Ozymandias v Secretary, Department of Education

The Original Orders and Variation made

1. On 21 April 2023, the Commission made the following orders ("Original Orders"): 1. An order, pursuant to s. 164A(1)(a) of the Industrial Relations Act 1996 prohibiting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of or the doing of any other thing that identifies, or may lead to the identification of [student or former student complainants or witnesses] (ii) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of any other student or the doing of any other thing that identifies or may lead to the identification of any other student. (iii) the disclosure of the name, address, picture of any other material that identifies, or may lead to the identification of the school, namely [the School]. 2. An order pursuant to s. 164A(1)(c) of the Industrial Relations Act 1996, that publication of evidence given before the Commission or matters contained in the documents lodged with the Commission or received in evidence by the Commission is restricted to the extent that it may lead to the identification of [student of former student complainants or witnesses]. 3. An order pursuant to s. 164A(1)(c) of the Industrial Relations Act 1996, that publication of evidence given before the Commission or matters contained in the documents lodged with the Commission or received in evidence by the Commission is restricted to the extent that it may lead to the identification of the school, namely [the School]. 4. An order pursuant to s. 164A(1)(a) of the Industrial Relations Act 1996, that access to the Commission file in the matter of Adam Semaan v Secretary New South Wales Department of Education (File no 2023/22775) is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties) may be granted access.
2. On 26 September 2024, I made an order varying the Original Orders to include ("Variation Order"): 5. Nothing in these orders: (i) prevents the disclosure of any information or material to the Children's Guardian in compliance with: a. an assessment notice issued under s 31 of the Child Protection (Working with Children) Act 2012; b. a request for information issued under s 245D of the Children and Young Persons (Care and Protection) Act 1998; or c. a requirement to provide further information under s 42 of the Children's Guardian Act 2019, or in accordance with s 245C of the Children and Young Persons (Care and Protection) Act 2012; (ii) prevents the use or disclosure by the Children's Guardian of information or material provided in that manner in the exercise of the Children's Guardian's functions under: a. the Child Protection (Working with Children) Act 2012; b. the Children and Young Persons (Care and Protection) Act 1998; or c. the Children's Guardian Act 2019, including, without limitation, for the purpose of carrying out any risk assessment in accordance with s 15 of the Child Protection (Working with Children) Act 2012 and for the purposes of any review or appeal of a decision by the Children's Guardian in accordance with Part 4 of that Act; or (iii) prevents the Applicant, Mr Khaine Ozymandias, or the Respondent, the Secretary of the Department of Education, from disclosing information or material that is the subject of the above orders to the NSW Civil and Administrative Tribunal or any other court for the purposes of any review or appeal of a decision by the Children's Guardian in accordance with Part 4 of the Child Protection (Working with Children) Act 2012 or any further appeal therefrom.

Evidence and submissions

1. The Children's Guardian relied upon an affidavit of Lyndal Groves sworn on 13 September 2024 ("Groves affidavit"). In addition, it relied upon the evidence of the Secretary, Department of Education ("Secretary") which included an affidavit of Melissa Buchanan sworn on 13 August 2024 and Kaitlyn Maia sworn on 14 August 2024.
2. The Children's Guardian and Secretary filed written submission in support of the application. I have referred to the evidence and submissions as necessary in this decision.

Background

1. The Commission made the Original Orders on application from the Secretary to protect the names and identities of the students involved in the allegations made by the Secretary against Mr Ozymandias ("applicant"). The Secretary submitted that the children's identities needed to be protected in accordance with relevant legislation and to protect their privacy, shield them from psychological harm and so they are not discouraged from reporting conduct.
2. The evidence of Ms Buchanan and Ms Maia, established that all student or former student complainants or witnesses had consented to the Children's Guardian accessing the Commission file, including their statements or documents.
3. The Groves affidavit provided factual background to the Children Guardian's application. Ms Groves deposed that at the time the Original Orders were made, the applicant was subject to an interim bar preventing him from engaging in child-related work, subject to a risk assessment by the Children's Guardian. On 29 November 2023, the applicant was granted a Working With Children Check, the Children's Guardian having decided he did not pose a real or appreciative risk to children.
4. Ms Groves' evidence was that on 15 December 2023, the Children's Guardian receive a notification from the Department of Education pursuant to s 245C of the Children and Young Persons (Care and Protection) Act 1998 in relation to the applicant. Section 245C provides for the sharing of information in circumstances where there is a concern about the safety, welfare, or well-being of a child or children. This s 245C notification included new material not previously available to either the Department or the Children's Guardian.
5. The Children's Guardian made a request for information to the Department in respect of the s 245C notification pursuant to Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998. The Department would not provide the information sought because of the terms of the Original Orders.

