Bungree Aboriginal Association Limited v NSW Registrar of Community Housing

[2019] NSWCATAD 61

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61
Hearing dates:	2 April 2019
Date of orders:	02 April 2019
Decision date:	15 April 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	(1) An order is made under s 64(1) of the Civil and Administrative Tribunal Act 2013 prohibiting disclosure of the identity of the complainants whose identity is disclosed in the confidential material filed in these proceedings by the respondent. That material is not to be disclosed to the applicant in the proceedings or to the public.
Catchwords:	PROCEDURE – suppression orders – confidential nature of material – identity of complainants – whether desirable to make an order under s 64
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Community Housing Providers (Adoption of National Law) Act 2012 Community Housing Providers National Law Government Information (Public Access) Act 2009
Cases Cited:	Bellamy v Bellamy [2018] NSWSC 534 CYL v YZA [2017] NSWCATAP 105 John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 Robinson v Department of Health [2002] NSWADT 222 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69
Category:	Procedural and other rulings
Parties:	Bungree Aboriginal Association Limited (Applicant) NSW Registrar of Community Housing (Respondent)
Representation:	Counsel: S Prince (Applicant) J Taylor (Respondent)   Solicitors: Aubrey Brown Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2019/00030145

REASONS FOR DECISION

1. On 2 April 2019 I made an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) prohibiting disclosure of the identity of the complainants whose identity is disclosed in the confidential material filed in these proceedings by the respondent. I ordered that that material is not be disclosed to the applicant in the proceedings or to the public. These are my reasons, albeit brief, for why I did so.

Background

2. On 14 January 2019 the NSW Registrar of Community Housing (the Registrar) decided to cancel the registration of Bungree Aboriginal Association Limited (Bungree) as a community housing provider. The decision was made pursuant to s 16(3)(a) of the Community Housing Providers National Law (the National Law) which is Schedule 1 to the Community Housing Providers (Adoption of National Law) Act 2012 (NSW).

3. The Registrar had decided that Bungree had not complied with certain provisions of the National Law and with certain clauses of the National Regulatory Code set out in Schedule 1 of the National Law. The Registrar had considered that these matters warranted cancelling Bungree’s registration.

4. Bungree appealed to this Tribunal from that decision in accordance with s 25(1)(e) of the National Law. Pending the outcome of the appeal, the decision to cancel Bungree’s registration has been stayed. In preparation for the hearing the Tribunal has made directions for the filing of evidence by both parties. The Registrar sought orders that some parts of the material filed by him be either withheld or redacted and not provided to Bungree or be made publicly available. Bungree opposed the making of those orders.

5. The material that the Registrar sought to be redacted from the material provided was, in summary:

1. any material which could identify persons who had made a complaint to the NSW Ombudsman about Bungree which had been referred to the Registrar;

2. any reference to an investigation report by the Aboriginal Housing Office (AHO) and its contents, including a copy of the report;

3. a reference to an assessment conducted by the Department of Prime Minister and Cabinet about delivery by Bungree of programs funded by the Department.

6. In relation to item (b), the AHO has now consented to the fact of the existence of the report being known and, according to evidence provided at the hearing, will provide the Registrar with advice on what parts of the report can be provided to Bungree. At the preliminary hearing I advised the Registrar that any redactions to the report should be in line with the order made on 2 April 2019.

7. The reason provided for redaction of the reference to the assessment conducted by the Department of Prime Minister and Cabinet (item (c)) was said to be because the Department had not consented to the release of the information. No evidence was provided of consent having been refused and I could see no reason why the reference should not be released to Bungree.

8. The primary redactions which the Registrar therefore seeks to make to the material provided relate to item (a).

The relevant law

9. The starting point for the consideration of the issues raised in this application by the Registrar is s 49 of the CAT Act. That section provides that hearings of the Tribunal are to be conducted in public unless the Tribunal orders otherwise. The presumption therefore is that proceedings of the Tribunal will be public. Sub-section 49(2), however, qualifies that presumption by providing that a hearing may be conducted wholly or partly in private 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.

