ECH v Children's Guardian

NCAT Administrative and Equal Opportunity|2020-02-07

d to in the documentary material lodged in these proceedings is prohibited. Sections of these reasons which contain information subject to a non-disclosure order or would disclose information which is subject to an overriding public interest against disclosure is marked "Not for publication" and may not be disclosed to the applicant or the public.

Reasons for DECISION

ECH filed an application with the Tribunal for administrative review pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (NSW) (CPWC Act).
Tab 3 of the documents filed and served at the time of the hearing included a Notice of Final Decision Refusing Working with Children Check Clearance dated 17 October 2019 (Final Notice). The Final Notice identifies records listed under cl 1(1)(b) of Schedule 1 to the CPWC Act and notes that s 15 of the CPWC Act requires the respondent to conduct a risk assessment. Part of the last sentence of the Final Notice states "consideration has also been given to "further information" available to the respondent which is protected and for reasons of public interest it cannot be disclosed.
This is an interlocutory application by the respondent seeking orders under s 59 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) as well as orders under ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The reason the respondent seeks the relevant orders is because it asserts certain information is confidential and the respondent wishes to ensure any such confidentiality is preserved.

Open Hearing

During the open hearing, the Tribunal noted that consideration of the respondent's claims regarding material claimed to be of a confidential nature requires the Tribunal to consider that material in the absence of the applicant and the public. The parties were invited to make any relevant submissions in this respect.
Written submissions suitable for the Open Hearing had been previously filed and served by the respondent. No documentary evidence was relied on the Open Hearing by the respondent. In its submissions, the respondent identified the relevant confidential information as a confidential affidavit (Confidential Affidavit) and confidential material (Confidential Material) annexed to the Confidential Affidavit (together, the Confidential Documentation). For the purposes of these reasons for decision, the Confidential Documentation comprises the "further information" referred to in last sentence of the Final Notice that was not disclosed to the applicant.
During his oral submissions, counsel for the respondent identified what was described as a 'middle ground' not set out in the respondent's written submissions. We consider the middle ground further, below.
Following oral submissions by counsel for the respondent, the applicant made oral submissions. Prior to the Open Hearing, the applicant had filed and served submissions, section 4 of which was entitled "Confidential Documentation". No documentary evidence was relied on the Open Hearing by the applicant.
The applicant's written submissions raise issues as to the weight the Tribunal may give to the Confidential Documentation, the "importance" of the evidence and the "limitations" the making of any orders as to confidentiality would "impose" on the applicant. The applicant's written submissions also raise issues that might be described as relating to testing the accuracy and reliability of the evidence to ensure there is no case of "mistaken identity", as well as to consider the motives or personal circumstances of any informant.
The applicant's oral submissions were that he was "completely at a loss" as to what the Confidential Documentation may be about. While the applicant made submissions acknowledging the public interest in State agencies keeping certain information confidential, the applicant remarked on the criticality of him knowing what the Confidential Documentation may be in this matter.
Consistent with the submissions of both the respondent and the applicant, the Tribunal finds the applicant has no knowledge as to nature of any of the information contained in the Confidential Documentation.

Closed Hearing

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Consideration of confidentiality

The respondent seeks orders pursuant to s 59 of the ADR Act and ss 49 and 64 of the CAT Act.
Section 59(2) of the ADR Act refers to the Tribunal: 1. being satisfied that s 67 of the CAT Act operates so as not to require the disclosure of a document (s 67 of the CAT Act relates to what may be broadly described as 'privileged documents'), or 2. considering whether it is appropriate to make an order under s 64 of the CAT Act to prohibit or restrict publication or disclosure of a document. Section 64(1) provides for orders where the Tribunal is satisfied "by reason of the confidential nature of any evidence or matter … ".
Section 49(2) of the CAT Act provides for a hearing to be conducted in private where the Tribunal is satisfied that it is desirable "by reason of the confidential nature of any evidence of matter …".
For the purposes of the orders sought under s 59 of the ADR Act or ss 49 or 64 of the CAT Act, the Tribunal is required to consider the "confidential nature" of the Confidential Documentation.
The Appeal Panel has said "open justice is a value that must sometimes be balanced against other values. Similarly, it is well accepted that there other public interests that may militate against identification of parties or witnesses or third parties mentioned in proceedings; for example … because of the need to protect commercial confidentiality, law enforcement or national security interests" (CYL v YZA [2017 NSWCATAP 105, [96]).
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In our view, the evidence before the Tribunal is satisfactory to support a finding that the Confidential Documentation is confidential in nature and that is it appropriate to prohibit or restrict their disclosure, including to the applicant.

