Attorney General of NSW v Huckstadt (No 2)

[2017] NSWSC 595

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General of NSW v Huckstadt (No 2) [2017] NSWSC 595
Hearing dates:	On the papers
Date of orders:	16 May 2017
Decision date:	16 May 2017
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	Application for non-publication order refused.
Catchwords:	COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 – application by forensic patient for non-publication order on grounds in s 8(1)(a) and (e) – whether non-publication order should be made in respect of evidence given or to be given in proceedings or fact that offender may be subject to conditional release – relevance of parallel statutory scheme which applies to proceedings in Mental Health Review Tribunal – order not necessary – importance of open justice – application refused
Legislation Cited:	Child (Criminal Proceedings) Act 1987 (NSW), s 15A Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 10, 12 Crimes Act 1900 (NSW), ss 61M, 66C, 578A Criminal Procedure Act 1986 (NSW), s 291 Guardianship Act 1987 (NSW), s 101 Health Insurance Act 1973 (Cth), s 106ZR Interpretation Act 1987 (NSW), s 21 Mental Health Act 2007 (NSW), ss 68, 149, 151, 162, 189 Mental Health (Forensic Provisions) Act 1990 (NSW), ss 21, 23, 24, 40, 42, 54A, Pt 5, Sch 1 National Health Act 1953 (Cth), s 135A Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), s 189 Surveillance Devices Act 2007 (NSW), s 40
Cases Cited:	AA v State of NSW [2013] NSWSC 1038 Attorney-General of New South Wales v Doolan [2015] NSWSC 1773 Attorney General of New South Wales v Huckstadt [2017] NSWSC 441 Attorney-General for New South Wales v Nationwide News Pty Ltd (2008) 73 NSWLR 635; [2007] NSWCCA 307 Heath (a Pseudonym) v The Queen (2014) 45 VR 154; [2014] VSCA 319 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 Kizon v Palmer (1997) 72 FCR 409 Matthews v R (No. 2) [2013] NSWCCA 194 Osborne v R (2014) 283 FLR 97; [2014] NSWCCA 17 Sevdalis v Director of Professional Services Review (2016) 241 FCR 266; [2016] FCA 32 State of NSW v Burns [2014] NSWSC 1014 State of NSW v Kay [2017] NSWSC 274 Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324
Category:	Principal judgment
Parties:	Attorney General for the State of New South Wales (Plaintiff) Allan James Huckstadt by his tutor Keith Gerard Plunkett (Defendant)
Representation:	Counsel: G Wright (Plaintiff) B Sinclair (Solicitor, Defendant)     Solicitors: Crown Solicitor’s Office New South Wales (Plaintiff) Legal Aid Commission of New South Wales (Defendant)
File Number(s):	2017/88341

Judgment

Introduction

1. On 18 April 2017 I made an interim order pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act) on the application of the defendant, which prohibited the publication of evidence given or to be given in the proceedings or the fact that the defendant may be subject to conditional release. The original interim order has been subsequently extended to 5pm on 15 May 2017 to give the parties an opportunity to put on written submissions on the question whether a non-publication order ought be made under s 7 of the Act.

2. In his submissions handed up on 18 April 2017, the defendant applied for the following orders:

“1.   That the defendant's name be anonymised by pseudonym for the preliminary hearing until any final application is made at the final hearing.

2.   That there be a non-publication order in respect of the defendant's name in respect of the preliminary proceedings [until] any final application is made at the final hearing.

3.   That there be a suppression order in respect of the defendant's name in respect of the preliminary proceedings any final application is made at the final hearing.”

3. This matter is not listed for the final hearing of the plaintiff’s application for an extension order under Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Forensic Provisions Act) until 11 July 2017. On 18 April 2017 I declined the defendant’s application for an interim non-publication order under s 10 of the Act which would continue until the final hearing of the matter since, where an interim order is made, the application is to be determined as a matter of urgency. I made an interim order for a shorter period and directed that evidence and submissions be filed in support of the application for an order under the Act so that the application could be considered as soon as possible.

