The Applicant and Comcare and Inman
[2013] AATA 538
•2 August 2013
[2013] AATA 538
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/0332, 0333, 0334
Re
THE APPLICANT
APPLICANT
And
COMCARE
RESPONDENT
And
MICHAEL INMAN
THIRD PARTY
INTERLOCUTORY DECISION
Tribunal Professor RM Creyke, Senior Member Date 2 August 2013 Place Canberra The access request is denied.
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Professor RM Creyke, Senior Member
CATCHWORDS
Practice and procedure – matter settled under s 42C – application by third party for access to documents and terms of agreement – unreasonable disclosure of personal information – application denied
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) sections 35 and 42C
Privacy Act 1988 (Cth) sections 10, 14
Safety, Rehabilitation and Compensation Act 1988 (Cth) section 14
CASES
BK v ADB [2003] VSC 129
Deloiotte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562
Director of Public Prosecutions v Smith [1991] VR 63
Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435
Re JTMJ and ASIC [2010] AATA 471
National Australian Bank Ltd v KRDV [2012] FCA 543
O’Sullivan v Farrer (1989) 168 CLR 210
Osland v Secretary to the Department of Justice (2010) 116 ALD
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
SECONDARY MATERIALS
Privacy and confidentiality at the AAT
Administrative Appeals Tribunal Policy Relating to Sections 34D and 42C of the Administrative Appeals Tribunal Act 1975
‘AAT decisions’, Administrative Appeals Tribunal website
REASONS FOR INTERLOCUTORY DECISION
Professor RM Creyke, Senior Member
2 August 2013
The applicant sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) section 14.
On 21 June 2013, the parties reached a consent agreement which was approved by decision of the Tribunal under section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (Act).
On 21 June 2013, Mr Michael Inman, a journalist with The Canberra Times, requested that he see the file and the consent agreement for these matters.
The Tribunal responded on 27 June 2013 noting that it does not generally allow a third party to inspect documents relating to an application unless a public hearing has been held and that access to documents would only be granted if a Tribunal Member was satisfied that there was good reason to permit access. Mr Inman was advised that he could request a hearing in relation to the request.
Mr Inman was also advised that he could access certain information in relation to those files. The information includes the names of the parties and any representatives, the type of case, the dates of conferences, hearings or other case events, the types of documents lodged by the parties and how an application is finalised.[1]
[1] Privacy and confidentiality at the AAT, 2.
Mr Inman responded asking why the documents had been suppressed in the absence of a request for confidentiality, given the public interest in the matter and the fact that certain details about the applicant’s health and its connection with his former workplace had already been published in reports by the National Audit Office and the Senate Privileges Committee.
On 10 July 2013 a hearing was held with representatives of the parties to discuss the application and to receive their submissions. Mr Inman, as well as another journalist, attended. At that hearing counsel for the applicant stated he was not instructed to make submissions in the presence of the media. After the hearing was adjourned the applicant’s representative requested a private hearing so that he could make submissions. The Tribunal granted the request and a further directions hearing, in private, was held later that day.
At this hearing counsel for the applicant opposed the granting of access to any of the documents in the matters involving his client and requested a confidentiality order over the material sought. Counsel also produced medical evidence in support of the request. Counsel for Comcare did not consent to nor oppose the request for confidentiality. At the conclusion of the hearing the Tribunal issued a confidentiality order, which was granted subject to further order.
On 18 July 2013 a further directions hearing was held to hear from Mr Inman. His submission was that he was inhibited from making any substantive submission since he was unaware of the content of the documents. Accordingly he made no substantive submission, except to say that the applicant’s personal information was already in the public arena. The matter was adjourned.
Consideration
The Tribunal has decided that the 10 July 2013 confidentiality order in relation to the documentary evidence relating to the application for compensation by the applicant will not be amended and Mr Inman’s request for access is denied. The Tribunal is also confirming the confidentiality order in relation to the terms of settlement made under section 42C of the Act.
Documents
In general ‘the hearing of a proceeding before the Tribunal shall be in public’ (Act section 35(1)). However, an exception to this principle applies 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’ (Act section 35(2)). If that test is satisfied the Tribunal may, among other things, prohibit or restrict the publication of ‘matters contained in documents lodged with the Tribunal’ (Act section 35(2)(b)). In refusing access, the Tribunal must give due regard to the reasons why publication or disclosure should be prohibited or restricted (Act section 35(3)). Such a step is a grave one and is not taken lightly.[2]
[2] Re JTMJ and ASIC [2010] AATA 471 at [19].
Mr Inman has argued that there is a public interest in the matter and that much of the medical and work-related evidence concerning the applicant is already in the public arena, having been published in the reports to which he refers. Counsel for the applicant has advised that disclosure is opposed, and counsel for the respondent does not support or oppose disclosure.
There is no explicit reference to the public interest in section 35(2) of the Act, the provision being relied on by the Tribunal. Rather the expression refers only to the ‘confidential nature of any evidence or matter or for any other reason’. Apart from the reference to the need to take account of the ‘confidential nature’ of the material, the discretion granted by section 35(2) is unconfined. In particular the Tribunal is able to take account ‘of any other matter’ it considers relevant. That does not mean that the public interest is not a relevant matter.[3]
[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson & Gaudron JJ; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49.
