Tilley v Children's Guardian

[2017] NSWCA 174

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Tilley v Children’s Guardian [2017] NSWCA 174

Hearing dates:

21 June 2017

Decision date:

19 July 2017

Before:

Basten JA at [1];
Meagher JA at [49];
Leeming JA at [50]

Decision:

(1)   With respect to the non-publication order made on 21 June 2017 –

 

(a)   revoke the order to the extent that it prohibits publication of material identifying the appellant, and
(b)   order that there continue to be a prohibition on the publication of material that could identify the appellant’s previous fiancée or any other person who had complained of prior misconduct by the appellant.

 

(2)   Dismiss the appeal from the judgment of Fullerton J delivered on 8 June 2016.

 (3)   Order that the appellant pay the respondent’s costs in this Court.

Catchwords:

CHILD WELFARE – applicant appealed from NCAT decision affirming refusal of Children’s Guardian to grant working with children check clearance – applicant previously charged with disqualifying offences in circumstances where proceedings discontinued – whether applicant subject to assessment requirement within meaning of Child Protection (Working with Children) Act 2012 (NSW) s 14 – whether NCAT applied incorrect legal test and reversed onus of proof in determining whether satisfied that applicant posed risk to safety of children under s 18(2)

WORDS AND PHRASES – Child Protection (Working with Children) Act 2012 (NSW) Sch 1 cl 1(1) – whether “proceedings have been commenced” against applicant for purposes of determining whether applicant subject to assessment requirement

Legislation Cited:

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), Sch 2, items 4, 5
Child Protection (Working With Children) Act 2012 (NSW), ss 13, 14, 15, 18, 27; cl 1, Sch 1; cl 1, Sch 2
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 178F
Civil and Administrative Tribunal Act 2013 (NSW), Sch 3, cl 17
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8
Crimes Act 1900 (NSW), ss 61I, 61J, 61N
Criminal Procedure Act 1986 (NSW), ss 15, 47
Federal Court of Australia Act 1976 (Cth), ss 37AE, 37AG, 50
Interpretation Act 1987 (NSW), s 33

Cases Cited:

Attorney General for New South Wales v Nationwide News Pty Ltd (2008) 73 NSWLR 635
Australian Broadcasting Commission v Parish (1980) 43 FLR 129
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BVI v Children’s Guardian [2015] NSWCATAD 246
CJT v Office of the Children’s Guardian [2017] NSWCA 48
Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523; [2013] HCA 16
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
M v M (1988) 166 CLR 69; [1988] HCA 68
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 June 2012

Category:

Principal judgment

Parties:

Christopher John Tilley (Appellant)
Children’s Guardian (Respondent)

Representation:

Counsel:
Dr R Della-Bosca as agent (Appellant)
Mr I Bourke SC/Ms G F Mahony (Respondent)

  Solicitors:
Self-represented (Appellant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2016/270276

Publication restriction:

See order (1) above.

 Decision under appeal 

Court or tribunal:

Supreme Court

Citation:

[2016] NSWSC 738

Date of Decision:

08 June 2016

Before:

Fullerton J

File Number(s):

2015/349994

Judgment

1. BASTEN JA: On 13 May 2014 the applicant applied to the Children’s Guardian for a “working with children check clearance”, pursuant to s 13 of the Child Protection (Working With Children) Act 2012 (NSW) (“Working with Children Act”). He sought the clearance because he wished to engage in “children-related work” as a volunteer with a local church. It was not in dispute that he required a clearance under the Act for that purpose.

2. On 25 March 2015 the Children’s Guardian refused his application. On 2 April 2015 the applicant applied to the Civil and Administrative Tribunal for a review of the Children’s Guardian’s decision, pursuant to s 27 of the Working with Children Act.

3. On 24 November 2015 the Tribunal affirmed the decision of the Children’s Guardian. [1] The decision of the Senior Member was not subject to internal appeal to an appeal panel of the Tribunal, but was subject to an appeal to the Supreme Court on a question of law. [2]

   1. BVI v Children’s Guardian [2015] NSWCATAD 246.

   2. Civil and Administrative Tribunal Act 2013 (NSW), Sch 3, cl 17(1).

4. The applicant lodged such an appeal, which was dismissed by Fullerton J on 8 June 2016. [3] The applicant sought leave to appeal from that judgment. Qualified leave was granted on 20 March 2017, limited to two grounds:[4]

“(a) Her Honour erred in law in upholding the decision of the [Tribunal] that the applicant was subject to an assessment requirement within the meaning of s 14 of the [Working with Children Act].

