Re Le and Secretary, Department of Education, Science and Training

[2006] AATA 208

CATCHWORDS – CONFIDENTIALITY  – Tribunal’s power to make confidentiality orders – whether power to make orders continues after application heard and determined – the principles determining when the Tribunal is required to conduct proceedings in private and publish reasons – interaction of Information Privacy Principles – partial confidentiality order made.

Act Interpretation Act 1901 s 26
Administrative Appeals Tribunal Act 1975 ss 35, 35A, 36D and 43
Federal Court of Australia Act 1976 s 50
Migration Act 1958 s 430
Privacy Act 1988 ss 6, 14 and 16

Australian Communist Party v The Commonwealth (1951) 83 CLR 1

Church of Scientology v Woodward (1982) 154 CLR 25
Frichot v Zalmstra (WASC 980291, 13 May 1998)

Garrett v Nicholson (1999) 21 WAR 226

Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673

Human Rights in Hong Kong [1999] VUWLRev 8; (1999) 29 VUWLR 45

Johnston v Cameron (2002) 124 FCR 160
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217
Pickering v Deputy Commissioner of Taxation (1997) 97 ATC 4893
R v North & East Devon Health Authority; ex parte Coughlan [2001] QB 213
R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539
Re an Applicant and Australian Prudential Regulation Authority [2005] AATA 1294
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247
Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 200
Russell v Russell (1976) 134 CLR 495
Scott v Scott [1913] AC 417
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Telescourt v Commonwealth of Australia (1991) 29 FCR 227
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

DECISION AND REASONS FOR DECISION [2006] AATA 208

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          V1994/125
GENERAL ADMINISTRATIVE DIVISION     )          

Re                TAM ANH LE

Applicant

AndSECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  24 February 2006
Place:  Melbourne

Decision:The Tribunal orders that:

under s 35(2) of the Administrative Appeals Tribunal Act 1975, the section of reasons for decision No 9584 showing the addresses of the applicant and his parents be restricted to the parties and their legal representatives and to members and staff of the Tribunal.

S A FORGIE
  Deputy President

REASONS FOR DECISION

While using a search engine during a computer class, the applicant’s daughter searched for her family name.  The search results included the Tribunal’s decision and reasons for decision given in 1994 and appearing on the database on the internet.  That decision related to the applicant’s application to the Tribunal to review a decision of the Student Assistance Review Tribunal (SART).  SART had affirmed a decision by the respondent, the Secretary to the then Department of Employment, Education and Training (Secretary)[1] that the applicant not be paid Austudy at the Student Homeless Rate.  The Tribunal’s reasons contained quite explicit details including addresses of relevant persons and details of the evidence relating to the applicant’s relationship with his parents.  The applicant asks that the Tribunal remove the decision and reasons for decision from I have decided that those parts of the reasons for decision showing the addresses of the applicant and his parents should be deleted from the version that is publicly available on or otherwise.  In all other respects, the decision should remain unchanged.

[1] Now the Department of Education, Science and Training.

1. The applicant’s request raises a number of issues:

   Given that it has already given a decision, may the Tribunal consider the question at all?

   Assuming that it may, does the Tribunal have power to do as the applicant asks?

   `If it does have power, what are the constraints on that power and what matters need to be taken into account in exercising it?

What must the Tribunal do when it hears and decides an application?

1. When it reviews an application, the Tribunal must come to a decision as to what should have been the decision made by the respondent. In making its decision, the Tribunal relied on the powers given to it by s 43 of the Administrative Appeals Tribunal Act 1975 (AAT Act). Section 43(1) provides that:

   “For the purpose of reviewing a decision, the Tribunal may exercise all of the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

   (a)affirming the decision under review;

   (b)varying the decision under review; or

   (c)setting aside the decision under review and:

   (i)making a decision in substitution for the decision so set aside; or

   (ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”

1. The Tribunal is obliged to give reasons for its decision but its obligation is subject to ss 35, to which I will return, and 36D of the AAT Act.[2]  Section 36D is not relevant in this case.[3]Those reasons must be given either orally or in writing.[4]  Where written reasons are given, they “… shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”[5]  The Tribunal must give a copy of its decision to each party to the proceeding.  In accordance with its normal practice, the Tribunal sent a copy of its reasons to publishers of its decision.[6]  It has always kept a copy of each of its decisions in its central library.  Unless subject to an order under s 35 of the AAT Act restricting access, decisions have always been made available to members of the public through the registry located in each State and the Australian Capital Territory.

   [2] AAT Act, s 43(2)

   [3] Section 36D relates to decisions made by the Tribunal regarding whether certain information should be given to other parties or whether answering certain questions would be contrary to the public interest.  Those situations did not, and do not, arise in this case.

