THOMAS EDWARDS and SECRETARY, DEPARTMENT OF HEALTH AND AGEING Ms N Isenberg, Senior Member

[2010] AATA 881

Administrative Appeals Tribunal

INTERLOCUTORY DECISION AND REASONS FOR DECISION [2010] AATA 881

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1416

GENERAL ADMINISTRATIVE DIVISION		)
Re		THOMAS EDWARDS

Applicant

And SECRETARY, DEPARTMENT OF HEALTH AND AGEING

Respondent

INTERLOCUTORY DECISION

Tribunal Ms N Isenberg, Senior Member

Date10 November 2010  

PlaceSydney

Decision Interlocutory relief sought by the Applicant to preclude the Respondent from access to documents produced by the University of Sydney in the folder marked ‘C’ is refused.  The Respondent is therefore to have immediate access to the folder marked ‘C’.

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

N Isenberg
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Confidentiality – documents in relation to proceedings in another Tribunal – whether access should be prohibited – issue of ‘statutory rights’ – access to documents granted.

Administrative Appeals Tribunal Act 1975, s 35

Freedom of Information Act 1989

Privacy and Personal Information Act 1988

Thomas Edwards and Department of Health and Ageing [2010] AATA 768

REASONS FOR DECISION

10 November 2010 Ms N Isenberg, Senior Member

Background

1.      The background to this matter is set out in my decision in Thomas Edwards and Department of Health and Ageing [2010] AATA 768.

2.      At the outset of the directions hearing of this matter, Mr Edwards took issue with my description in the previous decision of what had transpired in relation to the contract with the Commonwealth under the Medical Rural Bonded Scholarship Scheme (MRBSS). Mr Edwards submitted that he had ‘finalised’ his contract with the Respondent.  For the purposes of this application, that interpretation is a matter of semantics and is irrelevant to my consideration.

3.      The Respondent, in the course of preparation of its case before the Tribunal, summonsed material from the University of Sydney and three volumes of documents (marked ‘A’, ‘B’ and ‘C’) were produced. 

4. After inspecting folders ‘A’ and ‘B’, Mr Edwards sought orders under section 35 of the Administrative Appeals Tribunal Act 1975 (the Act) so as to preclude the Respondent from having access to some of the documents.  On 6 October 2010 in Thomas Edwards and Department of Health and Ageing [2010] AATA 768 I declined to grant the interlocutory relief sought by Mr Edwards relating to confidentiality in respect of most of the documents in Folders ‘A’ and ‘B’.

5.      Folder ‘C’ was marked as confidential and a covering letter dated 12 August 2010 was provided by the solicitors for the university to the effect that the folder included documents subject to a confidentiality order of a Tribunal.

6.      Mr Edwards had speculated, in the course of the previous interlocutory hearing, that the documents contained in folder marked ‘C’ may relate to his Freedom of Information proceedings before the New South Wales Administrative Decisions Tribunal (ADT), but could not be sure if that were the case until he had inspected them.

7. On 23 September 2010 I directed that first access be granted to Mr Edwards to the returned documents in the folder marked ‘C’ from 22 September 2010. After inspecting the documents, Mr Edwards sought orders under section 35 of the Act so as to preclude the Respondent from having access to all of the documents in folder marked ‘C’.

consideration

8.      Mr Edwards did not concede that the documents in folder marked ‘C’ related to him.  On examination of the documents though, it was clear to me that they did relate to him. 

9.      Mr Edwards submitted that, to the extent that the documents may relate to him, he had ‘statutory rights’ which precluded their disclosure to the Respondent.  Notwithstanding that I invited him several times to identify those ‘statutory rights’, he did not do so, other than to say that the ADT is a creature of statute.  So as to further illustrate his submission, Mr Edwards used the example that it was a ‘statutory right’ of a Respondent in this Tribunal to summons material.

10.     In Edwards and Secretary, Department of Health and Ageing [2010] AATA 768, I reviewed the relevant legislation and law as to the Tribunal’s power to make confidentiality orders.