(b)   Her Honour erred in law in holding that [the Tribunal] applied the correct statutory test in determining that the applicant posed a risk to the safety of children.”

3. CJT v Office of the Children’s Guardian [2016] NSWSC 738.

4. CJT v Office of the Children’s Guardian [2017] NSWCA 48 (Ward JA and Sackville AJA).

Procedural matters

5. It is convenient to identify three procedural matters which arose on the appeal. First, although the proceedings below identified the respondent as “Office of the Children’s Guardian”, that is a statutory office created pursuant to s 178F of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and is not a body corporate. The appropriate respondent is the Children’s Guardian. It is the Children’s Guardian who is required to determine applications for working with children check clearances.

6. Secondly, there is an issue as to the identification of the appellant. The Court made an order prohibiting publication of his name and any matter which would identify him, at the hearing of the appeal on an interim basis, indicating that it would reconsider the propriety of such an order in its judgment. It will be necessary to return to that matter at the end of these reasons.

7. Thirdly, it is convenient to note the scope of the appeal. The application for leave to appeal contained numerous alleged errors and did not conform with the requirement to limit grounds to questions of law. The first pleaded ground identified as an appropriate subject of a grant of leave was described in the leave judgment in the following terms:[5]

“[The applicant] did contend that neither the Children’s Guardian nor NCAT had jurisdiction to undertake a risk assessment because the charges against him had been terminated without proceeding to a trial.”

5. [2017] NSWCA 48 at [14].

8. The judgment noted that the resolution of that issue depended on the scope of cl 1(1)(b) of Sch 1 to the Working with Children Act, the proper construction of which was not without difficulty. Ground 1 was intended to reflect that issue. The second pleaded ground turned on the operation of s 18(2) of the Act which required the Children’s Guardian to grant a clearance unless she were satisfied that the person posed a risk to the safety of children. The leave judgment noted that it was “arguable that NCAT applied the wrong test and that the primary Judge should have concluded that NCAT erred in law.”[6] Ground 2 should be understood as confined to that issue.

   6. [2017] NSWCA 48 at [18].

Requirement for risk assessment – ground 1

9. The requirements for the conduct of a risk assessment are to be found in s 14 and part of s 15, which provide as follows:

14   Assessment requirements

A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.

15   Assessment of applicants and holders

(1)   The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2)   The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3)   Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

10. Although the phrase defined in s 14 is “assessment requirement”, the relevant provisions refer to a person being “subject to an assessment requirement”. Section 15 requires the Children’s Guardian to carry out a “risk assessment” of a person who is “subject to an assessment requirement”. Section 15(2) confers a power (apparently without obligation) to conduct a risk assessment with respect to “the holder of a clearance” in identified circumstances. That provision has no relevance for present purposes, except as part of the structure of the legislative scheme. Similarly, s 15(3) implicitly identifies a power to conduct a risk assessment in respect of an applicant even if subs (1) and (2) are not engaged. That provision was said by the respondent to assist in understanding the scheme as it applied to the applicant.

11. It is also necessary to have regard, in respect of both grounds of appeal, to the terms of s 18 of the Working with Children Act, which dictates the outcome of the functions conferred on the Children’s Guardian:

18   Determination of applications for clearances

(1)   The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a)   a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b)   a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

(2)   The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3)   The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

12. Section 14 requires reference to Sch 1 of the Act.

Schedule 1 Assessment requirement triggers

1   Offences

(1)   Proceedings have been commenced against a person:

(a)   for an offence specified in clause 1 of Schedule 2, if the offence was committed as a child (whatever the outcome of the proceedings), or

(b)   for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.

