Hayward v R

BATHURST CJ: This is an application for leave to appeal brought pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) from an order of a judge of the Common Law Division of the Supreme Court of New South Wales, which remitted certain proceedings to the District Court of New South Wales. The proceedings were commenced on indictment against the applicant for offences concerning the physical abuse of a young boy while he was living at the applicant’s house in 2014.

The relevant charges involved detaining a child in company with intent to obtain an advantage, contrary to s 86(2)(a) of the Crimes Act 1900 (NSW), causing a child to take poison or a noxious thing with intent to injure or cause distress or pain, contrary to s 41 of the Crimes Act 1900 (NSW), assault in company causing actual bodily harm to a child, contrary to s 59(2) of the Crimes Act 1900 (NSW), and inflicting grievous bodily harm to a child while reckless as to causing actual bodily harm to that child, contrary to s 35(1) of the Crimes Act 1900 (NSW). The victim’s mother and another person have pleaded guilty to similar offences and have agreed to give evidence against the applicant.

An indictment in respect of the charges was originally presented in the District Court in 2014, but a separate indictment was later presented in the Supreme Court following the grant of a conditional exemption under s 128(2) of the Criminal Procedure Act 1986 (NSW) in 2017. The application for an exemption was instigated by the applicant and was facilitated, but not supported, by the Director of Public Prosecutions.

The ground on which the application for an exemption was made was that the applicant asserted that certain material voluntarily produced by the Department of Family and Community Services (DFACS) in response to a subpoena would be inadmissible in the proceedings before the District Court, but would be admissible in proceedings before the Supreme Court. The material which the applicant asserted would be inadmissible in the District Court included reports made to DFACS and risk assessments made by DFACS relating to the victim, the victim’s mother and certain other children, with the names of the persons who made the reports redacted (the subpoena material). The applicant asserted that the subpoena material would be inadmissible in the District Court due to s 29(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act), but would be admissible in the Supreme Court due to an exception in s 29(1)(d)(iii) of the Care Act.

The exemption under s 128(2) of the Criminal Procedure Act 1986 (NSW) was granted on the condition that, if it was determined at a preliminary hearing that the evidence was inadmissible in the Supreme Court, then the parties would consent to the indictment being withdrawn and a further indictment presented in the District Court.

The primary judge held that the subpoena material was inadmissible in the proceedings in the Supreme Court due to s 29(1)(d) of the Care Act. He rejected the contention of the applicant that the exception in s 29(1)(d)(iii) permitted the evidence to be admitted in the Supreme Court. Accordingly, he made the order remitting the proceedings to the District Court from which the application for leave to appeal is brought.

It was not in dispute that the order remitting the proceedings to the District Court was an interlocutory order to which the provisions of s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) applied. As the question involved is of some general importance, leave to appeal should be granted.

The objects of the Care Act are set out in s 8 in the following terms:

Part 2 of Chapter 3 of the Care Act deals with “reports”. Section 23(1) defines circumstances in which a child or young person is said to be “at risk of significant harm”. Section 24 provides that a person “who has reasonable grounds to suspect that a child or young person is … at risk of significant harm may make a report to” the Secretary of DFACS, while s 26 provides that such a “report” may be made anonymously. Section 27 provides for mandatory reporting for certain persons as follows:

The critical section for present purposes is s 29. So far as it is relevant, it provides as follows:

A provision of a similar nature to s 29 of the Care Act was first introduced as s 148B of the Child Welfare Act 1939 (NSW), inserted by schedule 5 of the Child Welfare (Amendment) Act 1977 (NSW) (the 1977 Amendment Act). 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. Sections 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”. Sections 22(8)–(10) were in the following terms:

Section 22(8)(d) of the 1987 Act restricted the admissibility of these “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 their admissibility and their compulsory production only in limited cases.

The Care 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 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.

However, the phrase “before a court, tribunal or committee” contained in s 22(8)(d) and s 22(8)(e) of the 1987 Act were not included in the equivalent provisions in the Care 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.

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:

Prior to its commencement, s 29 of the Care Act was amended by schedule 1 of the Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2000 (NSW) (the 2000 Amendment Act). 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)”.