10. Division 6 of Part 4 of the CAT Act is titled “Information disclosure” and contains a number of provisions which prevent or limit the disclosure by the Tribunal of certain categories of information. Central to this application is s 64 which 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 s 65 in s 64(2) has no application to these proceedings.

12. The Registrar also sought to rely on s 66 of the CAT Act which concerns the effect of the Government Information (Public Access) Act 2009 (GIPA Act) on the disclosure of information in Tribunal proceedings. I do not find it necessary to determine the scope and application of that section as I am satisfied the matter can be dealt with in accordance with the order making power contained in s 64. I note, however, that no decision has been made under the GIPA Act with respect to the information in relation to which the Registrar seeks orders preventing disclosure. I have some concerns about the Tribunal being asked, in an interlocutory hearing, to determine, in accordance with the GIPA Act, whether there is an overriding public interest against disclosure of the information.

13. The Registrar points out the Tribunal has a broad discretion under s 64 to withhold disclosure of relevant documents and evidence as the section refers particularly to the “confidential nature” of any evidence but also provides that the Tribunal can restrict or prohibit disclosure “for any other reason”.

14. Bungree submitted that the starting point for any consideration of whether an order should be made under s 64 is the principle of open justice. In Bellamy v Bellamy [2018] NSWSC 534 Parker J, with respect to s 64(1)(d) stated at [30]:

Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal. (emphasis added)

15. Bungree also referred to the judgment in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 where McHugh JA stated:

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.

Evidence before the Tribunal

16. The evidence before the Tribunal consists of the a copy of the unredacted documents, an affidavit of the Registrar, Mr Neil Quarmby, an affidavit of Ms Suzanne Madden, the Chief Executive Officer of Bungree, and an email to Bungree from an officer at NSW Fair Trading.

17. Mr Quarmby states that, in order to fulfil his responsibilities under the National Law to monitor compliance and investigate complaints about registered community housing providers, he relies on information provided by the community housing providers themselves, information from other agencies and information from current or former tenants and employees of providers. He states that in 2017-18 his office dealt with 87 complaints and 17 whistle-blower notifications, a small number of which led to investigations. He states that the significant majority of the complaints and notifications were from current or former tenants and employees of providers.

18. The information relating to the identity of the complainants which the Registrar seeks to keep confidential includes dates, the number of complainants, the job description and job duties of complainants and descriptions of events from which it would be possible to ascertain the identity of the complainants.

19. Mr Quarmby states that the complainants only participated in his investigation on the understanding that their identities would remain confidential. In making this statement Mr Quarmby was relying on information provided to him by the investigators from his office which carried out the investigation. The investigators told him that the complainants would only participate in the investigation if they were given an undertaking their names would not be disclosed.

20. The Registrar’s submissions in support of the making of confidentiality orders can be grouped under two broad headings:

1. that the information was provided in confidence and release of the identity of the complainants will undermine trust and prejudice the future ability of the Registrar to obtain information in order to fulfil his functions; and

2. fear on the part of the complainants of some form of retaliation if their identities are revealed.

21. In her affidavit Ms Naden set out four complaints which have been made in the past about aspects of Bungree’s services. She states that no retribution has been taken against a complainant, including where their identity was known. Furthermore, Bungree’s employees have been made aware of Bungree’s obligations as a party to these proceedings.

22. Bungree also provided a copy of an email to Bungree from an officer at NSW Fair Trading sent on 27 March 2019 seeking the assistance of Bungree with a program aimed at increasing engagement between Aboriginal communities and government. The email raises no concerns about Bungree’s treatment of complainants.

23. Bungree submits that there is no legislative basis for any undertaking of confidentiality having been made to the complainants and, where there is no evidence of past intimidation, there is no compelling reason for the identity of the complainants to be withheld. Bungree submits that it would be procedurally unfair if the organisation was not made aware of all the information which was before the Registrar and which led to the cancellation of registration. Bungree submitted that, in order to respond to the allegations made against it, it needs to know the identity of the complainants.

