Secretary of the Department of Communities and Justice and X and Ors (No. 2) - [2020] FamCA 534

FAMILY COURT OF AUSTRALIA

SECRETARY OF THE DEPARTMENT OF COMMUNITIES AND JUSTICE & X AND ORS (NO. 2)

[2020] FamCA 534

FAMILY LAW – PRACTICE AND PROCEDURE – Suppression and non-publication orders – Interim orders – Whether s 102PE of the Family Law Act 1975 (Cth) gives the Court the power to make the suppression and non-publication orders sought by the Secretary – Implied power – Implied constitutional right to free political communication – Where the suppression and non-publication orders are necessary for the protection of the children’s safety – Where suppression and non-publication orders were already in place and have been modified and ordered to continue until a set date.

Family Law Act 1975 (Cth) Pt XIA, ss 65C, 102PC, 102PE, 102PF, 102PH, 121
Judiciary Act 1903 (Cth) s 78B

Family Law Rules 2004 (Cth) r 17.02

AB (a pseudonym) v CD (a pseudonym) (2019) 364 ALR 202
Brown v Tasmania (2017) 261 CLR 328
DJL v The Central Authority (2000) 201 CLR 226
Hogan v Hinch (2011) 243 CLR 506
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
McCloy v New South Wales (2015) 257 CLR 178
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36
Secretary of the Department of Communities and Justice v X and Others (2019) 60 Fam LR 46
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

APPLICANT:

Secretary of the Department of Communities and Justice

FIRST RESPONDENT:

SECOND RESPONDENT:

THIRD RESPONDENT:

FIRST INTERVENOR:

News Corp Australia (including Nationwide News Pty Ltd)

SECOND INTERVENOR:

Nine Network Australia Pty Ltd

THIRD INTERVENOR:

Fairfax Media Publications Pty Ltd

FOURTH INTERVENOR:

Special Broadcasting Service Corporation

FIFTH INTERVENOR:

Australian Broadcasting Corporation

FILE NUMBER:

By Court Order File

Number is supressed

DATE DELIVERED:

8 July 2020

JUDGMENT OF:

Aldridge J

HEARING DATE:

25 February 2020

REPRESENTATION

By Court Order the solicitors and counsels names have been suppressed

Orders

AMENDED on 20 July 2020 pursuant to r 17.02 of the Family Law Rules 2004 (Cth)

Orders 3, 4, 5 and 6 made on 8 August 2019 (and as subsequently varied) are discharged.
Until 5.00 pm on 23 July 2020, pursuant to s 102PE of the Family Law Act 1975 (Cth) (“the Act”) and the implied jurisdiction of the Court, publication or disclosure of:
(a) Any information tending to reveal:
(i)the identity or location, including names (including any future alias used by that person) or images, of the following persons:
[Redacted]
OR
(ii)the identity or location of any witness in the proceedings, or
(iii)the identity or location of any person or organisation as a person or organisation currently or previously providing professional services to the children and/or respondents at the time of publication, including but not limited to case workers, support workers, health and medical professionals, education professionals, religious or extra-curricular activity providers and any other persons or organisations currently or previously providing a professional service, or their staff, to the children and/or the respondents
and
(b)Any detail from within the Court file, from any application or evidence given or read in the proceedings or information disclosed during proceedings in open court, that either identifies, or tends to identify, the persons named in Order 1 2(a) above
be prohibited, on the ground that such suppression and non-publication is necessary to protect the safety of the persons named in Order 1(a) above.
Until 5.00 pm on 23 July 2020, pursuant to s 102PE of the Act and the implied jurisdiction of the Court, publication or disclosure of any detail from within the Court file, from any application or evidence given or read in the proceedings or information disclosed during proceedings in open court, that either identifies, or tends to identify, [redacted], be prohibited, on the ground that such suppression and non-publication is necessary to protect the safety of the children referred to in Order 1 2(a) above.
Until 5.00 pm on 23 July 2020, pursuant to s 102PE of the Act and the implied jurisdiction of the Court, publication or disclosure of information that relates to the proceedings and is:
(a)information that comprises evidence or information about evidence in the proceedings; or
(b)information obtained by the process of discovery in the proceedings; or
(c)information produced under a subpoena; or
(d)information lodged with or filed in the court in the proceedings, or
(e)orders made or reasons given by the Court
be prohibited, on the ground that such suppression or non-publication is necessary to protect the safety of the children referred to in Order 1 2(a) above.
Nothing in Order 12 prevents the Secretary or his delegate, or the respondents, from disclosing the necessary information about the children and/or the respondents to persons or organisations currently or previously providing or intending to provide professional services to the children and/or respondents, including but not limited to case workers, support workers, health and medical professionals, education professionals, religious or extra-curricular activity providers and any other persons or organisations currently, previously or intending to provide professional services, or their staff, to the children and/or the respondents.
The parties are at liberty to apply to the Court to make submissions as to whether the proposed order set out at [77] should be made.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary of the Department of Communities and Justice & X and Ors (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

