Cole and Telstra Corporation Limited
[2010] AATA 666
•3 September 2010
CATCHWORDS – PRACTICE AND PROCEDURE – application for confidentiality order under s 35(2) Administrative Appeals Tribunal Act 1975 – made in relation to evidence and documents lodged in Tribunal – reasons for application based on handful of documents claimed to be commercial in confidence but not lodged with application – consideration of principles relating to public hearings applicable to Tribunal –Parliament’s intention that documents lodged be made available to public – need to examine documents before making s 35 order – discussion of principles.
Administrative Appeals Tribunal Act 1975, ss 3(1), 29(7), 34J, 35(1A), 35(2), 35(3), 35A, 39, 43(1), 43(2), 43(2A)
Administrative Decisions (Judicial Review) Act 1977, ss 3(1), 13
Social Security (Administration) Act 1999, s 168(1)
Superannuation Industry (Supervision) Act 1993
Superannuation (Resolution of Complaints) Act 1993, ss 3(2), 37, 37A, 37B, 37C, 37CA, 37D, 37E, 37F, 37G, 38, 44(2), 44(2A), 44(2B)
Veterans’ Entitlements Act 1991, ss 150(1), 150(3)
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537
Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1
DECISION AND REASONS FOR DECISION [2010] AATA 666
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/2989
GENERAL ADMINISTRATIVE DIVISION )
Re:CHRISTOPHER COLE
Applicant
And:TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 3 September 2010
Decision:The Tribunal decides that:
in order to make a decision whether to grant a request for a confidentiality order under s 35(2) of the Administrative Appeals Tribunal Act 1975 the material must be made available to be examined by the Tribunal Member.
S A FORGIE
Deputy President
REASONS FOR DECISION
When asked to make an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) in respect of supplementary documents that the solicitors for Telstra Corporation Limited wished to lodge under s 37, I declined to do so until I had seen the documents. As I am led to understand that my request to see the documents before considering whether or not to make an order is not in accordance with the practice that has been adopted in the Tribunal on several occasions in recent times, I have given reasons for my decision.
THE REQUEST FOR AN ORDER
In a letter dated 25 August 2010, the solicitor for Telstra wrote:
“I am in the process of preparing a set of supplementary T documents which will contain material from the respondent, Telstra, which is of a commercial in confidence nature. Prior to filing and serving the supplementary T documents I respectfully seek an order from the AAT pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975 to the effect that:
Publication of the evidence given before the Tribunal and of matters contained in documents lodged with the Tribunal be restricted to members and staff of the Tribunal, the parties and their representatives and their professional advisors, and staff of Auscript.”
Thank you in anticipation of your assistance in this matter.”
On its face, the order sought has two aspects. The first relates to documents lodged with the Tribunal. Initially, I was in two minds as to whether it is meant to encompass all documents, as the form of the order sought suggests, or whether it is limited to the supplementary T documents of which the letter speaks and which are yet to be lodged. It could be that the wider meaning is intended for the order sought refers also to the “publication of evidence given before the Tribunal” and yet the reason for seeking the order is limited to the commercial in confidence nature of the supplementary T documents.
As the supplementary T documents were not lodged with the letter,
I asked my Associate to telephone Telstra’s solicitors for a copy of the supplementary T documents so that I could consider them. Her request was met with some surprise and she was told that another member had made an order in those terms and without seeing the documents on three earlier occasions this year. To his credit, the solicitor immediately agreed to send the supplementary T documents and I do not wish it to be thought that I am criticising him in these reasons. I have since received the documents and considered them separately. I have an order under s 35(2) in relation to those three documents but not otherwise.
In the meantime, I want to give my reasons for declining to follow what appears to be, or at least to be becoming, an accepted practice in the Tribunal.
I do so to remind myself of some of the fundamental principles underpinning the Tribunal’s duties. It is easy to lose sight of them when one becomes concerned with the volume of day to day work and I do not intend my reasons to be read as critical of individual members.
