Foundations Care Ltd v Children's Guardian (No. 2)

[2020] NSWCATAD 258

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Foundations Care Ltd v Children’s Guardian (No. 2) [2020] NSWCATAD 258

Hearing dates:

On the papers

Date of orders:

09 November 2020

Decision date:

09 November 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr J Lucy, Senior Member

Decision:

(1) A hearing of the applicant’s application for a non-publication order is dispensed with.

(2) A hearing of the respondent’s application for redactions and for orders permitting the publication and broadcast of certain names is dispensed with.

(3) The applicant’s application for a non-publication order is dismissed.

(4) The respondent’s application for an order under s 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) is dismissed.

Catchwords:

ADMINISTRATIVE REVIEW – Child Protection – Application by applicant for non-publication of applicant’s name and identifying material – Application by respondent for redaction of material identifying children – Application by respondent for an order permitting publication generally of information to which s 65(2) of the Civil and Administrative Tribunal Act 2013 applies – Whether Tribunal’s power to provide consent to publication of names extends to power to permit any person to publish certain names

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)

Interpretation Act 1987 (NSW)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

Foundations Care Ltd v Children’s Guardian [2020] NSWCATAD 224

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

Misrachi v The Public Guardian [2019] NSWCA 67

Re Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386

Taylor v R [2015] NSWCCA 12

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Foundations Care Ltd (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
M Gaven (Respondent)

Solicitors:
Hall Payne Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2019/00271182

Publication restriction:

Section 65 of the Civil and Administrative Tribunal Act 2013 applies to these proceedings.

REASONS FOR DECISION

1. This is an application by a designated agency for non-publication orders and an application by the Children’s Guardian for orders which would have the effect of permitting the publication of the applicant’s name and that of witnesses named in the reasons for decision.

2. Foundations Care Ltd (“Foundations Care”) applied for administrative review, in the Tribunal, of the decision of the Children’s Guardian to cancel its accreditation as a designated agency. The Tribunal conducted a hearing over six days and was provided with extensive written submissions.

3. During the course of the hearing, I informed the parties that I proposed to publish the name of Foundations Care when I published my decision. Neither party objected to this proposed course during the hearing.

4. On 9 September 2020, I decided to cancel the accreditation of Foundations Care (Foundations Care Ltd v Children’s Guardian [2020] NSWCATAD 224). The parties were provided with a copy of my reasons for decision.

5. The decision was not published contemporaneously, as is the usual practice for decisions in the Administrative and Equal Opportunity Division. I instead invited the parties to make any application for material to be redacted by 16 September 2020.

6. The applicant’s response indicated that it considered that the Tribunal had erroneously included its name on the reasons for decision, although it did not make any submissions as to why the Tribunal should not publish its name. I provided the applicant with a further opportunity to make an application for non-publication of its name and for the Children’s Guardian to reply.

7. Foundations Care applied for an order prohibiting the publication of any information that may enable it to be identified and provided some brief submissions in support.

8. The Children’s Guardian opposed that order.

9. The Children’s Guardian applied for the redaction of certain identifying details of children referred to in my reasons. The applicant consented to this course.

10. The Children’s Guardian also applied for an order which would have the effect of permitting, generally, the publication of the names of the applicant and witnesses, provided that the person’s name appeared within the Tribunal’s reasons for decision.

Determination on the papers

11. A hearing is generally required for Tribunal proceedings (Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), s 50(1)). However, “[t]he Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal” (NCAT Act, s 50(2)).

12. The parties have been given an opportunity to make submissions as to whether a hearing of the summary dismissal application can be dispensed with (NCAT Act, s 50(3)(a)). The respondent consented to the matter being determined on the papers and the applicant did not oppose this course.

13. I consider that that the issues for determination in the parties’ applications can be adequately determined in the absence of the parties by considering their written submissions and other material they have provided to the Tribunal.

14. Accordingly, I have made orders dispensing with a hearing of each application.

Relevant legislative provisions

15. Section 49 of the NCAT Act provides:

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.

16. Sections 64 and 65 of the NCAT Act provide:

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.

65 Publication of names or identification of persons involved in certain proceedings

(1) This section applies only to the following proceedings—

(a) proceedings in the Guardianship Division (or internal appeals against decisions made in such proceedings),

(b) proceedings for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (including an internal appeal against such a decision),

(c) such other proceedings (or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(2) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person—

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings in the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings in the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty—

(a) in the case of a corporation—100 penalty units, or

(b) in any other case—50 penalty units or imprisonment for 12 months, or both.

(3) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(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.

Foundations Care’s application for non-publication order

17. Foundations Care has made an application, under s 65 of the NCAT Act, for an order prohibiting the publication of information that may enable it to be identified. Despite identifying s 65 of the NCAT Act as the relevant provision, it has also set out the text of s 64 of the NCAT Act in its written submissions, with parts of that provision underlined.

18. The applicant’s proceedings for an administrative review of the Children’s Guardian’s decision were “proceedings for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993.” “Community welfare legislation” is defined in s 4(1) of that Act to include the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”). The proceedings were for a decision for the purposes of the Care Act. Accordingly, s 65 of the NCAT Act applies to them (NCAT Act, s 65(1)).

19. The effect of s 65(2)(b) of the NCAT Act is to prohibit the publication or broadcast of the name of a person to whom any Tribunal proceedings relate, except with the Tribunal’s consent. On its face, that includes Foundations Care. Foundations Care, being a corporation, is a “person” unless a contrary intention appears (see Interpretation Act 1987 (NSW), ss 5(2), 21).

