GWF v Secretary, Department of Education

[2025] NSWCATAD 87

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GWF v Secretary, Department of Education [2025] NSWCATAD 87

Hearing dates:

11 March 2025

Date of orders:

22 April 2025

Decision date:

22 April 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Principal Member

Decision:

That part of the summons issued on 30 January 2025 by the applicant to the Commissioner of Police, NSW Police Force which requires production of body worn video relating to an incident on 3 April 2024 at the applicant’s children’s school is set aside.

Catchwords:

SUMMONS – summons to produce police body worn video footage – footage is protected information under Surveillance Devices Act 2007 – prohibition on use, communication or publication of such information – application to set aside summons – NSW Commissioner of Police v Zurich Australian Insurance Ltd applied – no legitimate forensic purpose – no exception to prohibition on use, communication or publication

Legislation Cited:

Surveillance Devices Act 2007

Surveillance Devices Regulation 2022

Cases Cited:

NSW Commissioner of Police v Zurich Australian Insurance Ltd [2016] NSWCA 365

Wojciechowska v Commissioner of Police [2021] NSWCATAD 284

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

GWF (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Counsel:
H Nguyen (Applicant)

Solicitors:
Vogel Legal Pty Ltd (Applicant)
Kingston Reid Lawyers (Respondent)
Makinson d’Apice, Lawyers (Commissioner of Police)

File Number(s):

2024/00320009

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the name of the applicant is not to be disclosed.

REASONS FOR DECISION

1. GWF, on behalf of herself and her three children, has made complaints of disability discrimination against the respondent, the Secretary, Department of Education. GWF’s children attend a public school in regional NSW. The complaints were referred to the Tribunal by Anti-Discrimination NSW. I note that orders have previously been made prohibiting disclosure of GWF’s name.

2. On 30 January 2025 a Summons to Produce Documents was issued to the Commissioner of Police, NSW Police Force (the Commissioner) by GWF’s legal representative. The summons sought unredacted policing records and body worn video footage relating to an incident on 3 April 2024 at GWF’s children’s school. It seems that police recorded their interaction with GWF at the school on body worn video footage. In the application for the summons to be issued GWF stated:

The documents are evidence of an incident at the Applicant’s children’s school which culminated in the Applicant being escorted from the premises by NSW police. The Applicant was subsequently banned from the school.

The Applicant alleges that the Respondent’s conduct was unlawful discrimination and the incident is the subject of the Applicant’s Discrimination complaint…

3. The Commissioner objects to access being granted to the body worn video footage and seeks to set aside the summons on the basis of a statutory prohibition under s 40 the Surveillance Devices Act 2007. Information obtained from the use of police body worn video comes within the terms of the Surveillance Devices Act and is “protected information”: s 39.

4. Section 40(1) of the Surveillance Devices Act provides:

40   Prohibition on use, communication or publication of protected information

(1)  A person is guilty of an offence if —

(a)  the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information, and

(b)  the person knows that, or is reckless as to whether, the information is protected information, and

(c)  the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section.

Maximum penalty—Imprisonment for 2 years.

5. The Surveillance Devices Act contains a number of exceptions to the general prohibition in s 40(1). These are set out in ss 40(3), 40(4), 40(4A), 40(5) of the Surveillance Devices Act and cl 5 of the Surveillance Devices Regulation 2022.

6. The Commissioner relies upon the judgment of the Court of Appeal in NSW Commissioner of Police v Zurich Australian Insurance Ltd [2016] NSWCA 365. That was a case where the Commissioner objected to a subpoena for production of recordings obtained as a result of a warrant issued under the Surveillance Devices Act. There was no question that the recordings contained protected information. The Court of Appeal held that, in the absence of any circumstances falling within the exceptions in s 40, the prohibition on use, communication or publication of the recordings contained in s 40(1) meant that the recordings could not lawfully be used in the proceedings and therefore the subpoena lacked a legitimate forensic purpose. In this matter I do not understand GWF to argue otherwise. The issue is whether any exceptions apply so as to render use, communication or publication of the protected information lawful.

7. GWF states that the Commissioner should be ordered to produce the body worn video footage as there are several exceptions which apply. It is stated that the body worn video footage is relevant to complaints 3 and 4 of the Points of Claim filed with the Tribunal by GWF. Complaint 3 alleges the school discriminated against GWF’s youngest child by engaging in physical force to separate the child from GWF when she was dropped at school, in circumstances where the child suffers from separation anxiety. Complaint 4 concerns the incident on 3 April 2024 referred to above. GWF alleges that the school discriminated against her by calling the police to remove her from the school grounds and by banning her from the school grounds following the incident.

