BJQ v Children's Guardian (No 2)

[2016] NSWCATAD 291

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BJQ v Children's Guardian (No 2) [2016] NSWCATAD 291
Hearing dates:	On the papers
Date of orders:	14 December 2016
Decision date:	14 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member M Bolt, General Member
Decision:	The section 64 of the Civil and Administrative Tribunal Act order made in proceedings known as in BJQ v Children’s Guardian [2016] NSWCATAD 99 is revoked.
Catchwords:	Administrative Law- Non-publication order made pursuant to section 64 Civil and Administrative Tribunal Act 2013 (NSW) in earlier proceedings – whether circumstances require the variation or rescission of the non-publication order – legislative provisions restricting identification of the complainant not applicable upon her death subject to the public interest – principle of open justice and public interest – whether non-publication order desirable – prior order revoked.
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Court Suppression and Non-publication Orders Act 2010 Evidence Act 1995 (NSW)
Cases Cited:	Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46 BJQ v Children’s Guardian [2016] NSWCATAD 99 Council of the New South Wales Bar Association v BRJ (No 3) [2015] NSWCATOD 159 Rinehart v Welker [2011] NSWCA 403 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69
Texts Cited:	Procedural Direction 9, NSW Civil and Administrative Tribunal
Category:	Consequential orders (other than Costs)
Parties:	BJQ (Applicant) Children’s Guardian (Respondent) Director of Public Prosecutions (Third party Applicant)
Representation:	Counsel:     Solicitors:
File Number(s):	1510351
Publication restriction:	None

REASONS FOR DECISION

1. This concerns an application made by the Director of Public Prosecutions (“DPP”) through the Solicitor for Public Prosecution filed on 11 October 2016. The third party applicant, as the DPP is referred to in the application, seeks release of information and evidence received by the Tribunal in BJQ v Children’s Guardian [2016] NSWCATAD 99. The Tribunal made an order at paragraph [8] of that decision restricting publication in that matter under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW). The order was in the following terms:

An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

2. The applicant BJQ and the Children’s Guardian were given a copy of the application by the DPP. This matter was listed by the Registrar for directions on 25 October 2016 before Deputy President Hennessy but no appearances were made by BJQ or the Children’s Guardian. The Children’s Guardian through the Crown Solicitor’s Office in correspondence stated that the Children’s Guardian did not wish to make any submissions in relation to the application by the DPP, however did draw attention to the publication restriction in the earlier decision.

3. In particular the DPP seeks access to the exhibits and the oral evidence of BJQ in the Tribunal. The application is made under Rule 42 of the Civil and Administrative Tribunal Rules 2014 (NSW). That application is to be determined by the Registrar. However, the third party applicant DPP seeks to have varied the order under section 64 of the Civil and Administrative Tribunal Act.

Issue

4. The Tribunal has to consider the issue of whether or not to vary the non-publication order. The Tribunal has accessed the recording of the proceedings before the Tribunal on 29 January 2016. Many people other than the applicant BJQ are referred to in the evidence. The Director submits in the application that the DPP is already aware of the identities of the persons involved in the original proceedings since the prosecution was originally brought by the Director prior to the death of the victim.

Legislative provisions

5. The application refers to section 64(3) of the Civil and Administrative Tribunal Act as a basis for variation of the order, thereby allowing the Registrar to consider the application under Rule 42 and consider whether to allow the access sought by the Director.

6. The Tribunal found on the balance of probabilities that an alleged sexual abuse occurred and that BJQ was the perpetrator of the relevant incident(s) of sexual abuse on the victim. The DPP is considering whether BJQ should be prosecuted for the event which was found by the Tribunal to have occurred applying the civil standard of proof. There is a significant public interest involved in the request by the DPP because it will assist the Director to determine whether a prosecution should occur.

7. The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Child Protection (Working with Children) Act 2012 (NSW) because of section 4 of the Child Protection (Working with Children) Act. The applicant in the earlier proceedings before the Tribunal cannot now legally work in child related employment because of the failure to obtain a Working with Children Check Clearance. However, if he is prosecuted for the offence with which he was charged there is a public interest in determining his criminal culpability. The possibility that there may be a prosecution for the offence which was found to have occurred on the civil onus, the balance of probabilities, will have deterrent and educative social implications for the protection of children and potential victims from abuse. This protection is the paramount consideration in decisions made under the Child Protection (Working with Children) Act. This is a powerful consideration for dispensing or varying the non-publication order, but not the only consideration to be weighed in the balance. The functions of the Tribunal to protect children from abuse may be compromised by the divulging of information previously obtained in a confidential environment where the primary function is not punitive, but protective. This is a factor which should also be weighed in the balance.