The reason for the amendment was explained by the Minister for Community Services in the second reading speech for the Children and Young Persons (Care and Protection) Miscellaneous Amendments Bill in the Legislative Assembly on 21 June 2000:

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

The present form of s 29(1)(d) resulted from amendments made by the Children and Young Persons (Care and Protection) Amendment Act 2010 (NSW) (the 2010 Amendment Act). The explanation for the amendments in the second reading speech for the Children and Young Persons (Care and Protection) Amendment Bill in the Legislative Council on 25 November 2010 was as follows:

Two matters can be seen from this review of the current legislation and its history. First, 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. Second, the legislature was, at all times, concerned to specify the type of the proceedings in which a report could be used.

The 1977 Amendment Act and the 1987 Act permitted reports to be used only in a limited class of criminal proceedings. In 1998, the Care 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 Care Act’s exceptions 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 final 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”.

Section 29 has been considered on two occasions prior to the present proceedings. The decision of the Supreme Court in Director-General, Department of Family and Community Services v FEW [2013] NSWSC 1448 (Director-General v FEW) concerned a subpoena issued to the Director-General of DFACS requiring the production of various unredacted reports made to DFACS relating to a child in a trial for the murder of that child. The decision concerned the operation of s 29(1)(e) of the Care Act.

The Director-General contended that s 29(1)(e) was absolute in its terms, in that they were entitled to “resist production of the report, or a copy or extract from it, in its entirety irrespective of whether the report identifies the reporter”. Fullerton J stated the following at [20]:

Her Honour concluded at [21] that such a construction “is in conflict with a primary and established principle of legality which obliges the Parliament to make clear its intention when removing, curtailing or wholly abrogating a fundamental right, freedom or immunity”. Her Honour stated at [22] that s 29(1)(e) needed to be construed “subject to the overriding principle of the right of an accused person to a fair trial, with all of the substantive and procedural protections that are inherent in achieving that objective in the public interest”. Her Honour concluded that s 29(1)(e) should be read down as “preventing from production under the subpoena the contents of the reports … but only insofar as those reports, or the contents thereof, disclose or tend to disclose the identity of the person who made the report”.

Her Honour concluded at [24] that this construction enabled s 29(1)(d) of the Care Act to have its “intended statutory operation”. Her Honour stated that the construction contended for by the Director-General would “frustrate, or would tend to frustrate, the intention of the Parliament to extend the class of proceedings in which a report might be admitted”, since it could not be denied that “a report would necessarily be available to the parties in at least some of those proceedings” when regard was had “to the diverse types of proceedings referred to in ss 29(1)(d)(i)–(iv)”.

Her Honour also came to the view that the words “in relation to”, which were “generally regarded as words of particularly wide import”, should be treated as including proceedings in the Supreme Court where a child is a murder victim. Her Honour stated at [25] that there was nothing in the words of s 29(1)(d) or its context which would require a more confined meaning.

In the proceedings before Fullerton J, the accused was acquitted. Subsequently, the Attorney-General applied to the Court of Criminal Appeal under s 108(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to determine the question of whether Fullerton J’s construction of s 29 of the Care Act was correct: The Application of the Attorney-General for New South Wales dated 4 April 2014 (2014) 246 A Crim R 150; [2014] NSWCCA 251 at [3] (Attorney-General’s Application).

The Court held that her Honour’s construction was correct. Macfarlan JA, with whom Beazley P and Bellew J agreed, placed considerable emphasis on the principle of legality. Referring to X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, his Honour stated at [20] that “the right of every accused person to a fair trial according to law is well-established”, and that this right “encompasses not only the trial itself but the activities and processes which occur prior to and in preparation for trial”. Referring to Alister v The Queen (1983) 154 CLR 404; [1984] HCA 85, his Honour stated at [22] that “the ability for an accused person to seek access to relevant (and potentially decisive) material for the purpose of defending criminal charges brought against him or her is an aspect of the overarching right to a fair trial”.

His Honour stated at [24] that the purpose of s 29 is to provide protection 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”. His Honour stated at [25] that this object was particularly addressed by s 29(1)(f), but noted that this protection was not absolute.