8. The exceptions relied upon by GWF are contained within ss 40(5) and (6), s 40(3)(b) and s 40(4)(c). I will deal with each in turn.

The public interest exception

9. Section 40(5) provides that protected information may be communicated or published by a law enforcement officer to any person with the consent of the chief officer of the law enforcement agency of which the officer is a member. In this case, that is the Commissioner. Under s 40(6) the Commissioner may consent to the communication of protected information only if satisfied that it is necessary or desirable in the public interest for the protected information to be communicated to the person concerned and that the public interest in communicating the information outweighs any intrusion on the privacy of the person to whom it relates or of any other person who may be affected by its communication. GWF states that the Tribunal should order disclosure of the body worn video footage under sections 40(5) and (6) of the Surveillance Devices Act.

10. GWF refers to the decision of the Tribunal in Wojciechowska v Commissioner of Police [2021] NSWCATAD 284 where the Tribunal provided the applicant in that case with access to body worn video footage. That matter concerned an application under the Government Information (Public Access) Act 2009 (GIPA Act) for access to certain information, including the body worn video footage.

11. GWF seeks to rely on the public interest considerations in favour of disclosure identified by the Tribunal in Wojciechowska as a reason why the summons should not be set aside. In my view that decision has no relevance to the current matter being a decision under the GIPA Act in relation to access to government information.

12. The GIPA Act establishes its own regime for access to government information. Clause 6(1) of the table to s 14(2) of the GIPA Act makes provision for a public interest consideration against disclosure where a disclosure could (disregarding the operation of the GIPA Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule that prohibits the disclosure of information, regardless of any qualifications or exceptions to that prohibition. Section 40 of the Surveillance Devices Act is a prohibition falling within the public interest consideration against disclosure in cl 6(1) of the table to s 14(2) of the GIPA Act. Section 11 of the GIPA Act, however, states that the GIPA Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law. Section 11, therefore, makes it clear that the public interest test in s 13 of the GIPA Act must be applied to any information the disclosure of which falls with cl 6(1) of the table to s 14(2). It is in that context that public interest considerations in favour of disclosure came to be considered.

13. This matter is concerned with a summons issued to the Commissioner for production of the body work video footage. It is clear that the Commissioner has not consented to the release of the material under s 40(5). There is nothing in the Surveillance Devices Act to permit the Tribunal to stand in the shoes of the Commissioner and consent to release of the footage.

14. The exception in s 40(5) has no application in this matter.

Threat of serious violence

15. GWF submits that the body worn video footage is captured by the exception under s 40(3)(b) of the Surveillance Devices Act. This provision permits the use or communication of protected information by a person who believes on reasonable grounds that the use or communication “is necessary to help prevent or reduce the threat of serious violence to a person”.

16. GWF argues that the school’s alleged practice of physically and forcibly separating her youngest daughter from her at school drop off, in circumstances where her daughter has separation anxiety, amounts to “serious violence”. GWF further submits that for disclosure to be captured by this exception, she does not have to prove that actual violence will result if the material is not produced, only that production of the relevant material could help "prevent or reduce the threat of serious violence". It is also submitted that access to the body worn video footage will assist the Tribunal to determine the issues in dispute in these proceedings and ultimately help to "prevent or reduce the threat of serious violence" towards the youngest child in the future.

17. There is no definition of “serious violence” in the Surveillance Devices Act. The Commissioner refers to debates in Parliament at the time the Surveillance Devices Bill 2007 was introduced which referred to “serious violence” as distinguished from more minor matters. Those debates, however, do not assist as they were not statements made in the context of s 40(3), nor were they statements made by the drafters or proponents of the Bill.

18. The claims of discrimination against GWF’s youngest daughter are set out in the Points of Claim and relate to the period 1 December 2023 to 28 March 2024. It is alleged that between 6 February 2024 and 26 March 2024 her teachers routinely engaged in physical force and other restrictive practices to force her to separate from the person dropping her off at school. GWF’s youngest daughter has been diagnosed with separation anxiety and on 8 October 2024 was diagnosed with acute stress disorder and insomnia by her psychologist.

