Attorney General of New South Wales v Kereopa (No 3)
[2017] NSWSC 929
•14 July 2017
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New South Wales |
Case Name: | Attorney General of New South Wales v Kereopa (No 3) |
Medium Neutral Citation: | [2017] NSWSC 929 |
Hearing Date(s): | 3 July 2017 |
Decision Date: | 14 July 2017 |
Jurisdiction: | Common Law |
Before: | R A Hulme J |
Decision: | The application for a suppression order or a non-publication order is refused. |
Catchwords: | COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 – application by forensic patient for non-publication order –bases on which order said to be necessary common to all applications for extension orders under the Mental Health (Forensic Provisions) Act 1990 – a serious mental illness and/or intellectual disability common to forensic patients – no non-publication provision in the Mental Health (Forensic Provisions) Act 1990 cf Mental Health Act 2007 and Guardianship Act 1987 – not the occasion to develop common law based on international convention – order not necessary – alternative remedy of restricting access to court file – application refused |
Legislation Cited: | Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 7, 8, 10, 11, 12 |
Cases Cited: | Attorney General for the State of New South Wales v Boyce (No 2) [2017] NSWSC 648 |
Texts Cited: | United Nations Convention on the Rights of Persons with Disabilities, Art 22 |
Category: | Procedural and other rulings |
Parties: | Attorney General of New South Wales (Respondent) |
Representation: | Counsel: |
File Number(s): | 2017/94917 |
JUDGMENT
HIS HONOUR: The Attorney General of New South Wales applied for an order extending the status of a person as a forensic patient under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the MHFP Act").
By notice of motion filed on 28 June 2017 the defendant sought a suppression order, or alternatively a non-publication order, in respect of his name in the interim and final orders and judgments. He also sought an order that his name be anonymised by pseudonym in those orders and judgments.
On 14 July 2017 I gave judgment and granted the application for an extension order: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 (the primary judgment). The following are my reasons for refusing the defendant's application for a suppression or non-publication order.
Statutory provisions
The power to make such orders derives from s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the CS&NP Act"):
"7 Power to make orders
A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or
(b) information that comprises evidence, or information about evidence, given in proceedings before the court."
The application is made on the grounds set out in s 8(1)(a), (c) and (e) of the CS&NPAct:
"8 Grounds for making an order
(1) A court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice,
(b) …
(c) the order is necessary to protect the safety of any person,
(c) …
(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice." (Emphasis added)
The defendant seeks an order that will have permanent duration and will extend to the Commonwealth: ss 11 and 12 of the CS&NP Act.
In considering the application it is necessary to bear s 6 of the CS&NP Act in mind:
"In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice".
In making an interim extension order on 18 April 2017, Davies J made a non-publication order "in respect of the information comprising the evidence given and to be given in the proceedings on the grounds set out in s 8(a), (c) and (e) of the Act until determination of the final hearing". The order was expressly made pursuant to s 10(1) of the Act:
"If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined." (Emphasis added)
The defendant's submissions
The defendant submitted that the erosion of his fundamental rights to privacy arising from the operation of certain provisions of Sch 1 of the MHFP Act militated in favour of granting the application.
The defendant referred to two provisions of Sch 1 of the MHFP Act, cls 17 and 17A. Clause 17 which provides for mandatory disclosure by persons, courts or the Mental Health Review Tribunal of records relating to the behaviour or physical or mental condition of a forensic patient who is subject to a limiting term, as the defendant was. Clause 17A provides for the sharing of "forensic patient information" between Ministers administering the MHFP Act (currently, the Attorney General and the Minister for Mental Health).
"Forensic patient information" is non-exclusively defined in cl 17A(2) in Sch 1 of the MHFP Act:
"(2) In this clause:
forensic patient information means any document, report or other information that relates to a forensic patient, including any such information that is:
(a) personal information within the meaning of the Privacy and Personal Information Protection Act 1998 or Health Records and Information Privacy Act 2002, or
(b) health information within the meaning of the Health Records and Information Privacy Act 2002."
It was acknowledged that the erosion of such rights was a necessary concomitant of providing for the making of applications for an extension of a person's status as a forensic patient. But this came at the expense of the defendant's right to privacy in respect of information that would in all likelihood never be published in the absence of his consent.
