David Tennant and Secretary, Department of Social Services
[2014] AATA 92
•25 February 2014
[2014] AATA 92
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4162
Re
David Tennant
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member Date 25 February 2014 Place Canberra The application for the suppression of the applicant’s name is rejected.
...................[sgd].........................
RM Creyke, Senior Member
Catchwords
SOCIAL SECURITY – application for suppression of applicant’s name – whether publication of applicants name will impact on the applicant’s ability to find employment
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) ss 2A and 35.
Cases
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 113 ALD 449
Re Secretary, Department of Family and Community Services and AXO3C (2003) 73 ALD 81
Re X and Defence force Retirement and Death Benefits Authority (1980) 3 ALN No 37
Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747
Re VBW and Australian Prudential Regulation Authority (2005) 89 ALD 643
Re VC and Australian Federal Police (1985) 8 ALD 587
TCXG v Director-General of Security [2013] 135 ALD 600
Secondary Materials
Carroll, Nick ‘Unemployment and Psychological Well-being’ (2005, unpublished) 29.
Geoffrey H, et al ‘The Stigma of Unemployment: When joblessness leads to being jobless’ Institute for Research on Labor and Employment, University of California, IRLE Working Papers, 2011.
McClelland, Alison and Macdonald, Fiona for the Business Council of Australia ‘The social consequences of unemployment’ (1998) (unpublished).
The Australia Institute ‘Are unemployment benefits adequate in Australia’ (2012) 39 Policy Brief.
REASONS FOR INTERLOCUTORY HEARING DECISION
RM Creyke, Senior Member
Mr Tennant has asked that his name be suppressed in any publication of reasons in the substantive matter he has brought to the Tribunal, namely, his application for review of a decision concerning rent assistance at the single, non-sharer rate.
An interlocutory hearing to consider this request was held on 28 January 2014. Mr Tennant appeared in person; the representative of the Secretary was heard by telephone.
Background
Mr Tennant was granted Newstart Allowance backdated to 21 November 2012. He sought review of the associated decision to grant him rent assistance as a single person sharing accommodation. It was his contention that he should be paid at a higher rate. That application is the subject of the application to the Tribunal in the substantive matter.
Mr Tennant was admitted as a barrister and solicitor in September 2010. Subsequently he undertook a Master of Laws degree. He was employed as a solicitor by a government department for a period of some months in 2013. He resigned from that position when he married in May 2013.
In the second half of 2013, Mr Tennant and his wife moved to Canberra so his wife could undertake further study. The couple remain in the Australian Capital Territory. Mr Tennant has not yet obtained employment in the legal field of his choice in Canberra, but is doing some teaching at a university law school in the interim. He continues to seek work as a solicitor in the Territory.
Mr Tennant said in a statutory declaration he is ‘concerned that if my name is published in the AAT’s decision this may adversely impact my employment prospects’. As he continued:
I wish to practise in constitutional and administrative law and the publication of my name in the AAT’s decision will be seen by my prospective employers. I believe that it may count against me that I have been in receipt of unemployment benefits for periods in 2012 and 2013. I also believe that my appeal to the AAT may be seen unfavourably by prospective employers who are legally trained.
Mr Tennant also provided the Tribunal with a number of articles which he argues referred to the stigma attached to persons who have been on income support while unemployed. He also said he is pursuing his application for review in the substantive claim since he believes that the application, if successful, may correct what he considers to be misinformation in the Guide to Social Security Law.
Legislation
The relevant legislation is the Administrative Appeals Tribunal Act 1975 (Cth) (Act) section 35 which outlines the circumstances in which the Tribunal can make a confidentiality order, including an order to suppress the name of an applicant
Issue
The sole issue is whether Mr Tennant’s name should be suppressed in any decision concerning his substantive application concerning the rate of rent assistance to which he is entitled.
