Greenleaf, Graham --- "Better Decision - in private?" [1995] PrivLawPRpr 86; (1995) 2(7) Privacy Law & Policy Reporter 134

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Better Decisions - in private?

Administrative Review Council (Cth) Better Decisions: review of Commonwealth Merits Review Tribunals, Report No 39, September 1995

This sweeping review of Commonwealth merits review tribunals (AAT for administrative appeals generally, VRB for veterans, SSAT for social security, IRT for immigration and RRT for refugees) recommends that they be merged into a new Administrative Review Tribunal (ART). Along the way, the review assesses It must be remembered that the proceedings in question are administrative, not judicial.

The review takes the approach that a different balance may need to be found for each type of review, and may differ between proceedings and decisions. The present statutory provisions vary widely, from open hearings in the AAT (except its Taxation Division) and the IRT, to private hearings in the other tribunals. Identified AAT and IRT decisions are generally available, RRT decisions must be published but de-identi It must be remembered that the proceedings in question are administrative, not judicial.

The review takes the approach that a different balance may need to be found for each type of review, and may differ between proceedings and decisions. The present statutory provisions vary widely, from open hearings in the AAT (except its Taxation Division) and the IRT, to private hearings in the other tribunals. Identified AAT and IRT decisions are generally available, RRT decisions must be published but de-identified, and the SSAT and VRB legislation is silent but a practice of de-identification is followed. There are no consistent procedures for the protection of the privacy of third parties.

Having identified this mess, the ARC expresses a preference for 'a presumption of openness but to leave a discretion for tribunals to protect an individual's privacy, with or without request, in each case.' The discretion would be exercised with regard to both the public and private interests concerned. The ARC questions whether such a discretion might be too onerous, but notes that the issue will have to be faced if its recommended rationalisation of the tribunals takes place. It recommends that the issue be referred to a working group comprising representatives of the tribunals, relevant agencies and the Privacy Commissioner.

Graham Greenleaf