4. In the written submissions filed on 1 May 2017 the defendant applied for the following orders, which I take, in the absence of a notice of motion, to have superseded the previous application:

“1. Pursuant to s 7 of the Court Suppression and Non-publications Orders Act 2010 (NSW) ('the CSNP Act') the defendant seeks orders prohibiting and/or restricting the publication and disclosure of:

(a)   The defendant's current residence and future residence;

(b)   The geographic location of the defendant's residence;

(c)   Information on treatment relating to the defendant;

(d)   Information relating to rehabilitation activities undertaken by the defendant whilst either in a correctional centre or in the community;

(e)   The defendant's name in these proceedings be referred to by a pseudonym; namely AJH unless it be necessary to reveal his name to any person for the purpose only of the proper preparation and presentation of the proceedings;

(f)   And/or that no access be granted to any third party to the Court file in these proceedings without the parties first having an opportunity to be heard in relation to the granting of such access.

2. Further, pursuant to s 12 of the CSNP Act the defendant seeks an order that the duration of the orders sought be permanent.”

5. I was prepared to deal with the application on the basis of the orders sought in the submissions. However, the appropriate procedural course, which should generally be followed, is for an applicant for an order under the Act to file and serve a notice of motion. If the original formulation of the orders is sought to be amended, an amended notice of motion should be filed and served.

6. All references to statutory provisions in these reasons are to the Act, unless otherwise indicated.

7. The interim order was made “without determining the merits of the application”: s 10(1). The purpose of these reasons is to determine the defendant’s application for an order under s 7 of the Act.

8. The defendant’s application for an order under s 7 of the Act arises in the context of these proceedings which involve the plaintiff’s application that his status as a forensic patient be extended. A summary of the background to the proceedings is to be found in my reasons for granting an interim extension of his status: Attorney General for New South Wales v Huckstadt [2017] NSWSC 441 at [5]-[8].

9. It is sufficient, for present purposes, to note that in 2010 the defendant was committed for trial for a number of sexual offences. As he was found unfit to be tried, the matter proceeded as a special hearing before Payne DCJ in December 2011 pursuant to s 19 of the Forensic Provisions Act. Her Honour held that, on the limited evidence available, the defendant had committed five of the counts on the indictment in the period between 1 January 2006 and 25 January 2007: three offences of sexual intercourse with a female child between 14 and 16 years contrary to s 66C(3) of the Crimes Act 1900 (NSW); and two offences of indecent assault under s 61M(1) of the Crimes Act (the index offences). Pursuant to s 23 of the Forensic Provisions Act, Payne DCJ indicated that, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the index offences, the Court would have imposed a sentence of imprisonment. On 14 June 2012 Payne DCJ nominated limiting terms, the last of which expired on 26 April 2017. Her Honour referred the defendant to the Mental Health Review Tribunal (the Tribunal) pursuant to s 24(1)(a) of the Forensic Provisions Act and ordered, pursuant to s 24(1)(b), that the defendant be detained in such place as the Tribunal directed. Accordingly, the defendant became a forensic patient by reason of the operation of s 42 of the Forensic Provisions Act. By reason of the interim extension order which I made on 19 April 2017, the defendant remains a forensic patient.

Relevant statutory provisions

The Act

10. Section 6 of the Act requires the court, in deciding whether to make a suppression order or non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

11. Section 7 provides that a court has power, when making a suppression order or non-publication order, to restrict the publication of information tending to reveal the identity of a party or witness or associate and information concerning evidence given in the proceedings.

12. Section 8 of the Act sets out the grounds for making a suppression order or non-publication order in the following terms:

“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)   the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c)    the order is necessary to protect the safety of any person,

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(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.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.”

13. Section 10 of the Act provides:

“10 Interim orders

(1) 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.

(2) If an order is made as an interim order, the court must determine the application as a matter of urgency.”

14. Section 12 of the Act provides:

“12 Duration of orders

(1) A suppression order or non-publication order operates for the period decided by the court and specified in the order.

(2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.”

Mental health legislation

Mental Health Act 2007 (NSW)

15. Section 68 of the Mental Health Act 2007 (NSW), which is entitled “Principles for care and treatment”, opens with the following words:

“It is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder”.

16. What follows these prefatory words is a list of principles, which includes the following:

“(f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances”.

