RACHAEL HUNT and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS J. W. Constance, Senior Member
[2009] AATA 505
•29 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 505
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/854
GENERAL ADMINISTRATIVE DIVISION ) Re RACHAEL HUNT Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
INTERLOCUTORY DECISION
Tribunal J. W. Constance, Senior Member Date29 April 2009
PlaceCanberra
Decision The Respondent’s application of 22 April 2009 for an order pursuant to subsection 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
.................[sgd]........................
J. W. Constance, Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 505
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/854
GENERAL ADMINISTRATIVE DIVISION ) Re RACHAEL HUNT Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
INTERLOCUTORY DECISION
Tribunal J. W. Constance, Senior Member Date28 May 2009
PlaceCanberra
Decision The Respondent’s application of 1 May 2009 for an order pursuant to subsection 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
................[sgd].........................
J. W. Constance, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – confidentiality order – section 37 documents – requests for confidentiality order on documents claiming witness statement in section 37 documents is unreliable – public safety – applications for confidentiality orders refused
Administrative Appeals Tribunal Act 1975 – Sections 35, 37
Freedom of Information Act 1982 – Section 58
Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66
REASONS FOR DECISIONS
29 April 2009 &
28 May 2009J. W. Constance, Senior Member BACKGROUND
1. Ms Hunt has applied to the Tribunal for a review of a decision of the Social Security Appeals Tribunal that for the period from 22 November 1998 to 31 January 2006 Ms Hunt was a member of a couple with Mr Warren Hunt and that as a result she was required to repay to the Commonwealth part of the social security payments she had received during this time. This application for review is yet to be decided.
2. On 22 April 2009 and again on 1 May 2009 the Secretary applied for an order pursuant to subsection 35(2) of the Administrative Appeals Tribunal Act 1975 in relation to two documents filed in the Tribunal but not provided to Ms Hunt. The documents are file notes made by officers of Centrelink and refer to Ms Hunt. The content of these file notes suggest that a statement previously made by a person (in these reasons referred to as “AB”) in relation to Ms Hunt’s living arrangements during the period in issue is incorrect.
3. On 29 April 2009 I heard the application made by the Secretary on 22 April 2009. Both parties were represented. The application was opposed by Ms Hunt and after hearing the parties I dismissed the application. I heard the second application on 7 May 2009 and 28 May 2009. Again both parties were represented. On the second day I had some additional evidence before me. I shall refer to this evidence later in these reasons. On 28 May 2009 I dismissed the Secretary’s second application.
4. I now provide written reasons for my decisions dismissing the applications.
CHRONOLOGY
5. The following is a chronology of relevant events:
·On two occasions in 2007 a Centrelink officer or officers met with AB. An officer made notes of the meetings. These notes are referred to in these reasons as “the file notes.” At some stage after the meetings AB gave to Centrelink a copy of a written statement previously made by AB in relation to Ms Hunt. The file notes suggest that the written statement is incorrect.
·On 27 February 2009 Ms Hunt lodged with the Tribunal her application for review of the decision of the Social Security Appeals Tribunal to which I have referred.
·On 1 April 2009 the Secretary lodged with the Tribunal copies of the documents which were considered relevant to the determination of Ms Hunt’s application. These documents were lodged in the Tribunal and copies provided to Ms Hunt in accordance with the requirements of section 37 of the Act.
·A copy of the written statement by AB was included in the documents lodged on 1 April 2009; copies of the file notes were not included.
·The Secretary did not make an application in relation to any of the documents at the time the section 37 documents were lodged with the Tribunal. At that time the Secretary could have applied for a direction restricting access to the written statement and the file notes. Section 35 of the Act gives the Tribunal power to make such directions.
·The first application by the Secretary for an order restricting access to the file notes was made by letter on 22 April 2009. The letter requested “a confidentiality order … under s 35(2)”.
THE FIRST APPLICATION
6. When the Secretary’s application came on for hearing on 29 April 2009 the Advocate for the Secretary informed me that if the information in the file notes was released to Ms Hunt there could be a risk to the safety and welfare of individuals referred to in the file notes. There was no evidence to support this contention other than the information in the file notes. The Secretary did not seek to rely on any sworn evidence.
Reasoning
7. Subsection 35(2) relevantly provides:
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) …
(aa) …
(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.
Subsection 35(3) provides:
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.
