Dewhirst v Department of Family and Community Services

The GIPA Act

1. The object of the GIPA Act is to give every member of the public an enforceable right to seek access to government information and only restrict access where there is an overriding public interest against disclosure (see sections 3, 5, 9 and 13 of the GIPA Act).
2. The test for determining whether there is an overriding public interest against disclosure is set out in section 13 of the GIPA Act. That section provides: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
3. Subsection 14(1) of the GIPA Act provides that there is to be a conclusively presumed overriding public interest against disclosure of any government information described in Schedule 1 of the Act.
4. The respondent relies on this provision on the basis that the information remaining in issue (i.e. the information identified in the subsection 29(1A) certificate signed by Mr Best) is 'government information' falling within clause 10 of Schedule 1 of the GIPA Act.
5. The onus is on the respondent to establish that its decision in this regard is justified (see section 105 of the GIPA Act)
6. That clause 10 of Schedule 1 of the GIPA Act provides: 10 Care and protection of children It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies.

The Care Act

1. Section 29 of the Care Act falls within Part 2 of Chapter 3 of the Act. That Chapter contains provisions in respect of requests for assistance and reports. Part 2 deals with reports about a child or young person at risk of significant harm and pre-natal reports about a child that may be at risk of significant harm after his or her birth (see sections 24 and 25). In some circumstances, the making of such reports is mandatory (see section 27 of the Care Act).
2. Part 3 of the Care Act makes provision for the investigation and assessment of reports that are made.
3. Section 29 makes provision for the protection of persons who make reports under sections 24, 25, 27, 120 121 and 122 of the Act. The latter sections relate to reports of homelessness of a child or young persons.
4. The protections contained in section 29 only apply to reports that have been made 'in good faith'. The protections prescribed in the section include a prohibition on the identity of the person who made the report, unless the person who made the report consents or by leave of a court or other body before which proceedings have been concluded. In regard to the admissibility of a report, or its contents, para 29(1)(d) of the Act provides that reports to which the section applies, or their contents are not admissible, unless they are proceedings of the kind prescribed in that para.
5. Section 29 of the Care Act is in the following terms: 29 Protection of persons who make reports or provide certain information (1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons: (a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and (b) no liability for defamation is incurred because of the report, and (c) the making of the report does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy, and (d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings): (i) care proceedings in the Children's Court, (ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth, (iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal, (iv) proceedings before the Civil and Administrative Tribunal, (v) proceedings under the Coroners Act 2009, and (e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and (f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with: (i) the consent of the person who made the report, or (ii) the leave of a court or other body before which proceedings relating to the report are conducted, and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person. (1A) A certificate purporting to be signed by the Director-General [now Secretary] that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report. (2) A court or other body cannot grant leave under subsection (1) (f) (ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice. (3) A court or other body that grants leave under subsection (1) (f) (ii): (a) must state the reasons why leave is granted, and (b) must ensure that the holder of the report is informed that evidence as to the identity of the person who made the report, or from which the identity of that person could be deduced, has been disclosed. (3A) The protections given by this section to a person who makes a report apply to: (a) any person who provided information on the basis of which the report was made, in good faith, to the person, and (b) any person who otherwise was in good faith concerned in making such a report or causing such a report to be made, in the same way as they apply in respect of the person who actually made the report. (4) Subsection (1) (f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent the proper investigation of the report. (4A) Subsection (1) (f) also does not prevent the disclosure to a law enforcement agency of the identity of the person who made the report (the reporter), or information from which the identity of the reporter could be deduced, if: (a) the identity of the reporter, or the information, is disclosed in connection with the investigation of a serious offence or reportable conduct alleged to have been committed or done against a child or young person, and (b) the disclosure is necessary for the purposes of safeguarding or promoting the safety, welfare and well-being of any child or young person (whether or not the victim of the alleged offence). (4B) However, subsection (4A) does not apply unless: (a) a senior officer of the law enforcement agency to which the disclosure is made has, before the disclosure is made, certified in writing that obtaining the reporter's consent would prejudice the investigation of the serious offence or reportable conduct concerned, or (b) the person or body that makes the disclosure has, before making the disclosure, certified in writing that it is impractical to obtain the consent of the reporter. (4C) The person or body that discloses to a law enforcement agency the identity of the reporter, or the information from which the identity of the reporter could be deduced, is required to notify the reporter of the disclosure unless: (a) it is not reasonably practicable in the circumstances to do so, or (b) the law enforcement agency to which the disclosure is made has advised the person or body that notifying the reporter would prejudice the investigation of the serious offence or reportable conduct concerned. (5) (Repealed) (6) In this section: court includes a court exercising federal jurisdiction. law enforcement agency means any of the following: (a) the NSW Police Force, (b) the Australian Federal Police, (c) the police force of another State or Territory, (d) a person or body prescribed by the regulations for the purposes of this definition. report includes a report under sections 24, 25, 27, 120, 121 and 122. reportable conduct means: (a) reportable conduct within the meaning of Part 3A of the Ombudsman Act 1974 or conduct referred to in clause 2 of Schedule 1 to the Child Protection (Working with Children) Act 2012, or (b) conduct occurring elsewhere than in New South Wales that, if occurring in New South Wales, would be reportable conduct under paragraph (a). senior officer means: (a) in relation to the NSW Police Force - a commissioned police officer within the meaning of the Police Act 1990, or (b) in relation to any other law enforcement agency - a person (or class of persons) prescribed by the regulations as a senior officer of the agency. serious offence means: (a) a serious indictable offence within the meaning of the Crimes Act 1900, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence under paragraph (a). Note. It is an offence under section 254 for a person to disclose any information obtained in connection with the administration or execution of this Act, except in certain circumstances. The maximum penalty is 10 penalty units (currently $1,100) or imprisonment for up to 12 months, or both. [Words in brackets added]
6. I have dealt with the operation of subsection 29(1A) in more detail below.

