Olivia Stewart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 260

[2013] AATA  260

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3854
Re	Olivia Stewart
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	President Kerr
Date	26 April 2013
Date of written reasons	29 April 2013
Place	Hobart

Decision Summary

Pursuant to s 35 (2) of the Administrative Appeals Act 1975, paragraph [35] of the reasons of the decision of the Tribunal in Stewart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 120 be available for any purposes of the Federal Court of Australia but otherwise be restricted to the parties and their legal representatives and the members and staff of the Tribunal.

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D Kerr, President

Catchwords

Practice and Procedure – Judgments and Orders – Application for confidentiality order following publication of reasons for decision – Appeal filed in Federal Court – Adverse findings made by Tribunal on basis of materials not disclosed to Applicant – Principle that Tribunal documents should be made available to the public – Tribunal subject to supervisory jurisdiction of Federal Court – Limited confidentiality order made

Legislation

Administrative Appeals Tribunal Act 1974 s 35

Cases

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA; 11 (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v X [2005] FCAFC 217
Re Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83; [2006] AATA 208
Stewart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 120

REASONS FOR DECISION

D Kerr, President

29 April 2013

1. This matter arises in most unusual circumstances.

2. On 8 March 2013 the Tribunal delivered reasons in a review initiated by the Applicant Olivia Stewart in which she had sought review of a decision to refuse her application for a carers allowance for which she claimed entitlement pursuant to section 954A of the Social Security Act 1991 (Cth).

3. At [35] the Tribunal made findings reflecting adversely on the applicant's credibility.

4. Upon being provided with a copy of those reasons the Applicant initiated a complaint under the AAT’s complaint procedures and by letter dated 14 March 2013 addressed to the Tribunal’s District Registrar in Brisbane Ms Stewart sought a confidentiality order requesting that the decision be removed from the website and the publication of the decision be suspended.

5. The basis of Ms Stewart’s application was her allegation that there had been a breach of procedural fairness by the Tribunal in that it had based its findings in [35] on a report that it had sought and obtained from a third party in circumstances where the tribunal had failed to provide a copy of the report to the applicant or to provide her any opportunity to comment upon it.  The applicant contended that she had neither seen nor known of the existence of the report until after the hearing and that she had been denied the opportunity to provide any explanation to the tribunal as to what she considered to be incorrect facts in the report.

6. On 25 March 2013 a differently constituted tribunal conducted a telephone directions hearing to consider that application. The notes taken at that directions hearing indicate that the Senior Member conducting it advised that it was not clear that the tribunal could give a confidentiality order in the circumstances.  The applicant was advised that the appropriate course of action for her to take was to initiate an appeal in the Federal Court.

7. The applicant has since filed an appeal in the Federal Court of Australia.  She has however continued to correspond with the tribunal expressing concern that the publication of the matters in [35] (which she asserts she had no opportunity to controvert) may harm her professional standing and reputation in the community should the decision not be withdrawn from publication or a confidentiality order not be granted.

8. Parallel to those proceedings, as President of the Tribunal, upon my being satisfied that there was a prima facie basis to believe that the circumstances were as asserted by the Applicant, pursuant to the complaints policy of the Tribunal I spoke with the member who had conducted the review to ascertain her understanding of the circumstances.

9. I interpolate here that the Tribunal member who conducted the hearing has a reputation for personal integrity and fairness. She has long experience as a part-time member of the AAT.

10. Consistent with her reputation for integrity when I spoke with her the member immediately and straightforwardly accepted responsibility for her having made a mistake in her conduct of the review.  She acknowledged that she had exercised the Tribunal's power to seek additional materials (exercising, in my opinion, appropriate and commendable initiative) but had then made an adverse finding against the Applicant on the basis of that material without providing her any opportunity to respond to what had been contained in it.

11. It is not strictly relevant to these proceedings but I record that the member cannot understand how she allowed that to occur.  She is regrets that she overlooked giving the Applicant that opportunity.

