Siu v Department of Family and Community Services

NCAT Administrative and Equal Opportunity|2015-06-30

Solicitors: Wyatt Lawyers & Advisers (Applicant) Department of Family and Community Services (Respondent) File Number(s): 1410641 and 1410663

Judgment

The applicant applied to the respondent ("FACS") for information concerning her foster care under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). FACS provided her with access to some information and refused access to other information.
FACS found that some of the information was contained in a report to which s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("CYPCP Act") applies.
Section 29(1) of the CYPCP Act applies when 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" and the report is "in relation to a child or young person or a class of children or young persons." FACS found that there is a conclusive presumption that there is an overriding public interest against disclosure of the information contained such reports pursuant to s 14 of and cl 10 of Sch 1 to the GIPA Act. FACS also refused access to other information sought by the applicant on the basis of clauses in the table to s 14 of the GIPA Act.
The applicant applied to this Tribunal for review of FACS's decision to refuse her access to information.

RELEVANT LEGISLATION

Section 29(1), (1A) and (6) of the CYPCP Act relevantly provide: "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: (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): (iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal, 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 (1A) A certificate purporting to be signed by the Director-General 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. (6) In this section: report includes a report under sections 24, 25, 27, 120, 121 and 122."
Clauses 1(1), 3 and 4 of Sch 3 to the CYPCP Act provide: "1. Regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act. 3. Definition In this Part: amending Act means the Children and Young Persons (Care and Protection) Amendment Act 2006. 4. Protection of persons who make reports or provide certain information (1) The amendment made to section 29(1)(f) by the amending Act extends to any information disclosed to a body before the commencement of the amendment. (2) Section 29 (3A) extends to reports made, actions taken or information provided before the commencement of the subsection. (3) Section 29 extends to any report made under section 120 or 121 before the amendment of section 29 (6) by the amending Act."
Clause 10 of the Children and Young Persons (Savings and Transitional) Regulation 2000 (NSW) provides: "10 Notification of child abuse (1) Despite its repeal, section 22 of the old Act continues to apply so as to enable a notification to be made to the Director-General that a child or young person was abused before the repeal of that section. (2) A notification under section 22 of the old Act that has not been dealt with before the repeal of that section, or that is made as referred to in subclause (1) is taken to be: (a) except as provided by paragraph (b), a report under section 24 of the new Act, or (b) if the report has been made by a person to whom section 27(1) of the new Act applies, a report under section 27 of the new Act, and is to be treated in all respects accordingly under the new Act. (3) An investigation under section 22(7) of the old Act that has not been completed before the repeal of that subsection is taken to be an investigation under section 30 of the new Act, and is to be treated in all respects accordingly under the new Act. (4) Section 29 of the new Act applies to a notification under section 22 of the old Act that has been dealt with before the repeal of section 22 of the old Act."
The term "old Act" is defined in cl 3 of the Children and Young Persons (Savings and Transitional) Regulation to mean the Children (Care and Protection) Act 1987 (NSW) ("1987 Act"). The term "new Act" is defined in that clause to mean the CYPCP Act.
Section 22(1) of the 1987 Act provided that "any person who forms the belief upon reasonable grounds that a child - (a) has been, or is in danger of being, abused; or (b) is a child in need of care, may cause the Director-General to be notified of that belief and the grounds therefor, either orally or in writing." There was also provision in s 22(2), (3) and (4) of the 1987 Act for medical practitioners and persons following prescribed professions to make notifications to the Director-General.
Section 3 of the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987 (NSW) repealed the Child Welfare Act 1939 (NSW) ("1939 Act"). Clause 2 of Sch 5 to the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act provided: "Savings relating to repealed enactments 2. The repeal by this Act of any enactment does not affect - (a) the proof of any past act or thing; (b) any duty, obligation, liability, benefit, privilege or right saved by the operation of the enactment; or (c) any amendment or validation made by the enactment."
Section 148B(2) of the 1939 Act provided: "(2) Any person who forms the belief upon reasonable grounds that a child - (a) has been assaulted; or (b) is a neglected child within the meaning of Part XIV, may - (c) notify the Director of his belief and the grounds therefor either orally or in writing; or (d) cause the Director to be so notified."
Section 148B(3) and (4) of the 1939 Act required a "prescribed person" to make a notification in certain circumstances if he or she "has reasonable grounds to suspect that a child has been assaulted, ill-treated or exposed".
Section 148B(6) of the 1939 Act relevantly provided: "(6) Where a person notified the Direction pursuant to subsection (2) or (3) - (d) subject to subsections (7) and (8), the notification shall not be admissible in evidence in any proceedings before a court, tribunal or committee and no evidence of its contents is admissible; and…"
The exceptions in s 148B(7) and (8) are inapplicable in the present circumstances.
Section 30 of the Interpretation Act 1987 (NSW) provides: "30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect: (a) the proof of any past act or thing, or (b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or (c) any amendment or validation made by the Act or statutory rule, or (d) the operation of any savings or transitional provision contained in the Act or statutory rule. (3) This section applies to the amendment or repeal of an Act or statutory rule in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected."

