Scanlan and Secretary, Department of Social Services (Social services second review)
[2021] AATA 4332
•22 November 2021
Scanlan and Secretary, Department of Social Services (Social services second review) [2021] AATA 4332 (22 November 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0353
Re:Chelsea Scanlan
APPLICANT
AndSecretary, Department of Social Services
SECRETARY
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:22 November 2021
Place:Brisbane
The Tribunal declines to make a confidentiality order.
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Deputy President Dr P McDermott RFD
CATCHWORDS
PRACTICE AND PROCEDURE – Request for confidentiality order over name and evidence – no confidential documents identified – no evidence that there is a real possibly of the applicant suffering any serious disadvantage if her name was disclosed – confidentiality order refused
LEGISLATION
(CTH) Administrative Appeals Tribunal Act 1975
(CTH) Social Security (Administration) Act 1999
(CTH) Social Security Act 1991
CASES
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185
Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559; [2008] FCAFC 164
Global Financial Markets Pty Ltd and Australian Securities and Investments Commission [2017] AATA 1397
Le and Secretary, Department of Education, Science and Training [2006] AATA 208Pochi and Minister for Immigration and Ethnic Affairs, Re (1979) 2 ALD 33
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
22 November 2021
INTRODUCTION
The applicant has requested that the Tribunal make a confidentiality order in this matter.
The applicant was initially granted Newstart allowance in 2012. She was in receipt of Newstart allowance until 2020 when she was transferred to Jobseeker payment. The applicant did not comply with a number of requests by Centrelink to provide copies of her personal income tax returns for the income years 2012/2013 to 2018/2019. The applicant has confirmed before the first-tier review by this Tribunal that she conducts an environmental services organisation. Centrelink had requested the applicant to provide profit and loss statements of that organisation. Centrelink also requested the applicant to provide a completed Mod F ‘Business details’ form in respect of that organisation. The form of requests by Centrelink indicate that they were made pursuant to s 192 of the Social Security (Administration) Act 1999 (Cth).
In 2020 a decision was made by the Secretary to cancel the payment of Jobseeker payment to the applicant. The basis of the decision was that her had not provided the Secretary with the requested financial documentation concerning her affairs. The applicant has made an application to this Tribunal to review the decision to cancel the payment to her of Jobseeker payment. The applicant has made various contentions concerning the requests made to her to provide financial documentation: she has contended that Centrelink had no basis to revisit her past entitlement to benefit and that she had a reasonable excuse for not complying with the requests for information.
I do not now have to determine whether the applicant had a reasonable excuse for not complying with the various requests of Centrelink for the applicant to provide financial information. I now have to determine whether to grant the request of the applicant for the Tribunal to make a confidentiality order. The Secretary has quite properly maintained a neutral position in neither consenting to nor opposing the request for a confidentiality order.
REASONS PUT FORWARD FOR THE CONFIDENTIALITY ORDER
The applicant, who has undertaken some legal studies, has not put forward a draft of the confidentiality order that she seeks. The nature of the of the confidentiality order that she seeks can be gleaned from her submission that there should be the following ‘redactions/removals’ to various documents:[1]
[1] Submissions of the applicant dated 30 September 2021, [38].
-Residential address to be removed
-Information about accounts to be removed
-Pages of business dealings figures to be removed
-Bank statement information to be removed
-Bank account information to be removed
-Bank transactions to be removed
-Letters and correspondence detailing professional memberships
-Information of business trade
-Tax information
-Declaration information spreadsheet's
-Personal certificates
-All data correspondence from Centrelink office online management system
-All data sheets containing dialogue between Centrelink officials
-All recordings of phone conversations
-All letters to have third party names redacted
-All tax returns to be removed
-All tax profit and loss information to be removed
-All tax summaries to be removed
-All tax statements to be removed
The applicant has also made submissions concerning protecting the confidentiality of the Alternative Dispute Resolution process of this Tribunal:[2]
· The conference and communications,
· The name of the party of social services employees to be kept confidential,
· Evidence or other information given before or in the course of the Alternative Dispute Resolution Case
· That information given should not be published or disclosed
[2] Applicant’s request for confidentiality order dated 16 March 2021.
The applicant has also put forward reasons for making a confidentiality order with respect to this application:[3]
- The matters are of a personal nature
- The information contains personal details
- The evidence contains personal bank details, accounts and other third-party business information where the authority has not been given to have this information disclosed.
- The evidence is mixed with business information and accounts including third parties of whom have not given authority to have information disclosed
- To protect the rights, freedoms and liberties of the parties mentioned
- To prevent breaches of third-party liability
[3] Applicant’s request for confidentiality order dated 16 March 2021.
ISSUE FOR DETERMINATION
I must determine whether the information that the applicant wishes not to be disclosed is of such a confidential nature that a confidentiality order should be made.