Secretary of the Department of Communities and Justice

Applicant

And

First Respondent

And

Second Respondent

And

Third Respondent

And

News Corp Australia (including Nationwide News Pty Ltd)

First Intervenor

And

Nine Network Australia Pty Ltd

Second Intervenor

And

Fairfax Media Publications Pty Ltd

Third Intervenor

And

Special Broadcasting Service Corporation

Fourth Intervenor

And

Australian Broadcasting Corporation

Fifth Intervenor

REASONS FOR JUDGMENT

Introduction

This is an application for the continuation of the suppression and non-publication orders that I made on 8 August 2019. Relevantly, those orders were:
…
(3)Until midnight on 23 October 2019, pursuant to s 102PE of the Family Law Act 1975 (Cth) (“the Act”) and the inherent jurisdiction of the Court, publication or disclosure of:
(a)Any information tending to reveal:
(i)the identity or location, including names (including any future alias used by that person) or images, of the following persons:
[Redacted]
OR
(ii)The identity or location of any witness in the proceedings, or
(iii)The identity or location of any person as a person providing professional services to the children and/or respondents at the time of publication, including but not limited to case workers, support workers, health and medical professionals, education professionals, and any other persons providing a professional service, or their staff, to the children and/or the respondents.
and
(b)Any detail from within the court file, from any application or evidence given or read in the proceedings or information disclosed during proceedings in open court, that identifies, or tends to identify, the persons named in order 3(a) above,
be prohibited, on the ground that such suppression and non-publication is necessary to protect the safety of the persons named in order 3(a) above.
(4)Until midnight on 23 October 2019, pursuant to s 102PE of the Act and the inherent jurisdiction of the Court, publication or disclosure of any detail from within the court file, from any application or evidence given or read in the proceedings or information disclosed during proceedings in open court, that either identifies, or tends to identify, [redacted], be prohibited, on the ground that such suppression and non-publication is necessary to protect the safety of the children referred to in order 3(a) above.
(5)Until midnight on 23 October 2019, pursuant to s 102PE of the Act and the inherent jurisdiction of the Court, publication or disclosure of information that relates to the proceedings and is:
(a)information that comprises evidence or information about evidence in the proceedings; or
(b)information obtained by the process of discovery in the proceedings; or
(c)information produced under a subpoena; or
(d)information lodged with or filed in the court in the proceedings, or
(e)orders made or reasons given by the Court
be prohibited, on the ground that such suppression or non-publication is necessary to protect the safety of the children referred to in order 3(a) above.
(6)This Court’s file number, the State or Territory of Australia in which these proceedings were initiated and any other fact or matter that might identify the children shall not be published in any way.
…
(Emphasis in original)
By an Application in a Case filed on 24 October 2019, the Secretary of the Department of Communities and Justice (“the Secretary”) seeks that the suppression and non-publication orders made on 8 August 2019 be extended until 23 July 2020; a variation to Order 3(a)(i) and Order 4 to include the third respondent; a variation to Order 3(a)(iii); and an additional order permitting the Secretary and the respondents to disclose necessary information about the children and/or the respondents to “persons or organisations currently or previously providing or intending to provide services to the children and/or respondents”. A further order is sought providing that the third respondent be known by the pseudonym “Z” but an order to that effect was made on 19 November 2019. That course is opposed by the News Corp Australia (including Nationwide News Pty Ltd), Nine Network Australia Pty Ltd, Fairfax Media Publications Pty Ltd, Special Broadcasting Services Corporation and Australian Broadcasting Corporation (“the media entities”).
