Secretary, Department of Family and Community Services v Hayward (a pseudonym)

1. [1]

   THE COURT: On 16 August 2018 Herbert DCJ held that she had power in a criminal trial to order that the Secretary, Department of Family and Community Services (the applicant) provide to the accused (the present respondent) reports of child abuse in a form which would disclose the identity of the makers of the reports, under s 29(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”). On 17 August 2018, the Secretary sought an order declaring that the District Court has no such power. To avoid further delay of the criminal trial, the application was heard on 27 August 2018; orders to the effect sought by the Secretary were made at the conclusion of the hearing.

2. [2]

   As the case required the resolution of an apparent conflict between two cases decided by the Court of Criminal Appeal concerning the operation of s 29(1) of the Care and Protection Act the Court sat an enlarged bench.

Issue for determination

1. [3]

   The Care and Protection Act provides for the making of reports of children at risk in several provisions; for present purposes it is sufficient to note s 24:

2. [4]

   The case turns upon the scope and operation of s 29(1) of the Care and Protection Act. Although the power invoked by the respondent is to be found in par (1)(f)(ii), that provision cannot properly be extracted from its statutory context; indeed, the operation of par (1)(f) is directly affected by surrounding provisions. Accordingly it is necessary to have regard to the several relevant parts of the section, which read as follows:

3. [5]

   The definition of “report” covers two categories, namely reports made under ss 24, 25 and 27, which relate to children at risk of harm, and reports made under ss 120, 121 and 122, which relate to homeless children.

4. [6]

   The power relied on by the respondent in the criminal proceedings for disclosure of the identity of the reporters was to be found in the exception to the general prohibition contained in par (1)(f)(ii). The earlier conflicting decisions were concerned with pars (1)(e) and (1)(d) respectively.

5. [7]

   In the first case, Re Application of the Attorney-General for New South Wales dated 4 April 2014 [1] (“Re Attorney-General’s Application”), the Court held that the principle of legality justified construing “any proceedings” in s 29(1)(e) so as not to apply to criminal proceedings. Accordingly, despite the prohibition in s 29(1)(e) of compulsory production of a report under the Care and Protection Act in “any proceedings”, production of reports relevant to issues in a criminal trial could be compelled by subpoena, although material revealing the identity of the reporter should be redacted. In accordance with that ruling, the Secretary provided the respondent with copies of the reports, with redactions.

6. [8]

   In the second case, Hayward v R, [2] involving an earlier dispute in the present criminal proceedings, a five judge Court of Criminal Appeal held that the words “any proceedings” in s 29(1)(d) applied to criminal proceedings. Accordingly, reports as defined in s 29(6), and evidence of the contents of those reports, were held not to be admissible in criminal proceedings. Whilst Hayward raised significant doubts about the correctness of Re Attorney-General’s Application, the Court stopped short of overruling the earlier decision.

7. [9]

   For the reasons explained below, pars (d), (e) and (f) in subs (1) constitute a coherent scheme and must be read together. The construction of par (f) requires a choice between the differing constructions of (d) and (e) adopted in the two recent cases.

Factual and procedural background

1. [10]

   Ms Hayward is facing trial in the District Court on an indictment containing five counts arising from injuries allegedly inflicted upon a child:

   1. (1)

      detaining a person for advantage in circumstances of aggravation (being in company) (Crimes Act 1900 (NSW), s 86(2)(a));

   2. (2)

      causing a child to take a poison or noxious thing with intent to cause distress or pain (Crimes Act, s 41);

   3. (3)

      in company, assaulting a child occasioning actual bodily harm (two counts) (Crimes Act, s 59(2)); and

   4. (4)

      in company, recklessly causing grievous bodily harm to a child (Crimes Act, s 35(1)).

2. [11]

   The hearing of Ms Hayward’s criminal trial was fixed to commence on 29 August 2018; there are further pre-trial issues to be determined before a jury is empanelled. The victim is a young boy (aged four at the time of the alleged offences) who resided for a short time with his mother in Ms Hayward’s house. The victim’s mother is a witness in the trial against Ms Hayward, as is the former domestic partner of Ms Hayward and a third man who allegedly witnessed some of the incidents the subject of the indictment. Although there was no evidence before this Court about the content of any report about the risk of harm to the child, Ms Hayward seeks access to the identities of the makers of the reports in order to be able to test the evidence expected to be given at her trial.

3. [12]

   The applicant produced on subpoena a number of reports; a second batch of reports was produced informally but on the understanding that production could be compelled. Each of the reports was redacted so that the maker of the report was not identified.

4. [13]

   By notice of motion filed in the District Court on 15 August 2018, Ms Hayward sought the following orders:

5. [14]

   The affidavits of Ms Caligiore were not read on the hearing of the motion. However, the material was said to be relevant to establishing that the victim’s mother, a principal witness against Ms Hayward, had a tendency to engage in violence against children in her care, and a tendency inappropriately to discipline children. (The tendency notices were not before this Court.) Ms Hayward intends to allege that her former domestic partner, who is in custody for abusive conduct, and another man present during some of the incidents, also had a tendency to act violently towards children.

