Attorney General of New South Wales v Kereopa (No 3)

1. [1]

   HIS HONOUR: The Attorney General of New South Wales applied for an order extending the status of a person as a forensic patient under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the MHFP Act").

2. [2]

   By notice of motion filed on 28 June 2017 the defendant sought a suppression order, or alternatively a non-publication order, in respect of his name in the interim and final orders and judgments. He also sought an order that his name be anonymised by pseudonym in those orders and judgments.

3. [3]

   On 14 July 2017 I gave judgment and granted the application for an extension order: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 (the primary judgment). The following are my reasons for refusing the defendant's application for a suppression or non-publication order.

Statutory provisions

1. [4]

   The power to make such orders derives from s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the CS&NP Act"):

2. [5]

   The application is made on the grounds set out in s 8(1)(a), (c) and (e) of the CS&NPAct:

3. [6]

   The defendant seeks an order that will have permanent duration and will extend to the Commonwealth: ss 11 and 12 of the CS&NP Act.

4. [7]

   In considering the application it is necessary to bear s 6 of the CS&NP Act in mind:

5. [8]

   In making an interim extension order on 18 April 2017, Davies J made a non-publication order "in respect of the information comprising the evidence given and to be given in the proceedings on the grounds set out in s 8(a), (c) and (e) of the Act until determination of the final hearing". The order was expressly made pursuant to s 10(1) of the Act:

The defendant's submissions

1. [9]

   The defendant submitted that the erosion of his fundamental rights to privacy arising from the operation of certain provisions of Sch 1 of the MHFP Act militated in favour of granting the application.

2. [10]

   The defendant referred to two provisions of Sch 1 of the MHFP Act, cls 17 and 17A. Clause 17 which provides for mandatory disclosure by persons, courts or the Mental Health Review Tribunal of records relating to the behaviour or physical or mental condition of a forensic patient who is subject to a limiting term, as the defendant was. Clause 17A provides for the sharing of "forensic patient information" between Ministers administering the MHFP Act (currently, the Attorney General and the Minister for Mental Health).

3. [11]

   "Forensic patient information" is non-exclusively defined in cl 17A(2) in Sch 1 of the MHFP Act:

4. [12]

   It was acknowledged that the erosion of such rights was a necessary concomitant of providing for the making of applications for an extension of a person's status as a forensic patient. But this came at the expense of the defendant's right to privacy in respect of information that would in all likelihood never be published in the absence of his consent.

5. [13]

   The defendant cited as examples of the types of information that would otherwise not be available for publication without consent:

6. [14]

   The defendant also noted the ratification by Australia of the United Nations Convention on the Rights of Persons with Disabilities in 2008. A respect for privacy of persons with disabilities is provided:

7. [15]

   There have been three cases (of which counsel were aware) in which similar orders as sought here have been refused, but the applications in those cases were largely based on s 162 of the Mental Health Act: Minister for Mental Health v Paciocco [2017] NSWSC 4 (Campbell J); Attorney General of NSW v Huckstadt (No 2) [2017] NSWSC 595 (Adamson J); and Attorney General for the State of New South Wales v Boyce (No 2) [2017] NSWSC 648 (Wilson J). The defendant in this case does not rely upon that provision.

8. [16]

   Counsel for the defendant referred to the requirement for each of the grounds in s 8 of the Act for making a suppression or non-publication order that it is "necessary" for the stated purpose. Adamson J observed in Attorney General of NSW v Huckstadt (at [49]):

9. [17]

   Counsel for the defendant submitted that making an order was "necessary", having regard to the following:

Determination

1. [18]

   Bathurst CJ and McColl JA said in Rinehart v Welker [2011] NSWCA 403 at [27] that orders under the CS&NP Act "should only be made in exceptional circumstances".

2. [19]

   The five bases upon which is was submitted that it was necessary to make an order are, in the main, common to all applications for extension orders under Sch 1 of the MHFP Act. Matters that might be unique to the defendant in this case are (1) the combination of a serious mental illness and an intellectual disability and (2) his youth. However I do not accept that they add weight to the argument. Forensic patients generally will have either a serious mental illness or an intellectual disability or both.

3. [20]

   As to the defendant's "youth", he is in fact aged 26. In oral submissions, counsel modified this to a description "relatively young age" and argued that it had a bearing upon his vulnerability in combination with his mental illness and intellectual disability. Again, I do not consider this adds weight to the argument.

4. [21]

   True it is that Parliament has determined that privacy considerations should prevail to the extent that non-publication provisions are to be found in the Mental Health Act (ss 162 and 189) and the Guardianship Act (s 101). It is of significance, however, that no such provision has been made in relation to proceedings brought under Sch 1 of the MHFP Act. In Attorney General of NSW v Huckstadt (No 2) , Adamson J made the following observation at [51] with which I respectfully agree:

5. [22]

   Her Honour found in that case (at [52]) that "there is little to distinguish the present applicant from others in respect of whom the plaintiff seeks an extension of the person's status as a forensic patient." The same applies in the present case.

6. [23]

   As to the defendant's reliance upon the United Nations Convention on the Rights of Persons with Disabilities, counsel were unable to inform me whether it has been incorporated into Australian law, or, specifically, the law of this State. In Regina v Togias [2001] NSWCCA 522; 127 A Crim R 23, Spigelman CJ observed generally in relation to international treaties and conventions (at [33]):

7. [24]

   The latter two points do not arise in this case. As to the first point, given that the Convention was merely cited and no submission made as to whether and how it might apply as a matter of law in New South Wales, this is not the occasion to engage in any "development of the common law".

8. [25]

   I am not persuaded that the making of a suppression or non-publication order is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)). In fact, nothing was put that suggests that the administration of justice would be at all prejudiced by a refusal to make an order.

9. [26]

   The ground in s 8(1)(c) is concerned with the defendant personally. But again, nothing was put that suggests that his safety would be compromised if an order were not made. In this respect, a contrast may be drawn with the circumstances in State of New South Wales v Burns [2014] NSWSC 1014 where a non-publication order was made in respect of the defendant's whereabouts, in part because of "the potential for reprisals". (Mr Burns was found to be a high risk sex offender.)

10. [27]

    The reasoning of Adamson J in Attorney General of NSW v Huckstadt (No 2) at [60]-[61] in relation to s 8(1)(e) of the Act is also apposite in relation to the defendant's reliance upon that ground:

An alternative remedy

1. [28]

   Much personal information about which the defendant is concerned is contained in the documentary evidence read or tendered in relation to the plaintiff's application which has not been mentioned in the primary judgment. An alternative remedy that would address much of the defendant's concern is to restrict access to the Court file. An order to that effect is commonly made in proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW). It does not forbid access in absolute terms but provides an opportunity for the parties to be heard before access is granted to any non-party. I made such an order at the conclusion of the primary judgment.

Order

1. [29]

   I make the following order: