Re WD (No 4)
[2024] VSC 144
•28 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2023 06014
| IN THE MATTER of an application in the parens patriae jurisdiction of the Supreme Court of Victoria | |
| BETWEEN | |
| SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | Applicant |
| v | |
| WD | Respondent |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 February 2024 |
FURTHER SUBMISSIONS | 26, 28 February 2024 |
DATE OF RULING: | 28 March 2024 |
CASE MAY BE CITED AS: | Re WD (No 4) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 144 |
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OPEN COURTS – Application for proceeding suppression order and order to preserve the confidentiality of documents – Application made by Secretary to the Department of Families, Fairness and Housing – Respondent 13-year-old girl charged with murder – Respondent on bail in a secure welfare service in the care of the Secretary – Evidence of previous media coverage of alleged offending and aftermath – Suppression order sought in relation to details of the respondent’s current and proposed residence and report of forensic psychiatric assessment – Whether suppression order necessary – Whether court precluded from making suppression order in light of existing statutory prohibition on publication – Utility of proposed suppression order – Confidentiality order with respect to specific documents made – Application for suppression order dismissed – Open Courts Act 2013 (Vic), ss 4, 8, 17, 18 – Children, Youth and Families Act 2005 (Vic), ss 289, 534 – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 28.05.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | S Fitzgerald | Department of Families, Fairness and Housing |
| For the respondent | A McGregor (solicitor) | Dowling McGregor |
| For the Director of Public Prosecutions | A Stephanides (solicitor) | Office of Public Prosecutions |
HIS HONOUR:
A. Introduction
On 12 February 2024, an application for a proceeding suppression order pursuant to sections 17 and 18(1)(a) and (c) of the Open Courts Act 2013 (Vic) was made by the Secretary to the Department of Families, Fairness and Housing (“the Secretary”). The scope of that application was later broadened to include orders that certain documents remain confidential pursuant to rule 28.05(4) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“the Rules”).
Broadly, the Secretary’s application sought to prohibit the disclosure by publication or otherwise of certain information relating to the circumstances, care and custody of a 13-year-old girl charged with murder (“WD”),[1] and to preserve the confidentiality of documents filed in this proceeding. The Secretary has parental responsibility for WD,[2] and WD is currently on bail and residing in a secure welfare facility in the Secretary’s custody.[3]
[1]A pseudonym has been used to protect the identity of WD and to ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005 (Vic).
[2]Pursuant to a “care by Secretary” order made under s 289(1) of the Children, Youth and Families Act.
[3]See further Re WD [2023] VSC 780; Re WD (No 3) [2024] VSC 14.
The Secretary has previously applied for a suppression order in relation to WD, albeit in a separate proceeding commenced by WD’s application for bail (“the Bail Proceeding”). That application sought orders preventing the disclosure by publication or otherwise of any information that would tend to identify WD as the subject of proceedings in the Children’s Court of Victoria and in this court.
On 22 December 2023, that application was dismissed.[4] Immediately following this, the Secretary sought an interim suppression order pursuant to section 20 of the Open Courts Act on more limited terms. A number of large media organisations appeared before the court on that occasion.[5] They did not oppose the application on an interim basis. An interim order was made at that time to afford the Secretary an opportunity to make a “properly considered application”. It was foreshadowed that orders would be sought, based on either public interest immunity or specific safety concerns.
[4]Re WD (No 2) [2023] VSC 790.
[5]Namely, the Herald & Weekly Times Pty Ltd, The Age Company Pty Ltd, News Life Media Pty Ltd and the Australian Broadcasting Corporation.
Orders preserving the confidentiality of certain documents were made at the hearing pursuant to rule 28.05(4) of the Rules. These orders, which are distinct from suppression orders,[6] will continue to operate until further order. However, for the following reasons, the Secretary’s application for a proceeding suppression order will be dismissed.
[6]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 619 [46].
B. Background
Details of WD’s background and personal circumstances and the history of this proceeding and the Bail Proceeding have been set out at length in previous rulings.[7] It is unnecessary to repeat this in any detail for present purposes.
[7]See Re WD [2023] VSC 780, [6]-[9]; Re WD (No 2) [2023] VSC 790, [3], [7]-[17], [41]-[43]; Re WD (No 3) [2024] VSC 14, [6]-[25].
Briefly, the alleged offending occurred early on the morning of 16 November 2023. WD was arrested later on the same day and subsequently granted bail by this court on 17 November 2023. A condition of WD’s bail is that she reside in a secure welfare service with lock-up facilities which she may not leave (“the Secure Location”) and remain in the care of the Secretary.[8]
[8]See Children, Youth and Families Act, s 44(a)(ii).