8. Subsection 35(3) makes it clear that the starting point for consideration of the Secretary’s application was that the documents in question should be made available to Ms Hunt. This is the usual procedure in the Tribunal. Further, the need to ensure that all parties are accorded procedural fairness would normally dictate that all relevant documents should be available to all parties: Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[1]
[1] [2004] FCAFC 66.
9. In this matter it was necessary to balance the interest of Ms Hunt in being made fully aware of the information available (both for and against her contentions), the public interest in the fair and open conduct of Tribunal proceedings and the private and public interests in ensuring the safety of persons who provide information in relation to matters of public administration.
10. The resolution of these competing considerations was made much more difficult by reason of the apparent lack of care taken by those responsible for the preparation and lodgement of the section 37 documents. Had this application been made in relation to the written statement and the file notes, the risk of unfairness to Ms Hunt would not have been so great. In this regard it should be noted that section 37 itself refers to the making of an application for a direction under section 35 that certain documents not be included in the section 37 documents.[2] The Secretary did not make any application at the time the section 37 documents (which included a copy of the written statement) were filed.
[2] See subsection 37(1AF).
11. As the written statement (which supports the contention of Ms Hunt) has been included in the section 37 documents, Ms Hunt is entitled to continue to prepare her case on the basis of this document and to seek to rely upon it at the hearing. When I asked the Advocate for the Secretary what the Secretary would do in those circumstances, I was informed that the Secretary would call the maker of the statement to give evidence. This seemed to me to be a course of action which would defeat the stated purpose of the Secretary in seeking the order that the file notes be kept confidential.
12. Taking into account the lack of evidence as to the extent of the perceived threat to the safety of any individual concerned and balancing this against the unfairness to Ms Hunt in allowing her to proceed with her application without access to all of the information available, I was not satisfied that a basis had been made out to exercise the powers given in subsection 35(2). In reaching this conclusion I took into account also that the information sought to be kept confidential casts doubt on the reliability of a document included in the section 37 documents and in respect of which no application was made under section 35 at the appropriate time.
13. It is also relevant that it is the responsibility of our legal system (through restraining orders) and our police forces to maintain the peace and to protect the safety of citizens so far as possible. I was informed that no steps had been taken by those involved to seek the protection of the law in the circumstances alleged. These resources are available and in my view this Tribunal should not resort to keeping information out of the public arena by reason of the concerns of potential witnesses unless there are very cogent reasons to do so.
14. For these reasons I dismissed the Secretary’s first application.
THE SECOND APPLICATION
15. On 1 May 2009 the Secretary requested that this matter be listed to hear a further application pursuant to section 35 that the file notes not be disclosed. This application came on for hearing on 7 May 2009. On this occasion the Secretary was represented by a Senior Lawyer of the Legal Services Branch of Centrelink.
16. The following arguments were put on behalf of the Secretary.
·The documents in question would be exempt documents under the Freedom of Information Act 1982 and therefore the Tribunal’s Practice Direction relating to section 37 documents has no application.
·The Secretary no longer seeks to rely on the written statement which is included in the section 37 documents.
·The evidence would be unreliable and the Tribunal should adopt a “flexible” approach to such evidence.
·The Secretary can make no inference as to the truth or lack thereof of the alleged threats, but public safety should be taken very seriously.
·Ms Hunt and the maker of the written statement are in an “on and off dispute”[3] and the evidence would be unreliable.
·The written statement already filed in the section 37 documents is one document in 900 pages of section 37 documents and as such would not “colour the view of the tribunal.”[4]
·Centrelink has an obligation to protect the safety of the public.
[3] Transcript 7.5.09 p-5.
[4] Transcript 7.5.09 p-6.
17. The Secretary did not adduce any further evidence of the alleged threats to AB or of AB’s state of health.
18. In response to my question Counsel for Ms Hunt advised me that Ms Hunt had been able to determine the identity of AB. This is not surprising as there are very few witness statements in the section 37 documents.
19. The Secretary based the argument that the file notes were exempt documents under the Freedom of Information Act 1982 and were not required to be produced, upon a footnote to the Tribunal’s Practice Direction relating to section 37. The footnote is to a reference to the obligation on the decision-maker to file documents relevant to the review of the decision with the Tribunal and reads:
The Tribunal notes that section 37 of the Administrative Appeals Tribunal Act 1975 does not apply to a document that is claimed to be an exempt document under the Freedom of Information Act 1982 or to a document that is claimed to be an exempt record under the Archives Act 1983.
