Secretary, Department of Family and Community Services v Hayward (a pseudonym)

The case involved the Secretary of the Department of Family and Community Services (the appellant) and Hayward (a pseudonym, the first respondent) in proceedings before the Court of Appeal of New South Wales. The dispute concerned the admissibility and disclosure of information contained within "risk of significant harm" reports made under the *Children and Young Persons (Care and Protection) Act 1998* (NSW) in the context of criminal proceedings. Hayward, the accused in a criminal trial, sought disclosure of the identities of the individuals who had made these reports.

The primary legal issues before the Court of Appeal were whether a District Court, in its criminal jurisdiction, possessed the power to order the disclosure of the identities of persons who made risk of significant harm reports, or information from which those identities could be deduced, under section 29(1)(f)(ii) of the *Children and Young Persons (Care and Protection) Act 1998* (NSW). The court also considered whether the principle of legality required a construction of the Act that would permit such disclosure in criminal proceedings, despite a statutory prohibition.

The Court of Appeal, applying principles of statutory interpretation, including contextual construction and the principle of legality, determined that the prohibition on disclosure in section 29 of the Act was intended to be absolute and was not displaced by the general provisions of criminal procedure. The court reasoned that the legislative intent behind section 29 was to protect the identity of reporters and that the principle of legality did not extend to overriding this clear statutory prohibition in the absence of express legislative intent to do so. The phrase "any proceedings" within the Act was interpreted to encompass all proceedings, including criminal ones, and the prohibition was not limited to civil or administrative matters.

Consequently, the Court of Appeal declared that the District Court of New South Wales, in its criminal jurisdiction, had no power to grant leave for the disclosure of the identity of a person who made a report under section 29(6) of the Act, or information from which that identity could be deduced, pursuant to section 29(1)(f)(ii). The court also dismissed the notice of motion filed by the first respondent seeking such leave.