Brackenreg v Northern Territory of Australia
[2021] NTSC 17
•23 February 2021
CITATION:Brackenreg v Northern Territory of Australia & Ors [2021] NTSC 17
PARTIES:BRACKENREG, Deborah Odile
v
NORTHERN TERRITORY OF AUSTRALIA
and
DUNN, Rachael
and
ROCHE, Fiona
and
EARLY, Erina
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2020-02087-SC
DELIVERED: 23 February 2021
HEARING DATE: 21 December 2020
JUDGMENT OF: Kelly J
CATCHWORDS:
JUDICIAL REVIEW – application under Order 56 of the Supreme Court Rules for orders in the nature of certiorari and mandamus – application for judicial review of decision of Public Sector Appeals Board decision to uphold the decision of the CEO of Territory Families to terminate the plaintiff’s employment – held the Board did not fail to take into account relevant evidence – further ground of relief sought based on alleged error in finding of fact – certiorari not available – application dismissed
Care and Protection of Children Act2007 (NT), s 293A(1), s 293C(1)(b), s 293B(2), s 293D(1), s 293D(2), s 293D(2)(c), s 293E(1), Part 5.1A
Public Sector Employment and Management Act1993 (NT), s 49(a), s 49C(1)(c), s 59E(2)(a)
Supreme Court Rules 1987 (NT), Order 56Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; Wilson v Lowery (1994) 4 NTLR 79, applied
REPRESENTATION:
Counsel:
Plaintiff:R Welfare
Defendants:L Peattie
Solicitors:
Plaintiff:Robert Welfare & Associates
Defendants:Solicitor for the Northern Territory
Judgment category classification: B
Judgment ID Number: Kel2107
Number of pages: 22
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINBrackenreg v Northern Territory of Australia & Ors [2021] NTSC 17
No. 2020-02087-SC
BETWEEN:
DEBORAH ODILE BRACKENREG Plaintiff
v
NORTHERN TERRITORY OF AUSTRALIA
First Defendant
and
RACHAEL DUNN
Second Defendant
and
FIONA ROCHE
Third Defendant
and
ERINA EARLY
Fourth Defendant
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 23 February 2021)
The plaintiff was employed as a Courts Officer at Territory Families from 2013. On 5 October 2018, the CEO of Territory Families terminated the plaintiff’s employment on the ground that she had been improperly accessing the personal information of four sibling-children in the CEO’s care: CW, DW, MW and DW Jr.
The plaintiff applied to the Public Sector Appeal Board (“the Board”) for review of the CEO’s decision. The Board confirmed the CEO’s decision, and the plaintiff now seeks judicial review of the Board’s decision pursuant to Order 56 of the Supreme Court Rules 1987 (NT).
The plaintiff commenced employment as a Courts Officer with the former Department of Children and Families on 17 June 2013.
While she was employed by the Department, the plaintiff had access to Territory Families’ Community Care Information System (CCIS), which records personal and confidential information of children in the CEO’s care. When applying for that access, the plaintiff signed a CCIS Provider Registration Form which stated she was aware of her obligations to protect client privacy and confidentiality and that CCIS should only be used for the direct provision of services to clients of Territory Families.
The breaches of discipline found by the CEO and confirmed by the Board concern the plaintiff’s access to CCIS to view the confidential personal information of four sibling children in the CEO’s care:
(a)CW – a male youth who was involved in the youth justice system and was detained at the Don Dale Youth Detention Centre during the relevant period (ie between 8 August 2016 and 10 April 2017);
(b)DW – a male youth involved in the youth justice system who was detained at Don Dale for short parts of the relevant period;
(c)MW – a 10 year old child who was not involved in the youth justice system: and
(d)DW Jr – a two year old child who was not involved in the youth justice system.
The plaintiff accessed the confidential CCIS records of CW 20 times during the relevant period, those of DW 17 times, those of MW 12 times and those of DW Jr 10 times.
The CEO stated, and the Board found, that the plaintiff had had some professional duties in relation to both CW and DW, but these had come to an end before the relevant period; and that she had never had any professional duties in relation to the other two siblings, MW and DW Jr.