20. In my view this argument is misconceived. The footnote simply refers to the provisions of s 58(2) of the Freedom of Information Act 1982 that the Tribunal does not have power to decide that access should be given to a document so far as it contains exempt material. The footnote to the Practice Direction refers to proceedings for review of decisions made under the Freedom of Information Act 1982, not to all proceedings in the Tribunal. To adopt the interpretation put forward by the Secretary would be to interpret the Practice Direction as overriding the provisions of section 37 of the Administrative Appeals Tribunal Act 1975.
21. The arguments relating to the claimed unreliability of the evidence and the intention of the Secretary not to rely on the evidence ignore the fact that it is the written statement that is disclosed in the section 37 documents which is now said to be unreliable. It is the information in the file notes which the Secretary seeks to have kept confidential from Ms Hunt that the Secretary says is reliable. Further, Counsel for the Secretary was unable to indicate to me how the Tribunal should treat the written statement in the section 37 documents if Ms Hunt chooses to rely upon it at the hearing of her application for review.
22. In my view the argument based on a comparison of the number of pages of the written statement to the total number of pages in the section 37 documents is totally without merit. The information contained in the written statement is directly relevant to the issue in dispute in the application by Ms Hunt. As is often the case in matters such as this, an extremely large volume of documents have been filed pursuant to section 37. It is likely that many of them will prove to be irrelevant.
23. To argue that there is an obligation to protect public safety is to beg the question. What has to be decided is how to balance the competing interests, one of which is the protection of those who provide information in circumstances such as those now before the Tribunal.
24. In view of the lack of evidence I did not consider that the further arguments advanced by the Secretary were sufficient to change the view I had formed on the previous occasion. I was not satisfied that the concerns expressed by the Secretary outweighed the need to ensure that Ms Hunt is afforded procedural fairness and that the principles set out in section 35 of the Act are observed. Nevertheless, in view of the Secretary’s insistence that there were serious concerns for the safety of an individual, I decided to give the Secretary a third opportunity to produce further evidence to support this view. I was not offered an explanation as to why the Secretary had not produced any sworn evidence in support of the directions being sought.
25. Having given the matter further consideration, on 8 May 2009 I made the following directions:
Pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that:
1.the time for filing of documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is extended until further direction;
2.on or before 20 May 2009, the Respondent is to file with the Tribunal an affidavit or affidavits setting out the facts on which she relies in support of her application made 1 May 2009 for an order pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 relating to documents in the possession of the Respondent;
3.until further direction, the disclosure of the contents of the affidavit or affidavits filed pursuant to the preceding Direction shall be restricted to members and staff of the Tribunal and to the officers and legal representatives of the Respondent and of Centrelink.
26. I made direction 1 above in order to extend the time in which the Secretary could make an application under subsection 35(2) without lodging the file notes. Subsection 37(1AF) provides that an application for a direction under subsection 35(2) is to be made within 28 days of receiving notice of the application for review or within such further period as the Tribunal allows. The Secretary did not comply with this requirement at the time either of the applications for directions under subsection 35(2) was made and did not appear to have given any consideration to the requirement.
The further hearing of the second application
27. On 19 May 2009 the Secretary filed an affidavit by AB. At the same time the Secretary filed a joint statement by two Centrelink Social Workers and a Centrelink document described as a “Threat Assessment”.The statement and the assessment document were not annexed to an affidavit.
28. The matter was listed for further hearing on 28 May 2009. Both parties were represented. There was further discussion as to the difficulties which would arise if a confidentiality order was made. The Secretary did not advance any arguments in addition to those to which I have already referred.
29. Having considered the contents of the further documents filed by the Secretary (including the documents not annexed to an affidavit), I formed the view that nothing in those documents caused me to change the opinion I had previously formed. There is nothing in the additional material which provided a satisfactory explanation as to why the alleged threats have not been reported to the police. I have not set out the contents of these documents as they remain the subject of an order under section 35.
30. For these reasons, on 28 May 2009 I dismissed the Secretary’s application. To allow the Secretary time to consider any further action to be taken I directed that my decision to dismiss the application not come into operation until 11 June 2009.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of J. W. Constance, Senior Member.
Signed: .............[sgd]...................................................................
AssociateDates of Hearing 29 April, 7 May & 28 May 2009
Dates of Decisions 29 April & 28 May 2009Counsel for the Applicant Mr D. Emerson-Elliott, Welfare Rights and Legal Centre
Counsel for the Respondent Ms M. Welfare and Ms K. Horan, Centrelink Legal Services
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