DRJ v Commissioner of Victims Rights

1. [1]

   BELL P: I agree with the orders proposed by Leeming JA and the reasons for those orders.

2. [2]

   MEAGHER JA: I agree with Leeming JA.

3. [3]

   LEEMING JA: By amended notice of motion dated 25 June 2020, the five applicants seek orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground set out in s 8(1)(c) of that Act. The main relief sought is orders preventing the publication of their names and requiring reference to them to be by pseudonyms. For the reasons which follow, such orders should be made.

Background

1. [4]

   The applicants are five women of Yazidi ethnicity who say that in 2014 they were subjected to a series of acts of violence at the hands of an Australian man. The acts of violence are said to have occurred in Syria and Northern Iraq. The man had spent some four years in an Australian gaol following a guilty plea to a terrorism-related charge before leaving Australia in 2013. There are reports that he has been killed, although this is not established definitively.

2. [5]

   The only connection with New South Wales is that the Australian man who is said to have committed acts of violence in 2014 lived in the State until 2013. The appellants have never been to Australia. Each now resides in countries which have accepted them as refugees.

3. [6]

   In July 2018, the applicants’ London-based solicitor, Ms Yasmin Waljee, the international pro bono director of Hogan Lovells International LLP, applied on their behalf for recognition payments and counselling under the Victims Rights and Support Act 2013 (NSW). The application was promptly dismissed, on the basis that none of the acts occurred in New South Wales. Applications for internal review by a delegate of the Commissioner were dismissed on the same basis in November 2018.

4. [7]

   In December 2018, the applicants applied for administrative review by NCAT pursuant to s 51 of the Victims Rights and Support Act. The application forms disclosed their names and addresses, but stated that the latter were confidential. It seems that at some stage in the next three months, an order was made by NCAT pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). The terms of that order, and the basis for it, are not disclosed by the materials in this Court. Its effect was to identify the applicants by the initials used in this proceeding.

5. [8]

   NCAT, constituted by Deputy President Cole DCJ, dismissed the applications: DRJ v Commissioner of Victims Rights [2019] NSWCATAD 195. Part of the reasoning was that the acts of violence must have occurred in New South Wales in order for the Victims Rights and Support Act to apply.

6. [9]

   There is a dispute between the parties as to whether an appeal lies from NCAT’s determination. It is unnecessary to say anything about that issue, because the applicants have filed a summons invoking this Court’s supervisory jurisdiction, alleging error of law on the face of the record by NCAT, and it is accepted that the applicants’ contention – that the Victims Rights and Support Act is available – can be determined by that means. In accordance with s 48(1)(a)(vi) of the Supreme Court Act 1970 (NSW), the summons was assigned to the Court of Appeal, and listed for hearing on 11 June 2020.

The initial applications for non-publication orders

1. [10]

   A draft notice of motion and an affidavit made by a Sydney-based solicitor were supplied to the Court the evening before the hearing. The notice of motion did not specify the basis of the order. The affidavit in support identified the applicants’ claims, that the perpetrator was reported to have been killed but that his death had not been confirmed, and then stated on the strength of what he had been told by Ms Waljee that the applicants had been relocated to two different countries under refugee programmes, that all had the benefit of state protection, and that:

2. [11]

   The Commissioner, appropriately, neither opposed nor consented to the application.

3. [12]

   At the outset of the hearing on 11 June, members of this Court advised that the application in its present form would fail, but that the Court would receive further material, if available, to support the application. It should be explained why the Court formed that view.

4. [13]

   As will be seen below, the question is, having regard to the importance of safeguarding the public interest in open justice, is it necessary to protect the safety of the appellants to make an order preventing the publication of their names? The only basis advanced was the potential for reprisals from the alleged perpetrator.

5. [14]

   If, as seems likely, he is dead, no necessity is made out.

6. [15]

   Alternatively, if he is alive, there is no reason to doubt that he already knows their names. There is nothing in the evidence to suggest that the applicants have changed their names since leaving Iraq and Syria. If no order were made, then the perpetrator might learn from the judgment of this Court that the five women are alive, have been granted State protection by other countries, and have applied for recognition payments and counselling from the State of New South Wales on the basis of his acts of violence upon them in Syria and Iraq.

