DGZ v Children's Guardian

[2020] NSWCATAD 275

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DGZ v Children's Guardian [2020] NSWCATAD 275

Hearing dates:

18 May 2020

Date of orders:

10 November 2020

Decision date:

10 November 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Easton, Senior Member

Decision:

(1) Pursuant to s 58 and s 59 of the Administrative Decisions Review Act 1997 the respondent is not required to lodge unredacted copies of the documents it previously lodged in redacted form.

(2) Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, publication and reporting of the hearing of this application including any evidence given during the hearing, and publication of paragraphs 18-32 of these reasons, are prohibited.

Catchwords:

PRACTICE AND PROCEDURE – application for administrative review – lodgement of documents under s 58 of the Administrative Decisions Review Act 1997 –whether order should be made that administrator not be required to lodge documents

PRACTICE AND PROCEDURE – public interest immunity – balancing of competing public interests – early consideration of the “appropriateness” of disclosure of documents

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Act 2013

Cases Cited:

Alister v The Queen (1983) 154 CLR 404

Texts Cited:

Nil

Category:

Principal judgment

Parties:

DGZ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
P Lowson (Applicant)
R Bhalla (Respondent)
Solicitors:
Court Solicitors & Barristers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2019/00242731

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of the Applicant is prohibited.

Pursuant to s 64(1)(b), s 64(1)(c) and s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, publication and reporting of the hearing of this application including any evidence given during the hearing, and publication of Appendix A of these reasons is prohibited.

REASONS FOR DECISION

1. The applicant, referred to as “DGZ” in these proceedings, has applied under the Administrative Decisions Review Act 1997 (the ADR Act) to review the decision by the Children’s Guardian that he poses a risk to children. In late 2017 the Children’s Guardian gave notice to cancel DGZ’s Working with Children Check clearance for various stated reasons. The notice from the Children’s Guardian to DGZ includes the following:

You applied for a Working with Children Check clearance and a risk assessment was undertaken pursuant to section 15(3) of the Child Protection (Working with Children) Act 2012…. This is because on 6 December 2016 the Office of the Children’s Guardian received a notification from the NSW Ombudsman indicating that you had been the subject of multiple allegations of sexual misconduct, harassment, abuse and assault of children between the 1980s and 2014. Some of the allegations relate to your time working …. between 2002 and 2013. The Office of the Children’s Guardian considers these allegations serious as they are repetitive and sexual in nature. Of particular concern, are the allegations regarding inappropriate sexual conduct towards children in the context of child-related employment.

2. DGZ denied, and continues to deny, the allegations that are said to support the determination and says that he does not pose a risk to children.

3. In the course of making her decision, the Children’s Guardian received documents from the Commissioner of Police and other agencies pursuant to s 31 of the Child Protection (Working with Children) Act 2012 (“CP Act”).

4. Section 58 of the ADR Act requires the Children’s Guardian to lodge with the Tribunal documents including “a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal” (per s 58(1)(b)). Section 59 of the ADR Act allows a respondent to apply for an order that it not be required to lodge documents.

5. The Children’s Guardian, supported by the Commissioner of Police, applied for orders under s 59 to permit the Children’s Guardian to lodge redacted versions of certain documents (“the Restricted Documents”).

6. The Children’s Guardian has provided redacted versions of the Restricted Documents to DGZ’s legal representatives.

7. In an open hearing on 18 May 2020 the parties agreed on an interim confidentiality regime that facilitated the filing of unredacted copies of the Restricted Documents, as well as some additional documents relied on by the Children’s Guardian and the Commissioner of Police to support the application under s 59. Under this confidentiality regime unredacted copies of the Restricted Documents will be returned to the Children’s Guardian and the Commissioner of Police upon the determination of the s 59 application, and will not be retained on the Tribunal’s file.

8. In a private hearing held pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) the Children’s Guardian and the Commissioner of Police made submissions and provided the confidential documents referred to above.

9. The issue for determination is whether the Tribunal should insist on full compliance with the Children’s Guardian’s obligation under s 58 of the ADR Act to lodge in the Tribunal every document relevant to the determination of the application.

10. The purpose of s 58 of the ADR Act is self-evident. At the commencement of the proceedings DGZ is entitled, like any other applicant, to access documents the agency / administrator considers relevant to the determination of the application by the Tribunal – subject to certain qualifications. The obligation under s 58 is not unlike giving discovery and stands in contrast to the approach of many other Courts where discovery is only available in very limited circumstances.

11. Section 59 of the ADR Act qualifies the otherwise broad operation s 58 and is in the following terms:

59 Objections to lodgement

(1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58.

(2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:

(a) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or

(b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.

12. Section 59 gives a respondent relief from early disclosure of privileged documents. ^[1] The Children’s Guardian and the Commissioner of Police submit that the redacted portions of the Restricted Documents are subject to public interest immunity (per s 130 of the Evidence Act 1995).

