Fresh Fields Aged Care Pty Ltd and Secretary, Department of Health (Social services) - [2020] AATA 3952

Fresh Fields Aged Care Pty Ltd and Secretary, Department of Health (Social services) [2020] AATA 3952 (2 October 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3160
Re:Fresh Fields Aged Care Pty Ltd
APPLICANT

AndSecretary, Department of Health
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:2 October 2020
Place:Perth

Click here to enter decision.
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Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – production of documents relevant to the review of the decision – relevance – protected information – orders sought restricting publication or disclosure of documents – role of the Tribunal in conducting review – orders refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 35(4), 35(4)(b)(ii), 37, 37(1)(b), 37(AE)
Aged Care Act 1997 (Cth) – ss 15.7(4), 86.2, Part 2.6
CASES
Carter and Australian Securities and Investments Commission [2020] AATA 809
Eley and Tax Practitioners Board [2020] AATA 3192
Kang and Secretary, Department of Social Services [2019] AATA 758
Mullen and Aged Care Complaints Commissioner [2017] AATA 2556
Mullen and Chief Executive Officer, Australian Aged Care Quality Agency [2017] AATA 1805
DECISION
BACKGROUND

In the substantive application in this matter the Applicant seeks review of a decision of the Respondent to refuse the Applicant’s application under s 15.7(4) of the Aged Care Act 1997 (Cth) (AC Act) for an extension of the provisional allocation period.
The Respondent has produced documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
The Respondent seeks certain orders under ss 35(4)(b)(ii) and 37 of the AAT Act in relation to one document (PD-1) and a redacted version of that document (PD-1R).
By direction made on 21 July 2020 the parties were directed to provide submissions and evidence in relation to the orders sought by the Respondent. Those submissions and evidence were provided by the parties.
The parties agreed that the Tribunal was to make the decision in relation to the orders sought by the Respondent on the papers without the need for a hearing.
CONSIDERATION
As noted above, the Respondent seeks orders in relation to one document (PD-1) and a redacted version of that document (PD-1R). Initially the Respondent’s application, set out in Ashurst’s letter dated 8 July 2020, was for orders under s 35(4)(b)(ii) of the AAT Act restricting “…publication or disclosure of document PD-1 to the Tribunal” and orders prohibiting publication of the document, or disclosure of its existence, to “any other person”. The “any other person” would include the Applicant and its representatives.
Section 35(4) of the AAT Act provides for restriction of publication or disclosure of information, not documents. Accordingly, insofar as the Respondent seeks an order or orders under s 35(4) of the AAT Act, the Tribunal will treat that as an application for an order or orders relating to the information contained in the documents PD-1 and PD-1R.
The Ashurst letter of 8 July advised that they were taking instructions on whether “certain parts of PD-1 [would be made] available to the Applicant…”. By Ashurst’s letter dated

3 August 2020, a “new version” of document PD-1 (called PD-1R) with certain information redacted, was provided to the Tribunal and to the Applicant’s lawyers. The reason given for the provision of the partially redacted PD-1R was that:
The redactions made to [sic] PD-1R mask protected information of approved providers of aged care who are not part of the Hall & Prior group”.
(Original emphasis.)
By that letter of 3 August 2020 orders were also sought restricting disclosure of PD-1R,