On 25 February 2020, the Application in a Case filed by the Secretary on 24 October 2019 was heard and judgment was reserved. Interim orders were made on that day (amended on 28 February 2020 pursuant to r 17.02 of the Family Law Rules 2004 (Cth)), largely in accordance with the orders sought by the Secretary in the Application in a Case, as follows:
(1)Until 5.00 pm on the day in which judgment is delivered in this matter, pursuant to s 102PE of the Family Law Act 1975 (Cth) (“the Act”) and the implied jurisdiction of the Court, publication or disclosure of:
(a)Any information tending to reveal:
(i)the identity or location, including names (including any future alias used by that person) or images, of the following persons:
[Redacted]
OR
(ii)the identity or location of any witness in the proceedings, or
(iii)the identity or location of any person or organisation as a person or organisation currently or previously providing professional services to the children and/or respondents at the time of publication, including but not limited to case workers, support workers, health and medical professionals, banking institutions, education professionals, community venues such as religious or extra-curricular activity providers, government agencies and any other persons or organisations currently or previously providing a professional service, or their staff, to the children and/or the respondents
and
(b)Any detail from within the court file, from any application or evidence given or read in the proceedings or information disclosed during proceedings in open court, that either identifies, or tends to identify, the persons named in order 1(a) above
be prohibited, on the ground that such suppression and non-publication is necessary to protect the safety of the persons named in order 1(a) above.
(2)Until 5.00 pm on the day in which judgment is delivered in this matter, pursuant to s 102PE of the Act and the implied jurisdiction of the Court, publication or disclosure of any detail from within the court file, from any application or evidence given or read in the proceedings or information disclosed during proceedings in open court, that either identifies, or tends to identify, [redacted], be prohibited, on the ground that such suppression and non-publication is necessary to protect the safety of the children referred to in order 1(a) above.
(3)Until 5.00 pm on the day in which judgment is delivered in this matter, pursuant to s 102PE of the Act and the implied jurisdiction of the Court, publication or disclosure of information that relates to the proceedings and is:
(a)information that comprises evidence or information about evidence in the proceedings; or
(b)information obtained by the process of discovery in the proceedings; or
(c)information produced under a subpoena; or
(d)information lodged with or filed in the court in the proceedings, or
(e)orders made or reasons given by the Court
be prohibited, on the ground that such suppression or non-publication is necessary to protect the safety of the children referred to in order 1(a) above.
(4)This Court’s file number, the State or Territory of Australia in which these proceedings were initiated and any other fact or matter that might identify the file number or the State or Territory of Australia in which these proceedings were initiated shall not be published in any way.
(5)Nothing in Order 1 prevents the Secretary or his delegate, or the respondents, from disclosing the necessary information about the children and/or the respondents to persons or organisations currently or previously providing or intending to provide services to the children and/or respondents, including but not limited to case workers, support workers, health and medical professionals, banking institutions, education professionals, community venues such as religious or extra-curricular activity providers, government agencies and any other persons or organisations currently, previously or intending to provide services, or their staff, to the children and/or the respondents.

