TEACHER REGISTRATION BOARD OF WESTERN AUSTRALIA and A TEACHER
[2022] WASAT 41
•12 MAY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: TEACHER REGISTRATION ACT 2012 (WA)
CITATION: TEACHER REGISTRATION BOARD OF WESTERN AUSTRALIA and A TEACHER [2022] WASAT 41
MEMBER: MS P LE MIERE, MEMBER
HEARD: 9 FEBRUARY 2022
DELIVERED : 12 MAY 2022
FILE NO/S: VR 63 of 2021
BETWEEN: TEACHER REGISTRATION BOARD OF WESTERN AUSTRALIA
Applicant
AND
A TEACHER
Respondent
Catchwords:
Practice and procedure - Application for nonpublication order - Tribunal's power under s 62 of the State Administrative Tribunal Act 2004 (WA) - Whether non-publication order is necessary - Where health information referred to would endanger physical or mental health or safety of respondent - Where nonpublication order undermines transparency of disciplinary process and deterrence under the Teacher Registration Act 2012 (WA) - Where nonpublication order sought applies to respondent's name and any other identifying information
Legislation:
State Administrative Tribunal Act 2004 (WA), s 61, s 61(4), s 62, s 62(3)
Teacher Registration Act 2012 (WA), s 47(f)(ii), s 83(1), s 84(1), Pt 3
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | Ms R Panetta |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
Nursing and Midwifery Board of Australia and A Practitioner [2019] WASAT 148
REASONS FOR DECISION OF THE TRIBUNAL:
The Teacher Registration Board of Western Australia (applicant) has alleged that proper cause exists for disciplinary action against the respondent pursuant to s 83(1) and s 84(1) of the Teacher Registration Act 2012 (WA) (Act) because the respondent, in the course of his practice as a teacher registered under Pt 3 of the Act engaged in serious misconduct the nature of which renders him unfit to be registered pursuant to s 47(f)(ii) of the Act.
The parties have reached agreement (as set out in the Minute of Consent Orders dated 20 December 2021 (Minute)) as to the findings they say should be made by the Tribunal, to the effect that proper cause exists for disciplinary action against the respondent and as to the agreed facts on the basis of which the parties say that that findings should be made.
The Tribunal has not yet determined whether to make the orders sought by the parties in the Minute. Following the filing of the Minute the respondent advised that he wished to apply for a non-publication order (Application). It is appropriate to deal with the Application before determining whether the orders sought in the Minute should be made.
The basis for the Application is that disclosure of the identity of the respondent would endanger the physical or mental health or safety of the respondent's wife (L).
The applicant's position is that it neither consents to, nor opposes, the Application, but that it would accept a finding of the Tribunal with respect to non-publication of the respondent's name. I understand that that concession extends to any identifying information in respect of the respondent as well as his name.
I have had regard to the following documents filed by the respondent:
•submissions in support of the Application dated 13 December 2021;
•witness statement of L;
•witness statement of the respondent; and
•a report of Dr Y, a consultant Psychiatrist dated 3 March 2022.
When a non-publication order may be made
The Tribunal's power to make a non-publication order lies in s 62 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Under s 62(3):
… [T]he Tribunal may, in the circumstances described in section 61(4), order that anything, or any particular thing, to which this section applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal.
The Tribunal may make a non-publication order in the circumstances described in s 61(4) of the SAT Act, which relevantly provides that:
(4)The Tribunal may make an order under subsection (2) if the Tribunal considers it is necessary to do so –
…
(d)to avoid endangering the physical or mental health or safety of any person; or
…
(g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest[.]
The principles relevant to the application of s 62 of the SAT Act in the circumstances described in s 61(4) of the SAT Act, are set out in Nursing and Midwifery Board of Australia and A Practitioner[1] and Medical Board of Western Australia v A Medical Practitioner.[2]
[1] Nursing and Midwifery Board of Australia and A Practitioner [2019] WASAT 148 (A Practitioner) at [11].
[2] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [86] - [88].
The factors relevant to the exercise of the Tribunal's discretion to make an order under s 62(3) of the SAT Act were set out by the Court of Appeal Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [86] - [88]. They can be summarised as follows:
1.The Tribunal has been given an express power to prohibit publication of the matters specified in s 62 of the SAT Act in the circumstances specified in s 61(4).
2.There are material differences of some significance between 'open justice principles' applied in common law courts, and the rights and obligations conferred on the Tribunal by the SAT Act.
