Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: FLF v Children’s Guardian [2022] NSWCATAD 380 Hearing dates: 8 June 2022 Date of orders: 07 December 2022 Decision date: 07 December 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: P French, Senior Member Decision: (1) The decision under review is affirmed.
Catchwords: ADMINISTRATIVE LAW – administrative review of a reviewable decision – decision to refuse to provide access to certain information
Legislation Cited: Administrative Decisions Review Act 1997 (NSW) – ss 9, 55, 63
Children’s Guardian Act 2019 (NSW) – ss 115, 127 128
Children and Young Persons (Care and Protection) Act 1998 (NSW) - ss 24, 29, 29(1A)
Child Protection (Working with Children) Act (NSW) – ss 6, 7, 15, 16, 19, 31, Part 2, Part 3
Civil and Administrative Tribunal Act 2013 (NSW) – s 64
Government Information (Information Commissioner) Act 2029 (NSW) – s 13
Government Information (Public Access) Act 2009 (NSW) – ss 3, 4, 9, 12, 13, 14, 15, 43, 58, 59, 80, 82, 89, 100, 105, 107 Schedule 1, Schedule 2, Schedule 4
Privacy and Personal Information Protection Act 1998 (NSW) – ss 4, 18, 25
Cases Cited: Ansoul v City of Sydney [2017] NSWCATAD 65
Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185
Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19
Davis v Secretary, Department of Education [2022] NSWCATAD 55
Danis v Commissioner for Police [2020] NSWCATAD 138
Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13
Director General, Department of Family and Community Services v FEW [2013] NSWSC 1448
Director-General, Department of Education and Training v Mullett [2002] NSWADTAP 13
DYD v Commissioner of Police [2019] NSWCATAD 265
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Leech v Sydney Water Corporation [2010] NSWADT 298
Martin v Commissioner of Police [2005] NSWADT 23
McMahon v Director-General, Department of Fair Trading [2003] NSWADT 164
Medlyn v Commissioner of Police (NSW) [2020] NSWCATAD 125
Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254
Re Attorney-General’s Department and Australian Iron and Steel Pty Limited v Peter Cockcroft G260 of 1985 Administrative Law [1986] FCA 35
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6
Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286
Simring v Commissioner of Police [2009] NSWSC 270
VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2002) 225 CLR 88
Texts Cited: Case Study 41, Royal Commission into Institutional Responses to Child Sexual Abuse
Information Commissioner, Guideline 4 – Personal Information as a public interest consideration under the GIPA Act.
Category: Principal judgment Parties: FLF (Applicant)
Children’s Guardian (Respondent)Representation: Applicant (Self Represented)
Crown Solicitor (Respondent)
File Number(s): 2022/00054289 Publication restriction: (1) The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
(2) The applicant is to…
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- AGLC
- FLF v Children's Guardian [2022] NSWCATAD 380
- Case
- [2022] NSWCATAD 380
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Tribunal was whether the Guardian's refusal to disclose the information was justified under the relevant legislation, specifically the Children and Young Persons (Care and Protection) Act 1998. The Tribunal had to consider the balance between the public interest in protecting the identity of individuals who make reports concerning children at risk and the right of FLF to access information that might be pertinent to their application for administrative review. The Tribunal also needed to determine whether the Guardian's decision was in accordance with the statutory provisions regarding the protection of such reports and the information they contain.
In its decision, the Tribunal found that the Guardian's refusal to disclose the information was consistent with the statutory framework designed to protect the confidentiality of those who report concerns about children at risk. The Tribunal emphasised that the protection of the identity of these individuals is a critical public interest, necessary to encourage the reporting of concerns about child welfare without fear of reprisal. The Tribunal concluded that the Guardian had correctly balanced the public interest against the need for information in this case and affirmed the decision under review.
No further orders were made by the Tribunal beyond affirming the decision of the Children's Guardian. The refusal to disclose the information was upheld, maintaining the confidentiality protections afforded to those who report concerns about children at risk.
Orders
Orders of the court
(1) The decision under review is affirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Procedure for dealing with public interest considerations In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overrising public interest against disclosure. Care and protection of children Protection of persons who make reports or provide certain information If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons –… (d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings) –(i) care proceedings in the Children’s Court,(ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth,(iii) proceedings in relation to a child or young person before the Supreme Court of the Civil and Administrative Tribunal,(iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims’ Rights and Support Act 2013,(v) proceedings under the Coroners Act 2009, and(e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and (f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with –(i) the consent of the person who made the report, or(ii) the leave of a court or other body before which proceedings relating to the report are conducted,and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person. In this section – Report concerning child or young person at risk of significant harm