MDCT and National Disability Insurance Agency - [2021] AATA 580

MDCT and National Disability Insurance Agency [2021] AATA 580 (18 March 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2020/4203
Re:MDCT
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:The Hon Justice D G Thomas, President
Deputy President F Meagher
Member K Buxton

Date:18 March 2021
Place:Brisbane

IT IS ORDERED THAT:
1.    The Applicant’s application for recusal of Justice Thomas, Deputy President Meagher and Member Buxton from considering the application for non-publication of the interlocutory decision of 24 December 2020, and from further consideration of this case, is refused;
2.    Until further order, the names of all persons be de-identified in the proceedings and replaced with pseudonyms;
3.    The Tribunal’s interlocutory decision of 24 December 2020 be published (with the names of all persons in the decision de-identified and replaced with pseudonyms); and
4.    The parties each have liberty to apply, on three days’ notice, with respect to these orders.
............................[SGD]............................................
The Hon Justice D G Thomas, President
Catchwords
PRACTICE AND PROCEDURE – recusal application - application for recusal of Members constituted to hear application – where Applicant claims President of Tribunal affected by apprehended bias by nature of prior association with law firm representing the Respondent – where Applicant claims apprehended bias extends to other Members constituted to hear the application – where Applicant claims constituted Tribunal biased against Applicant by reference to interlocutory decision and comments made during interlocutory hearing – application for recusal refused.
PRACTICE AND PROCEDURE – confidentiality order - application for confidentiality order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) to prohibit publication of interlocutory decision – where Applicant no longer seeking non-publication of whole decision – where Applicant and Respondent both seek de-identification of named persons – where basis for de-identification considered – Order for non-publication of name of applicant or information tending to reveal identity of witness – orders made de-identifying named persons in the proceeding until further order.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth): ss 33, 35 and 44A
Cases
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hojbota and Secretary, Department of Social Services [2018] AATA 3657
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
National Australia Bank Limited v KRDV (2012) 204 FCR 436
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2021] HCA 2
Re Sheepskin and Opal Exporters and Export Development Grants Board (1984) 6 ALD 594
Secretary, Department of Defence and Thomas [2018] AATA 604
Tennant and Secretary, Department of Social Services [2014] AATA 92
Webb v The Queen (1994) 181 CLR 41
Secondary Materials
Matthew Groves, “The rule against bias” [2009] Monash University Law Research Series 10
REASONS FOR DECISION
The Hon Justice D G Thomas, President
Deputy President F Meagher
Member K Buxton
18 March 2021
INTRODUCTION

This is an interlocutory application for directions that a non-publication order be made in respect of an earlier interlocutory decision made on 24 December 2020 to issue directions in a substantive review application, which was lodged, on 14 July 2020, by MDCT (“the Applicant”). The Applicant has also asked that we recuse ourselves from considering the non-publication issue, and from any further consideration of any aspect of this case, and that it instead be determined by a differently constituted Tribunal.
In the substantive application the Applicant seeks review, by the Tribunal, of a decision of the National Disability Insurance Agency (“the Respondent”) dated 10 July 2020, to approve a statement of supports in their participant plan, but which did not include findings for various modifications to their home and the outside areas of their property.
In the course of an alternative dispute resolution process, the Respondent indicated that it would seek to commission an assessment by an occupational therapist to be undertaken with a view to assist in determining whether the supports sought by the Applicant are reasonable and necessary. The Respondent selected [name redacted, hereafter referred to as “OT”], Occupational Therapist, to conduct the assessment. The Respondent advised the Tribunal and the Applicant that, as part of the assessment process, the Applicant must make their home available to OT to inspect it for the purposes of the assessment. The Applicant objected to facilitating an inspection of their home by OT.
The Respondent requested that the Tribunal make a direction requiring the Applicant to facilitate a visit by OT to their home for the purposes of an assessment. On 21 October 2020, an interlocutory hearing was convened before a three-Member panel in order to hear submissions from the parties. On 24 December 2020, the Tribunal made an interlocutory decision directing that, upon the Respondent providing at least five (5) business days’ written notice to the Applicant, the Applicant provide access to all parts of their property for the purpose of an assessment by OT.