RELEVANT LEGISLATION
Section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) provides in relevant respects:
35Public hearings and orders for private hearings, non‑publication and non‑disclosure
Public hearing
(1)Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
Private hearing
(2)The Tribunal may, by order:
(a)direct that a hearing or part of a hearing is to take place in private; and
(b)give directions in relation to the persons who may be present.
Orders for non‑publication or non‑disclosure
(3)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a)information tending to reveal the identity of:
(i)a party to or witness in a proceeding before the Tribunal; or
(ii)any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b)information otherwise concerning a person referred to in paragraph (a).
(4)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a)relates to a proceeding; and
(b)is any of the following:
(i)information that comprises evidence or information about evidence;
(ii)information lodged with or otherwise given to the Tribunal.
(5)In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle 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 of 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.
CONSIDERATION
During the hearing it was apparent that the applicant had sought a confidentiality order in relation to the conferencing process. During the hearing I stated that it would not be necessary to make a confidentiality order in respect of anything said during the conferencing process. I adverted to s 34E(1) of the Administrative Appeals Tribunal Act 1975 (Cth) that provides that anything said during an alternative dispute process would not be admissible at the hearing of a proceeding before the Tribunal. There is an exception in s 34E(2) of the Act for the admission of evidence only where the parties agree.
Subsection 35(5) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal must take as the basis of its consideration in making any directions under subsections 35(2), (3) or (4) of the Act 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 of 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.
The predecessor provision to s 35(5) of the Administrative Appeals Tribunal Act 1975 was s 35(3) of the Administrative Appeals Tribunal Act 1975 as originally enacted. That predecessor provision was considered in two decisions of the Full Court of the Federal Court of Australia which emphasised the requirement that hearings be in public to be the basis of its consideration in making any confidentiality order.
In Australian Securities and Investments Commission v PTLZ,[4] Black CJ remarked that ‘the obligation in s 35(3) [of the Act as originally enacted] is expressed at a higher level, requiring the Tribunal to take this principle [that proceedings before the Tribunal should be held in public] as "the basis of its consideration".’[5] North and Downes JJ remarked that s 35(3) of the Act as originally enacted ‘imposes an overriding obligation on the Tribunal to "take as the basis of its consideration the principle" that hearings should be held in public.’[6]
[4] (2008) 48 AAR 559; [2008] FCAFC 164.
[5] (2008) 48 AAR 559, 562 [6]; [2008] FCAFC 164, [6].
[6] (2008) 48 AAR 559, 567 [40]; [2008] FCAFC 164, [40].
In Australian Securities and Investments Commission v Administrative Appeals Tribunal,[7] Downes and Jagot JJ remarked:
Again, we think it is important to emphasise certain aspects of the statutory provisions. Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 55 described the power in s 35(2) to depart from this norm as one to be exercised “sparingly”. It also explains the approach in Australian Securities and Investments Commission v PTLZ 48 AAR 559 at [6], [41] and [42] (an appeal to the Full Court of the Federal Court from the decision of the AAT in PTLZ v Australian Securities and Investments Commission 100 ALD 648) emphasising that the words of s 35(3) require this principle of the desirability of hearings to be in public to be “the basis” of the AAT’s consideration of adopting a different approach (in contrast, for example, to “a basis” for that consideration).[8]
[7] (2009) 181 FCR 130; [2009] FCAFC 185.
[8] (2009) 181 FCR 130; [2009] FCAFC 185, [74].
Their Honours added:
Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.[9]
[9] (2009) 181 FCR 130, 148; [2009] FCAFC 185, [75].
Downes J, while he was still serving as a President of this Tribunal, was a member of the Full Courts in both Australian Securities and Investments Commission v PTLZ and Australian Securities and Investments Commission v Administrative Appeals Tribunal. As a member of this Tribunal, I would be certainly guided by these considered pronouncements of Downes J which emphasise the proper interpretation of what is now s 35(5) of the Administrative Appeals Tribunal Act 1975 (Cth).
In Global Financial Markets Pty Ltd and Australian Securities and Investments Commission,[10] Deputy President Bean and Senior Member Britten-Jones (as he then was) pointed out that in Australian Securities and Investments Commission v Administrative Appeals Tribunal[11] the following points were made:
(a)the norm is that proceedings before the Tribunal shall be in public and this norm is reinforced by the requirements of s 35(3) (now s 35(5)) which expressly confirms the principle that it is desirable that hearings be held in public;
(b)the power to depart from that norm is one that is to be exercised sparingly: see Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510;
(c)the reason matters are not kept secret is the overriding importance of justice being administered openly and in public. This applies equally to persons who are in business even when, for example, employees may be disadvantaged; and
(d)the Tribunal would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm, even serious harm, to the recipient’s reputation resulting from public awareness of a banning order would be a sufficiently cogent reason.
[10] [2017] AATA 1397, [54].