His Honour stated at [27] that, whilst s 29(1)(e) precluded a person from being compelled to provide reports, it did not preclude voluntary disclosure of reports or their contents, provided that the identity of the reporter was not disclosed. His Honour stated that, “[i]f, as its terms suggest, s 29(1)(e) precludes an accused person from compelling the Director-General to produce reports at the accused’s trial, the outcome of the trial could be significantly influenced by a decision of the Director-General as to whether or not to produce the reports voluntarily”. His Honour also stated that other, similarly arbitrary results could follow since, if parties to proceedings tendered reports of which they had possession, then the other parties to the proceedings would be provided with copies of the reports even in circumstances where their production could not be compelled.

In these circumstances, his Honour reached the following conclusions:

The Court did not address Fullerton J’s conclusion that proceedings on an indictment for murder in which a child was the victim fell within the meaning of the phrase “proceedings in relation to a child or young person” in s 29(1)(d) of the Care Act.

The primary judge commenced his judgment by referring to well-known principles of statutory interpretation. He then noted that the judgment of this Court in Attorney-General’s Application was not a binding precedent on the construction of s 29(1)(d) of the Care Act.

The primary judge accepted that the judgment of Fullerton J on the construction of s 29(1)(d) of the Care Act was entitled to the “utmost respect”, referring to Undershaft (No 1) Ltd v Federal Commissioner of Taxation (2009) 175 FCR 150; [2009] FCA 41 at [68]-[88]. However, he stated that he had reached a different conclusion on the construction of the provision. He noted that this was “most likely” because her Honour “was not assisted with submissions to the extent that occurred on the present occasion”.

The primary judge referred to the Crown submissions that “the right to a fair trial is a fair trial according to law”. He stated that, prior to the 2010 Amendment Act, there was “clear and unmistakable language” to the effect that the “reports” referred to in s 29 of the Care Act were not admissible in criminal proceedings. He stated that whether there was “clear and unmistakable language abrogating an aspect of an accused’s right to a fair trial” after the changes made by the 2010 Amendment Act depended upon the construction of s 29(1)(d).

The primary judge accepted that the phrase “in relation to” has often been given “wide import”, but stated that it was unclear why only the Supreme Court and the Civil and Administrative Tribunal would have been included in the exceptions introduced by the 2010 Amendment Act if the phrase “in relation to” was intended to cover all proceedings which involved children.

The primary judge stated that there was “some force in the Crown’s contention that ‘proceedings in relation to a child or young person’ in s 29(1)(d)(iii) is not a description of criminal proceedings where a child or young person is the alleged victim, but is a description of proceedings which call for a determination concerning the welfare of a child or young person”. However, he stated that he did not regard this as determinative.

The primary judge, referring to the second reading speech for the Bill which became the 2010 Amendment Act, which I have set out at [20] above, stated that it was clear that the amendments made by the 2010 Amendment Act were “not intended to allow for admissibility in all types of proceedings in the Supreme Court”. He stated that the second reading speech made it clear that the proceedings where reports were not inadmissible were intended to be “child welfare proceedings”.

The primary judge stated that this intention explained the grouping of the different types of proceedings in s 29(1)(d). He pointed out that s 29(1)(d)(i) is concerned with “care proceedings in the Children’s Court”, that the proceedings referred to in s 29(1)(d)(ii) may concern “consideration and determination of issues concerning the care and welfare of children”, and that s 29(1)(d)(iii), so far as it concerned the Supreme Court, recognised that the Court has supervisory jurisdiction in relation to the Civil and Administrative Tribunal, as well as its “ancient parens patriae jurisdiction”. He noted that this explained why the Supreme Court and the Civil and Administrative Tribunal are dealt with in the same provision.

In relation to s 29(1)(d)(iv), the primary judge noted that the function of the Guardianship Division of the Civil and Administrative Tribunal includes functions relating to children and young persons under the Civil and Administrative Tribunal Act 2013 (NSW), while the Commissioner of Victims Rights under the Victims Rights and Support Act 2013 (NSW) is concerned with “aspects of the care and welfare of children” where they are victims of crime or children of victims of crime. So far as s 29(1)(d)(v) was concerned, he pointed to the fact that an examination of issues “relating to the care and welfare of a child may from time to time arise in Coronial inquests”.