12. Given that it has become clear that (a) there is no longer any factual dispute regarding how the findings at [35] of the Tribunal's reasons came to be made;  (b) that the Applicant has continued to express fear that her reputation may be irredeemably sullied if those findings remain available for the public to access on the tribunal's website, and any authorised reports; and (c)  the applicant has filed an appeal in the Federal Court; I have taken the view that the circumstances that prevailed on 25 March 2013 have altered sufficiently that I should constitute the Tribunal to consider an application  under s35(2) of the Act and any steps the Tribunal might take to respond to the Applicant's concerns.  Accordingly I arranged for a directions hearing to be held today.

13. In the course of the directions hearing the Applicant restated her request that the Tribunal make orders to prevent unfair damage to her reputation. Ms Smith for the Respondent indicated that she had instructions to consent to orders anonymising the name of the Applicant but otherwise was without instructions and if the Tribunal was contemplating any other course would seek leave to make written submissions.

14. As a matter of completeness I note that the Applicant also raised with the Tribunal whether it was open for the AAT to set aside the whole decision without her having to proceed with her application in the Federal Court.

15. While there is High Court authority for the proposition that it is possible for the Tribunal, if it becomes aware that it has made an error going to jurisdiction, to treat its duty as not having been performed and correct the error of its own motion (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597) I do not think such a course is open once an appeal has been filed in the Federal Court. In such circumstances the Tribunal has become subject to the supervisory jurisdiction of the Federal Court and, in my view, it would be improper to contemplate any such unilateral action. Accordingly I propose to deal only with the application as referred to in [13].

16. The power of the AAT to give directions prohibiting or restricting the publication of evidence given before the Tribunal after the publication of a decision was addressed by Deputy President Forgie in Re Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83; [2006] AATA 208. Deputy President Forgie held that the power existed. Subject to some minor qualifications I agree with what the learned Deputy President decided at paragraphs [12] to [15] of her reasons.

17. Specifically I agree with Deputy President Forgie’s conclusion at [12] that s 35 is a separate head of power from that to review the decision and that it persists after the decision has been reviewed.  Where I express a qualification is that I doubt that that conclusion is self-evident from the case cited in support at footnote 15 (Telescourt v Commonwealth of Australia (1991) 29 FCR 227 at 237) although I accept that an argument by analogy is open to be made. For my part I prefer to place my conclusion on the plain terms of s 35(2). There is nothing to suggest that the language of that provision confines the power to circumstances where directions are made by the tribunal in the course of the hearing itself. The power is frequently and conveniently exercised before a hearing. In my opinion it is equally available to be exercised, in appropriate instances after a hearing and after the decision has been reviewed and reasons provided. The language is broad and, in my opinion, unambiguously apt to extend in respect of the unpredictable multitude of future, present and past circumstances which may arise when the exercise of the power may be desirable ‘by reason of the confidential nature of any evidence or matter or for any other reason’.

18. Of course the power to prohibit or restrict publication must be exercised always mindful of the considerations set out in s 35(3) which emphasise that the default position is that all proceedings before the Tribunal should be capable of being observed and scrutinised and the public nature of the process preserved.

19. For that reason such a direction will never be appropriate simply to spare a party the distress and embarrassment that may arise because of the publication of findings adverse to their reputation.  As Heerey and Weinberg JJ observed, in a passage equally apposite to this Tribunal, ‘very often publicity is hurtful and embarrassing to someone but that is inherent in the nature of publication of court proceedings’: Minister for Immigration and Multicultural Affairs v X [2005] FCAFC 217 at [21].

20. However, as their Honours also observed there may be features of a particular case taking it out of the ordinary run-- where publication could dissuade others who might seek to challenge the legality of administrative decisions from doing so.  In my opinion the publication of serious adverse findings made on the acknowledged basis of materials not disclosed to an Applicant falls within that category.