or its existence, in the same terms as the orders sought in respect of PD-1 with the exception that PD-1R, and the fact of its existence, could be disclosed the Applicant’s lawyers and counsel.
By that letter of 3 August 2020 a potential alternative order in the following terms was sought:
If the Tribunal is not inclined to grant the confidentiality orders sought by the Respondent, the Respondent seeks (in the alternative) an order pursuant to section 33 of the AAT Act that:
· The Respondent is not required by section 37 to lodge the irrelevant portions of the document titled ‘Legal and Assurance Division/Litigation Support Unit Examples of decisions on extensions of the provisional allocation period applying exceptional circumstances: s15-7(5) Aged Care Act 1997’ (PD-1) and may lodge a version of PD-1 in which those portions have been redacted.
(Footnote omitted.)
Relevance of PD-1/PD-1R
The Applicant in paragraph 11 of its submissions raises the question of the relevance of PD-1. It notes that the document refers to applications by other approved providers and decisions which are not the subject of these proceedings. It notes, correctly, that the task of this Tribunal is to make the correct or preferable decision on the Applicant’s application based on the material before it and submits that PD-1/PD-1R should be given little weight. It does, however, “… contend that PD-1R demonstrates a flawed decision-making process in relation to applications under s 15-7(5) of the Aged care Act” (para. 12).
The Applicant’s point as to the relevance of PD-1 is a valid one. As has been repeatedly held by superior courts, the role of the Tribunal is to reach its own correct or preferable decision, not to examine the decision under review for error, whether that be legal, evidential, substantial, procedural or other. This Tribunal summarised the role of the Tribunal in reviewing a decision in Kang and Secretary, Department of Social Services[1] at [18] as follows:
The role of the Tribunal in such a review is to determine for itself what is the correct and preferable decision: see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi). The Tribunal is not limited to reviewing the decision for legal or other error, but rather conducts its own de novo assessment and determination of the matter. Its role is ‘to “do over again” what the original decision maker did’: see Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21at [41] per Perry J (White and Wigney JJ agreeing), referring to Shi at [100] (per Hayne and Heydon JJ) and at [37] (per Kirby J). See also Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at [589] and reference to that case in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [37].
(See also Carter and Australian Securities and Investments Commission[2] at [50]; Eley and Tax Practitioners Board[3] at [63])
[1] [2019] AATA 758.
[2] [2020] AATA 809.
[3] [2020] AATA 3192.
Document PD-1 has been lodged with the Tribunal by the Respondent under s 37 of the AAT Act. Section 37(1)(b) relevantly requires the decision maker to lodge with the Tribunal a copy of:
…every other document in the person’s possession…and [which] is relevant to the review of the decision by the Tribunal.
(Emphasis added.)
Section 37(1)(b) of the AAT Act requires the decision maker to lodge documents which are relevant to the review of the decision to be made by the Tribunal. It is not a requirement to lodge documents which may have been relevant to the decision made by the decision maker. As the Tribunal’s role is to conduct its own de novo assessment and to determine, for itself, the correct or preferable decision and not to review the decision for legal or other error, the Tribunal cannot see what relevance PD-1 or the information contained in that document would have, even if the decision maker had relied on PD-1. The Respondent seems to concede this in its submissions at paragraph 24 wherein it contends that:
(i) It [PD-1] is not a mandatory guideline and is not used by every review officer preparing an appraisal of an application to extend the provisional allocation period under s15-7 of the Aged Care Act, for submission to a delegate of the Secretary considering the exercise of the s15-7 power.
(A) The document may or may not have been used by the review officer preparing the appraisal of the reconsideration decision of the reviewable decision not to extend the provisional allocation period the subject of the Applicant’s application under s15-7.
(B) While referred to in the submission to the delegate for the reviewable decision (T8 [11], [39]), there is no indication that the document was reviewed by the delegate of the Secretary.
(ii) The document contains earlier examples where exceptional circumstances were found not to exist, that is, where delegates of the Secretary were not reasonably satisfied that 'exceptional circumstances existed' justifying the grant of an extension to the provisional allocation period sought by the aged care approved provider in the case before them… However, the Tribunal’s task under section 85-5 of the Aged Care Act is to itself determine the correct and preferable decision on the evidence; it is not concerned with examining the steps undertaken by Departmental review officers when preparing appraisals for a delegate of the Secretary.
…
Accordingly, while it is appropriate from the Respondent’s perspective to lodge PD-1/PD-1R with the Tribunal in discharge of its obligation under section 37(1)(b), the actual relevance of the document to the task faced by the Tribunal would appear to be marginal. This suggests that the impact of the requested confidentiality orders in terms of detracting from the public hearing principle will be low.
The Tribunal agrees with the Respondent’s summary of the task to be undertaken by the Tribunal as set out above, but disagrees with the Respondent’s contention that it was appropriate to lodge PD-1/PD-1R with the Tribunal in discharge of its obligation under

s 37(1)(b) of the AAT Act. If PD-1/PD-1R is not relevant to the task to be undertaken by the Tribunal, which appears to be the contention of both parties, a contention with which the Tribunal agrees, then it is not a document that should have been lodged with the Tribunal under s 37(1)(b).
The appropriate course in these circumstances is for the copies of PD-1 and PD-1R lodged with the Tribunal to be withdrawn by the Respondent. Such a course will obviate the need for the orders sought by the Respondent.
Are the orders sought warranted?
Given the Tribunal’s finding as to the relevance of PD-1/PD-1R and the inappropriateness of that document being lodged under s 37(1)(b), and therefore provided to the Applicant under s 37(1AE) of the AAT Act, there is no need to make the orders sought by the Respondent.
If, however, either party (presumably the Respondent) were to seek to rely on PD-1/PD-1R, and provided that party could convince the Tribunal of the relevance of PD-1/PD-1R, then the Tribunal would be minded to make orders restricting the disclosure of the information contained in PD-1/PD-1R.
The Tribunal agrees with the Respondent’s contention that the information contained in PD-1 includes “protected information” (within the meaning of Part 6.2 of the AC Act) relating to the affairs of other approved providers in line with this Tribunal’s decision in Mullen and Chief Executive Officer, Australian Aged Care Quality Agency[4] at [60]. Disclosure of the protected information is therefore prohibited under s 86.2 of the AC Act (see Mullen and Aged Care Complaints Commissioner[5] at [62]) and it would be appropriate to make such orders.
[4] [2017] AATA 1805.
[5] [2017] AATA 2556.
If such orders were to be made, they would most likely not be as proposed by the Respondent. As noted above, an order under s 35(4)(b) of the AAT Act restricts the disclosure of information, not the provision of a document. Where an order is made under s 35(4)(b) restricting or prohibiting disclosure of information contained in a document to an applicant, the appropriate accompanying order is one under s 37(1AE) directing that the respondent be relieved of its obligation under that section from giving a copy of the document to each other party, in this case, to the Applicant.
DECISION
For the reasons set out above, the Tribunal will not make any orders at this time under ss 35(4)(b) or 37(1AE) of the AAT Act. The Tribunal gives leave to the Respondent to uplift the copies of PD-1 and PD-1R lodged with the Tribunal.