   [4] AAT Act, s 43(2)

   [5] AAT Act, s 43(2B)

   [6] These included Butterworths, now LexisNexis, Law Book Co, and CCH Australia

What powers does the Tribunal have to order that information it receives is kept confidential?

1. Its powers are found in s 35 of the AAT Act.  In summary, s 35 has two distinct principles.  The first is that, subject to s 35 itself, “… the hearing of a proceeding before the Tribunal shall be in public.”[7]  The public nature of the hearing is emphasised by the provisions of s 35(1A), which makes provision for those persons appearing at a hearing of a proceeding held in public by means of a telephone, closed-circuit television or any other means of communication.[8]  In those circumstances, s 35(1A) requires the Tribunal to take those steps that are reasonably necessary to ensure that the public nature of the hearing is preserved. 

   [7] AAT Act, s 35(1)

   [8] Those means of communication are provided for in AAT Act, s 35A.

1. The second principle in s 35 is a qualification of the first. That is found in s 35(2), which 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)direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

   (aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

   (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.”

1. In deciding whether an order is desirable under s 35(2), the Tribunal must have regard to the matters set out in s 35(3):

   “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.”

1. Together with Senior Member Pascoe, I analysed the authorities relating to the exercise of the Tribunal’s power in Re an Applicant and Australian Prudential Regulation Authority.[9]  We concluded that:

   “57.             Just what are those principles?  We have set them out at length above.  It is apparent from each of the authorities to which we have referred under the various headings that the principle that hearings should be held in public is balanced against what is necessary to secure the proper administration of justice in the proceedings in a particular case.  The requirement that cases be heard in public is directed towards ensuring that proceedings are fully exposed to public and professional scrutiny and criticism.  Openness assists in ensuring that they are conducted without arbitrariness and the outcome is similarly without arbitrariness and uninfluenced by matters that have not been openly tested.  At a more general level, openness tends to maintain confidence in the integrity and independence of the decision-making process be it of the courts or of the Tribunal.  The proper administration of justice in a particular case requires that it be conducted fairly and not only that all relevant material can be given to the decision-maker for consideration but that the proceedings are conducted so that it is given.  It also requires that the outcome of the proceedings is not rendered nugatory.  Just where the balance lies between the two principles in any particular case will include a consideration of whether the proper administration of justice can be secured in any way other than by impinging on the openness of the hearing process.  It is apparent from the cases to which we have referred that it is not appropriate to adopt what might be described as a “formulaic” approach.  While there have, for example, been cases in which the courts have traditionally suppressed information from the public, it is no longer possible to see those cases as the only circumstances in which it is appropriate to make such an order.  The pseudonym cases provide an illustration.  Traditionally, cases concerned with blackmail, informers and national security have led to pseudonym orders.  The damage that can be done by the release of an informer’s name or of a blackmail attempt is accepted.  More recent cases have shown that pseudonym orders have been made in cases relating to extortion and beyond.  They have determined that the damage that is likely to be done by revealing the information outweighed the principle of open justice. 

   58. The principle that the Tribunal conduct its hearings in public is a fundamental principle enshrined in s. 35(1) but, equally, s. 35(2) recognises that there are occasions and reasons when not all that happens in the Tribunal should be subject to public scrutiny. Section 35(2) does not try to suggest any boundaries on the occasions on which Brennan J said [in Re Pochi and Minister for Immigration and Ethnic Affairs[10]] that the power is ‘… there to be exercised, albeit sparingly …’ just as it is in the courts.”

   [9] [2005] AATA 1294

   [10] (1979) 2 ALD 33; 26 ALR 247 at 54; 270

1. In this case, I should also make specific reference to the considerations that are relevant in considering whether or not an applicant’s name should or should not be published.  That issue has been considered by the Federal Court in cases such as Johnston v Cameron[11] and Minister for Immigration and Multicultural and Indigenous Affairs v X.[12] They did so in the context of s 50 of the Federal Court of Australia Act 1976, which gives statutory recognition of the principles developed at common law. It permits the Federal Court to make such a suppression order “… as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth”. 

   [11] (2002) 124 FCR 160

   [12] [2005] FCAFC 217

1. In Minister for Immigration and Multicultural and Indigenous Affairs v X, Heerey and Weinberg JJ considered whether the identity of an applicant for a visa should be revealed. The visa had been refused on the basis that he had not met the criterion that he not be a person who had a disease or condition likely to require healthcare or community services. The applicant in that case was HIV positive. Their Honours observed that s. 50 requires that an order must appear “necessary” to the court and not simply “desirable” or that there be “undue hardship” or “damage to reputation” if it were not made.  The applicant was not a public figure but, given that his surname was quite uncommon in Australia, he would be readily identifiable and particularly those in the expatriate community of his fellow nationals.  Stigma would attach to his wife and children.  Heerey and Weinberg JJ said:

   “Distress and embarrassment by reason of publication of the identity of a person involved in litigation does not in itself amount to prejudice to the administration of justice.  The importance of justice being done in public has been affirmed time and again … Very often publicity is hurtful and embarrassing to someone but that is inherent in the nature of publication of court proceedings; often the more hurtful and embarrassing the proceeding the more newsworthy the report of it.

