribunal has a basis for exercising caution.
29.Section 35(4) of the AAT Act provides that
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.
30.The Applicant cited for the Tribunal’s consideration the case of Nolan and Minister for Immigration and Ethnic Affairs1. That case considered then section 35(2) of the AAT Act, the effect of which is reflected by section 35(4). It quoted and applied the principles in the
1 [1986] 9 ALD 407.
earlier decision of Re Pochi and Minister for Immigration and Ethnic Affairs2, in which the Tribunal was constituted by then President of the Tribunal Brennan J, who reviewed the relevant authorities.
31.The decisions recognize that to consider denying an applicant access to information otherwise relevant to an application and adverse to their interests requires an assessment of competing interests. In those cases, the balance was between the competing considerations of public and private interests and the need for procedural fairness.
32.The power in section 35(2) considered in Pochi and Nolan was exercisable in circumstances of confidentiality ‘or for any other reason’. There is no limit placed on the power in section
35(4). However, given that it may result in information being denied to an applicant that the Tribunal must consider when deciding a review, the power must be exercised with care.
33.In this case the Applicant was in a difficult position as he had not seen the documents under consideration and so, of course, does not know what they contain. However, he did inform the Tribunal that his concern in this matter was that the Respondent’s CEO had not consulted with him before making the decision he disputes.
34.This is presumably a reference to rule 4.9 of the Children Rules, which provides that
When deciding whether to make a determination referred to in paragraph 4.8, the CEO is to have regard to the following:
(a) …
(b) the views of any person who has parental responsibility for the child;
…
35.Unquestionably he is aware of many, if not all, of the allegations against him. The Respondent’s decision may have been based on some or all of them. That is not possible to discern conclusively at this time – the Respondent’s Statement of Issues makes no mention of them, averring only that
The Respondent notes that the parenting orders provide that the Participant is to live with his mother … and spends time with the Applicant on weekends only. This suggests that it is [the Participant’s] mother that is the appropriate person to make
2 (1979) 2 ALD 33.
“day-to-day” decisions and is best placed to carry out the duties to children set out in the Act and the Rules (r4.9(c)).3
36.At present, therefore, the matter or matters at issue between the Applicant and the Respondent are not clearly drawn, but it may well be that the information the Other Party is reluctant to have disclosed is irrelevant to the questions the Tribunal will ultimately have to consider and decide.
37.Accordingly, at this stage of the proceedings the Tribunal orders that copies of the documents filed by the Respondent as Supplementary T-Documents be disclosed to the Applicant, subject to the redaction of the portions of ST1 and ST2 identified by the Other Party. The Tribunal considers it to be prudent that the passages of concern to her be not disclosed, pending further clarification of their relevance, if any, to the issues that the Tribunal needs to consider and the decision it is called upon to make.
38.Otherwise, the Tribunal will make programming directions to facilitate this matter being brought to a hearing. The issues should more clearly emerge in the course of complying with those directions, particularly once the parties file their respective Statements of Facts Issues and Contentions as to whether the decision that only the Other Party have parental responsibility for the child participant for the purposes of the NDIS Act should be affirmed or overturned.
39.If it emerges that the redacted portions are relevant to the Tribunal’s determination of the matter, and are to be relied upon, the question of disclosure to the Applicant can be revisited.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for decision of Deputy President Mischin
……………….[Sgd]……………… Associate
Dated: 17 April 2023
3 Respondent’s Statement of Issues dated 20 September 2022, [11].
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