RPDS and Secretary, Department of Education

[2020] AATA 398

RPDS and Secretary, Department of Education [2020] AATA 398 (4 February 2020)

Division:GENERAL DIVISION

File Number(s):      2019/7036

Re:RPDS

APPLICANT

AndSecretary, Department of Education

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:4 February 2020

Date of written reasons:        5 March 2020

Place:Sydney

The Tribunal DIRECTS, pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), that:

1.    the publication or other disclosure of the name, address or any other information tending to reveal the identity of the applicant is prohibited; and

2.the applicant’s name is to be substituted with the pseudonym “RPDS”.

.........................................................................

Mr S Evans, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for confidentiality order by applicant – private hearing – publication or disclosure of information revealing the identity of a party or witness – publication or other disclosure of evidence or information about evidence lodged with the Tribunal – applicant concerned about public disclosure of personal and health information – request for suppression of name of applicant granted – Tribunal not satisfied there are cogent reasons to hold a private hearing or prohibit publication of its decision

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 35

CASES

Le and Secretary, Department of Education, Science And Training [2006] AATA 208

Re Sheepskin and Opal Exporters and Others and Export Development Grants Board (1984) 6 ALD 594

WRITTEN REASONS FOR DECISION

Mr S Evans, Member

5 March 2020

1. The Applicant in this matter, RPDS, is appealing a decision of the Secretary of the Department of Education (“the Respondent”).

2. In anticipation of the matter going to hearing, the Applicant wrote to the Tribunal on 1 November 2019 requesting that a confidentiality order be made pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

3. The Applicant requested that the hearing be held in private. It was further requested by the Applicant that her name, her parents’ names, their home address and other information relating to the case be kept confidential and that the written decision not be published.

4. The Tribunal held an interlocutory hearing on Tuesday 4 February 2020 to consider the Applicant’s request. Both parties appeared by telephone.

   LEGISLATION

5. Section 35 of the AAT Act provides for orders for private hearings, non-publication and non-disclosure of proceedings, witnesses, information and evidence before the Tribunal.

6. Section 35(2) provides that the Tribunal may direct that a hearing or part of a hearing is to take place in private and give directions in relation to those who may be present.

7. Section 35(3) provides that the Tribunal may direct that publication or disclosure of any information revealing the identity of a party or witness in a proceeding before the Tribunal, or any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal, be prohibited or restricted.

8. Section 35(4) provides that the Tribunal may direct that the publication or other disclosure, including to some or all of the parties, of information that relates to a proceeding and is information that comprises evidence or information about evidence, or is information lodged with or provided to the Tribunal, be prohibited or restricted.

9. Section 35(5) provides that in considering whether to give directions under subsection (2), (3) or (4) the Tribunal take as the basis of its consideration the principle that it is desirable that hearings or proceedings before the Tribunal should be held in public, that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and all the parties, and that the contents of documents lodged with the Tribunal should be made available to all the parties.

   CONSIDERATION

10. The Applicant in this matter requested that the Tribunal make an order under sections 35(2), (3) and (4) of the AAT Act.

11. It was submitted by the Applicant that the request was made in order to “prohibit the publication of the Applicant’s name, the names of the Applicant’s parents, the Applicant’s address, or other information the AAT holds relating to the case”. The Applicant further applied under section 35(4) for an order prohibiting the “publication or disclosure of information which relates to the Tribunal proceedings, including the Tribunal decision… information that comprises evidence or information about evidence… and information lodged or otherwise given to the Tribunal”. It was further requested by the Applicant that the hearing be held in private.

12. The Respondent in this matter did not oppose the Tribunal making an order of confidentiality. It was noted, however, that there was “limited evidence provided” of how it would be contrary to the public interest to publish the decision and whether there would be a real possibility of doing injustice to or inflicting serious disadvantage on a party, witness or person giving information if the proceedings were held in public.

13. The Respondent also noted that any potential hearing in this matter is not likely to involve the tendering and consideration of medical evidence of any greater gravitas than counterpart matters before the Tribunal. The proceedings do not involve the type of information where in-private proceedings are generally held such that there would be compelling reasons for the hearing to be restricted to the parties and their representatives only.

14. The Applicant stated that she is seeking to protect personal and health information relating to herself and her parents.

15. In considering this matter I am mindful of the observations of DP Forgie in the matter of Le and Secretary, Department of Education, Science And Training [2006] AATA 208 in which it is written at [46]:

    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.
    

    
    [emphasis added]

16. During the hearing the Respondent referred the Tribunal to the matter of Re Sheepskin and Opal Exporters and Others and Export Development Grants Board (1984) 6 ALD 594. That case reinforces the proposition that, given the clear provisions of the Act, it is incumbent upon applicants for administrative review to understand that the default position will always be in favour of open hearings and maximum disclosure.

17. It is the Tribunal’s view that replacing the Applicant’s name with a pseudonym balances the Applicant’s privacy concerns (including those relating to her parents) with the principle that Tribunal proceedings be public. The Applicant has not provided any cogent reasons why a confidentiality order under section 35(2) or (4) of the AAT Act is required or appropriate.

    DECISION

18. Having regard to the principles outlined above, the concerns of the Applicant and the submissions of the Respondent, the Tribunal directs that the publication or other disclosure of the name, address or any other information tending to reveal the identity of the Applicant is prohibited, and that the Applicant’s name is to be substituted with a pseudonym in accordance with section 35(3) of the AAT Act.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 5 March 2020

Date of hearing:	4 February 2020
Applicant:	In person
Solicitors for the Respondent:	Ms S Harris, Department of Education