Administrative Appeals Tribunal Act 1975 ss. 33, 35, 40(1A), 40(1B), 40(1C)

Commonwealth Authorities and Companies Act 1997 ss. 5, 17, 34(1), 34(2), 36-40

Commonwealth Authorities and Companies Regulations, r. 4

Commonwealth Services Delivery Agency Act 1997 ss. 3, 7(1), 7(2), 35(1)

Corporations Act 2001

Freedom of Information Act ss. 37(1)(c) and 61

Public Service Act 1999 s. 22

Social Security Act 1991 ss. 23, 1312-1321

Social Security (Administration) Act 1999 ss. 3, 64, 207, 208, 209, 201-210, 234(1), 234(2), 244, Schedule 1, Schedule 5, cll. 1(1) and 1(2)

Social Security (Administration and International Agreements)(Consequential Amendments) Act 1999 s. 2, Schedule 1, item 213

Sobczuk and Carnarvon Medical Service Aboriginal Corporation [1999] AATA 864 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247

DECISION AND REASONS FOR DECISION [2002] AATA 422

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

1. s. 207 of the Social Security (Administration) Act 1999 does not preclude Mr Sladden and Mr Gates, who are employees of Health Services Australia from being required to give evidence in these proceedings; and

2. no general order will be made under s. 35 of the Administrative Appeals Tribunal Act 1975 excluding the applicant from having access to any evidence given to the Tribunal by Mr Sladden and Mr Gates but the respondent has liberty to apply for an order relating to specific passages of evidence.

On 2 November, 2000, the applicant, Mr Robert Dykstra, applied for review of a decision of the respondent, Centrelink, dated 29 August, 2000. That decision granted Mr Dykstra access to 15 documents on his Disability Support Pension file and eight documents (M1-M3 and M5-M9) in the medical envelope. Copies of those documents were sent to him. The decision also refused access to three documents marked M4, M10 and M11 in the medical envelope and did so according to s. 37(1)(c) of the Freedom of Information Act 1982 ("FOI Act"). In so far as it refused Mr Dykstra access to those three documents, it was affirmed by a subsequent decision of a delegate of the principal officer of Centrelink.

2. Before the hearing of the application has been listed, two preliminary matters have arisen. The first is whether a summons can be issued to certain witnesses, who are employed by Health Services Australia Ltd ("HSA"), to require them to appear at the hearing. Should it be possible to issue a summons to those employees or should they be called by Centrelink, the second issue arises. It is whether an order should be made under s. 35 of the Administrative Appeals Tribunal Act 1975 ("AAT Act").

3. For the purposes of deciding the preliminary point, I will set out the history of the matter as I presently understand it and the role of Centrelink and HSA.

4. The Commonwealth Services Delivery Agency, also known as Centrelink, was established on 1 July, 1997 by the Commonwealth Services Delivery Agency Act 1997 ("CSDA Act"). Its Chief Executive Officer may enter arrangements with the principal officer of a Commonwealth authority for the provision of Commonwealth services (CSDA Act, s. 7(1)). "Commonwealth services" mean "... a service, benefit, program or facility for some or all members of the public that is provided for by the Commonwealth, whether under an enactment or otherwise" (CSDA Act, s. 3). Arrangements may include arrangements for doing anything incidental or related to the provision of the Commonwealth services e.g. making specified employees or classes of employees available to exercise powers or perform functions delegated to them under specified enactments (CSDA Act, s. 7(2)). Such arrangements have been entered into between the principal officer of the Department of Family and Community Services ("Department") and the Chief Executive Officer of Centrelink in relation to pensions, benefits and allowances paid or payable under the Social Security Act 1991 ("1991 Act").