Consideration

24. In CYL v YZA [2017] NSWCATAP 105 the Appeal Panel examined the interrelationship between s 49(1) and s 64(1) of the CAT Act and held that the Tribunal’s power to make suppression orders is less constrained than the position at common law. In doing so, the Appeal Panel adopted the reasoning of the Administrative Decisions Tribunal’s Appeal Panel (ADT Appeal Panel) in State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 which had examined very similar provisions in the Administrative Decisions Tribunal Act 1977 (ADT Act).

25. The ADT Appeal Panel referred to the passage of McHugh JA in John Fairfax & Sons Ltd set out above and held that, at common law, both the purposes to be served by a suppression order and the criterion for determining whether one may be made, are formulated in distinctly narrower terms than in s 75(2) of the ADT Act (which is now replicated in s 64(1) of the CAT Act).

26. The starting point in deciding whether an order under s 64(1) should be made is, of course, the presumption set out in s 49 that proceedings are to be conducted in public. That provision is in conformity with the rules of procedural fairness and in ensuring that a party knows the case it has to meet.

27. One of the “extraordinary circumstances”, to use the words of Parker J in Bellamy, in which an order can be made under s 64(1) which would have the effect of a party being deprived of access to all of the evidence which is before the Tribunal, is where “the Tribunal is satisfied it is desirable to do so by reason of the confidential nature of any evidence or matter”.

28. It is not uncommon for agencies with powers to investigate compliance within a regulatory environment or which deal with complaints to provide complainants some form anonymity unless the complainant consents to release of their information. The rationale for doing so is that the effectiveness of such an agency to fulfil its functions depends on the co-operation of those who have information relevant to the investigation. This in turn may depend on the information they provide being kept confidential, if that is legally possible (Robinson v Department of Health [2002] NSWADT 222 at [71]). There is no requirement that an agency must exercise a particular legislative power prior to provide some anonymity to a complainant.

29. The evidence in this case provided by Mr Quarmby is that the complainants only agreed to participate in the investigation if their identities were to remain confidential. Bungree was critical of that evidence as Mr Quarmby was simply relaying what he had been told by others. While it may have been preferable for the investigators to have provided first hand evidence of the discussions they had had with the complainants concerning confidentiality, I have no reason to doubt the accuracy of the information provided by Mr Quarmby. I therefore accept that undertakings as to confidentiality were given and the information was provided to the Registrar by the complainants because of those undertakings. The evidence, which I accept, is that the complainants would not have co-operated with the investigation if such undertaking had not been given.

30. I am therefore satisfied that the information about the identity of the complainants sought to be prohibited from disclosure was provided to the Registrar in confidence.

31. It is apparent from the evidence that the complainants fear some form of retribution or retaliation because they have made complaints about Bungree. There is no direct information before me which would substantiate those fears. Nevertheless, I accept that they are genuinely held by the complainants.

32. Bungree states that it in order to respond fully to the allegations made against it, it needs to know the identity of the complainants. Bungree has not, however, expanded upon why that is so. It is the substance of the allegations themselves that Bungree is required to respond to, not who made the allegations. One of the grounds of appeal in the substantive proceedings is that Bungree was not provided with sufficient detail of the allegations by the Registrar before the Registrar made his decision. That matter will be determined in the substantive proceedings.

33. I am mindful that this is an interlocutory hearing and is therefore one in which I am not apprised of the full range of evidence to be put before the Tribunal in the substantive proceedings. At this stage of the proceeding, however, I am satisfied that it is desirable, because of the confidential nature of the evidence to make an order which will prohibit disclosure of the names of the complainants which, in accordance with s 64(4), includes a reference to information or other material that identifies the person or is likely to lead to their identification. The order is limited to that matter.

34. I note that the Registrar is to revisit the redacted material to ensure that it is only information concerning the identity of the complainants that is not to be disclosed to Bungree.

Order

1. An order is made under s 64(1) of the Civil and Administrative Tribunal Act 2013 prohibiting disclosure of the identity of the complainants whose identity is disclosed in the confidential material filed in these proceedings by the respondent. That material is not to be disclosed to the applicant in the proceedings or to the public.

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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: 15 April 2019