Background

These reasons for judgment should be read in conjunction with the reasons given for the making of the suppression and non-publication orders on 8 August 2019: Secretary of the Department of Communities and Justice v X and Others (2019) 60 Fam LR 46 (“the 2019 reasons for judgment”). There, I described the relevant background in the following terms:
2.[Redacted]
3.[Redacted]
4.[Redacted]
5.[Redacted]
6.[Redacted]
7.[Redacted]
8.[Redacted]
9.[Redacted]
10.On 28 June 2019, I permitted the Secretary of the Department of Communities and Justice (“the Secretary”) orally to commence proceedings in relation to [redacted] (“the children”) seeking that the persons who had parental responsibility for them ([redacted]), accept the directions of the Secretary as to the children’s safety and welfare.
On 19 November 2019, Z was added as a party to the proceedings.
Interim parenting orders were made by consent on 17 December 2019 and the parenting proceedings have been adjourned to 21 July 2020 for further directions.
On 28 June 2019, I made a set of ex parte suppression and non-publication orders, which expired at midnight on 3 July 2019. Media entities were notified accordingly.
On 3 July 2019, the media entities appeared as intervenors in the proceedings.
On that day, the orders made on 28 June 2019 were extended and the matter was stood over to 10 July 2019 for reconsideration of the orders.
On 10 July 2019, the matter was before me for reconsideration of the suppression and non-publication orders. On that day, judgment was reserved and the suppression and non-publication orders were extended until the delivery of judgment.
On 8 August 2019, judgment was delivered and the existing suppression and non-publication orders were modified and ordered to continue until midnight on 23 October 2019 when they would again be reconsidered.
In October 2019, the Secretary indicated that they sought to vary and extend the suppression and non-publication orders made on 8 August 2019, a course which was opposed by the media entities. As such, on 15 October 2019, with the consent of all parties, the hearing on 23 October 2019 was adjourned to 19 November 2019 (which was the parties’ next availability) and the suppression and non-publication orders were extended until 5.00 pm on that day.
On 24 October 2019, the Secretary filed the Application in a Case outlined above (at [2]–[3]). Anticipating the filing of this application, a timetable was put in place on 15 October 2019 for the filing of evidence and written submissions by the parties.
In November 2019, the Court was informed that one of the counsel involved in the proceedings was unexpectedly hospitalised and unable to appear at the hearing on 19 November 2019 or to attend to submissions. As such, on two occasions, consent orders were sought and made extending the time for the parties’ to file their evidence and written submissions. An order was also made relisting the hearing on 25 February 2020, which was a date proposed by the parties.
On 25 February 2020, the Application in a Case filed on 24 October 2019 was heard and judgment was reserved. Interim orders were made on that day as outlined above (at [3]).
At the hearing, counsel for the media entities sought the opportunity to consider the position of whether a Notice of Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) (“the s 78B Notice”) should be served on the Attorneys-General of the Commonwealth, State and Territories in relation to the construction of s 102PE of the Family Law Act 1975 (Cth) (“the Act”).
On 11 March 2020, orders were made providing directions for the filing and serving of the s 78B Notice and for the parties to provide written submissions directed to that constitutional issue and whether the Court should publish a judgment in this matter.
On 18 March 2020, the s 78B Notice was filed.
On 20 March and 27 April 2020, orders were made extending the time for the provision of written submissions by the parties as directed in the orders made on 11 March 2020.
The media entities informed the Court that they received a response from the Attorneys-General offices who each indicated that they did not wish to intervene in the proceedings. The last of the material which provided an indication as to the attitude of the Attorneys-General was received on 22 May 2020.

Discussion

Whilst the media entities did not accept that any basis for making any suppression and non-publication orders had been established, the particular focus of their submissions was Order 3(a) made on 8 August 2019 as sought to be modified and extended in the Secretary’s Application in a Case filed on 24 October 2019, which is said to exceed the Court’s power to make suppression and non-publication orders as provided for in s 102PE of the Act. Alternatively, if that section of the Act, properly construed, permits the making of the order, the media entities submit that the section is void because it impermissibly restricts the implied constitutional freedom of political communication. Finally, it is put by the media entities that the Court’s implied power to make orders necessary to permit the exercise of its jurisdiction does not provide the power to make such an order.

Before turning to these particular points, it is convenient to deal with a submission that was made more than once on behalf of the media entities, which was that Order 3(a) made on 8 August 2019 is very broad in terms of the activity that it restricts. I accepted that to be so in the 2019 reasons for judgment (at [51]) and still hold the same view.
It is trite to say that injunctions must be adapted to the harm that they seek to restrain and seek to do no more than is necessary to prevent or reduce the risk of that harm taking place. However, provided there is power to make the order and care is taken to ensure that the order does no more than is required, then the breadth of the order is, of itself, not a problem.
I also accept that no orders of the breadth of the orders made in these proceedings have been made in other proceedings pursuant to s 102PE of the Act. That is a sound reason for proceeding cautiously but is not a barrier to such an order being made if the Court is satisfied that it has jurisdiction and the power to do so, and otherwise considers it to be an appropriate order.
I do note, however, that in none of the cases to which I was taken, was an order sought of the kind similar to that sought in this matter.