6. [15]

   The primary judge was invited by the parties to rule on the preliminary question of whether the District Court in a criminal trial had power under s 29(1)(f)(ii) of the Care and Protection Act to make an order that the Secretary reveal the identity of a person who had made a report. On 16 August 2018, the judge ruled that she had “jurisdiction” pursuant to s 29(1)(f)(ii) of the Care and Protection Act to grant leave to disclose the complainant’s identity in relation to each of the reports concerning the child, the alleged victim in Ms Hayward’s trial. The judge stated:

7. [16]

   Section 29(1)(f)(i) allows for disclosure where the person who made the report consents. In this Court, an affidavit of Ms Caligiore sworn 24 August 2018 was read to establish that the Secretary had been asked by Ms Hayward’s lawyers to facilitate possible voluntary disclosure of the identity of the makers of the reports, but had refused to assist. The Crown case statement in Ms Hayward’s criminal trial was also annexed, but provided nothing further of relevance.

(a) terms of the Care and Protection Act

1. [17]

   Section 29 is reproduced above. The statutory context is provided by the following outline of key provisions. First, the primary objects of the Care and Protection Act are as follows:

2. [18]

   Chapter 4 of the Care and Protection Act provides for the Secretary “to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child”, the power to act being conditioned upon the Secretary’s opinion that the child “is in need of care and protection”: s 34(1). The basis for the formation of such an opinion will commonly be the result either of a request for assistance, or of a person having reasonable grounds to suspect that the child is “at risk of significant harm” making a report to the Secretary: s 24. The phrase “at risk of significant harm” includes the child having been or being at risk of physical abuse or ill-treatment: s 23(1)(c).

3. [19]

   Sections 23 and 24 are found in Pt 2 of Ch 3 of the Care and Protection Act, which deals with “reports”. Part 2 also includes s 26, which provides that a report may be made anonymously, and, importantly, s 27 which provides for mandatory reporting and relevantly states:

4. [20]

   On receipt of a report, the Secretary is required to make “such investigations and assessment as the Secretary considers necessary to determine whether the child … is at risk of significant harm”: s 30(a). Chapter 5 confers powers on the Secretary to remove a child from a place of risk (s 43), and make a “care application” to the Children’s Court (s 45). The Children’s Court has extensive powers to make interim and final care orders: Ch 5, Pt 2. Appeals from orders of the Children’s Court may be made to the District Court where there may be a new hearing: s 91.

(b) statutory interpretation – contextual considerations

1. [21]

   Within this general scheme, s 29 has two functions. Broadly identified, these functions are, first, to prevent reports of harm or possible harm being used in any proceedings, except for purposes provided for in the Care and Protection Act and, secondly, to grant a level of immunity from repercussions for those who make such reports, including non-disclosure of their identities.

2. [22]

   It is readily apparent that a child who is at risk of significant harm may be the victim of abuse or ill-treatment which involves criminal conduct. Criminal proceedings against the perpetrator are to be anticipated. The issue in the present case involves the interrelation between the level of protection given to the maker of a report and the protections available to a person accused of a criminal offence. In some circumstances the principles underpinning the Care and Protection Act and the principles applied in the administration of criminal justice for the protection of accused persons may conflict. Such conflicts may arise in a number of circumstances; the precise nature of the conflict in the present case has not yet been revealed by the evidence.

3. [23]

   A person reporting that a child is at risk of significant harm may have been an eye-witness to such harm. In that case, he or she may be a witness for the prosecution in criminal proceedings against the alleged abuser. Counsel for the accused will wish to have available any prior statement made by the witness with respect to the subject matter of the offending, for the purposes of cross-examination.

4. [24]

   Further, the report of abuse, whether witnessed by the reporter or merely the subject of hearsay accounts, may provide a source of information, for example as to who was present at a relevant incident and may be a potential witness. A defendant who denies that an incident took place may be assisted by knowing of the existence of a potential witness who is not being called by the prosecution. Indeed, if the reporter appears to be an eye-witness and is not being called by the prosecution, his or her identity may be of value to the defence for the same reason.

5. [25]

   It follows that there is potential for conflict between the demands of fairness to a criminal accused and the mechanism for reporting child abuse deemed necessary for effective care and protection of vulnerable children. It was this potential which led the Court in Re Attorney-General’s Application to turn to, and place determinative weight upon, the principle of legality. However, that principle does not necessarily determine the outcome of an exercise in statutory interpretation once a condition of its engagement is satisfied. Nor does it displace other principles of statutory interpretation. Rather, being a requirement for a clear statement of intention, it will not contradict the natural and ordinary meaning of the text, nor justify disregarding otherwise relevant context, statutory history or extrinsic material. It may operate with varying force in different circumstances.

6. [26]

   The underlying concept may be found in the opinion of Lord Steyn in R v Secretary of State to the Home Department; Ex parte Pierson: [3]

7. [27]

   To similar effect, though more generally expressed, McHugh J said in Theophanous v Herald & Weekly Times Ltd: [4]

(c) statutory interpretation – the principle of legality

1. [28]

   The principle of legality, also known as the clear statement rule, does not follow its own injunction. The strength of the principle and its scope are both contestable and variable. In broad terms, it requires that if Parliament wishes to override or modify fundamental legal rights, freedoms or immunities, or the general system of law, it must express its intention in clear language. In Potter v Minahan, [5] O’Connor J stated that it was “in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”.