   But there is a feature of the present case which takes it out of the ordinary run.  There is a real risk that publication might dissuade other persons who might seek to challenge the legality of administrative decisions linked with a disease or condition that, no doubt wrongly but realistically as a matter of fact, carries a public stigma.  An analogy might be found in the prohibition of the names of blackmail victims.  If the names were published in court proceedings there would be a strong disincentive for those victims to complain to the police.”[13]

   [13] [2005] FCAFC 217 at [21]-[22]

1. In Johnston v Cameron, Finkelstein J said in considering an application under s 50:

   “… the only basis for a suppression order … is if the failure to make an order would prevent or deter a person such as Mr Johnston from bringing his action, or if there was a real risk as opposed to a remote possibility that this would occur.  Every citizen has a right to have his or her rights or obligations ascertained in a court of law.  If going to court would expose the citizen to public condemnation, abuse or defamatory comments such as would deter him from proceeding, this would be prejudicial to the administration of justice.  Prejudice of the is type can be avoided by a suppression order.”[14]

   [14] (2002) 124 FCR 160 at 180

Does the Tribunal have power to make an order under s 35 after the hearing?

1. Once a Tribunal has decided an application and exercised its powers under s 43, it is generally said that it is functus officio.  It has used up all of its powers because it has been given the task of reviewing a decision and, having done that, it has completed its task.  Whether it has used up all of its powers is a slightly different question.  Occasionally, it will have decided an application but there will be some ancillary questions that need to be answered.  One might relate to whether the decision-maker should pay the costs of an applicant who successfully applies for review of a decision in the Tribunal’s compensation jurisdiction.  The Tribunal has the power to decide such a question for it has not completed every aspect of its task.  Expressed in a different way, s 35 is a separate head of power from that to review the decision and it persists after the decision has been reviewed.[15]

   [15] See, for example, Telescourt v Commonwealth of Australia (1991) 29 FCR 227 at 237

1. The power given to the Tribunal by s 35 is generally exercised at or before its hearing the application or some time before the matter is finalised.  At times, an order may be made after the Tribunal has given its decision.  The reasons may disclose matters of such a nature that an order is appropriate.  Normally, however, the Tribunal will try to write its reasons to avoid the need to refer to such material.  If there is a need, every attempt will be made to limit the scope of the order to the confidential material so that the remainder of the reasons are available.

1. On the face of the section, there is no reason why the Tribunal cannot exercise its powers under s 35 after it has given its decision and exhausted its powers in that regard.  A confidentiality order is a different matter.  The evidence supporting the findings of fact on which the Tribunal has made an order may change and no longer support the order.  So, for example, the information protected by the order may become public in another context or the information may be relevant in another context in another tribunal or in a court.  In its terms, the power given by s 35 is broad enough to support a variation of an order made before the decision was handed down.  Exercising the power at that time does not interfere with the Tribunal’s decision and in relation to which its powers are exhausted.  It simply ensures that the Tribunal’s orders protect that which should be protected and does not protect that which need no longer be protected either in part or in its entirety.

1. The same reasoning leads me to conclude that new orders for confidentiality may also be made after the hearing and the decision has been handed down and the parties have had an opportunity to read and consider it.  That is the time at which the parties are focused on the material and fully across the material and its implications.  After that, parties may no longer be available or focused on the issues in the same way.  That is not to say that the power cannot be used after the application has been heard and decided.  Section 35 is not limited in its terms to the time at which an order may be made.

Why is the Tribunal generally required to hold its hearings in public and why does it make its reasons available to the public?

1. The answer to these two questions is the same and lies in the notion of the rule of law[16] that underpins Australian law.  The Australian Constitution assumes its acceptance and is framed upon it.[17]  As explained by Lord Cooke of Thorndon, the concept of the rule of law originally referred to the notion that “citizens may do what they like unless the State has sufficiently express powers of intervention.”[18]  That is changing in the United Kingdom where it has been said that: “It is steadily being replaced by more positive thinking in terms of the identifiable rights of human beings which States are bound to respect and further.”[19] 

   [16] The rule of law is to be distinguished from a rule of law.  A rule of law is a rule as opposed to a guideline or a practice.  A rule of law, for example, is not guideline.  A rule of law practice is not a rule of practice but a rule of practice may become a rule of law.