The primary judge stated that, in these circumstances, the reference to the Supreme Court in s 29(1)(d)(iii) was not “a reference to the Supreme Court in all facets of its very wide jurisdiction”. He concluded that criminal proceedings in the Supreme Court did not fall within s 29(1)(d)(iii) “even if the victim of the alleged offence was a child”.

The primary judge stated that the contrary conclusion would lead to what he described as the “absurd result” that reports would be admissible in the Supreme Court but not in other courts where offences against children were more likely to be prosecuted. In these circumstances, the primary judge made the orders in relation to which the application has been brought.

Senior counsel for the applicant submitted that the purpose of s 29 was “to protect persons who make reports” referred to in Part 2 of Chapter 3 of the Care Act. He submitted that this protection was achieved in various ways, such as the protection against professional consequences in s 29(1)(a) and the protections against forms of civil liability in s 29(1)(b) and s 29(1)(c).

He also accepted that s 29(1)(d) extended to protect the contents of the reports themselves. However, he contended that this was not an “end unto itself” but was for the purpose of protecting the person who made the report. He referred to s 29(1)(f), which gave further protection to a person who made a report unless the Court was satisfied that the evidence was of “critical importance” and that “failure to admit it would prejudice the proper administration of justice” pursuant to s 29(2).

Senior counsel for the applicant submitted that what he described as the “balancing” required by s 29(2) was to be contrasted with the position which he attributed to the Crown, that “with no advancement of the purpose behind the provision a person would be restricted from producing evidence in a criminal trial that may have the potential to be determinative of the outcome of those proceedings”. He submitted that a purposive construction pointed away from that position. He also emphasised that s 29(1)(e) did not exclude voluntary production of reports, as had occurred in the present case.

Senior counsel for the applicant also submitted that it was relevant to consider the provisions contained in Chapter 16A of the Care Act. Broadly speaking, Chapter 16A permits the exchange of information between various governmental agencies which have responsibilities for the “safety, welfare and well-being of children or young persons”. However, s 245H expressly provides that Chapter 16A “does not limit the operation” of Part 3 of Chapter 2 of the Care Act.

Senior counsel for the applicant submitted that the provisions in Chapter 16A of the Care Act underscored the point that not only are the protections provided by s 29 not absolute, but that reports are not treated in the same manner as the identity of the persons who made them. He submitted that the object of the provision was not the protection of reports as a distinct object from the protection of the persons who made them.

In dealing with the text of s 29(1)(d), senior counsel for the applicant pointed to the fact that the section did not state that a report had to relate to a child who was the subject of the proceedings in order for the section to apply. He also pointed to the fact that the qualified phrase “proceedings in relation to a child or young person” only appears in s 29(1)(d)(ii) and s 29(1)(d)(iii). He submitted that the reason for the qualification was to provide a “nexus” between a report relating to a child and the otherwise broad jurisdiction of the Family Court, the Supreme Court, and the Civil and Administrative Tribunal.

Senior counsel for the applicant accepted that the phrase “in relation to” must be read in context, but nevertheless submitted that it was a phrase of “wide import”. He submitted that the phrase should be given the meaning attributed to it by Fullerton J in Director-General v FEW at [25]. However, he accepted that the question would ultimately depend on the “nature of the proceedings and the extent and nature of the manner in which the child was affected”.

Both the written and oral submissions for the applicant placed reliance on the principle of legality. It was submitted that the effect of that principle was that what was described as “an aspect of the accused’s right to a fair trial” could only be taken away by “unmistakable and unambiguous” language. Reference was made in the written submissions to the application of the principle of legality by this Court in Attorney-General’s Application at [29]-[30] in concluding that s 29(1)(e) did not abrogate the right to compel production of documents in criminal proceedings with the necessary “irresistible clearness”. It was submitted that the same might be said of s 29(1)(d), and that it could not be concluded that the legislature had “squarely confronted” the abrogation of an “aspect of the accused’s right to a fair trial”.

It was not entirely clear from the written submissions for the applicant whether the principle of legality was relied upon in support of the proposition that the phrase “in relation to” in s 29(1)(d) should be given the broad interpretation given to it by Fullerton J in Director-General v FEW at [25], or in support of the proposition that the phrase “any proceedings” in s 29(1)(d) should be limited to civil proceedings. At the hearing, senior counsel for the applicant clarified that the principle of legality was called in aid of the latter proposition, which he referred to as the “fallback position” if the interpretation of s 29(1)(d)(iii) by Fullerton J were not adopted.