Consideration
Section 35 of the Act states:
35(1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public. As the Full Tribunal noted in TCXG v Director-General of Security:[1] ‘There is a well-recognised public interest in courts and tribunals publishing their reasons. In the ordinary course that is the tribunal’s duty’.[2] That is the principle underlying section 35(1) of the Act.
[1] TCXG v Director-General of Security [2013] 135 ALD 600.
[2] Id at [17].
Section 35(2) provides exceptions to that general principle as follows:
35(2) 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 reasons, the Tribunal may, by order: …
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
The Tribunal, when deciding whether an order is desirable under s 35(2), must also have regard to the matters set out in s 35(3) which states:
35(3) In considering: …
b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is 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, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
The terms of section 35(2)(b) do not refer specifically to the names of applicants. However, the power for it to do so is implied by the authority in section 35(2)(b) to prohibit or restrict the publication of evidence. That power was confirmed by the Full Court of the Federal Court:
Section 35(2)(b) … empowered the AAT to restrict or prohibit the publication of matters contained in documents lodged with the AAT. The documents so lodged must include the names (and will often include the addresses) of the parties to the proceeding. Section 35(2)(b) is of sufficient scope to empower the AAT to give directions to restrict the publication of both the names and addresses of the parties to the proceeding.[3]
So much is uncontroversial. The Tribunal has power to suppress the name of an applicant under section 35(2)(b).
[3] Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 113 ALD 449 at [78]. See also Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747; Re VBW and Australian Prudential Regulation Authority (2005) 89 ALD 643 at 665.
Mr Tennant has objected to the publication of his name from concern that it might jeopardise his future career prospects if his name is published. Comcare opposed the application. Mr Tennant had also argued that there is provision in the Social Security Act 1991 (Cth) to protect personal information of income recipients and since his substantive matter arises under that Act, there is scope for the Tribunal to do likewise.
The Secretary contended that Mr Tennant had provided no clear justification for suppression of his name. The Secretary noted that Mr Tennant’s employment history would be available to any future employer so any gaps in that history would be known to such persons and that suppression of his name in the AAT decision would not prevent the disclosure of that information.
The Secretary also rejected a claim by Mr Tennant that his appeal to the Tribunal would penalise Mr Tennant as appealing to the Tribunal was the only course of action available to Mr Tennant for review of the decision. In reply the Secretary noted that the Secretary had conceded Mr Tennant’s entitlement in full to a higher rate of rent assistance and hence there was no need for Mr Tennant to have brought the application.
In addition, the Secretary contended that the Tribunal’s power to suppress an applicant’s name is exercised sparingly, in circumstances, for example, ‘to protect particularly sensitive personal information discussed in the reasons for decision’. Examples where a suppression of the name of an applicant has been granted have related to financial affairs, or intimate details of a couple’s relationship. In the view of the Secretary, Mr Tennant’s request is not sufficiently similar to outweigh the fundamental object of section 35 which is one of openness.
The Tribunal has power to issue an order suppressing the name of a party. Nonetheless, the intention of section 35 of the Act is that there is a presumption that matters before the Tribunal, including its reasons for decisions, should be public. The Tribunal has discretion to decide that documents lodged with the Tribunal or the name of witnesses or parties should be suppressed, but only if satisfied that the circumstances fall within the terms of section 35(2), and that there are cogent reasons for doing so. That principle is based on the public interest in ensuring that proceedings before the Tribunal are conducted openly. That principle reflects the need for the Tribunal to establish that it is accountable to the public which funds its operations, and that the Tribunal is ‘providing a mechanism of review that is fair, just, economical, informal and quick’[4], the overarching objectives of its operations under the AAT Act.
[4] Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 2A.
The Full Court of the Federal Court considered any exceptions to the openness principle in section 35, drawing on the principles relating to suppression orders made by courts, and said:
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. …
… Of course, this power derived from s 35(2)(b) of the AAT Act is not freestanding. It is an exception to the norm established by s 35(1) and reinforced by s 35(3) that the hearing of a proceeding shall be in public. Consistent with our observations above it follows that this power also is one to be exercised sparingly.[5]
[5] Australian Securities and Investment Commission v Administrative Appeals Tribunal (2008) 113 ALD 449 at [74]-[75], [79].