    1. See s 59(2)(a) of the ADR Act, which in turn refers to s 67 of the Civil and Administrative Tribunal Act 2013 which in turn refers to Part 3.10 of the Evidence Act 1995 (NSW).

Public Interest Immunity Claim

13. The Children’s Guardian and the Commissioner of Police submit that the redacted portions of the Restricted Documents are subject to public interest immunity. I will not describe in this section of the decision the specific basis of the claim of public interest immunity.

14. In determining whether or not to allow a claim of public interest immunity the Tribunal must balance the public interest in withholding the disclosure of information or the production of such documents, against the public interest in ensuring that courts performing the functions of justice should allow parties to have access to relevant evidence.

15. This is a three stage process: firstly determining whether there is a legitimate forensic purpose for disclosure of the documents, secondly determining whether there is a sound basis for the claim of public interest immunity, and thirdly balancing the competing public interests in the circumstances of the particular application.

16. The first stage is straightforward: the Children’s Guardian is otherwise required to lodge documents properly captured by the terms of s 58. I can necessarily assume that the obligation under 58 is included in the ADR Act because Parliament considered there to be a legitimate forensic purpose in the disclosure of s 58 documents.

17. For the reasons provided in the following paragraphs, I am satisfied that there is a sound basis for the claim of public interest immunity.

18. NOT FOR PUBLICATION

19. NOT FOR PUBLICATION

20. NOT FOR PUBLICATION

21. NOT FOR PUBLICATION

22. NOT FOR PUBLICATION

23. NOT FOR PUBLICATION

24. NOT FOR PUBLICATION

25. NOT FOR PUBLICATION

26. NOT FOR PUBLICATION

27. NOT FOR PUBLICATION

28. NOT FOR PUBLICATION

29. NOT FOR PUBLICATION

30. NOT FOR PUBLICATION

31. NOT FOR PUBLICATION

32. NOT FOR PUBLICATION

33. In balancing the competing public interests in the circumstances of the particular application, the first thing to note is that s 58 brings forward to an early stage in the proceedings the production of documents or materials that might otherwise be produced by a respondent under subpoena. Any claims and contests over privilege and the like are similarly brought forward in the proceedings by the facility for the respondent to make an application under s 59. For practical purposes, the production stage under s 58 is the time at which the applicant can obtain documents from the respondent that are relevant to the proceedings, and is the time at which the respondent can resist that production. In determining the respondent’s s 59 application I am cognisant that, for practical purposes, if the applicant does not obtain particular documents at the s 58 stage then the applicant is not likely to obtain them at a later stage in the proceedings. Knowing that many if not most respondents are subject to a model litigant policy, the Tribunal is entitled to expect (but should not assume) that respondents carefully scrutinise any claims under s 59 before they are made.

34. DGZ seeks administrative review of a decision under the CP Act. It is also important in balancing the competing public interests to recognise that the safety, welfare and wellbeing of children and, in particular, protecting children from child abuse is the paramount consideration when making any decisions under the CP Act.

35. Conversely DGZ worked in child-related work for a long period of time. I accept for current purposes that the cancellation of his WWCC Clearance is a significant decision and that DGZ is entitled to present his best possible case to the Tribunal.

Section 59(2)(b) Claim

36. The Children’s Guardian and the Commissioner of Police also relied upon s 59(2)(b) of the ADR Act. Section 59(2)(b) must be considered in conjunction with sections 49 and 64 of the NCAT Act, viz:

49 HEARINGS TO BE OPEN TO PUBLIC

(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it 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.

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) …

[Emphasis added]

37. Section 59(2)(b) gives a respondent relief from early disclosure of documents it may never have to disclose to the applicant. Section 64(1)(d) of the NCAT Act enables the Tribunal to make an order prohibiting or restricting disclosure of the contents of a document to some or all of the parties to the proceedings if satisfied it is desirable to do so by reason of the confidential nature of the matter or “for any other reason”.

38. Having reviewed the documents I am satisfied for the purposes of s 59(2)(b) that if an application were made under s 64 of the NCAT Act that it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of the redacted material.

39. Section 59(2)(b) requires the Tribunal to speculate at an early stage about what may or may not be thought appropriate at a later stage of the proceedings. If orders under s 64 are contemplated later in the proceedings the Tribunal will necessarily have substantially more information and evidence to determine the appropriateness of such an order. In the context of considering whether a document should or should not be lodged under s 58 and s 59, the Tribunal should take a cautious approach in order to avoid the possibility of early disclosure of documents that should properly be subject to an order under s 64.

Orders

40. Accordingly I make the following orders:

1. Pursuant to s 58 and s 59 of the Administrative Decisions Review Act 1997 the respondent is not required to lodge unredacted copies of the documents it has previously lodged in redacted form.

2. (2) Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, publication and reporting of the hearing of this application including any evidence given during the hearing, and publication of paragraphs 18-32 of these reasons, are prohibited.

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Endnote

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: 10 November 2020