The Secretary’s authority to place a child for whom she has parental responsibility (like WD) in a secure welfare service (such as the Secure Location) is sourced from section 173(2)(b) of the Children, Youth and Families Act 2005 (Vic). The Secretary may only do so if satisfied that there is a substantial and immediate risk of harm to the child. Any such placement is limited to a period of 21 days (and, in exceptional circumstances, for a further period not exceeding 21 days).
The 42-day statutory time limit on the Secretary’s ability to place WD at the Secure Location lapsed on 29 December 2023. Prior to this date, this proceeding was commenced by way of originating motion. In that originating motion, the Secretary sought orders in the parens patriae jurisdiction of the court authorising WD’s continued placement at the Secure Location, notwithstanding the statutory time limit. Orders to this effect were made on 19 December 2023 for a specified time period.[9]
[9]Re WD (No 3) [2024] VSC 14.
As mentioned above, WD presently remains on bail at the Secure Location. However, due to ongoing concerns about the safety of WD and other young persons placed at the Secure Location, as well as staffing and capacity constraints,[10] efforts have been made by the Department of Families, Fairness and Housing (“the Department”) to develop a medium-term model of care for WD in the community. To this end, construction works are underway on a vacant Department-owned property that has been identified as an appropriate community placement solution for WD, pending the completion of certain modifications (“the Bespoke Facility”).[11] It is intended that a third-party provider (“the Care Services Provider”) will deliver a bespoke community care solution for WD at the Bespoke Facility.[12] The Care Services Provider is a not-for-profit organisation that provides various services, including therapeutic residential care to young persons.
[10]See further ibid, [26]-[60].
[11]See further ibid, [60] for a description of some of the modifications that have been identified as necessary.
[12]See further ibid, [55(3)].
Arrangements relating to WD’s placement at the Bespoke Facility will be informed by the contents of a report dated 18 January 2024 (“the Forensic Assessment Report”), prepared by a consultant forensic psychiatrist (“the Forensic Psychiatrist”) following an assessment of WD. Amongst other things, the Forensic Assessment Report provides details of WD’s current circumstances, social, personal and family history, medical history, mental health and substance abuse issues, and forensic and problem behaviour history. It also summarises the content of 2 interviews and a mental state examination of WD conducted by the Forensic Psychiatrist in December 2023 and January 2024. The Forensic Assessment Report concludes with a risk assessment and the opinions and recommendations of the Forensic Psychiatrist in relation to WD’s forensic and mental health profile, risk profile and ongoing care.
The Forensic Assessment Report was exhibited to an affidavit affirmed by the Forensic Psychiatrist on 12 February 2024, along with a letter from the Forensic Psychiatrist to the court which sets out his concerns about the contents of the Forensic Assessment Report being made public (“the Forensic Psychiatrist Letter”).
C. The Secretary’s application
In the application as originally made, the Secretary sought orders pursuant to sections 17 and 18(1)(a) and (c) of the Open Courts Act prohibiting the disclosure by publication or otherwise of the following information:
…
a.The floorplan of the [Secure Location], being exhibit 1 tendered by the Secretary in this proceeding on 19 December 2023.
b.Any details of the physical layout of, staffing of, and security measures taken in the [Secure Location].
c.Any information that would tend to identify any location at which the Secretary is considering placing WD (“the [Bespoke Facility]”), or any location at which the court has authorised the Secretary to place WD in the court’s parens patriae jurisdiction, including the following information:
i.The suburb the [Bespoke Facility] is in; and
ii.The region of Melbourne the [Bespoke Facility] is in; and
iii.…
iv.…[13]
d.The name of the [Care Services Provider].
e.The information contained in … [the Forensic Assessment Report] and [the Forensic Psychiatrist Letter].
[13]Subparagraphs (iii) and (iv) of the Secretary’s application sought the suppression of what was suggested to be further potentially identifying details of the Bespoke Facility. However, in light of issues raised during the hearing of the application, these subparagraphs were ultimately not pressed. As such, the inclusion of this information here is unnecessary. See further par 33(4) below.
In written submissions, the scope of the Secretary’s application was broadened to also include an order that both the Forensic Assessment Report and the Forensic Psychiatrist Letter remain confidential pursuant to rule 28.05(4) of the Rules.
D. Legal principles
D.1 Suppression orders
The Open Courts Act provides that a court must have regard to the primacy of the principle of open justice and the free communication and disclosure of information in considering an application for a suppression order.[14] A court may only make a suppression order where it is necessary to override or displace these principles.[15]
[14]Open Courts Act, s 4(1). For a more expansive discussion of the relevant principles, see Re WD (No 2) [2023] VSC 790, [58]-[65].