5. Pursuant to s. 234(1) of the Social Security (Administration) Act 1999 ("Administration Act"), the Secretary of the Department of Family and Community Services ("the Secretary") may delegate all or any of his or her powers under the social security law (i.e. certain Acts including, for the purposes of this case, the Administration Act and the 1991 Act (Administration Act, s. 3)) to an officer. Pursuant to s. 234(2), he may also delegate them to the Chief Executive Officer of Centrelink ("the CEO") or to an employee of Centrelink. If the Secretary does delegate his powers to the CEO or to an employee of Centrelink a power under the social security law to give the Secretary or the Department a document or information, the delegate may, in exercising that power, require that it be given to the CEO or to Centrelink, as the case may be (Administration Act, Schedule 5, cll. 1(1) and (2)).

6. On the basis of a letter written by HSA to Mr Dykstra on 11 September, 2000, I find that HSA is incorporated under the Corporations Act 2001 ("Corporations Act") and is wholly owned by the Commonwealth. Before leaving this aspect, I note that HSA's letter also states that it was established by an Act of the Commonwealth Parliament. No Act was named and I have been unable to find such an Act. For the reasons I gave in Sobczuk and Carnarvon Medical Service Aboriginal Corporation [1999] AATA 864 (at paragraphs 13-27), in the absence of such an Act and without more, I do not consider that HSA has been established by an Act although it has been incorporated under the Corporations Act.

7. On the same basis, I also find that the staff of the former Australian Government Health Services were transferred to it when HSA was established in 1997. Its staff are not employed under the provisions of the Public Service Act 1999 ("Public Service Act"). On the basis of a further letter dated 19 July, 2000 from HSA to Mr Dykstra, I find that there is a contract in existence between HSA and Centrelink. Pursuant to that contract, medical practitioners and psychologists employed by HSA provide to Centrelink a medical or psychological report concerning people whom Centrelink refers to it. Those employees of Centrelink holding the appropriate delegations from the Secretary may, in accordance with s. 64 of the Administration Act, require a person to undergo a medical, psychiatric or psychological examination.

8. Mr Dykstra receives a Disability Support Pension. In June, 2000, his eligibility for that pension was reviewed by Centrelink and he was referred to HSA for a psychological assessment. Mr Dykstra attended the appointment that was arranged for him and a report containing the psychological assessment was written. The report was given to Centrelink. At the same time, HSA asked Centrelink that it not release the report to Mr Dykstra.

9. By a letter dated 4 July, 2000, Mr Dykstra requested Centrelink for access to all of the documents making up the Disability Support Pension file that it held in his name. He has been granted access to all documents in that file apart from the three I have already identified. For the purposes of deciding this point, those three documents may be described in the following broad terms: M4 is a report of the Psychological Assessment by HSA relating to Mr Dykstra's appointment on 28 June, 2000 and prepared by the Senior Clinical Psychologist, Mr Sladden; M10 is a record of a telephone conversation between HSA and Centrelink on 24 July, 2000; and M11 is a written statement from HSA dated 27 July, 2000.

10. Mr Dykstra, who represents himself, has expressed the view that Mr Sladden and Mr Andy Gates who, is the Business Manager of HSA, should be required to give evidence at the hearing of his application and be questioned by him. Both Mr Sladden and Mr Gates are employed by HSA. Representing Centrelink, Mr Underwood has advised that Centrelink does not intend to call any witnesses. Mr Underwood further submits that officers of HSA cannot be compelled to give evidence. If his submission is not accepted or as an alternate way of proceeding in the matter, he submits that their evidence should be heard in the absence of Mr Dykstra and that it not be made available to Mr Dykstra. Mr Dykstra vehemently opposes his being excluded from any part of the hearing or not having access to any part of the evidence.

11. Section 40(1A) of the AAT Act provides that, for the purposes of the hearing of a proceeding in the Tribunal, a person may be summonsed to appear before the Tribunal at that hearing to give evidence, to give evidence and to produce certain books, documents or things or to produce those certain books, documents or things. With regard to the production of certain books, documents or things, a person may be required by summons to produce them at a directions hearing (AAT Act, s. 40(1B)). Those who may issue a summons for one or other of these purposes are the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar (AAT Act, s. 40(1A)). A request to issue a summons must not be refused unless the decision to refuse is made by a presidential member or a senior member or unless the refusal is authorised by a presidential member or a senior member (AAT Act, s. 40(1C)).

