Supreme Court New South Wales Medium Neutral Citation: O'Neill v Commissioner of Police [2020] NSWSC 1805 Hearing dates: 4 December 2020 Date of orders: 4 December 2020 Decision date: 04 December 2020 Jurisdiction: Common Law Before: Fagan J Decision: 1. Time is extended for the filing of the summons herein up to and including 14 July 2020. 2. Pursuant to s 69(3)(a) of the Supreme Court Act 1970, the decision and order of the Local Court at Fairfield (Magistrate Seagrave) made on 30 May 2019 under s 3E of the Child Protection (Offenders Registration) Act 2000 in respect of the plaintiff is quashed. 3. Declare that Tony O'Neill did not become a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000 and the Child Protection (Offenders Prohibition Orders) Act 2004 as a result of the order purportedly made by the Local Court at Fairfield on 30 May 2019, being the order that is now quashed. Catchwords: CRIME – appeal and review – judicial review – order of Local Court declaring plaintiff registrable person under Child Protection (Offenders Registration) Act 2000 – order quashed for want of jurisdiction Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 Child Protection (Offenders Registration) Act 2000 Local Court Act 2007 Supreme Court Act 1970 (NSW) Category: Principal judgment Parties: Tony O'Neill (plaintiff) Commissioner of Police (defendant) Representation: Counsel: P Coady (plaintiff) K Pham (defendant) Solicitors: Legal Aid NSW (plaintiff) Crown Solicitors Office (defendant) File Number(s): 2020/208992 Publication restriction: No Decision under appeal Court or tribunal: Fairfield Local Court Date of Decision: 30 May 2019 Before: Magistrate Seagrave File Number(s): 2018/326881 Judgment (EX TEMPORE - REVISED) 1. This is a summons for judicial review of an order made in the Local Court at Fairfield on 30 May 2019. The application was filed well out of time but having regard to its merits, time will be extended. The magistrate, Ms Seagrave LCM, made an order under s 3E of the Child Protection (Offenders Registration) Act 2000 (NSW) (the "Offenders Registration Act"). The operative words of the order were: That you Mr Tony O'Neill comply with the reporting obligations under the Act. 1. For the reasons that follow I find that the order was made without jurisdiction because no valid application for it was ever issued by the Commissioner of Police or filed in the Local Court and certainly no such document was issued and filed within the time limited under s 3E. The order is to be quashed for want of jurisdiction, in exercise of this Court's power under s 69 of the Supreme Court Act 1970 (NSW). These reasons were delivered orally when the orders were made at the conclusion of the hearing on 4 December 2020. The terms in which they are now published include supplementary references to the relevant legislation. 2. Section 3E of the Offenders Registration Act is as follows. Emphasis has been added to the expression in sub-s (2)(a) that is defined in s 3AA, considered later in these reasons: 3E Orders made after conclusion of criminal proceedings (1) The Local Court may on application by the Commissioner of Police order a person who has been sentenced by a Court of New South Wales in respect of an offence that is not a Class 1 offence or a Class 2 offence to comply with the reporting obligations under this Act. (2) The Local Court may make an order under this Act only if: (a) the Court is satisfied that the person poses a risk to the lives or sexual safety of one or more children, or of children generally, and (b) the sentence imposed on the person in respect of the offence was not an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 or under section 33(1)(a) of the Children (Criminal Proceedings) Act 1987. (3) An application for an order under this section may be made within 60 days after the person with respect to whom the order is sought is sentenced for the relevant offence. (4) For the purposes of Division 6 of Part 3, if the Local Court makes an order in respect of a person under this section, the person is taken to have been found guilty of, and sentenced for, a Class 2 offence on the date an order under this section is made. 1. Class 1 offences are defined in s 3(1). The first such offence is murder, where the person murdered is a child, that is, a person under the age of 18 years. The other offences in Class 1 are all sexual offences or offences of violence committed against children. Class 2 offences are manslaughter, where the victim is a child, and a range of sexual and violent offences against children, generally of a lesser order than Class 1 offences. 2. The pre-condition in s 3E that the person against whom the order is to be made "has been sentenced by a Court of New South Wales in respect of an offence that is not a Class 1 or Class 2 offence" has the effect of casting a very wide net. In the proceedings before the Local Court that have led to the present application for review, the Commissioner of Police relied upon the following offences: 1. On 7 September 2018 Mr O'Neill drove a motor vehicle with an illicit drug present in his blood. This presumably was charged under s 111 of the Road Transport Act 2013 (NSW). On 6 November 2018 Mr O'Neill was fined $400 and disqualified for three months from holding a driver licence for this offence. 2. On 20 October 2018 Mr O'Neill was in possession of a prohibited drug. This was apparently charged under s 10 of the Drug Misuse and Trafficking Act 1985 (NSW). On 10 August 2018, a conviction was recorded against him for this offence, under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), with no other penalty. 