THE INTERLOCUTORY APPLICATIONS
On 27 December 2020, the Applicant’s advocate, [name redacted, hereafter referred to as “AA”], contacted the Tribunal by email and requested, on behalf of the Applicant, that the interlocutory decision made on 24 December 2020 not be published. In that email, AA expressed dissatisfaction with the decision which, they stated, contained “false statements which are injurious to the Applicant’s reputation”. AA also expressed dissatisfaction with three actions which have become the subject of a complaint lodged by the Applicant, namely that: a member of the registry staff had not responded to email correspondence sent from the Applicant six days earlier; the decision had not been despatched within 60 days of the hearing (a reference to the Review of National Disability Insurance Scheme Practice Direction requiring timely completion of reserved decisions); and the “insensitivity of sending the decision on Christmas Eve whilst the Applicant’s legal team was on leave”. Whilst not a specific complaint, AA also noted that “the Applicant’s Christmas was ruined by receiving a totally unfair and one sided decision”.
It is relevant to note that disagreement with the interlocutory decision itself appeared, at least initially, to be the basis for AA’s request that the decision not be published. AA’s 27 December 2020 email included the following concluding words:
It has been requested that the decision is redone without the errors of law and fact.
I trust you will understand why the decision in its current form should not be published.
AA noted that the interlocutory decision was despatched on 24 December 2020 without a signature attached and contended that the decision therefore contained a procedural defect. It followed, AA contended, that it was open to the Tribunal to re-consider and re‑make its decision to issue the direction that the Applicant make their home available for the purpose of gathering evidence from an occupational therapist, and that the Tribunal should do so before publishing the decision and reasons. Thus, AA initially requested that the Tribunal re-consider its decision and, in the interim, not make public the interlocutory decision and reasons. For completeness, we note that there was no procedural defect in the manner of publication of the interlocutory decision and, unless disturbed on appeal or varied, the Applicant is required to comply with the terms of that decision.
The Respondent was notified of AA’s communication and lodged written submissions on 19 January 2021. The Respondent stated that it understood the request made by AA on 27 December 2020 to be, in substance, an application that the Tribunal make directions pursuant to subsection 35(3) and/or subsection 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) prohibiting the publication of the interlocutory decision. The Respondent submitted that there was no cogent basis to make such a direction and, accordingly, the Tribunal should decline to do so.
On 20 January 2021, the Applicant provided written submissions in support of an application for non-publication of the interlocutory decision under subsections 35(3) and (4) of the AAT Act and filed further written submissions on 25 January 2021 and 8 February 2021.
On 1 February 2021, the Applicant made an application for recusal of the panel Members who presided over the interlocutory hearing from considering the Applicant’s application for a non-publication order. On 12 February 2021, both the Applicant and the Respondent provided written submissions with respect to the recusal application. The Applicant subsequently requested that all three Members of the constituted panel recuse ourselves from considering both this application and any other aspect of the Applicant’s case.
In January 2021 the Applicant lodged with the Federal Court of Australia an appeal against the interlocutory decision. On 10 March 2021 the Tribunal received communication from the solicitors for the Respondent indicating that the appeal had been dismissed with the consent of both parties, and asking that the Tribunal make directions in the substantive application, by consent, broadly as follows:
(a)That the interlocutory decision be published, with a direction that all named persons in the decision and reasons be replaced by pseudonyms; and
(b)That the direction made by the Tribunal arising from the interlocutory decision be varied to state as follows: 'The Tribunal DIRECTS that, upon the Respondent providing at least five (5) business days' written notice to the Applicant, the Applicant provide access to all parts of [their] property for the purpose of an assessment by an Occupational Therapist of the Respondent's choosing, with such Occupational Therapist to be selected in consultation with Vision Australia'.