17. Chapter 6 of the Mental Health Act deals with the Tribunal. Part 2 of Chapter 6, contains provisions, including ss 149, 151 and 162, which govern the procedure of the Tribunal. Section 149 of the Mental Health Act relevantly provides that Part 2 applies to proceedings in the Tribunal.

18. Section 151 of the Mental Health Act provides:

“151 Procedure at meetings of Tribunal to be informal

(1) Meetings of the Tribunal are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act, the Mental Health (ForensicProvisions) Act 1990, the regulations and as the proper consideration of the matters before the Tribunal permit.

(2) In determining any matter relating to a forensic patient, correctional patient or other patient or a person detained in a mental health facility, or any matter relating to a community treatment order, the Tribunal is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate and as the proper consideration of the matter before the Tribunal permits.

(3) The proceedings of the Tribunal are to be open to the public.

(4) However, if the Tribunal is satisfied that it is desirable to do so for the welfare of a person who has a matter before the Tribunal or for any other reason, it may (of its own motion or on the application of the person or another person appearing at the proceedings) make any one or more of the following orders:

(a)    an order that the hearing be conducted wholly or partly in private,

(b)    an order prohibiting or restricting the publication or broadcasting of any report of proceedings before the Tribunal,

(c)    an order 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 before the Tribunal,

(d)    an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

Note. Section 162 prohibits the publication or broadcasting of the name of a person involved in Tribunal proceedings or other material that may identify any such person, except with the consent of the Tribunal.”

. . .”

19. Section 162 of the Mental Health Act provides:

“162 Publication of names

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a)    to whom a matter before the Tribunal relates, or

(b)    who appears as a witness before the Tribunal in any proceedings, or

(c)    who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (ForensicProvisions) Act 1990,

whether before or after the hearing is completed.

Maximum penalty:

(a)    in the case of an individual – 50 penalty units or imprisonment for 12 months, or both, or

(b)    in the case of a corporation – 100 penalty units.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person.”

20. Section 189 of the Mental Health Act, which is contained within Chapter 9, headed “Miscellaneous”, restricts disclosure of information in the following terms:

“189 Disclosure of information

(1) A person must not disclose any information obtained in connection with the administration or execution of this Act or theMental Health (Forensic Provisions) Act1990 or the regulations unless the disclosure is made:

(a)    with the consent of the person from whom the information was obtained, or

(b)    in connection with the administration or execution of this Act or the Mental Health (ForensicProvisions) Act 1990, or

(c)   without limiting paragraph (b), to a designated carer or principal care provider of a person in connection with the provision of care of treatment to the person under this Act or the Mental Health (Forensic Provisions) Act 1990, or

(d)    for the purposes of any legal proceedings arising out of this Act or the Mental Health (ForensicProvisions) Act 1990 or the regulations or of any report of any such proceedings, or

(d1)    for a purpose referred to in health privacy principle 10 (1) (f) (research) under the Health Records and InformationPrivacy Act 2002, or

(e)    with other lawful excuse.

Maximum penalty: 50 penalty units.

(2) A person is not required to comply with subsection (1) if non-compliance is necessarily implied or reasonably contemplated under an Act or law.”

Forensic Provisions Act

21. Section 21(1) of the Forensic Provisions Act provides:

“(1)  Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.”

22. Part 5 of the Forensic Provisions Act deals with forensic and correctional patients. The objects of Part 5 are set out in s 40, which provides as follows:

“40 Objects

The objects of this Part are as follows:

(a)    to protect the safety of members of the public,

(b)    to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition,

(c)    to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders,

(d)    to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,

(e)    to give an opportunity for those persons to have access to appropriate care.

Note. Section 68 of the Mental Health Act2007 sets out general principles with respect to the treatment of all people with a mental illness or mental disorder.”

23. Section 54A of the Forensic Provisions Act, which is also contained in Part 5, provides that a person’s status as a forensic patient may be extended in accordance with Sch 1, which confers power on this Court to make an order for such extension (cl 1).

Other legislation   

Criminal Procedure Act 1986 (NSW)

24. At the time of the special hearing in December 2011 (as to which see the background facts in my earlier judgment referred to above), s 291 of the Criminal Procedure Act relevantly provided:

“291   Proceedings must be held in camera when complainant gives evidence

(1)  Any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant is to be held in camera, unless the court otherwise directs.