The applicant's argument

1. The applicant argued that, in these proceedings, on the proper construction of subsection 29(1A) of the Care Act, the Tribunal is not precluded from looking behind the certificate signed by Mr Best and ascertain whether the report(s) in issue was in fact made in good faith. It is the contention of the applicant that the notifications falling within his access request and identified on the subsection 29(1A) certificate were not made in good faith and hence not reports to which section 29 applied. In support of his argument t applicant relied on the material he provided, together with the Form 4 which was disclosed to him. As I have noted the report recorded in this Form was found to be false. That finding was made by the Court in the course of proceedings involving child A.
2. In support of his argument, the applicant also pointed to the decision of Fullerton J, in Director General Department of Family and Community Services v FEW [2013] NSWSC 1448, at [10] to [14]. As I understand it, the applicant argues that the Tribunal should adopt a similar approach to that applied by Fullerton J as to the application of a subsection 29(1A) certificate.

The respondent's argument

1. The respondent conceded that it was a precondition that a report must be made in good faith to be afforded the protections contained in section 29 of the Care Act. However, the respondent went on to say that, in the absence of any evidence to the contrary, it was not a matter for the respondent (i.e. the Secretary or his delegate) to make a determination today as to the bona fides of a reporter at the time he or she made the report.
2. The respondent went on to contend that, on the proper construction of subsection 29(1A) of the Care Act, it may be open to the Tribunal to consider whether there is evidence that rebuts the presumption contained in that subsection. However, the onus in adducing that evidence rested on the applicant. In this case, it was argued there was no such evidence.
3. The respondent also went on to submit that the circumstances in which the Tribunal would consider looking behind a certificate would be extremely rare. It also pointed to a number of difficulties the Tribunal would encounter if it were to engage in such an exercise and at the same time ensuring adherence to the protections in section 29 and the prohibitions in section 254 of the Care Act. It is unnecessary to repeat these, as I accept that on the proper construction of the GIPA Act, together with its objects and principles, in proceedings such as these, the role of the Tribunal does not extend to conducting an enquiry as to whether the reporter made his or her report in good faith.
4. In regard to the application of the decision of Fullerton J, in FEW, the respondent contended that this decision was of no relevance to these proceedings.