THE TRIBUNAL’S DUTIES
The Tribunal’s duty to give reasons
The Tribunal may be called on to give its reasons for any decision that it makes in relation to an application for review. It is required to give them for the decision it makes under s 43 of the AAT Act.[1] That is its final decision and it may affirm, vary or set aside and either substitute another decision or remit the matter to the decision-maker.[2] The Tribunal makes many more decisions than those it makes on the application for review. Usually, it will give its reasons in respect of decisions it makes on applications and issues preceding the final decision. Its reasons are more often than not given orally but may be given in writing. Those matters may relate to jurisdictional matters or may be more procedural. Whether it is required to give them in writing depends upon whether the decision is a decision to which s 13 of the Administrative Decisions (Judicial Review) Act 1977 applies. That means it must not only be a decision to which the ADJR Act applies within the meaning of s 3(1) of that legislation but must have the necessary degree of finality.[3]
[1] It may give its reasons either orally or in writing: AAT Act, s 43(2). If asked for written reasons within 28 days of being given the Tribunal’s decision, it must provide them: AAT Act, s 43(2A).
[2] AAT Act, s 43(1)
[3] That will depend on a consideration of issues such as those raised by the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 21 ALD 1; (1990) 64 ALJR 462; (1990) 94 ALR 11 at [31]; 336-337; 10-11; 468-469; 23 per Mason CJ with whom Brennan and Deane JJ concurred.
In the absence of being asked, the Tribunal will not give written reasons for all of its decisions on preliminary matters. To do so would be far too labour intensive. The fact that it gives written reasons in some of those sorts of decisions gives the public an indication of the manner in which those matters are dealt with and decided by the Tribunal.
When must the Tribunal hold a hearing and when must the hearing be in public?
Written reasons are the final act in what is meant, as a rule, to be a public process. It is clear from s 35(3) of the AAT Act that, in most circumstances,[4] Parliament considers it:
“… desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties …”.
[4] The Tribunal may direct that a hearing, or part of it, be held in private or give directions prohibiting or restricting publication of the names of witnesses and the publication of evidence given before it or of documents lodged with it: AAT Act, s 35(2). Parliament also makes specific provision protecting confidentiality of proceedings relating to certain decisions e.g. those reviewed in its Security Appeals Division.
Even where the Tribunal allows a person to participate by telephone, closed-circuit television or by any other means of communication under s 35A, the Tribunal must take such steps as are reasonably necessary to ensure that the public nature of the hearing is preserved.[5] “Hearings of proceedings” are not simply hearings of proceedings for review of a decision. They extend to hearings of any application referred to in paragraphs (b) to (g) of the definition of a “proceeding” in
s 3(1) of the AAT Act as well as to incidental applications made in the course of, or in connection with, an application or proposed application, or a matter referred to in those paragraphs.[5] AAT Act, s 35(1A)
While the general rule is that every application for review of a decision has a hearing and every hearing of a proceeding is held in public, s 34 J of the AAT Act provides that the Tribunal may review a decision by considering documents or other material lodged with the Tribunal without holding a hearing. Section 34J provides that it may take that course if it appears to it that the issues for determination can be adequately determined in the absence of the parties and if the parties consent to its doing so.
No similar provision is made for other applications that may be made to the Tribunal and that are required by s 35(1) to be heard in public. An example of those other applications is found in s 29(7) of the AAT Act. It provides that a person may apply for an extension of time within which to lodge an application. The application for an extension is a “proceeding” within the meaning of s 3(1). A “hearing” of that proceeding must be a reference to “… an opportunity to state one’s case …” or an “… investigation and listening to evidence and arguments …”.[6] Despite that, many applications other than applications for review of a decision are frequently and as a matter of practice considered and determined without a hearing in public of this sort. In the case of an application under s 29(7), for example, a hearing is not held in public or otherwise if the decision-maker consents to the Tribunal’s extending the time within which to lodge an application for review. What happens in those cases is that the Tribunal member constituted to consider the application considers the application and determines it without further reference to the parties. Only if the member is inclined to refuse it is the application set down for a hearing.