The defendant cited as examples of the types of information that would otherwise not be available for publication without consent:
● Personal and health related information derived from Corrective Services NSW and Justice Health NSW which would otherwise not be available in the absence of consent and/or a formal application under the Government Information (Public Access) Act 2009 (NSW).
● The name of any person to whom a matter before the Mental Health Review Tribunal ("the Tribunal") relates, a person who appears as a witness before the Tribunal, or a person who is mentioned or is otherwise involved in proceedings under the Mental Health Act 2007 (NSW) or the MHFP Act. (See s 162 of the Mental Health Act.)
● Information in connection with the administration or execution of the Mental Health Act or the MHFP Act. (See s 189 of the Mental Health Act.)
● Information relating to the administration or execution of the Guardianship Act 1987 (NSW). (See s 101 of that Act.)
The defendant also noted the ratification by Australia of the United Nations Convention on the Rights of Persons with Disabilities in 2008. A respect for privacy of persons with disabilities is provided:
Article 22 - Respect for privacy
1. No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation. Persons with disabilities have the right to the protection of the law against such interference or attacks.
2. States Parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others.
There have been three cases (of which counsel were aware) in which similar orders as sought here have been refused, but the applications in those cases were largely based on s 162 of the Mental Health Act: Minister for Mental Health v Paciocco [2017] NSWSC 4 (Campbell J); Attorney General of NSW v Huckstadt (No 2) [2017] NSWSC 595 (Adamson J); and Attorney General for the State of New South Wales v Boyce (No 2) [2017] NSWSC 648 (Wilson J). The defendant in this case does not rely upon that provision.
Counsel for the defendant referred to the requirement for each of the grounds in s 8 of the Act for making a suppression or non-publication order that it is "necessary" for the stated purpose. Adamson J observed in Attorney General of NSW v Huckstadt (at [49]):
"The requirement that the order be "necessary" for the stated purpose will not be satisfied merely because the order appears to be "convenient, reasonable or sensible": Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [31]. In Hogan v Australian Crime Commission, at footnote (29), the High Court expressly approved Fullerton J's statement to the same effect in the context of the Act which was approved by the Court of Appeal (Hodgson JA, Hislop and Latham JJ concurring) in Attorney-General for New South Wales v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307 at [34]. It is plain from the language of a 8(1)(a) that this Court, when considering whether to make an order under s 7 of the Act on that ground, is not engaging in a balancing exercise."
Counsel for the defendant submitted that making an order was "necessary", having regard to the following:
1) The defendant's vulnerability in that he suffers from a serious mental illness and an intellectual disability.
2) The defendant's youth.
3) The defendant's need for rehabilitation which could be compromised by a further erosion of his privacy.
4) The nature of the application for an extension for a limiting term requires paramountcy be given to public safety in determining the application, with the result that there is likely to be a substantial derogation of the defendant's right to privacy.
5) In that context, the Court should not allow a further substantial derogation of the defendant's right to privacy by permitting the publication/disclosure of his name.
Determination
Bathurst CJ and McColl JA said in Rinehart v Welker [2011] NSWCA 403 at [27] that orders under the CS&NP Act "should only be made in exceptional circumstances".
The five bases upon which is was submitted that it was necessary to make an order are, in the main, common to all applications for extension orders under Sch 1 of the MHFP Act. Matters that might be unique to the defendant in this case are (1) the combination of a serious mental illness and an intellectual disability and (2) his youth. However I do not accept that they add weight to the argument. Forensic patients generally will have either a serious mental illness or an intellectual disability or both.
As to the defendant's "youth", he is in fact aged 26. In oral submissions, counsel modified this to a description "relatively young age" and argued that it had a bearing upon his vulnerability in combination with his mental illness and intellectual disability. Again, I do not consider this adds weight to the argument.