(2)   Proceedings have been commenced against a person for any of the following offences (whatever the outcome of those proceedings):

(a) an offence involving intentional wounding of or causing bodily harm to a child by an adult (other than an offence specified in clause 1 of Schedule 2),

(b)   any sexual offence committed against, with or in the presence of a child, other than an offence specified in clause 1 of Schedule 2,

…

(3)   Proceedings have been commenced against a person for any of the following offences (other than where a person has been found not guilty of the offence concerned):

…

(5)   Subclauses (1), (2), (3) and (4) apply to:

(a)   an offence an element of which is an intention to commit an offence of a kind listed in those subclauses, and

(b)   an offence under a law other than a law of New South Wales that is an offence similar to an offence listed in those subclauses, and

…

in the same way that they apply to the offences listed in those subclauses.

(6) A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children.

…

2   Findings of misconduct involving children

A person has been the subject of a finding by a reporting body that the person engaged in the following conduct:

(a)   sexual misconduct committed against, with or in the presence of a child, including grooming of a child,

(b)   any serious physical assault of a child.

…

13. Section 18(1) requires reference to Sch 2, which is headed “Disqualifying offences”, and includes offences of sexual assault, indecent assault and sexual assault on children. The obligation not to grant a clearance arises with respect to persons convicted of disqualifying offences or against whom proceedings for such an offence have been commenced, where the offence was committed or allegedly committed as an adult.

14. At the time he made his clearance application, the appellant was facing charges under ss 61I, 61J and 61N of the Crimes Act 1900 (NSW) in relation to alleged conduct against his former fiancée. As a result, he was initially advised, on 17 July 2014, that a clearance would be refused in accordance with s 18(1)(b) of the Act. Although the appellant was committed for trial, the complainant declined to give evidence and the Director of Public Prosecutions entered a nolle prosequi in respect of each charge. The clearance application was treated as continuing and the Children’s Guardian proceeded to deal with it on the basis that a risk assessment was required because the appellant fell within cl 1(1)(b) of Sch 1 of the Act and was subject to an assessment requirement under s 14. The discontinuance of the proceedings was not treated as taking them outside the language of cl 1(1)(b).

15. The first issue in relation to cl 1(1)(b) was whether proceedings had been commenced against the applicant. An argument was put on his behalf that the laying of charges and the committal for trial did not involve the commencement of proceedings, that terminology only being satisfied by the commencement of the trial.

16. This argument should be rejected. If the clause referred to proceedings commenced in a particular court or jurisdiction, there might be some justification for the view that, for example, proceedings in the District Court were not commenced until an indictment was presented, although there would remain an issue as to whether they were commenced when the person was committed for trial in the District Court. It is not necessary to address that question because no such words of limitation are found in cl 1(1). Rather, cl 1(1) involves reference to proceedings that “have been commenced against a person … for an offence” of a specified kind. The Criminal Procedure Act 1986 (NSW) provides for proceedings to be commenced by indictment, a term which is defined to include “a court attendance notice or any other process or document by which criminal proceedings are commenced.”[7] The Act further provides that “[c]ommittal proceedings for an offence are to be commenced by the issue and filing of a court attendance notice”. [8] The commencement of committal proceedings by a court attendance notice in the present case fell within the operation of cl 1(1).

    7. Criminal Procedure Act, s 15(2).

    8. Criminal Procedure Act, s 47(1).

17. The primary argument raised by the appellant focused on whether that provision was engaged where the proceedings had not only been commenced, but had terminated without conviction. There were two primary reasons proposed for limiting the operation of par (b) in this way. First, the reference to an offence which “was committed” was not consistent with an allegation which had been withdrawn, as in the present case. Secondly, where the outcome was not relevant, that was identified. Thus, both par (a) and sub-cl (2) included the phrase, in parenthesis, “whatever the outcome of [the] proceedings”. There was no such language used in par (b). The outcome of the proceedings was therefore not irrelevant to the operation of par (b).

18. However, reliance on the use of the past tense (“was committed”) proved too much. Paragraph (a) also uses that language, although it expressly envisages an outcome which did not involve a finding of guilt. Consistently, par (b) must include cases where the person was not convicted because, had the person been convicted, he or she would have been a disqualified person within s 18(1). Paragraph (b) expressly excludes that possibility. In short, the words “was committed” must be understood as referring to the temporal element, namely whether the person was a child or an adult at the relevant time, and thus to refer to the allegation in the charge, rather than the outcome of the proceedings.