2. [29]

   The rationale of the principle was described by the majority in Coco v The Queen [6] in the following terms:

3. [30]

   In Electrolux Home Products Pty Ltd v Australian Workers’ Union, [7] Gleeson CJ justified the principle of legality as “a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted”. The function and operation of the principle must be understood within the confines of general principles of statutory construction. Thus, in Project Blue Sky Inc v Australian Broadcasting Authority, [8] the joint judgment stated:

4. [31]

   Consistently with this approach, and with the authorities referred to in the footnotes, “context” will always include established legal principles and rules. [13] The presumptions underlying the principle of legality may thus operate as a qualification of the primary focus on the language of the statute. That does not mean that it is open to the court to disregard the ordinary and natural meaning of the language adopted by the Parliament, nor to impose limitations which the Parliament has addressed and rejected with sufficient clarity.

5. [32]

   The focus in the present case should be on the element identified by O’Connor J in Potter v Minahan as the “general system of law”. That is because the basis for reading down the language of s 29(1) appears to be the proposition that to give the language its natural and ordinary meaning would infringe a basic principle underlying the administration of criminal justice. However, there may be a question as to whether that phrase engages a free standing basis on which clarity of expression is required, separate from individual rights, freedoms and immunities, [14] or whether the protections accorded an accused person in criminal proceedings can be accommodated within the category of individual rights. [15]

6. [33]

   The phrase was applied by Hayne and Bell JJ in X7 v Australian Crime Commission, [16] to protect the basic principles of the administration of criminal justice. In Lee v New South Wales Crime Commission, [17] Gageler and Keane JJ, after reviewing the authorities, including Potter v Minahan, Bropho v Western Australia, [18] Coco v The Queen and Electrolux Home Products, explained the principle of legality in the following terms:

7. [34]

   Gageler and Keane JJ also made clear that:

8. [35]

   Crennan J agreed with Gageler and Keane JJ, stating that, in some cases, “a legislative object may involve a public interest which cannot be pursued without some impairment of some private right or immunity”: at [126].

9. [36]

   It is significant that the information to which the respondent seeks access is the very information the creation of which is the object of the statutory scheme in the Care and Protection Act. The policy underlying the scheme is dependent upon the maintenance of confidentiality as to the source of that material. If the respondent seeks access to the source of the information which the Care and Protection Act seeks to protect, the Court is not engaged in a balancing exercising to determine the proper limits of the statutory policy. If the policy is expressed in clear language, it must be given effect.

10. [37]

    In the rather more fraught area of intelligence collection by the UK Security Service, the Secret Intelligence Service and the Government Communications Headquarters, the Court of Appeal accepted the absence of judicial review with respect to decisions of the Investigatory Powers Tribunal, established to hear complaints of alleged misuse of statutory investigative powers. Thus, in R (on the Application of Privacy International) v Investigatory Powers Tribunal, [20] Sales LJ noted:

11. [38]

    Whilst, in the absence of an appeal, judicial review is limited to points of law, Sales LJ noted that there is “no neat, absolute division between points of law and points of fact in judicial review proceedings.” [21] The Court of Appeal accepted that “[i]t is clear that Parliament’s intention in establishing the IPT and in laying down a framework for the special procedural rules which it should follow … was to set up a tribunal capable of considering claims and complaints against the intelligence services under closed conditions which provided complete assurance that there would not be disclosure of sensitive confidential information about their activities.” [22] The approach to access to the courts for the purposes of judicial review adopted in Privacy International was similar to that adopted by the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [23] , albeit in a different statutory context. The underlying point is that a careful review of the statutory scheme may reveal an intention to maintain confidentiality in all circumstances. The important point of distinction between this case and other cases is that, at least in some respects, the protection from disclosure of reports is subject to exceptions. These will be considered below.

12. [39]

    The foregoing considerations indicate that the correct approach to the question of statutory interpretation must involve a number of elements. The exercise is not governed by a set of mutually inconsistent rules of which one must be chosen, but by reference to principles which, because they may pull in different directions, will involve evaluative judgment. In order to apply the principle of legality, it is necessary to identify with a degree of precision that fundamental right, freedom or immunity which is said to be curtailed or abrogated, or that specific element of the general system of law which is similarly affected. Any presumption of non-interference by general words will carry greater or lesser weight according to the precise issues identified. Particularly this is so where there are conflicting purposes operating in different areas of the law. Thus, in the present case there may be tensions between the public interest in ensuring a person charged with a criminal offence has a fair trial and, on the other hand, the need to ensure that child abuse is promptly and adequately reported, which will not occur if conditions of anonymity cannot be maintained.