However, even where there is a statutory prescription to take account of the public interest, the discretion is a broad one.[4] In that context the Full Court of the Victorian Supreme Court said of the expression ‘the public interest’ that it is:
…a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.[5]
[4] Deloiotte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562 at 579 per Lindgren J; Osland v Secretary to the Department of Justice (2010) 116 ALD 1 at 18 per French CJ, Gummow & Bell JJ.
[5] Director of Public Prosecutions v Smith [1991] VR 63 at 76 per Kaye, Fullagar & Ormiston JJ.
The Tribunal in the applications by the applicant settled by consent was not dealing with matters of public interest in the sense discussed by the Full Court of the Victorian Supreme Court. Those issues were extensively canvassed in the reports to which reference was made by Mr Inman. Rather the Tribunal was dealing with sensitive matters of a personal nature. Moreover, these were matters as they existed in 2013, not as they were in 2009. So even though there may have been disclosure of some medical information about the applicant in 2009, these have been supervened by developments in the applicant’s health since that time.
A distinction is made in relation to access to documents held by the Tribunal by non-parties depending on whether access is sought prior to or after a hearing. The Tribunal’s policy is that generally it does not allow a non-party access to documents relating to an application unless a public hearing has been held in the case. Access will only be granted in those circumstances if a Tribunal member is satisfied there is a good reason for doing so. After the hearing, however, documents lodged with the Tribunal are generally disclosed to parties to proceedings and their representatives and, on request, to the public. However, personal information will not be disclosed if the Tribunal has made a confidentiality order restricting disclosure under section 35 of the Act, or disclosure is otherwise restricted by another legislative provision.
In this application, the Tribunal has decided not to permit a non-party to view the documents relating to these matters held by the Tribunal. This approach is consistent with the general approach adopted by the Tribunal when matters have not been made public in a hearing and no arguments presented by Mr Inman have persuaded the Tribunal that an alternative approach should be adopted.
Terms of settlement
Counsel for the applicant has objected to the disclosure of the terms of settlement relating to the claims made by the applicant. The Tribunal has received medical evidence by the applicant’s treating practitioner that the applicant ‘could suffer serious…damage’ and it would aggravate his medical condition should there be further disclosures. In addition the applicant’s treating doctor has provided an opinion in support concluding that it would be ‘reckless’ in terms of his patient’s health to disclose the terms of settlement. The Tribunal has given considerable weight to these views.
The Tribunal concedes that as a decision of the Tribunal, terms of settlement attached to a consent order would normally be public. Nonetheless, in the circumstances, the confidentiality order is to extend to the terms of settlement in this case. That decision takes into account the strongly expressed views of the medical experts which adverted in particular to the terms of settlement, the submission by counsel for the applicant and the Tribunal’s awareness of the potential for serious damage to the applicant’s health in the event of such a disclosure, and the fact that Comcare neither supported nor opposed the application.
In so deciding, the Tribunal is exercising the discretion it has been given that it is desirable, by reason of the confidential nature of the material, not to make the terms of settlement reached by consent prior to a hearing available to a non-party to the matters. Damage resulting from publicity is a relevant factor for the Tribunal to take into account,[6] as too is a serious potential for further harm to health of the person concerned.[7]
[6] Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 at [13]-[14] per Merkel J.
[7] BK v ADB [2003] VSC 129 at [13] per Nettle J. See also National Australian Bank Ltd v KRDV [2012] FCA 543.
Privacy Act 1988 (Cth)
In addition, to disclose the information would be contrary to Information Principle 11 in section 14 of the Privacy Act 1988 (Cth) (Privacy Act). That Principle relates to the disclosure of personal information held by a ‘record-keeper’. The Tribunal is a ‘record-keeper’ for the purpose of the Privacy Act.[8] Disclosure is permitted, as relevant, only if the individual is ‘reasonably likely to have been aware, or made aware…that information of that kind is usually passed to’ the media (Principle 11(1)(a)), or that ‘the individual concerned has consented to the disclosure’ (Principle 11(1)(b)).
[8] Privacy Act 1988 (Cth) section 10.
The applicant through his counsel has not consented. Nor it is likely that he was either aware or had been made aware that the documents in the matter or the terms of settlement would usually be passed to the media. None of the Tribunal’s policy Privacy and confidentiality at the AAT, its Policy Relating to Sections 34D and 42C of the Administrative Appeals Tribunal Act 1975 or its discussion on the website of ‘AAT decisions’ indicates that information contained in terms of settlement are usually made public. In those circumstances, it would be unreasonable to disclose this personal and sensitive information in contradiction to the expressed wishes and the reasonable expectations of the applicant.
Conclusion
Accordingly the Tribunal prohibits access to the documents relating to the matters settled by consent, and to the terms of settlement pursuant to section 35(2)(b) of the Act.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member ......................................[sgd]..................................
Associate
Dated 2 August 2013
Counsel for the Applicant Mr David Richards Advocate for the Applicant Mr Andrew Finlay Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Mr Ben Dube Advocate for the Respondent Mr Stuart Marris Solicitors for the Respondent Sparke Helmore Third Party Self-represented
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