19. The absence from par (b) of the words in parenthesis in par (a) and in the chapeau to sub-cl (2) (“whatever the outcome of the/those proceedings”) is readily explained without implying that an acquittal, for example, was not envisaged by that provision. The words are missing partly because the outcome was relevant, at least in one circumstance, namely where the person was convicted and was thus a disqualified person. A conviction would not matter with respect to par (a), because, the offence being committed as a child, the person would not be disqualified. However, if a person is subject to an assessment requirement because they have been charged with an offence as a child, even though the person was acquitted, it would be incongruous if, in the same circumstances (differing only because the charge arose when the person was an adult) the person were not subject to an assessment requirement.

20. There was a further difficulty with the appellant’s reading of these provisions. It is clear that sub-cl (1) is not limited to pending proceedings. That is because both pars (a) and (b) envisage that there may have been an outcome of the proceedings. Accordingly, any point of discrimination must depend upon the outcome. So far as (a) is concerned, the outcome does not matter; so far as (b) is concerned, the one outcome which takes a person outside the category is a conviction. However, there are a range of other outcomes which are potentially available. One was illustrated by the present case, namely that proceedings did not go ahead because the key witness was unavailable or unwilling to give evidence. In those circumstances there would have been no trial and no verdict. There is also the possibility that, either as a result of a summary trial, a guilty plea or even a verdict, a person is found guilty but no conviction is recorded. The need to distinguish between such circumstances was not addressed. However, consideration of the different possibilities reveals the implausibility of the argument that par (b) was based on any such distinction as to outcome.

21. It follows that the appellant, having been charged with offences which fell within cl 1 of Sch 2, which were committed by him as an adult and as a result of which he had not become a disqualified person, was a person subject to an assessment requirement under s 14. Ground 1 must be rejected.

Test for refusal of clearance – ground 2

22. The second ground turned on the operation of s 18(2). The language of s 18(2) appears not to be limited to a person who is “subject to an assessment requirement” within s 14, but applies to anybody who is “subject to a risk assessment”, which may include those who fall within s 15(2) and s 15(3). For present purposes it is sufficient to say that the Children’s Guardian and the Tribunal were required to grant a clearance to the appellant unless affirmatively satisfied that he posed a risk to the safety of children.

23. There is no doubt that the Tribunal correctly stated the test in setting out the legislative scheme. [9] The Tribunal then addressed the question of burden of proof in the following passage, noting that the jurisdiction of the Tribunal on an application under s 27 was “protective and not punitive in nature”. [10] The senior member continued:

“[21] The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

[22] An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

[23]   In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s 28 of the Act.

[24]   In this application, an issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 19 above). Section 15(4) sets out the criteria which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that section 15(4) and 30(1) are drafted in similar but not identical terms. An important distinction is the word ‘may’ in 15(4) and ‘must’ in 30(1).”

9. BVI at [16].

10. BVI at [20].

24. The Tribunal then gave careful consideration to the incidents which gave rise to doubts about the risk the appellant might pose. These included charges involving indecent assault and unlawful sexual intercourse with a person under 12, when the applicant was living in South Australia. The charges were laid in 2004, but did not proceed because the complainant was unwilling to give evidence. The victim was aged 11 years at the time of the alleged offences. [11] The Tribunal also referred to charges laid in New South Wales in 2013, including aggravated sexual intercourse without consent, inflicting actual bodily harm and five counts of aggravated sexual intercourse without consent. [12] There was also a matter involving loitering near a school in 2004 and an allegation in relation to a 16 year old female in 2012. [13]

    11.    BVI at [39]-[41], [49], [51], [53].

    12.    BVI at [42]-[44], [50], [52].

    13.    BVI at [45]-[47].

25. The challenge to the test adopted by the Tribunal focused on the following passage in the reasons:[14]

“However, in the context of whether the applicant poses a risk (notwithstanding the finding above), having regard to all of the material before the Tribunal, including the pattern of the allegations and the similar theme running through the allegations, I find that the existence of a real and appreciable risk has not been disproven.

14. BVI at [83].

26. That passage was said to reveal a reversal of the burden of proof, and therefore to demonstrate error of law. However, it is not possible to take a single sentence out of context. In particular, it is necessary to set out the two paragraphs which preceded that passage and the one which followed.