7. [16]

   There is nothing to suggest any increased risk of reprisals by the man, if he is alive, would be occasioned by not making the order. If the applicants are presently at risk of further acts of violence at his hands, it is hard to see that anything which will emerge from this appeal would materially affect that risk. The only question which arises on this summons is the purely legal question whether the Victims Rights and Support Act applies where the act of violence is committed by a former resident of New South Wales upon persons overseas. There will be no occasion to refer to any facts beyond those set out at the outset of these reasons.

8. [17]

   It follows that, on the material originally put forward, it was not shown that an order was “necessary” to protect the applicants’ safety.

9. [18]

   However, the Court recognised that there might be other ways of advancing a claim under the Court Suppression and Non-publication Orders Act. The Court also pointed out the need to identify with precision the information the subject of the order, the basis for making it and its duration, and invited the applicants to renew their application if so advised.

10. [19]

    A few days later, the same material was resupplied, and the Registrar gave the applicants a third opportunity to attend to the requirements of the Act.

11. [20]

    On 25 June 2020, a further affidavit made by an Australian solicitor was supplied, together with submissions signed by senior counsel. The new material provides a proper basis for the making of the principal orders sought. Before turning to that material, it is convenient to summarise the statutory regime and relevant principles.

Applicable legislative provisions and principles

1. [21]

   There is a significant difference between determinations by the Commissioner’s delegates and by NCAT on administrative review, on the one hand, and judgments of courts on the other.

2. [22]

   The initial application to the Commissioner, and the internal review by the Commissioner’s delegate, were purely administrative applications and decisions. There was no obligation to publish details of the applications or their refusal, and every expectation that the applications and their outcome would not be published.

3. [23]

   The application for administrative review by NCAT was also an application within the executive branch of government. However, consistently with its status as the peak tribunal for external merits and administrative review of much government decision-making, many of NCAT’s determinations are made public. That being so, s 64 of the Civil and Administrative Act 2013 (NSW) confers power to prohibit or restrict the disclosure of applicants’ names whenever the Tribunal is satisfied that it is desirable to do so. Section 64 is significantly different from the regime established by the Court Suppression and Non-publication Orders Act – the “sharp contrast” was noted in Misrachi v The Public Guardian [2019] NSWCA 67 at [13].

4. [24]

   It is to be firmly borne in mind that an application for merits review in a State tribunal is quite different from commencing civil proceedings in the Supreme Court. When the applicants commenced proceedings in the Supreme Court, the principle of open justice was engaged, as was noted in Tilley v Children’s Guardian [2017] NSWCA 174 at [46]. Open hearings are a hallmark of curial determination of proceedings. By way of recent examples, in Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 at [44], French CJ, Hayne, Kiefel, Bell and Keane JJ said in rejecting an application that the prejudice to an accused in the form of giving evidence about his defence in open court might be cured by closing the court:

5. [25]

   In HT v The Queen [2019] HCA 40; 93 ALJR 1307 at [82], Gordon J summarised the position:

6. [26]

   In contrast, many hearings in NCAT take place in ways which are not open to the public. Sometimes this is because of the nature of the jurisdiction (for example, proceedings in the Guardianship Division). But more generally, NCAT may determine any application for leave on the papers. NCAT may also make an order dispensing with a final hearing if, after giving the parties an opportunity to make submissions about doing so, it forms the view that the issues can be adequately determined in the parties’ absence: Civil and Administrative Tribunal Act, s 50(2).

7. [27]

   The important role of public and professional scrutiny of curial proceedings explains the significant difference between the powers in s 64 of the Civil and Administrative Act 2013 and the Court Suppression and Non-publication Orders Act. The latter provides in s 6 that:

8. [28]

   Section 7 confers a power to make suppression and non-publication orders, but it must be read with s 8, which is as follows:

9. [29]

   It will be seen that an order may only be made if the Court considers it to be “necessary”, a term to which further reference will be made below. “Safety” in s 8(1)(c) includes psychological safety, including the aggravation of a pre-existing mental condition: AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [59].

10. [30]

    The applicants submitted that “The principle of open justice under s 6 does not need to be considered if one of the grounds in s 8 is established”. That submission cannot be accepted.

    1. (1)

       First, s 6 imposes an obligation upon the Court, in unambiguous language, reinforcing the position at common law. There is nothing in the language of s 8 to entitle a court to disregard that obligation.