There was evidence before the Board from the plaintiff’s manager (and immediate supervisor), Amanda Dyer which was accepted by the Board, to the following effect.
(a)In early June 2016, Ms Dyer became concerned that the plaintiff was emotionally over-invested in CW and his family and that she was undertaking tasks outside her role as a Courts Officer. For example, Ms Dyer noted the plaintiff had unscheduled and unaccompanied meetings with CW without speaking with CW’s case managers in Territory Families. The plaintiff had also requested to attend a family open day at Don Dale in lieu of CW’s family.
(b)On or about 8 June 2016, Ms Dyer directed the plaintiff not to arrange any further visits to CW unless asked to do so by CW’s case managers.
(c)That direction was reinforced at a meeting on 23 June 2016, at which Ms Dyer directed the plaintiff not to contact or arrange further visits to CW or DW unless tasked to do so by their case managers and as required in her role as a Courts Officer.
(d)Despite those directions, the plaintiff continued to step outside her role in relation to CW in particular and, to an extent, CW’s siblings. For example, the plaintiff sought information from third parties so as to involve herself in the post-release arrangements for CW, which was the responsibility of CW’s case managers, not the plaintiff.
(e)As a consequence, on 8 September 2016 Ms Dyer convened a conference with the plaintiff and CW’s case management team to further reinforce the difference between the plaintiff’s role as a Courts Officer and the role of CW’s case managers. At that meeting, Ms Dyer made it clear to the plaintiff that CW’s court matters had ended and the plaintiff had no role to play in his post-release arrangements. A final meeting to separate the plaintiff from CW’s matters was scheduled.
(f)Following this meeting, the plaintiff accessed CCIS to view the personal information of the children on numerous occasions.
On 12 May 2017, the CEO wrote to the plaintiff asking her to show cause why he should not be satisfied that accessing the children’s CCIS records was a breach of discipline within the meaning of s 49(a) of the Public Sector Employment and Management Act1993 (NT). The plaintiff provided several responses, following which the CEO wrote to her on 5 October 2018 advising her he was satisfied she had committed breaches of discipline and that he had determined that the appropriate disciplinary action was to terminate her employment pursuant to s 49C(1)(c) of the Public Sector Employment and Management Act.
On 19 October 2018, the plaintiff commenced an appeal against that decision before the Board.
On 26 March 2020, the Board confirmed the CEO’s decision pursuant to s 59E(2)(a) of the Public Sector Employment and Management Act both as to the breaches of discipline and the appropriate disciplinary action.
On 25 May 2020, the plaintiff filed an Originating Motion seeking judicial review of the Board’s decision. The plaintiff seeks:
(a)an order in the nature of certiorari setting aside the Board’s determination;
(b)an order in the nature of mandamus requiring the first defendant to establish a further, differently constituted Board to hear and determine the plaintiff’s appeal against the decision of the CEO;
(c)a declaration that the Board did not accord the plaintiff natural justice or procedural fairness; and
(d)a declaration that the jurisdiction of the Board is constructively unexercised.
The plaintiff submitted:
(a)that the Board confined itself to an examination of the plaintiff’s duties as a Courts Officer, rather than asking whether she had breached discipline in the course of her employment generally;
(b)that, as a consequence of the error in (a), the Board failed to consider relevant evidence about the plaintiff’s duties;
(c)that the Board failed to take into account the plaintiff’s role as an “information sharing authority” or “requested authority” under the Care and Protection of Children Act2007 (NT) at two Don Dale Communication Meetings; and
(d)that the Board erred in concluding the plaintiff had “no role” in accessing CW’s records to prepare for those two same Meetings at Don Dale.
In relation to these contentions, the first defendant submitted:
(a)that the contention in (a) mischaracterises the Board’s reasons: the Board made careful findings of fact about the scope of the plaintiff’s duties and, in particular, found that the plaintiff had no duties which required her to access the children’s personal information during the relevant period;
(b)that the Board did not fail to consider relevant evidence about the plaintiff’s duties; it considered that evidence and did not accept it;
(c)that the Board did take into account the plaintiff’s role as an “information sharing authority” or “requested authority” under the Care and Protection of Children Act2007 (NT) at two Don Dale Communication Meetings, but found the plaintiff had no relevant obligations in that respect, because she had no duties concerning the children at that time; (In any event, there was no evidence that any request for information was ever made of the plaintiff and the submission could only have explained two of 59 incidents of access.)