   [17] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 93 per Dixon J

   [18] Human Rights in Hong Kong [1999] VUWLRev 8; (1999) 29 VUWLR 45

   [19] Human Rights in Hong Kong [1999] VUWLRev 8; (1999) 29 VUWLR 45

1. Academic writing refers to the rule of law in the context of rights.  For example, in his book, A Theory of Justice, John Rawls considered the rule of law against a background of a legal system and its intimate connection with the precepts definitive of justice as regularity.  He described a “legal system” as:

   “… a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation.  When these rules are just they establish a basis for legitimate expectations.  They constitute grounds upon which persons can rely on one another and rightly object when their expectations are not fulfilled. …”[20]

   [20] John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 207

“One legal order is more justly administered than another if it more perfectly fulfills the precepts of the rule of law”,[21] the author continued.  In brief, those precepts are:

[21] John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 208

∙“… ought implies can.”[22]

[22] John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 208

(i)“… the actions which the rules of law require and forbid should be of a kind which men can reasonably be expected to do and to avoid.”

(ii)“… those who enact laws and give orders do so in good faith.”

(iii)“… not only must the authorities act in good faith, but their good faith must be recognized by those subject to their enactments.”

(iv)“… a legal system should recognize the impossibility of performance as a defense, or at least as a mitigating circumstance.”

∙“… similar cases be treated similarly.”[23]

∙“… there is no offense without a law …”[24]

(i)“This precept demands that laws be known and expressly promulgated, that their meaning be clearly defined, that statutes be general both in statement and intent and not be used as a way of harming particular individuals who may be expressly named …, that at least the more severe offenses be strictly construed, and that penal laws should not be retroactive to the disadvantage of those to whom they apply.  …”

∙          “… those precepts defining the notion of natural justice.”[25]

(i)“… a legal system must make provisions for conducting orderly trials and hearings; it must contain rules of evidence that guarantee rational procedures of inquiry.  While there are variations in these procedures, the rule of law requires some form of due process: that is, a process reasonably designed to ascertain the truth, in ways consistent with the other ends of the legal system, as to whether a violation has taken place and under what circumstances.  … The precepts of natural justice are to insure that the legal order will be impartially and regularly maintained.”[26]

[23] John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 208

[24] John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 209

[25] John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 209

[26] John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 210

1. In his book, John Rawls refers to “formal justice” as an aspect of the rule of law.  By that term, he meant the “… impartial and consistent administration of laws and institutions, whatever their substantive principles …”.[27]  “Formal justice in the case of legal institutions”, he said:

   “… supports and secures legitimate expectations.  One kind of injustice is the failure of judges and others in authority to adhere to the appropriate rules or interpretations thereof in deciding claims.  A person is unjust to the extent that from character and inclination he is disposed to such actions.  Moreover, even where laws and institutions are unjust, it is often better that they should be consistently applied.  In this way those subject to them at least know what is demanded and they can try to protect themselves accordingly; whereas there is even greater injustice if those already disadvantaged are also arbitrarily treated in particular cases when the rules would give them some security.  On the other hand, it might be still better in particular case to alleviate the plight of those unfairly treated by departures from the existing norms. …”[28]

   [27] John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 51

   [28] John Rawls, A Theory of Justice, Revised Edition, 1999, Oxford University Press at 51

1. It is apparent from these passages that the rule of law is directed to both process and outcome.  This is effectively the conclusion reached by Cooper J in Pickering v Deputy Commissioner of Taxation[29] when he relied on a passage from the speech of Lord Steyn in R v Secretary of State for the Home Department, ex parte Pierson.[30]  Lord Steyn referred to a passage from Dicey’s Law of the Constitution:

   “The ‘rule of law’, lastly, may be used as a formula for expressing the fact that with us the law of constitution, the rules which in foreign countries naturally form part of a constitutional code, are the not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and its servants; thus the constitution is the ordinary law of the land.”[31]

After referring to other authority, his Lordship concluded that:

“… Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law.  And the rule of law enforces minimum standards of fairness, both substantive and procedural.”[32]

[29] (1997) 97 ATC 4893

[30] [1998] AC 539

[31] [1998] AC 539 at 591

[32] [1998] AC 539 at 591

1. Consistent with the concept that the rule of law expresses the law of the constitution, unwritten as it is in English law, is the conclusion expressed by Dixon J that the Australian Constitution is framed upon the assumption of the rule of law.[33]  Once a constitution becomes a written document, it is inherent in the rule of law that each arm of government acts within its scope and no more.  The courts have a role in ensuring that is so.  Brennan J in Church of Scientology v Woodward[34] said of that role in examining the limits of action of the Executive arm of government:

   “Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.”[35]