8. There was no order made under section 128 of the Evidence Act 1995 (NSW) in the hearing immunising any incriminating evidence, but BJQ was informed of his right to object and to not incriminate himself in the commission of a crime or breach of an Australian law. The accepted effect of a certificate under section 128 of the Evidence Act is that the evidence the subject of the certificate cannot be used in a subsequent prosecution of the witness. Because no objection and certificate under section 128 Evidence Act were made, the evidence given by BJQ could be used against him in criminal proceedings, subject to any ruling as to admissibility in those proceedings, if such proceedings were to occur.

9. The application by BJQ for a Working with Children Check Clearance proceeded with an order made under section 64 of the Civil and Administrative Tribunal Act and the Tribunal has promulgated Procedural Direction 9 which relevantly provides:

[4.2] Additionally it is the Tribunal’s policy to anonymise the name of the applicant in certain types of cases. The applicant’s name is replaced with a set of initials that are not those of the applicant. In some instances this anonymisation will extend to other parties or witnesses in the case, depending on the circumstances. Anonymisation routinely occurs in the following matters:

(a) under the Child Protection (Working with Children) Act 2012: the applicant’s name is anonymised in lists and decisions. Also relevant is section 578A of the Crimes Act 1900 which prohibits the publication of any matter, which identifies, or is likely to lead to the identification of the complainant victim in a prescribed sexual offence;

10. Section 64 of the Civil and Administrative Tribunal Act provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in 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 by 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.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

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

11. The reference to section 65 is a reference to proceedings in which the names of witnesses, parties and persons mentioned in the proceedings are absolutely prohibited from publication without leave of the Tribunal, even without an order under section 64 having been previously made.

12. In Council of the New South Wales Bar Association v BRJ (No 3) [2015] NSWCATOD 159 the Tribunal varied non-publication orders pursuant to section 64 of the Civil and Administrative Tribunal Act to allow limited publication.

13. There is undoubted power to vary or revoke the publication restriction. The variation or revocation can occur in different proceedings: Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46 at [61] per Chesterman DP, in relation to an almost identical provision, section 75(2B) in the Administrative Decisions Tribunal Act 1997 (NSW) (now repealed).

14. The question for the Tribunal in this matter is whether the circumstances are sufficient for the exercise of that discretion. The provisions of section 64 of the Civil and Administrative Tribunal Act do not provide guidance as to how that discretion should be exercised.

15. The confidential information in connection with proceedings in the Tribunal is not compellable and personnel employed in the Tribunal are not competent to divulge to any “court”, such information contrary to any order under section 64, or even when an application under section 64 is not yet determined: see section 68 Civil and Administrative Tribunal Act.

16. It can thus be established by reference to the legislative scheme of the Civil and Administrative Tribunal Act and the Procedural Direction that the open justice principle which applies in most courts and Tribunals in this State, subject to any other legislative restrictions, is by statute and Direction restricted to protect the confidentiality of the proceedings before the Tribunal.

17. The charges laid against BJQ in the criminal proceedings were pursuant to section 66C(4) of the Crimes Act 1900 (NSW). Under the Crimes Act the identity of the complainant was prohibited from publication due to the following provision now set out which is also referred to in the Procedural Direction:

578A Prohibition of publication identifying victims of certain sexual offences

(1) In this section:

"complainant" has the same meaning as in Division 1 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 .

"matter" includes a picture.

"prescribed sexual offence" has the same meaning as in the Criminal Procedure Act 1986 .

"publish" includes:

(a) broadcast by radio or television, or

(b) disseminate by any other electronic means such as the internet.

(2) A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

Penalty: In the case of an individual-50 penalty units or imprisonment for 6 months, or both; in the case of a corporation-500 penalty units.

(3) This section applies even though the prescribed sexual offence proceedings have been finally disposed of.

(4) This section does not apply to:

(a) a publication authorised by the Judge or Justice presiding in the proceedings concerned,

(b) a publication made with the consent of the complainant (being a complainant who is of or over the age of 14 years at the time of publication),

(c) a publication authorised by the court concerned under section 11 of the Children (Criminal Proceedings) Act 1987 in respect of a complainant who is under the age of 16 years at the time of publication,

(d) an official law report of the prescribed sexual offence proceedings or any official publication in the course of, and for the purposes of, those proceedings,

(e) the supply of transcripts of the prescribed sexual offence proceedings to persons with a genuine interest in those proceedings or for genuine research purposes, or

(f) a publication made after the complainant’s death.