[15]Ibid, s 4(2).
Proceeding suppression orders are dealt with under Part 3 of the Open Courts Act. Section 17 empowers the court to make a suppression order where it is satisfied of any 1 or more of the grounds set out in section 18(1). Relevantly for present purposes, these grounds include:
(a) the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
…
(c) the order is necessary to protect the safety of any person;
As can be seen, section 18(1)(a) and (c) both require the court to be satisfied that a suppression order is “necessary”. Numerous authorities have considered the requirement of necessity in this context, which have recently been summarised as follows:[16]
Each of the grounds outlined under section 18(1) [of the Open Courts Act] require the court to be satisfied that a suppression order is “necessary” in the circumstances. The same test of necessity applies where a suppression order is sought pursuant to the court’s inherent jurisdiction. A suppression order will be necessary where, absent the order, “particular unacceptable consequences will flow that ought be prevented to preserve the proper function of the court”. Necessity in this context is a “stringent standard” requiring a high degree of satisfaction. It is insufficient that the making of a suppression order is merely “convenient, reasonable or sensible”. It is also not enough that a failure to make a suppression order may result in embarrassment, shame or humiliation for an applicant. The applicant bears the onus of persuading the court that the suppression order sought is necessary.
(Citations omitted.)
[16]Director of Public Prosecutions v EN [2023] VSC 724, [24].
Section 18(1)(a) recognises that the principle of open justice must give way in certain exceptional circumstances where strict adherence to it would detract from the administration of justice, but even then, only to the extent necessary.[17] The question of whether a suppression order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice is to be determined by reference to general law principles.[18] The categories of cases in which a suppression order may be made pursuant to section 18(1)(a) are not closed.[19]
[17]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 26) [2021] VSC 242, [37].
[18]Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154, [102]-[107] (Whelan, Beach and Weinberg JJA).
[19]AA v BB (2013) 296 ALR 353, 389 [182] (Bell J).
For an order to be made under section 18(1)(a), a real risk of serious interference with the administration of justice must be demonstrated.[20] It is not sufficient to merely show some risk of prejudice, as the prevention of any risk is not the standard of satisfaction that must be reached.[21] As is evident from the words “that cannot be prevented by other reasonably available means”, where the risk can be sufficiently mitigated or ameliorated in some other way, this course must instead be adopted.[22]
[20]Ibid, 388 [181] and the cases there cited.
[21]Chaarani v Director of Public Prosecutions (Cth) [2018] VSCA 299, [42] (Maxwell P, Beach and Hargrave JJA).
[22]Ibid. See also Dupas v The Queen (2010) 241 CLR 237, 251 [38] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Section 18(1)(c), on the other hand, empowers the court to make a suppression order where it is necessary to protect the safety of any person. Necessity in this context:[23]
… requires the establishment of a causal link between the absence of the order and some increased risk to the person concerned. Thus, if the level of danger faced by a person would not be materially advanced were a suppression order not to be made, it is unlikely that such an order could truly be considered “necessary”.
(Citations omitted.)
[23]Director of Public Prosecutions v EN [2023] VSC 724, [25].
In relation to what is encapsulated by the phrase “safety of any person”:[24]
Safety in the context of section 18(1)(c) is to be given a broad construction, and the provision has been held to encompass risks to both physical and psychological safety. However, an important distinction can be drawn between “harm” and “safety”, the latter concept being a “conclusion informed by the nature, imminence and degree of likelihood of apprehended harm”.
(Citations omitted.)
As such, section 18(1)(c) will only be enlivened where the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that the risk to the person would range above the level that could reasonably be regarded as acceptable if a suppression order were not made.[25]
[24]Ibid, [27].
[25]AB v CD (2019) 364 ALR 202, 205-206 [15] (Nettle J).
Also with respect to utility, courts have refused to make a suppression order in circumstances where it would have little practical effect because a proceeding has already garnered significant publicity, such that it would be difficult to stem any further publication of the matters sought to be suppressed.[26]
[26]See, for example, Cooper v Herald & Weekly Times Pty Ltd [2013] VSC 589, [15] (Ferguson J); D1 v P1 [2012] NSWCA 314, [52] (Bathurst CJ, with whom McColl JA and McClellan CJ at CL agreed). See also AB v CD (2019) 279 A Crim R 357, 370 [75]-[77] (Ferguson CJ, Beach and McLeish JJA).
The nature, extent and scope of the order sought is also relevant to the ultimate disposition of the application. In other words, the degree of derogation from the principle of open justice attending to the order sought is a relevant consideration.[27]
[27]Attorney-General v Khan (suppression order) [2022] VSC 627, [3] (John Dixon J); ABC v D1 [2007] VSC 480, [36] (J Forrest J).
Drawing upon the requirements of necessity and utility, section 8(1A) of the Open Courts Act provides that a court must not make a suppression order that prohibits or restricts the publication or other disclosure of information which is already prohibited or restricted by any of several provisions listed in section 8(2). Relevantly for present purposes, this list includes section 534 of the Children, Youth and Families Act.[28] Section 534(1)(a) prohibits the publication of a report of a proceeding in or arising from the Children’s Court which contains any particulars likely to lead to the identification of a child or other party to the proceeding. Section 534(4) relevantly provides:
[28]See Re WD (No 2) [2023] VSC 790, [82]-[110], [124]-[125] for a more detailed discussion of s 8(1A) of the Open Courts Act and its interaction with s 534 of the Children, Youth and Families Act.
Without limiting the generality of subsections (1) … the following particulars are deemed to be particulars likely to lead to the identification of a person—
(a) the name of the person;
(b) the names of—
(i) …
(ii) any other person having the care of the person; or
(iii) …
(c)the name or address of any place of residence of the person, or the locality in which the residence is situated;
(d)the name or address of any place of education, training or employment attended by the person, or the locality in which the place is situated.
D.2 Orders to preserve the confidentiality of documents
As a starting point, any member of the public (including a representative of the media) has an entitlement to inspect the court file of any civil proceeding and obtain a copy of any document held on the file.[29] Accordingly, although rule 28.05 of the Rules contemplates the exercise of a discretion, an order that a document remain confidential must be made on a principled basis, and not just accede to the wishes of a party.[30] The ultimate question is what the interests of justice demand.[31]
[29]AS v Minister for Immigration and Border Protection (Ruling No 10) (2017) 54 VR 500, 506 [19] (J Forrest J), citing XYZ 1 v State of Victoria [2001] VSC 233, [26] (Gillard J). Rule 28.05 has subsequently been amended, however, the observations in AS v Minister for Immigration and Border Protection (Ruling No 10) (2017) 54 VR 500 remain apt.
[30]Ibid, 506 [18].
[31]Ibid, 508 [30].
It has previously been suggested that a case involving a person under a disability (such as a child) “is in a special category in terms of inspection of documents”.[32] By virtue of its parens patriae jurisdiction, the court maintains a protective role in relation to the interests of such persons.[33] In this regard, it has been accepted that in certain proceedings, the objective of protecting and promoting the child’s best interests may sometimes demand modification and adaptation of the content of the general requirements of open justice and procedural fairness.[34]
[32]Ibid, 509 [31].
[33]Ibid.
[34]See HT v The Queen (2019) 269 CLR 403, 423 [44], 424 [46] (Kiefel CJ, Bell and Keane JJ), 427-428 [58] (Nettle and Edelman JJ).
E. Submissions
In support of its application, the Secretary relied upon affidavits affirmed by an acting chief practitioner of the Department (“the Acting Chief Practitioner”) and the Forensic Psychiatrist.
It was submitted that suppression of the information in subparagraphs (a), (b), (c) and (d) of the Secretary’s application, (being information relating to the Secure Location and the Bespoke Facility and the name of the Care Services Provider) was necessary to protect the safety of WD, other young people placed at the Secure Location and members of the community, relying on section 18(1)(c) of the Open Courts Act. This was said to be so for the reasons outlined in the affidavit of the Acting Chief Practitioner, which included that:
(1)The potential for the location of the Secure Location to be ascertained would create risks to WD’s safety, including the threat of harm or retaliation for the alleged offending in light of threats that have been made towards WD online and communicated to Department staff members.
(2)The publication of detailed information about the secure welfare environment would undermine the safety and security of young persons and staff at the Secure Location. It was suggested that information about the layout and operation of the Secure Location could be used by young persons placed there to abscond or to harm staff or other young persons. Further, it was said that there was a risk that members of the community may use that information to gain access to the Secure Location or cause some other threat.
(3)The publication of details of the location of the Bespoke Facility would likewise create a risk to WD’s safety and may also impact the ability of the Department to provide care for her. The risk of retaliation was again referred to, and it was suggested that this risk could have the consequence of limiting WD’s use of the outdoor area, which was said to be important for her wellbeing.[35] Mention was also made of the risk of members of the community ascertaining the location of the Bespoke Facility and attempting to view it. It was suggested that this may impact the ability of the Department to provide WD with appropriate care and protect her privacy and safety. It was also stated that this could have the potential to result in WD no longer being able to reside at the Bespoke Facility.
(4)The publication of the name of the Care Services Provider would create a risk that the Care Services Provider would receive pressure, threats or abuse from members of the public in relation to WD. The Acting Chief Practitioner expressed concerns that the Care Services Provider may not be adequately equipped or resourced to manage this type of public attention, and that this may result in the Care Services Provider determining that it was no longer able to provide care services to WD. She deposed that without the services of the Care Services Provider, the Department may not be able to maintain WD’s safety and keep her in a secure therapeutic environment.
[35]See Re WD [2023] VSC 780, [20].
The Secretary then submitted that suppression of the information set out in subparagraphs (d) and (e) of the Secretary’s application (being the name of the Care Services Provider and the information contained in the Forensic Assessment Report and the Forensic Psychiatrist Letter) was necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that could not be prevented by other reasonably available means.
In so submitting, the Secretary contended that in the court’s parens patriae jurisdiction, any prejudice to the interests of the child concerned will amount to prejudice to the interests of justice. The Secretary relied upon the observations made by the High Court in HT v The Queen to the effect that the content of the general rules of open justice and procedural fairness has been modified in wardship cases such as this, in circumstances where strict adherence to these principles would undermine the core purpose of such proceedings, namely, the protection and promotion of the best interests of the child.[36]
[36](2019) 269 CLR 403, 423 [44], 424 [46] (Kiefel CJ, Bell and Keane JJ), 427-428 [58] (Nettle and Edelman JJ).
In relation to the Forensic Assessment Report and the Forensic Psychiatrist Letter, the Secretary relied upon the opinions expressed in the Forensic Psychiatrist Letter in submitting that WD’s interests would be seriously prejudiced by the publication of any of the information contained in these documents. The Forensic Psychiatrist expressed the view that dissemination of the information contained in the Forensic Assessment Report beyond WD’s immediate treating and care teams would be detrimental to WD’s mental health and recovery for several reasons, including:
(1)The direct psychological impact that would result from WD becoming aware that confidential aspects of her background and circumstances were known to others. This impact was said to include causing re-traumatisation of WD, exacerbating WD’s mistrust in others, and negatively influencing WD’s relationships with her carers due to stigmatisation.
(2)The indirect psychological impact that would result from the wider dissemination of WD’s confidential background information, namely the stymying or interrupting of WD’s medium to longer term recovery goals by precluding her from accessing social supports due to stigma.
(3)The risk that dissemination of WD’s confidential background information would result in destabilisation of WD’s mental state, increasing the degree of risk she poses to herself and others.
In support of the application for an order that the Forensic Assessment Report and the Forensic Psychiatrist Letter remain confidential pursuant to rule 28.05(4) of the Rules, the Secretary submitted that the information in these documents was confidential, and had been put before the court for the purpose of enabling the court to provide protection to WD in the exercise of its parens patriae jurisdiction. It was submitted that the confidentiality of this information ought not to be destroyed as a result.
F. Narrowing the scope of the application
At the hearing on 19 February 2024, several issues were raised with counsel for the Secretary in respect of the scope of the application for a suppression order.[37] These included:
(1)In relation to subparagraph (a), it was not clear why it was said that a suppression order was necessary in relation to the floorplan of the Secure Location (being a tendered exhibit), as opposed to an order that the document in question remain confidential pursuant to rule 28.05(4) of the Rules.
(2)In relation to subparagraph (b), an order for the suppression of “any details” of the physical layout of, staffing of and security measures taken at the Secure Location appeared to be unduly broad. While an argument may be made that a prohibition on the publication of some specific details falling within these broader categories might be necessary to protect the safety of WD or other young persons or staff at the Secure Location, it was difficult to see how the suppression of “any details” of these matters would meet the high threshold of necessity for the purposes of section 18(1)(c) of the Open Courts Act. This was particularly so when details of the layout of, staffing of and security measures taken at the Secure Location have been set out in previous rulings published by this court, without any objection from the Secretary,[38] and are therefore already within the public domain.[39]
(3)The publication of some of the information contemplated by subparagraph (c), being any information that would tend to identify the Bespoke Facility or the Secure Location,[40] would either already be squarely or arguably prohibited by section 534(1) of the Children, Youth and Families Act, including by operation of subsection (4)(c), which expressly deems the name, address and locality of any place of residence of a child the subject of proceedings in or arising out of the Children’s Court to be a particular likely to lead to the child’s identification. Although the position is less clear in relation to the Bespoke Facility, as WD is not yet residing there, such details in relation to the Secure Location would clearly fall within the scope of section 534. The making of a suppression order in relation to this information would therefore not only be unnecessary, but directly contrary to section 8(1A) of the Open Courts Act.[41]
(4)Even putting aside section 534 of the Children, Youth and Families Act, it was unclear whether some of the specific information relating to the Bespoke Facility that subparagraph (c) sought to have suppressed had been the subject of any evidence in either the Bail Proceeding or this proceeding to date, thus raising questions as to the necessity of a suppression order. Further, the basis upon which it was said that the suppression of some of these details was necessary to protect the safety of WD or other persons was not clear.