The Tribunal notes that before it can make an order under section 35(2) of the Act there must be cogent reasons for its departure from the principle of openness underpinning section 35.[6]
[6] Id at [76].
The Tribunal does not accept Mr Tennant’s argument that his future career prospects may be jeopardised if his name is published and that this consideration should override the open administrative justice principle in section 35(1).
His employment history will be available from his application to any prospective employer, so suppression of his name would not have the effect of concealing the fact that he had had periods of unemployment. The Tribunal also notes that he has and has had periods of employment in the legal field.
Nor has Mr Tennant provided evidence to the Tribunal of any prospective employer who has indicated that his time on income support has led to the rejection of his application for employment in his chosen field.
Mr Tennant provided the Tribunal with some articles he said indicated that there was a stigma attached to having periods of unemployment. Three of the articles refer to conditions in Australia; one relates to the position in the United States. Of the three Australian articles, the first focused on the rate of employment relief, not the alleged stigma attached to being unemployed.[7]
[7] The Australia Institute ‘Are unemployment benefits adequate in Australia’ (2012) 39 Policy Brief.
The second article[8] examines the social consequences of unemployment referring to the preponderance of unemployed people among those with the highest rate of poverty. The social consequences referred to were the effect of unemployment on health, the deleterious effect on children and young people, the lower economic locations of those on unemployment benefit, and the effect of unemployment on retirement incomes. Mr Tennant has provided no evidence to show that he would be included in the category of those with the highest rate of poverty, that he has children who may be affected by his unemployed status, that his unemployed status has affected his health, or that he lives in an area of socio-economic disadvantage. He is not in receipt of retirement income. So the relevance of that article to his claim is not readily apparent to the Tribunal.
[8] Alison McClelland and Fiona Macdonald for the Business Council of Australia ‘The social consequences of unemployment’ (1998) (unpublished).
The thesis of the third article is that the unemployed enjoy lower life satisfaction than employed people, but that the effect is less for men than for women.[9] The detailed academic literature study notes ‘the relatively small contribution that income played on life satisfaction compared to other factors such as marriage, employment status and social connection’. So although there is an accepted association between unemployment and life satisfaction, it is outweighed by other factors. The study does not consider the impact on employers’ perceptions of those who have periods of unemployment. Again there is no evidence that Mr Tennant’s well-being or happiness has been impaired by his periods of employment.
[9] Nick Carroll ‘Unemployment and Psychological Well-being’ (2005, unpublished) 29.
The final article is based on a study in the United States.[10] The conclusion that there may be a bias against the unemployed by employers, is vehemently denied by another researcher referred to in the study, and in any event, may be more applicable in North American, than Australian conditions. In any event, it is a general study, and Mr Tennant has provided no evidence that it has affected his pursuit of employment in the field of legal employment, In summary the Tribunal does not give much weight to the findings in these articles.
[10] Geoffrey H, et al ‘The Stigma of Unemployment: When joblessness leads to being jobless’ Institute for Research on Labor and Employment, University of California, IRLE Working Papers, 2011.
The Tribunal is also conscious that the exercise of its discretion in an application of this kind depends on the facts of each case. Mr Tennant referred in his submissions to a number of cases in which statements were made confirming the existence of the Tribunal’s discretion under section 35, and containing statements supporting the suppression of the identity of a person.[11] Each of those statements must be considered in the context of the facts supporting the application for a suppression order and do not necessarily support a claim in circumstances such as those of Mr Tennant.
[11] Re Secretary, Department of Family and Community Services and AXO3C (2003) 73 ALD 81; Re X and Defence force Retirement and Death Benefits Authority (1980) 3 ALN No 37.