(5) A Judge or Justice shall not authorise a publication under subsection (4) (a) unless the Judge or Justice:

(a) has sought and considered any views of the complainant, and

(b) is satisfied that the publication is in the public interest.

(6) The prohibition contained in this section applies in addition to any other prohibition or restriction imposed by law on the publication of any matter relating to prescribed sexual offence proceedings.

(7) Proceedings for an offence against this section shall be dealt with summarily before:

(a) the Local Court, or

(b) the Supreme Court in its summary jurisdiction.

(8) If proceedings for an offence against this Act are brought before the Local Court, the maximum penalty that the Local Court may impose on a corporation is 50 penalty units.

18. The charge under section 66C(4) of the Crimes Act is a prescribed sexual offence as defined under section 3 of the Criminal Procedure Act 1986 (NSW). The complainant is now deceased and therefore the prohibition contained in section 578A does not now readily apply because of subsection 578A(4)(f) of the Crimes Act. Subsection 5 requires a consideration of the “public interest” if publication is to be authorised under subsection 4.

19. Additionally, the complainant was the subject of proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) and there was a restriction on publication of her identity due to section 105 of that Act. The publication of identifying information is a strict liability offence by reason of that section which provides:

105 Publication of names and identifying information

(1) The name of a child or young person:

(a) who appears, or is reasonably likely to appear, as a witness before the Children’s Court in any proceedings, or

(a1) who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or

(b) with respect to whom proceedings before the Children’s Court are brought or who is reasonably likely to be the subject of proceedings before the Children’s Court, or

(c) who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or

(d) who is the subject of a report under section 24, 25, 27, 120, 121 or 122,

must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of.

(1A) The prohibition in subsection (1) applies to the publication or broadcast of the name of the child or young person concerned until:

(a) the child or young person attains the age of 25 years, or

(b) the child or young person dies,

whichever occurs first.

(1B) This section applies to the publication or broadcast of a child or young person’s name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the internet, or by any other means of dissemination.

(1C) The publication of information to a website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section.

(2) A person who publishes or broadcasts the name of a child or young person in contravention of subsection (1) is guilty of an offence.

Maximum penalty: 200 penalty units or imprisonment for a period not exceeding 2 years, or both, in the case of an individual or 2,000 penalty units in the case of a corporation.

Note : An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation-see section 258.

(3) Subsection (1) does not prohibit:

(a) the publication or broadcasting of an official report of the proceedings of the Children’s Court that includes the name of a child or young person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or

(b) the publication or broadcasting of the name of a child or young person:

(i) in the case of a child-with the consent of the Children’s Court, or

(ii) in the case of a young person-with the consent of the young person, or

(iii) in the case of a child or young person who is under the parental responsibility of the Minister-with the consent of the Secretary if the Secretary is of the opinion that the publication or broadcasting may be seen to be to the benefit of the child or young person, or

(iv) in any case-if the child or young person has died.

(4) For the purposes of this section, a reference to the name of a child or young person includes a reference to any information, picture or other material:

(a) that identifies the child or young person, or

(b) that is likely to lead to the identification of the child or young person.

(5) The offence created by this section is an offence of strict liability.

(6) This section does not apply in relation to criminal proceedings.

Note : See section 15A of the Children (Criminal Proceedings) Act 1987 .

20. The victim’s identity was protected by the provisions of section 105 of the Children and Young Persons (Care and Protection) Act but only until her death because of subsection 105(1A)(b) of that Act.

21. Clearly, BJQ’s identity is protected now simply by reason of the policy of the Tribunal recorded in Procedural Direction 9 and the current non-publication order. It is possible that the child victim of BJQ may be identified from information given in the proceedings before the Tribunal but because she is deceased the identifying information is not absolutely protected from publication by section 578A of the Crimes Act or section 105 of the Children and Young Persons (Care and Protection) Act. It can thus be seen that the restrictions of the legislation in identifying the complainant have been alleviated simply because of her death.

20. The non-publication order now has the effect of protecting the identity of the applicant in the earlier proceedings BJQ. The identity of BJQ is not in relation to the Tribunal the subject of non-publication orders or any legislation other than section 64 of the Civil and Administrative Tribunal Act. However, the NSW Court of Appeal which is at the apex of the hierarchy in this State in Rinehart v Welker [2011] NSWCA 403 has considered in some detail the considerations under the applicable legislation governing suppression and non-publication orders in the Courts of NSW, the Court Suppression and Non-publication Orders Act 2010 (NSW) (“CSPO”).