(d)the plaintiff’s contention in (d) essentially seeks merits review of a finding of fact and, like the contention in (c), could only have explained two of 59 incidents of access.
Plaintiff’s contentions (a), (b) and (c)
The plaintiff’s contentions set out in [13](a), (b) and (c) above are interrelated and the plaintiff effectively argued them together. The plaintiff contended that the primary issue for determination by the Board was whether the plaintiff, in carrying out her duties and/or discharging her official responsibilities, had committed a breach or breaches of discipline for the purposes of the Act. The plaintiff contended further that the Board approached this primary issue by confining itself to a consideration of the plaintiff’s duties and/or official responsibilities as a “Courts Officer” employed within Territory Families and that the Board was wrong to do so. In written submissions the plaintiff contended:
There is no warrant in the Act to confine that responsibility to an examination of the impugned conduct by reference to such duties or responsibilities that may attach to the substantive position of “Courts Officer” held by the Plaintiff. To so confine examination of the impugned conduct, here or generally, would lead to absurdity and, possibly, injustice. Public Sector employees could evade sanction in connection with unethical behaviour, negligent conduct and/or other proscribed conduct by reference to the conduct falling outside of the scope of duties attached to his or her substantive position. Conversely, such employees could be lawfully tasked beyond the scope of the duties attached to their substantive position and could in good faith undertake that task and yet be met with a complaint that straying outside of those duties constituted a breach of discipline.
The plaintiff contends that this error is to be found in paras [23], [24] and [91] of the Board’s reasons. These read as follows:
[23]In this regard, it is important to keep in mind that at all times the Appellant was employed as a Courts Officer by the Respondent. Significantly in this regard, neither MW nor DW Jr were children the subject of any proceedings (or charges) in the Youth Court.
[24]The questions before the Board are whether or not the accessing of the information held on CCIS during the relevant period, was appropriate in her role as Courts Officer; and if not, would such actions represent a valid and reasonable reason for dismissal on disciplinary grounds.
…
[91]As earlier noted, the question before the Board is whether or not the accessing of this information during the relevant period, was appropriate in the Appellant’s role as Courts Officer. In relation to MW and DW Jr, whilst the Board accepts the Respondent aims to provide holistic case management of children in care and that discussions about the two elder siblings often include discussions about their families; the Board can find no reasonable explanation as to why accessing information about the younger siblings was in anyway the responsibility of the Appellant as a Courts Officer.
These paragraphs do not display the error contended for by the plaintiff. The first defendant contends that the contentions in [13](a), (b) and (c) above misrepresent the Board’s reasons; that, in fact, the Board made careful findings of fact about the scope of the plaintiff’s duties in the course of her employment; considered all of the explanations put forward by the plaintiff to justify having accessed the children’s confidential records (including the plaintiff’s role as an “information sharing authority”); and rejected them. This contention by the first defendant is borne out by a reading of the Board’s decision.