13. [40]

    There is one further consideration which must be borne in mind before turning to the application of the relevant principles of statutory construction. That is the terms of s 33 of the Interpretation Act 1987 (NSW), which reads as follows:

14. [41]

    On its face, s 33 is in mandatory terms which may require an approach inconsistent with any general law principle of legality. However, s 5(4) states that “[n]othing in this Act excludes the application to an Act … of a rule of construction applicable to it and not inconsistent with this Act.” Further, there tends to be an element of circularity in applying a purposive approach in circumstances where the scope and operation of any identifiable purpose is likely to turn on considerations of statutory construction.

15. [42]

    The application of any doctrine evoked by the principle of legality therefore requires identification of fundamental rights, freedoms and immunities. That exercise is undoubtedly achievable, even if the boundaries are uncertain; the boundaries of the “general system of law” are even less certain. Although that language has been invoked in relation to the administration of criminal justice, it is appropriate to recall that, when first used by O’Connor J in Potter v Minahan, there was no right of appeal for an accused convicted in a criminal trial and, less than 20 years earlier, the accused did not have a right to give evidence. [24] Further, the statutory obligation of the prosecution to provide potentially exculpatory material to the defence is of recent origin. [25] Earlier common law principles depended on the concept of a fair trial and were rarely applied, of limited scope and required evaluative judgment. [26]

(d) legislative history

1. [43]

   The history of s 29 and its predecessors was traced by Bathurst CJ in Hayward v R. The original predecessor to s 29 of the Care and Protection Act was s 148B of the Child Welfare Act 1939 (NSW), inserted in 1977. That provision incorporated a form of reporting, both voluntary and mandatory, with respect to a child who was a neglected child or had been assaulted or otherwise ill-treated: s 148B(2) and (3). The Director of the then Department of Youth and Community Services was required to investigate any matters notified and, if satisfied that the child may have been assaulted, take further action, including reporting the matter to police: s 148B(5).

2. [44]

   Section 148B contained, in subs (6)(a)-(c), the various immunities from liability now found in s 29(1)(a)-(c), and further provided:

3. [45]

   In s 148B, “‘court’, except in subsection (7)(d), means any court”: s 148B(1). The reference in subs (7)(d) to “proceedings before a court, within the meaning of s 81B,” was to proceedings brought before a children’s court in relation to a neglected child where the complaint alleged the child had been ill-treated, exposed, or assaulted: s 81B(2). Section 81B permitted the court to take into account a statement or document which would be inadmissible in evidence.

4. [46]

   It may thus be seen that 40 years ago, dealing with notifications of child abuse, protection was granted to the person making the notification. Evidence of the notification was only admissible in what would now be described as care and protection proceedings in a children’s court, or in proceedings brought against a person in relation to the exercise of functions under the Child Welfare Act itself. Otherwise the prohibitions extended to “any court”.

5. [47]

   Although there was no express protection of the identity of the notifier under the Child Welfare Act, at least in civil proceedings brought against a party investigating such a complaint, there was a general law immunity granted in the public interest to preserve the anonymity of informants similar to that allowed to police informers: D v National Society for the Prevention of Cruelty to Children [27] (D v NSPCC).

6. [48]

   In this State, D v NSPCC was followed and applied in criminal proceedings in Cain v Glass (No 2). [28] McHugh JA (with whom Kirby P agreed), having set out the justification for the rule given by Lord Diplock in D v NSPCC, continued at 247D:

7. [49]

   Section 22 of the Children (Care and Protection) Act 1987 (NSW) (the 1987 Act) was in substantially the same terms as s 148B. Section 22(1) of the 1987 Act provided that a person who formed the belief upon reasonable grounds that a child “has been, or is in danger of being, abused” or is “in need of care” may notify the Director-General of the Department of Youth and Community Services of that belief. Subsections 22(2)–(4) required certain persons to make such a notification to the Director-General if they had “reasonable grounds to suspect that a child has been abused”. Subsections 22(8)–(10) were in the following terms:

8. [50]

   Subsection 22(8)(d) of the 1987 Act restricted the admissibility of “notifications” in any proceedings, subject to the specified exceptions in s 22(9). Significantly, the restrictions on the admissibility of notifications and the power to compel production of notifications under s 22(8)(d) and s 22(8)(e) did not apply in the case of a “charge or allegation … against any person in relation to that person’s exercising any of that person’s functions in pursuance of” the 1987 Act. The legislature had thus directed its attention to whether criminal proceedings would fall within s 22(8)(d) and s 22(8)(e) and had permitted the admissibility and compulsory production of notifications only in limited cases.

9. [51]

   The Care and Protection Act, as originally enacted in 1998, contained a somewhat similar provision to s 22(8)(d) of the 1987 Act. Section 29(1)(d) of the Care and Protection Act provided that a “report, or evidence of its contents, is not admissible in any proceedings as evidence against the person who made the report or any other person”. Section 29(1)(e) was in substantially similar terms to s 22(8)(e) of the 1987 Act. Both s 29(1)(e) and s 29(1)(f) are in the same form today as when originally enacted in 1998.

10. [52]

    However, the phrase “before a court, tribunal or committee” contained in s 22(8)(d) and s 22(8)(e) of the 1987 Act was not included in the equivalent provisions of the Care and Protection Act and, more significantly, the exception provided in s 22(9)(e) of the 1987 Act for a report to be admissible in certain criminal proceedings was removed.