[6] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
What is the Tribunal’s task?
What the Tribunal is required to do to consider an application according to law will be shaped by the nature of the application and the enactment under which it has been made. When reviewing a decision, the Tribunal must consider the evidence or material before it, make findings of fact on that evidence or material according to the standard of proof applicable to the review of that particular decision[7] and come to the decision that is correct according to law and on the evidence. It must carry out its own consideration of those issues unconstrained by the cases put to it by the parties but bearing in mind its obligations to accord them procedural fairness[8] and to comply with its obligations under s 39 of the AAT Act.
If more than one decision can be described as the “correct decision”, the Tribunal must decide which is the preferable decision having regard to, and guided by, the enactment under which the decision is made.[7] Unless varied by an enactment relating to the review of a particular decision, that standard of proof is the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537 at 334-335; 547 per Beaumont J, with whom Northrop and Spender JJ agreed.
[8] See, for example, Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 402-3; 342-343 per Deane J.
Where the application relates to a preliminary matter, the Tribunal is no less bound to act according to law but the consideration is different as is the outcome. An application under s 29(7) of the AAT Act for an extension of time within which to make an application is an example. First, the Tribunal must satisfy itself that an application for that extension has been made in writing. That founds its power to decide the matter at all. Second, it must satisfy itself that notice of the application has been given to the decision-maker and the decision-maker given a reasonable opportunity to present its case on whether or not the extension should be granted. Having done that, it must decide whether it is “satisfied” that “it is reasonable in all the circumstances” to extend the time within which an application for review of a decision may be made. Satisfaction must be reached upon the balance of probabilities. It requires a consideration of the AAT Act and of the enactment under which the decision was made to ascertain whether they set any limits on the matters to which regard may be had, a consideration of the judicial authorities guiding the exercise of such discretions and a consideration of the circumstances relevant to the particular case.
The position is no different when the preliminary matter relates to a matter in which the Tribunal may be asked to exercise its power without the need for an application to be made to it. The case in hand provides an example. It is s 35(2) which provides, in so far as it is relevant:
“Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a) …
(aa)…
(b)give directions prohibiting or restricting the publication of … matters contained in documents lodged with the Tribunal …;
(c)…”
The task that faces the Tribunal is to decide whether it is “satisfied” that it is “desirable” to make an order of that type. If the matter arose during the course of a hearing, it may be that the other party to the application for review of the decision would know about it and be able to make submissions. Those submissions would be made without knowledge of the contents of the documents but with knowledge of the context. The Tribunal would have regard to those submissions as well as those of the party asking for the order under s 35. If the matter arose at a preliminary stage, the other party might, or might not, be aware of it for the matter might be determined in their absence. The Tribunal would have regard to the documents and their contents as well as the reasons why it is being asked to restrict their publication and:
“… take as the basis of its consideration the principle that it is desirable that … the contents of documents lodged with the Tribunal … should be made available to the public and to all the parties, but shall pay due regard to any reasons given by the Tribunal why … the matter contained in the document should be prohibited or restricted.”[9]
[9] AAT Act, s 35(3)
What is the rationale for the Tribunal’s being required to hold its hearings in public?
Why is it that tribunals such as the Social Security Appeals Tribunal (SSAT),[10] the Veterans’ Review Board (VRB)[11] and the Superannuation Complaints Tribunal (SCT) [12] are required to hold their hearings in private and yet the Tribunal is generally required to hold its in public? The reasons differ and I will begin with a brief overview of their tasks.
[10] Social Security (Administration) Act 1999, s 168(1)
[11] Veterans’ Entitlements Act 1986, s 150(1) although the presiding member may permit a hearing, or part of a hearing, of a review to take place in public if requested to do so by the applicant: s 150(3).