Consideration

1. As pointed out in the respondent's submissions, the legislative intent of section 29 of the Care Act is to encourage the making of open and frank reports about children and young persons that are reasonably suspected of being at risk of significant harm. As I have noted above, the Care Act makes provision for the respondent to receive such reports, assess and investigate them and to take protective measures if necessary. Receipt of reports of this nature are clearly an essential aspect of the respondent being able to fulfil its protective duties and functions as prescribed in the Care Act and other community services legislation.
2. In my view, in determining the matter in issue, the starting point is the proper construct of clause 10 of Schedule 1 of the GIPA Act and not section 29 of the Care Act. In construing clause 10 and how it is to be applied, regard must also be had the objects of the GIPA Act and how they are to be administered.
3. As I have noted, the objects of the Act include giving members of the public an enforceable right to access government information, unless there is an overriding public interest against disclosure (see section 3 and 13 of the GIPA Act). This is often referred to as the competing public interest test, which only applies where the information for which access is sought is information of a kind falling within one or more of the categories of government information prescribed in section 14 of the GIPA Act.
4. The categories of government information prescribed in the table to subsection 14(2) of the GIPA Act were described by the Appeal Panel, in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [29], as squarely focusing on considerations relating to the conduct of the business of government and hence requiring a 'relatively abstract analysis' when determining whether they apply to the information in issue. The Appeal Panel went on to say that where an agency seeks to protect the disclosure of information sought on one or more of the grounds in the table to subsection 14(2), to discharge its onus, the agency is required to satisfy the Tribunal that the information in issue has the 'characteristics' of the kind described in the grounds relied on (i.e. on the grounds of one or more of the prescribed public interest considerations against disclosure in the table to subsection 14(2)). The agency must also satisfy the Tribunal that a disclosure of the information (as characterised) could reasonably be expected to have the relevant prescribed effect of the ground relied on and on balance that public interest against disclosure, on balance, outweighs the public interest considerations in favour of disclosure (see section 13).
5. In my view, the same 'relatively abstract analysis' applies in determining whether the categories of government information prescribed in subsection 14(1) and Schedule 1 of the GIPA Act apply. As it is to be conclusively presumed that there is an overriding public interest against disclosure of information falling within these categories an agency seeking to protect the disclosure on one or more of these grounds also bears the onus of satisfying the Tribunal that the government information in issue has the 'characteristics' of the kind described in the Schedule 1 public interest consideration against disclosure.
6. Clause 10, as I have indicted, provides that there is a conclusive presumption of an overriding public interest against disclosure of government information contained in a report to which section 29 of the Care Act applies. The reports to which that section applies are those prescribed in subsection 29(6), which include reports under sections 24, 25, 27, 120, 121 and 122 of the Care Act.
7. Section 24 of the Care Act relates to reports that a child or young person is at risk of significant harm and is in the following terms: 24 Report concerning child or young person at risk of significant harm A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Director-General.
8. As I have noted, the Tribunal's task in determining whether the disclosure of the information, sought to be protected under the clause 10 conclusive presumption against disclosure, is to decide whether the 'characteristics' of the information in issue is of a kind described in that clause. That is, the question is whether the information in issue can be characterised as a report which section 29 of the Care Act applies - namely, a report made under section 24, 5, 27, 120, 121 and 122 of the Care Act. In my view, the Tribunal is not also tasked with conducting an inquiry as to the motivations of the reporter(s) at the time he/she made his/her report. If it was accepted by the arespondent as having been made in good faith this should be accepted by the Tribunal, unless there is evidence of a contrary finding by a court or another relevant body.