Legal principles

1. The Commission has the power to vary its own orders made pursuant to s164A of the Act: s 164A(4).
2. Section 164A of the Act relevantly provides: (1) A "non-disclosure order" is any of the following orders-- (a) an order prohibiting or restricting-- (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission, (c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings. …. (3) The Commission, other than in Court Session, may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice. (4) The Commission may from time to time vary or revoke an order it has made under this section. (5) Nothing in this section operates to limit a power of the Commission in Court Session apart from this section to make a non-disclosure order or another order prohibiting or restricting the disclosure or publication of matters before the Commission.
3. The principals applicable to the Commission's power to make an order pursuant to s 164A of the Act have been well traversed by the Commission including recently and comprehensively by the Full Bench in Secretary of the Department of Education v X [2023] NSWIRComm 1061 ("X") at [30]-[66]. In Rawson v Secretary, New South Wales Department of Education [2024] NSWIRComm 1060 the Commission summarised those principles espoused in X at [8]. Fundamentally, the Commission may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice: s 164A(3).
4. The Commission's power to vary or revoke an order under s 164A was considered in by the Full Bench in Dr A and Health District [2014] NSWIRComm 28 ("Dr A"), albeit in the context of an application to revoke non-disclosure orders, rather than vary them. Two principles relevant to this matter can be derived from Dr A. Firstly, the question for the Commission in determining the application is whether it is necessary to maintain the Original Orders "in the interests of justice": [28]. Secondly, in considering the Variation Application, the Commission "has to begin with the premise that the [Original Orders] … were properly made in accordance with the statute": [53]. Thus, the onus is on the party seeking the variation, in this case the Children's Guardian, to demonstrate that the circumstances have changed, warranting variation of the Original Orders.

Consideration

1. The Children's Guardian persuaded the Commission that it was in the interests of justice that the Original Orders be varied in accordance with the Variation Order.
2. Principally, I was persuaded it was in the interests of justice to amend the Original Orders for the reasons articulated in the Children's Guardian's written submissions at [30]: "….the variation of the non-disclosure order by the inclusion of proposed Order 5 should be considered necessary, in the interest of justice, in order to ensure that the Guardian, on whom Parliament has conferred important statutory function with respect to the safety of children, is able to carry out those function without hindrance, The continuation of non-disclosure orders that are no otherwise necessary in the interest of justice and that operate to prevent the carrying out of important statutory function such as those conferred on the Guardian risks bringing the administration of justice, and the proceeding of the Commission, into disrepute."
3. I agree with that submission and adopt it.
4. I was also persuaded the interests of justice favoured the making of the Variation Order, for the following reasons: 1. The persons protected by the Original Order, all of whom are now adults, did not object to the Children's Guardian having access to the material on the Commission's file, including their statements and documents. 2. The proceedings have now been discontinued, such that there can be no prejudice to the applicant by the making of the Variation Order. 3. If the Original Orders were not amended, the Children's Guardian will be precluded from accessing information that may be relevant for the purposes of assessing whether the applicant poses a risk to children.
5. I note also that the Variation Order is restricted, only allowing for disclosure of the protected information in limited circumstances. Further, the information provided to the Children's Guardian will continue to be protected from unauthorised disclosure by operation of s 45 of that Child Protection (Working with Children) Act 2012, s 254 of the Children and Young Persons (Care and Protection) Act 1998 and s 159 of the Children's Guardian Act 2019. To the extent the information is relied upon in NSW Civil and Administrative Tribunal proceedings, the Tribunal has the capacity to make non-disclosure orders of suppression orders in respect of proceeding under Part 4 of the Child Protection (Working with Children) Act 2012. Further, s 65 of the Civil and Administrative Tribunal Act 2013 prevents in proceedings under the Child Protection (Working with Children) Act 2012, absent any order to the contrary, the publishing or broadcasting of the name of any person who appears, who is mentioned, or otherwise involved in any proceedings in the tribunal. Similarly, if the information is utilised in Court proceedings, an application for non-disclosure can be made.
6. While I observe the parties consented to the Variation Order, this did not absolve the Commission of the requirement to decide whether it was in the interests of justice to make it. However, I was comfortably satisfied that the Children's Guardian had demonstrated that it was no longer in the interests of justice that the Original Orders be maintained without amendment. Put another way, and for these reasons I have articulated, I decided the interests of justice required that I make the Variation Order. Janine Webster COMMISSIONER

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: 27 November 2024