The Applicant initially confirmed their consent to directions being made broadly in those terms and each party has sought liberty to apply with respect to the directions sought. However, there remains some uncertainty between the parties as to the precise terms of the requested variation to the direction we made on 24 December 2020 as a result of the interlocutory decision. Further, AA had subsequently indicated that they have withdrawn consent to the making of the proposed directions until agreement is reached as to the terms of the variation sought as to that direction. As at the date of publication of these reasons the parties had not yet agreed to precise terms of the direction proposed to be varied by consent. The interlocutory decision will therefore remain in place until precise terms are agreed upon at which point the Tribunal will consider any variation to that decision.
The parties initially agreed that a non-publication order is no longer sought with respect to the entirety of the interlocutory decision so long as that publication occurs with redactions of the names of the parties and witnesses. However, as AA had indicated that consent has been withdrawn, we will consider the question whether a non-disclosure order should be made in respect of the interlocutory decision and reasons in their entirety. In any event, the Tribunal is required to consider whether this is an appropriate case in which to de-identify names from documents published in the proceedings insofar as it relates to de-identification through use of pseudonyms. The Applicant has not withdrawn the application that we recuse ourselves so that issue also remains to be considered.
Therefore, the questions that remain for the Tribunal to determine are:
(a)whether to recuse ourselves from consideration of the non-publication request, and from considering any other aspect of this case, and, if we do not so decide;
(b)whether to make an order under subsection 35(3) of the AAT Act in respect of the whole of the interlocutory decision or, alternatively, restricting publication of those parts of the interlocutory decision that would allow a party or witness to be identified by replacing those names with pseudonyms.
Recusal
A decision-maker must approach the exercise of their jurisdiction in a manner that is, and must be seen to be, independent and impartial.[1] Here, it has been asserted by the Applicant that, in making interlocutory orders, the Members of the Tribunal have exercised their jurisdiction in a way that offended the proper and unbiased exercise of the Tribunal’s jurisdiction. The Applicant has asked that the Members of the Tribunal who made the interlocutory decision:
(a)reconsider the interlocutory decision, and that the decision and reasons not be published whilst that occurs;
(b)recuse themselves from determining the question whether a non-publication order should be made; and
(c)recuse themselves from determining the substantive review application or further interlocutory questions.
[1] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2021] HCA 2 per Edelman J at [80].
In considering the questions now before the Tribunal, we do not have power to reconsider the interlocutory decision. That decision was the subject of an appeal to the Federal Court of Australia that has since been dismissed with the consent of the parties. As there is no basis to ‘reconsider’ the decision, there is no basis on which to delay publishing the decision, unless a ground exists to make a non-publication order of aspects of that decision as is sought by the parties under subsection 35(3) of the AAT Act.
As the Applicant has asked that we recuse ourselves from all aspects of this case, including from considering whether to make a non-publication order, the issue of recusal will be considered first. Where an application is made that a decision-maker should recuse themselves, the decision-maker must consider whether or not to do so.[2] It is improper for decision-makers to recuse themselves from further consideration of questions in a case simply because, at the interlocutory stage, they have made a determination that is unpalatable to a party or, even, if it is determined on appeal to be erroneous.
[2] Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345; Hojbota and Secretary, Department of Social Services [2018] AATA 3657.
The proper considerations to which a decision-maker must have regard in respect of allegations of actual or apprehended bias were discussed by the High Court in Ebner v Official Trustee in Bankruptcy (“Ebner”),[3] where Gleeson CJ, McHugh, Gummow and Hayne JJ said:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects about a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
…In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.[4]
[emphasis added]
[3] (2000) 205 CLR 337.
[4] Ibid, 348.
Further, in Livesey v New South Wales Bar Association,[5] a unanimous High Court concluded:
…it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do… Once it is accepted that a judge should not automatically stand aside whenever he is requested so to do, it is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he could sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias. It is simply an instance of the ordinary working of the appellate process in which the views of the judges who constitute the appellate court prevail over the views of the judge or judges who constituted the court from which the appeal is brought.[6]
[emphasis added]
[5] (1983) 151 CLR 288.
[6] Ibid, 294.