20. The Children’s Guardian submitted that s 65(2) does not apply to a “public company” because it would be a “surprising outcome” if that provision “was intended to be used to protect the identity of a public company engaged in the performance of a statutory functions involving proceedings related to its compliance with the NSW Child Safe Standards for Permanent Care 2015 in its care of children and young people in statutory out of home care.”

21. I agree that this is a “surprising outcome” and no doubt an outcome which was unintended. Nevertheless, the task of statutory construction must begin with a consideration of the text itself (see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]). The text of s 65(2) plainly captures the applicant as a “person.” I am inclined to the view that s 65(2) applies to it.

22. The prohibition upon publication does not extend to the publication of the Tribunal’s reasons for decision (NCAT Act, s 65(3)). Its reasons for decision are “an official report of the proceedings” within s 65(3), just as a court’s judgment is an official report of its proceedings (see Re Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 at [28] and Taylor v R [2015] NSWCCA 12 at [3]).

23. The Tribunal has power to make various non-disclosure and non-publication orders under s 64(1) of the NCAT Act, but cannot make an order under s 64 that is inconsistent with s 65 (NCAT Act, s 64(2)).

24. In my view, s 65 of the NCAT Act has the effect of prohibiting the publication or broadcast of the applicant’s name by persons other than the Tribunal. However, if I am wrong about this, I would not make the order sought by the applicant for the reasons which follow. I have also decided, for the same reasons, not to redact the applicant’s name in my published reasons for decision.

25. Foundations Care has submitted, in support of its application for a non-publication order, that unless its name is redacted, the identity of various children referred to in the reasons may be disclosed.

26. The copy of the reasons provided to the parties referred to various children as “Child A” or “Child B.” I have made some additional redactions, in the version of the reasons which is to be published, to details which might lead to the identification of one or more of the children to whom I have referred. I accept the Children’s Guardian’s submission that any concern about the identification of children is properly addressed through redaction of identifying material, and not through redaction of the applicant’s name.

27. The principle of open justice and the public interest in this case do not support a non-publication order (or the non-publication of the applicant’s name by the Tribunal in its reasons). As the Children’s Guardian submits, it is not in the public interest to protect the identity of a company involved in proceedings relating to the performance of its statutory functions and compliance with the NSW Child Safe Standards for Permanent Care 2015.

28. At common law, there is a presumption in favour of “open justice” (John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142ff). The Court of Appeal has recently suggested that this principle, which applies to curial proceedings, has less force in relation to the Tribunal, taking into account provisions such as s 50(2) and 64 of the NCAT Act (DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [21]-[27]; see also Misrachi v The Public Guardian [2019] NSWCA 67 at [13]-[16]).

29. The principle of open justice is nevertheless reflected in s 49(1) of the NCAT Act, which provides that a hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. I consider that publication of the applicant’s name, in my reasons for decision, is appropriate given the public interest in decisions concerning the accreditation of bodies with statutory responsibility for children in out-of-home care. It is also the decision which best gives effect to the principle of open justice.

30. The hearings of the proceedings were not closed to the public. There is no reason in principle why the applicant’s name should not be published in the Tribunal’s reasons. There are public interest reasons in favour of publication and I have therefore determined that this is the appropriate course.

Children’s Guardian’s application

31. The Children’s Guardian has applied for the redaction of certain details in the published version of my substantive decision which might identify children in care. I have made those redactions and some additional redactions to protect the identity of children in out-of-home care.

32. The Children’s Guardian also seeks an order in the following terms:

“That any person may publish or broadcast the name of any person:

(a)   who appeared as a witness before the Tribunal in the proceedings, or

(b)   to whom the proceedings in the Tribunal relate, or

(c)   who is mentioned or otherwise involved in the proceedings,

provided such name appears within the official report from the Tribunal containing the reasons for decision.”

33. The Children’s Guardian submits that s 65(3) of the NCAT Act “could be construed narrowly and operate to prevent publication or broadcast of names contained within the decision which did not attach the ‘official report’.” Section 65(3) of the NCAT Act may not protect a person who published, for example, a newspaper article about the Tribunal’s decision and referred in that article to the name of a witness in the proceedings or to Foundations Care.

34. The application for these orders was not expressly permitted or invited by the Tribunal’s directions and the applicant has not had an opportunity to respond to it.

35. Section 65(2) provides, as I see it, the only source of power for the Tribunal to permit publication or broadcast of material identifying a person where the provision would otherwise prohibit such publication or broadcast. This is a power to provide “consent.” To reiterate, s 65(2) provides that “[a] person must not, except with the consent of the Tribunal, publish or broadcast the name of any person…” On one construction, the power is to provide consent to a particular person requesting consent to publish a particular name or names, rather than a power to provide consent to persons generally to publish names. The words “a person” tend to suggest that the Tribunal’s powers are to be exercised in relation to specific persons.

36. I am not satisfied that I have power to make an order in the terms sought by the Children’s Guardian. Further, I do not consider that it is procedurally fair to make such an order in circumstances where the applicant has not been given an opportunity to respond to the application. Accordingly, I have decided not to make the order sought.

Orders

37. I make the following orders:

1. A hearing of the applicant’s application for a non-publication order is dispensed with.

2. A hearing of the respondent’s application for redactions and for orders permitting the publication and broadcast of certain names is dispensed with.

3. The applicant’s application for a non-publication order is dismissed.

4. The respondent’s application for an order under s 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) is dismissed.

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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: 11 November 2020