GHW v Secretary, Department of Communities and Justice

NCAT Administrative and Equal Opportunity|2024-05-06

Background

GHW (the Applicant) made an application to the Secretary of the Department of Communities and Justice (the Respondent) for access to information under s 58 of the Government Information (Public Access) Act 2009 (the GIPA Act).
The Applicant seeks information held by the Respondent about themself and their children.
Searches conducted by the Respondent produced four records totalling 25 pages within the scope of the application. The Applicant was provided with one record of four pages and some of the information within those pages was redacted.
The Respondent determined that the remainder of the documents and the information contained in the redactions (the withheld information) could not be disclosed essentially because it relates to child protection and there is a conclusive presumption against disclosure of the withheld information under the GIPA Act.
The Applicant seeks administrative review of the Respondent's decision to refuse access to the withheld information.

Open material

The Applicant provided an affidavit (exhibit A1) and written submissions (exhibit A2) as well as a request to cross examine two officers of the Respondent, namely the original decision maker and the officer who provided a filed affidavit. The Applicant also made oral submissions at the hearing on 6 May 2024.

Confidential material

The Tribunal was also provided with full versions of the affidavit of Ms Labi (exhibit CR5) and the March written submissions (exhibit CR4) on a confidential basis, as well as the documents at issue (exhibit CR6), (together, the confidential material). The Respondent stated that the redacted material in exhibits CR5 and CR4 refer to the confidential material and disclosure beyond the Tribunal would reveal information of which there is an overriding public interest against disclosure.

Dealing with confidential material

When filing the confidential material with the Tribunal, the Respondent sought an order: 1. under s 107 of the GIPA Act that evidence be received and argument be heard in the absence of the Applicant and the public so as to preserve the confidentiality of the matters contained within the confidential material and prevent the disclosure of information for which there is an overriding public interest against disclosure; and 2. under s 64(1) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) prohibiting publication or broadcast of any report of that part of the proceedings pertaining to the information the subject of the overriding public interest against disclosure, the publication of that evidence and submissions, and the disclosure of that evidence and submissions to the applicant and the applicant's representatives.
Following inspection of the relevant documents and redacted material, and considering the GIPA Act and CAT Act, the Tribunal formed the view that disclosure of the confidential material would disclose information for which there is an overriding public interest against disclosure and a closed hearing was conducted where the Tribunal heard evidence and submissions from the Respondent in the absence of the Applicant and the public. The Tribunal also made orders under s 64 of the CAT Act that publication or broadcast, other than to the Respondent of: 1. the contents of exhibits CR4, CR5 and CR6 received in evidence by the Tribunal on 6 May 2024 is prohibited; and 2. any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 6 May 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited.
For the purposes of this decision, for the same reasons, a further order will be made that: any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets is prohibited.

Change of witness

The Respondent filed an affidavit from an officer of the Respondent (the original officer) on 4 March 2024. On 3 May 2024 the Respondent filed the affidavit of Ms Labi which provided evidence in essentially the same terms as the original officer. The original officer was on leave and Ms Labi is performing the same role. The Respondent sought to rely on the evidence of Ms Labi at the hearing.
At the hearing the Respondent was reminded that the ordinary course of events required justification for a late change in witness such as a supporting affidavit of reasons and of their obligations as a model litigant.
However, applying the guiding principle of s 36 of the CAT Act to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" and noting s 38 which allows the Tribunal to determine its own procedure, the evidence of Ms Labi was admitted. This was because the substance of the content of Ms Labi's affidavit was the same as the original officer, meaning the Applicant should not have been surprised with new content or issues. Further, the Applicant was provided with reasonable time on the hearing day to consider the contents of the affidavit and following that time was willing to proceed. The Tribunal considers the Applicant was afforded procedural fairness on that basis.

Cross examination of witnesses

While the Applicant had given notice they intended to cross examine the original decision maker, at the hearing the Applicant did not press the request. In any case the original decision maker was not a witness in the proceedings and their evidence would not be relevant to this matter given the nature of review undertaken by the Tribunal as discussed at [25]-[26] below.