11. [53]

    In the second reading speech introducing the Children and Young Persons (Care and Protection) Bill in the Legislative Assembly on 11 November 1998, the Minister for Community Services made the following remarks: [29]

12. [54]

    Prior to its commencement, s 29 of the Care and Protection Act was amended by Sch 1 of the Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2000 (NSW). Section 29(1)(d) was amended to remove the phrase “as evidence against the person who made the report or any other person” from the provision, and to insert a new exception for “care proceedings” in the Children’s Court. After the amendment, s 29(1)(d) stated that a “report, or evidence of its contents, is not admissible in any proceedings (other than care proceedings in the Children’s Court, or any appeal arising from those care proceedings)”.

13. [55]

    The reason for the amendment was explained by the Minister for Community Services in the second reading speech for the 2000 bill: [30]

14. [56]

    It can thus be seen that, by the 2000 Amendment Act, the legislature had limited the admissibility of reports in evidence to “care proceedings”, which phrase was defined in s 60 of the Care and Protection Act (both in 2000 and now) as “proceedings under” Chapter 5 of the Care and Protection Act.

15. [57]

    Section 29(1)(d) was amended again by the Children and Young Persons (Care and Protection) Amendment Act 2010 (NSW). Section 29(1)(d) remains today in materially the same form as it appeared following this amendment. The explanation for the amendments given in the second reading speech for the 2010 bill was as follows: [31]

16. [58]

    The legislative history indicates that the object of the legislation was to protect persons making a report, either compulsorily or voluntarily, and to thereby facilitate the object of the protection of children and young people. It is clear that in giving effect to this object, the legislature was at all times concerned to specify the type of proceedings in which a report could be used.

17. [59]

    Whilst the 1977 Amendment Act and the 1987 Act permitted reports to be used in a limited class of criminal proceedings, in 1998, the Care and Protection Act departed from a legislative scheme limiting the admissibility of reports based on the type of proceeding, and instead imposed a restriction on the use of reports in proceedings. The exceptions in the Care and Protection Act to the restriction on the admissibility of the reports were then limited by the 2000 Amendment Act, although they were again expanded by the 2010 Amendment Act. That expansion did not include criminal proceedings, and the purpose of the expansion was said in the second reading speech to be to “enable courts to better determine what is in the best interests of a child or young person”.

18. [60]

    All operative forms of s 29(1)(d) have limited the admissibility of risk of significant harm reports by reference to types of proceedings, which have never included criminal proceedings.

(e) construing the Care and Protection Act, s 29(1)

1. [61]

   The text of s 29 and the legislative history of the provision show that the legislative purpose was to protect the identity of the maker of a report of risk of significant harm, in addition to, and to a greater extent than, the contents of the report. The reason for protection of identity identified in the extrinsic materials was the chilling effect that inadequate protection could have on the willingness of people to make reports of child endangerment. Such reports were seen to be critical to the object of ensuring the “safety, welfare and well-being” of children as provided for in s 8 of the Care and Protection Act.

2. [62]

   There are two preliminary issues in relation to the scope and operation of s 29(1) which may arise in some cases but are not raised for present purposes. The first concerns the limitation of the protection to reports made “in good faith”, as set out in the chapeau to the subsection. Issues may arise as to the circumstances in which a party in criminal proceedings may wish to challenge the good faith of the reporter. That is not this case.

3. [63]

   Secondly, the levels of immunity granted with respect to possible proceedings against a reporter for professional misconduct, in defamation, or for malicious prosecution or conspiracy may also be put to one side; they may assume that the identity of the reporter is known or may become known.

4. [64]

   The relevant issues of construction arise with respect to ss 29(1)(d), (e) and (f), and s 29(2). On one view, the order of ss 29(1)(d) and (e) is curious because questions of compulsory production of a report will usually precede questions of its admissibility in proceedings. Thus, an attempt to compel production by the issue of a subpoena or a notice to produce would usually precede a hearing at which evidence is tendered. The reason for the order may be that the question of compulsion to produce was seen to be subservient to the admission of evidence in the substantive proceedings. It may also be that the order of ss 29(1)(d) and (e) was thought appropriate because s 29(1)(e) also deals with giving evidence (by way of examination or cross-examination in court). In any event, the order does not affect the construction of the provisions, each paragraph dealing with “any proceedings”, subject to the qualification in par (d) which excludes from its prohibition five categories of proceedings. The other point of distinction is that s 29(1)(d) focuses upon the report and its contents, whereas s 29(1)(e) focuses upon the recipient of a process seeking production, disclosure (for example, by answers to interrogatories) or the giving of evidence in court.

5. [65]

   In both Re Attorney-General’s Application with respect to s 29(1)(e), and in Hayward v R with respect to s 29(1)(d), it was contended that the exception in subpar (d)(iii) for “proceedings in relation to a child … before the Supreme Court” could include criminal proceedings brought against the abuser of a child. That led Ms Hayward to seek the presentation of the indictment against her in the Supreme Court, rather than the District Court, which would have been the natural venue for the trial. This attempt to bring the case within an exception in s 29(1)(d) was rejected in Hayward v R, the Court holding that the prohibition expressed as applying to “any proceedings” applied to criminal proceedings. It is convenient to identify the reasons for accepting that construction of par (d).