SCOPE OF SECTION 29 OF THE CYPCP ACT

In my view, putting to one side any applicable transitional provisions and s 30 of the Interpretation Act, s 29 of the CYPCP Act operates only in respect of reports made after the commencement of the section. It applies if "a person makes a report in good faith." The use of the word "if" indicates that the legislature is contemplating something which might happen in the future. The definition of "report" in s 29(6) to include a report made under certain provisions of the CYPCP Act gives some support to this interpretation, although it is not conclusive. There is nothing in the provision to indicate that it operates retrospectively and it should therefore not be construed as having retrospective effect (see, for example, Halal Certification Authority Pty Limited v Quality Kebab Wholesalers Pty Limited (No 2) [2014] FCA 840 at [12]).
Section 29(1)(d) of the CYPCP Act provides that a report to which that section applies and its contents are inadmissible in proceedings, except, relevantly, "proceedings in relation to a child or young person before … the Civil and Administrative Tribunal." FACS claims that "[a]s the subject of these proceedings are [sic] access to information about the Applicant the proceedings are clearly not in relation to any child or young person."
The words "in relation to" are of broad import: Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [41]; and see State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412 at 416 where the words "in respect of" were considered. Any limit on the broad language utilised in the phrase "in relation to" needs to be "found in the nature and purpose of the legislation": Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [41]; Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697 at [64].
In the phrase "proceedings in relation to a child or young person" in s 29(1)(d)(iii) of the CYPCP Act, I do not consider that the words "in relation to" are intended to capture any proceedings which have a connection with a child or young person. Rather, I consider that the words are intended to refer, primarily, to proceedings the subject of which is a child or young person, such as proceedings for a review of a decision made under the CYPCP Act. This is consistent with the other types of proceedings referred to in the provision as exceptions to the general rule, and with the general purpose of s 29(1). That purpose is "is to provide protections to persons who make reports in good faith to the Director-General concerning children or young persons who are at risk of harm or are homeless" (The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251 at [24]).
It is not necessary to decide whether the words have a broader application than that which I have outlined above. However, the phrase "proceedings in relation to a child or young person" does not, in my view, extend to proceedings under the GIPA Act such as these, on the basis that the information which is sought is information about an adult at a time when she was a child in foster care. I note that this Tribunal reached a similar conclusion in Mansfield v Department of Family and Community Services [2014] NSWCATAD 43 at [15]. There is no other basis upon which it has been argued that the proceedings could be proceedings in relation to a child or young person.