Senior counsel for the applicant also submitted that, if the decision in Attorney-General’s Application was correct and a person could compel the production of reports, then it would lead to an “odd result” if s 29(1)(d) precluded those reports from being admitted in evidence. He said that there was no comfort in the fact that the reports could lead to a “chain of inquiry” which could uncover other admissible evidence because of the protection of the identity of the person who made the report under s 29(1)(f).

In written submissions, the applicant submitted that the primary judge erred in failing to pay proper regard to the decisions in Director-General v FEW and Attorney-General’s Application. The applicant also submitted that the primary judge erred in his reliance on extrinsic material in construing s 29(1)(d). Senior counsel for the applicant emphasised that the task of the Court was to ascertain the objective intention of the legislature, not the subjective intention of the relevant Minister or the members of the legislature who passed the Act.

The Crown submitted that the phrase “in any proceedings” which appears in s 29(1)(d) is unambiguous. It was further submitted that the meaning of the phrase “in relation to” is governed by the context in which that phrase appears. It was submitted that the primary judge was correct in concluding that the types of proceedings listed as exceptions in s 29(1)(d) were “in the nature of child welfare proceedings” and not other proceedings, such as criminal proceedings.

The Crown pointed out that the “immediate context of s 29(1)(d)(iii) also includes the balance of [s 29], in which references are made to matters of a criminal nature”. Reference was made in particular to s 29(4A). The phrase “serious offence alleged to have been committed or done against a child” in that section was contrasted with the phrase “in relation to a child” in s 29(1)(d)(iii). Reference was also made to s 108 of the Care Act, which preserved the jurisdiction of the Children’s Court to hear and determine “any proceedings with respect to a child or young person”, irrespective of whether criminal proceedings were pending against that person or any other person.

The Crown submitted that the construction placed on s 29(1)(d) by the primary judge was confirmed by the legislative history of the provision and the extrinsic material to which I have referred at [11]-[22] above. It was also submitted that, in the context of the present case, the applicant’s approach to the principle of legality extended it beyond its rationale. Referring to X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [89], it was submitted that, as a general principle, a method of trial that is prescribed by the legislature “must be taken to provide a fair trial”, and that “the relevant question to ask is whether the accused has had or will have a trial according to law”. It was also submitted that “legislative regulation of the admissibility of a particular class of evidence for public policy reasons does not abrogate a fundamental right to a fair trial”.

In written submissions, the Crown submitted that it was not strictly necessary for the Court to determine the correctness of the decision in Attorney-General’s Application. It was submitted that a construction of the legislation which enabled the reports made to DFACS to be obtained under subpoena but not admitted in evidence would not constitute an “unworkable anomaly”. It was also submitted that it was “not an uncommon situation that material might be available to a party at trial which may be used as a source of further investigation or to cross-examine a witness, but which could never be adduced in evidence”.

However, at the hearing, the Crown submitted that the Court in Attorney-General’s Application was incorrect in approaching the task of construction of s 29(1)(e) as though the principle of legality was a “starting point”. The Crown also contended that the reliance in that case on what was said by Brennan J in Alister v The Queen (1983) 154 CLR 404 at 451-452; [1984] HCA 85 was misplaced. It was submitted that Brennan J was not asserting that the right to issue subpoenas was an “absolute right” and that a fair trial could not be held without that right.

The Crown submitted that the reliance placed on s 29(1)(f) of the Care Act in Attorney-General’s Application was misplaced because the ability of the Court to grant leave under s 29(1)(f)(ii) to identify the person who made a report is confined to “proceedings relating to the report”, which could only be proceedings of the kinds referred to in s 29(1)(d) in which such a report was admissible.

The principles governing the task of statutory construction are well-established. As was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], the “primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”, with the meaning of the provision to be “determined by reference to the language of the instrument viewed as a whole”. Their Honours also referred to the statement of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.

In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47], the majority emphasised that the “language which has actually been employed in the text of legislation is the surest guide to legislative intention”, but that the “meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”: see also Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. In Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44], the majority emphasised that the “purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction”.