Thus, the matter of recusal requires more than the identification, by one party, of their preference that a decision-maker not hear their case. It would be inappropriate for a judge or tribunal member to recuse themselves too readily and where the allegations raised do not make out a claim of actual or apprehended bias. Rather, an “…objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case”.[7]
[7] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 348.
The Applicant did not expressly assert that the panel Members were affected by actual bias, which is ordinarily assessed “by reference to conclusions that may be reasonably drawn from evidence about the actual views and behaviour of the decision-maker” such as a decision-maker approaching the issues with an already closed mind or some prejudice in the matter.[8] Instead, the Applicant submitted that Justice Thomas (with the same conclusions flowing on to apply to the other Members “who provided authority for him to write the judgment”[9]) was affected by apprehended bias. For completeness, we have considered whether there is any basis for recusal of all or any of the panel, either on the basis of actual bias or for apprehended bias.
[8] Matthew Groves, “The rule against bias” [2009] Monash University Law Research Series 10.
[9] Submissions of the Applicant dated 12 February 2021, para [5].
Apprehended bias is to be “assessed objectively, by reference to conclusions that may be reasonably drawn about what an observer might conclude about the possible views and behaviour of the decision-maker”.[10] A two-step process should be taken in ascertaining whether a person should be disqualified for apprehended bias. First, one must determine what it is said might lead to the person concerned deciding the case other than on its legal and factual merits. Secondly, there “must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.[11] Essentially, it is necessary to identify the imputation raised against the decision‑maker, and then assess whether an objective observer would consider that the imputed state of affairs would create a real possibility that the decision-maker’s mind would be closed or prejudiced against a party.
[10] Matthew Groves, “The rule against bias” [2009] Monash University Law Research Series 10.
[11] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345; Secretary, Department of Defence and Thomas [2018] AATA 604, [45].

In Ebner,[12] the High Court identified four main categories of apprehended bias:[13]
(a)interest, which relates to the idea that no person should be the judge in their own cause;
(b)conduct, which relates to the previous conduct of a decision-maker, including published statements made by them. It does not have to relate to conduct in the course of the proceedings at hand;[14]
(c)association, which relates to the association between the decision-maker and a party, litigant or someone else concerned with the case; and
(d)extraneous information, which “consists of cases where knowledge of some prejudicial but inadmissible fact or circumstances gives rise to the apprehension of bias”.[15]
[12] (2000) 205 CLR 337.
[13] Ibid, 348-349.
[14] Webb v The Queen (1994) 181 CLR 41, 74 (Deane J).
[15] Ibid.
Apprehended bias requires more than a mere association between a decision maker and a litigant. In Ebner, the Court said:
“… the question must be how it is said that the existence of the “association” or “interest” might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits…unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies…“an association” will not suffice to answer the relevant question.”[16] (emphasis added).
[16] Ebner v the Official Trustee in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ, at [30].
The following categories were identified by the Applicant as the bases upon which the Members should recuse themselves:
(a)association, in circumstances where Justice Thomas did not disclose that he was formerly a partner at the law firm engaged to represent the Respondent in this matter, and that this relationship gave rise to a reasonable apprehension of bias; and
(b)conduct, including published statements. These were identified by reference to statements made during the hearing of the interlocutory application and in the decision itself.
As to issue of ‘association’, Justice Thomas was, more than seven years ago, a partner at the law firm, MinterEllison, that is now representing the Respondent. There is no current professional connection between Justice Thomas and that law firm. Prior to becoming a Judge of the Federal Court of Australia and President of the Administrative Appeals Tribunal, Justice Thomas was a Judge of the Supreme Court of Queensland and was President of the Queensland Civil and Administrative Tribunal. Justice Thomas ceased to be a partner of the relevant law firm and became a member of the judiciary in the same year that the National Disability Insurance Agency (“NDIA”) was formed. Much time has since passed. There is no factual connection between Justice Thomas and the NDIA and certainly no factual connection between Justice Thomas and this case. There ought not be an automatic assumption of any interest or connection between a judge and their former law firm, and far less so between a judge and a particular case in which the former law firm is acting. For completeness, both of the other Members of the panel have past connections to earlier iterations of MinterEllison. One worked as a law clerk then as an employed solicitor for Morris Fletcher and Cross in the 1980’s and 1990’s and the other as an articled clerk then as an employed solicitor for Minter Ellison Morris Fletcher, then MinterEllison in the 1990’s. We are satisfied that each of those past connections are so tenuous as to be irrelevant to the questions now before us.
