Hojbota and Secretary, Department of Social Services (Social services second review)

[2020] AATA 5185

Hojbota and Secretary, Department of Social Services (Social services second review) [2020] AATA 5185 (22 December 2020)

Division:                  GENERAL DIVISION

File Number:          2018/0950

Re:Lenuta-Elvira Hojbota

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

File Number:          2018/0954

Re:Sababu Kaitilla

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President I R Molloy

Date:  22 December 2020

Place:Brisbane

The Applicants' request for a confidentiality order to prohibit publication of the decision dated 30 August 2019 is rejected.

...................................[SGD].....................................

Deputy President I R Molloy

Catchwords

PRACTICE AND PROCEDURE – Confidentiality –– Whether Tribunal should retroactively prohibit publication of decision in the circumstances – Whether Applicants’ identities should be suppressed - Application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Deputy President I R Molloy

22 December 2020

1. The Applicants are applying for what can be described as a suppression order. The application is to remove from publication a decision of the Tribunal made on 30 August 2019.

2. The background to the application is this. The First Applicant (Ms Hojbota) was in receipt of the Disability Support Pension. The Second Applicant (Dr Kaitilla) was in receipt of carer payment and carer allowance.

3. The Applicants departed Australia on 21 July 2017. The Respondent decided the Applicants had exceeded the maximum “portability” periods and in consequence their respective payments were suspended.

4. The Tribunal, on 30 August 2019 in proceedings No 2018/0950 and 2018/0954, affirmed the Respondent’s decisions and in so doing affirmed a decision of the Tribunal made on 9 February 2018.[1]

   [1] Section 37 T Documents, T9 – T10, pages 95-129.

5. The Tribunal’s reasons for decision made on 30 August 2019 can be accessed inter alia on with the citation [2019] AATA 3206.

6. On appeal from the 30 August 2019 decision, the Federal Circuit Court by consent, on 20 March 2020, remitted the cases to the Tribunal, differently constituted, to hear and determine two questions:[2]

   1Whether, at any relevant time, the First Applicant was "a person who is not severely disabled" for the purposes of Article 5(7) of Schedule 10 of the Social Security (International Agreements) Act 1999; and

   2Having regard to the findings on that issue, whether the decisions to suspend payment of the First Applicant's disability support pension and the Second Applicant's carer payment which are under review by the Tribunal were correct and preferable.

   [2] Section 37 T Documents, T11, page 130.

7. Shortly prior to the hearing date the parties reached agreement.

8. In consequence, on 17 November 2020, I made orders, by consent, pursuant to section 42C(2) of the Administrative Appeals Tribunal Act1975 (Cth). The orders were to:

   1set aside the decision of the Social Services & Child Support Division of this Tribunal dated 9 February 2018; and

   2remit the matter for reconsideration with directions that:

   (a)as at 18 August 2017, the First Applicant was “severely disabled” within the meaning of Article 5(7) of Schedule 10 to the Social Security (International Agreements) Act 1999 (“International Agreements Act”); and

   (b)the First Applicant’s disability support pension remained payable beyond the period in excess of the maximum portability period provided for under section 1217 of the Social Security Act 1991 by operation of Article 5(7) of Schedule 10 to the International Agreements Act.

9. The orders, by agreement between the parties, also expressly noted the /effect was “that the First Applicant’s disability support pension and the Second Applicant’s carer payment remained payable for the duration of their absence from Australia commencing 21 July 2017”.

10. The Applicants have subsequently applied to the Tribunal to have the decision of 30 August 2019 “nullified” or “removed”. 

11. The Applicants argue that the matters the subject of proceedings 2018/0950 and 0954 were decided on 30 August 2019, at which time the Tribunal was functus officio. They say that for the consent orders made on the 17 November 2020 to have validity, the previously published decision has to be removed especially as the proceedings retain the same file numbers.

12. I cannot see any merit in this argument.

13. The Applicants also argue that the previous decision should be removed from publication because it is wrong and there is some benefit to both them and the Tribunal that there should be no trace of it. Again, I cannot see any merit in this argument. I also make the observation, as the Respondent points out, that the 30 August 2019 canvassed a number of matters and was only set aside and remitted for rehearing on limited issues. 

14. Finally, the Applicants contend that continued publication of the decision of 30 August 2019 is causing them stress. They say that if the decision is not removed from publication then at least their identities should be suppressed.

15. Subsections 35(3) and (4) of the Administrative Appeals Tribunal Act[3] (“the Act”) provide that the Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of a party in a proceeding or information concerning a party to a proceeding, or other information that relates to a proceeding.

    [3] 1975 (Cth).

16. The Respondent concedes that I have jurisdiction to make an order under section 35 of the Act, notwithstanding the applications for review have been finally determined, but contends that this is not a case for the exercise of that power in favour of the Applicants.

17. The starting point, as expressed in section 35(1) and (5) of the Act, and as the Respondent contends, is the desirability that proceedings be in public, and with that the opportunity for public access and scrutiny of Tribunal decisions.

18. There are cases, of course, where an order suppressing the name of a person, or other identifying facts, is justified.  Examples include protection of the anonymity of a child, to avoid prejudice to criminal proceedings, where a person’s business reputation might be unfairly damaged, or to avoid revealing personal or embarrassing medical details.

19. I do not see that there are any circumstances which justify suppressing the Applicants’ names in respect of the decision of 30 August 2019. There were no findings against the Applicants reflecting on their character or honesty.

20. There was no evidence of the stress it was said to be causing them. That was merely an assertion in argument. I also note that the decision was published more than a year ago. As the Respondent points out there has been plenty of time for anyone interested in the Applicants or their circumstances to have read the decision. It is telling also that a suppression order was not an issue raised before me in any of the several interlocutory hearings I conducted, or when I was asked to make final consent orders in November this year. 

21. In all the circumstances I am not satisfied there is any good reason to make the order sought by the Applicants, or any other order including one that suppresses the publication of the names of the Applicants as they appear in the decision of 30 August 2019. 

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

....................................[SGD]....................................

Associate

Dated: 22 December 2020

Dates of hearing:	21  December 2020
Applicants:	In person
Solicitor for the Respondent:	Ms M Underhill, Mills Oakley Solicitors