Does s 102PE of the Act give the Court the power to make Order 3(a) (including the Secretary’s proposed variations)?

Although it was put in a number of ways, the essence of the submissions made on behalf of the media entities is that:
… the information that is being suppressed or ordered not to be published must relate to that person in their capacity as a party or a witness. In other words, as – it’s information generated as a result of that person being caught up in the proceedings, whether it’s as a party, a witness or a person related to that party or witness, or a person otherwise associated with that party or witness...
(Transcript 25 February 2020, p.36 lines 20–25)
It follows that the media entities accept that Order 3(b) made on 8 August 2019 is within the Court’s power because it refers to material obtained from or disclosed in the proceedings.
Section 102PE of the Act provides:
Power to make orders
(1)A court exercising jurisdiction in proceedings under this Act may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in the proceedings or any person who is related to or otherwise associated with any party to or witness in the proceedings; or
(b)information that relates to the proceedings and is:
(i)information that comprises evidence or information about evidence; or
(ii)information obtained by the process of discovery; or
(iii)information produced under a subpoena; or
(iv)information lodged with or filed in the court.
(2)The court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
Section 102PE of the Act is not a source of jurisdiction and can only be invoked where the Court is already exercising jurisdiction in proceedings under the Act.
Further, it is not an unlimited source of power and its exercise must be related to the proceedings in which the orders are sought. So much is made clear from the words “exercising jurisdiction in proceedings under this Act” (s 102PE(1)). It follows that there must be a nexus between the proceedings themselves and the orders sought under s 102PE of the Act.
In the 2019 reasons for judgment, I said:
52.The other matter of significance is that whilst s 102PE(1)(b) of the Act is concerned with information relating to the proceedings, subs (a) is not so limited. The nexus to the proceedings required by that subsection is that the information must relate to a party, witness or a person who is related to or otherwise associated with a party or a witness. This clearly includes the children the subject of the proceedings. It also includes people who are associated with the parties or the children and who are providing services to the parties or the children such as health or education professionals.
I remain of that view.
A provision in a statute must be construed “so that it is consistent with the language and purpose of all of the provisions of the statute” (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]). In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, Kiefel CJ, Nettle and Gordon JJ said:
14.The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
(Footnotes omitted)
The substantive proceedings in this matter are parenting proceedings concerning a number of children who until relatively recently have been in appalling circumstances, as set out in the background above. Their best interests are the focus of those proceedings.
Whilst children are the subject matter of parenting proceedings, it is only in the most exceptional cases that they are parties or witnesses. They are, of course, related to the persons who are the parties in the parenting proceedings because the parties are the children’s parents, grandparents or persons concerned with the care, welfare or development of the children (s 65C of the Act). It follows that orders may be made for their safety.
The media entities did not suggest that s 102PE of the Act did not permit the suppression and non-publication of the children’s identities.
Section 102PE(1) of the Act is in two parts. Subsection 102PE(1)(b) permits the Court to make a suppression or non-publication order to prevent disclosure of “information that relates to the proceedings” as further described in the rest of its terms. Subsection 102PE(1)(a) is not limited in that way and according to its terms permits an order to be made restricting the publication or other disclosure of information concerning any person as described in that subsection. Thus, in its terms, it permits the making of an order prohibiting the publication or disclosure of any information concerning the children, provided the essential nexus between the proceedings and the order exists (see above at [30]–[31]).