6. [66]

   In some circumstances, such a broad phrase may be read down to exclude civil, criminal, or other categories of proceedings, depending on the context in which it appears. Nevertheless the ordinary and natural meaning of the term “any proceedings” is apt to include all kinds of proceedings before a court and, again depending on context, before other tribunals and bodies which conduct hearings. The specified exceptions reveal the kinds of proceedings which would otherwise fall within the prohibition; they do not support any implied limitations on the breadth of the prohibition.

7. [67]

   The exceptions themselves are carefully confined. Subparagraphs (i), (ii) and (iii) expressly encompass proceedings relating to a child or young person. It is true that the connecting phrase “in relation to” can have a broad or a narrow operation. As was said in Technical Products Pty Ltd v State Government Insurance Office (Queensland), [32] of the words “in respect of”, they “have a chameleon-like quality in that they commonly reflect the context in which they appear.” Further, as French CJ and Hayne J said in Travelex Ltd v Commissioner of Taxation (Cth): [33]

8. [68]

   A child may be involved in proceedings in many ways; he or she may be a party, a witness or simply a person named in the proceedings; context is critical. In s 29(1)(d), the excluded proceedings in subpars (i)-(iii) are all proceedings in which the subject matter is the ongoing welfare and well-being of the child. With respect to subpar (iv), the functions of the Guardianship Division of the Civil and Administrative Tribunal (NCAT) include giving consent to special medical treatment on a child, pursuant to s 175 of the Care and Protection Act, in addition to other functions under the Guardianship Act 1987 (NSW) which may include children. With respect to subpar (v), the Coroners Act 2009 (NSW) confers specific jurisdiction on the coroner in cases involving children:

9. [69]

   It follows that there is a clear genus reflected in the exceptions, being proceedings in which the subject matter in issue is the welfare or wellbeing of the child. That genus is distinct from proceedings in which a person is prosecuted for causing injury or death to a child. Accordingly, the exceptions do not encompass such criminal proceedings. Nor do they support an implication that the general prohibition with respect to “any proceedings” excludes such criminal proceedings.

10. [70]

    The legislature has expressed itself in clear terms that the proceedings in which a report of risk of harm to a child are admissible are those proceedings, and only those proceedings, identified in s 29(1)(d). That intention is confirmed by the legislative history set out above.

11. [71]

    Turning to s 29(1)(e), two critical features should be noted. First, the purpose of the provision is to remove compellability both with respect to production of the document (the report) and with respect to disclosure of its contents in evidence. Secondly, and by way of contrast with par (d), it contains no exceptions. Indeed, while assuming that evidence may be given of the contents of a report (consistently with the exceptions in par (d)), it nevertheless denies compellability. To read an implied limitation into the phrase “any proceedings” in par (e) would not only involve giving the same phrase in closely related provisions different meanings, but would render the relationship between the provisions incoherent.

12. [72]

    Section 29(1)(f) imposes a blanket prohibition on the disclosure of the identity of the maker of a report; it is not in terms limited to proceedings. It provides an exception, understandably, where the maker consents, thereby waiving his or her right to anonymity. Relevantly, it also permits disclosure with leave of a court, the relevant court being identified by reference to “proceedings relating to the report”. That phrase appears to assume, consistently with par (d) that there are classes of proceedings in which the report may be considered.

13. [73]

    The respondent submitted that this language is apt to include the court before which her criminal proceedings are pending. She argued that the question of the admissibility of the report and its contents (in s 29(1)(d)) and the identity of the maker of the report (in s 29(1)(f)) are separate matters addressed in different terms. That submission cannot be accepted. Rather, so far as possible the various provisions in s 29 should be read harmoniously to give effect to the identified legislative purpose of protecting the identity of the maker of a risk of harm report, thereby avoiding the chilling effect that inadequate protection could have on the willingness of people to make reports of child endangerment. The structure of s 29(1), the provisions which precede s 29(1)(f), in particular pars (d) and (e), and those which appear later, in particular s 29(2), demonstrate that “proceedings relating to the report” in which the identity of the maker of a report may be disclosed are those proceedings identified by way of exceptions in s 29(1)(d). It assumes that the report is available to the court, having passed through the gateways of ss 29(1)(d) and (e).

14. [74]

    Proceedings do not “relate to” a document which is not able to be described as part of the subject-matter of the proceeding, and which cannot even form evidence in the proceeding. If the phrase “proceedings relating to the report” refers to proceedings in which the report and its contents may be admitted in evidence, the words “proceedings relating to the report” make sense, but apply only to those proceedings identified in s 29(1)(d). Even when a report is admissible in a proceeding identified in s 29(1)(d), the identity of the maker is only to be disclosed if the court so orders. The court referred to in (f) must be one with jurisdiction over proceedings identified in (d)(i)-(v).

15. [75]

    That conclusion is underlined by s 29(2) which identifies the circumstances in which a court may grant leave under s 29(1)(f)(ii). Section 29(2) requires the court to be satisfied that the evidence, namely the identity of the maker of the report, is of critical importance in the proceedings. It is implausible that the identity of the maker of a report could be of “critical importance” in any proceeding in which the document could play no part.