“[81] I have carefully considered all of the material before the Tribunal. There are two instances whereby serious criminal charges arose based on an examination of the evidence gathered in respect of the applicant’s alleged behaviour. One of those instances goes directly to matters pertaining to the risk to children and young persons (the 2004 charges). The other instance goes to serious charges concerning matters referred to in Schedule 1 and 2 of the Act. Whilst those charges do not relate to a child victim, they go specifically to offences of violence and sit squarely within the compass of matters specified under the Act.

[82]   In making a finding as to whether the criminal allegations (involving charges) occurred, I find that I am unable to make a positive finding. In doing so I find that the evidence in the form submitted at the hearing is (in my view) not sufficient to establish those allegations to the civil standard. That is not to suggest that the allegations have no truth, (or in the alternative – have truth), but rather that I am unable to positively determine them, in that I am required to be reasonably satisfied as to their veracity (on the balance of probabilities). Therefore whether those matters occurred, or did not occur remains open.

…

[84] The number, nature and similarity of the allegations, are relevant when assessing risk. In addition, some of the respondent’s evidence shed doubt on the truthfulness of aspects of the applicant’s material. The applicant has a duty under section 27(4) of the Act to fully disclose to the Tribunal any matters relevant to the application. In material and submissions put to the Tribunal, the applicant indicated that he had never been subject to a warning from South Australian Police. Aspects of this evidence were challenged by the contents of ‘R 3’ which were viewed during the hearing.”

27. The Tribunal then referred to other factors which were relied upon by the respondent as indicative of a pattern of behaviour and stated:[15]

“The applicant was given a final opportunity to consider whether to provide further evidence which the Tribunal could weigh in respect of both the allegations and the risk. Following a brief adjournment after the conclusion of the respondent’s evidence the applicant advised the Tribunal that he did not wish to provide further evidence.”

15. BVI at [92].

28. The remainder of the reasoning set out the conclusions of the Tribunal. In the course of that process, the Tribunal stated:[16]

“The applicant and his agent were repeatedly reminded of what the Tribunal’s role was, and how they might wish to consider rebutting or extricating the applicant from the allegations and findings presented by the respondent against him both in regards to the allegations and their views on risk.”

16. BVI at [95].

29. The Tribunal concluded:

“[97]   The evidence and material referred to in these reasons establishes that the applicant poses a real and appreciable risk to the safety of children.

[98]   The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

[99]   I note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

[100]   In my view having regard to all of the material before the Tribunal, the applicant poses a risk to the safety of children. In this regard the respondent was obliged, in determining the application for a clearance, to refuse to grant a clearance to the applicant.”

30. Reading the whole of this material, it is clear that the finding at [83] that there was “a real and appreciable risk [that] has not been disproven” did not involve any reversal of the test requiring that the Tribunal be affirmatively satisfied of risk. It was, rather, a reflection of the strategic situation, namely that there was significant material supporting the view that the applicant posed a risk to children, to which there had been no adequate response. This view is confirmed by the fact that, in his conclusions, the senior member adopted the language of s 18(2).

31. It is true that at [98] the senior member expressed a conclusion by way of a double negative, namely that he could not be satisfied that the applicant did not pose a relevant risk. However, read in context it is unlikely that the Tribunal was proposing a reversal of the onus of proof, given the correct formulation of the conclusions in the preceding and succeeding paragraphs. A preferable reading is that the evidence and material before the Tribunal provided no basis for rejecting the affirmative conclusion.

32. Accordingly, ground 2 is not made good. The Tribunal correctly applied the test imposed by s 18(2).

33. Before leaving ground 2, it is necessary to note a different form of argument which was presented in the submissions put on behalf of the applicant. The argument relied upon the proposition in [82],[17] to the effect that the Tribunal was not satisfied on the balance of probabilities that the allegations against the applicant were made out. If that were so, the applicant submitted, the Tribunal could not reasonably have been satisfied that he posed a risk to children.