. . .

(3)  The court may direct that the part of proceedings in which evidence is given by the complainant be held in open court only at the request of a party to the proceedings and only if the court is satisfied that:

(a)  special reasons in the interests of justice require the part of the proceedings to be held in open court, or

(b)  the complainant consents to giving his or her evidence in open court.

(4)  The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the part of the proceedings to be held in open court.

. . .”

Guardianship Act 1987 (NSW)

25. The defendant also referred in his submissions to s 101 of the Guardianship Act, which provides:

“101 Disclosure of information

A person shall not disclose any information obtained in connection with the administration or execution of this Act unless the disclosure is made:

(a)    with the consent of the person from whom the information was obtained,

(b)   in connection with the administration or execution of this Act or the Civil and Administrative TribunalAct 2013,

(c)    for the purposes of any legal proceedings arising out of this Act or the Civil and Administrative Tribunal Act 2013 or of the report of any such proceedings,

(d)    in accordance with a requirement imposed under the Ombudsman Act 1974, or

(e)    with other lawful excuse.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.”

The defendant’s application

26. The defendant seeks an order under the Act on the grounds in s 8(1)(a) and (e). In support of his application, the defendant relies on his facts and matters set out in the following summary.

27. The defendant became a forensic patient within the meaning of the Forensic Provisions Act as a result of findings made, and a limiting term specified, at a special hearing on 14 June 2012. As referred to above, I extended his status as a forensic patient by an interim extension order made on 19 April 2017 under Sch 1 of the Forensic Provisions Act. A guardianship order, appointing the Public Guardian, was made in respect of the defendant on 16 January 2017.

28. As a forensic patient, the defendant is subject to the Tribunal’s jurisdiction under Part 5 of the Forensic Provisions Act. He remains a forensic patient until the expiry of any interim or final extension order made in respect of him.

29. It was submitted on behalf of the defendant that the material concerning his criminal history, condition and treatment is not yet in the public domain but has the potential to be made public because of the present proceedings under Sch 1 of the Forensic Provisions Act. The defendant submitted that this circumstance distinguished his case from cases where non-publication orders were declined because the material the subject of the application was already in the public domain, either because of media coverage and judgments of this Court (State of NSW v Kay [2017] NSWSC 274) or because it had already been canvassed in open court (Matthews v R (No. 2) [2013] NSWCCA 194).

30. The defendant stressed the confidential nature of proceedings before the Tribunal and the statutory provisions which are designed to protect the privacy of persons who appear before it and in respect of whose treatment and control the Tribunal makes orders. The defendant referred to s 101 of the Guardianship Act, which is set out above.

31. The defendant also referred to judgments of this Court in AA v State of NSW [2013] NSWSC 1038 (Garling J) and State of NSW v Burns [2014] NSWSC 1014 (Beech-Jones J) in which non-publication orders had been made under the Act in circumstances which the defendant contended were analogous to his own.

32. The defendant submitted that the effect of a non-publication order would be to continue the existing protections already afforded to the defendant, whereas a refusal to make such an order would “render them obsolete” and “nugatory”. The defendant submitted:

“Arguably, the intention of Parliament when enacting Schedule 1 to the MHFPA [the Forensic Provisions Act] was not to enable the court to exercise powers under one part of the legislation, which would have the effect of stripping rights conferred on a forensic patient under another piece of legislation. Ensuring this does not take place by considering Schedule 1 in the context of the MHPFA and the MHA [the Mental Health Act] is, I submit, necessary in the public interest and that this public interest significantly outweighs the public interest in open justice.”

33. The relevant public interests, which the defendant submitted outweighed the interest in open justice, were said to be the public interest in protecting “people whose vulnerability has been recognised through a variety of legal mechanisms” and “preserving protections already existing in favour of the defendant”. In support of this submission, the defendant referred to ss 68 and 162 of the Mental Health Act and s 101 of the Guardianship Act which are referred to above.

34. The defendant also submitted that this Court, when deciding whether to make an order under s 7 of the Act, ought be informed by the restrictions imposed by s 162 of the Mental Health Act, which also bound the defendant and prevented him from publishing information about himself. He submitted that, although this Court has exclusive jurisdiction to extend a person’s forensic status after the expiry of a limiting term, the Tribunal had an active role to play in determining whether the person remains in custody; what treatment is appropriate; and other matters relevant to the person’s life and liberty.