However, as was explained in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34, the text cannot be considered without regard to its context and purpose. The majority stated the principle in the following terms at [14]:

Considerable reliance was placed by the applicant on what has been described as the “principle of legality”. In Potter v Minahan (1908) 7 CLR 277 at 304; [1908] HCA 63 (Potter v Minahan), 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”, quoting from the 4th edition of Maxwell on Statutes. The effect of the principle was described by the majority in Coco v The Queen (1993) 179 CLR 427 at 437; [1994] HCA 15 (Coco v The Queen) in the following terms:

As I indicated at [29] above, the principle of legality was applied by this Court in Attorney-General’s Application in concluding at [29] that s 29(1)(e) “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 trial”, although s 29(1)(f) would continue to require the protection of the identity of a person making a report from production in response to such a subpoena.

Nonetheless, the principle of legality must be applied with care and with regard to the context in which the question of construction arises. That was made clear by Gleeson CJ in Electrolux Home Products, where his Honour made the following remarks at [19]:

In Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, Gageler and Keane JJ, after reviewing the authorities, including Potter v Minahan, Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24, Coco v The Queen, and Electrolux Home Products, explained the principle of legality in the following terms at [313]-[314]:

Their Honours also pointed out at [324] that the “notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused is unsound in principle”. Crennan J agreed with Gageler and Keane JJ at [126], 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”. See also the observations of Basten JA in McElwaine v The Owners – Strata Plan 75975 [2017] NSWCA 239 at [2]-[3].

In this case, the relevant construction of s 29(1)(d) for which the Crown contends is that a report, or evidence of its contents, is not admissible in criminal proceedings in the Supreme Court in which a child is the victim of a murder. Assuming that the decision of this Court in Attorney-General’s Application is correct, this construction would mean that a report, albeit with the identity of the person who made it redacted pursuant to s 29(1)(f), could still be obtained upon issue of a subpoena and its contents could still be used both as a basis for a “chain of inquiry” which could uncover other admissible evidence and for the purpose of cross-examination of witnesses, provided that the report or evidence of its contents was not sought to be admitted.

Even if Attorney-General’s Application was incorrectly decided, it must be remembered that the potential forensic disadvantage to the accused which would result from a report being inadmissible would apply equally to the Crown. While I would not describe the subtraction from the “forensic advantages enjoyed by an accused” as “anodyne” if the Crown’s construction of s 29(1)(d) is correct, the extent of the assistance to be gained from identifying such a subtraction for the purposes of applying the principle of legality must be considered in light of the nature of the “right, freedom or immunity” or “fundamental principle or systemic value” which s 29(1)(d) is said to abrogate or curtail.

In particular, on either view of the correctness of the decision in Attorney-General’s Application, it is difficult to identify any “right, freedom or immunity” which is abrogated or curtailed by s 29(1)(d). The right of an accused person to rely on evidence in their defence is subject to the admissibility of that evidence at trial. It may be for this reason that the applicant submitted that s 29(1)(d) abrogated an “aspect of an accused person’s right to a fair trial” as a “fundamental principle or systemic value” rather than abrogating a particular right of an accused person. However, it may be doubted whether such a “fundamental principle or systemic value” is relevantly abrogated or curtailed by restrictions on the admissibility of evidence, given that “the relevant question to ask is whether the accused has had or will have a trial according to law”: X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [89].

In this regard, the applicant referred to dicta of Brennan J in Alister v The Queen (1983) 154 CLR 404 at 451; [1984] HCA 85 (Alister v The Queen), which was also relied upon by this Court in Attorney-General’s Application. This case concerned the refusal by the Attorney-General for the Commonwealth, on behalf of the Director-General of the Australian Security Intelligence Organisation (ASIO), to produce documents in answer to a subpoena duces tecum, or even to say that such documents existed, on the ground of public interest immunity. The documents within the subpoena related to an undercover investigation by an agent of ASIO, who had pretended to join a conspiracy to commit a crime, which was later the subject of the criminal proceedings in which the subpoena had been issued. A majority held that the judge had erred in refusing to require production of the documents.