16. [76]

    In this way s 29(1)(f)(ii) operates coherently within the structure of s 29, but does not confer or permit, by way of exception to its general prohibition on disclosure, a freestanding power for a court in a criminal case to direct disclosure of the identity of the maker of a report of risk of significant harm to a child.

(f) reasoning in Re Attorney-General’s Reference

1. [77]

   In Re Attorney-General’s Reference, the Court applied the principle of legality to read down the phrase “in any proceedings” in s 29(1)(e) so that it “should not be construed so as to preclude the accused in a criminal trial from compelling, by subpoena, production of … reports that are relevant to the issues at the trial”: at [29]. That conclusion is not consistent with the construction of s 29(1) adopted above. However, the construction adopted above is consistent with the reasoning and the decision in Hayward v R.

2. [78]

   Where there are inconsistent decisions involving the construction of legislation, it is necessary to choose between them. The difficulty is not avoided by identifying each decision (and the present proceeding) as involving different statutory provisions. As explained above, it is not possible, consistently with principle, to construe the different elements of s 29 of the Care and Protection Act independently of each other. In these circumstances, it is not necessary for the court to be comfortably satisfied that one decision is wrong in order not to follow it. However, it is appropriate to identify those parts of the reasoning in the non-preferred decision which are not accepted.

3. [79]

   The reasoning of the Court in Re Attorney-General’s Reference involved the following steps. First, the Court acknowledged, with respect to s 29, “that its purpose is to provide protections to persons who make reports in good faith to the [Secretary] concerning children or young persons who are at risk of harm or are homeless”: at [24]. That protection included the protection from disclosure of the identity of persons making reports. However, the Court then noted that the prohibition was “not absolute”, because disclosure could occur with the consent of the reporter, or with leave of a court, pursuant to s 29(1)(f)(ii): at [25].

4. [80]

   The second step addressed the operation of s 29(1)(e), prohibiting the compelled production of reports or the disclosure of their contents. Again, the reasoning noted that the prohibition was not absolute as it did not extend to the “voluntary production of reports or disclosure of their contents”, provided the identity of the reporter was not revealed “except in accordance with s 29(1)(f)”: at [27]. (Whether the assumption as to voluntary production was correct might require consideration of the terms of s 248 of the Care and Protection Act, conferring specific powers on the Secretary to “furnish a prescribed body with information relating to the safety, welfare and well-being of a particular child …”: s 248(1)(a), and see Ch 16A. The issue was not raised in this case and need not be determined.)

5. [81]

   Thirdly, the prohibition on admissibility of a report in evidence provided by s 29(1)(d) was noted as being expressly subject to exceptions: at [27].

6. [82]

   The fourth stage of the reasoning drew these three elements together, leading to what were described as “arbitrary consequences” which might flow in particular cases, depending on whether or not the exceptions were triggered and material released. Thus, it was reasoned, a person who could not compel the production of the report, or disclosure of the identity of the reporter, might nevertheless obtain the report, including the identity of the reporter, if those matters were voluntarily disclosed, possibly in other proceedings: at [27].

7. [83]

   Fifthly, given these arbitrary consequences, and thus that an accused person in a criminal trial might obtain the report and the identity of the reporter, it was held that the legislature had not expressed an intention to abrogate the rights of an accused to a fair trial with unmistakable and unambiguous language, having squarely confronted the potential effects on a fair trial: at [29], [30].

8. [84]

   Finally, although not relied upon to support the reasoning, a further anomaly was identified in par (f) which was said to provide “some confirmation that the present issue was not addressed by the legislature”: at [31]. The reasoning envisaged the possible anomaly that a court might be prevented by s 29(1)(e) from requiring a witness to give evidence of the contents of a report, but could nevertheless, pursuant to par (f), require the witness to identify the maker of the report.

9. [85]

   There are a number of reasons why this analysis should not be accepted. First, it failed to accord the terms of subs 29(1) a coherent reading, based upon the structure and inter-relationship of the various elements. For example, it did not expressly address the particular nature of the exceptions in par (d), nor the ordinary meaning of the phrase “any proceedings” in each of pars (d) and (e). Paragraphs (d) and (e) must be read together to make sense of their respective prohibitions. While, pursuant to (d), the contents of a report are not inadmissible in, for example, care proceedings, nevertheless par (e) prevents a person being compelled to disclose the contents of a report in any proceedings, including the proceedings which are excepted from the inadmissibility principle in par (d). Accepting that, once disclosed in an excepted proceeding, the report may be available to a person in other proceedings, it does not follow that the prohibition on compulsion to produce need be read down.

10. [86]

    To similar effect, reading the provisions together, it is not any court which can grant leave to reveal the identity of the maker of the report, pursuant to par (f), but only the court before which proceedings relating to the report are conducted, namely those proceedings in which the report is admissible, in accordance with par (d).

