PRACTICE AND PROCEDURE - application for confidentiality order - Tribunal not satisfied that there are sufficient reasons for the order - request for confidentiality order declined by the Tribunal

Administrative Appeals Tribunal Act 1975 (Cth)

Azzopardi and Secretary, Department of Social Services (Social services second review) [2019] AATA 105 (8 February 2019)

XCFB and National Disability Insurance Agency [2022] AATA 4121 (2 December 2022)

1. Mr Librino applied to the Tribunal for review of a decision dated 9 May 2023 by the National Disability Insurance Agency (the Agency), made on internal review, which confirmed an original decision that he does not meet the access criteria to become a participant in the National Disability Insurance Scheme (NDIS).
2. By email dated 30 May 2023, Mr Librino requested that information regarding his case remain confidential: not available to the public, or to anyone without his prior written consent.
3. The Agency provided written submissions dated 22 June 2023, in which it requested the Tribunal not to make an order under section 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) for confidentiality, privacy and non-publication.
4. Both parties attended an interlocutory hearing by telephone on 27 June 2023 regarding Mr Librino's application for confidentiality orders. Mr Librino was self-represented. The Tribunal explained to him that the interlocutory hearing could be adjourned if he wanted time to seek legal advice or disability advocacy support or, indeed, if he wanted further time to consider the questions raised in the Agency's submissions. It was also explained to him that the interlocutory hearing could be adjourned if he wanted time to provide further written submissions in support of his request. He told the Tribunal that he was content for the interlocutory hearing to proceed as scheduled.
5. Having heard the parties' oral submissions, the Tribunal directed that the request for a confidentiality order be declined. The Tribunal indicated that it would subsequently provide written reasons for the decision.

1. Section 35 of the AAT Act is in the following terms:

35 Public hearings and orders for private hearings, non‑publication and non‑disclosure

(1) Subject to this section, the hearing of a proceeding before the Tribunal must be in public.

(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.

(3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure 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:

(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.

Not applicable to Security Division review of security assessment

(6) This section does not apply in relation to a proceeding in the Security Division to which section 39A applies.

1. The principles which apply for the making of confidentiality orders, and previous decisions of the Tribunal and the Courts about those principles, were summarised by the Tribunal (Senior Member Puplick AM) in Azzopardi and Secretary, Department of Social Services (Social services second review) [2019] AATA 105 (8 February 2019), relevantly including the following:
   1. It will be clear from the express terms of the Act that, unless there are clear reasons why confidentiality orders should be imposed, hearings and decisions should be open to the public or made public. It is from this point that any consideration of the issuing of confidentiality orders must proceed...
   2. Where there is a broad public interest in preserving the confidentiality of names or the positions or details of individuals or companies, such orders can be granted, especially if the order is one with only short-term application...
   3. Similarly, it may be appropriate for confidentiality orders to be made where matters relate to Protection Visas or refugee claims or identification of the names of children involved in court proceedings...
   4. In past cases the Tribunal has made orders suppressing names or granting pseudonyms in other instances, such as: prejudice to future employment prospects; the need to avoid publicity to assist rehabilitation; being prejudicial to reputation; adverse impact on business activities; where stay applications were on foot; where third parties could be identified or where prejudice to criminal proceedings may occur.
   5. However, the preferable position is for the business of the Tribunal to be conducted in public...
   6. Given the clear provisions of the Act, it is incumbent upon applicants for administrative review to understand that the default position will always be in favour of open hearings and maximum disclosure... Applicants seeking a confidentiality order to redact their names from public view bear the onus to establish that they have good grounds for this... As this Tribunal has said, their "case must be sufficiently strong to take the case out of the ordinary".
   7. Furthermore, in doing so, such a grant must be shown to be in the public interest...
   8. As the Tribunal has noted, there are some areas of public administration where a degree of confidentiality is necessary for the effective operation and discharge of the underlying public policy objectives. However the Social Security Act 1991 is not one of those. Indeed, to the contrary, there is a clear public interest in seeing that its operations are open, transparent and subject to public scrutiny...
   9. The protection of privacy is an important public policy objective, even within the ambit of the Australian system of "open justice", and this is well understood by the Tribunal.
   10. On the other hand, secrecy in the proceedings of courts and tribunals is obviously corrosive of public understanding of, and trust in their operations. In this respect the Tribunal has given greater weight to the "openness principle" and ensuring that its decision-making is "conducted and seen to be conducted in a transparent and open manner"...
2. In NDIS matters there will often and inevitably be evidence about an applicant's health, impairments, physical and psychosocial well-being, and capacity to participate in activities of daily living. Frequently, medical reports and allied health reports in NDIS cases refer to sensitive aspects of a person's history. This is not isolated to matters in the NDIS Division, as Senior Member Parker observed in XCFB and National Disability Insurance Agency [2022] AATA 4121 (2 December 2022 at [13]: "... this [is] often a necessary feature of applications arising in other Divisions of the Administrative Appeals Tribunal (that is, other than the NDIS Division), in particular in the Veterans Appeals Division or applications involving decisions about claims for workers compensation or disability support pensions, reviewed by the General Division. The Tribunal observes that it was not uncommon in such matters for the Tribunal's Reasons for Decision to be published containing information that openly identifies an individual person by name and sets out the medical history in detail."

1. The principal point which Mr Librino made in his email and expanded upon at the interlocutory hearing concerned a workers compensation case that has been underway for about three years and is still awaiting finalisation. He expressed his concerns about possible misuse by other entities of material generated through his NDIS review. As it was difficult for him to elaborate that concern in any detail, it remained in the realm of speculation. That does not mean that Mr Librino's concerns are not sincerely held and expressed.
2. In the absence of further details, Counsel for the Agency submitted that it is not clear how Mr Librino's concerns about aspects of the workers compensation proceedings would warrant a requirement for a confidentiality order in this review. Those details have not been forthcoming. The Agency interpreted Mr Librino's request as a request for orders under section 35(2) of the AAT Act for proceedings to be held in private, under section 35(3) restricting the use of identifying information, and under section 35(4) restricting the publication or other disclosure of documents. The Tribunal is satisfied that Mr Librino has not provided sufficient reasons why any such order should be made.
3. At the interlocutory hearing, the case management pathway and confidentiality requirements of alternative dispute resolution processes were discussed with Mr Librino. The Agency noted in its written submission there are procedures in the Tribunal regarding restriction of third-party access to files. The Tribunal also explained that there may be questions about confidentiality of materials which come to light at later stages in the proceedings. In those circumstances, Mr Librino would not be precluded from raising concerns that he might have about release of personal information, for example, before or at a hearing of the substantive application.

1. The Tribunal declines to make a confidentiality order under section 35 of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for the decision herein of Member Thompson

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