35. The defendant contended that the objects in s 40 of the Forensic Provisions Act and the care principles in s 68 of the Mental Health Act ought be taken into account in deciding whether to make an order under s 7 of the Act.

36. As I have largely adopted the plaintiff’s submissions in the reasons set out below, I do not propose to summarise them.

Consideration

37. Before turning to the grounds relied on by the defendant, I propose to address a preliminary issue: the operation of s 162 of the Mental Health Act. The plaintiff has raised this question on the basis that an order prohibiting the publication of the defendant’s name or identifying information may be redundant if non-publication or anonymisation of such information is already required by s 162 of the Mental Health Act.

The construction of s 162 of the Mental Health Act

38. For the reasons given in Attorney-General of NSW v Doolan [2015] NSWSC 1773, which concerned an application for an extension order under Sch 1 of the Forensic Provisions Act, I do not consider s 162 to require anonymisation of the defendant’s name since s 162 does not apply to such proceedings. Section 149 expressly confines the provisions in Part 2 of the Mental Health Act to proceedings in the Tribunal. It would, in my view, subvert the statutory language to make s 162 applicable beyond its express scope.

39. The meaning of the express words is consistent with the context in which s 162 appears in the Mental Health Act. Section 162 does not distinguish between the Tribunal's two civil and forensic divisions, and thus applies to all Tribunal proceedings. Tribunal hearings touch on a broad range of a patient's personal circumstances. The rules of evidence do not apply to either area of the Tribunal's work (s 151(2)). Because there may be a significant focus in Tribunal proceedings on a patient's personal circumstances, it is understandable that Parliament has seen fit, by enacting s 162 of the Mental Health Act, to require anonymisation of the patient's name.

40. The meaning of “a person” in s 162 is also significant, since s 162, in terms, prohibits a "person" from publishing the name, or identifying information, to which the Tribunal proceedings relate. Section 21 of the Interpretation Act 1987 (NSW) defines the word "person" as including "an individual, a corporation, and a body corporate or politic." In Kizon v Palmer (1997) 72 FCR 409 at 430-431 the Full Federal Court (Lindgren J, Jenkinson and Kiefel JJ agreeing) construed the federal equivalent of s 21 and said:

"The word 'person' does not, in ordinary English usage, refer to a court. A

court is not an individual. A court is not a body politic."

41. Of present relevance, the Court also noted, at 430, that

"The Third Charter of Justice for New South Wales and the Act 4 Geo IV c96

did not make the Supreme Court of New South Wales, which is continued in

existence by s 22 of the Supreme Court Act 1970 (NSW), a body corporate."

42. Kizon v Palmer was applied in Osborne v R (2014) 283 FLR 97; [2014] NSWCCA 17, in which the Court of Criminal Appeal was required to construe s 135A of the NationalHealth Act 1953 (Cth) which prohibited a person from "divulging or communicating to any person" certain information about a person's Medicare history. Basten JA (Hidden J and RS Hulme AJ agreeing) said at [8]:

"The proposition that disclosure ‘to any person’ does not include providing material to a court in response to a subpoena has a long history with respect to statutory provisions in this country."

43. After referring to numerous authorities, including Kizon v Palmer, Basten JA said at [13]:

"The general proposition to be derived from the authorities is that legislation using very similar terminology to s 135A(1) has been construed as not covering communication to a court."

44. His Honour also said, at [22], that it was not possible to construe the word ‘person’ to cover a ‘court’ in the ordinary sense of the word, where no such intention is expressed.

45. A similar approach has been taken in relation to other legislation. For example in Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324 Hall J held at [93], by reference to Osborne v R that the word "person" in s 40(1) of the Surveillance Devices Act 2007 (NSW) does not include a court. In Heath (a Pseudonym) v The Queen (2014) 45 VR 154; [2014] VSCA 319 the Victorian Court of Appeal relied on Kizon v Palmer to hold that the reference to a "person" in s 182 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), which prohibits a person from publishing any evidence given in the Victorian Supreme Court in high risk offender applications, does not include a court: [34]-[41].