It is not said by the Applicant that Justice Thomas would decide the case differently or bring any irrelevant considerations to his determination of any aspect of the Applicant’s case. It is simply asserted that, had the fact of this historical nexus been disclosed, the Applicant would have objected to his involvement. However, the basis for recusal would not have existed then, as it does not exist now. Further, there is no identified connection or relationship between the other Tribunal Members constituting the panel and it could not be said that there would be any apprehension of bias on their part. We are satisfied that, given the remote historical context provided, a fair-minded lay person would not consider these facts to demonstrate either actual or apprehended bias of any Member of the Tribunal who made the interlocutory decision.
As to the issue of ‘conduct’, the Applicant submitted that the interlocutory decision was “totally one sided and biased”, and contained “errors of fact”, which was usefully summarised in the Respondent’s written submissions as follows:
(a)that it is incorrect to find that the Applicant has acted unreasonably or not assisted the Tribunal;
(b)that the Applicant has provided consent to Vision Australia to undertake an assessment;
(c)that recommendations have been made by the Applicant's occupational therapists in consultation with builders and engineers, rather than on instructions from the Applicant;
(d)that it is incorrect that the Agency's request for [OT] to undertake an occupational therapy assessment will not cause any risk to the Applicant because [they have] been stressed due to the proceedings;
(e)that a report from [OT] is unlikely to assist the Tribunal; and
(f)that the Tribunal failed to take into account the Occupational Therapists Code of Conduct.[17]
[17] Submissions of the Respondent dated 19 January 2021, para [14].
In the context of considering claims of apprehended bias in judicial proceedings, the plurality of the High Court in Michael Wilson & Partners Limited v Nicholls[18],per Gummow ACJ, Hayne, Crennan and Bell JJ, in considering the objective assessment of the facts and circumstances to be undertaken, stated that it was improper to firstly assume the existence of a reasonable apprehension of bias and then look for confirmation in the reasons of the decision-maker as such inquiry:[19]
“…moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.”
[18] [2011] HCA 48; (2011) 244 CLR 427.
[19] Ibid at 446, [67].
The matters summarised above, that were identified by the Applicant as the basis of apprehended bias due to the conduct of the Tribunal Members, amount to a disagreement with the Tribunal's reasons in the interlocutory decision. Disappointment with a decision made by the Tribunal does not give rise to a conclusion that it was arrived at by a biased tribunal of fact.
In this setting, we do not believe that a fair-minded lay observer would consider that any actual or apprehended bias is shown by in the manner in which the interlocutory hearing was conducted. The Applicant was represented during the hearing and many of the issues sought to be ventilated now were not ventilated during that hearing. The Applicant has sought to characterise questions from the bench variously as sarcastic, disrespectful, one-sided and biased.[20] A review of the transcript demonstrates those characterisations as misconceived. Questions were asked of counsel for both parties in order to clarify and test the various submissions. In fact, Senior Counsel for the Applicant (who, to be clear, appears to have had no involvement in these later applications for recusal or non-publication) made the following submission as to the proper exercise of the Tribunal’s discretion in circumstances where the direction sought by the Respondent was limited to an examination of the Applicant’s property and not their person:
“We would acknowledge that the tribunal would be more likely to make a direction along the lines that the property be made available than the tribunal would be to make the applicant undergo a formal assessment.”[21]
[20] Submissions of the Applicant dated 20 January 2021 paras [17] - [19].
[21] Transcript p 30, lines 24-28, see also p 32, line 32.