Mr Tennant argued that there was no public interest in knowing his name[12] and that the value of transparency inherent in section 35 of the Act ‘is not compromised where the only confidential element is the Applicant’s name and personal information’. That same argument could be used in relation to many of the applicants who appear before the Tribunal, and such an argument does not meet the hurdle of satisfying the Tribunal that Mr Tennant’s name should be suppressed. The openness principle is not generally trumped by personal privacy interests. His argument could be raised by anyone in the workforce, or intending to enter the workforce, who chooses to bring an action. The Tribunal has, to date, not accepted that argument. Something more is required.
[12] Re VC and Australian Federal Police (1985) 8 ALD 587.
Mr Tennant also argued that his seeking review of his entitlement to rent assistance could be viewed adversely by an employer. The Tribunal is not convinced that if a citizen seeks review of a decision claimed to be incorrect, that this exercise of his legal rights would be viewed adversely by an employer involved in the legal profession. That response is supported by Mr Tennant’s claim that he is pursuing this matter, despite the outcome he seeks having already been conceded, for altruistic reasons. Mr Tennant is doing no more than exercising rights which he has to seek review of an administrative decision affecting him and an employer is more likely to applaud than penalise or condemn an applicant who is acting from genuinely altruistic reasons. In addition, as Mr Tennant’s submission indicates, since the appeal to the Tribunal concerns a question of law, and is not principally a factual dispute, and there are no issues concerning his character or credibility, an employer in the legal profession is not likely to draw an adverse inference in relation to him from the matters covered in the reasons. The Tribunal does not accept that this argument warrants non-disclosure of his name.
Accordingly, on balance the Tribunal is not prepared to exercise its discretion to suppress Mr Tennant’s name in this matter. The arguments for suppression are not sufficiently cogent to satisfy the Tribunal that there is a need to depart from the fundamental premise that proceedings and evidence provided to the Tribunal should be published.
The Tribunal notes that in the event that his request for a suppression order is denied, Mr Tennant initially sought a stay order under section 43(5B) of the Act to prevent the publication of its reasons in the substantive matter until the time for an appeal to the Federal Court against this interlocutory decision has expired.
By letter dated 17 February 2014, Mr Tennant argued that the request for a suppression order ‘relies upon facts in the substantive appeal before the Tribunal’. In his view, ‘[t]he Tribunal cannot fairly and legitimately make a decision on whether or not to suppress my name in the Tribunal’s reasons, without having those reasons complete and ready to publish’. Accordingly he requested that the reasons in relation to the suppression question and the reasons in relation to the substantive appeal be published at the same time.
The Tribunal does not accede to this submission. The reasons in the substantive matter (which are completed and ready to be published) relate to eligibility provisions in the Social Security Act 1991 (Cth) for rent assistance; the reasons in the interlocutory matter relate to Mr Tennant’s argument that his future employment would be jeopardised if his name is published in the substantive decision. The response to that argument rests on the interpretation and application of section 35 of the Administrative Appeals Tribunal Act 1975 (Cth). The substance of the claims are different and involve the interpretation and application of different legislative provisions.
The Tribunal has processes to deal with an application of this nature in order to preserve the anonymity of the applicant until a claim for a suppression order is finally decided. The reasons in the interlocutory matter are published first and privately to the parties. If the applicant wishes to appeal that decision to the Federal Court under section 44 of the AAT Act, or to seek review by the Court of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth), an application can be made to the Federal Court to suppress the person’s name. The Tribunal would not publish the reasons in the substantive matter until the time limits for an application to the Court have expired.
Assuming proceedings are commenced in the Federal Court, the Tribunal does not publish the reasons in the substantive decision until after the expiry of the time limits for any Federal Court proceeding. The Tribunal proposes to follow that process.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. .....................[sgd]..................
Associate
25 February 2014
Date of interlocutory hearing 28 January 2014 Applicant In person Advocate for the Respondent Stephen Davidson Solicitors for the Respondent Department of Human Services
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