[11] [2009] FCAFC 185; (2009) 181 FCR 130, 148-149.
These principles were applied in Global Financial Markets Pty Ltd and Australian Securities and Investments Commission so that there should not be the suppression of the public awareness of a banning order. In this case the applicant is conducting what she has described as an environmental services organisation, and there are no cogent reasons why the inner workings of her business should not be disclosed.
As this application concerns a social security application, it is important to also have regard to the explanation of Downes and Jagot JJ in Australian Securities and Investments Commission v Administrative Appeals Tribunal of why social security applications are not kept secret; their Honours referred to ‘the overriding importance of justice being administered openly and in public.’[12]
[12] Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, 148; [2009] FCAFC 185, [75].
The documents relating to the personal income of the applicant or the business income of the environmental services organisation certainly have relevance to the entitlement of the applicant to jobseeker payment. The applicant has not put forward any cogent reason why a confidentiality order should be made. She has not identified any particular document which should be kept confidential or pointed to information of a confidential nature that should be suppressed by a confidentiality order. While the documents referred to by the applicant do contain information which is not public information, the documents do not contain information which is of such a confidential nature as to warrant the making of a confidentiality order.
The applicant would appear to seek a confidentiality order to replace her name with a pseudonym so as to protect her identity. The Tribunal used a pseudonym for the purposes of considering the request of the applicant for a confidentiality order. However, there is no evidence before the Tribunal which would support the making of a confidentiality order over the applicant’s name. In Re Pochi and Minister for Immigration and Ethnic Affairs[13] Brennan J emphasised that an order excluding the public may be justified if there was ‘a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party’.[14] There is no evidence that there is a real possibly of the applicant suffering any serious disadvantage if her name was disclosed.
[13] Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33.
[14] Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, 56.
The general practice of the Tribunal of deciding whether there should be the suppression of the name of a party to an application in this Tribunal was outlined by Senior Member Creyke in Tennant and Secretary, Department of Social Services:[15]
The Tribunal has power to issue an order suppressing the name of a party. Nonetheless, the intention of s 35 of the Act is that there is a presumption that matters before the Tribunal, including its reasons for decisions, should be public. The Tribunal has discretion to decide that documents lodged with the Tribunal or the name of witnesses or parties should be suppressed, but only if satisfied that the circumstances fall within the terms of s 35(2), and that there are cogent reasons for doing so. That principle is based on the public interest in ensuring that proceedings before the Tribunal are conducted openly. That principle reflects the need for the Tribunal to establish that it is accountable to the public which funds its operations, and that the Tribunal is “providing a mechanism of review that is fair, just, economical, informal and quick”, the overarching objectives of its operations under the AAT Act.[16]
[15] [2014] AATA 92.
[16] [2014] AATA 92, [18].
The Tribunal would ordinarily allow the publication of the name of an applicant who is seeking some benefit from the Government such as Austudy. In Le and Secretary, Department of Education, Science and Training,[17] Deputy President Forgie outlined the importance of securing the proper administration of justice:
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.[18]
These decisions of Deputy President Forgie and Senior Member Creyke emphasise the importance of there being public scrutiny in the decision-making processes of the Tribunal.
[17] [2006] AATA 208.
[18] [2006] AATA 208, [46].
The applicant has relied upon the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) for the making of a confidentiality order by this Tribunal. The rules have application to the following Queensland courts: the Supreme Court, the District Court and the Magistrates Courts. I accept the submission of the Secretary that the UCPR has no application to proceedings in this Tribunal. I also note that the decisions under the Right to Information Act 2009 (Qld) which are relied upon by the applicant[19] do not, in my opinion, have any relevance in my determination of this application. These decisions cannot restrict the evidence which is available to the Tribunal.
[19] Abbot and Marohasy and Central Queensland University [2017] QICmr 54 (21 November 2017); 6XY7LE and child of 6XY7LE and Department of Education, Training and Employment [2014] QICmr 1 (15 January 2014); Quandamooka Yoolooburrabee Aboriginal Corporation and Department of Natural Resources and Mines; Sibelco Australia Ltd (Third Party) [2014] QICmr [47] (19 November 2014).
The applicant is able at the hearing of her application to again seek a confidentiality order for specific documents where there is a basis for such an order. The applicant should appreciate that the Tribunal will not in its reasons for a decision release any personal information about the applicant such as her address where the personal information has no relevance to the determination of the application.
CONCLUSION
The applicant has not put forward any cogent reasons for the making of a confidentiality order. The applicant has sought the suppression of financial accounts which are relevant to her eligibility to receive social security benefits.
DECISION
The Tribunal declines to make a confidentiality order.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 22 November 2021
Date(s) of hearing: 27 September 2021 Date final submissions received: 30 October 2021 Applicant: By telephone Solicitors for the Respondent: Services Australia
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