JQ v Double Bay Out of School Hours Inc
[2008] NSWADT 337
•17 December 2008
CITATION: JQ v Double Bay Out of School Hours Inc. [2008] NSWADT 337 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
JQ
Double Bay Out of School Hours IncFILE NUMBER: 081078 HEARING DATES: On the papers SUBMISSIONS CLOSED: 7 November 2008
DATE OF DECISION:
17 December 2008BEFORE: Britton A - Deputy President CATCHWORDS: Order suppressing identity of party-open justice LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Children (Criminal Proceedings) Act 1987
Children and Young Persons (Care and Protection) Act 1998
Young Offenders Act 1997
Family Law Act 1975 (Cth)
Crimes (Domestic and Personal Violence) Act 2007CASES CITED: Dezfouli v State of New South Wales (Justice Health) and anor (No.2) [2008] NSWADT 155
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
O’Shane v Burwood Local Court (NSW) & Ors [2007] NSWSC 1300
State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69
Z v University of A, Dr D & B (No. 4) [2002] NSWADT 14REPRESENTATION: APPLICANT
RESPONDENT
In person
V Anderson, solicitorORDERS: 1. Pursuant to section 75(2) of the Administrative Decisions Tribunal Act 1997, the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of JQ or his children is prohibited
2. The parties to this application, their legal representatives or other advisors are at liberty to disclose the identities of the persons referred to in Order 1 for the purposes of: (i) taking statements from potential witnesses; or, (ii) seeking information from other persons directly related to the preparation of these proceedings before the Administrative Decisions Tribunal
3. When disclosing the identities of persons referred to in Order 1, for the purposes outlined in Order 2, the parties must bring to the attention of any persons to whom the disclosure is made this Order prohibiting any further disclosure of identities.
1 The applicant applies for a suppression order so that his name and details are not disclosed in these proceedings. The substantive application concerns the applicant’s complaint alleging discrimination on the ground of marital status made against Double Bay Out of School Hours Inc.
2 The applicant is divorced and shares the custody of his children with his former wife. He has responsibility for the care of the children on alternate weeks. When in the care of their father the children attend the after school care service operated by the respondent. The applicant claims that the respondent’s practice of charging him at the casual rate for his children’s care rather than the lower rate payable for a permanent booking, constitutes unlawful discrimination on the ground of marital status under section 47 of the Anti-Discrimination Act 1977 (the Act).
3 The respondent opposes the making of suppression orders.
4 By consent this matter is determined ‘on the papers’. Both parties provided written submissions.
Tribunal’s power to make suppression orders
5 The Tribunal’s power to make suppression orders is contained in section 75 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) which provides:
75 Proceedings on hearing to be conducted in public
(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, 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 that the hearing be conducted wholly or partly in private,
(b) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or
(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,
(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before 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.
(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.
(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).
(3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private.
6 Referred to in section 75(2A), section 126 of the Tribunal Act, prohibits, except with the consent of the Tribunal, the publication or broadcast of the name of any person involved or mentioned in respect of a certain class of matters, namely proceedings before the Community Services Division of the Tribunal, and appeals from decisions of that Division; proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983; proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983.
7 The operation of s 75 was the subject of detailed consideration by an Appeal Panel in the recent decision of State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69. The Panel observed that there are ‘evident and important differences between a power conferred in [the terms of s 75] and the common law power to prohibit or restrict the reporting of matters occurring in open court’ at [51]. The Panel noted that the test of ‘necessity’ generally applied by the courts (‘really necessary to secure the proper administration of justice in proceedings before it’ per McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4; see also O’Shane v Burwood Local Court (NSW) & Ors [2007] NSWSC 1300, McLellan CJ at CL at [46]) was not the test required to be applied in the exercise of section 75 of the Tribunal Act.
8 The Panel noted:
50 Within the opening words of section 75(2) of the ADT Act …, three elements of prime importance are the word ‘desirable’, the phrase ‘for any other reason’ and the word ‘may’. These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any … reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.
9 The Panel considered that in the circumstances of the matter under appeal the following factors were relevant to deciding whether an order should be made under section 75(2):
81…(a) the presumption in favour of open justice;
(b) the need for an applicant for a suppression order to establish good grounds for making the order;
(c) the comparative breadth of the criterion of ‘desirability’;
(d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party;
(e) the undoubted breadth of the range of purposes that may be served (‘any other reason’);
(f) the possibility that the purposes to be served may be a mixture of private and public interests; and
(g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.
Submissions made by the parties
10 The applicant argues that suppression orders should be granted for the following reasons. First, to do so would be consistent with the Family Law Act 1975 (Cth) which he contends, requires any post separation arrangements that involve children to be kept confidential; second, it would prevent ‘any inappropriate response’ from members of the school community towards himself or his children; third, it is consistent with the Tribunal’s practice where proceedings involve children; fourth, if the orders are not granted he will elect not to disclose information of a personal nature which he believes would be of assistance to his case; fifth, it is consistent with the ‘convention’ that children not be involved in legal proceedings.
11 The respondent resists the application and argues that suppression orders should not be granted for these reasons: first, to do so would offend the principle of open justice, citing in support Dezfouli v State of New South Wales (Justice Health) and anor (No.2) [2008] NSWADT 155 (shortly after the filing of the respondent’s submissions this decision was set aside on appeal - State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69. The Panel however endorsed at [62] the emphasis given by the Tribunal (below) to the principle of ‘open justice’); second, the protection of the privacy of the applicant’s family or possible embarrassment is not sufficient reason to grant the order sought.
