Confidential and Comcare

[2008] AATA 765

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 765

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2071

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Confidential

Applicant

And Comcare

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date of Decision                  31 July 2008

Date of Written Reasons  29 August 2008

Place  Sydney

Decision For the reasons given orally at the hearing of this matter the Tribunal grants the request for a confidentiality order. 

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

Professor GD Walker
   Deputy President.

CATCHWORDS - Confidentiality – ASIO – whether it is desirable to make the order by reason of the confidential nature of the evidence or matter – confidentiality order granted.

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LEGISLATION

Administrative Appeals Tribunal Act 1975: s 35(2)

Australian Security Intelligence Organisation Act: s 92

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CASES

R v Lodhi (2006) 163 ACR 508

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REASONS FOR DECISION

29 August 2008 Professor GD Walker, Deputy President

1. This is an application by an applicant for compensation in respect of an orthopaedic injury, which she claims was suffered in the course of her employment with the Australian Security Intelligence Organisation (ASIO). The respondent has applied today for an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth), and has tendered certain draft directions covering, broadly, four matters. First, is that the hearing should be in private. The second is that the documents and other evidence should be stored and handled securely in accordance with approved matters. Third, that after the hearing, the documents should be returned to the Australian Government Solicitor for destruction. And fourthly, that no mobile phones, recorders, or similar devices be permitted in the hearing room in the course of the hearing.

2.      Mr Dillon acknowledged that there was no direct authority on the proper approach in such a matter, but referred to the decision of Whealy J, of the New South Wales Supreme Court in R v Lodhi, (2006) NSWSC 596, which is reported in (2006) 163 ACR 508. In that decision, his Honour sets out four relevant considerations in that case.

3.      First was the need to protect against the unwitting disclosure of national security information by an ASIO agent in the course of his or her evidence.  Second, the need to protect the identity of former and serving ASIO personnel being critical to ASIO’s ability to perform its functions effectively.  The third matter was the possible personal danger those ASIO personnel might face, along with their families and property, if they were to be identified.  And fourthly, the risk that if the identity of ASIO personnel were to be revealed, they could become targets for persons and organisations interested in carrying out espionage and personally or politically motivated violence. 

4. His Honour also noted s 92 of the Australian Security Intelligence Organisation Act 1979 (Cth), which makes the unauthorised disclosure of the identity of a present or former ASIO officer, employee, or agent, an offence. Mr Dillon also pointed out that Lodhi was a criminal case involving an alleged terrorist, and it raised issues of public interest that would not be central in a case such as the present one, which is described as a straightforward compensation case, and he submits that there is no overwhelming public interest in the openness of proceedings in such a case.  On behalf of the applicant, Mr Stockley did not oppose the making of the draft directions, and also pointed out that the applicant had herself made a request for confidentiality, and accepted the need to protect her identity. 

5. Mr Stockley submitted, however, that the issue in the case is a narrow medical matter, and that difficulties could be raised if there were a need to issue summonses to medical practitioners, or to custodians of medical records. The orders sought in the principal application relate to a discrete medical problem of an orthopaedic nature, and there is to be an operation performed late next month, which could delay the preparation of the necessary medico-legal report. The tribunal does not make s 35(2) orders by consent. It must be satisfied that it is desirable to do so by reason of the confidential nature of the evidence, or matter, or for any other reason. In this case, I am satisfied that, for the kinds of reasons set out by Whealy J in Lodhi, the evidence or proceedings could involve matters of a confidential nature, which it could be detrimental to disclose for a variety of reasons. 

6.      On the other hand, the matter is not a criminal case, and therefore does not raise the greater considerations of public entitlement to information that would be raised, for example, in the trial of an alleged terrorist.

7.      I therefore conclude that it is desirable to make the directions as set out in the draft tendered by the respondent.  I note that the draft directions do reserve liberty to apply, and that any practical difficulties that arise in the preparation of the case, particularly on the applicant’s side, could be dealt with in the course of another directions hearing, if it did not prove possible to resolve them by agreement between the legal representatives.  Consequently, I make the orders as asked. 

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker.

Signed: ........ ………[sgd]……………………….. .....................
            Renée Wallace, Associate

Date/s of Hearing  31 July 2008
Date of Decision  31 July 2008
Date of Written Reasons  29 August 2008
Representative for the Applicant               Mr P Stockley            

Solicitor for the Respondent  Mr A Dillon