Townsend; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1638

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1638

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2007/3

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And GARY JOHN TOWNSEND

Respondent

INTERLOCUTORY DECISION

Tribunal Associate Professor B W Davis

Date7 August 2007

PlaceHobart

Decision The respondent’s application for confidentiality is dismissed.  The Tribunal orders that evidence relating to the respondent’s intellectually impaired daughter be submitted in writing and treated as confidential in hearings and publication of decision and reasons for decision.

.       (Sgd) B W Davis AM

Part-Time Member

CATCHWORDS

Social Security – Newstart debts – SSAT decision – de-novo review by AAT – whether confidentiality should be granted – appeal dismissed – order granting limited confidentiality to one individual

LEGISLATION

Administrative Appeals Tribunal Act 1975, Section 35

AUTHORITIES

Re Beadle and DGSS (1984) 6 ALD 1

Re Ivovic (1981) 3 ALD N95

Dranichnikov and Centrelink (2003) FCAFC 133

Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

Russell and Russell (1976) CLR 134

Rigney and SDFCS (2000) AATA 640

Angelakos and SDEWR (2007) FCA 25

Re SDEWR and QX2006/20 (2002) AATA 1531

REASONS FOR DECISION

7 August 2007 ASSOC PROF B W DAVIS           

1. Mr Gary Townsend has requested that the hearing in this matter be held in private and that publication and disclosure of all materials relating to the proceedings be restricted, under provisions of Section 35(2) of the Administrative Appeals Tribunal Act 1925.  The principal reason cited by Mr Townsend (the respondent in this matter) is that some material relating to an intellectually handicapped daughter ought not be disclosed, since it would have a detrimental effect on him, his daughter and the family as a whole.

2. The applicant (DEWR) opposes the grant of confidentiality; stating that the clear intent of Section 35(2) of the Act is that all hearings are to be conducted in public, except for special circumstances which they claim does not exist in this case.

3.      The power of the Tribunal to grant confidentiality is discretionary and as noted by Brennan J in Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, such powers should be ‘… exercised, albeit sparingly.’  Furthermore it was stated that to exercise the power, strict criteria applied:

(a)there must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon a party, a witness or a person giving information if the proceedings are in public; or

(b)it must clearly appear that publication of proceedings would be contrary to the public interest; or

(c)it must appear that the information to be given in the proceedings is of a kind described by Section 36 of the Act (Attorney-General’s certificate).

4.      The application for confidentiality submitted by Mr Townsend contains background information about debt claims by Centrelink, a waiver granted by the SSAT and an application by DEWR for de-novo review by the AAT.

5.      Mr Townsend is a 44 year old man, estranged from his partner who is currently caring for his five children, because he has medical, legal and financial problems.  A daughter suffers from intellectual disability which resulted in anti-social behaviour during her adolescent years, but has improved somewhat since.  He considers she still does not fully comprehend the social and personal repercussions of her behaviour, has poor decision-making abilities and requires ongoing monitoring, care and support.  He is concerned that disclosure of sensitive medical information to the public could have a deleterious impact on her emotional, physical and social well being, given that she is now living in a small and close knit community.

6.      His claims were further explained by Ms Rose Diamond of the Launceston Community Legal Centre, acting as his delegate, at a confidentiality hearing conducted by the Tribunal in Launceston on 3 August 2007.  Ms Diamond agreed AAT hearings were and should be openly conducted in the public interest, but special circumstances could arise and this was the situation in the current case.

7.      She drew attention to two submissions, one a medical report by Dr Margaret Oetterli dated 10 May 2007, indicating that if some earlier assessments of Mr Townsend’s daughter’s anti-social behaviour were disclosed, it could prove psychologically damaging to her.  The second report was by Ms Janine Downward, a guidance officer/psychologist of the State Department of Education, indicating that exposure of Ms Townsend’s intellectual and behavioural problems could undermine her confidence and trust in the therapeutic process she was currently undertaking.  Ms Diamond commented that such expert opinion should not be ignored and there were cases such as Russell v Russell (1976) CLR 134 where it was judged in the interests of privacy, proceedings should occur in a closed court.

8.      In presenting the case for the applicant (DEWR) Mr Brian Sparkes said the Act was quite specific in emphasing the importance of open hearing so that justice could be seen to be done.  Mr Townsend’s situation was no different to that of many others appearing before the Tribunal, indeed the AAT routinely deals with matters often far more revealing than in the respondent’s case.

9.      Following Pochi it cold be argued no disadvantage would arise for Mr Townsend, as his claims were speculative about potential impacts on his daughter, with no convincing evidence tendered.  Even Dr Oetterli’s report was based on a situation two or three years ago and treatment for an infection and not psychological problems.  There were no special circumstances in Mr Townsend’s case, which was really about money owing to Centrelink, not his daughter.  It was the Secretary’s contention that rather than being contrary to the public interest, publication on a substantive matter would provide guidance to future decision-makers.

10.     Having weighed the evidence submitted by the parties the Tribunal is of a view that no compelling case has been made out for confidentiality, other than a recognition that if possible means should be found to protect some information about Mr Townsend’s intellectually impaired daughter.  The SSAT managed to achieve this by taking into account various reports about the daughter, but in a situation where SSAT decisions are confidential and unlikely to be publicly known.  One way of protecting details of the daughter’s situation from becoming public now, would be for the Tribunal to require such evidence and information to be in writing, marked confidential, heard in private, with no details provided in decision or reasons for decision.  This would require the goodwill of both parties, but is likely to prove acceptable.

DECISION

11.     The application for confidentiality is dismissed, however the Tribunal orders that evidence and material relating to Mr Townsend’s intellectually handicapped daughter be in writing and treated as confidential in both the hearing and any publication of decision and reasons for decision.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: H Healy (Administrative Assistant)

Date/s of Hearing  3 August 2007
Date of Decision  7 August 2007
Counsel for the Applicant         Mr Brian Sparkes
Solicitor for the Applicant          Centrelink Legal Services
Counsel for the Respondent     Ms Rose Diamond
Solicitor for the Respondent     Launceston Community Legal Centre