3.These differences reinforce the observation that when an issue arises as to whether a non-publication order ought to be made, and if so, its scope, the question is to be resolved by directing attention to the relevant provisions of the SAT Act rather than by emphasis upon the common law principles of open justice which have evolved in relation to courts.
4.This does not mean that an expansive view should be taken of the powers conferred by the SAT Act to suppress publication of certain material. On the contrary, the language of the SAT Act compels the conclusion that it was intended that orders would only be made under those sections if necessary to avoid the particular consequences specified in s 61(4)(a) - (g) or in the interests of justice through s 61(4)(h).
5.The requirement that the order be 'necessary' reinforces that there must be a real and substantial connection between the publication of material and the relevant adverse consequence specified in the section.
6.A remote possibility of harm arising from an indirect or tenuous connection between a failure to make a suppression order will not satisfy the statutory requirement that the order be 'necessary'.
7.The particular consequences specified in s 61(4)(a) - (g) apply only to consequences of a significant or material kind, and not to consequences which are minor in character, transient or ephemeral.
Making a non-publication order in relation to the name of the respondent would have the consequence of undermining the transparency of the disciplinary process which is significant in relation to deterring other professionals from engaging in similar conduct and for the protection of the wider community. To some extent, that consideration underlies the requirements of s 61 of the SAT Act. It is also reflected in the requirement in s 61(4) of the SAT Act for the Tribunal to be satisfied that the non-publication order is necessary to avoid the consequences referred to, in this case, the danger to the physical or mental health or safety of any person. That requires a consideration of whether a non-publication order is the only way to avoid endangering L's mental health in the present circumstances.[3]
[3] A Practitioner at [19].
In all matters where a non-publication order is sought it will require an assessment of the risk to the mental health or safety of the person and the requirement for open justice, the criteria for which is set out in s 61 of the SAT Act.
In my view, all of those considerations support the conclusion that it is necessary to make the non-publication order in order to avoid endangering the mental health of L.
I am satisfied that the non-publication order should be made based on the medical evidence of Dr Y discussed below which shows a clear link between the publication of the respondent's name (and any other identifying information), and the endangering of L's mental health and safety.
Medical evidence
In his report Dr Y refers to L's past psychiatric history and notes that she fits the criteria as having a major depressive disorder.
Dr Y opined in his report that the publication of the respondent's name, the orders of the Tribunal, and/or the statement of agreed facts attached to the Minute would have a detrimental effect on L's mental health. He described it as follows:
She is going to experience significant increased anxiety which will increase her likelihood of mixing alcohol and benzodiazepines to cope. This is very high-risk combination which has potentially fatal consequences. From the history elicited, that risk to her mental state and to her safety is very high, should a suppression order not be granted.
The opinion of Dr Y, as set out in some length in his report, together with the reasons for his opinion, is that publication of the respondent's name and any information that may identify the respondent would more likely than not cause L to suffer a major depressive episode and she would be at risk of suicide. In my view, that clearly amounts to endangering, the mental health or safety of L.
I am satisfied that the evidence supports the necessity of nonpublication order to avoid endangering L's mental and possibly physical health.
Further, the appropriate form of that order will require, having regard to that necessity, an order that includes not only the respondent's name but also any other identifying information.
In other words, that non-publication order needs to cover not only the respondent's name, but any information which will identify him, apart from his name. That may include certain other details about the respondent, such as information in relation to his employment which would identify him and or the schools where he has taught that may be inferred from or referred to in the agreed facts in Annexure A of the Minute.
I will hear from the parties as to the form of the orders taking into consideration:
•whether there is a necessity for the disclosure of the respondent's name in particular circumstances consistent with the applicant's obligations under the Teacher Registration Act 2012 (WA); and
•whether the statement of agreed facts without the name of the schools involved sufficiently de-identifies the respondent.
The orders that the Tribunal will, therefore, make are as follows.
Orders
The Tribunal orders:
1.The respondent's name or identifying details are not to be published pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA).
2.The parties are to confer:
(a)in relation to the exceptions (if any) which may be required in relation to the non-publication order; and
(b)whether any amendments need to be made to Annexure A of the Minute of Consent Orders dated 20 December 2021.
3.By 30 May 2022 the parties are to file an agreed (or failing agreement) their own Minute of Proposed Orders addressing the matters upon which they have conferred.
4.The matter is listed for directions at 10.00 am on 6 June 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
12 MAY 2022
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