46. Kizon v Palmer was also applied in Sevdalis v Director of Professional Services Review (2016) 241 FCR 266; [2016] FCA 32. The applicant, a medical practitioner, sought review of a decision of the Professional Services Review Committee constituted under the Health Insurance Act 1973 (Cth) that found that he had engaged in inappropriate practice. Section 106ZR of the Health Insurance Act prohibited "a person" from disclosing to another person any deliberations of the committee or any information or evidence given to the committee in the course of its deliberations, with certain exceptions. The Federal Court held, applying Kizon v Palmer, that a "person" did not include a court and that, accordingly, the court could refer in its reasons for decision to the documents that had been before the committee. It also held that there had been no contravention of s 106ZR when the documents were disclosed to the court for the purpose of the judicial review proceedings. I note, however, that the court accepted that the underlying purpose of the prohibition in s 106ZR would be frustrated by the proceedings in the Federal Court if disclosure of the material before the committee was not the subject of a prohibition order (at [13]). To preserve the intended protection given by s 106ZR, it was found to be necessary for the court's reasons to avoid disclosure of any parts of the documents which could identify patients or their medical conditions or personal details of the doctor. Justice Mortimer found that adopting this course would affect neither “the intelligibility of the Court's reasons to the public, or to the parties", nor the outcome of the proceeding.

47. In summary, s 162 of the Mental Health Act does not apply to proceedings in this Court under Sch 1 of the Forensic Provisions Act as the ordinary meaning of "person" does not include a court. While s 162 of the Mental Health Act does not bind the Court, it continues to apply to any "person" despite proceedings under Sch 1 of the Forensic Provisions Act. Accordingly, the question of non-publication in the context of the present proceedings falls to be considered under the Act.

The grounds on which the defendant relied

48. As referred to above, the defendant relied on the grounds in s 8(1)(a) of the Act (the order is necessary to prevent prejudice to the proper administration of justice) and s 8(1)(e) of the Act (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) in support of his application under s 7 of the Act. The defendant’s submissions relied on the same matters in respect of both grounds. I propose to consider the grounds in turn, although there is some overlap.

Whether the order is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a) of the Act)

The requirement that the order be “necessary”

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.

The effect of the defendant’s submissions

50. The principal difficulty for the defendant in obtaining an order on the grounds of necessity is that he submitted, in substance, that this Court should extend the statutory regime which applies in the Tribunal to proceedings in this Court under Sch 1 of the Forensic Provisions Act. This submission disregards the express wording of the Mental Health Act, the Forensic Provisions Act and the Act. There is no provision in the Forensic Provisions Act or the Mental Health Act which prohibits or otherwise restricts the publication of the name of, or material relating to, a forensic patient, in respect of whom court proceedings are commenced under Sch 1 of the Forensic Provisions Act. The statutory provisions which restrict publication apply in their terms only to proceedings before the Tribunal.

51. 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.

52. It is, in my view, noteworthy 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 plaintiff became a forensic patient by reason of the imposition of a limiting term: ss 24 and 42 of the Forensic Provisions Act. He is subject to a guardianship order under the Guardianship Act, which is not an uncommon consequence of mental unfitness (which led to the special hearing at the conclusion of which the limiting term was imposed).

The relevance of prior disclosure of the material in respect of which a non-publication order is sought

53. Applications for non-publication orders have been refused on the grounds of futility because the information, disclosure of which is sought to be restrained, is already in the public domain. Plainly, an order which will be futile cannot be “necessary”. It does not, however, follow that because the information relating to the defendant’s circumstances will only be made public by reason of proceedings brought by the Attorney General under Sch 1 of the Act, the disclosure of the information ought, on that basis, be prevented or restricted, much less that an order is “necessary” within the meaning of s 8(1)(a) or (e) of the Act. I note that the special hearing, which took place before Payne DCJ in 2012, was held in open court. A non-publication order was made in respect of the names (or presumably any identifying features) of victims, because of their age at the time of the offences and the nature of the offences (to reflect the statutory restrictions on publication in s 578A of the Crimes Act 1900 (NSW) and s 15A of the Child (Criminal Proceedings) Act 1987 (NSW)).