True it is that Parliament has determined that privacy considerations should prevail to the extent that non-publication provisions are to be found in the Mental Health Act (ss 162 and 189) and the Guardianship Act (s 101). It is of significance, however, that no such provision has been made in relation to proceedings brought under Sch 1 of the MHFP Act. In Attorney General of NSW v Huckstadt (No 2) , Adamson J made the following observation at [51] with which I respectfully agree:
"If Parliament had intended to restrict the disclosure of information relating to forensic patients in proceedings in this Court generally, it would have done so expressly. That Parliament has chosen not to do so leads to the conclusion that this Court's discretion under the Act is to be applied having regard to the circumstances of the particular application rather than by general implications said to arise from legislative provisions."
Her Honour found in that case (at [52]) that "there is little to distinguish the present applicant from others in respect of whom the plaintiff seeks an extension of the person's status as a forensic patient." The same applies in the present case.
As to the defendant's reliance upon the United Nations Convention on the Rights of Persons with Disabilities, counsel were unable to inform me whether it has been incorporated into Australian law, or, specifically, the law of this State. In Regina v Togias [2001] NSWCCA 522; 127 A Crim R 23, Spigelman CJ observed generally in relation to international treaties and conventions (at [33]):
"International treaties and conventions to which Australia is a party, but which have not been incorporated in Australian law, have been invoked in Australian legal reasoning. Such international obligations:
● Are an appropriate influence on the development of the common law (Mabo v Queensland (No 2) (1991-1992) 175 CLR 1 at 42 per Brennan J; Dietrich v The Queen (1992) 177 CLR 292 at 360 per Toohey J; 372-3 per Gaudron J; Minister for Immigration and Ethnic Affairs v Teoh per Mason CJ and Deane J).
● May be used to resolve an ambiguity in a statute (Polites v The Commonwealth (1945) 70 CLR 60 at 68-69 per Latham CJ, 77 per Dixon J, 80-81 per Williams J; Teoh supra at 287 per Mason CJ and Deane J; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at [97] per Gummow and Hayne JJ).
● May create a legitimate expectation about executive decision making (Teoh supra especially at 291 per Mason CJ and Deane J)."
The latter two points do not arise in this case. As to the first point, given that the Convention was merely cited and no submission made as to whether and how it might apply as a matter of law in New South Wales, this is not the occasion to engage in any "development of the common law".
I am not persuaded that the making of a suppression or non-publication order is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)). In fact, nothing was put that suggests that the administration of justice would be at all prejudiced by a refusal to make an order.
The ground in s 8(1)(c) is concerned with the defendant personally. But again, nothing was put that suggests that his safety would be compromised if an order were not made. In this respect, a contrast may be drawn with the circumstances in State of New South Wales v Burns [2014] NSWSC 1014 where a non-publication order was made in respect of the defendant's whereabouts, in part because of "the potential for reprisals". (Mr Burns was found to be a high risk sex offender.)
The reasoning of Adamson J in Attorney General of NSW v Huckstadt (No 2) at [60]-[61] in relation to s 8(1)(e) of the Act is also apposite in relation to the defendant's reliance upon that ground:
"The application based on the s 8(1)(e) ground is subject to the same difficulty identified above with respect to the s 8(1)(a) ground. The public interest in the protection of "vulnerable" persons and the rights which accrue to them on that basis, is pre-eminently a matter for Parliament. By making express provision for non-disclosure in circumstances which do not extend to proceedings in this Court, Parliament has, in my view, made its intention clear. In these circumstances, it is not for this Court to make a general adjustment to rights which would apply irrespective of the circumstances of the individual case, on the assumption that Parliament would have achieved that result had it thought of it.
I am not satisfied that it is otherwise necessary in the public interest for the order to be made or that the matters of public interest identified by the defendant significantly outweigh the public interest in open justice. In my view there is a significant public interest in the community knowing, or being able to learn, how this Court manages persons such as the defendant whose limiting term has expired."
An alternative remedy
Much personal information about which the defendant is concerned is contained in the documentary evidence read or tendered in relation to the plaintiff's application which has not been mentioned in the primary judgment. An alternative remedy that would address much of the defendant's concern is to restrict access to the Court file. An order to that effect is commonly made in proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW). It does not forbid access in absolute terms but provides an opportunity for the parties to be heard before access is granted to any non-party. I made such an order at the conclusion of the primary judgment.
Order
I make the following order:
The application for a suppression order or a non-publication order is refused.
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