11. [87]

    Secondly, to identify limits on the scope of the prohibitions does not of itself provide a basis for expanding those limits so as to read the prohibitions otherwise than in accordance with their natural and ordinary meaning. Once it is accepted that the provisions allow for the tendering of reports in some circumstances, and for the identification of the reporter in some circumstances, it does not follow that the consequences for criminal proceedings will be “arbitrary”. Whether an accused person in criminal proceedings has access to witnesses or documents will often depend on the scope of the investigations undertaken by the police and upon the obligation of the prosecutor to provide the results to the accused. There will be circumstances in which materials in the possession of the prosecution, or available to it, are not disclosed. As noted above, that will not uncommonly include information as to the identity of an informant; more generally it will include material subject to public immunity.

12. [88]

    Thirdly, attention to the nature of the specific right, or the aspect of the general system for the administration of criminal justice, said to be impaired is important. It is significant that s 29 is not directed to any aspect of a criminal trial; its effect on a criminal trial is, at the highest, incidental to its purpose. Thus it does not affect the power of a criminal court to take all appropriate steps to prevent an accused being convicted as a result of an unfair trial; nor does it impinge on the power of an appeal court to set aside a conviction so obtained.

13. [89]

    The Criminal Organisation Act 2009 (Qld) conferred power on the Supreme Court of Queensland to make a declaration that a particular organisation was a “criminal organisation”, on the basis of “criminal intelligence” (that is, information relating to actual or suspected criminal activity), which could not be disclosed to the respondent to the application. In Condon v Pompano Pty Ltd [34] the High Court considered a challenge to the constitutionality of these powers and procedural limitations. Two factors were critical in rejecting the challenge. First, as noted by French CJ, “[t]he process is analogous in some respects to that used in the determination of public immunity claims in the exercise of the inherent power of the Supreme Court”: at [78]. Secondly, and relevantly in relation to the criminal trial to be held in the present case, the legislative scheme did not purport to diminish or interfere with the independence and impartiality of the court exercising criminal jurisdiction, nor to diminish its inherent power to address, potentially by way of a permanent stay, proceedings which might constitute an unfair trial.

14. [90]

    Accepting that the principle of legality was engaged, the language of s 29(1)(e), read in its context, and taking into account the legislative history of the section as a whole, cogently demonstrates that the legislature intended that the unqualified prohibition on the compelled production of a s 24 report should apply to criminal proceedings. Further, the exception in s 29(1)(f)(ii) to the protection of the identity of the maker of a report was limited to “proceedings relating to the report”, being those proceedings specifically identified by the legislature in s 29(1)(d). The legislature has chosen to override any interest an accused person may have in ascertaining the identity of the maker of such a report, so as to protect the interests of vulnerable children as a class.

15. [91]

    For these reasons, Re Attorney-General’s Application should not be followed.

Conclusions

1. [92]

   The legislature was concerned to specify in s 29(1)(d) of the Care and Protection Act the types of proceedings in which a report or the content of a report could be admitted in evidence. The clear wording of s 29(1)(e) forbids the use of compulsory process in “any proceedings” to compel production of a report of a risk of harm to a child, and the giving of evidence about the contents of a report. To imply an exception for criminal proceedings against a person accused of mistreating a child would be to subvert the clear and uncontested purpose of the section. The principle of legality does not require such an implication.

2. [93]

   At all times since its enactment, s 29(1)(f)(ii) has referred to “proceedings relating to the report”, in contradistinction to the expression “any proceedings” used in s 29(1)(e). The words of limitation in s 29(1)(f)(ii) should be understood by reference to the legislative scheme disclosed in pars (d), (e) and (f) to describe and define the relevant proceedings. The words of limitation in subpar (f)(ii) must relate to those proceedings identified by the legislature in s 29(1)(d), being ones where the report may be admissible in evidence. Those proceedings do not include a criminal trial.

3. [94]

   That conclusion is underpinned by the terms of s 29(2) which provide that before making an order under s 29(1)(f)(ii) the Court must be satisfied that evidence of the identity of the maker of a report is of critical importance in the proceedings and that “failure to admit it” (in evidence) would cause prejudice to the proper administration of justice. That conclusion is only capable of being reached in a case where the report itself is admissible in evidence. Any wider application would not be a coherent application of the provision.

4. [95]

   Accordingly, the criminal proceedings before the primary judge are not “proceedings relating to the report”, within the meaning of s 29(1)(f)(ii). The primary judge had no power to order the Secretary to identify the maker of a report under s 29(6), nor to produce the unredacted reports, nor to provide information from which the identity of that person could be deduced. The Notice of Motion dated 1 August 2018 should have been dismissed.

5. [96]

   It was also submitted on behalf of Ms Hayward that it would be an inappropriate fragmentation of the criminal trial for this Court to intervene at this stage under s 69 of the Supreme Court Act 1970 (NSW). Whilst in principle the fragmentation of a criminal trial should be avoided if at all possible, the present case was one involving starkly inconsistent decisions of the Court of Criminal Appeal. Resolution of the inconsistency in approach disclosed in the two appellate decisions concerning an important aspect of the regime for child protection and safety in NSW was a sufficient basis for this Court to intervene.

6. [97]

   For these reasons the Court made orders granting the declaration sought by the Secretary and dismissing the respondent’s motion.