Joppich and National Disability Insurance Agency
[2024] AATA 3275
•3 September 2024
Joppich and National Disability Insurance Agency [2024] AATA 3275 (3 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2024/4104
Re:Julian Joppich
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Deputy President Mischin
Date:3 September 2024
Place:Perth
The Tribunal declines to make orders directing a private hearing, non-publication or non-disclosure pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth).
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The Hon. Michael Mischin, Deputy President
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – request for confidentiality orders pursuant to section 35 Administrative Appeals Tribunal Act 1975 (Cth) – private hearing, non-disclosure and non-publication – where the Applicant is an adult – orders denied
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
National Disability Insurance Scheme Act 2013 (Cth)Taxation Administration Act 1953 (Cth)
CASES
BQKD and Commissioner of Taxation [2023] AATA 2169
SECONDARY MATERIALS
AAT Registry Procedures Manual s 11.5.2
REASONS FOR INTERLOCUTORY DECISION
Deputy President the Hon. Michael Mischin
3 September 2024
BACKGROUND
On 20 June 2024, the Applicant lodged with the Tribunal an application for review of a decision of the National Disability Insurance Agency (NDIA). The application was lodged by his mother, who is his representative.
By way of email on 21 June 2024, the Tribunal wrote to the Applicant acknowledging its receipt of his application. In reply, by an email of 25 June 2024, the Applicant’s representative requested that certain information ‘be kept confidential’ in her son’s application, namely:
(a)The names, address, contact number and email address of the Applicant and his representative;
(b)‘Some of the key documents lodged by the parties (so that they don’t identify [the Applicant and his representative])’.
The Applicant’s representative went on to say:
As this case contains a very private and personal matter, please make sure that this case will not identify us. I have been going through a very frustrating and depressing time. I am aware that these days it is easy for anybody to locate us. Any unwanted strangers’ comments or attempts to contact me would further harm my mental wellbeing.
By email of 11 July 2024, the Respondent informed the Tribunal that it did not oppose the making of an order ‘preventing publication of identifying information [that] is being sought by the Participant’s representative’.
The Tribunal sought further information from the Applicant to support the request for confidentiality. On 14 August 2024 the Tribunal received a letter from the Applicant’s representative dated 12 August 2024 detailing reasons for the request. In substance, the Applicant’s representative argues that:
(a)It is not in the public interest to have her and the Applicant’s names or identifying information published;
(b)The review will require describing the Applicant’s disabilities, medical history and behaviours and the impact that they have had on the Applicant’s family;
(c)The information will be of a ‘very private and personal nature’;
(d)The representative is concerned that the public will be able to gain access to personal information about the Applicant and his family and locate their address and telephone number;
(e)The Applicant, by reason of his intellectual disabilities, is unable to make known how he feels about possible disclosure of information to the public;
(f)The representative is concerned that disclosure of the Applicant’s identity and information about his condition will increase stigmatization, may attract unwanted attention and attempts to contact family members, and affect their employment and social prospects;
(g)The Applicant’s family members have previously received ‘harsh’ comments from people that demonstrate a misunderstanding of or prejudice towards the Applicant’s condition, including comments that his disabilities are ‘because [they] don’t go to church’ and that the family is ‘cursed’; and
(h)Any unwanted attempts by total strangers to contact the family or comment on the Applicant’s appeal would further harm the mother’s mental wellbeing.
The Tribunal’s power to restrict the publication or information is governed by section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). It provides as follows:
Public hearings and orders for private hearings, non publication and non disclosure
Public hearing
(1)Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
Private hearing
(2)The Tribunal may, by order:
(a)direct that a hearing or part of a hearing is to take place in private; and
(b)give directions in relation to the persons who may be present.
Orders for non publication or non disclosure
(3)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a)information tending to reveal the identity of:
(i)a party to or witness in a proceeding before the Tribunal; or
(ii)any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b)information otherwise concerning a person referred to in paragraph (a).
(4)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a)relates to a proceeding; and
(b)is any of the following:
(i)information that comprises evidence or information about evidence;
(ii)information lodged with or otherwise given to the Tribunal.
(5)In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a)that hearings of proceedings before the Tribunal should be held in public; and
(b)that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c)that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
Not applicable to Security Division review of security assessment
(6)This section does not apply in relation to a proceeding in the Security Division to which section 39A or 39BA applies.
Note: See section 35AA.
The default position is that the proceedings of the Tribunal must be public, with all that that entails.[1] This is reinforced by principles to which the Tribunal is to have regard in considering whether to exercise its power to order that part or all of a proceeding be held in private, and to order the non-publication and/or non-disclosure of information.[2] The ‘confidential nature’ of information may be a reason in favour of orders restricting disclosure or identity or other information.[3] However, the legislature plainly did not consider the confidential nature of information should inevitably result in such orders. Nor is the attitude of the Respondent determinative. In this instance, the Respondent has, as one might expect in an application of this character, advised that it does not oppose orders being made. However, it has not consented to or supported the making of any such orders and, even if it were to do so, it does not obviate the Tribunal’s responsibility to wield the powers invested in it in accordance with law, principle, and the public interest.
[1] AAT Act section 35(1).
[2] AAT Act section 35(5).
[3] AAT Act section 35(5).