When all of the relevant facts are considered, we do not find the conclusion reasonably open that the making of a direction that the Applicant make their property available for inspection was a result of any of the panel Members’ minds being closed to the Applicant’s submissions on the topic, nor that any conduct on the part of the panel could have led an objective observer to consider that any of those minds were closed or prejudiced against the Applicant. A direction that a party make their property available for inspection by another party, or their expert, is not unusual. The question involved in reaching the interlocutory decision was whether to exercise a discretion to make a direction with respect to evidence-gathering. The hearing was conducted in an unremarkable fashion and the reasons for interlocutory decision reflect consideration of all the factors relevant to the exercise of the discretion to make, or not to make, a direction. This was an instance in which the Respondent’s submissions were preferred in this interlocutory setting. We conclude that the Applicant has not made out this ground for recusal.
We are not satisfied that any ground raised by the Applicant can establish a basis for concluding that the decision was affected by actual or apprehended bias or that the decision-makers should be recused from considering the non-disclosure question or other aspects of this case. Consequently, we determine that the Applicant’s request for the panel to be disqualified or recused from further considering this matter should be refused.
Non-publication
The Tribunal has the power to make directions prohibiting or restricting publication or other disclosure of information pursuant to subsection 35(3) and subsection 35(4) of the AAT Act.
Subsections 35(3), (4) and (5) of the AAT Act provide as follows:
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 a 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.
In Australian Securities and Investments Commission v Administrative Appeals Tribunal[22], Downes and Jagot JJ commented as follows with respect to the operation of section 35 of the AAT Act:
Again, we think it is important to emphasise certain aspects of the statutory provisions. Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised "sparingly". It also explains the approach in Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559; [2008] FCAFC 164 at [6], [41] and [42] (an appeal to the Full Court of the Federal Court from the decision of the AAT in Re PTLZ and Australian Securities and Investments Commission (2008)100 ALD 648; [2008] AATA 106) emphasising that the words of s 35(3) require this principle of the desirability of hearings to be in public to be "the basis" of the AAT’s consideration of adopting a different approach (in contrast, for example, to "a basis" for that consideration).
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. …[23]
[Emphasis added]
[22] (2009) 181 FCR 130.
[23] Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, 148.
In Tennant and Secretary, Department of Social Services[24], Senior Member Creyke provided the following comments at [18]:
The Tribunal has power to issue an order suppressing the name of a party. Nonetheless, the intention of section 35 of the Act is that there is a presumption that matters before the Tribunal, including its reasons for decisions, should be public. The Tribunal has discretion to decide that documents lodged with the Tribunal or the name of witnesses or parties should be suppressed, but only if satisfied that the circumstances fall within the terms of section 35(2), and that there are cogent reasons for doing so. That principle is based on the public interest in ensuring that proceedings before the Tribunal are conducted openly. That principle reflects the need for the Tribunal to establish that it is accountable to the public which funds its operations, and that the Tribunal is ‘providing a mechanism of review that is fair, just, economical, informal and quick’, the overarching objectives of its operations under the AAT Act.
[Footnotes omitted]
[24] [2014] AATA 92.
In circumstances where the Tribunal must start from the norm that the proceedings are in public and the interlocutory decision should be published without modification, it is necessary to determine whether there is a cogent reason to depart from that norm in this case, noting that the power to depart from the norm should be exercised sparingly and that the interlocutory decision provides significant precedent for the manner in which the Tribunal will exercise its discretion under section 33 of the AAT Act.
The Applicant seeks a non-publication order with respect to the Interlocutory decision in its entirety. The Respondent submitted that the Applicant has not demonstrated a cogent reason to depart from the norm in the present case. Both parties accept as appropriate the de-identification of names referred to in the interlocutory decision and reasons, and in the proceedings more generally. The circumstances in which the discretion to suppress the name of a party or witness in proceedings in the Federal Court (having originated from the Tribunal) were canvassed by Cowdry J in National Australia Bank Limited v KRDV[25] where his Honour stated:[26]
The Court must evaluate the nature and extent of the hardship which will be suffered by a litigant or a witness in the event that a confidentiality order is not made: see PVYW v Comcare Australia [2011] FCA 535 at [15].