The Board noted that the plaintiff held the role of Courts Officer, Northern Region. The Board then went on to identify the limits of the plaintiff’s duties regarding the children CW, DW, MW and DW Jr by reference to the evidence of the plaintiff, her supervisor Ms Dyer, and others. It did not confine itself to the official job description of a Courts Officer. The Board found that:
(a)the plaintiff was spoken to by her supervisor Ms Dyer on 23 June 2016 and told, at the very least, that she was not to arrange visits to Don Dale to see CW or DW unless tasked by Case Management;[1] (Ms Dyer said she also told the plaintiff to have no further contact with any member of the W family. The plaintiff denied this. The Board’s decision was based on the plaintiff’s evidence about this meeting.)[2]
(b)the plaintiff[3] well knew that she was a Courts Officer, not a case manager and that the two roles were very different, and this was reinforced in a case conference meeting on 8 September 2016;[4]
(c)as a Courts Officer of many years’ experience the plaintiff would have (and should have) been aware that she was not entitled to access confidential information relating to persons not involved in the youth courts; that in doing so she was stepping outside of her responsibilities; and that this was relevant to any and all access to CCIS records concerning MW and DW Jr;[5]
(d)numerous meetings and emails sent to the plaintiff after she was spoken to by Ms Dyer on 23 June 2016, would have (and should have) made clear to the plaintiff that she should not be accessing information on CCIS in relation to any member of the W family;[6]
(e)as a consequence of those directions and the case management meeting on 8 September 2016, the plaintiff was aware that her role with respect to CW and DW had come to an end, and as at that date there would have been no reasonable basis for any doubt in the plaintiff’s mind that there was no need for her to access the records of CW in particular.[7]
The Board concluded that, after the 23 June 2016 direction the plaintiff would have known such access was inappropriate for DW and CW as and from that date and further that it was inappropriate at any and all times in relation to MW and DW Jr who were never children the subject of Youth Court proceedings.[8] The Board found further that it was not reasonable to suggest that there could have been any doubt in the plaintiff’s mind as to the end of her role and the end of any proper basis for accessing CW’s CCIS records.
The Board then considered and dismissed each of the explanations which the plaintiff gave for accessing the records of CW and DW which she said were aspects of her duties.[9]
Counsel for the plaintiff, Mr Welfare, submitted that there was “unattested evidence” which was ignored by the Board to the effect that the plaintiff’s role was broader than that contained in the job description of Courts Officer. He relied on a letter from the plaintiff to the CEO apparently dated 31 May 2017, but did not identify any particular part of the letter.
Even if it were to be accepted that the letter was evidence of the extent of the plaintiff’s role, the letter does not describe that role. It consists of explanations given by the plaintiff to specific allegations put to her in the CEO’s letter of 12 May 2017. In it she:
(a)gave her version of what was said at the meeting with Ms Dyer on 23 June 2016;[10]
(b)agreed with other paragraphs of the CEO’s letter;
(c)explained that she accessed certain records as it was “required in my role as Courts Officer” for her to access records on a daily basis “for the Don Dale Census, Youth Court Spreadsheet and court lists” and “fortnightly for the Don Dale Communications meetings”, saying: “I do this for upcoming dates (court parole corrections) also to see if there has been a change of case manager or other date changes;”
(d)said that she accessed MW’s records because consideration was being given to placing DW and CW at the same placement as MW; she had been consulted about this by a placement consultant; and she had expressed her concerns that this would not be a suitable placement after reading the notes;
(e)said she accessed the records of baby DW Jr “as an aide memoir as this young person and the rest of his family were often the topics of discussions between us, and his case managers on our visits and phone calls”, adding that she had “run into” DW Jr’s case manager and suggested engaging a psychologist if they were considering changing the baby’s placement; and
(f)expressed the conclusion that, “The above access was required and authorised for my role.”
These explanations were followed by a number of complaints about the operation of the Department not relevant to this proceeding.
Each of these explanations was considered by the Board and dealt with in the Board’s decision. The Board rejected the general submission at [40] and then dealt with each of the specific matters raised by the plaintiff in the following paragraphs. In relation to the confidential records of CW, the Board considered and rejected the plaintiff’s justification based on:
(a)the Don Dale Communication Meetings with reference to CW’s records at [45] to [49];
(b)the Don Dale Census at [59] to [61];
(c)the Youth Court Spreadsheet and court lists and checking for a change of case manager at [62] to [64]; and
(d)having been consulted by a placement consultant at [53] to [58].[11]
The Board rejected the plaintiff’s attempted justification of her accessing the records of MW and DW Jr at [88] to [93] of the Board’s decision and held that her accessing these CCIS records was such a serious matter that these breaches alone were sufficient to warrant termination of the plaintiff’s employment.[12]
Mr Welfare also relied on a further response from the plaintiff to the CEO under cover of an email from Mr Welfare dated 10 December 2017, in which the plaintiff asserted that she had a very broad role which did not necessarily require that she be directly involved in specific matters for specific clients and that she attended Communication Meetings at Don Dale in which discussions were not limited to detainees but “covered the immediate family of detainees”.