   [33] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193

   [34] (1982) 154 CLR 25

   [35] (1982) 154 CLR 25 at 70

1. Brennan J’s statement of the law is much more limited than that of Lord Steyn’s.  Indeed, the application of the rule of law in Australia and in England appears to have taken different courses to date.  In England, it has been held that the courts may review decisions on the basis of substantive fairness.[36]  In Australia, there are occasions on which the courts have taken the same path.  In Pickering v Deputy Commissioner of Taxation, for example, Cooper J referred to the rule of law and its principles but did not give it unbridled application.  His Honour was considering a case in which the Commissioner of Taxation had assessed seven members of a family under the Taxation (Unpaid Company Tax) Act 1983 in respect of unpaid company tax.  He later exercised his discretion under that legislation in favour of two of the children and waived the tax owed by them.  He did not do so in relation to the remaining members of the family.  Cooper J said:

   “         It is clearly arguable that the duty of fairness which the respondent owed to the second, third, fourth and fifth applicants required that the discretion under s 5(4) or s 6(18) of the TUCT Act be exercised in their favour if they were truly in the like situation to the two daughters who received a favourable exercise of the discretion and if the applicants prove upon trial a breach of the duty they will be entitled to have the refusal quashed and the respondent required to exercise the discretion according to law. … The second applicant as the mother cannot make the same claim to equality as the children. Nevertheless it cannot be said that her claim to equality in a practical sense, having regard to the family arrangements and relationships, is doomed to failure.”[37]

   [36] e.g. R v North & East Devon Health Authority; ex parte Coughlan [2001 QB 213; [2000] 2 WLR 622

   [37] (1997) 97 ATC 4893 at 4901

1. The courts have taken the principles of the rule of law in underpinning the notion that the courts and those following a judicial model conduct their hearings in public.  They make their decisions, both interim and final, in public and observe standards of natural justice.  They are independent and impartial and look to the justice of the individual case.  If that be the case – as it is – it follows that courts will generally require that matters are heard in public and that their reasons will be given and made available to the public either formally through bound volumes or more informally through the various courts’ information services or on the internet.  It also follows that notice is given to the public of the hearings through the publication of Daily Cause Lists or Daily Listings, as the case may be.[38]  In this way, the courts can be seen to be applying the principles of the rule of law in so far as they apply to their proceedings.  As Bentham said:

   “         Publicity is the very soul of justice.  It is the keenest spur to exertion and the surest of all guards against improbity.  It keeps the judge himself while trying under trial … the security of securities is publicity.”[39]

A more contemporary statement of the reason was given by Sir Jack IH Jacob QC:

“         The need for public justice … is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges’: by sitting in public, the judges are themselves accountable and on trial.  This was powerfully expressed in the great aphorism that, ‘It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.’ …”[40]

[38] In the case of the Tribunal, they are published in a daily newspaper in the relevant State or Territory and on the Tribunal’s internet site.

[39] Bentham’s treatise on Judicial Evidence (1825) quoted with approval by the House of Lords in Scott v Scott [1913] AC 417 at 477

[40] Hamlyn Lectures (38^th series) The Fabric of English Justice at 22 quoted by Lord Woolf MR in Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673 at 685

1. Both of these statements come from English cases but the principle is equally embedded in Australian law.  In Russell v Russell,[41] Gibbs J said:

   “It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’ (Scott v Scott [1913] AC 417 at p. 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] AC 177 at p. 200). To require a court invariably to sit in closed court is to alter the nature of the court. …”[42]

   [41] (1976) 134 CLR 495

   [42] (1976) 134 CLR 495 at 520

1. In this passage, the reference to the activities of administrative officials must be distinguished from the merits review conducted by the Tribunal.  Although clearly part of the executive arm of government and not judicial, it is something of a hybrid for it has been accepted that:

   “The Legislature clearly intends that the Tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive (see Pt II of the Act).  Its function is to decide appeals, not to advise the Executive.”[43]

   [43] Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ

1. The judicial model, which is the model of the courts, is fundamentally different from the administrative model.  The difference was explained by Sir Anthony Mason in 1989 when he acknowledged that the Tribunal was based on the judicial, and not the administrative, model of decision-making:[44]

   “Experience indicates that administrative decision-making falls short of the judicial model – on which the AAT is based – in five significant respects.  First, it lacks the independence of the judicial process.  The administrative decision-maker is, and is thought to be, more susceptible to political, ministerial and bureaucratic influence than is a judge.  Secondly, some administrative decisions are made out in the open; most are not.  Thirdly, apart from statute, the administrator does not always observe the standards of natural justice or procedural fairness.  That is not surprising; he is not trained to do so.  Finally, he is inclined to subordinate the claims of justice to the individual to the more general demands of public policy and sometimes to adventitious political and bureaucratic pressures.”[45]

   [44] Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ were to agree with the same principle some seven years later in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18; see footnote 8 above.