1. The effect of s 3E is that a person sentenced for even a traffic infringement, or possession of a small quantity of an illegal drug for personal use, or a minor offence of dishonesty may be the subject of an application under the section, notwithstanding that the elements and the circumstances of the offence were in no way indicative of any threat whatsoever to children and irrespective of the relative triviality of the offence. On the basis of a seemingly irrelevant trigger, such as any of the minor offences that I have referred to by way of example, the magistrate before whom such an application is brought may receive evidence upon which to determine whether the magistrate is "satisfied that the person poses a risk to the lives or sexual safety of one or more children or of children generally". An application under s 3E may be made, resulting in the Local Court undertaking this inquiry as to the risk posed by the respondent, without it ever having been proved to the criminal standard that the respondent has on any occasion acted towards any child in a manner that is in any respect improper or that would give rise to a concern or suspicion that he or she may constitute a risk to children. 2. This is a quite extraordinary jurisdiction and self-evidently it must be invoked by the Commissioner of Police with care. In the absence of any conviction that would be relevant to child safety the Commissioner would not have a foundation for such an application without substantial evidence upon which it would be open to a magistrate to find that the respondent "poses a risk to the lives or sexual safety of one or more children, or of children generally". Absent a past conviction for an offence against children, proof of such a serious proposition against a respondent would usually require clear evidence of a pattern of repeated conduct towards children, or proof of at least one unequivocal instance of serious threat or impropriety towards children, from which the risk could be inferred. Except, perhaps, in cases involving a past conviction for a sexual or violent offence against children, or proof of significant, unequivocal past misconduct towards children, it is difficult to see how a magistrate could be persuaded of the risk specified in s 3E(2)(a) without a professional opinion of a psychologist or psychiatrist based upon a science-based assessment. 3. Section 19 of the Offenders Registration Act provides for the establishment of a Child Protection Register. Any person who commits a Class 1 or Class 2 offence or who is made the subject of a child protection registration order under Pt 2A of the Act, including s 3E, becomes a registrable person. Under s 19(2) extensive personal and private details of registrable persons are required to be stored on the Child Protection Register, which is to be maintained by the Commissioner of Police. 4. By force of Pt 3 of the Offenders Registration Act, comprising ss 4-18A, the registrable person comes under onerous obligations to report a long list of personal particulars and a host of other data as specified in s 9. The initial report must be made by the registrable person to police within seven days of the order under s 3E being pronounced: s 9A. The very extensive personal information must be reported again annually (s 10) for eight years (s 14A(1)(a)). Reporting is required to be made at a police station and police may take fingerprints and photographs of the registrable person: ss 12, 12E, 12F. Changes of particulars must be reported when and if they occur (s 11) and some changes must be reported in person (s 12A). The registrable person must notify police of any intended travel outside New South Wales if it is to exceed 14 days and must notify intended travel outside Australia of any duration: s 11A. The Commissioner of Police may notify the Australian Federal police of any intended travel outside Australia (s 11E) and, pursuant to Commonwealth legislation, overseas travel may be forbidden. Section 16C gives police the power to enter and inspect the registrable person's residence without prior notice to verify any personal information that has been reported under s 9. 5. Given that an order under s 3E gives rise to these enormous restrictions on liberty and privacy of the registrable person and that an application for such an order may originate from an offence that is no more serious than a traffic violation, the constraint provided in s 3AA of the Act assumes very great importance. That section is as follows: 3AA Risk to sexual safety of children—meaning (1) For the purposes of this Act, a person poses a risk to the lives or sexual safety of one or more children, or of children generally if there is a risk that the person will engage in conduct that may constitute a Class 1 offence or a Class 2 offence against or in respect of a child or children. (2) In order for a court to be satisfied that a person poses a risk to the lives or sexual safety of one or more children, or of children generally, it is not necessary for the court to be able to identify a risk to particular children, or a particular class of children. (3) A court is to take the following into account in determining whether a person poses a risk to the lives or sexual safety of one or more children, or of children generally— (a) the seriousness of each registrable offence committed by the person, (b) the age of the person at the time each of those offences was committed, (c) the age of each victim of each of those offences at the time that the offence was committed, (d) the seriousness of any other offences committed by the person, (e) the impact on the person if the order being sought is made compared with the likelihood that the person may commit a registrable offence, (f) any other matter that the court considers to be relevant. 1. The considerations listed in sub-s (3) are mandatory. They must be taken into account in determining whether the respondent to an application under s 3E "poses a risk to the lives or sexual safety of one or more children or of children generally". 