Should it be established that if the identity of an applicant were made known and this fact would cause such applicant to be deterred from bringing proceedings, the Court may regard this as a sufficient reason for granting an order preventing publication. …
[25] (2012) 204 FCR 436.
[26] Ibid at 453, [91] and [92].
Further, in Re Sheepskin and Opal Exporters and Export Development Grants Board[27], a de-identification order was made in circumstances where affidavit evidence had been available to the Tribunal at first instance in relation to the psychological trauma experienced by the applicant in that case arising from the facts and circumstances leading to her application.
[27] (1984) 6 ALD 594.
Here, the Applicant has asserted that OT, the Respondent’s proposed expert witness and the subject of the direction made following the interlocutory decision, may become the target of harm through criticism as a result of the interlocutory decision. The risk identified by the Applicant is that OT may be targeted, criticised or trolled by those who disagree with the appropriateness of the interlocutory decision and with the part to be played by OT in conducting the inspection of the Applicant’s property. It seems troubling to us that a professional discharging their responsibilities as an expert witness in Tribunal proceedings could be even remotely at risk of such consequences. The Tribunal should take whatever steps are appropriately available to deal with the risk identified by the Applicant.
The consent order which the parties initially requested be made by the Tribunal requires that the names of all persons in the decision be de-identified and replaced with pseudonyms. If it is possible that de-identification of the interlocutory decision will provide necessary protection to a witness, and this step will address the potential risk of harm to OT, then this fact supports the making of such an order, at least until more is known. If necessary, further submissions and evidence may be considered in relation to this issue when the substantive application is considered. Therefore, it is appropriate to make the direction de-identifying named persons by the use of pseudonyms. This course of action provides protection for the witness for the present time but does not derogate from the precedential value of the interlocutory decision and does not impinge unnecessarily on the desirability that proceedings and decisions be made in public and be made public.
The Applicant advanced a number of bases upon which it was proper that a non-publication order be made in respect of the entire interlocutory decision.
One aspect of the Applicant’s submissions is that they are a participant in the National Disability Insurance Scheme (“NDIS”) and therefore entitled to exercise choice and control over not only their participant’s plan but also all aspects of their review application. The Applicant seeks a non-publication order in respect of a decision that, in their submission, defeats those entitlements. These proceedings are conducted through application of the provisions of the AAT Act and in the context of the norm that such proceedings will be in public. It is noted that the Applicant is an [redacted]. The application of those provisions in the interlocutory decision has led to a requirement that the Applicant’s premises should be made available for inspection by OT for the purpose of preparing a report to be used in the review application. There is nothing unusual about the making of a direction that the Applicant provide access to their property for the purpose of the preparation of a report, and nothing in that decision that would make it appropriate to suppress publication of the interlocutory decision.

The Tribunal in Re Sheepskin and Opal Exporters and Export Development Grants Board (1984) 6 ALD 594 noted that, when an applicant wishes to apply to the Tribunal for a review of an unfavourable administrative decision, that applicant must take into account that the proceeding will be in public, unless good reason to the contrary is shown. The Applicant’s submissions do not recognise that long-established principle.
On 20 January 2021, the Applicant filed a written submission as to the non-publication application containing the following statements which, in the Applicant’s submission, go to the issue of potential harm to the Applicant:
(1) The Applicant is a [redacted]. The Applicant values [their] good reputation in the community.
(2) The decision contains verifiable false statements which are injurious to the Applicant’s reputation. These unfair and untrue judgements should not be published. Specifically the statements that the Applicant is unreasonable, uncooperative and not assisting the tribunal. To publish these would be detrimental to the tribunal and would attract a lot of adverse comment from the media and the public. These comments are untrue, unnecessary and indicate bias.
(3) The Applicant has gone out of [their] way to assist the tribunal. This is clearly demonstrated in the transcript of 25/9/201 where Senior Member Meagher (now Deputy President) sought [their] assistance in obtaining a QC in order to have a multi-member panel on the issue of compellability.