The withheld information

Four records fell within the scope of the application made under the GIPA Act: 1. Contact record - not disclosed to the Applicant, a document where the Respondent records information provided by reporters and informants about children and young people at risk of significant harm; 2. Helpline assessment - not disclosed to the Applicant, a document outlining the screening process undertaken by officers of the Helpline business unit of the Respondent that assesses information provided in a contact record; 3. Triage record - partially disclosed to the Applicant with redactions, a document outlining the triage process followed by the Respondent via a different and subsequent business unit of the Respondent to the Helpline business unit; and 4. Notes and attachments - not disclosed to the Applicant, [NOT FOR PUBLICATION].

Applicant's case

The Applicant seeks access to the entire 25 pages found to be within the scope of the application made under the GIPA Act.
The Applicant challenges the validity of a certificate issued by the Respondent under s 29 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) issued in respect of the withheld information. The Applicant also alleges lack of good faith on the part of the reporter/informant and also suggests there is a systemic issue in how the Respondent assesses information provided to it.
The Applicant contends that some information within the withheld information had already been disclosed via family law proceedings, relying on handwritten notes annexed to exhibit A1.
The Applicant took also issue with some procedural matters relating to extension of time over the course of the determination of the application by the Respondent.

Respondent's case

The Respondent acknowledged it bears the burden of establishing its decision is justified: see s 105 of the GIPA Act.
The Respondent contends that there is a conclusive overriding public interest against disclosure of the withheld information, applying s 14 and cl 10 of Sch 1 to the GIPA Act because the information relates to the care and protection of young children under the Care Act. The Respondent relies on the certificate issued under s 29 of the Care Act, as well as the nature and content of the documents.
In the alternative, if the Tribunal was to find a conclusive overriding public interest against disclosure did not exist, the Respondent also contends that applying the public interest test under the GIPA Act would also result in a decision that the withheld information should still not be disclosed.

Jurisdiction

The Tribunal has jurisdiction to review "an administratively reviewable decision": s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of "reviewable decisions" made by an agency. A decision to refuse to provide access to information in response to an access application is a reviewable decision (s 80 of the GIPA Act). Though not in dispute, I am satisfied the Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a difference decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.

Legislative Framework

The GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure and public interest considerations in favour of disclosure are not limited in scope: see ss 5 and 12 of the GIPA Act.
There is an overriding public interest against disclosure of information if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: s 13 of the GIPA Act.
It is also conclusively presumed that there is an overriding public interest against disclosure of the information specified in Sch 1 to the GIPA Act: s 14(1) of the GIPA Act.
The considerations listed in the table in s 14 of the GIPA Act are the only other considerations that may be taken into account in determining whether there is an overriding public interest against disclosure: s 14(2) of the GIPA Act.
Clause 10 of Sch 1 to the GIPA Act provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which s 29 of the Children and Young Persons (Care and Protection) Act 1998 applies.
Section 29 of the Care Act provides protection of people who make reports or provide certain information to the Respondent and particularly gives protection of the person's identity as well the information they provide. Further, s 29(1A) of the Care Act allows the Respondent to issue a certificate: 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
The term 'report' in s 29 is defined to include many types of reports made to the Respondent under the Care Act including reports of children and young people at risk of significant harm or who are homeless.
The effect of a conclusive presumption of an overriding public interest against disclosure is that the Tribunal is not required to perform the public interest test of balancing considerations under s 13 of the GIPA Act: see Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41].

Consideration

The key issue for determination is whether the withheld information can be considered a report to which s 29 of the Care Act applies for the purposes of cl 10 of Sch 1 to the GIPA Act.

