Australian Broadcasting Corporation v Public Trustee
[2022] WASC 85
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AUSTRALIAN BROADCASTING CORPORATION -v- PUBLIC TRUSTEE [2022] WASC 85
CORAM: HILL J
HEARD: 4 MARCH 2022
DELIVERED : 8 MARCH 2022
PUBLISHED : 11 MARCH 2022
FILE NO/S: CIV 1196 of 2022
BETWEEN: AUSTRALIAN BROADCASTING CORPORATION
Plaintiff
AND
PUBLIC TRUSTEE
Defendant
Catchwords:
State Administrative Tribunal - Confidentiality of proceedings under Guardianship and Administration Act 1990 (WA) - Application to direct publication of a notice or report under Guardianship and Administration Act 1990, sch 1, cl 12(8)(d) - Whether general discretion to make direction or whether direction is subject to there being exceptional circumstances - Proper construction of cl 12(8)(d) - Application allowed
Legislation:
Family Court Act 1997 (WA) s 243(8)(d)
Family Law Act 1975 (Cth) s 121(9)(d)
Guardianship and Administration Act 1990 (WA) sch 1, cl 12(8)(d)
Result:
Application allowed subject to undertaking being given by plaintiff
Category: A
Representation:
Counsel:
| Plaintiff | : | R Anderson QC |
| Defendant | : | C J Thatcher SC |
Solicitors:
| Plaintiff | : | ABC Legal, Disputes & Litigation |
| Defendant | : | State Solicitor's Office |
Case(s) referred to in decision(s):
AH v SS (2005) 194 FLR 111; (2005) 34 Fam LR 24
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 173 FLR 360
CD [2020] WASAT 41
Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) 77 MVR 306
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
In the Marriage of Gillespie and Bahrin and Herald and Weekly Times Ltd (1993) 114 FLR 53
In the Marriage of R L and D C Bau and Herald-Sun TV Pty Ltd (1986) 10 Fam LR 897
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Patricks v Simpkin [2008] FamCA 511
Waldman v Waldman [2013] FCCA 1035
HILL J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
By originating motion filed 3 March 2022, the applicant seeks a direction from the court that it may publish reports about guardianship and administration proceedings in the State Administrative Tribunal (Tribunal), being file number 507/2015 (Proceedings), in a manner which identifies a party to the Proceedings, a person who is related to or associated with a party to the Proceedings, or is in any other way concerned in the matter to which the Proceedings relate, or a witness to the Proceedings.
The originating motion sets out 11 grounds for the application. These grounds include the fact that the party the subject of the proceedings, who I will refer to by their initials, AC, is deceased and their adult children consent to the application, and that the application will be of public benefit to shine a light on their experiences in the Tribunal, as well as the experience of having a person's financial affairs administered by the Public Trustee. Other grounds include to advance public debate on the Act, issues of law reform, and the funding of the system. The applicant contends the making of the orders will facilitate the public's right to know and will be in the public interest.
The applicant filed a certificate of urgency on 3 March 2022 and sought an urgent hearing on 4 March 2022.
In support of its application, the applicant relied on four affidavits: affidavits of the two adult children of AC; an affidavit of Gavin Fang, the acting director of news, analysis and investigations for the Australian Broadcasting Corporation (ABC); and an affidavit of Joel Parsons, a lawyer in ABC’s legal department.
The respondent appeared at the hearing before me represented by senior counsel to provide assistance to the court on the question of the proper construction of the Guardianship and Administration Act 1990 (WA) (Act). The respondent did not otherwise make submissions on the merit of the application.
Factual background
The affidavit of Mr Fang discloses that the applicant has been investigating and intends to broadcast a report on the Public Trustee and public guardian systems nationally on its Four Corners program.
The purpose of the program is to 'report on the role, functions and operations of the Public Trustee and Public Guardian by reference to the stories of four individuals, all of whom have been subject to guardian and trustee orders'.
The applicant proposes that the Four Corners program will consider four case studies; three concern orders made in Queensland and the fourth proposed case study is the subject of this application.
In his affidavit, Mr Fang explains that to convey a story persuasively and enable viewers to form their own views on the subject matter of the story, it is important to include the name and image of the person who the story is about. This is particularly the case in 'long form' stories. Where the subjects of a story are de-identified, the broadcasts are less compelling. The more compelling a story is, the more likely it is to result in public discussion on the subject matter of the broadcast. Mr Fang's evidence is that publication of these case studies is likely to prompt a discussion of the public trustee and public guardianship systems. The affidavit of Mr Fang attaches a selection of media publications on these systems, all of which concern matters arising in Queensland.