11.     In this application I carefully examined the documents in the folder marked ‘C’.  It appears that Mr Edwards sought amendment under both the Freedom of Information Act 1989 (NSW) and Privacy and Personal Information Act 1988 (NSW) of the university’s records in relation to his participation in the MRBSS.  In many respects that application is in similar terms to the substantive matter presently before the Tribunal.  When his application was refused, Mr Edwards sought review by the ADT.  In the end result there were three matters heard in the ADT – two in its original jurisdiction and one appeal.  In each matter Mr Edwards name was anonymised.  The opening paragraph of each original matter reads:

“In these reasons the names of private individuals, and other information which might identify them, have been anonymised so as to preserve the privacy of their personal affairs.”

12.     No statutory basis was cited as the reason for the anonymisation.

13.     However, the ADT has a Practice Note dated 3 September 2003 in relation to publication, anonymisation and suppression.  Relevantly, it contains the following:

“1.4If a party or witness wishes to have any aspect of a case suppressed, including their name, they need to make a formal application to the Tribunal under section 75 of the Administrative Decisions Tribunal Act 1997. The application will be considered by the Tribunal, which ordinarily would give all parties the opportunity to make submissions on the scope of suppression and any restrictions on publication.

1.5The Tribunal may make a suppression order of its own motion.”

14. As far as could be ascertained from the available material, there was no indication that any formal application had been made under section 75 of the Administrative Decisions Tribunal Act 1997.  That section provides:

“75     Proceedings on hearing to be conducted in public

(1)If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.

(2)However, if 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, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a)an order that the hearing be conducted wholly or partly in private,

(b)an order prohibiting or restricting:

(i)the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii)the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b1)an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c)an order 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,

(d)an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings 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 proceedings.

(2A)The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.

(2B)The Tribunal may from time to time vary or revoke an order made under subsection (2).

(3)Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private.”

15.     Similarly, there was no indication that the Tribunal had made a suppression order of its own motion.  Indeed none of the decisions contains any publication restriction.

16.     The Practice note continues:

“2.3     Additionally it is the Tribunal’s policy to anonymise the name of the applicant in certain types of cases.  The applicant’s name is replaced with a set of initials that are not those of the applicant.  In some instances this anonymisation will extend to other parties or witnesses in the case, depending on the circumstances.

...

2.3.4 In all applications under the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 the applicant’s names are anonymised in lists and decisions. An applicant may agree to having his or her name published.”

17.     It appears, in the absence of orders, that the anonymisation has taken place solely on the basis of the ADT’s policy as stated in the Practice Note.  That does not, in my view, prevent access being provided in the present matter to the Respondent to those decisions, or the material which has been produced in association with those decisions.

18.     Mr Edwards further submitted that it was questionable as to whether the documents were within the scope of the summons in any event.  The Respondent submitted that it should have access to whatever documents the university considered relevant, as its role is to assist the Tribunal in coming to a view with regard to the basis on which Mr Edwards held his place in the university’s medical program.  If the documents are likely to assist the Tribunal in coming to its view, then they will be tendered; if they do not assist, then they will not be tendered.  Without examining the documents, the Respondent submitted, it would be limited in its ability to assist the Tribunal. 

19.     As to relevance, I note there were documents generated by Mr Edwards himself, including documents in which Mr Edwards sought to have the university amend its records, and the university’s response.  This material was relevant, in my view, in that the Respondent’s position seems to be significantly reliant upon that of the university.  Consequently, as I have said before, what the university has to say about its understanding of Mr Edwards’ status is clearly relevant in the matter before this Tribunal.

20.     As I discussed in Thomas Edwards and Department of Health and Ageing [2010] AATA 768, Mr Edwards has put in issue his status at the university. Having examined all the documents which are the subject of Mr Edwards’ claim for confidentiality, and taking into account the parties’ submissions, I am not persuaded that the material should be confidential. I do not consider that it is appropriate for the Respondent to be precluded from having access to the material provided by the university. Accordingly, I decline to grant the interlocutory relief sought by Mr Edwards relating to confidentiality. The Respondent is therefore to have immediate access to the documents in folder marked ‘C’.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ................[sgd]..................................................
             Associate

Date of interlocutory hearing:          26 October 2010
Date of Decision:  10 November 2010
The Applicant:  Self represented

Solicitor for the Respondent:          Mr J Davidson