    17. Set out at [26] above.

34. That was not seen by the Tribunal as a determinative factor. The senior member referred to the reasoning of the High Court in a family law case involving allegations of child abuse, M v M, [18] in which the Court had noted that the issue to be determined was the likelihood or possibility of such conduct occurring in the future, which imposed no necessary requirement to determine whether it had occurred in the past. The Court noted that some allegations might be seen to be well-founded, while others may be seen as groundless. However, the Court accepted that there would be allegations falling into an intermediate category which were nevertheless relevant to the assessment of future possibilities or likelihoods, which lay at the heart of the Family Court’s function in determining appropriate orders with respect to custody and access, for the welfare of a child. That approach was approved in dealing with applications under the Working with Children Act by Beech-Jones J in BKE v Office of the Children’s Guardian. [19]

    18. (1988) 166 CLR 69; [1988] HCA 68.

    19. [2015] NSWSC 523 at [33].

35. The advocate for the applicant submitted that if the chances of each set of allegations being true were less than 50%, the possibility of such events occurring in the future was even more remote than the possibility of the past events having occurred. However, that logic cannot be accepted. The fact that there were a series of allegations of sexual misconduct, over a period of years, in different locations, and from apparently entirely independent complainants, is material upon which the Children’s Guardian and the Tribunal were entitled to act. It is not logical to suggest that the risk declines with the number of independent though unproven allegations of similar misconduct.

36. It is by no means clear that this complaint was intended to fall within the grounds of appeal for which leave was granted. Nevertheless, it does not give rise to a demonstrable error of law on the part of the Tribunal and, whilst it may be considered, it should be rejected.

Non-publication order

37. It is convenient to return to the questions noted at the outset, namely whether there should be a suppression or non-publication order (a) regarding the identity of the appellant, and (b) regarding the identity of any other person, pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Non-publication Act”).

38. In deciding whether to make a suppression or non-publication order, the court must take into account, pursuant to s 6, that “a primary objective of the administration of justice is to safeguard the public interest in open justice.” Nevertheless, the Court has power to prohibit or restrict the disclosure of information tending to reveal the identity of a party “on grounds permitted by this Act”, pursuant to s 7. The available grounds are set out in s 8, which relevantly provides:

8   Grounds for making an order

(1)   A court may make a suppression order or non-publication order on one or more of the following grounds:

(a)   the order is necessary to prevent prejudice to the proper administration of justice,

…

(d)   the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e)   it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2)   A suppression order or non-publication order must specify the ground or grounds on which the order is made.

39. There are cases where the identity of a victim is protected, as for example in relation to sexual offences, an exception recognised in s 8(1)(d). The rationale for the exception is, in part, the public interest in the reporting of sexual offences and the prosecution of alleged offenders, which may be discouraged if the complainant fears public humiliation. The identity of the persons who have complained about the appellant’s allegedly unlawful conduct should be protected on this basis.

40. This basis for an order is only available to the appellant if identification of him would reveal the identity of those complaining of sexual offences. There was no evidence before the Court to suggest that a real risk of such disclosure arose in the present case.

41. In other cases, the victim of unlawful conduct is the party bringing the proceedings; for example, a person complaining of a breach of privacy laws is properly to be protected from further disclosure in seeking relief with respect to earlier disclosures. There are other examples of cases where that which is sought to be protected, or for which compensation is sought, is at risk of destruction or further damage by publicity in the course of the litigation.

42. An alternative basis for a non-publication order in favour of the appellant must depend on the scope and purpose of pars (a) and (e) in s 8(1). The relevant purpose would be to prevent the disclosure of allegations, none of which has proceeded to trial. However, even had they proceeded to trial and resulted in acquittals, the identity of the appellant would not have been suppressed for that reason.

43. Prior to 2012, the operation of par (a) had an analogue in s 50 of the Federal Court of Australia Act 1976 (Cth), which contained a power to prohibit or restrict the publication of particular material in circumstances which included the prevention of prejudice to the proper administration of justice. [20] That provision was considered by the High Court in Hogan v Australian Crime Commission. [21] Adopting a statement by Fullerton J, accepted by this Court in Attorney General for New South Wales v Nationwide News Pty Ltd [22] in the following terms, the High Court held: [23]

“It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some ‘balancing exercise’, the order appears to have one or more of those characteristics.”

20. Section 50 was repealed and replaced by ss 37AE and 37AG: Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), Sch 2 items 4 and 5.

21. (2010) 240 CLR 651; [2010] HCA 21 (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).