9. The agency must nevertheless place sufficient material before the Tribunal to justifies its decision that the 'characteristics' of the information in issue is of a kind described in section 29 of the Care Act. This can be done in a number of ways. For example, by placing evidence before the Tribunal of the systems it has in place for collecting and retaining information of the kind in issue and evidence that the information in issue was collected and continues to be retained by the agency as being a report to which section 29 of the Care Act applies. Whether such evidence is sufficient to discharge the respondent's onus will depend on the circumstances of each case.
10. In my view, it is also open to the respondent to rely on a certificate issued by the Secretary, or his delegate, under subsection 29(1A) of the Care Act. Again, whether such a certificate is sufficient to discharge the respondent's onus will depend on the circumstances of each case.
11. In this application I am satisfied that the respondent has discharged its onus in that the 'characteristics' of the information in issue is of a kind to which section 29 of the Care Act applies. I have made this finding on the basis of the evidence of Mr McFarlane, the subsection 29(1A) certificate signed by Mr Best and the submissions made, in confidence, by Ms Hali, on behalf of the respondent.
12. As explained by Mr McFarlane in his statement, the respondent's Helpline is a centralised system that operates 24 hours a day and seven days a week. It receives reports about unborn children, children and young people who may be at risk of significant physical, sexual or psychological abuse or neglect or about families who are in need of assistance. Every report is screened and prioritised by specially trained and qualified staff of the respondent and those requiring action are acted on. The terms of the applicant's access request are such that he too accepts that the information for which he seeks access is/are a report(s) that were made in this manner. What the applicant argues is that they were made in bad faith and hence should not be characterised as reports made under section 29 of the Care Act.
13. While I accept the applicant holds genuine concerns about the motivation of the reporter(s) of the notification(s) in issue, in my view, for the reasons set out above, the role of the Tribunal is not to conduct an inquiry in this regard. As pointed out by the respondent, an inquiry of this nature would require a disclosure of the information in issue and the identity of the reporter(s) and defeat the objects of the GIPA Act.
14. In regard to the decision of Fullerton J, in FEW, I agree with the respondent that it is of no relevance to these proceedings.
15. FEW was concerned about the production of documents pursuant to a subpoena, for the purpose of FEW's criminal trial on a charge of murder of a child. The subpoena sought production of risk assessment reports and other reports relating to the child. The respondent produced the risk assessment reports, with the content and details of these reports being unredacted. The proceedings before Fullerton J related to FEW's application that the unreacted version of the reports be produced for the purpose of his criminal trial. The respondent relied on a certificate, signed by the Director General, under subsection 29(1A) of the Care Act and argued it could not be compelled to produce the report, or a copy thereof by reason of para 29(1)(e) of the Care Act.
16. FEW argued that the reports were not reports of the kind described in subsection 29(6) of the Care. His argument was not based on the reports having been made in bad faith. Her Honour did not accept FEW's argument and did so without looking behind the Director-General's certificate. The case ultimately turned on the construction of para 29(1)(e) of the Care Act and whether it was to be construed subject to the overriding principle of the right of an accused person to a fair trial. At [22], Her Honour found it should be so construed, but only to the extent of any information contained in those reports which would not disclose the identity of the reporters. That is, para 29(1)(e) was construed so as to limit the restriction on the compellability of the respondent to the information in the reports which would identify the reporter(s).
17. Unlike FEW, these are not criminal proceeding, or proceedings falling within the exceptions in para 29(1)(d) of the Care Act. Nor is para 29(1)(e) of any relevance to these proceedings. However, the prohibition in para 29(1)(f) does apply and the effect of clause 10 of Schedule 1 of the GIPA Act is to ensure that this prohibition applies to all information of this kind and that exceptions in that para are of no application to access requests under the GIPA Act.
18. Accordingly, for the reasons set out above, I am satisfied that the respondent has discharged its onus that the information in issue is contained in a report to which section 29 of the Care Act applies and on this basis there is an overriding public interest against the disclosure of this information. Hence, I find that the decision of the respondent to refuse that applicant access to the information in these reports is the correct and preferred decision.