APPLICATION OF SAVINGS AND TRANSITIONAL PROVISIONS

Mr Paul, an in-house FACS solicitor, said that s 29 of the CYPCP Act took effect on 14 December 1998. He submitted that the transitional provision in cl 4(2) of Sch 3 to the CYPCP Act, together with cl 10 of the Children and Young Persons (Savings and Transitional) Regulation, extended the protection against disclosure of the identity of persons who made reports prior to reports made, actions taken or information provided under s 22 of the 1987 Act before the commencement of s 29 of the CYPCP Act.
Mr Paul said, further, that prior to 18 January 1988, the applicable law was set out in s 148B of the 1939 Act. He submitted that cl 2 of Sch 5 to the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act saves acts done under the repealed 1939 Act. He said that s 148B(6)(d) and (e) created protection against admissibility or production of notifications in any proceedings.
FACS did not rely upon any case law concerning the application of the savings and transitional provisions and I have not been able to find any cases on point.
The first savings and transitional provision on which Mr Paul relies, cl 4(2) of Sch 3 to the CYPCP Act, does not have the effect of extending the protection against disclosure of the identity of persons who made reports under s 22 of the 1987 Act, because it applies in respect of amendments made to s 29 of the CYPCP Act by the Children and Young Persons (Care and Protection) Amendment Act 2006 (NSW).
The second savings and transitional provision on which Mr Paul relies, cl 10(4) of the Children and Young Persons (Savings and Transitional) Regulation, when read with cl 1 of Sch 3 to the CYPCP Act, has the effect of applying s 29 of the CYPCP Act to a notification under s 22 of the 1987 Act that has been dealt with before the repeal of s 22 of the 1987 Act. Further, cl 10(2) effectively deems a notification under s 22 of the 1987 Act that has not been dealt with before the repeal of the provision to be a report under s 24 or s 27 of the CYPCP Act (to which s 29 of the CYPCP Act would therefore apply).
I note that s 29 of the CYPCP Act commenced upon 18 December 2000. Section 22 of the 1987 Act was repealed by s 3 of the Children and Young Persons Legislation (Repeal and Amendment) Act 1998 (NSW) on the same day. Accordingly, s 29 of the CYPCP Act applies to notifications made under s 22 of the 1987 Act before that date.
There is one "after hours report" made on 7 June 1998 to which the certificate purportedly issued under s 29(1A) of the CYPCP Act is said to apply. If that "after hours report" is a notification under s 22 of the 1987 Act, then s 29 of the CYPCP Act is capable of applying to it. I have not considered whether the circumstance that the certificate is signed by Roderick Best, Acting General Counsel on behalf of the Secretary affects its operation or effectiveness.
There is a further question as to whether s 29 of the CYPCP Act applies to reports made prior to the commencement of s 22 of the 1987 Act. Section 22 commenced on 18 January 1988.
As already noted, cl 10(4) of the Children and Young Persons (Savings and Transitional) Regulation provides for the application of s 29 of the CYPCP Act to notifications made under the 1987 Act. There is no equivalent provision in respect of reports made under the 1939 Act.
The respondent claims that cl 2 of Sch 5 to the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act "saves acts done under the repealed 1939 Act which enables decisions made under s 148B to be picked up as 'reports' for the purposes of" s 22 of the 1987 Act. There is no provision in s 22 of the 1987 Act enabling notifications under the 1939 Act to be "picked up" by s 22. Nor is there anything in the wording of cl 2 of Sch 5 to the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act which has this effect.
For these reasons, I find that the certificate purportedly made under s 29(1A) of the CYPCP Act is not capable of applying to the documents which pre-date the commencement of the 1987 Act. Evidence that a document pre-dates the commencement of that Act is "evidence to the contrary" of the document being a report to which s 29 applies (see s 29(1A)).
It does not necessarily follow that a notification under s 148B(2) of the 1939 Act (a "s 148B(2) notification") or a notification under s 148B(3) of that Act (a "s 148B(3) notification") or the contents of such an notification is admissible in these proceedings.
As set out above, s 148B(2) of the 1939 Act, which received assent on 24 March 1977, provided for persons to make notifications concerning a child who has been assaulted or who is a "neglected child" and s 148B(6) provided various protections for persons making reports. Clause 2(a) of Sch 5 to the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act provided that the repeal of the 1939 Act does not affect "the proof of any past act or thing." Section 148B(6)(d) provided that s 148B(2) notifications and their contents were not admissible in any proceedings. The effect of cl 2(a) of Sch 5 is, in my view, to preserve the inadmissibility of s 148B(2) notifications, because, otherwise, the proof a past thing (what is contained in the report) would be affected. However, if I am wrong about this, cl 2(b) of Sch 5 to the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act also achieves this result.
Clause 2(b) provides that the repeal of the 1939 Act does not affect "any duty, obligation, liability, benefit, privilege or right saved by the operation of the enactment." The provision in s 148B(6) that s 148B(2) notifications are inadmissible in proceedings is, when read in context, a "privilege" or "benefit" provided to the person making the report (see s 148B(8)) and, possibly, to the child about whom the report is made. Accordingly, the effect of cl 2(b) of Sch 5 to the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act is that the privilege or benefit of the inadmissibility of a s 148B(2) notification is preserved.
The Miscellaneous Acts (Community Welfare) Repeal and Amendment Act was repealed by Sch 5 to the Statute Law (Miscellaneous Provisions) Act (No 2) 2007 (NSW). However, the repeal of that Act does not "affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act" (Interpretation Act, s 30(1)(c)). Further, the repeal does not affect "the proof of any past act or thing," "any right, privilege, obligation or liability saved by the operation of the Act or statutory rule" or "the operation of any savings or transitional provision contained in the Act." Accordingly, I consider that, to the extent that cl 2 of Sch 5 to the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act preserved the inadmissibility of a s 148B(2) notification by effectively preserving the operation of s 148B(6) of the 1939 Act, this is unaffected by the repeal of the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act.
For these reasons, if any of the initial contact form of 1982, the child abuse notification made in 1983 or the three child at risk notifications made in 1983 is a s 148B(2) or a s 148B(3) notification, the notification will not be admissible in evidence in proceedings before this Tribunal (see 1939 Act, s 148B(6)).
The matter is to be listed for a further planning meeting for the purposes of setting a timetable for the determination of the applicant's applications. 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: 21 September 2015

Children (Care and Protection) Act 1987(NSW)

Children and Young Persons (Care and Protection) Amendment Act 2006(NSW)

Child Welfare Act 1939(NSW)

Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987(NSW)

Children and Young Persons Legislation (Repeal and Amendment) Act 1998(NSW)

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Judgment (5 paragraphs)

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Legislation Cited (9)

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