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

[2020] AATA 5180

Pierre and Secretary, Department of Social Services (Social services second review) [2020] AATA 5180 (22 December 2020)

Division:GENERAL DIVISION

File Number(s):      2019/2276

Re:Laval Pierre

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:22 December 2020

Place:Sydney

The application for a confidentiality order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE & PROCEDURE – application for confidentiality order – hearing of a proceeding before the Tribunal must be in public – whether grounds to make the order – application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 35

REASONS FOR DECISION

Senior Member A Poljak

22 December 2020

1. Mr Pierre, the applicant, has received periodic compensation payments from the Dust Diseases Board (DDB) from 13 March 2002 (periodic compensation payments). The applicant has also been in receipt of the age pension since 4 December 2011.

2. On 5 November 2018, the Department of Human Services (the Department) decided that the applicant was overpaid the age pension during the period 26 July 2013 to 29 October 2018 because of the periodic compensation payments and that he owed a debt to the Commonwealth which was to be recovered. It was also determined that the applicant’s age pension would be reduced with reference to the correct amount of periodic compensation. On 18 December 2018, an Authorised Review Officer affirmed the decisions.

3. On 13 March 2019, the Social Services & Child Support Division of the Administrative Appeals Tribunal (SSCSD) affirmed the decisions of the Department. This is the decision under review and is the subject of the substantive proceedings.

4. The applicant has requested a confidentiality order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). In particular, the applicant has requested a private hearing and that his information be kept confidential, and therefore not publicised or disclosed. The onus falls on the person seeking the confidentiality order, in this case the applicant, to establish the information is of such a confidential nature that the confidentiality order should be made. By a letter dated 9 November 2020, the applicant has given the following reasons for his application:

   “The reason is I am always a private person never in public life.

   There for place all my document of AAT and Department of Social Services and my confidential – private.”

5. The Secretary opposes the application for a confidentiality order and provided written submissions in support of its opposition.

6. The confidentiality application was determined on the papers. 

   Consideration

7. Section 35(1) of the Act provides that proceedings before the Tribunal must be in public, subject to subsections (2), (3) and (4) of the Act. Section 35(5) sets out the principles the Tribunal must take into consideration in making any directions under those subsections. Those principles are 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 on 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.

8. I am not satisfied that the reason put forward by the applicant that he is a private person is a satisfactory basis to depart from the usual practice and grant a confidentiality order under section 35 of the Act. The applicant has not given any explanation regarding the confidential nature of the relevant information as required by section 35(5) of the Act, and there is no evidence of injustice or that disclosure will inflict serious disadvantage or harm upon the applicant, nor would not granting an order be contrary to the public interest.

9. Accordingly, the confidentiality application is refused.

10. Should sensitive information come to light at the hearing of the substantive matter, the question of confidentiality may again be raised and considered.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 22 December 2020

Date of hearing:	11 December 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Services Australia