Gibbs CJ at 415-416 and Murphy J at 431 concluded that the public interest would not be harmed if it was revealed that the undercover agent had made reports to ASIO and that it was appropriate for the Court to inspect the documents for the purpose of determining whether or not they should be made available to the appellant. Brennan J, the third judge in the majority, stated at 451 that the right of an accused person to compulsory process is “so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law”. However, his Honour did not go further and say that, in all cases concerning claims for public interest immunity, the documents would either be available to the accused or the proceedings stayed. Instead, his Honour made the following remarks at 456:

After inspection of the documents, a majority of the Court held at 469 that, had the documents been produced to the trial judge, after performing the balancing process described in the judgments of the Court between the interests of an accused person and the claim for public interest immunity, he ought to have upheld the claim to privilege made by the Attorney-General for the Commonwealth.

Alister v The Queen was not concerned with an issue of statutory construction. Its relevance in the present circumstances is limited. To the extent that it is relevant, it demonstrates that, even under the general law, an accused person does not have an unqualified right to have evidence which may be relevant to their defence be produced or admitted. In these circumstances, the question remains as to what weight should be given to the principle of legality to constrain what I regard as the relatively clear words of s 29(1)(d). It must be remembered that resolving this question involves determining the manner in which the legislature balanced the public interest in protecting the identity of persons who make reports of child abuse as against the right of an accused person to rely on those reports as evidence in their defence at trial. This is determined by considering the text of s 29(1)(d) in light of its context, including its legislative history, and its purpose.

It is convenient to first deal with what senior counsel for the applicant described as the “fallback position”, namely, that the phrase “any proceedings” in s 29(1)(d) should not be construed as extending to criminal proceedings. There are a number of difficulties with that submission. First, the phrase “any proceedings” in its ordinary meaning is plainly wide enough to encompass both civil and criminal proceedings. Second, and more importantly, in specifying the proceedings in which reports would be admissible in ss 29(1)(d)(i)–(v), the legislature has made an express choice as to the proceedings in which they would be available to be used. Even having regard to the principle of legality, it would be difficult, as a matter of construction, to engraft a further exception on to the phrase “any proceedings” in s 29(1)(d).

A consideration of the legislative history also tends against the proposition that the phrase “any proceedings” in s 29(1)(d) of the Care Act is limited to civil proceedings. I have set out the legislative history at [11]-[22] above. This history demonstrates that, in passing the Care Act in 1998, the legislature excluded the limited class of criminal proceedings in which reports were admissible under s 22(9)(e) of the 1987 Act and directed its mind in subsequent amendments to the precise nature of the proceedings in which reports or their contents would be admissible by ultimately specifying the exceptions in ss 29(1)(d)(i)–(v). These exceptions identified by the legislature did not expressly include criminal proceedings.

In these circumstances, it seems to me that the phrase “any proceedings” in s 29(1)(d) extends to criminal proceedings. To the extent that the principle of legality has any operation in the present case, consideration of the text of the provision and its context, including its legislative history, demonstrates with “irresistible clearness” that the legislature intended to exclude production of reports or evidence of their contents in criminal proceedings. The subpoena material which the applicant sought to admit in the present case is therefore prima facie inadmissible.

It remains to consider whether the exception in s 29(1)(d)(iii) extends to make a report or evidence of its contents admissible in the present proceeding. As was pointed out by the applicant in submissions, the phrase “in relation to”, or the equivalent phrase “relating to”, are words of “wide import”. It was pointed out by Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620; [1961] HCA 35 that such a phrase “is extremely wide but it is also vague and indefinite”, and that “all that a court can do is to endeavour to seek some precision in the context in which the expression is used”. Further, as was pointed out by Brennan CJ, Gaudron and McHugh JJ in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313; [1995] HCA 36, the “closeness of the relationship required by” the phrase must be “ascertained by reference to the nature and purpose of the provision in question and the context in which it appears”: see also the comments of Toohey and Gummow JJ at 330; Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285.

I have dealt with the context and the purpose of the provision when setting out the relevant statutory provisions and their legislative history at [8]-[22] above. It seems to me that, considered in this context, the phrase “in relation to” limits the scope of s 29(1)(d)(iii) to proceedings which affect the legal rights and interests of a child or young person or proceedings which concern the welfare of a child or young person. This construction enables the various exceptions in s 29(1)(d) to operate in a consistent and coherent fashion.