22. (2008) 73 NSWLR 635 at [34] (Hodgson JA, Hislop and Latham JJ agreeing).

23.    Hogan at [31] (citations omitted).

44. Hogan involved proceedings brought by the appellant claiming client legal privilege in relation to documents sought by the Crime Commission. In response, the Crime Commission identified a number of inferences of crime or fraud which were relied upon to defeat the privilege. In pursuing his claim, the appellant had placed before Emmett J in the Federal Court a “schedule of inferences” and other documents concerning his taxation and financial affairs. It was that material which he sought to protect from disclosure. Emmett J refused to continue a non-publication order, a judgment upheld by a Full Court, which in turn was the subject of the appeal to the High Court. The appeal was dismissed. The High Court accepted that the claim was not “analogous to a case where confidential information ‘is the subject matter of the proceedings’; [so] that it was in the interests of justice that the processes for determination of those very proceedings not destroy or seriously depreciate the value of that subject matter.”[24]

    24. Hogan at [42], [43], quoting Bowen CJ in Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 135.

45. While it is true that material revealing the allegations of unlawful conduct was not put before the Tribunal, or the Court, by the appellant, but rather by the Children’s Guardian, the presentation of such material was an inevitable consequence of the appellant’s application for a clearance and his challenge to the refusal of the Children’s Guardian to grant such a clearance. Although the disclosure of such material might well be distressing and embarrassing to the appellant (although he gave no evidence to that effect) he had no basis to resist its disclosure in response to his own application.

46. There is, no doubt, a public interest in allowing a person against whom allegations of sexual assault have been made to test and, if possible, answer those allegations in the course of seeking a clearance from the Children’s Guardian. That process does not engage the public interest in open justice. Nor is it necessary to consider whether the appeal to the Tribunal was properly undertaken in conditions of anonymity. However, when the matter reached a court, the principle of open justice was engaged and a suppression or non-publication order could only be made in the circumstances envisaged by s 8(1).

47. In applying the well-established principles discussed above, the requirement of s 8(1)(a) is not satisfied. Nor is par (d) engaged. If there were some other public interest in non-disclosure which “significantly outweighs the public interest in open justice” it was not identified in the present case. Accordingly, it is appropriate to revoke the non-publication order with respect to the identification of the appellant made on an interim basis in the course of the hearing of the appeal.

Orders

48. For the reasons set out above, the Court should make the following orders:

1. With respect to the non-publication order made on 21 June 2017 –

1. revoke the order to the extent that it prohibits publication of material identifying the appellant, and

2. order that there continue to be a prohibition on the publication of material that could identify the appellant’s previous fiancée or any other person who had complained of prior misconduct by the appellant.

2. Dismiss the appeal from the judgment of Fullerton J delivered on 8 June 2016.

3. Order that the appellant pay the respondent’s costs in this Court.

49. MEAGHER JA: I have had the benefit of reading in draft the judgment of Basten JA and Leeming JA’s additional observations. I agree with the reasons of each of their Honours and the orders proposed by Basten JA.

50. LEEMING JA: I agree with the orders proposed by Basten JA and with his Honour’s reasons. Without detracting from any aspect of those reasons, I add the following by way of elaboration of ground 1, which highlights the difficulties in seeking to construe a provision in isolation.

51. I start with the text of cl 1 of Schedule 1 to the Act, which Basten JA has reproduced. On any view, cl 1(1)(b) of Sch 1 of the Act must be read together with para (a). The chapeau (“proceedings have been commenced against a person”) necessarily, having regard to the express terms of para (a), extends to proceedings which have been resolved, either by verdict or (as in the present case) without going to trial. The words “proceedings have been commenced” therefore cannot only mean that the proceedings are presently pending, notwithstanding that on one view that is a natural meaning for those words. (For example, “hostilities have been commenced” would naturally refer to there being a present state of fighting, and seems to be a strained way to refer to the case where hostilities have ceased. The example highlights that it is odd given the richness of English to use the verb “commence” to refer to things which have not only begun but have also been completed.) But in this particular context where the same words must apply both to para (a) and para (b), the words “proceedings have been commenced” must extend to both pending and completed proceedings.