21. Even acknowledging the exceptional nature of the present circumstances where those factors exist, in my opinion any direction should be the least inconsistent with the obligation to ensure open and public reasons as can meet the necessity of the case. For that reason I expressed my concern to the Applicant and Ms Smith that orders suppressing the name of the Applicant would not be appropriate. There were none of the usual factors present in this matter which would justify that course assuming the matter could be dealt with by a narrower and specific order directed to the actual issue of concern. I might add also that “anonymising” the detailed reasons in such a way as would prevent the Applicant’s identification would be a complex task. It would amount to a substantial re-writing of the decision.

22. I indicated to the parties that the Tribunal had in contemplation making an order that would apply only to prevent the publication of the matters in [35] of the Tribunal’s decision. I drew the parties’ attention to the need to resolve the issue without delay given that any decision would operate only prospectively. The Respondent has had notice of the substance of the matters to be determined in the directions hearing. Dealing with these issues in a timely way was important.

23. In response to those observations Ms Smith did not press an objection to the Tribunal proceeding without her seeking further instructions.

24. In the present instance there is a super-added consideration which reinforces my determination to make the least direction appropriate to provide a remedy. The Applicant has exercised a right of appeal to the Federal Court. The substantive issue in that appeal is likely to turn on the legal consequence of findings made by the Tribunal in breach of the requirements of procedural fairness.  The AAT cannot take any action which might be perceived as the Tribunal seeking to avoid the supervision of the Federal Court. It would be grossly improper to make any direction affecting the Federal Court proceedings.

25. Further, given the Federal Court proceeding also affects the entitlements and rights of the Respondent to the appeal, the Tribunal must not take any step which might be perceived to prejudge the Respondent’s entitlements in those proceedings. It would be contempt to do so.

26. Any direction made must self-evidently be made for the purpose of protecting a legitimate interest of the Applicant and with no suggestion of a collateral purpose of avoiding oversight or limiting public notice of the Tribunal’s conduct.

27. In my opinion the Applicant does have a legitimate interest in seeking the suppression of what appears in the Tribunal’s reasons at [35]. The findings are expressed in disparaging terms which go well beyond merely rejecting the evidence advanced by the Applicant. The publication of the evidence referred to and the conclusions damaging to the Applicant’s credit reached in [35] when the Applicant had no opportunity to controvert the truth or otherwise of the evidence upon which those findings were based appears to me to be a circumstance of the kind which would deter a person from coming to the tribunal to exercise the right to have a decision reviewed: Re Le and Secretary; Department of Education, Science and Training (2006) 90 ALD 83; [2006] AATA 208 [10]-[11]; [46].

28. However, I do not accept that the applicant has a legitimate interest in the suppression of any of the other matters set out in the Tribunal’s reasons.  The balance of the reasons is expressed in terms to which the Applicant cannot properly make objection.  The proceedings in the Tribunal were related to her application for a carer's pension.  What the Tribunal said in respect of those matters of fact and law may of course be the subject of appeal in the Federal Court but there is nothing intemperate or unusual in their expression.

29. Critically, any non-publication order must make plain that it does not prevent disclosure of the matters referred to in [35] to the Federal Court.

30. I therefore will order that pursuant to s 35(2) of the Administrative Appeals Act 1975, paragraph [35] of the reasons of the decision of the Tribunal in Stewart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 120 be available for any purposes of the Federal Court of Australia but otherwise be restricted to the parties and their legal representatives and the members and staff of the Tribunal.

31. That order is to operate until the expiry of any appeal period for decisions flowing from the disposition of the pending appeal in the Federal Court and with leave to either party to relist. Depending on the disposition of that matter these orders may become otiose.

32. Finally I should indicate that these orders operate prospectively.  It is possible that some members of the public will already be aware of the content of [35] because those reasons have been published in From the date of these orders it can be expected that will take the appropriate steps to ensure compliance.  However there is nothing can do to call back the publication of the paragraph to those who have already accessed the decision.  If as a result what is contained in that paragraph has become known to third parties it is to be regretted but there is nothing the Tribunal has power to do in that regard.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for the decision herein of Justice D Kerr, President

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Associate

Dated 29 April 2013

Dates of hearing	26 April 2013
Applicant	In person
Advocate for the Respondent	Ms D Smith