54. The material before me does not disclose the reason for the non-publication order of the defendant’s name at the special hearing but it can be assumed that one, and possibly the sole, reason for the order to be made in respect of the defendant’s name was to protect the identity of the victims. Although a special hearing is generally conducted in open court, s 291 of the Criminal Procedure Act would have obliged Payne DCJ to close the court for the complainant’s evidence unless an application was made by the defendant under s 291 and her Honour was satisfied of the matters in s 291(3). Although these matters do not have the effect that a non-publication order will be futile, I am not satisfied that it would not be futile, particularly as Tribunal hearings can be open to the public: s 151(3) of the Mental Health Act.

Particular cases relied on by the defendant

55. The cases relied on by the defendant do not assist him since they turned on particular features which are not relied on here. In AA v State of NSW, the defendant tendered, in support of his application for a non-publication order under s 7 of the Act, newspaper articles which Garling J described as being “couched in alarmist terms or couched in terms calculated to attract prurient interest and irrational discussion”: [6]. His Honour’s reasons for granting an interim order under s 10 of the Act appear from the following passage:

“[16] The present identity of the plaintiff, his present address and his present appearance plays no role at all in the concept of open justice as it would apply to this case. The nature of the case is not specific to this plaintiff. The principles to be applied are of general application and are not to be determined by the plaintiff or his identity.

[17] On the other hand, the past history of publicity about the plaintiff and his activities provides a strong reason why the administration of justice would not be served by having the otherwise somewhat routine administrative decision in this case being dealt with by reference to the name, address or identity of this particular plaintiff.

[18] There is a real risk, in my assessment, that making that material available would lead to misleading and unbalanced reporting and would also lead to, or else may lead to, deterring the plaintiff from continuing with these proceedings. In other words, I regard it as inevitable that in order to conduct these proceedings and pursue the rights which he claims he has, the plaintiff is faced with doing so with full revelation of his current address and physical appearance, or else not doing it at all.

[19] Obliging the plaintiff to elect between these two alternatives, or at least the risk of those two alternatives occurring, does not seem to me to be in the public interest. However, I am only determining these matters on an interim basis, and I am satisfied that the public interest is to be served by making, and it is necessary for an order of the kind which follows to be made, to prevent prejudice to the proper administration of justice and to protect the safety of the plaintiff.

[20] However, there doesn’t seem to me to be any reason why there should be a non-publication order of the entirety of the proceedings. The various interests can be best protected by an order that the plaintiff be referred to by a pseudonym and that his address and present physical appearance, or image, not be published or otherwise disclosed by any information which may reveal those matters. The plaintiff’s offending history is a matter of longstanding public record and I see no purpose to be served by any order seeking to prevent publication of that.”

56. In State of NSW v Burns, Beech-Jones J gave reasons for the making of a non-publication order in the following terms:

“[69] Having regard to the potential for reprisals and the evidence concerning the need to promote Mr Burns' rehabilitation, I am satisfied that the making of a non-publication order in respect of material identifying the whereabouts of Mr Burns is justified.”

57. I note that the defendant did not rely on s 8(1)(c) of the Act, which is the ground that “the order is necessary to protect the safety of any person”. Accordingly, the prospect of reprisals (as to which there is no evidence), which was the basis for the order in State of NSW v Burns does not need to be considered in the present case.

Conclusion

58. I do not consider the defendant to have established any basis on which I could be satisfied that the order is necessary to prevent prejudice to the proper administration of justice.

Whether 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 (s 8(1)(e) of the Act)

59. Unlike the ground in s 8(1)(a), the ground in s 8(1)(e) requires a balancing exercise between the public interest in open justice and the countervailing public interest or interests relied on by the applicant. As referred to above, the defendant has identified two relevant countervailing matters of public interest: first, the protection of vulnerable persons; and, secondly, the preservation of existing protections against disclosure.

60. 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.

61. 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.

Orders

62. I am not satisfied that an order should be made under s 7 of the Act on either of the grounds relied on by the defendant. As the interim order I made under s 10 of the Act, without determining the merits of the application, expired at 5pm on 15 May 2017, it is not necessary to revoke the interim order.

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Decision last updated: 17 April 2018