Costs

1. The Tribunal's power to award costs is contained in section 60 of the Civil and Administrative Tribunal Act 2013.
2. Subsection 60(1) provides that the starting point is that each party pay its own costs. Subsection 60(2) gives the Tribunal a discretion to award costs if it is satisfied that there are 'special circumstances warranting the award of costs.'
3. Subsection 60(3) sets out the matters the Tribunal may have regard to in determining whether there are special circumstances warranting an award of costs. These are: 60 Costs (1)… … (3) …: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
4. Subsection 60(5) defines the word 'cost' to include the following: 1. the costs of, or incidental to, proceedings in the Tribunal, and 2. the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
5. The applicant argued that the respondent had unnecessarily disadvantage him in the conduct of his application by making claims that had no basis in law and by issuing a subsection 29(1A) certificate without proper consideration of the matters claimed in the certificate and for the improper purpose of 'blocking' his application for access. He also argued that the respondent's conduct in issuing the subsection 29(1A) certificate the day before the hearing and not providing him with a copy until the hearing had disadvantaged him in making proper submissions at the hearing. He said he had prepared his evidence and submissions on the basis of the decision the respondent had made and not on the basis of a conclusively presumed public interest consideration against disclosure following the issue of the certificate issued by Mr Best the day before hearing.
6. He said the conduct of the respondent was also contrary to the respondent's duty to co-operate with the Tribunal and to give effect to the guiding principles under the Civil and Administrative Tribunal Act 2013 by complying with directions and orders that were made (see subsection 36(3) of that Act).
7. In this regard the applicant noted that he had not booked his flights to attend the hearing until 27 August 2014, which was well after the date on which the respondent had filed and served its evidence and submissions and also after the IOC had to filed and served its written submissions. That is, he made his arrangements on the basis of what had been filed and served was what he was required to respond to, but to his surprise on the day of hearing he found the respondent to have changed its position from neither confirming or denying it held the information sought to one of disclosing a report falling within his access request and the notional identification of additional information held by the respondent. And it was his costs in travelling to Sydney for the day of hearing that the applicant seeks to recover his costs. Those costs include the costs of his wife travelling with him as she was to act as his agent.
8. The respondent contends its conduct does not give rise to special circumstances warranting an award of costs in favour of the applicant and that the general rule should apply. It contends that as the applicant's documentation filed and served by the applicant on 28 August 2014 raised the issue of good faith it was entirely appropriate for the respondent to reconsider its position and ascertain whether the matters in issue could be narrowed.
9. There is no evidence to support the applicant's contention that the respondent issued the subsection 29(1A) certificate for the purpose of blocking the applicant's application. Nor is there any evidence to suggest that Mr Best signed the certificate without proper consideration. However, I do accept that the respondent's conduct in leaving it to the last minute to make a proper assessment of the matters in issue as being conduct that falls within papa 60(3)(a) of the Civil and Administrative Tribunal Act 2013.
10. In his application for review, the applicant expressly raised the issue that the reports for which he sought access had not been made in good faith. He was specific about the reports for which he sought access, including the Form 4 report. The applicant also provided information in support of his contention that the reports, if made, had not been made in good faith, including the Form 4 report. Hence, I find it difficult to understand how the respondent can say that it was not until it received the applicant's submissions on 28 August 2014 that it was in a position to narrow the issues.
11. To leave it to the last minute to provide the applicant with a copy of the Form 4 report and to provide him with the subsection 29(1A) certificate, in my view unnecessarily disadvantaged the applicant, especially as the respondent was aware that the applicant did not live locally and had to travel to Sydney for the hearing. The respondent was also aware that the applicant would be attending the hearing with assistance. This had been made clear at the planning meeting.
12. The applicant did attend the hearing with the assistance of his wife who had some knowledge of the matters in issue, including the legal issues.
13. Accordingly, in my view, it is appropriate to make a cost order in favour of the applicant in regard to his costs, and those of his wife to fly to Sydney for the hearing. The applicant has provided receipts of the costs he and his wife incurred in travelling to Sydney for the hearing. These included $302.00 for the flight, $51.80 for the train and $23.00 for a taxi, being a total of $376.80.

Orders

1. On the basis of my findings I order: 1. The decision of the respondent in regard to the information remaining in issue is affirmed. 2. The respondent to pay the applicant an amount of $376.80 in costs. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 January 2015