Mr Welfare submitted that, as a result of the Board’s failure to take into account this “evidence” of the plaintiff’s broader role, the Board made an error of law in failing to have regard to the information sharing role the plaintiff had under the Care and Protection of Children Act which he described as a “conflicting Act” to the duties of confidentiality under the “Public Sector Act”[13] “where the main duty is to keep everything confidential”.
Mr Welfare relied on s 293C(1)(b) of the Care and Protection of Children Act which includes in the definition of “information sharing authorities” “a public sector employee, ... acting under a law of the Territory in relation to a child”. He also relied on ss 293D(1) and 293B(2) for the proposition that under the Care and Protection of Children Act, “children are defined as a group. If you’re talking about one child, you can talk about their siblings.” There is no merit in any of these contentions.
Section 293D(1) provides:
(1) An information sharing authority (the provider) may give any information about a child, or a group of children, to another information sharing authority (the recipient).
Section 293B(1) and (2) provide:
(1) For this Part, information about a child is any information that relates to the safety or wellbeing of the child.
(2) Without limiting subsection (1), “information” about a child includes information about a person other than the child (for example, a family member of the child) that directly or indirectly relates to the safety or wellbeing of the child.
The Board considered and rejected the plaintiff’s contention based on her being an information sharing authority.[14]
The Board does not accept the submissions made by the Appellant attempting to authorise or justify access on the basis of information sharing under the Care and Protection of Children Act (“CAPOCA”). The Board considers such submissions ignore (as noted by the Respondent) the “delicate balance between safeguarding the rights of clients, professional duty of care and the need for others to know information about a client.” The evidence makes clear that at the dates of these accesses there simply were no duties being performed by the Appellant that authorised or justified access. [emphasis added]
The plaintiff also submitted that the Board disregarded evidence that she accessed CCIS during two Don Dale Communication Meetings to answer questions posed by other attendees. The Board did not disregard this evidence. The Board referred in detail to the evidence and found that the plaintiff only attended eight such Meetings in the Relevant Period; that CW was only discussed at six of those Meetings[15] and DW was discussed at one;[16] that the plaintiff only accessed CCIS on the dates of two of those meetings (being meetings where only CW was discussed);[17] and that by the time of those meetings, the plaintiff was aware that she should not be accessing CCIS regarding CW.[18]
The sections of the Care and Protection of Children Act relied on by the plaintiff occur in Part 5.1A of that Act and need to be read in the context of the rest of Part 5.1A. Relevantly:
(a)section 293A(1) describes the objects underlying that part as ensuring the safety and wellbeing of children by enabling particular persons with responsibilities for a child to request or give information;
(b)section 293C(1)(b) provides that an “information sharing authority” is a person who, as a public sector employee, is acting under a law of the Territory in relation to a child; and
(c)section 293E(1) provides that an information sharing authority may request information from a requested authority to provide information “held by the requested authority”.
The Board found that the plaintiff did not have ongoing duties regarding CW at the time of the Don Dale Communication Meetings; she had no responsibilities for CW; was not acting under a law in relation to CW; and did not hold any relevant information about CW for which access to CCIS was required or authorised.[19]
The plaintiff’s contentions set out at [13](a), (b) and (c) fail because the plaintiff has failed to establish the basic factual premises behind these contentions, namely that the Board confined itself to an examination of the plaintiff’s duties as a Courts Officer, rather than asking whether she had breached discipline in the course of her employment generally; failed to consider relevant evidence about the plaintiff’s duties; and failed to take into account the plaintiff’s role as an “information sharing authority” or “requested authority” under the Care and Protection of Children Act2007 (NT) at two Don Dale Communication Meetings. An examination of the Board’s reasons shows that the Board considered the evidence; made relevant findings about the scope of the plaintiff’s duties and responsibilities (or lack of them) in relation to the children whose confidential information she accessed; considered each of the explanations given by the plaintiff as justification for accessing those records and rejected those explanations, giving reasons for so doing.