2. Section 3AA makes it clear that the enquiry under s 3E(2)(a) about whether the person poses a risk to children is not at large but is constrained and directed by the statute. It shows that a conclusion as to the existence of a risk cannot be drawn lightly. The first three considerations listed in s 3AA, pars (a), (b) and (c), contemplate that the respondent has been proved beyond reasonable doubt to have committed an offence against a child or children. As earlier mentioned, a conviction for such an offence is not a prerequisite to the making of an order under s 3E. However, the fact that three out of six mandatory considerations are directed to cases where the respondent has been so convicted is a clear indication that, in other cases, the contention that a respondent is a threat to children would have to be based upon something stronger than a police officer's speculation or suspicion. The remaining considerations under s 3E(3) are to be construed, applied and weighed having due regard to their context, juxtaposed with considerations (a), (b) and (c). For example, the "seriousness of any other offence" referred to in par (d) must be measured with particular regard to whether any such other offence involved a child victim, which is the focus of pars (a), (b) and (c). A drug possession charge or a driving infringement, as in the present case, could not be regarded as "serious" within the meaning of par (d), given its context. 3. An application by the Commissioner of Police under s 3E of the Offenders Registration Act falls within the Special Jurisdiction of the Local Court and is governed by Pt 4 of the Local Court Act 2007 (NSW), comprising ss 43-72. Section 46 provides as follows: 46 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised to commence application proceedings against a person, the officer may commence the proceedings by issuing an application notice and filing the notice in accordance with this Division. 1. "Application proceedings" is the term used to describe proceedings to which Pt 4 of the Local Court Act 2007 applies. Section 3E of the Offenders Registration Act is the section that authorises the Commissioner of Police to make an application. Accordingly, an application under s 3E must conform to the process that is prescribed in s 46. There must be a document that is issued by the Commissioner of Police that claims an order under s 3E and that is then filed in the Local Court. 2. For the purposes of s 3E in the present case, by force of sub-s (3) such an application had to be issued by the Commissioner and filed in the registry of Fairfield Local Court within 60 days after Mr O'Neill was sentenced for whichever of the previously mentioned offences (see [5] above) the Commissioner wished to rely upon. If the Commissioner wished to base the application on the offence of driving with an illicit drug present in his blood, committed on 7 September 2018, then having regard to the date of conviction and sentence for that offence, the application would have to have been filed in the Local Court by 5 January 2019. If the Commissioner wished to rely upon the offence of possessing a prohibited drug, committed on 20 September 2018, then the application would have to have been filed 60 days after the s 10A order was made in respect of Mr O'Neill, that is by 9 September 2018. 3. No such application was filed in the Local Court by either of those dates or on any subsequent date, so far as I can see from the Local Court file. On 19 October 2018, the Commissioner caused to be filed at Fairfield Local Court a document headed as follows: Application to the Local Court under the Child Protection (Offenders Prohibition Orders) Act 2004." 1. This document named Senior Constable Andrea Morris as the applicant and Mr O'Neill as the respondent. It contained the following particulars: Short Description of Application: Application for an order under Part 2 prohibiting a registrable person from engaging in specified conduct. Details of Application: Child Protection (Offenders Prohibition Orders) Act 2004 No 46, Part 2, section 4. Order Sought: Granting of a Child Protection Registration Order (CPRO). 1. Section 4 of the Child Protection (Offenders Prohibition Orders) Act 2004, as referred to in the document, provides as follows: 4 Commissioner of Police may apply for orders An application may be made by the Commissioner of Police to the Local Court for an order under this Part prohibiting a registrable person from engaging in specified conduct. That is an entirely different source of statutory power from s 3E of the Offenders Registration Act and it is a power to make an entirely different kind of order. The document filed by the Commissioner invoking s 4 of the Child Protection (Offenders Prohibition Orders) Act is not an application under s 3E. 1. The purported formulation of an "Order Sought" in the above document, filed in Fairfield Local Court on 19 October 2018, was actually not the formulation of an order at all. Section 3E of the Offenders Registration Act is within Pt 2A of that Act. That Part is headed "Child Protection Registration Orders". But to state on the application document, as filed, that the order sought is a Child Protection Registration Order is merely a generic description of a type of order that may be made. It is not a form of words constituting an order that could be pronounced by the Local Court and entered on its records. The fact that the heading of Pt 2A of the Offenders Registration Act is utilised in this inadequate statement of the order sought does not convert the document as filed into an application under s 3E of that Act. In short, there is no part of the document filed by the Commissioner that invokes s 3E of the Offenders Registration Act and there are significant parts of the document that expressly invoke a section of an entirely different statute. The document filed was not an application for a s 3E order. 