It is self-evident that the “care proceedings in the Children’s Court” referred to in s 29(1)(d)(i) relate to the welfare of a child or young person. Section 29(1)(d)(ii) operates to permit reports or evidence of their contents to be admitted in proceedings in the Family Court relating to the custody and maintenance of a child or young person. The proceedings in the Guardianship Division of the Civil and Administrative Tribunal referred to in s 29(1)(d)(iv) would also concern the rights and welfare of children, whilst the “Coronial inquests” referred to in s 29(1)(d)(v) could involve consideration of the welfare of a child or young person from time to time.

I do not think the phrase “proceedings in relation to a child or young person” is wide enough to include criminal proceedings for the abuse of a child or young person, whether the abuse is sexual or otherwise. This class of proceedings relates to the prosecution of an accused and, if they are found guilty, their punishment. The offence which is the subject of the proceedings may lead to steps being taken for the welfare of a child or young person, but such proceedings do not of themselves concern the legal rights, interests or welfare of a child or young person. Further, the fact that proceedings on sentence for such offences may take into account principles of general or specific deterrence does not, in my view, lead to the conclusion that the proceedings are “in relation to” a child or young person.

Further, a contrary construction would lead to the anomalous situation that reports would be admissible evidence in prosecutions for child abuse in the Supreme Court, but not in the District Court, where such prosecutions are generally conducted. I do not think that this intention should be attributed to the legislature.

In these circumstances, leave to appeal should be granted but the appeal dismissed. The subpoena material which the applicant sought to admit is not admissible in the present proceedings in the Supreme Court.

The Crown invited the Court to conclude that the decision in Attorney-General’s Application was incorrect. That case, unlike the present proceeding, did not directly concern s 29(1)(d) of the Care Act. In these circumstances, whilst I have, with the greatest respect, significant reservations about the approach taken by the Court to the principle of legality and the fact that their Honours did not consider the legislative history and background, it is unnecessary in the circumstances to reach a conclusion that the decision was “plainly wrong”: Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [296]. Although it does mean that a different interpretation is placed on the phrase “any proceedings” in s 29(1)(d) and s 29(1)(e), the two provisions can operate together in a coherent fashion notwithstanding the different interpretations placed on the phrase, as I have indicated at [69] above.

In the result, I would make the following orders:

HOEBEN CJ at CL: I agree with the Chief Justice and the orders which he proposes.

PRICE J: I agree with the Chief Justice.

FULLERTON J: I also agree with the Chief Justice that leave to appeal should be granted and the appeal dismissed. I agree largely for the reasons his Honour has articulated.

Since my judgment in Director General, Department of Family and Community Services v FEW [2013] NSWSC 1448 which concerned the operation of s 29(1)(e) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”), and the decision of the Court of Appeal in The Application of the Attorney-General for New South Wales dated 4 April 2014 [2014] NSWCCA 251 which confirmed the correctness of my construction of that section were relied upon by the applicant as supporting the construction of s 29(1)(d) for which he contended, I would wish to add the following remarks.

As is clear from my decision in FEW, I was not principally concerned with the construction of s 29(1)(d) of the Care Act, although I did refer to what I then considered was the apparent reach of the section in the construction I gave to s 29(1)(e) of the Act, a section which was engaged by the position the Director General of the Department of Family and Community Services took upon being served with a subpoena to produce various unredacted reports relating to the trial of FEW for the murder of a child. I did not consider, nor was I invited by the submissions of the parties in FEW to review, the legislative history of s 29 of the Care Act which is comprehensively summarised in [11]-[22] of the judgment of the Chief Justice, the same analysis that was relied upon by the Crown as respondent to the proceedings in this Court.

The review of the legislative history and the analysis of the current operation of s 29 of the Care Act has informed my agreement with the orders his Honour has proposed in dismissing the applicant's appeal, despite what may appear to be a departure from my reasons for decision as a matter of principle.

Further, as the Chief Justice has pointed out at [33], the Court of Appeal did not address my conclusion that proceedings on indictment for murder in which a child was the victim fell within the meaning of the phrase "proceedings in relation to a child or young person”, the words of the section which were the subject of controversy in the application before this Court.

GARLING J: I agree with the orders proposed by the Chief Justice for the reasons which he gives.