The affidavits of the adult children are in virtually identical terms. It is apparent from the affidavits filed by them that, on the application of one of the children, orders were made in June 2015, appointing the daughter as the guardian of AC and the Public Trustee as administrator of AC's financial affairs. Fifteen months later, on 30 September 2016, AC died. The adult son of AC is the administrator of AC's estate.
The adult children consent to AC being identified by name and image and for each of them to be identified. Each expresses the view that there are important reasons for AC's story to be told, including that their experience demonstrated what they describe as 'a lack of cultural understanding on the part of the Public Trustee'. Each of the adult children expresses the opinion that there is a lack of awareness about the operation of the public trustee and the guardianship system, particularly in relation to the demonstration of capacity of the person the subject of an application, and that a public discussion of these operations should result in families making better informed decisions.
Both consent to and support the application by the ABC.
Legislative background
The application in this case is made under sch 1, cl 12(8)(d) of the Act. The long title summarises the purpose of the Act, which is to:
provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs, to confer on the State Administrative Tribunal jurisdiction in respect of guardianship and administration matters, to provide for the appointment of a public officer with certain functions relative thereto, to provide for enduring powers of attorney, enduring powers of guardianship and advance health directives, and for connected purposes.
Section 4 of the Act makes it clear that the primary concern of the Tribunal in determining any application under the Act is the best interests of any represented person, or of a person in respect of whom an application is made.
Access to documents and personal information lodged with, or held by, the Tribunal in relation to proceedings under the Act is governed by s 112 and s 113 of the Act. These provisions impose strict requirements of confidentiality in relation to all documents and personal information held by the Tribunal in relation to proceedings brought under the Act. The confidentiality of this information is reinforced by the provisions of sch 1 of the Act which enables the Tribunal to close proceedings to the public if it is in the best interests of the person, and for it to be an offence to publish any account of proceedings which identifies any party, persons related to the party, or any of the witnesses. It is important to stress that these provisions do not prevent reporting of the proceedings or any part of the proceedings under the Act, but simply the identity of the persons involved.
The exceptions to these strict confidentiality obligations are set out in sch 1, cl 12(8). This subclause enables the communication of information to:
(a)persons concerned in the proceedings;
(b)bodies concerned with disciplinary proceedings for members of the legal or medical profession;
(c)legal aid;
(d)the publishing of a notice or report in pursuance of the direction of the Tribunal or of a court;
(e)publication in law or technical reports; or
(f)for professional training or studies.
The applicant relies on the exception in cl 12(8)(d) and seeks a direction of this court to enable the identification by the ABC of AC and their adult children.
Parties' submissions
Senior counsel for the applicant submitted that, consistent with the principles of open justice, the exception in cl 12(8)(d) should be given a wide meaning. It was contended that this would be consistent with the object of the provision: being, to ensure a balance between the prohibition on publication of information and the rights of those concerned to have personal autonomy over publication of their identity.
Specifically, in relation to the proper construction of cl 12(8)(d), the applicant submitted it was not necessary for the applicant to show there were exceptional circumstances before an order could be made. The clause gives the court a wide discretion to direct the publication of a notice or report.
Senior counsel submitted that there were two primary reasons for the confidentiality restrictions of applications under the Act: first, the vulnerability of the persons who are impacted by any application and the necessity to protect them from identification; and second, the protection of the process within the Tribunal itself. Given these reasons, the applicant contended a significant factor in the exercise of the court’s discretion was whether the party concerned consented to their identification.
In this regard, the applicant emphasised two matters. First, AC, who was the subject of the application before the Tribunal, was deceased, having passed away in September 2016. For that reason, they were no longer the subject of any orders under the Act. Second, the adult children of AC consent to the orders being made.
Senior counsel for the Public Trustee drew the court's attention to a number of decisions of the Family Court on the identically worded provision in the Family Law Act 1975 (Cth) and Family Court Act 1997 (WA).[1] Senior counsel emphasised that the general position under the Act is that proceedings are confidential unless there is a feature of the application which suggests the general position ought be departed from. In considering the application, it was submitted that consistent with s 4 of the Act, the court should take into account whether the application is in the best interests of the person who was the subject of the application, and not the family members of this person.