19. GWF’s representative acknowledged at the hearing that “serious violence” is a high bar to be met. I do not consider that the medical reports provided in support of the claim support a contention that GWF’s youngest daughter has suffered or been threatened with serious violence as that term is generally understood. There is also no suggestion in the material that there is currently any threat of serious violence to a GWF’s youngest daughter. In addition, there is nothing in the material to suggest that such a threat is likely in the foreseeable future. The claim of discrimination relates to past events and, in relation to GWF’s youngest daughter, primarily concerns a period of about 7 weeks in early 2024.

20. In any event, the body worn video footage the subject of the summons does not depict any incident directly involving GWF’s youngest daughter about which any claim of discrimination has been made in these proceedings.

21. I am not satisfied that the exception in s 40(3) applies.

For use in a “relevant proceeding”

22. GWF submits that production of the body worn video footage is permissible under s 40(4)(c) of the Surveillance Devices Act. This provision permits use, publication or communication if it is necessary to do so for "a relevant proceeding". Under s 4(c) of the Surveillance Devices Act, a relevant proceeding is defined to include "a proceeding for the protection of a child or intellectually impaired person".

23. GWF submits that the current proceedings in the Tribunal involve claims of disability discrimination against her three children by the Department of Education, where the alleged conduct is said to have caused the children to suffer a detriment and psychological harm. She notes that the term "protection of a child" is not defined in the Surveillance Devices Act, nor does the Act prescribe the types of proceedings which would fall within this category. She submits that this reflects an intention by the legislature not to restrict the classes of proceedings that may be captured by this exception. Accordingly, it is open to the Tribunal to find that these proceedings are "a proceeding for the protection of a child".

24. The Commissioner takes a different view and submits there is a distinction between proceedings in relation to an application under the Anti-Discrimination Act and proceedings that are “for the protection of a child". The Commissioner refers to the objects of the Surveillance Devices Act set out in s 2A and notes the Act primarily seeks to encompass the use of devices in criminal investigations for the purpose of prosecuting alleged offenders whilst also keeping the privacy of individuals protected. The Commissioner argues that it is doubtful that civil proceedings in the Tribunal concerning disability discrimination are "a proceeding for the protection of a child", as distinct from proceedings relating to the protection of the child which are prima facie captured by the relevant and appropriate jurisdictions such as that of the Children's Court of NSW, Federal Circuit and Family Court of Australia, and the Supreme Court of NSW by virtue of the parens patriae jurisdiction vested in it.

25. I am not satisfied that the application before the Tribunal under the Anti-Discrimination Act comes within the term "a proceeding for the protection of a child". I note that the definition of “relevant proceeding” in s 4 of the Surveillance Devices Act contains paragraphs (a) to (v). The proceedings enumerated in those paragraphs generally concern illegality of some sort, including for indictable offences, terrorism offences, war crimes, examinations before bodies such as the NSW Crime Commission and Australian Crime Commission and disciplinary proceedings against a public officer. The only proceedings directly related to the Tribunal are in s 4(v) and are proceedings in respect of an application for administrative review under section 75(1)(a) or (f) of the Firearms Act 1996. Those provisions relate to refusal of firearms licences and the making of firearms prohibition orders.

26. The types of proceedings coming within the definition of “relevant proceeding” are of a serious nature and concern matters involving allegations of criminality or risks of serious harm. While recognising the importance and validity of anti-discrimination proceedings, I do not consider such proceedings, where unlawful discrimination against a child is alleged, are proceedings for the protection of a child in the same manner as a child protection proceeding heard in an appropriate jurisdiction. This is so even though, as argued by GWF, part of what is sought in the current proceedings is protective in the sense that the respondent not be permitted to engage in certain practices in future. The seeking or making of such an order does as to future conduct not, in my view, bring the discrimination proceedings within the meaning of “a proceeding for the protection of a child”.

27. I am therefore not satisfied that this exception applies.

Conclusion

28. I am not satisfied that any of the exceptions to the prohibition in s 40(1) of the Surveillance Devices Act applies to the body worn video footage sought to be produced under summons. In the absence of circumstances falling within any of the exceptions, s 40(1) prevents the lawful use of the protected information by GFW in or in relation to the current proceedings. That part of the summons requiring production of body worn video footage must be refused.

Orders

1. That part of the summons issued on 30 January 2025 by the applicant to the Commissioner of Police, NSW Police Force which requires production of body worn video relating to an incident on 3 April 2024 at the applicant’s children’s school is set aside.

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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: 22 April 2025