Consideration of the 'middle ground'

The middle ground is an order, in effect, to exclude the Confidential Documentation from the submissions and evidence to be put before the Tribunal at the substantive hearing, except to the extent the Confidential Affidavit or the Confidential Material (or both) are provided to the Tribunal and applicant. The middle ground is contrary to the orders sought in the submissions of the respondent, which state the respondent wishes to tender the Confidential Material as evidence for the consideration of the Tribunal only, whilst keeping it from the applicant.
This is a difficult matter in light of what we describe above (in the section of the decision relating to the Closed Hearing) as the status of the Confidential Material on the one hand, and the tension between preserving confidentiality and affording procedural fairness to the parties, on the other.
We have considered the following matters with respect to the middle ground.
The object of the CPWC Act is to protect children by not permitting disqualified persons, without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances (see s 3 of the CPWC Act). The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act (see s 4 of the CPWC Act). The Tribunal has kept the object and paramount consideration forefront in its mind in coming to its decision.
However, the CPWC Act also enables a person who has been refused a working with children check clearance to apply to the Tribunal for an administrative review under the ADR Act. Part 4 of the CAT Act provides for the practice and procedure of matters before the Tribunal and, relevantly: 1. s 38(2) of the CAT Act states the Tribunal is not bound by the rules of evidence and "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice", and 2. s 38(5)(c) of the CAT Act requires the Tribunal to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
Section 30(1) of the CPWC Act provides that the Tribunal "must" consider certain matters and those matters include, in s 30(1)(k) of the CPWC Act, "any other matters that the Children's Guardian considers necessary". The Confidential Material does not appear to be of a kind otherwise listed in s 30(1)(a) to (j1), such that it would be material that is "any other" matter for the purpose of s 30(1)(k) of the CPWC Act. The Courts will not interpret legislation as abrogating fundamental rights unless clear words are used (Potter v Minahan (1908) 7 CLR 277, 304; Bropho v Western Australia (1990) 171 CLR 1, 18; Coco v The Queen (1994) 179 CLR 427, 436-437; Lee v New South Wales Crime Commission [2013] HCA 39 [313]). We do not consider that s 30(1) of the CPWC Act requires the Tribunal to consider material in a hearing on which the respondent may seek to rely without regard to what is procedurally fair in all the circumstances. We would also note that the Confidential Material has been considered for the purpose of this interlocutory application.
Unlike the recent decision of the Tribunal in Manning v Commissioner of Police [2020] NSWCATAD 9 at [27], where orders as to confidentiality were made and the respondent proposed to file and serve an edited version of the material with the confidential parts removed, in this matter it is proposed the applicant will receive nothing as to the content of the Confidential Material or a summary of the information contained in the Confidential Material.
In Kioa v West (1985) 150 CLR 550 at 582 (Kioa), Mason J said: "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it."
The content to the procedural fairness is not fixed. It is a "flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case" (Kioa at [585]).
A general principle is that procedural fairness requires the disclosure of adverse information that is credible, relevant and significant. In Kioa at [615], Brennan J said: "A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise … [the] person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance."
As noted in the section of the decision relating to the Closed Hearing, this matter is complicated by the status of the Confidential Material. This makes issues of credibility and relevance particularly difficult in the context of this matter.
We are aware of the decision in Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 (Nicopoulos) in which a solicitor commenced proceedings in respect of "alleged breaches of natural justice" after being denied access to corrective facilities pursuant to legislation which empowered the Commissioner for Corrective Services to deny access if a person's visit would "prejudice the good order and security" of correctional facilities. The Court ordered, at [99], that certain confidential information should not be provided to the solicitor and, despite this, the confidential information should be taken into account by the Court. The Court held, at [100] it was "one of those rare cases where the rules of procedural fairness had been elided to nothing". Nicopoulos considered the exercise of a statutory power which related to access to corrective facilities. Unlike the applicant in this matter, the solicitor in Nicopoulos had, by the time of the proceeding, information relevant to what appeared to be a key reason he was denied access to correctional facilities. The information available to the solicitor included open affidavits, a video of a particular incident involving documents being passed to the solicitor by an inmate and the contents of the document alleged to have been passed to the solicitor's employee at the facility. The Court was also able to inform the solicitor that the confidential information "pointed to misconduct on his behalf" and was "not limited to an isolated incident". The Commissioner for Corrective Services submitted that he considered he was able to make the order denying access to the corrective facilities on the basis of the passing of the documents alone (that is, without the confidential information). Accordingly, while the solicitor was not provided with the confidential information, he did have available other information relevant to certain identified misconduct which relevant to the decision made and the matters the subject of the proceeding.
We are also aware of the decision in FZ v Commissioner for Children and Young People [2010] NSWSC 1144 (FZ) in which the plaintiff sought orders setting aside a decision of a tribunal on the basis that (amongst other things) the tribunal failed to afford the plaintiff procedural fairness by admitting into evidence certain unsworn evidence without the person who made the statement being made available for cross examination and taking into account a hearsay statement without giving the plaintiff an opportunity to test the statements in cross examination. After remarks noting the particular importance (in that proceeding) of the information in respect of which the plaintiff was not able to undertake cross examination, the Court said at [86]: "In this respect, the plaintiff was denied procedural fairness because he was deprived of a very important method of proving, or at least of attempting to prove, that he was not a risk to the safety of children. In the events that occurred, the Tribunal's approach also deprived it of the ability to assess [the statement maker's] allegations in the most balanced and empirical way. Instead, the allegations were effectively quarantined from attack and artificially elevated in importance by default. The Tribunal was therefore never able with the benefit of all critical material to determine the essential question of whether the plaintiff posed a risk to the safety of children and the plaintiff was never able with the benefit of all critical material to prove that he was not."
In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37], Gleeson CJ said the "concern of the law is to avoid practical injustice".
We consider, in all the circumstances of this matter, a practical injustice would arise if the respondent was denied all access to the Confidential Documentation (or even an appropriate summary) in circumstances where the respondent is able to have that material considered by this Tribunal in the substantive hearing. It appears to us, such an outcome can only be prejudicial to the applicant. Accordingly, we consider an order representing the middle ground is appropriate in the unusual circumstances of this interlocutory application.
Clearly, each party is entitled to procedural fairness. The respondent was able to put its case regarding the Confidential Material during the Closed Hearing. In addition, the order in respect of the middle ground will allow the respondent to tender all or part of the information contained in the Confidential Material and serve the Confidential Affidavit if, at some later point before the substantive hearing, the respondent is able to provide the same (or perhaps a summary) to both the Tribunal and the applicant.