The question which then must be asked is: if, as is submitted on behalf of the media entities, s 102PE of the Act is limited to “information generated as a result of that person being caught up in the proceedings” (Transcript 25 February 2020, p.36 lines 22–23), what role then does s 102PE(1)(a) of the Act play?
The answer on behalf of the media entities was:
[SENIOR COUNSEL FOR THE MEDIA ENTITIES]: Well, the content of (a), your Honour, is not information at large: it’s information that reveals the identity of or otherwise concerns any party to or witness in the proceedings in their capacity as party or witness. In other words, what (a) allows the court to do is to suppress information that reveals somebody as being a party in this case, as being a witness in this case and otherwise concerns them to the extent that that needs to be suppressed in order for the court to be able to do justice in the case. What it doesn’t permit, your Honour, looking at the grounds, is the suppression of any information tending to reveal the identity of somebody who happens to be a party to the proceedings because it will protect their safety generally, not as a result of them being part of the proceedings.
(Transcript 25 February 2020, p.37 lines 19–28) (Emphasis added)
The difficulty with that proposition is that it effectively adds the words “as a result of them being part of the proceedings” to the end of s 102PE(1)(a) of the Act. Had the legislature intended that to be the case, the section could easily have been drafted so that the words “information that relates to the proceedings” appeared in the introduction of s 102PE(1) and thus applied to both subsections (a) and (b).
This is confirmed by the separation of s 102PE(1)(a) and s 102PE(b) by the word “or” as opposed to being joined by the use of the word “and”.
Given the clear words of the section of the Act themselves and that this interpretation gives meaning and purpose to s 102PE(a) of the Act, I do not see any scope for implying a limitation of the kind suggested by the media entities.
It follows then that the Court is empowered, when exercising jurisdiction under the Act, to make an order prohibiting or restricting the publication or disclosure of information tending to reveal the identity of children, being related to or associated with the parties to proceedings or, which otherwise concerns them where the order is necessary for their safety (s 102PF(c) of the Act).
I consider that this reasoning is consistent with AB (a pseudonym) v CD (a pseudonym) (2019) 364 ALR 202. In that case, in proceedings which did not concern the applicant’s children in any way, the parties’ names were suppressed so as to avoid harm being done to the applicant’s children as a means of retribution against the applicant.
The media entities referred to a number of cases which I found to be of little assistance because of the different factual circumstances which underpinned them. In most of these cases, the orders that were made would not have been necessary had s 121 of the Act applied to them. They, therefore, have little to say about the operation of s 102PE(1)(a) of the Act. I adhere to my discussion of the relevant authorities in the 2019 reasons for judgment.
The media entities also relied on Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 (“Roberts-Smith”). In that case, Besanko J found that the identity of a witness should be suppressed because of an unacceptable risk of threats to and intimidation of her “as a proposed witness” in the case (Roberts-Smith at [40]). That was a description of the nature of the case before his Honour, who did not consider, because the question did not arise, whether an order can only be made where the suppression or non-publication relates to material arising from the proceedings themselves.
However, to make it quite clear, I adhere to and adopt what I said in the 2019 reasons for judgment as to the construction of s 102PE in the context of the Act as a whole and s 121 of the Act in particular. In my view, the construction proposed by the media entities would leave s 102PE(1)(a) of the Act with very little work to do in proceedings under the Act. I do not see why the clear words of that subsection should be so limited.
I also note s 102PC of the Act, which provides that Pt XIA and s 121 of the Act do not limit each other.