Legislative provisions concerning the identification of children
12 As pointed out by the applicant a number of statutes prohibit the disclosure of the identity of children who are party to, or have some involvement in legal proceedings.
13 In NSW the Children (Criminal Proceedings) Act 1987 prohibits the publication of the name of (or any information, picture or other material that identifies or is likely to identify) a child who is a witness, is mentioned or is otherwise involved in criminal proceedings: s 11(1)(a). Similarly the Young Offenders Act 1997 prohibits the publication of the name of any child (or any information tending to identify the child) dealt with under that Act.
14 The prohibition against the disclosure of the identity of children is not restricted to criminal proceedings. The Children and Young Persons (Care & Protection) Act 1998 makes it an offence to publish or broadcast the name of any child or any information, picture or other material that identifies/is likely to identify, a child who is, or is reasonably likely to, appear as a witness, be involved in any capacity or is the subject of, any proceedings before the Children’s Court (section 105). The prohibition extends to any child the subject of a risk of harm report (sections 24, 25, 27) or a report that the child is, or is thought to be, homeless, or living away from home without parental consent (sections 120, 121 and 122).
15 The Crimes (Domestic and Personal Violence) Act 2007 makes it an offence to broadcast or publish the name of a child (or any information, picture or other material that identifies or is likely to lead to the identification of the child):
(a) for whose protection or against whom an apprehended violence order is sought; or
(b) who appears, or is reasonably likely to appear, as a witness before a court; or
(c) who is, or reasonably likely to be, mentioned or otherwise involved in any apprehended violence order proceedings (s 45(1)).
16 While as the above excursus reveals, the identification of children who are directly or remotely involved in legal proceedings, is prohibited in a significant class of matters in NSW, Parliament has nonetheless not imposed a blanket prohibition.
Disclosure under the Family Law Act
17 The relevant provisions of section 121 of the Family Law Act provide:
Restriction on publication of court proceedings
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2) A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
Findings and Conclusions
18 Section 75 of the Tribunal Act creates a presumption that proceedings will be conducted in public and the details of those proceedings, including the names of the parties, can be reported and published without restriction. That presumption can be rebutted where 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.
19 As conceded by the applicant in submissions in reply, section 121 of the Family Law Act does not require the Tribunal to suppress his name in these proceedings. While broad in scope that provision relates to proceedings before the Family Court. The prohibition does not attach to a person involved in proceedings before the Family Court and follow them into any future proceedings in which they might be involved.
20 While not expressly stated it is apparent from the applicant’s submissions read as a whole, that he is seeking orders prohibiting the disclosure of not just his identity but that of his children. It goes without saying that if his identity is disclosed, his children will also be able to be identified at least by those within the school, after-school and local community.
21 If the only substantial argument raised by the applicant was that his privacy ought be protected, this would not, of itself, be sufficient to rebut the presumption that all relevant details of the proceedings be available for publication. As the respondent correctly points out, mere embarrassment of a party and /or desire to protect their privacy has generally been rejected as a sufficient basis to grant a suppression order at common law (see John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 143 and O’Shane v Burwood Local Court [2007] NSWSC 1300 at [46]) and by this Tribunal (State of New South Wales (Justice Health) and anor v Dezfouli [2008] at [81] and Z v University of A, Dr D & B (No. 4) [2002] NSWADT 14 at [16]).
22 The community, through its national and State parliaments, however, has recognised in various forms of legislation that children are especially vulnerable to adverse publicity, that their development may be harmed by it, that they are usually unwilling participants in, or subjects of, litigation and that they are invariably too immature to protect their own interests in legal proceedings.
23 In this case, the applicant’s children had no say in whether or not he would make his complaint or carry it through or in the arguments he would advance and yet their interests have become inescapably engaged in the litigation.
24 In my opinion, there is a public interest in these proceedings being conducted openly and for it to be freely reported. The subject matter of the proceedings not only concerns the applicant’s private interests but potentially affects others. It is important to note that the application is not for a closed Tribunal or for suppression of the evidence per se, but only for suppression of the identities of the applicant and his children.
25 There is, in my view, no significant public interest in the identity of the children being revealed. The complaint made by the applicant does not turn on their identities and it is not important for anyone to know who they are to understand what is in issue in this case. Any derogation from the principle of open justice if an order suppressing their identities was made, would, in this case, be of little or no significance and have no effect on the principle itself.
26 On the other hand, the potential for harm to the children if the order is not made is substantial. It may expose them to some form of untoward response at their school or from members of the school community. A rejection of the application might also directly or indirectly disclose the terms of the orders made by the Family Court for the protection of the children.
27 When the balance is struck, it appears to me to be firmly in favour of the applicant. I propose to make the order he seeks.
Orders
1. Pursuant to section 75 (2) of the Administrative Decisions Tribunal Act 1997, the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of JQ or his children is prohibited
2. The parties to this application, their legal representatives or other advisors are at liberty to disclose the identities of the persons referred to in Order 1 for the purposes of: (i) taking statements from potential witnesses; or, (ii) seeking information from other persons directly related to the preparation of these proceedings before the Administrative Decisions Tribunal
3. When disclosing the identities of persons referred to in Order 1, for the purposes outlined in Order 2, the parties must bring to the attention of any persons to whom the disclosure is made this Order prohibiting any further disclosure of identities.
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