DEVASAHAYAM and COMCARE

[2010] AATA 784

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 784

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2009/5563

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHEILA DEVASAHAYAM

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date14 October 2010

PlaceSydney

Decision The interlocutory relief sought by the Applicant under s 35 of the Administrative Appeals Tribunal Act 1975 is refused.

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

Ms N Isenberg

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – confidentiality – application for order made on the basis that the applicant apprehended that her identification in the reasons for decision could impact on her future employment prospects – whether granting of order is justified – application refused

Administrative Appeals Tribunal Act 1975 s 35

Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

INTERLOCUTORY DECISION

14 October 2010 Ms N Isenberg, Senior Member

1.      Dr Devasahayam made a claim for compensation which was refused.  She ultimately sought review by this Tribunal and I heard that matter on 30 September and 1 October 2010 (“the substantive matter”).  I will today publish my decision in respect of the substantive matter.

2. Prior to the hearing, Dr Devasahayam applied for a confidentiality order under s 35 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), to have the hearing conducted in private and to prevent the publication of her name in the Tribunal’s decision. At a directions hearing by telephone on 23 September 2010 Dr Devasahayam indicated that she did not press her request for the hearing to be held in private, but she reiterated her wish that her name not be published. I decided that the appropriate course was to hear the evidence before making my decision, because it was unclear if, as Dr Devasahayam contended, she would be disadvantaged if details of her work history were to be publicly available. At the conclusion of the hearing I invited her to make submissions as to why I should make the orders sought.

3.      Dr Devasahayam said she was concerned that as she is applying for other jobs now, and has received notice of the termination of her employment with National Measurement Institute (NMI), she does not know if publication of what had occurred at NMI might affect her job prospects.  She observed that she will be unlikely to receive references from relevant managers at NMI.

4.      The Respondent neither consented to nor opposed the application.

Consideration

5. Under s 35 of the AAT Act, the Tribunal may, where it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence before it, give directions prohibiting or restricting the publication of the names of witnesses appearing before the Tribunal. In reaching a decision s 35 sets out that:

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.

6.      It is clear from this provision that the Tribunal must generally conduct its proceedings on the basis of openness, in the interests of maintaining public confidence in the fairness and integrity of those proceedings, and that the Tribunal should only depart from this approach if it is satisfied that there are proper and cogent reasons for doing so.  In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 the Tribunal (President Brennan J) said (at pp. 55-56):

Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant – they are there to be exercised, albeit sparingly.  The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established).  A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal’s powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.

An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order.  There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section).  Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one.  Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove those impediments to the receipt of information.  Yet the power is conferred in order to do justice in exceptional cases – that is to say, where “the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public” cannot be applied.

7.      In Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, the Full Federal Court, in the joint judgment of Downes and Jagot JJ, the following was said with respect to an application under s 35:

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.  It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.

8. The reasons advanced by Dr Devasahayam for the making of a confidentiality order under s 35(2) of the AAT Act were those referred to in paragraph 3 above. Those reasons are very brief and general and amount to no more than assertions. They are, in my view, concerned more with avoiding possible personal embarrassment to Dr Devasahayam than with preventing injustice or other serious disadvantage to her. Dr Devasahayam’s concerns about the affect on her future employment by publication of the Tribunal’s decision is overshadowed, in my view, by the fact that she has been given notice of her termination and the likelihood that references will not be forthcoming. I did not consider it necessary to engage in an assessment of Dr Devasahayam’s capabilities or skills in order to make a decision in relation to the issues for determination in the substantive matter.

Decision

9. The reasons advanced by Dr Devasahayam are insufficient to satisfy me that I should depart, in this case, from the Tribunal’s normal practice of openness in the conduct of its proceedings, including the publication of the decision and, accordingly, her request for a confidentiality order under s 35(2) of the AAT Act is refused.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ......[sgd]........................................................................
             Associate

Dates of Hearing  30 September and 1 October 2010
Date of Decision  14 October 2010
Appearance for the Applicant   Self-represented
Counsel for the Respondent     Mr D Richards
Solicitor for the Respondent     Ms V Haddad, Dibbs Barker