    2. (2)

       Secondly, if there were any doubt about it, it is resolved by s 8(1)(e), which proceeds on the basis that the public interest in open justice is not disregarded, but rather, needs to be substantially outweighed if that paragraph is to be satisfied; see Misrachi at [11].

    3. (3)

       Thirdly, s 12(2) requires the duration of an order to be limited “for no longer than is reasonably necessary to achieve the purpose for which it is made”. That limitation reflects the ongoing importance of safeguarding the public interest in open justice.

11. [31]

    The applicants cited Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 at [9] and [42] as the only support for the submission. Neither paragraph supports the proposition. Each is addressed below.

12. [32]

    In the first of the paragraphs relied upon, Bathurst CJ (with whom Whealy JA agreed at [106]) said:

13. [33]

    The Chief Justice expressly acknowledged that safeguarding the public interest in open justice would be taken into account when one of the grounds in s 8 was made out, although noted that its importance would vary depending on the order.

14. [34]

    Reliance on paragraph [42] seems to be an error. It may be that the reference was intended to be made to [48], in the reasons of Basten JA, as follows:

15. [35]

    The “broader concept of the administration of justice” to which Basten JA referred in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim at [48] was a reference to the view expressed by Bowen CJ in Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 134, writing of the protection of confidential information, that:

16. [36]

    It is clear that some species of litigation are inimical to the notion that anything that occurs in a court should be publicly available. Injunctions to prevent publication of confidential information, or a trade secret, or disputes as to privilege, are examples.

17. [37]

    Further, it is clear that the interests to which the Court may have regard when determining an application for a non-publication order include those beyond the immediate litigation. Orders which, if not made, will deter future applicants from coming forward are an example.

18. [38]

    However, once again, none of this detracts from the proposition that what the Parliament has styled “a primary objective of the administration of justice” is to be taken into account even if one of the paragraphs in s 8 is made out.

19. [39]

    The present case is removed from the examples mentioned above. The application of ordinary principles of open justice is not in itself inimical to the right sought to be vindicated in the litigation, namely, the bringing of civil proceedings seeking judicial review of the Commissioner’s refusal of applications for money from the Commissioner for recognition payments and counselling.

20. [40]

    The onus lies on the applicants to demonstrate that an order is “necessary”. The passage from Gordon J’s judgment in HT v The Queen reproduced above refers to the principles at general law using that term. The same word, in s 50 of the Federal Court of Australia Act 1976 (Cth), was explained in Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]-[31] thus:

21. [41]

    In Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27] Bathurst CJ and McColl JA applied that passage to the exceptions based on necessity in s 8 of the Act. Their Honours expressly identified the legislative intention that such orders should only be made in exceptional circumstances. Further consideration of the word “necessary” may be found in Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97 at [22]-[26] and AB (A pseudonym) v R (No 3) at [55]-[58], which need not be summarised in these reasons.

22. [42]

    An applicant for an order under the Court Suppression and Non-Publication Orders Act needs to identify the paragraph or paragraphs in s 8 on which he or she relies, the terms of the order sought, and its duration. That is important, not least, because the order is required explicitly to specify each of those matters. The ground is required to be specified by s 8(2). The information to which the order applies is required to be specified by s 9(5). The order’s duration is required to be specified by s 12(1).

23. [43]

    Section 12(2) imposes an additional duty upon the Court:

24. [44]

    Subsection 12(3) provides that the period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

25. [45]

    Section 12 is an important provision. Indeed, this Court adverted to the possibility that failing to specify a period during which the order applied might produce the result that the offence created by s 16 of contravening an order cannot be committed, at least if the order was made by an inferior court: Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245 at [10], [12] and [86]-[87].

26. [46]

    There have been cases where orders under the Act have been made “until further order”. That is what the applicants seek.

27. [47]

    I am not aware of any case where reasons have been given reconciling an order in force “until further order” with the obligations imposed by the statute. It is far from clear whether that is consistent with the Act. The obligation to “specify” the duration of an order is difficult to reconcile with an order operating until further order. And the obligation to ensure that the order operates for no longer than is reasonably necessary is likewise difficult to reconcile with an order that remains in place indefinitely until it is reviewed. A better approach is reflected in AB (A pseudonym) v R (No 3) at [119], where an order was made with a duration of 20 years.