[12] Superannuation (Resolution of Complaints) Act 1993 (SRC Act), s 38(1)
No distinction is to be drawn between the nature of the task of tribunals such as the SSAT and the VRB when compared with that of the Tribunal. Each must arrive at the correct or preferable decision after reviewing a decision made under an enactment just as the Tribunal does. They do so in a context in which their decisions are made under enactments. Those decisions must be made consistently for they are made under enactments conferring benefits and imposing duties on those whose circumstances, whether relating to pecuniary matters, injury or ill health, are such, or become such, that they are entitled to seek those benefits. Tribunals such as the SSAT and the VRB do so in the absence of the decision-maker. Without wishing in any way to denigrate their work, their merits review may be as comprehensive as that of the Tribunal or it may not. That follows from the fact that they are not given quite the same tools as the Tribunal, the decision-maker is not represented at the hearing and Parliament has intended that they provide a faster and briefer form of review. The opportunity for the most comprehensive review is, however, given at the final level of merits review and that is with the Tribunal.
The task of the SCT is different. It reviews decisions and conduct of trustees of superannuation funds and approved deposit funds as well as of RSA providers and insurers. It does so in response to a “complaint” which may be made to it under ss 14, 14A, 15A, 15B, 15CA, 15E, 15F, 15H or 15J of the Superannuation (Resolution of Complaints) Act 1993 (SRC Act).[13] Those funds and approved deposit funds are regulated under the Superannuation Industry (Supervision) Act 1993 (SIS Act). They must meet the standards set out in the SIS Act but, for all that, they remain stand alone funds. Benefits under the superannuation funds, approved deposits and contracts of insurance are not available to all whose circumstances bring them within its purview in the same way that they are under the Social Security Act 1991 or the Veterans’ Entitlements Act 1986. They are available only to their members and beneficiaries or those who enter a contract of insurance. The SCT, therefore, reviews decisions and conduct in an area of much more limited scope than do the SSAT and the VRB. That this is so is reflected in the scope of the SCT’s power to review decisions. Rather than being required to come to a determination that is the correct or preferable decision, it is required only to come to a determination whether the decision or conduct complained of was unfair, unreasonable or both.[14]
If it finds that it was, its powers are directed to removing that unfairness or unreasonableness provided it can do so according to law. The SCT is given power to direct a trustee to inform members and former members of a superannuation fund or all the beneficiaries or former beneficiaries of an approved deposit fund of its determination.[15] The SCT may give a similar direction to an RSA provider or an insurer regarding their informing holders of RSAs or other parties to contracts of insurance.[16][13] SRC Act, s 3(2)
[14] SRC Act, ss 37-37G
[15] SRC Act, s 44(2)
[16] SRC Act, s 44(2A) and (2B)
Once the nature of their work is understood, it becomes clear why some tribunals must hold their hearings in public and others may not or may only do so to a limited extent. In the case of the SSAT and the VRB, they are intermediate tribunals. Parliament has established a tiered review system. It is a system in which the greatest number of decisions are made at the first level with the information provided to the agency and with limited investigations with the least being made at the last level but with a far greater allocation of resources to investigation and consideration. The policy would be that insight into the decision-making process is provided by the public nature of the hearings conducted by the last level.
The SCT is in a different position. Its determinations are concerned not with a scheme of benefits and entitlements that may be available to any member of the community who meets the relevant criteria. Instead, it is concerned only with superannuation funds, deposit funds and insurance contracts affecting only their members. That would seem to be the rationale for its proceedings to be conducted in private.
It is apparent from what I have said that the Tribunal’s task is very different from that of the SCT but is of the same nature as the task carried out by tribunals such as the SSAT and VRB. It is but one part of the same “scheme” of merits review but it is the final part and the public nature of its hearings and of any decisions that it makes is a very important part of that scheme.