12. Section 207 of the Administration Act provides that:

"An officer must not, except for the purposes of the social security law or the Farm Household Support Act 1992, be required:

(a) to produce any document in his or her possession; or

(b) to disclose any matter or thing of which he or she had notice;

because of the performance or exercise of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992, to:

having power to require the production of documents or the answering of questions."

13. Despite the operation of s. 207, s. 208 of the Administration Act goes on to give the Secretary power to disclose information if he certifies that it is necessary in the public interest to do so in a particular case or class of cases (s. 208(1)(a)). He may also disclose any information to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates (s. 208(1)(b)(ii)). If the Secretary gives a certificate, he must do so in accordance with the guidelines determined by the Minister under s. 209 (s. 208(2)). He has not chosen to do so in the circumstances of this case. No guidelines apply if the Secretary discloses under s. 208(1)(b)(ii) but again he has chosen not to release the information. Instead, Centrelink is refusing access and relying on the provisions of the FOI Act to do so. The power given by s. 208 of the Administration Act to release information does not override any right that Centrelink may have to refuse access under the provisions of the FOI Act.

14. The word "officer" is not defined in the Administration Act but s. 3(2) of that Act provides that "Unless a contrary intention appears, an expression that is used in the 1991 Act has the same meaning, when used in this Act, as in the 1991 Act." The reference to the 1991 Act is a reference to the 1991 Act (Administration Act, s. 3(1) and Schedule 1). The word "officer" is used in the 1991 Act and is defined in s. 23(1) to mean:

"... a person performing duties, or exercising powers or functions under or in relation to this Act, the Administration Act, the Farm Household Support Act 1992 or subsection 91A(3) of the Child Support (Assessment) Act 1989 and, in the case of sections 1312 to 1321 of this Act includes:

(b) a person who is or has been appointed, or employed by the Commonwealth and who, as a result of that appointment or employment may acquire or has acquired information concerning a person under this Act or the Farm Household Support Act 1992; and

(c) a person who, although not appointed or employed by the Commonwealth, performs or did services for the Commonwealth and who, as a result of performing those services may acquire or has acquired information concerning a person under this Act or the Farm Household Support Act 1992."

15. Sections 1312 to 1321 have been repealed by virtue of the Social Security (Administration and International Agreements)(Consequential Amendments) Act 1999 ("1999 Amendment Act") with effect from 20 March, 2000 (s. 2, Schedule 1, item 213). They were concerned with the use of, and access to, protected information and with offences concerned with the use and disclosure of protected information. "Protected information" was defined as meaning information about a person that is, or was, held in the records of the Department of Family and Community Services or information that there was no information about a person held in those records (1991 Act, s. 23(1)). The substance of these provisions now appears in ss. 201 to 210 of the Administration Act and the effect of s. 244 of the Administration Act is that regard is to be had now to ss. 201 to 210 when reading s. 23(1).

16. Are Mr Sladden and Mr Gates officers? Mr Underwood relied on paragraph (b) of the definition and submitted that they were employed by the Commonwealth and had acquired information regarding Mr Dykstra under the 1991 Act. Considering first the question by whom they are employed, Mr Sladden and Mr Gates are persons employed by HSA. They are not employed under the Public Service Act, which specifically empowers an Agency Head to engage, on behalf of the Commonwealth, persons as employees for the purposes of an Agency (s. 22). Before leaving paragraph (b), I note that, in giving the Secretary power to delegate his powers, ss. 234(1) and 234(2) distinguish between officers and employees of Centrelink (see paragraph 5 above). Staff of Centrelink are employed under the Public Service Act (CSDA Act, s. 35(1)) and so are presumably employed on behalf of the Commonwealth. Applying s. 23(b) of the definition of "officer", it would follow that an employee of Centrelink is an officer for the purposes of social security law. A distinction is made, however, in s. 234 between an officer and an employee of Centrelink. That raises the question whether employment under the Public Service Act necessarily means that, for the purposes of the social security law, a person is employed by the Commonwealth. It is not necessary to answer that question in this case. Whether persons may be employed by the Commonwealth other than according to terms of the Public Service Act is also not a matter that it is necessary to explore in this case.