Does s 102PE of the Act burden the implied constitutional right to free political communication?

The media entities contend that the construction that I have adopted has the effect that s 102PE of the Act is invalid as it improperly burdens the implied constitutional right to free political communication. To this end, the s 78B Notice was served on the Attorneys-General of the Commonwealth, States and Territories.
The media entities summarised the relevant principles to be:
4.Freedom of communication on matters of government and politics is an indispensable incident of the system of representative government which the constitution creates.
5.The implied freedom is not absolute. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.
(Media entities’ written submissions on the s 78B Notice filed on 20 March 2020) (Footnotes omitted)
These principles flow from Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, McCloy v New South Wales (2015) 257 CLR 178 (“McCloy”) and Brown v Tasmania (2017) 261 CLR 328.
In McCloy, French CJ, Kiefel, Bell and Keane JJ said:
2.As explained in the reasons that follow, the question whether an impugned law infringes the freedom requires application of the following propositions derived from previous decisions of this Court and particularly Lange v Australian Broadcasting Corporation and Coleman v Power:
A.The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may “exercise a free and informed choice as electors.” It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.
B.The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:
1.Does the law effectively burden the freedom in its terms, operation or effect?
If “no”, then the law does not exceed the implied limitation and the enquiry as to validity ends.
2.If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as “compatibility testing”.
The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.
If the answer to question 2 is “no”, then the law exceeds the implied limitation and the enquiry as to validity ends.
3.If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as “proportionality testing” to determine whether the restriction which the provision imposes on the freedom is justified.
The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the inquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:
suitable – as having a rational connection to the purpose of the provision;
necessary – in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;
adequate in its balance – a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.
If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be “no” and the measure will exceed the implied limitation on legislative power.
(Footnotes omitted)
The orders sought by the Secretary prevent information as to the children’s identity, location, health and education from being published. They do not prevent the media entities reporting [redacted] generally [redacted].
The orders would however prevent illumination of that debate by reference to [redacted] the children the subject of these proceedings. It would preclude, for example, [redacted]. That burden, however, is only an incidental and not a direct burden on free political communication as it does not prevent political discussion on the main issue. It involves no significant curtailment of the freedom of political communication and discussion (Hogan v Hinch (2011) 243 CLR 506 at [95]; [96] and [98]). The issue [redacted] remains in the public domain with no restriction on the views that might be expressed.
The second question is whether the purpose of the law and the means adapted to achieve that purpose are legitimate, “in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government” (McCloy at [2]) (Footnotes omitted).
The media entities submit that the construction of s 102PE of the Act which I have adopted is not compatible with the maintenance of representative and responsible government. The submission was:
16.[Redacted]
(Media entities’ written submissions on the s 78B Notice filed on 20 March 2020) (Footnotes omitted)
For the reasons already given, I do not accept that the discussion [redacted] is prevented or substantially diminished by an inability to refer specifically to the children the subject of these proceedings. [Redacted].
It is apparent that orders under s 102PE of the Act are to be made sparingly. That flows from the discretion to have appropriate regard to the principles of open justice and from, in this case, the requirement that any orders be “necessary” for the safety of the children (s 102PF(c) of the Act). In short, the provision gives protection to few individuals in particular circumstances. This will be where the need for the protection of a person’s safety carries greater weight than the principle of open justice.
The safety of some members of the public is a legitimate purpose of government. Section 102PE of the Act is an expression of that purpose but only in the particular circumstances to which it applies.
Therefore, the Secretary’s proposed orders “do not adversely impinge on the functioning of the system of representative government” (McCloy at [2]).
For these reasons, s 102PE of the Act is reasonably appropriate and adapted to its object of protecting particular individuals.
The media entities have not persuaded me that any of the three questions posed by McCloy should be answered in their favour.

Implied Power

In the media entities’ written submissions filed on 3 December 2019, they submit that the Court does not have:
3.47…an implied power at large, on which the [suppression and non-publication orders] would depend. Put simply, those orders do not serve to permit the Court to exercise the jurisdiction afforded to it by the [Act] in the proceedings before it, and it is therefore not necessary to imply a power to make them to permit the Court to exercise that jurisdiction…
It is clear that a statutory Court has only the powers that are granted to it by the statute and those that can be implied from the statute. In addition, it has such powers that are necessary and incidental to the exercise of its jurisdiction and those powers (see, for example, DJL v The Central Authority (2000) 201 CLR 226 (“DJL”) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [25]).
In the 2019 reasons for judgment, I referred to a paragraph from the reasons of Kirby J in DJL. His Honour was in dissent. However, the point of the paragraph lay in the following words:
108.… in deriving the implied powers of the Family Court, this Court will not overlook the functions and powers of the Family Court, its character as an Australian superior court of justice and its duties which require it to make orders affecting the status of persons and the rights of children and others who may not be parties…

As I said in those reasons for judgment, the weight of authority is in favour of the Court having the implied or incidental power to close the Court or to suppress the names of witnesses or other information.
Whilst the question is not at all free from difficulty, I adhere to the view expressed by me in the 2019 reasons for judgment, that the Court has the implied or incidental power necessary to support the making of the Secretary’s proposed orders, for the reasons given there.

Is it necessary to make an order for the protection of the safety of the children?