49. Perhaps for this reason, the appellant’s first submission focussed upon the words “(whatever the outcome of the proceedings)”, which are conspicuous by their absence in para (b), but which are found in para (a) as well as in cl 1(2). It was submitted that the absence of that “open qualification” indicated that the words “if the offence was committed as an adult” meant that the offence had actually been found to have been committed. But that submission cannot stand with the comparable language in para (a) which, in terms, extends to cases where a child has been acquitted or the proceedings have otherwise been brought to an end without a verdict.

50. The appellant’s second submission was that “proceedings have been commenced” only means when the trial has begun, as opposed to the time following the issuing and serving of a Court Attendance Notice. This must also be rejected, for the following reasons.

51. First, cl 1 is to be read with the definition of “disqualified person” in s 18. There are two reasons why those provisions are to be read together when ascertaining their legal meaning. The first is the general proposition that statutes are to be read as a whole. A unanimous High Court in Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523; [2013] HCA 16 at [47] said (by reference to earlier authority including Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]) that:

“’The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ ... That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’”.

55. The second reason is the express textual and conceptual link between the two provisions. Clause 1(1)(b) refers in terms to the requirement that the person is not because of those proceedings a disqualified person, which in turn requires regard to be had to s 18. That is to say, cl 1(1)(b) cannot be construed without regard being had to the class of “disqualified persons” defined by s 18 to which that paragraph in terms refers.

56. Given the links between cl 1 and s 18, there is a great deal of force in the proposition that the reference to “proceedings have been commenced” in s 18(1)(b) must bear the same meaning as “proceedings have been commenced” in cl 1(1) of Schedule 1.

57. Now s 18 makes it plain that the class of “disqualified persons” are those who have been convicted of Schedule 2 offences committed as an adult (para (a)), or those persons against whom proceedings for such an offence have been commenced, if committed as an adult, “pending determination of the proceedings for the offence” (para (b)). Those two paragraphs are to be read together, especially having regard to the words “for any such offence” in para (b), which refers to the offences described in para (a). Plainly enough, they deal on the one hand with the consequences of a conviction, and on the other hand, with the consequences of proceedings having been commenced but remaining undetermined.

58. Paragraph (b) of s 18(1) is presently important. Paragraph (b) insists that even though “proceedings for any such offence have been commenced”, the proceedings may nonetheless be “pending determination”. There is no reason to confine those words to the first and later days of the trial, as opposed to the period following the filing of a Court Attendance Notice. The words “pending determination”, located as they are after the reference to proceedings “have been commenced”, naturally refer to the whole of the time after the proceedings have been commenced. Once that is understood, it follows that the words “proceedings for any such offence have been commenced” in s 18(1)(b) include the possibility that the trial has not commenced. The link between s 18 and cl 1 is such that the words “proceedings have been commenced” in cl 1 should likewise bear the same meaning, rather than the narrower meaning for which the appellant contends.

59. Three other considerations strengthen that conclusion.

1. First, there is no reason to displace the ordinary meaning of these words, confirmed by what is provided in s 47 of the Criminal Procedure Act 1986 (NSW), to which Basten JA has referred.

2. Secondly, the foregoing accords with the evident purpose of these provisions, and therefore is to be preferred in accordance with s 33 of the Interpretation Act 1987 (NSW). Where a person is convicted of a Schedule 2 offence, he or she will become a disqualified person, and there will never be occasion under Division 3 to conduct a risk assessment (instead application would need to be made under s 28). On the other hand, when a person is facing the possibility of being convicted for a Schedule 2 offence, the legislation evinces an intention for there not to be parallel (and possibly inconsistent) determinations of criminal guilt and a risk assessment. In those circumstances, the person is for that period of time a disqualified person. There is no reason narrowly to confine the time when the person is a disqualified person, to the duration of the trial, as opposed to the period during which he or she is responding to a criminal prosecution.

3. Thirdly, the second reading speech is confirmatory of the above. The speech referred repeatedly to “any person convicted of an offence listed in schedule 2 to the Bill, or with a pending charge for such an offence, will automatically be barred from working with children” (Legislative Assembly, 13 June 2012). This is directly inconsistent with the appellant’s construction, but accords with the conclusions reached above.

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Endnotes

Decision last updated: 26 March 2018