It is axiomatic that decisions that impose the restrictions contemplated by section 35(2), (3) and (4) need to be made on a case-by-case basis, and the Tribunal should be cautious about making blanket orders at an early stage of proceedings if more tailored orders might suffice at a later point.[4]
[4] BQKD and Commissioner of Taxation [2023] AATA 2169 at [15], per DP McCabe.
By their nature, applications for review of NDIA decisions involve examination of an applicant’s personal circumstances. Every application seeking entry to or supports from the Scheme established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) will necessarily require the parties to disclose to the Tribunal personal and sensitive information about the applicant – medical, psychological, psychiatric, and functional – and their circumstances and relationships with others. Nevertheless, the NDIS Act does not contain any provisions which qualify the operation of the principles under section 35 of the AAT Act; had it be thought necessary or desirable by the legislature to do so, it could easily have made provisions analogous to those in, say, the Taxation Administration Act 1953 (Cth) or in child support, Family Court or child protection legislation, or in the Children’s Courts of states and territories.
In the case of children applying to the Tribunal for reviews of NDIA decisions it is the Tribunal’s practice, consistent with section 11.5.2 of its Registry Procedures Manual, that the Tribunal ‘always makes a section 35 order immediately after an application is lodged’ to assign a pseudonym, order non-publication of names and addresses of the applicant and any witnesses, that the hearing be held in private, and that information given in evidence or contained in documents lodged with the Tribunal not be made publicly available unless included in a written decision.
On its face this prescribes a policy and institutes a practice that removes, and potentially fetters, consideration by members on a case-by-case basis whether such orders in such broad terms are justified. It at least reflects an expectation that a member with power to make such an order will weigh the relevant considerations and, on balance, seek to protect the privacy of a child with a disability. The rationale for this practice, dating back a decade, appears to have been that a child applicant is generally not able to make an informed decision about the implications, present and future, of sensitive personal information being available publicly: the protection of a child’s privacy, particularly that of a child with a disability, would generally be thought sufficient reason for making the order.
Why that should be a determinative consideration may be open to debate. One would not expect blanket orders for a private hearing, non-disclosure and non-publication to be routinely made if the child were to take civil proceedings in a court of competent jurisdiction on the same evidence. Further, it draws a line at the arbitrary age of 18 years of age, without regard to the information involved or other public interest considerations. It is also incongruous that an applicant under the age of 18 can, as a matter of course, expect to be granted broad confidentiality protections at the commencement of proceedings while one just over the age of 18, and perhaps with intellectual and cognitive impairments which would affect their capacity to make informed decisions, would not so qualify.
However, the critical examination of that practice is for another day.
Many of the concerns that have been raised by this Applicant may be avoided in due course by appropriate circumspection on the part of a member drafting reasons for their decision. Furthermore, it is not uncommon for a member to publish the decision and reasons to the parties before they are published more widely, allowing the opportunity for either party to seek redactions or further orders without change to the substance of the reasons. As has also been pointed out:[5]
Even where proceedings are conducted in public, strangers are not permitted access to the Tribunal’s file without leave. While material tendered in evidence at a hearing is potentially accessible following a public hearing, an inquisitive member of the public is not otherwise entitled to leaf through the contents of the Tribunal’s official file. Indeed, there are parts of the file that are ‘off limits’ to the member who conducts the hearing. Notes from alternative dispute resolution conferences and copies of ‘without prejudice’ correspondence, for example, are not shown to the member. The success of the Tribunal’s alternative dispute resolution processes depends on that sort of information management.
[5] Ibid at [10].
In the present case, the Applicant being an adult, it is necessary to have regard to any reasons in favour of departing from the default position. In this respect, the Applicant’s submission that it is not in the public interest that the representative’s and Applicant’s names or identifying information be open to publication is misconceived. The question is whether their personal circumstances are such as to outweigh the public interest reflected by section 35(1) requiring a hearing in public (with all that entails), or whether there can be discerned a competing and more compelling public interest (such as protection from violence from an estranged and violent partner, or the protection afforded to victims of sexual offences).
In this case the concerns about the possible exposure of information of a ‘private and personal nature’, and the prospect of identification, are inherent in any application before the Tribunal, especially in a review of a decision made by the NDIA. No evidence has been supplied of any particularly confidential information that would compromise the safety of the Applicant or his family, or infringe orders made by other courts or tribunals, or reveal information protected by law. It may be that someone with an interest in the Applicant or his family, and in Tribunal proceedings, may seek to connect them with the matter under review. However, I am not persuaded that at this preliminary stage of proceedings, where no hearing of even an interlocutory nature has been listed, anonymisation, non-publication and non-disclosure orders are justified.
In due course, as more information emerges or more than speculative fears are demonstrated, the issue can be revisited, at which time orders can be tailored to meet such circumstances as warrant them.
DECISION
The Tribunal declines to make orders directing a private hearing, non-publication or non-disclosure pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for decision of Deputy President Mischin
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Associate
Dated: 3 September 2024Dates of the hearing: Determined on the papers
Date of final submissions: 12 August 2024Representative for the Applicant: Self-represented
Solicitor for the Respondent: National Disability Insurance Agency
AAT Dispute Resolution & Litigation Branch
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