(5)The evidence provided in support of the necessity of the order sought in subparagraph (d), being suppression of the name of the Care Services Provider, was speculative at best and did not set out the actual views of any representative of the Care Services Provider. The mere fact that the Department had received threats and abuse in relation to its role in WD’s care in the past did not provide a sufficient basis for a well-founded belief that the Care Services Provider would be subjected to similar treatment, nor that such treatment would necessarily result in the Care Services Provider withdrawing from its role in WD’s care.
(6)In respect of subparagraph (e), which sought suppression of “the information contained in” the Forensic Assessment Report and the Forensic Psychiatrist Letter, no explanation was given as to why it was said that a suppression order in respect of this information was necessary in addition to the order that these documents remain confidential pursuant to rule 28.05(4) of the Rules. Further, it was noted that a significant amount of the information contained in the Forensic Assessment Report was already in the public domain.
[37]As already noted, several media organisations were represented on the previous application. Notice of this application was also provided in accordance with the requirements set out in s 11 of the Open Courts Act, but on the application for final orders, there was no appearance on behalf of any media organisation.
[38]In light of the separate interim suppression orders that were in place at the time that rulings were delivered in Re WD [2023] VSC 780 and Re WD (No 3) [2024] VSC 14, the parties were given an opportunity to raise any concerns about the information contained in these rulings being in the public domain prior to their publication. No concerns were raised.
[39]See, for example, Re WD [2023] VSC 780, [8], [12]-[15], [18]-[25]; Re WD (No 2) [2023] VSC 790, [11], [117]-[120]; Re WD (No 3) [2024] VSC 14, [12], [32]-[33], [37]-[41], [43], [45]-[48], [52], [59], [86]-[87], [89]-[91], [94]-[95].
[40]The Secure Location being the only location that the court has presently authorised the Secretary to place WD in its parens patriae jurisdiction.
[41]See par 24 above.
In light of these concerns, counsel for the Secretary confirmed at the hearing that subparagraph (c) of the application would be amended to remove the reference to “any location at which the court has authorised the Secretary to place WD”, such that its scope was limited to any information that would tend to identify the Bespoke Facility.
Further, confirmation was provided that subparagraphs (a) and (e) of the Secretary’s application would not be pressed if an order was made that the relevant documents remain confidential pursuant to rule 28.05(4) of the Rules. Having been satisfied that it was in the interests of justice to preserve the confidentiality of the floorplan of the Secure Location, the Forensic Assessment Report and the Forensic Psychiatrist Letter, orders were made to this effect at the conclusion of the hearing. It suffices to say that matters concerning personal information of WD, including sensitive medical evidence, raised in the parens patriae jurisdiction of the court ought to remain confidential at this time.[42] Further, the precise details of the floorplan were deliberately kept confidential at an earlier hearing (at which media organisations were represented) to save the specific premises being identified. On this basis, I was satisfied that a confidentiality order should be made.
[42]See par 26 above.
Orders were also made adjourning the Secretary’s application to allow time for further material and submissions to be provided in response to the issues raised in respect of the remainder of the application, and for any further changes to the scope of the application to be considered.
On 26 February 2024, the Secretary filed further submissions along with a letter to the court authored by the chief executive officer of the Care Services Provider. The further submissions set out the significantly narrowed basis on which a suppression order is now sought; namely, a prohibition on the disclosure by publication or otherwise in Australia of the following information:[43]
…
[c]Any information that would tend to identify any location at which the Secretary is considering placing WD (“the [Bespoke Facility]”), including the following information:
i. The suburb the [Bespoke Facility] is in; and
[d] The name of the [Care Services Provider].
[43]To be clear, subpar (b) was no longer pressed at all.
It was submitted that suppression of the information in amended subparagraph (c) was necessary to protect WD’s safety for the reasons outlined in the Acting Chief Practitioner’s affidavit, as set out above.[44]
[44]See par 28(3) above.
In respect of the information in amended subparagraph (d), it was submitted that the suppression of this information was necessary for the reasons already outlined.[45] Reliance was also placed on the contents of the letter from the chief executive officer of the Care Services Provider.