17. As a body incorporated under the Corporations Act, HSA is a legal entity and separate from the Commonwealth as is any other body incorporated under the Corporations Act. HSA is wholly owned by the Commonwealth but to say that its employees are therefore employed by the Commonwealth is akin to saying that those employed by BHP are employed by its shareholders. Without my being referred to any authorities to suggest a contrary conclusion, I have concluded that Mr Sladden and Mr Gates are not currently employed by the Commonwealth. If they were formerly employed by the Australian Government Health Services, it may be that they were then employed by the Commonwealth. I do not need to explore that path, though, for neither acquired the information sought by Mr Dykstra until in or after June, 2000 when he was referred to HSA and so at a time after they ceased any employment with the Commonwealth and commenced employment with HSA. It follows that they are not officers within the meaning of paragraph (b) of the definition of "officer" in s. 23(1) of the 1991 Act.

18. That brings me to paragraph (c) of the definition. Are Mr Sladden and Mr Gates persons who performed services for the Commonwealth and who, as a result of performing those services, acquired information concerning Mr Dykstra under the 1991 Act? Acting as a delegate of the Secretary of the Department and in accordance with s. 64 of the Administration Act, Centrelink had the power to require Mr Dykstra to undergo a medical, psychiatric or psychological examination in exercising its power to review his entitlement to a Disability Support Pension. In the context of the Administration Act, it seems to me that conducting such a medical, psychiatric or psychological examination can also be described as performing services in the sense that "... duties or work for another ..." (The Macquarie Dictionary) have been carried out. As Mr Sladden is the person who conducted the psychological examination, it follows that he is the person who performed the services. He performed them for the Commonwealth as he performed them for Centrelink, which requested them on the basis of a delegation from the Secretary of the Department. In performing those services, I am satisfied that Mr Sladden acquired information concerning Mr Dykstra under the 1991 Act. It follows that he is an officer for the purposes of s. 23(1) of the 1991 Act and so for the purposes of s. 207 of the Administration Act.

19. Mr Gates is in a different position from Mr Sladden. As the HSA's Business Manager, there is no evidence that he performed services for Centrelink and so for the Department and the Commonwealth. The title of the position he holds in HSA suggests that he manages the business of HSA and perhaps coordinates the performance of the services offered by HSA and performed by other employees such as Mr Sladden. There is no evidence that he is performing those management services to Centrelink. Coordination of the provision of services of others or management of HSA so that services may be provided to Centrelink does not amount to his performing those services for Centrelink and so for the Commonwealth.

20. On the evidence, Mr Gates is performing services for HSA. HSA is a corporation owned by the Commonwealth, he is performing those services for that corporation. The Minister for Finance and Administration and the Parliamentary Secretary to the Minister for Health and Ageing are the shareholders and so the Commonwealth has a controlling interest in the company. It is a Commonwealth company within the meaning of s. 34(1) of the Commonwealth Authorities and Companies Act 1997 ("CAC Act"). It is also a wholly-owned Commonwealth company (CAC Act, s. 34(2)). As such, it has reporting obligations and its accounts are audited by the Auditor-General (CAC Act, ss, 36-38). It is required to prepare budget estimates for each financial year and for any other periods directed by its responsible Minister i.e. the Parliamentary Secretary to the Minister for Health and Ageing (CAC Act, s. 39). If HSA proposes to undertake such activities as forming a company, participating in a significant partnership, acquiring or disposing of a significant business or commencing or ceasing to engage in a significant business activity, it must advise the responsible Minister (CAC Act, s. 40). That Minister may give written guidelines to HSA as to whether a proposal comes within the terms of s. 40.