   [45] Sir Anthony Mason, Administrative Review: The Experience of the First Twelve Years, (1989) 18 Fed L Rev 122 at 130.

1. Section 35(1) of the AAT Act itself clearly places the Tribunal under the same obligation as a court to conduct its hearings in public unless there is an appropriate reason not to do that.  That obligation is consistent with the rule of law and is to be contrasted with a decision of, for example, the Secretary in this case and that of the SART.  Each was made in private and without public scrutiny.

1. The principles of the rule of law are also inherent in the requirement in s 43(2) of the AAT Act that the Tribunal give reasons. If they are given in a spoken form at a hearing held in public, they will be available not only to the parties but also to so many members of the public who may be present. If they are given in writing after a public hearing was held, it is consistent with the rule of law that those written reasons be made available to the public. Members of the public present at the hearing could observe the proceedings. They could form a view whether the proceedings were conducted appropriately and fairly. They should equally be able to scrutinise the outcome and the reasons for it to ensure, and be reassured, that the Tribunal has acted appropriately on the evidence and the law. After all, the rule of law is directed both to process and to outcome.

1. These concepts are inherent in a passage from the judgment of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd:[46]

   “         When the parties submit their dispute to a tribunal for adjudication, they do so on the assumption that the dispute will be decided in accordance with rules.  They assume that the adjudicator will decide the dispute according to the rules or principles which govern their conduct and that he will ascertain, so far as he reasonably can, what are the facts of the dispute.  To give effect to these assumptions a judicial decision must be a recent decision arrived at by finding the relevant facts and then applying the relevant rules or principles.  A decision which is made arbitrarily cannot be a judicial decision; for the hallmark of a judicial decision is the quality of rationalities … However, without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision.  In my opinion the giving or reasons is correctly perceived as a ‘necessary incident of the judicial process’ because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.

   The giving of reasons for a judicial decision serves at least three purposes.  First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision … Secondly, the giving of reasons furthers judicial accountability … Thirdly, under the common law system of adjudication, courts not only resolve disputes – they formulate rules for application in future cases … Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.”[47]

   [46] (1987) 10 NSWLR 247

   [47] (1987) 10 NSWLR 247 at 278-279

1. McHugh J’s explanation of the rationale for giving reasons is an equally appropriate explanation for the publication of those reasons beyond the parties concerned in the case before either a court or the Tribunal.  I have already referred to the aspect of accountability inherent in the rule of law.  The precept of the rule of law that similar cases be treated similarly cannot be met unless the public is able to have access to the Tribunal’s decisions and able to compare one case with another.  Even though the reasons for decision of one of the Tribunal’s members are not binding on another member, the Tribunal does strive for consistent outcomes if they are possible.[48]  If they are not, and the later tribunal is aware of the earlier case, it is usual to give reasons for any inconsistent conclusion.  Therefore, if the parties to an application in the Tribunal are to have their best opportunity to know and understand the legislation that underpins the decision that is under review, they need to have access to any of the Tribunal’s previous decisions interpreting and applying that legislation.  Parties cannot have that opportunity, or any opportunity, if the Tribunal’s decisions are not made available to the public.

[48] Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD

How much personal information may the Tribunal publish in a decision?

1. There are various decisions of the courts that consider the minimum requirements of a decision and I will return to some of them shortly.  As far as I am aware, however, they do not answer the question from the point of view of a person’s privacy.  That is the point of view raised in this case.

1. It could be said that the underlying principles of the rule of law that I have set out above could be met even if the parties’ names, or at least the names of those who are not the decision-makers and their departments or agencies, were omitted from the decision.  If their names and identifying material were omitted, the argument would go, the Tribunals’ reasons would still be available to the public.  The Tribunal would remain accountable and the Tribunal’s interpretation of any legislative or common law principles would be available to the public.  A contrary argument would be that it can be difficult to remove all identifying material from reasons for a decision and be left with a document that still makes sense and is of any use. 

1. Putting aside any difficulties, the argument for privacy is understandable given that the Tribunal’s decisions have become readily available in recent years.  Whereas they were once available only in limited numbers through published reports in law libraries or, subject to confidentiality orders under s 35 of the AAT Act, from the Tribunal’s registries, they are now readily available from any computer connected to the internet.[49]  They are not only available after a person has made an effort to read a report in a library or to visit the Tribunal, they are available at any time of the day or night. 

   [49] That availability is subject to any restriction resulting from an order made under s 35 of the AAT Act.

