Koprivnjak and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1707

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1707

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1177

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL KOPRIVNJAK

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date29 August 2007

PlaceSydney

Decision The Tribunal refuses the application for an order under section 35 of the Administrative Appeals Tribunal Act 1975.

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

Ms N Isenberg
  Senior Member

CATCHWORDS

Practice and Procedure – application for confidentiality order – basic principle hearings to be heard in public – public interest in errors in administration being exposed – application for order refused

Administrative Appeals Tribunal Act 1975 – section 35

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

Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747

Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

Re Modini and Tax Agents’ Board of Queensland (2005) 89 ALD 496

Re Lawrance and CRS Australia and Ors (2004) 85 ALD 238

REASONS FOR DECISION

29 August 2007 Ms N Isenberg, Senior Member   

1. On 1 August 2007 this matter was listed for the hearing of Mr Koprivnjak’s application for a confidentiality order pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (“the Act”). The applicant was self-represented and Mr Lozynsky of Centrelink Legal Services appeared for the respondent.

2.        Mr Koprivnjak has applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of a decision by Centrelink on 29 November 2006 to commence the payment of Newstart Allowance to Mr Koprivnjak no earlier than 29 November 2006.  This decision was confirmed by an Authorised Review Officer (“ARO”) on 6 December 2006 and affirmed by the Social Security Appeals Tribunal (“the SSAT”) on 13 March 2007.

3.        It appears that Mr Koprivnjaks’s application for a confidentiality order is motivated by his concern that the written decision of the SSAT had referred to the death of his mother.  He contended that there had been a “breach of FoI” by the SSAT in “involving a third party”, being his mother, as he submitted there had been no reference to his mother in the documentary or oral evidence.  Mr Koprivnjak also voiced a concern about there being numerous errors on Centrelink files pertaining to him.

4.        I understand that Mr Koprivnjak by his application for a confidentiality order seeks the Tribunal to make directions to the effect that:

(a)the hearing shall be held in private;

(b)the names of doctors providing evidence are not disclosed; and

(c)certain evidence is withheld from the respondent.

5. The Tribunal’s powers to make directions in respect to the confidentiality of the proceedings or part of the proceedings are set out in section 35 of the Act as follows:

35  Hearings to be in public except in special circumstances

….

Public hearing

(1)Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.

…

Private hearing etc.

(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 reason, the Tribunal may, by order:

(a)direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

(aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

(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.

(3)       In considering:

(a)whether the hearing of a proceeding should be held in private; or

(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.

6.        In  Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 then President Brennan J stated at 53-54:

the Tribunal is required by statute (s 35(3)) to “take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be in public”. This is a principle which is binding upon courts of justice (see R v Tait, Federal Court of Australia, 1 May 1979, unreported), and which is calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it.

7.        Deputy President Forgie in Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747 at 766 explained that the principle that it is desirable that hearings should be held in public meant:

not only that it is desirable that the proceedings be held in public but also that it is desirable that evidence given in, or received by, the tribunal and that matter in documents lodged with the tribunal should be made available both to the public and to the parties.

8.        While acknowledging the principle that public hearings were most desirable Brennan J acknowledged that there were circumstances obviously contemplated when the powers in subsection 35(2) may be exercised, though these would be expected to arise infrequently, saying at pages 55-56:

… 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) authorises 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....

9.        The task before the Tribunal is one of balancing opposing interests.  As Deputy President Forgie stated in Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663 at 668-669:

What must be weighed in the balance as a result of that section are the desirability of the tribunal's proceedings being in public and the contents of material received by, or lodged with, it being available to the public on the one side and the reasons for confidentiality on the other. There is no guidance in s 35(2) as to how the two sides of the scale should be weighted in order to determine the side to which they will ultimately tilt.

10. There is no exhaustive list of the circumstances in which the Tribunal is prepared to make orders pursuant to section 35 of the Act. Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 commented that embarrassment or damage to reputation have not been regarded as sufficient reasons for the closure of courts or the issue of suppression orders. However, in Re Modini and Tax Agents’ Board of Queensland (2005) 89 ALD 496 at 504 Member Levy stated the Tribunal will “give consideration to prohibiting disclosure of an applicant’s name where severe embarrassment or disadvantage is likely to result from such disclosure”.

11. To the extent that Mr Koprivnjak’s application for a confidentiality order is motivated by the reasons stated in paragraph 3 above, and I make no comment as to the substance of these concerns except to say that it is unlikely that there has been a breach of the Freedom of Information Act 1982, I consider that the matter should be heard in public and all of the documentary evidence should be made publicly available. I note Brennan J’s comments concerning the desirability of exposing the exercise of administrative power to public scrutiny and also the more recent statement of Senior Member Allen in Re Lawrance and CRS Australia and Ors (2004) 85 ALD 238 at 241 that:

… the AAT as a superior Tribunal should be very loath to consent to its proceedings taking place in private. It is not uncommon that during an AAT hearing some maladministration will be evidenced and it is proper that such bureaucratic failures be exposed. Similarly, errors of administration exposed in one matter may be applicable to numerous other matters. Invariably one of the parties to any review before the AAT is a government department or instrumentality therefore proceedings before the AAT should be in public, for to use the words of Lord Atkinson quoted above, the hearing of a case in public is “the best security for pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect”.  To create a review body that restricts, or worse denies, legal representation and then sits in private is to recreate the Star Chamber.

12.      Further, as Mr Koprivnjak’s mother has sadly passed away she cannot suffer any prejudice arising from public reference to her in these proceedings.

13. In so far as Mr Koprivnjak’s application concerns the identity and evidence to be given by medical experts the reasons put forward by Mr Koprivnjak were too vague to justify an order being made at this stage. If his medical experts are reluctant to participate I note it is open to Mr Koprivnjak to summons them to appear to give evidence. Mr Koprivnjak or his medical experts are at liberty to apply at the time of the hearing for orders pursuant to section 35 although I draw Mr Koprivnjak’s attention to Kirby P’s comment in John Fairfax Group (supra). 

14.      I reiterate what I stated at the hearing that it is in Mr Koprivnjak’s best interests to produce all relevant documents in his possession.

15.      At the hearing of this application Mr Koprivnjak raised concerns about certain matters being addressed in the course of hearing.  In essence Mr Koprivnjak was raising objections to certain material being before the Tribunal on the basis of relevance.  I understand that material to relate to the death of his mother shortly before he made his first inquiries about Newstart Allowance and also the fact that he now was the recipient of the Newstart Allowance.  Decisions in relation to relevance are properly reserved for the member hearing the substantive matter who is better placed to rule on relevance in the context of the material before the Tribunal.

DECISION

16. The Tribunal refuses the application for an order under section 35 of the Act.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Date of Hearing  1 August 2007
Date of Decision  29 August 2007
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Mr G Lozynsky, Centrelink Legal Services