Evidence of Ms Labi

The Applicant submitted the evidence of Ms Labi should not be relied on because her evidence was evasive, she did not answer questions, she spoke in generalisations and she solely adopted departmental positions.
The Applicant also raised an issue of a social interaction with Ms Labi where both may have attended a social event on 13 April 2024. Ms Labi's evidence was she had no recollection of meeting the Applicant, nor did she have any knowledge of the Applicant's family members, or specific knowledge or involvement in of the operational matter which caused the relevant records to be created. I accept Ms Labi's unchallenged evidence on this issue.
Ms Labi's evidence was clearly based on her extensive relevant experience and knowledge of departmental procedures and the child protection system. She was not evasive in her answers. She spoke in generalities because she was giving relevant evidence about departmental procedures for collection of information as well as the need to protect that information and the identity of reporters and informants because of potential negative consequences for child safety based on her knowledge and experience.
Ms Labi's evidence was that the withheld information was information obtained and created by the Respondent in the exercise of its functions under the Care Act. She described some of the withheld information as being supplied by reporters or informers who had expectations of identity protection when disclosing concerns a child or young person may be at risk of significant harm. She also explained the reporting scheme under the Care Act which is underpinned by the supply of confidential information to ensure ongoing child protection as well as the triaging and assessment system used by the Respondent to process the information obtained.

Good faith

As stated by Principal Member Higgins in Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13 at [41]: … 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 respondent 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.
Therefore it is not for the Tribunal to delve into the motives for the making of a report once accepted by the Respondent without a contrary finding by a court or relevant body. In this case no such contrary finding has been made and the Tribunal will accept any relevant report was made in good faith.

Certificate and inspection of withheld information

As discussed in Dewhurst at [43] one way to show the characteristics of the information fall within s 29 of the Care Act is for a certificate to be issued under s 29(1A) of the Care Act. While a certificate has been issued by the Respondent in this matter it is also appropriate for the Tribunal to inspect the withheld information and determine whether the withheld information is a report to which s 29 applies: see FHG v Cumberland City Council; Cumberland City Council v FHG [2023] NSWCATAP 91 at [54].
I inspected each record of the withheld information (exhibit CR6) namely the contact record, Helpline assessment, document described as 'Notes and attachments' and the redacted information in the 'Triage record' to determine whether the withheld information is a report to which s 29 of the Care Act applies.
My assessment of the withheld information is as follows: [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
I am satisfied the s 29 certificate was validly issued, based on the evidence of Ms Labi. I am also satisfied that the withheld information I inspected comprises reports made for the purposes of the Care Act and therefore are reports to which s 29 of the Care Act applies.

Other issues raised by the Applicant

On the material before me I am not satisfied any of the withheld information has previously been disclosed in family law proceedings because no court transcript has been provided and the handwritten notes are illegible. Even if there had been disclosure in family law proceedings, information provided in that context would not be 'revealed' for the purposes of the GIPA Act: see Danis v Commissioner of Police, NSW Police Force [2021] NSWCATAD 311 at [84]-[89], upheld in Danis v Commissioner of Police [2022] NSWCATAP 68.
Also, the extension of time related matters occurring during the processing of the application made under the GIPA Act raised by the Applicant are not relevant to the decision the Tribunal is required to make as to whether the withheld information should continue to be withheld.

Is there conclusive presumption against disclosure?

Based on the evidence of Ms Labi and my inspection of the withheld information I am satisfied the withheld information before me, and for which a certificate was issued under s 29 of the Care Act, are reports to which s 29 of the Care Act applies. Therefore there is an overriding public interest against disclosure of the withheld information under cl 10 of Sch 1 to the GIPA Act, which is to be conclusively presumed under s14 of the GIPA Act.
It follows that the decision under review should be affirmed.

Alternative considerations raised by the Respondent

Given the finding there is a conclusive presumption of an overriding public interest against disclosure of the withheld information, it is not necessary to consider the application of the public interest test to the withheld information under s 13 of the GIPA Act.

Orders 1. The decision under review is affirmed. 2. Publication or broadcast of the name of the applicant or of their children is prohibited. 3. Other than to the Respondent, publication or broadcast of: 1. The contents of exhibits CR4, CR5 and CR6 received in evidence by the Tribunal on 6 May 2024 is prohibited; 2. Any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 6 May 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited; and 3. Any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets is prohibited.

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: 15 May 2024

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Cases Cited (6)