28. [48]

    There may be cases where it is genuinely impossible to identify a time frame for the order to operate. That is not the present case. One possibility (based on what was suggested by Brereton J in Rinehart v Welker [2011] NSWSC 1094 at [22] about an order remaining in place until the vesting of the trust or the death of the defendant, whichever was earlier) is for the order sought by the applicants to apply until the day after the last survivor of them dies. However, in accordance with the obligation in s 12(2), a shorter time frame can and therefore should be imposed.

29. [49]

    The proceedings commenced by the applicants were commenced some two years ago. All that has been determined to date is the jurisdictional point. It may be that the applicants are successful, and the applications fall to be assessed on their merits, a process which might in turn lead to further reviews, but even so there is no reason to doubt that one way or another, the proceedings should be completed within 3 years of today. (If that turns out not to be so, a further application can always be made.)

30. [50]

    This Court’s decision in respect of the summons will be delivered later this year, it will be made available on CaseLaw, and it will not, consistently with the order, disclose the applicants’ names. When in 3 years time the order expires, this decision will not change its form. All that will occur is that, in theory, an application might be made to recover the file from storage. Even then, by reason of what is to occur (as to which see below), the identities of the applicants would not be ascertainable.

The resolution of the current application

1. [51]

   The further affidavit supplied on 25 June 2020 relies on s 8(1)(c). It is said that the countries in which the applicants now live have put in place regimes preventing disclosure, inter alia, of arrival dates or locations of Yazidi women. It is said that orders are necessary to avoid risks to the psychological and physical safety of the appellants. There is plausible evidence that all the appellants suffered psychological trauma, and that the process of providing statements in 2017 was traumatising for them. All of that may be accepted, but it is not especially to the point. The statements were made years ago, in support of their original application. There is nothing in evidence to indicate that the disclosure of the applicants’ names in 2020, in a decision on the summons filed on their behalf following three rejections of their applications, and years after statements were taken from them, would cause any trauma.

2. [52]

   However, there is further evidence. There is evidence from a psychologist based in Iraq expressed in generalised terms of the harm to Yazidi women who have escaped from ISIL captivity, and the potential harm to relatives still in captivity. That letter does not purport to be based on any familiarity with the individual circumstances of any of the applicants. The same may be said of a letter from a senior government official in one of the countries to which at least one of the applicants has relocated to the effect that the identities of all Yazidi women have been kept private, and that “[a]lmost all Yazidi survivors make use of their right to remain anonymous” when testifying as witnesses.

3. [53]

   It is not necessary to determine what, if anything, may safely be extrapolated from the general statements. That is because there is also evidence from a “psychosocial” expert who met four of the applicants, which is plausible and which should be accepted, that if the appellants’ identities became known with the Yazidi community, that would have serious traumatic effects upon them, and might lead to a stigma within the community. Further, there is evidence that the applicants fear that disclosure of their names might lead to acts of intimidation and retaliation on the part of supporters of ISIL.

4. [54]

   I am satisfied that it is necessary in order to protect the safety of the applicants for their names not to be published for a period of 3 years, a time frame within which it may confidently be expected that the litigation and the underlying applications for recognition payments and counselling will be resolved.

5. [55]

   The amended notice of motion also sought orders that pages 71-498 of the White Folder be treated as confidential. Those documents are the original statements of the applicants, their applications and submissions in support to the Commissioner at first instance and on internal review, the determinations at first instance and on internal review, and their applications to NCAT. None of those documents is necessary in order to determine the only issue raised on the summons, which is whether there is error of law on the part of NCAT in dismissing the application for administrative review; indeed, it is difficult to see how any are even relevant. The preferable course is to remove those pages from all copies of the documents supplied to the Court, and for them to be securely destroyed. That will shortly occur. The result is that none of the material on the Court’s file will disclose the names of any of the applicants.

6. [56]

   The Court should make the following orders:

   1. (1)

      Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the applicants be referred to as DRJ, DRK, DRL, DRM and DRN, respectively, until 8 July 2023.

   2. (2)

      Order (1) above is made on the basis that it is necessary to protect the safety of the applicants.

   3. (3)

      The Court notes that pages 71-498 of the White Folder will be securely destroyed.