[45]See par 28(4) above.
In that letter, it was stated that public identification of the Care Services Provider would impact on its ability to provide a safe and stable environment for WD and increase the likelihood that the location of the Bespoke Facility would be identified. Further, it was suggested that the potential for negative attention or criticism from the media or the community may place undue pressure on the Care Services Provider and impact its ability to attract and retain staff, which in turn may impact the quality of care provided to WD.
Concerns were also expressed about the potential risks to WD’s mental and physical wellbeing and to the staff of the Care Services Provider responsible for caring for her that may result from publication of the location of the Bespoke Facility. It was suggested that unwanted attention and potential aggression or negative responses from members of the community may expose WD and her carers to harm, undermine WD’s trust in her carers and exacerbate her traumatised state.
By email dated 28 February 2024, the solicitor acting for WD confirmed that WD supported the Secretary’s amended application for a suppression order for the reasons set out in the Secretary’s further submissions.
G. Consideration
Although there were some concerns with the scope of the Secretary’s original application, the significantly narrower basis on which the application was ultimately made addressed many of the issues raised during the hearing on 19 February 2024. It is unnecessary to revisit these matters. Each of the 2 remaining subparagraphs of the application as amended will be dealt with in turn.
G.1 Subparagraph (c)
In its amended form, subparagraph (c) of the Secretary’s application sought the suppression of any information that would tend to identify the Bespoke Facility, including the suburb in which it is located. Before considering whether the suppression of this information is necessary for the protection of WD’s safety, it must be determined whether the publication of this information is already prohibited by section 534 of the Children, Youth and Families Act, such that section 8(1A) of the Open Courts Act would preclude the court from making a suppression order in respect of it.[46]
[46]See par 33(3) above.
Evidently, making this determination requires an analysis of the proper construction of section 534, primarily having regard to the text of the provision, and also the context in which it sits, as well as the purpose of the provision and the purposes of the Children, Youth and Families Act more broadly.[47]
[47]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and the cases there cited.
At the hearing, it was contended on behalf of the Secretary that information that would tend to identify the Bespoke Facility would not fall within the scope of section 534. This was said to be so in light of the fact that section 534 is in effect an offence provision, and should therefore be construed narrowly.[48] As such, it was submitted that on its proper construction, subsection (4)(c) of the provision, which deems the name, address and locality of “any place of residence” of the child to be particulars likely to lead to the identification of a child, would not cover “a future contingent residence” of a child. As WD is not yet residing at the Bespoke Facility, the Secretary submitted that section 534 would have no operation in relation to details of its location.
[48]See Children, Youth and Families Act, s 534(1)(c).
However, there are several reasons why the construction of section 534 contended for by the Secretary must be rejected.
Starting with the text of the provision, section 534(1) prohibits the publication of a report containing “any particulars likely to lead to the identification of a child or other party in the proceeding”. The use of the words “any” and “likely to lead” in this context indicate a broad scope of operation for the provision. Further, while certain particulars are deemed to be such in subsection (4)(c), it is made explicit that the list in that subsection does not limit the generality of subsection (1), again making clear the breadth of the provision.
In light of this, even leaving aside the question of whether the Bespoke Facility can properly be characterised as “any place of residence” of WD’s, such that information that would tend to identify it would be deemed particulars likely to lead to WD’s identification by virtue of subsection (4)(c), I am satisfied that this information would fall within the scope of section 534(1). Objectively speaking, it is not difficult to see how publication of information such as the name and address of the Bespoke Facility and the suburb in which it is located could be used to locate, and therefore identify, WD once she has been placed there. Indeed, this very risk is described in the evidence of the Acting Chief Practitioner,[49] and is the basis upon which the Secretary’s application for suppression of this information has been made.
[49]See par 28(3) above.
It is presumably for this very reason that subsection (4)(c) specifically deems these details in relation to “any place of residence” of a child to be potentially identifying particulars for the purposes of section 534(1). Even if, as contended by the Secretary, subsection (4)(c) is limited to details in respect of a child’s current place of residence, in light of the breadth and generality of section 534(1), there is no warrant for unduly limiting the scope of the provision so as to exclude the very same information in respect of a child’s already known and designated future place of residence.
Such a construction also finds support in the purpose of section 534 and of the Children, Youth and Families Act more broadly. One of the express purposes of the Act is to provide for the protection of children.[50] More specifically, the policy rationale behind section 534 includes protecting children from interferences with their privacy and shielding them from “the stigma, shame, embarrassment or harm that may be caused to them by identifying particulars or material becoming publicly known”.[51] The court is required to prefer a construction of a provision which furthers its purpose or object over another which does not.[52] Clearly, both of these purposes are better served by an interpretation of section 534 which includes within its scope information that would tend to identify not only WD’s current residence, but also her future designated place of residence, namely the Bespoke Facility. As a corollary, an unduly narrow or technical interpretation of section 534 which excludes information of this nature from its scope would undermine these very purposes.