[1] In the Marriage of R L and D C Bau and Herald-Sun TV Pty Ltd (1986) 10 Fam LR 897; In the Marriage of Gillespie and Bahrin and Herald and Weekly Times Ltd (1993) 114 FLR 53; B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 173 FLR 360; AH v SS (2005) 194 FLR 111; (2005) 34 Fam LR 24; Patricks v Simpkin [2008] FamCA 511; Waldman v Waldman [2013] FCCA 1035.
Disposition
At the heart of the application is the proper construction of cl 12(8)(d) of sch 1 of the Act. To date, there has been no judicial consideration of this provision. The primary question raised on the application is whether the court has a general discretion to direct the publication of a notice or report of proceedings under the Act, or whether there are any constraints that are imposed on the exercise of this discretion, such that it should only be exercised in unusual or otherwise exceptional circumstances.
The principles of statutory construction are well known and can be summarised as follows. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all provisions of the statute.[2] This requires consideration of the ordinary and grammatical sense of the statutory words to be interpreted, having regard to their context and legislative purpose.[3]
[2] Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) 77 MVR 306 [46] (Buss P, Murphy JA & Beech J agreeing).
[3] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4].
Unlike other proceedings in courts (and tribunals), the Act starts from the position that all documents filed in proceedings under the Act are confidential and that the names of persons involved in the proceedings, as well as witnesses, cannot be published.
The requirement for confidentiality imposed by the Act is consistent with the approach by courts (and Tribunals) to protect vulnerable members of society and to regulate their usual procedures in the interests of these people.
The requirements for confidentiality under the Act are an exception to the principle of 'open justice'. The Act sets out what the parliament intended to be the proper balance between the competing considerations of open justice, which it must be taken to have known when it enacted the legislation, and the protection of vulnerable members of the community and their right to privacy in respect of confidential and personal information about them. Because the requirements of confidentiality apply to all guardianship applications, any argument which is solely based on the principle of 'open justice' will be insufficient to override the general rule. The Act makes plain that applications under the Act are an exception to the principle of open justice, unless the court makes an order to allow publication.
That said, as was stated by French CJ in Hogan v Hinch:[4]
[A] statute which affects the open-court principle, even on a discretionary basis, should generally be construed, where constructional choices are open, so as to minimise intrusion upon that principle.
[4] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [27].
I turn then to the specific words in cl 12(8)(d) of sch 1 of the Act. This subclause provides that, where a direction is obtained from the Tribunal or a court for the publication of a 'notice or report', it is not an offence to identify any party, persons related to the party, or any of the witnesses. There was no dispute that this court is 'a court' that is able to make the direction sought.
Neither of the words 'notice' or 'report' are defined terms within the Act. For that reason, in accordance with the usual principles of statutory construction, they bear their ordinary and natural meaning. The ordinary and natural meaning of the word 'notice' includes 'a brief written mention or account' or 'a single observation or perception'.[5] The ordinary and natural meaning of the word 'report' includes 'an account of a speech, debate, meeting, etc, especially as taken down for publication'.[6] There is nothing in the words used in this clause or the context or purpose of the clause which restricts their meaning to documents or reports filed or evidence given by witnesses in proceedings under the Act. For that reason, I accept the submission of the applicant that 'notice' or 'report' extends to the proposed Four Corners report.
[5] Macquarie Dictionary.
[6] Macquarie Dictionary.
The Act does not contain any guidance as to how the discretion of the court should be exercised under cl 12(8)(d). In considering whether any constraints should be imposed on the exercise of the discretion, I have been assisted by the submissions filed by the parties. As both parties have drawn to my attention, identical provisions appear in the Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA). These sections have been the subject of a number of decisions.
In AH v SS,[7] Bryant CJ expressed the view that, in considering whether to make the direction sought, it is necessary for the applicant to identify the reasons for the publication. In exercising its discretion, the court should take into account whether there is public interest in the publication and whether the publication is in the best interests of the party the subject of the application.
[7] AH v SS.
It is clear from the words used in the cl 12(8)(d) that there are no express terms which would constrain the power of the court to give directions with respect to a notice or report of proceedings. The clause confers a general discretion on the court in unconfined terms, subject only to the limits that are implied by the subject matter, scope and purpose of the Act.[8]
[8] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 [15].