1. It could be said that this is no different from publishing the parties’ names in the Daily Cause List shown in the daily newspaper in the State or Territory in which the Tribunal holds its hearings or published on its internet site.  A member of the public seeing the parties’ names in the newspaper and deciding to attend the hearing may do so subject to any confidentiality order made by the Tribunal.  The difference is that the newspaper is generally used for another purpose or discarded once it has been read and the Daily Listings on the Tribunal’s internet site is replaced each day.  The names do not remain available for ready reference in perpetuity as it were.  A member of the public who does not see the case in the Daily Cause List in one form or another loses the opportunity to attend the hearing.  By way of contrast, a member of the public who does not see the decision today can, subject to any confidentiality order, read it at leisure the next day or the next or whenever convenient.

1. In considering how much information should be included in a decision, I have considered the Tribunal’s obligations under the Privacy Act 1988 (“Privacy Act”). Section 16 of that legislation provides that an agency shall not do an act or engage in a practice that breaches and Information Privacy Principle (IPP). The Tribunal is an agency[50] as is the Federal Court.[51]  It is also a record-keeper for, subject to exceptions that are not relevant in this case:

   “… an agency that is in possession or control of a record of personal information shall be regarded, for the purposes of this Act, as the record-keeper in relation to that record.”[52]

   [50] Privacy Act, s 6(1)

   [51] Privacy Act, (g) of s 6(1) when read with s 26(b) of the Acts Interpretation Act 1901which provides that “Federal Court shall mean the High Court or any court created by the Parliament”.

   [52] Privacy Act, s 10(1)

1. The IPPs are set out in s 14.  IPP11 provides that:

   “1.      A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

   (a)the individual is reasonably likely to have been aware, or made aware under Principle 2,^[[53]] that information of that kind is usually passed to that person, body or agency;

   (b)the individual concerned has consented to the disclosure;

   (c)the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious imminent threat to the life or health or the individual concerned or of another person;

   (d)the disclosure is required or authorised by or under law; or

   (e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.

   2.Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.

   3.A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.”

   [53] IPP 2 is concerned with the solicitation of personal information from the person concerned.

1. The prohibition on disclosure of information imposed by IPP11 is a qualified prohibition.  The qualifications that are relevant in this case are that the applicant is “… reasonably likely to have been aware … that information of the kind is usually passed to that person …”[54] or that disclosure is “… required or authorised by or under law”.[55] 

   [54] IPP11, cl 1(a)

   [55] IPP11, cl 1(d)

1. I will consider only what is authorised or required for I find that the applicant was not aware that his personal information would be publicly available.  In Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs,[56] I considered the meaning of the words “authorised” and “required” as they are used in cl 1(d).  I concluded that there was:

   “… no reason to depart from these ordinary meanings.  If a law gives someone the power to disclose personal information or the right or permission to obtain it or if the law demands that personal information be disclosed, the record-keeper is not prevented from disclosing it by operation of cl. 1 of IPP 11.

   36.      Regard must be had to the terms of particular laws that authorise or require disclosure of personal information.  …”[57]

   [56] [2005] AATA 200

   [57] [2005] AATA 200 at [35]-[36]

1. In that case, I considered whether the Tribunal is required or authorised to reveal documents that have been lodged in the Tribunal but there has yet to be a hearing of the application. This case is different in that the Tribunal has held a hearing and I am concerned only with the reasons that it gave for its decision. That means that I must consider s 43(2B) of the AAT Act as it sets out the requirements that the Tribunal’s decision must meet. At the same time, it sets out what the Tribunal is authorised to do. Therefore, the Tribunal may reveal as much of a person’s personal information as is necessary to meet the requirements of s 43(2B).

1. I have set out the formal requirements of s 43(2B) of the AAT Act that the Tribunal must meet in writing a decision as well as the rationale behind such requirement. These have been considered in cases such as Minister for Immigration and Multicultural Affairs v Yusuf.[58]In that case, McHugh, Gummow and Hayne JJ decided that a similar obligation in s 430 of the Migration Act 1958 did not require the Refugee Review Tribunal to make findings on any and every matter of fact objectively material to the decision it made.  Their Honours went on to say:

   “         Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make.  Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. … A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

   … The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.”[59]

   [58] (2001) 206 CLR 323

   [59] (2001) 206 CLR 323 at 346; [68]-[69]

1. The authorities also demonstrate that the reasons for decision must “… disclose adequately the intellectual process which has resulted in a particular determination. …”[60]  In Frichot v Zalmstra,[61]  Owen J said:

   “In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 702 the court indicated that … the appealable [sic] error lies not in the result of the trial but in the failure to give relevant reasons in circumstances which deprive a party of an effective right of appeal conferred by statute.

   To that I would add that in our judicial system, where proceedings are to be conducted in public, the duty to give reasons is an adjunct to or in some respects a part of the overall obligation to afford to litigants procedural fairness.  Put in that way, in addition to securing the statutory right of appeal, the obligation to give adequate reasons is part of the fairness to a litigant who comes to the court to know why it is that he or she succeeded or has been unsuccessful. … [T]hat does not mean that every piece of evidence, every exhibit, every word that has fallen from counsel during submissions must be alluded to expressly or even by implication in the course of giving reasons.  It would neither be necessary nor feasible for an obligation of that nature to be imposed by the trial courts.