Conclusion

The respondent's interlocutory application for orders under s 59 of the ADR Act and ss 49 and 64 of the CAT Act are granted. The orders of the Tribunal are as follows: 1. The Tribunal orders, pursuant to s 59 of the Administrative Review Act, that the respondent is not required to lodge copies of the material ("Confidential Material") annexed to the confidential affidavit ("Confidential Affidavit") filed in support of the application heard on 7 February 2020. 2. The Tribunal orders, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, the publication of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material or the Confidential Affidavit, is prohibited. 3. The Tribunal orders, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, the disclosure of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material or the Confidential Affidavit is restricted to the respondent, the legal representatives of the respondent and the Tribunal. 4. The Tribunal orders, pursuant to s 64(1)(b), s 64(1)(c) and s 64(1)(d) of the Civil and Administrative Tribunal Act, the recording and transcript of the preliminary hearing held on 7 February 2020, including any evidence given during the preliminary hearing, are not to be published or disclosed to the applicant or the public. 5. The Tribunal declines to receive the Confidential Material or the Confidential Affidavit as evidence in the substantive hearing of the applicant's application to the Tribunal, except to the extent the respondent makes the Confidential Material and the Confidential Affidavit available to the applicant.

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: 25 September 2020

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (4)

Cases Cited (11)