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

This matter concerned a request by NMDR for confidential orders regarding two published decisions of the Administrative Appeals Tribunal (AAT). The dispute centred on whether the Tribunal retained the power to make such orders after its hearings had concluded and the decisions had been published. The Tribunal was constituted by Senior Member D. J. Morris.

The primary legal issues before the Tribunal were whether it had jurisdiction to grant confidentiality orders in relation to decisions published in 2005 and 2017, and if so, on what basis such orders should be made. The Tribunal was required to consider the general rule of open justice, as enshrined in section 35 of the AAT Act, against the specific circumstances and grounds presented by NMDR for restricting access to the published decisions. The Tribunal also had to assess the passage of time since the hearings and publications, and whether parties were aware of their ability to seek such orders prior to the hearings.

The Tribunal reasoned that while the general rule favours public proceedings, section 35 of the AAT Act permits confidentiality orders where good reason is shown. In relation to the 2005 hearing, the Tribunal found that the published decision did not disclose any medical information and that an order restricting publication of information that had been publicly available for 13 years would be nugatory. Consequently, the request for an order concerning the 2005 hearing was refused. However, for the 2017 hearing, the Tribunal acknowledged that personal medical information was contained within the documents considered. Despite the decision having been published and accessible online for over a year, the Tribunal was satisfied that this information should not be publicly accessible.

Accordingly, the Tribunal refused the request for an order under section 35 of the Act in relation to the 2005 hearing. For the 2017 hearing, the Tribunal made an order under section 35(4) of the Act, restricting access to the information lodged or given to the Tribunal to only the Applicant and the Respondent, and officers of the Tribunal, prohibiting its publication to any other persons.