The public nature of the hearings means that the Tribunal’s processes can be observed by anybody who cares to attend a hearing even if that hearing is conducted by telephone. The availability of written decisions means that the public is able to scrutinise the basis on which the Tribunal makes its decisions. In carrying out its scrutiny, it is to be hoped that the public can see consistency in the Tribunal’s decision-making and in the processes it applies. The availability of written reasons means that agencies other than that making the decision under review can have access to the Tribunal’s reasons. It is to be hoped that they too can see consistency in the Tribunal’s decision-making processes. Where individual enactments are based on common principles or choice of words, consistency in decision-making across the public sector is just as important as consistency within individual agencies.
Management of the workload of the Tribunal would become unwieldy if every application relating to an interim matter were set down for a hearing. Notions of efficiency, however, do not in any way remove the Tribunal’s responsibility to consider that application according to law and on the evidence or material it has before it. Indeed, the very fact that its consideration is not potentially open to public scrutiny through the means of a hearing adds to its burden to pay particular regard to its duty to act according to law. Parliament requires it to do so. The public expects and, even more importantly, trusts, that it will consider a matter with the same care as it brings to its consideration when its proceedings are open to public scrutiny.
CONSIDERATION
In so far as Telstra seeks an order restricting publication of the supplementary T documents, I cannot satisfy myself that I should make the order without seeing them. A description that they are “commercial in confidence” is not enough. I must satisfy myself that the description is apt but, assuming that it is, it is only one of the matters that must be taken into account in deciding whether or not to make an order under s 35(2). Section 35(3) makes it clear that I must take as the basis of my consideration the fact that documents lodged with the Tribunal should be made available to the public. The order sought would mean that they are available to the parties and their representatives. That is an issue in deciding whether or not the Tribunal accords the parties procedural fairness and meets its obligations under s 39 of the AAT Act. It does not deal with Parliament’s clearly stated intention that the Tribunal’s proceedings and documents lodged with it should generally be available to the public. Only by seeing the documents can I begin my consideration of the relevant issues.
The second aspect of the order sought causes me even more concern.
I am being asked to make an order at a very early stage of the proceedings – the application for review was lodged on 19 July 2010 – restricting publication of the evidence given before the Tribunal and of matters contained in documents lodged in it. The request is being made without any reason other than the claimed character of one bundle of supplementary T documents. On the basis of that one bundle, I am being asked to restrict publication of all of the evidence and all of the documents so that they are not available to the public. I am being asked to do that without reference to any justifying material other than the documents said to be commercial in confidence. Mr Cole is represented by solicitors but their views, if canvassed by Telstra before the application was made, are not known to me.
To make such an order on the paucity of information that I have would be to fly in the face of Parliament’s directions in s 35(3) and my obligations regarding the manner in which I should consider such matters generally. It would be to fail to show any understanding of the principles underpinning Parliament’s direction that it is desirable that the Tribunal’s hearings should generally be held in public. It would be to treat the decision as a matter between Mr Cole and Telstra as if it were a matter arising under a contract of some sort between them and the outcome affects only them. It is not such a matter but a matter that arises under an enactment and so must be decided in a manner consistent with that enactment. It is a matter in relation to which Parliament has said the Tribunal is to follow a particular path. To adopt, without evidence, without notice to the applicant and apparently as a matter of practice, a path that would restrict public access to the evidence and documents would be to ignore my duties as I have set them out above. It would be contrary to the very model on which the Tribunal is fashioned i.e. the judicial model.[17] Finally, it would give every impression of my acting simply at the behest of the decision-maker. The Tribunal’s independence from the decision-maker, the applicant and any party joined is imperative and must not only be maintained but appear to be maintained. If it is otherwise, the Tribunal merely becomes a rubber stamp and deprives itself of any relevance and so of any reason for its continued existence.
[17] Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ
I certify that the preceding twenty-six paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ....................................................................
Kate Conners Associate
Solicitor for the Applicant Damian Lynch
Maurice Blackburn
Solicitor for the Respondent Lazarus Dobelsky
DLA Phillips Fox
0
8
0