21. HSA is also a government business enterprise ("GBE") as it has been prescribed as such by r. 4 of the Commonwealth Authorities and Companies Regulations ("CAC Regulations")(see also CAC Act, s. 5). As a GBE, HSA is required to prepare a corporate plan pursuant to s. 17 of the CAC Act. That plan must be prepared each year for the following three year period and must include details of the matters specified in s. 17(6) as well as any matters required by the responsible Minister (s. 17(7)). Among the matters specified are the objectives of HSA, its business strategies and dividend policy, a review of its performance against previous plans, an analysis of factors likely to affect achievement of its targets or create a significant financial risk to the HSA or to the Commonwealth and its industrial relation strategies (s. 17(5)). The responsible Minister may give written guidelines to HSA's directors that are to be used by the directors in deciding which matters are covered by s. 17(5).

22. That brings me back to Mr Gates' position when he performs administrative services as an employee of HSA. In the ordinary meaning of the word "for", he is acting "in the interest of" (The Macquarie Dictionary, 2nd edition, 1991) HSA. As a wholly-owned Commonwealth corporation, it seems to me that HSA is acting "in the interest of" the Commonwealth. While it has certain latitude in the manner in which it conducts its business, the provisions of the CAC Act indicate that it must do so according to the restrictions imposed by that legislation and must respond to the requirements of the responsible Minister, and so to the Commonwealth, in its corporate planning. I have concluded, therefore, that HSA is acting for the Commonwealth and so Mr Gates, in acting for it, is acting for the Commonwealth.

23. Before he can be an "officer" within the meaning of paragraph (c) of the definition of an "officer" in the 1991 Act, Mr Gates must be a person "who, as a result of performing those services may acquire or has acquired information concerning a person" under, among others, the 1991 Act. There is no evidence that he either has acquired or may acquire such information. It may be presumed, though, that Mr Gates obtained information that Mr Dykstra is a person receiving a Disability Support Pension under the 1991 Act. He is, therefore, an officer for the purposes of the 1991 Act and so of s. 207 of the Administration Act.

24. Although I have concluded that both Mr Sladden and Mr Gates are officers as that term is defined in s. 23(1) of the 1991 Act, the protection afforded by s. 207 of the Administration Act does not extend automatically to every officer. It extends only to preventing such a person from being required to produce a document in his or her possession or to disclose any matter or thing of which he or she has had notice because of the performance or exercise of his or her duties, functions or powers under the social security law. This does not mean that an officer is prevented from being required to give evidence about every aspect of his or her duties and all information he or she acquires as an officer. It is limited as I have said. That means that regard must be had to the reason why their attendance to give evidence is sought. In the context of this case, it may be thought that their evidence is relevant to whether the documents for which exemption is claimed are exempt under s. 37(1)(c) of the FOI Act. That section provides that:

"A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(c) endanger the life or physical safety of any person."

25. Whether or not Mr Sladden or Mr Gates has any duties, functions or powers under the social security law was not a matter that was addressed in written submissions. I sought additional submissions from Mr Underwood but was unable to do so from Mr Dykstra. Mr Underwood submitted that Centrelink's function is to provide the Disability Support Pension to suitably qualified persons and its duty, as delegated by the Secretary, is to investigate and determine whether a claimant is qualified. Both the functions and the duties can only be satisfied by obtaining an opinion from a suitably qualified medical practitioner. HSA was contracted to examine Mr Dykstra. Both Mr Sladden and Mr Gates are entrusted with information by virtue of contractual arrangements between Centrelink and HSA.