I now turn to the evidence to determine whether it is necessary to make an order for the protection of the safety of the children (s 102PF(1)(c) of the Act). I do so with a view of looking at the merits of the application and not under s 102PH of the Act.
In the 2019 reasons for judgment, I said:
73.I do not propose to recite all the evidence. Some examples shall suffice. The page references are to the tender bundles referred to in Ms [P’s] affidavit filed 1 July 2019:
· [Redacted]
74.[Redacted]
75.[Redacted]
76.In assessing the need to protect the safety of a person, one must take account of the risks involved. A particular risk, such as those just discussed, may not be likely or imminent, nevertheless, a real risk of harm. That harm could well include violence or death. A risk of very severe harm which, however, may not be likely, but nonetheless, falls within the need for protection described in s 102PF(1)(c) of the Act.
77.The analogy of the seatbelt described by Nettle J in AB v CD at [15] aptly applies.
78.A more likely risk of harm, and one that is likely to be psychological rather than physical, is the intrusion of the public into the children’s lives. That intrusion could take many forms but could well include name-calling, baiting and verbal abuse. None of that would assist any children, let alone children now trying to adjust to a new life after particularly trying circumstances.
79.I am, however, of the view that publicity of itself is not helpful for these children. That, indeed, is one of the premises upon which s 121 of the Act is based – the need for privacy in the interests of the parties to proceedings and, in particular, their children. Of course, there is little public interest in most Family Court cases but, in those in which public interest is taken, the actual identity of the parties is not relevant.
80.[Redacted]
There is further evidence of more recent comments that have been made about the children. In an affidavit sworn on behalf of the Secretary on 20 December 2019, the following appears:
13.I have today viewed additional social media comments on various media sites as follows:
a)[Redacted]
(i)[Redacted]
(ii)[Redacted]
(iii)[Redacted]
(iv)[Redacted]
(v)[Redacted]
(vi)[Redacted]
…
b)[Redacted]
(i)[Redacted]
(ii)[Redacted]
(iii)[Redacted]
…
c)[Redacted]
(i)[Redacted]
(ii)[Redacted]
…
d)[Redacted]
(i)[Redacted]
(ii)[Redacted]
(iii)[Redacted]
…
(Affidavit of Ms P filed on 20 December 2019) (As per the original)
The more recent examples of comments made about the children are not as extreme as those outlined above at [69] but that can be explained by the lack of media articles concerning the children due to the suppression and non-publication orders.
However, the evidence satisfies me that since the 2019 reasons for judgment were published, comments made in media articles demonstrate continued hostility [redacted].
Further, the submissions of the media entities make it plain that if they could legitimately do so, they would report widely on the children. If they were so inclined, this could include identifying their location, home, school or health providers if the information that led them to do so came from a means unrelated to the proceedings. [Redacted].
I do not say that as a criticism of the media – that is, after all, the role it plays in our society. Any such media attention, however, would have an adverse effect on the safety of the children. Safety is not merely protection from sudden physical injury, it is also entails being safe from psychological or emotional harm. The evidence establishes that each of the children are affected by significant psychological issues and are receiving therapy. One child requires assistance for significant behavioural issues. [Redacted].
Media attention which will inevitably be followed by public attention is not just undesirable but poses a real risk for the safety of the children, as it will be disruptive of the care being provided to them and will add another layer of pressure upon them. When that safety is balanced against the requirements of open justice and the entitlement of the media to report as it see fit, in the present circumstances, greater weight must be given to the needs of the children. The orders are necessary for their safety.
At the hearing, I raised with the parties whether a short publicly available judgment would be desirable and appropriate. [Redacted].
I have, however, decided that it is not appropriate because it would be difficult to do so without identifying the children [redacted]. I am open, nonetheless, to a consideration of including in the orders something along the lines of “these orders do not prevent reporting on the return of unnamed children [redacted], that they are the subject of proceedings in the Family Court of Australia and reference to anonymised and redacted published orders of the Court”. If the published orders of the Court are permitted to be reported, they would need to be retrospectively redacted and anonymised, noting that they have been formally published without those steps being taken since the Court file is supressed. The orders will provide the parties with the opportunity to make submissions on this proposed order if they wish.

Conclusion

I am not prepared to make orders that cover any persons or organisation providing “services” to the children as it casts the net too widely and also creates too much uncertainty as to who is covered by it.
The inclusion of “banking institutions”, “community venues” and “government agencies” in the orders suffers from the same criticisms.
I do not think it necessary for the Court file number and the locality of the Registry to be suppressed because of the use of pseudonyms, the anonymisation and extensive redaction of published reasons for judgment, and the breadth of the suppression and non-publication orders themselves.
Otherwise, the orders made will be generally as sought by the Secretary.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 8 July 2020.

Associate:

Date: 8 July 2020