Thomson v Commissioner for Children and Young People and Child Guardian (No 2)
[2010] QCAT 680
•10 November 2010
| CITATION: | Thomson v Commissioner for Children and Young People and Child Guardian (No 2) [2010] QCAT 680 |
| PARTIES: | Laura Ellen Thomson |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML132-10 |
| MATTER TYPE: | Children’s mattersNon-publication order |
| HEARING DATE: | 03 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Tammy Williams – Member |
| DELIVERED ON: | 10 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application is dismissed. |
| CATCHWORDS : | Non-Publication |
APPEARANCES and REPRESENTATION (if any):
| NIL |
REASONS FOR DECISION
Relevant Background
An application was made for a non-publication order.
On 21 October 2008 the applicant was convicted in the Brisbane Magistrates Court for possessing dangerous drugs (on 4 October 2008), namely:
· 28 Methylenedioxymethamphetamine tablets (MDMA) or commonly known as Ecstasy; and
· Two small clip seal bags each containing 0.04 grams of cocaine. The applicant had secreted the drugs inside her vagina in an attempt to avoid detection.
A fine of $750 was imposed and no conviction was recorded.
The applicant was issued with a negative notice by the respondent on 27 October 2009 and the applicant sought to have this decision reviewed by the Queensland Civil and Administrative Tribunal (QCAT).
On 16 February 2010 a hearing was held and an Order was made that a positive notice be issued forthwith. Written reasons for the Tribunal’s decision were delivered on 24 March 2010 and subsequently, published on the Supreme Court Library website.
The applicant did not seek the non-publication order until 25 July 2010, after the Sunday Mail (and later the Courier Mail) had published an article on 18 July 2010 which named her and provided a summary of the particulars of the offence.
To support her claim the applicant filed written materials with Registry including a letter dated 25 July 2010; formal submissions prepared by her legal representative dated 30 September 2010; a copy of the on-line article which appeared on the Courier Mail’s website; and a Psychologist’s report dated 14 September 2010.
The Commission did not object to the Tribunal hearing the matter “on the papers” with no parties present and declined to make formal submissions. However it did provide written material in its capacity of assisting QCAT in the conduct of the proceedings.
The Law which Applies to this Matter
The making of a non-publication order is a matter wholly within the discretion of the Tribunal in accordance with the limitation imposed by the QCAT Act pursuant to section 66.
The starting point for the Tribunal is to consider the objects of the Act which are set out in section 3. It provides inter alia for the enhancement of openness and accountability of public administration (section 3(e)).
The current existing statutory framework commences from the position that the decisions of the Queensland Civil and Administrative Tribunal will be published unless it can be demonstrated an Order is necessary, as one of the criteria specified in section 66(2) applies.
This application was made on the grounds of section 66(2)(b) that a non-publication order is necessary to avoid endangering the physical or mental health or safety of a person. Ms Thompson argues the publication of the Tribunal’s decision which identifies her, (adult) character witnesses who gave evidence at hearing, and her place of employment and studies “…places undue stress on myself and all named parties. The anxiety and pressures I have endured during these processes have taken a heavy toll on my health and wellbeing.”
The issue of non-publication orders was discussed at length by Justice McHugh JA in John Fairfax and Sons Limited v Police Tribunal of New South Wales and Anor[1] in which he observed:
[1] (1986) 5 NSWLR 465 at 476-477
The fundamental rule of the common law is that the administration of justice must take place in an open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in a court room.
Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication [emphasis added].
[13] Section 361(1) of the Commission for Children and Young People and Child Guardian Act 2000 (the “CCYPCG Act”) - the enabling Act of the child-related employment review, expressly provides for such proceedings to be held in private. Therefore it is clear the Queensland Parliament has modified the ‘open justice principle’ in regards to the conduct of the proceedings. However the Commission for Children and Young People and Child Guardian Act 2000 does not prohibit the publication of the Tribunal’s decisions after a review hearing. In fact section 125 of the QCAT Act, expressly permits publication of the Tribunal’s reasons in such terms “as the Tribunal sees fit.”
[14]As a result of the newspaper article’s publication the applicant states she was asked by members of the school where she is currently employed to, “in effect explain herself.” Ms Thompson further states she is conscious of the article’s circulation among parents of the students whom she coaches and argues this has “impacted significantly on the quality of her interaction between the minor students and their parents/guardians.”
[15]No evidence was presented to the Tribunal to indicate whether the reduction in the quality of interaction as claimed by Ms Thompson is based solely on her perception and self consciousness; or an actual withdrawal by the students and their caregivers.
[16]A psychological review was conducted by Dr Lynagh to determine whether the applicant had been adversely affected by the article published in the Sunday Mail on 18 July 2010. The symptomatology as reported by Ms Thompson were said to have persisted for up to two weeks post-publication. Specifically at page 3 of his report Dr Lynagh states:
“Ms Thompson reported that she experienced such symptoms most intensely for the first week and by the end of the second week post-publication their intensity had diminished to be at a mildly intrusive level.”
[17] Although Dr Lyngh concluded his report by stating he had some concern as to the possible detrimental effects of any further publicity; he nonetheless was of the opinion that “apart from a preoccupation and related uncertainty and personal insecurity [the applicant] presented as being a reasonably adjusted and functional competent young woman.”
[18]The Tribunal is guided by the reasoning of Kirby P in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) & Anor v Local Court of New South Wales & Ors[2] whereby he “acknowledged that an unfortunate incident of open justice is that embarrassing, damaging and even dangerous facts occasionally come to light”.
Nonetheless His Honour was clear this is not sufficient grounds for the closure of courts or the issue of suppression orders in their various alternative forms:
A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice.
[2] (1991) 26 NSWLR 131 at 142-143
The present matter before the Tribunal can be distinguished by the recent decision of FGC v Commission for Children and Young People and Child Guardian (No 2) [2010] QCAT 362 whereby the application of section 66 of the QCAT Act was considered. The relevant facts were that FGC’s had not been charged or convicted of any offence and the investigation of FGC’s conduct was within a private board of inquiry. Thus publication of his name was held not to be in the interests of justice and would create a nugatory effect in having his blue card restored.
[20] Whereas Ms Thompson was convicted of possessing dangerous drugs. Her alleged conduct had been tested (unlike the FGC matter) and a final determination of those factual matters was made by a Court of Law. During the review proceedings before QCAT the applicant admitted these facts and the decision of the Tribunal accurately reflects her offending conduct; hence no injustice can be said to have occurred.
[21] No submissions were made by Ms Thompson’s legal representative for a non-publication order either during the hearing, or at the time when the written reasons for the decision were delivered on 24 March 2010 and published on the Supreme Court Library website.
[22]The application for non-publication was filed with the Tribunal approximately four months after publication of the decision on the internet and later reported in the media. The content of the Tribunal’s decision and written reasons had been in the public domain for some time. Therefore the effect of a non-publication order has no utility and places those who acquire the information, either in the form of the decision or reports of their contents, in jeopardy of breaching an order to the world at large, of which they might not be aware.
[23]Therefore in consideration of the matters mentioned above, the Queensland Civil and Administrative Tribunal dismisses the application.
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