   It is sufficient if the reasoning process which led to a result is disclosed with sufficient certainty to enable the litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured.”

   [60] Garrett v Nicholson (1999) 21 WAR 226 at [73] per Owen J

   [61] Unreported, WASC No 980291, 13 May 1998 at [14]

1. In summary then, the Tribunal’s decisions must meet the requirements of s 43(2B) of the AAT Act while adequately disclosing the intellectual process leading to its decision. They are not the only matters that shape whether or not disclosure of personal information is “… required or authorised by or under law” within the meaning of IPP 11. The other matter is that inherent in s 35 is the requirement that the Tribunal’s reasons will be publicly available as will the evidence, material lodged in the Tribunal and names of witnesses is balanced against what is necessary to secure the proper administration of justice in the proceedings in the case. These matters can be resolved. The Tribunal is required or authorised to disclose personal information by or under the AAT Act if that disclosure is necessary to meet its obligation under s 43(2B), which includes the obligation to conduct its proceedings and its decision-making in public, or to disclose the intellectual processes it followed in reaching a decision.

1. If the Tribunal should find that it has gone beyond what is necessary to fulfil its obligations, it may exercise its power under s 35(2) to make an order restricting access to personal information.

What did the Tribunal do when it heard the applicant’s application?

1. The Tribunal that heard the applicant’s application for review of the SART decision did not make any order under s 35(2) at any stage of the process. As it heard the matter on the papers, the member would have read all the material on the file but would not have seen or heard from either the applicant or a representative of the respondent, the Secretary to the then Department of Employment, Education and Training. Therefore, there would have been no hearing in one of the Tribunal’s hearing rooms. Had there been such a hearing, it could have been attended by members of the public had they been minded to do so. The Tribunal made its decision and gave the parties written reasons for that decision as required by s 43(2B) of the AAT Act. The parties did not ask the Tribunal to make an order under s 35(2) so that its reasons, or any part of them, would be confidential.

Should an order be made removing material from the Tribunal’s published reasons for decision?

1. The Tribunal’s reasons reveal personal information including the applicant’s name and the addresses of the applicant and his parents, the names of the tertiary institutions he attended and the name of the witnesses who gave evidence.  The applicant said that the reasons contained too much information that could be used maliciously against him and his family.  Furthermore, the information was of no value to anybody else preparing for a hearing in the Tribunal.  At the conclusion of a careful submission, the Secretary’s solicitor, Ms Nance, indicated that he consents to an order restricting access to the applicant’s first name and residential address, the full identity of the tertiary institutions he attended and the names of the witnesses.

1. The addresses of the applicant and his parents are matters that should not continue to appear in the decision.  Their omission will not obscure a relevant fact on which the decision was made.  They are personal information whose publication is not authorised by IPP 11.  Consequently, I will make an order under s 35 of the AAT Act restricting their publication and excluding that information from the publicly available material.

1. I am not prepared to make an order restricting the publication of the applicant’s name, in whole or in part, or of other material in the reasons.  Whether he was aware of it or not, the proceedings were public proceedings.  They related to his application for Austudy from the Department.  As the basis of his application was homelessness, the reasons contain some material whose recitation he might find disquieting but it is not material that describes his current circumstances.  The reasons do not dwell on the evidence and refer to only so much as is necessary to explain the Tribunal’s reasoning processes.  It is important that those processes remain exposed to public scrutiny not only that others may refer to the reasons but that it can be seen that the Tribunal was not acting, and does not act, in an arbitrary fashion in deciding each case.  The evidence that is referred to in the reasons is not such that leads me to conclude that its publication would deter a person from coming to the Tribunal to pursue the right to have a decision reviewed.  It may be embarrassing at times but that is not a reason for restricting publication.  When I balance the requirement that hearings should be held in public against what is necessary to secure the proper administration of justice in the proceedings in this case, I conclude that leaving the material in the public domain is not prejudicial to the administration of justice.

1. For the reasons I have given, I order that:

   under s 35(2) of the Administrative Appeals Tribunal Act 1975, the section of reasons for decision No 9584 showing the addresses of the applicant and his parents be restricted to the parties and their legal representatives and to members and staff of the Tribunal.

I certify that the forty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ...............................................................

Nathaniel Wills  Associate

Date of Hearing -  8 February 2006

Heard on the papers

Date of Decision  24 February 2006
For the Applicant  self-represented

Solicitor for the Respondent         Ms E. Nance,

Australian Government Solicitor

634 at 639 that “Inconsistency is not merely inelegant: it brings the process of deciding into disrepute,  suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.”