21. The Court of Appeal in Rinehart v Welker at [26] in the judgment of Bathurst CJ and McColl JA recorded that:

The principle of legality favours a construction of legislation such as the CSPO Act which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle: Hogan v Hinch (at [5], [27]) per French CJ; see also Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 (at 55) per Kirby P.

24. The principle of open justice is further explained in the judgment of Bathurst CJ and McColl JA as follows:

[27]…The operative condition for making a suppression order under s 8 of the CSPO Act is that it be "necessary" to do so, which "... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ...'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act ) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW(at [21]).

[28] The word "necessary" was adopted as the test for making a suppression order on the recommendation of the NSW Law Reform Commission: see NSW Law Reform Commission, Contempt by Publication, Report 100, (June 2003), at [10.20]; see also NSW Law Reform Commission, Contempt by Publication, Discussion Paper 43, (July 2000) at Chapter 10, where the principal discussion leading to the recommendation in the final Report appears. Similar language appears in s 50 of the Federal Court of Australia Act and s 4(2) and s 11 of the Contempt of Court Act 1981 (UK). It was the test applied by courts with an inherent jurisdiction to make non-publication orders: John Fairfax Publications Pty Ltd v District Court of NSW (at [38]).

[29] A number of authorities are cited in the Discussion Paper (at [10.92]) as authority for the proposition that the test for making a suppression or nonpublication order should be that it be "necessary". Of those authorities, the clearest statement, and that which appears to underlie the form of s 8, appears in John Fairfax & Sons Ltd v Police Tribunal (NSW)(1986) 5 NSWLR 465 (at 476 - 477) per McHugh JA (Glass JA agreeing):

"The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient." (Emphasis added)

John Fairfax & Sons Ltd v Police Tribunal (NSW) was the principal authority on the subject of making non-publication orders in New South Wales prior to the enactment of the CSPO Act: John Fairfax Publications Pty Ltd & Anor v District Court of NSW (at [38]). French CJ referred to this passage with approval in Hogan v Hinch (at [21]).

25. The Tribunal is cognisant that the Administrative Decisions Tribunal considered a similar provision in section 75 of the Administrative Decisions Tribunal Act 1997 (NSW) (now repealed) in State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69. In that decision, Chesterman DP after reviewing many of the authorities stated at [81]:

It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2) [similar to section 64(1) of the Civil and Administrative Tribunal Act ]. It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

26. In circumstances where BJQ has been given proper notice of this application, as has the Children’s Guardian, and neither party has made any representations to the Tribunal, the submissions of the DPP are uncontradicted. Those submissions assert that the provision of access by the Tribunal to its file would not be a ‘publication’ because the information is not being disseminated to the public. The DPP does not intend to publish or disseminate the information. It is submitted to the Tribunal that “[a]ccess to the file is purely sought in order to assist the Director in determining whether to revive the criminal prosecution of BJQ”. The DPP identifies that there is a public interest in disclosing information to the Director “as it will assist in properly determining whether a serious criminal matter should be prosecuted”.

27. It is important to note in the context of this application that the order may be also made, varied or revoked upon the motion of the Tribunal: section 64(1) of the Civil and Administrative Tribunal Act.

28. It is no longer ‘desirable’ for the identity of BJQ to be suppressed in order to protect the identity of the complainant. It is in the public interest for the identity of BJQ to be known and for a publication which may thereby identify the complainant to be made. In those circumstances it would no longer be an offence to publish information which may tend to identify the complainant, since the provisions of the applicable legislation referred to earlier in these reasons were released by the death of the complainant. The open justice principle requires that the information no longer be suppressed by the non-publication order.

29. The Tribunal after weighing all the factors therefore determines to revoke the non-publication order made pursuant to section 64 of the Civil and Administrative Tribunal Act to permit the identity of the applicant and/or the complainant who is now deceased and the evidence given in the proceedings which may tend to identify either of them, to be published.

30. The order of the Tribunal will reflect that determination.

31. The application under Rule 42 of the Civil and Administrative Tribunal Rules for third party access to the file and evidence is to be determined by the Registrar. If access is granted by the Registrar then the information contained in the file and evidence in the Tribunal is not subject to any restriction imposed under section 64 of the Civil and Administrative Tribunal Act.

Order

1. The section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) order made in proceedings known as in BJQ v Children’s Guardian [2016] NSWCATAD 99 is revoked.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 14 December 2016