26. It seems to me that neither Mr Sladden nor Mr Gates has any duties or powers under the social security law. No provision of the social security law requires or authorises or enables them to do or make, or refrain from doing or making, any act or decision. Do they have any functions under the social security law? HSA was asked to prepare a report and HSA has, in turn, referred the matter to Mr Sladden. It was asked for it so that an officer in Centrelink holding the appropriate delegation from the Secretary might make a decision. Obtaining such a report is clearly a function of Centrelink under the social security law for it could, pursuant to s. 64 of the Administration Act, require Mr Dykstra to undergo a medical, psychiatric or psychological examination. Preparing the report is a function of HSA but it is not a function of HSA "under the social security law" but under, or as a consequence of or arising by virtue of, the contractual arrangements entered with the Chief Executive of Centrelink. If that is the case and on the submissions and evidence available to me, I do not consider that Mr Sladden has obtained any information because of the performance of his functions under the social security law but because of his position as an employee of HSA and its arrangements with Centrelink. It would follow that Mr Gates, who on the evidence available to me was not involved in the preparation of the report, would not have obtained information because of the performance of any functions under the social security law. In addition, it would follow that neither Mr Sladden nor Mr Gates has had notice of any matter or thing or had a document in his possession because of the performance of his duties, functions or powers under s. 207 of the Administration Act. Consequently, both can be required to attend to give evidence in these proceedings.

27. Although I would not, on the basis of the submissions and material to date, propose to authorise the refusal of a request to issue a summons to either Mr Sladden or Mr Gates were one to be made, I do not intend to issue a summons myself. I have reached that view after weighing the role of the Tribunal to reach the correct and preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 per Smithers J at 599 and per Bowen CJ and Deane JJ at 589) and s. 61 of the FOI Act, which provides that the agency has the onus of establishing that a decision given in respect of a request was justified or that the Tribunal should give a decision adverse to an applicant. It is possible that my issuing the summons could lead to there being evidence that will enable me to reach a more considered decision than would otherwise be the case. In many cases, that factor would persuade me to issue the summons. In the particular circumstances of this case, it does not persuade me. Unlike the majority of the Tribunal's jurisdictions, this is a jurisdiction in which Parliament has directed that the agency claiming exemption and so refusing access (i.e. Centrelink in this case) carries a burden of proof. To date and in this case, it has chosen not to summons witnesses who may be able to assist it to discharge that burden. Fairness to both parties dictates that Centrelink live with the consequences of its choice whatever those consequences may be. Mr Dykstra will not be disadvantaged by witnesses from HSA not being summonsed at the Tribunal's initiative.

28. That brings me to s. 35 of the AAT Act. I summarised the operation of that section in Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169:

"4. The fundamental principle is expressed in s. 35(1) of the AAT Act and that is to the effect that the hearing of a proceeding before the Tribunal shall be in public. A 'proceeding' is defined in s. 3(1) and does not extend to conferences, which are held under s. 34 and which are confidential. So fundamental is the fundamental principle that, as a general rule, the Tribunal is required to take such steps as are reasonably necessary to ensure that the public nature of the hearing of a proceeding is preserved when a person participates in a hearing by telephone, closed-circuit television or any other means of communication (s. 35(1A) and 35A). The only exceptions to the general rule are in relation to the Security Appeals Division (s. 35(1AA) and see s. 35AA), in cases in which the Commonwealth Attorney-General or a State Attorney-General issues a certificate that disclosure would be contrary to public interest on certain grounds or intervenes in the hearing on the same grounds (ss. 36, 36A, 36, 36C and 36D), in cases in which Parliament has made particular provision to the contrary in legislation other than the AAT Act in relation to particular decisions reviewed by the Tribunal (e.g. Migration Act 1958, **s. 501K**) and in cases in which the Tribunal has made an order under s. 35(2) of the AAT Act.