Plaintiff’s contention (d)
The final contention put forward by the plaintiff to establish an entitlement to an order in the nature of certiorari quashing the decision of the Board is that the Board erred in concluding the plaintiff had “no role” in accessing CW’s records to prepare for those two same meetings at Don Dale. The Board set out this conclusion at para [46] of the Board’s decision.
The allegations of unauthorised access only relate to 7 and 21 December 2016. The Board has therefore only considered those dates. In relation to those dates, the Board does not accept the submission that the Appellant needed to access CCIS to check the identity of the case manager or to confirm whether CW remained in care. The Appellant had no role in this regard.
The relevant findings of the Board on which this conclusion was based are referred to above in the consideration of the plaintiff’s contentions (a), (b) and (c). However, there is a simple and final answer to this contention by the plaintiff. The essence of this ground seeks a merits review: it is an assertion that the Board erred in making a finding of fact. The remedy of certiorari is not available to correct errors of fact. As the High Court said in Craig v South Australia:[20]
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.
The position is complicated by the fact that a distinction may be drawn between inferior courts and administrative tribunals. In Craig, the High Court said, at [14]:
At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd (1981) AC 374 at 383:
“Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.”
The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In Minister for Immigration and Multicultural Affairs v Yusuf[21] the plurality said:
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
No such error has been identified by the plaintiff. It is not necessary in this case to determine whether any error of law would take the Board outside its jurisdiction, because no error of law at all has been identified by the plaintiff.
If there is evidence which, if believed, would support a finding, there is no error of law.[22] The error alleged in the plaintiff’s contention (d), were it to be made out, is plainly one of fact and there was evidence before the Board capable of supporting that finding. The evidence on which the Board drew the conclusion that the plaintiff had “no role” in accessing CW’s records to prepare for two Don Dale Communication Meetings is set out in the Board’s decision[23] and referred to in more detail in the discussion above of the plaintiff’s contentions (a), (b) and (c).
The plaintiff’s application for judicial review is dismissed.
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[1] Board’s decision [27]
[2] Board’s decision [27], [28] and [29]
[3]The plaintiff is referred to in the Board’s reasons as “the Appellant”. I have used the term “the plaintiff” throughout to avoid confusion.
[4] Board’s decision [30]
[5] Board’s decision [32]
[6] Board’s decision [29]
[7] Board’s decision [31] and [34]
[8] Board’s decision [33]
[9] Board’s decision [37] to [86]
[10] The Board noted the different versions of what occurred at the meeting at paras [27] and [28] and accepted the plaintiff’s version at [29].
[11] The Board made identical findings regarding DW ([83]-[87]).
[12] Board’s decision [93]
[13] Presumably he meant the Public Sector Employment and Management Act.
[14] Board’s decision [50]
[15] Board’s decision [45]
[16] Board’s decision [71]
[17] Board’s decision [19]
[18] Board’s decision [33] and [34]; The Board found that the plaintiff knew by 23 June 2016 that it was inappropriate for her to access the records of CW and DW, and, even if that were not the case, there could have been no doubt in her mind about this after 8 September 2016. The two relevant Don Dale Communication Meetings occurred on 7 and 21 December 2016. (Board’s decision [45])
[19] In any case, the Plaintiff’s status as an information sharing authority and requested authority within the meaning of the Care and Protection of Children Act would not, in itself provide a justification for accessing CCIS. The capacity to provide information under Part 5.1A of the Care and Protection of Children Act is only enlivened if a request for information is made or a state of mind in s 293D(2)(c) arises. There was no evidence before the Board that either occurred at the Don Dale Communication Meetings. The plaintiff merely speculated arguendo that this could have been a basis for her accessing CCIS.
[20] [1995] HCA 58; (1995) 184 CLR 163 (“Craig”) at [8]
[21] [2001] HCA 30 at [82] per McHugh, Gummow and Hayne JJ
[22] Wilson v Lowery (1994) 4 NTLR 79 at 84
[23] Board’s decision [26] to [35], [45] to [50]
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