[50]Children, Youth and Families Act, s 1(b).
[51]Legal Services Commissioner v JXL [2023] QSC 283, [31] (Crowley J). See also Howe v Harvey (2008) 20 VR 638, 658-659 [94] (Neave and Kellam JJA and Forrest AJA).
[52]Interpretation of Legislation Act 1984 (Vic), s 35(a).
Contrary to the Secretary’s submission, the mere fact that section 534 is a penal or offence provision does not displace the weight of these considerations. The rule that penal provisions are to be construed narrowly is “one of last resort” and should only be applied where an ambiguity cannot otherwise be resolved through ordinary rules of construction.[53] For the reasons set out in the preceding paragraphs, this is not such a case.[54]
[53]Aubrey v The Queen (2017) 260 CLR 305, 325-326 [39] (Kiefel CJ, Keane, Nettle and Edelman JJ); Waugh v Kippen (1986) 160 CLR 156, 164.4-165.2 (Gibbs CJ, Mason, Wilson and Dawson JJ); both cases citing Beckwith v The Queen (1976) 135 CLR 569, 576.8 (Gibbs J).
[54]A similar conclusion was reached by the Court of Appeal in Howe v Harvey (2008) 20 VR 638, 659 [95] (Neave and Kellam JJA and Forrest AJA). Although that case dealt with a different question of construction in the context of s 26(1) of the Children and Young Persons Act 1989 (Vic), being the predecessor to s 534(1) of the Children, Youth and Families Act, the provisions are in virtually identical terms and the observation is equally apposite in this context.
Accordingly, section 534 already operates to prohibit the publication of the information contemplated in subparagraph (c) of the Secretary’s amended application, namely information that would tend to identify the Bespoke Facility including the locality in which it is situated. As such, the court is precluded from making the suppression order sought by virtue of section 8(1A) of the Open Courts Act.
G.2 Subparagraph (d)
Similar considerations apply in relation to subparagraph (d) of the amended application, which sought an order for the suppression of the name of the Care Services Provider.
In addition to details of a child’s place of residence, another particular expressly deemed to be a particular likely to lead to the identification of a child in section 534(4)(b)(ii) of the Children, Youth and Families Act is the name of “any other person having the care of the [child]”. In the absence of any contrary intention, “person” in this context is not limited to individuals and will also include a body politic or corporate.[55] As it will ultimately have responsibility for the care of WD, clearly, the name of the Care Services Provider is, or at least at some future point will be, deemed an identifying particular for the purposes of section 534.
[55]Interpretation of Legislation Act, s 38 (definition of “person”).
Again, the fact that the Care Services Provider does not yet have responsibility for WD’s care does not alter the position. The Secretary’s application for a suppression order in relation to this information is based upon a real and existing risk that this information could be used to identify WD.[56] This circumstance makes clear that, even if it is not yet captured by section 534(4)(b)(ii), this information is nevertheless properly considered a particular likely to lead to the identification of WD. For similar reasons to those set out in relation to the information contained in subparagraph (c) of the Secretary’s application,[57] it would be contrary to the express language and the purpose of the provision to exclude information of this nature from the scope of section 534.
[56]As to this risk, see pars 28(4), 40-41 above.
[57]See pars 47-53 above.
As such, in my view, a prohibition on the publication of the name of the Care Services Provider is already in place pursuant to section 534 of the Children, Youth and Families Act, with the result that the court is precluded from making a suppression order in relation to the information by virtue of section 8(1A) of the Open Courts Act.
H. Conclusion
For the reasons set out above, with the exception of the orders already made to preserve the confidentiality of certain documents pursuant to rule 28.05(4) of the Rules,[58] the Secretary’s application for a proceeding suppression order filed on 12 February 2024 and amended with leave on 26 February 2024 is dismissed.
[58]See par 35 above.
For the avoidance of doubt, the dismissal of this application does not mean that the information the Secretary sought to have suppressed may be published. The Secretary’s concern about publication of the relevant information was justified. However, as the publication of the relevant particulars is already prohibited under section 534(1) of the Children, Youth and Families Act because they would be likely to lead to the identification of WD, a suppression order is not only unnecessary, but would be inconsistent with the express limitation prescribed in section 8(1A) of the Open Courts Act.[59]
[59]See fn 28 above.
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