For this reason, if there are any constraints to be imposed on the judicial discretion conferred by the Act, these constraints must be drawn from the subject matter, scope and purpose of the legislation.
The general purpose of the Act, the requirement for confidentiality and the legislative purpose of these provisions were summarised by Justice Pritchard, the current President of the Tribunal in CD[9] at [35] - [37]:
The nature and extent of these protections for information held by the Tribunal under the GA Act is not surprising. The jurisdiction of the Tribunal under the GA Act is one in which the Tribunal receives personal information of the most sensitive kind. The provisions of the GA Act relating to the confidentiality of that information reinforce two important policies. The first is the protection of the privacy of the persons involved in the proceedings before the Tribunal, and in particular, of the proposed represented person or the represented person (as the case may be). The second is the public interest in the integrity of the Tribunal's processes, which relies on the ability to obtain sensitive information from a variety of sources.
One of the sources of information available to the Tribunal under the GA Act is the proposed represented person himself or herself. The views of the proposed represented person are one of the considerations to which the Tribunal is obliged to have regard, to the extent that it is possible to obtain those views. If the willingness of proposed represented persons to be frank with the Tribunal in hearings were to be eroded by a lack of confidence in the privacy of their sensitive personal and health information, that would compromise the integrity of the Tribunal's processes.
Furthermore, medical professionals and service providers (such as social workers, or aged care workers) are regularly asked to provide their opinion in relation to matters relating to the Tribunal's exercise of its functions under the GA Act, such as the capacity of a proposed represented person to make decisions relating to their personal care, or relating to their estate. The Tribunal's ability to exercise its functions under the GA Act is dependent on the willingness of those persons to provide their opinions on such matters. There is no doubt that the candour with which those opinions are expressed, and the willingness of those persons to provide their opinions other than by compulsion, would be jeopardised if the confidentiality of such information was not able to be protected by the Tribunal.
[9] CD [2020] WASAT 41.
In my view, cl 12(8)(d) confers on the court a broad discretion to direct the publication of a notice or report about proceedings under the Act by taking into account all relevant facts, matters and circumstances. The clause enables careful attention to be given as to whether the identity of someone and their private information should be disclosed to the public and whether this is the right thing to do.
In exercising its discretion, the court should not place any constraints on the exercise of discretion which are not found in the express terms of the Act. If a matter is logically relevant to the exercise of the discretion, it should only be excluded if the exclusion can be implied from the subject matter, scope and purpose of the Act. The matters which are logically relevant to the exercise of the discretion include relevant aspects of public interest, including the public interest in personal privacy and freedom of communication, as well as the position (if known) of the person who is the subject of any application, and whether there is any opposition to the application. Relevant factors will also include whether the publication is in the best interests of the party the subject of the application, whether the party consents to the application, whether the welfare of the person will improve or suffer if the publication is allowed, how publication will impact on any relevant relationships, whether there is any opposition to orders being made, and whether there is public interest in the publication.
I turn then to the specific application made by the ABC.
In this case, the applicant seeks a direction to enable the ABC to publish a report about proceedings under the Act which identifies AC, who was the subject of the application, and AC's children. The orders that were made in the proceedings were made more than five years ago and are no longer operative due to the death of AC four and a half years ago. Because of their death, AC is unable to consent to the application. However, the children of AC actively support the application and consent to being identified. One of the children is the administrator of AC's estate. No one appeared before me to object to the application.
I accept that only relatively limited information has been provided in the material before me as to the basis of the application that was before the Tribunal and whether orders were made by consent or after a hearing. However, senior counsel for the applicant informed me that the hearing before the Tribunal was not the focus of the report, rather, it was the family's experience of the orders and their interaction with the Public Trustee. I accept there is a public interest in the community understanding how the Public Trustee interacts with members of the community, and particularly those from a multi-cultural background. I also accept that there is a public interest in the community having a proper understanding of the operation of the Act and the role of the Public Trustee.
In the circumstances of this case, taking into account all of the matters I have referred to, I consider it is appropriate to grant the application, subject to the applicant giving an undertaking that it will not, in broadcasting any report of the Proceedings, disclose medical or any other personal information about AC beyond that which is necessary to provide a fair and accurate report.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FD
Associate to the Honourable Justice Hill
11 MARCH 2022
0
12
0