5. Section 35(2) provides that the Tribunal may make certain orders that have the effect of restricting the public nature of the hearing. It may make such orders when it '... 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...' (s. 35(2)). The types of orders that the Tribunal may make are:

'(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

(b) give directions 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; and

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.' (s. 35(2))

6. In considering whether a hearing of a proceeding should be held in private or whether publication, or disclosure to some or all of the parties, of evidence given in, or received by, the Tribunal or of matter in documents lodged in the Tribunal (s. 35(3)) should be prohibited or restricted, the Tribunal must take as the basis of its consideration the principle that it is desirable that the hearing be held in public. That means not only that it is desirable that the proceedings be held in public but also that it is desirable that evidence given in, or received by, the Tribunal and that matter in documents lodged with the Tribunal should be made available both to the public and to the parties. Although this principle is at the foundation of its consideration, the Tribunal is required to give due regard to any reasons given to it as to why the hearing should be held in private or why publication or disclosure of the evidence or of matter in a document lodged with the Tribunal should be prohibited or restricted (s. 35(3))."

29. Also in the Kanina Banner case, I explored the balance that s. 35 requires the Tribunal to reach between the desirability of the Tribunal's proceedings being in public and the contents of material received by, or lodged with, it being available to the public on the one side and the reasons for confidentiality on the other. There is no guidance in s. 35(2) as to how the balance should be reached but guidance is to be found in previously decided cases in the Federal Court and in the Tribunal. I will not repeat the details of the guidance to be gleaned from those authorities but will refer to what was said by Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247:

"... the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.

An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must be 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 were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases - that is to say, where 'the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public' cannot be applied. Some of these exceptional cases are statutorily defined: see, for example, the Insurance Act 1973 s 63(14)." (pages 272-273)

30. Occasionally, the Tribunal has made orders excluding an applicant from having access to material or evidence to which it has regard. Such a step is a grave one and not one taken lightly. That is all the more so because it effectively overrides a basic principle at common law and under the AAT Act that the content of any documents and any evidence received by the Tribunal should be made available to the public and to all the parties (s. 35(3)). Exclusion was a step taken in Re Pochi when Brennan J concluded that a party could only be excluded when:

"... an applicant's interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: 'When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.'

In the present case, the public interest in protecting the confidentiality of the sources of information obtained to combat crime conflicted with the interests of the applicant in meeting the case made against him. The public interest prevailed, as it did in Hosenball's case ..." (page 273)

31. In this case, it is appropriate that the power under s. 35 of the AAT Act be exercised to maintain the confidentiality of the three documents in issue until I have decided whether or not they are exempt from disclosure under the FOI Act. That would mean that Mr Dykstra would be excluded from the hearing if any evidence were given as to the content of the three documents. To do otherwise would render the proceedings pointless for Mr Dykstra may as well be given access to the documents from the start. Until the evidence unfolds, I am unable to determine whether an order should be made in relation to any other evidence. I would not expect that general evidence directed to why access to the documents would have the harm or lead to the consequences identified in the exemption provisions of the FOI Act would be of a nature justifying the exclusion of Mr Dykstra from hearing it. It is important that he be given access to as much evidence as possible if any is given. He should consider that evidence and base his own evidence on it. Even if it should transpire that he is not given access to the documents he seeks, it is important that he be given the best possible opportunity to understand the evidence on which the decision is made.

32. In reaching this conclusion, I am very aware of the concerns that any witnesses and others may have about Mr Dykstra's behaviour in his dealings with those employed in Centrelink and HSA. If his behaviour has been equivalent to that displayed on occasion in the Tribunal, it has not been acceptable in any context. There may be medical or psychological reasons for his engaging in that behaviour. If there are such reasons, they make his behaviour more understandable but no easier to cope with. For all that, I do not consider that Mr Dykstra's behaviour is a reason to deny him access to some or all of the evidence on which his application is to be decided. Should it be relevant at the hearing, it is a matter to be dealt with under s. 33 of the AAT Act.

1. s. 207 of the Social Security (Administration) Act 1999 does not preclude Mr Sladden and Mr Gates, who are employees of Health Services Australia from being required to give evidence in these proceedings; and

2. no general order will be made under s. 35 of the Administrative Appeals Tribunal Act 1975 excluding the applicant from having access to any evidence given to the Tribunal by Mr Sladden and Mr Gates but the respondent has liberty to apply for an order relating to specific passages of evidence.

I certify that the thirty-three preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: ....................................................