Non-publication is therefore sought on the further basis that, by virtue of the Applicant’s standing in the community and their good conduct, publication of a decision, which has the effect of subjecting them to a direction to make their property available for inspection, is harmful. In particular, the Applicant appears to object to the part of the reasons for the interlocutory decision where their conduct, in refusing to agree to the direction, was referred to as ‘unreasonable’.
In the Tribunal’s reasons for the interlocutory decision, it is clear that the words employed do no more than conclude that the request that the Applicant make their property available for an inspection was reasonable and further conclude that, as a result, the refusal to do so was therefore unreasonable in the context of the review. It does not follow that any criticism of the Applicant personally could reasonably be read into the reasons. Nor does it follow that the Tribunal’s matter-of-fact observations could reasonably be expected to cause damage to the Applicant’s reputation or standing or a level of stress or concern beyond the usual stresses of being an applicant in the substantive application for review of a decision that they considered was unfavourable.
The Tribunal is not satisfied of any risk to the Applicant that would form a basis to supress, de-identify or otherwise alter the ordinary course of publishing the reasons for interlocutory decision (other than with respect to the identity of OT).
The Applicant raised a number of additional issues relating to matters extraneous to any harm to the Applicant that could be caused by the publication of the decision. Those which amount to a request to reconsider the interlocutory application do not require further consideration.
Finally, the Applicant has submitted that the direction requiring the Applicant to make their property available to OT for the purpose of preparation of a report amounts to an ‘Independent Assessment’ as that term has been used in a recently published framework document relating to the use of assessment tools in the application of the NDIS legislation. The Applicant contended that this would provide a further ground on which a non-publication order should be made with respect to the reasons for decision.
The Applicant has conflated a number of concepts to arrive at that contention. The effect of the interlocutory decision is to issue a direction made under the powers conferred in the AAT Act which provides a mechanism for the Tribunal to control its own process. The direction does not require the Applicant to submit themselves to any kind of personal examination – there is no requirement that the Applicant be at home at the time of the inspection. The report is not to be prepared as part of the supports provided to the Applicant as a participant in the NDIS. Rather, it a report sought in the context of the Applicant’s substantive application to the Tribunal to review a decision of the Respondent with which the Applicant disagrees. In seeking that review the Applicant has submitted to the relevant processes engaged by the Tribunal in order to ensure a fair hearing. The notion of Independent Assessments has no bearing on, or relevance to, any part of this case. In any event, there is no connection between these submissions and the public interest in ensuring that proceedings before the Tribunal are conducted openly. This aspect of the Applicant’s submissions does not support the making of a non-publication order.
For the reasons we have expressed, it is not appropriate or necessary to make orders with respect to the Applicant’s original request for non-publication of the interlocutory decision, and the reasons for that decision. Until a further order is made in these proceedings, the names of the Applicant, AA, OT and any other witness whose name, if published, may allow OT to be identified are to be de-identified and, therefore, neither disclosed nor published.
DECISION
It is ordered that:
1.    The Applicant’s application for recusal of Justice Thomas, Deputy President Meagher and Member Buxton from considering the application for non-publication of the interlocutory decision of 24 December 2020, and from further consideration of this case, is refused;
2.    Until further order, the names of all persons be de-identified in the proceedings and replaced with pseudonyms;
3.    The Tribunal’s interlocutory decision of 24 December 2020 be published (with the names of all persons in the decision de-identified and replaced with pseudonyms); and
4.    The parties each have liberty to apply, on three days’ notice, with respect to these directions.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of the Hon Justice D G Thomas, President, Deputy President F Meagher and Member K Buxton.

............................[SGD]..................................................
Associate
Dated: 18 March 2021

Date of hearing: Heard on the papers

Date of final submissions: 12 February 2021

Advocate for the Applicant:

AA

Solicitors for the Respondent:

MinterEllison

Date of hearing:	Heard on the papers
Date of final submissions:	12 February 2021
Advocate for the Applicant:	AA
Solicitors for the Respondent:	MinterEllison