2. When the proceedings were first mentioned before Mr Tsavdaridis LCM on 20 November 2018, Mr O'Neill had not been served and was not present or represented. The following exchange occurred (extracted so far as relevant): HIS HONOUR: This matter when I looked at it this morning is an application for a child protection offender prohibition order. This relates to people who are registrable persons. Before I can make an order I need to know that he is a registrable person, that is, he has been sentenced before. ... I ask that specifically because s 3A of the Child Protection (Offenders Registration) Act, a different Act entirely, says "a registrable person is a person whom a Court has at any time sentenced in respect of a registrable offence". So he wasn't sentenced, he was only charged at the time, is that right? ... Do you want to hand up a record? PROSECUTING SERGEANT: Your Honour, just before I get to that point there is another difficulty. Your Honour has rightly noted the correct Act. It is the Child Protection (Offenders Registration) Act 2000 that is relied upon. It is sections 3D and 3E that are applicable. But further to that, your Honour-- HIS HONOUR: But what do 3D and 3E say? PROSECUTING SERGEANT: Your Honour, 3D talks about making an order during criminal proceedings and, as your Honour rightfully said, 3E talks about after the conclusion of criminal proceedings. HIS HONOUR: Are we there yet? PROSECUTING SERGEANT: According to the OIC [Officer in Charge], yes we are but, your Honour, usually these applications have to be filed [scil served] on the defendant 21 days before the mention. 1. At the conclusion of proceedings on 20 November 2018 the matter was stood over to 15 January 2019 for mention. The prosecuting sergeant was directed to file an affidavit of service after the application had been served on Mr O'Neill. In the brief exchange between the sergeant and the bench on 20 November 2018 there was no application made to the magistrate for leave to amend the application document. There was no grant of leave to amend it. The document was not in fact amended by any alteration of its writing. It was not amended either by the prosecuting sergeant or by the magistrate or by anyone else on behalf of the Court. No amended document was ever filed. 2. On this application I have not been referred to any provision of the Local Court Act or of the Local Court Rules 2009 which would empower a magistrate to grant an amendment. Assuming that there is such a power, it was not exercised. As at 20 November 2018, the Commissioner would have been within time to file a fresh application or to uplift the existing application and amend it and re-file it. I will assume that an amended document could have been filed without the need for a new number to be assigned to the proceedings. I will also assume that if that had been done, the proceedings could have been treated as having been commenced, in the amended form, at the original filing date of 19 October 2018. Whether any of that could have been done or not, it would still have been open to the Commissioner as at 20 November 2018 to file an entirely fresh application, which would have been within time. The fact is that none of these possibilities were pursued. 3. The matter was again mentioned on 15 January 2019 and it was stood over from date to date, coming before Mr Tsavdaridis LCM on 5 February, 19 February, 26 February, 5 March and 12 March 2019. The representative of the Commissioner of Police prosecuting the application changed from time to time. Mr O'Neill was present on some occasions. He was represented by a solicitor on 12 March for the first time. When the matter finally came on for hearing before Ms Seagrave LCM on 30 May 2019, Mr O'Neill was represented by a different solicitor, and the prosecuting sergeant who appeared on that occasion came into the matter for the first time that day. 4. During the mentions of the proceedings in January, February and March 2019 there was confusion on several occasions about what was the nature of the application. On none of those occasions was any attempt made to obtain leave from the Court to amend the document or to have the Court amend it. It is therefore unnecessary to consider whether there would have been a power in the Local Court to amend it with retroactive effect so as to validate the original document, that had been filed within 60 days from the relevant sentences, as an application under s 3E. 5. When the matter came before Ms Seagrave LCM on 30 May 2019, the solicitor representing Mr O'Neill informed her Honour that the "application is now consented to without admissions". Understandably, in view of the unamended terms of the application document on the Court file, her Honour referred to s 10 of the Child Protection (Offenders Prohibition Orders) Act and noted that she could make an order under s 4 of that Act by consent without having to be satisfied of the matters listed in s 5. Her Honour was then informed that the Commissioner actually wished to proceed under s 3E of the Offenders Registration Act, so that the sections referred to by the learned magistrate, with which she had evidently familiarised herself before the hearing commenced, were not relevant. The prosecuting sergeant made these statements: PROSECUTING SERGEANT: [That] was amended on the last occasion. It should have been amended to be under the Child Protection Registration Act. HER HONOUR: I've read the wrong legislation. PROSECUTING SERGEANT: I'm sorry. It's s 3E is the relevant section that the application is made under. HER HONOUR: Can I make the order by consent? PROSECUTING SERGEANT: Yes, your Honour can. HER HONOUR: The amended application Sergeant still refers to the Child Protection (Offenders Prohibition Orders) Act. 1. What her Honour was looking at was the unamended document, the only application that has ever been filed. The statement by the prosecuting sergeant that it had been "amended on the last occasion" was incorrect. The exchange continued as follows: HER HONOUR: In future the applicant should file an amended application that actually reflects the orders sought, the precise terms of the order sought and the legislation relied upon for that purpose. PROSECUTING SERGEANT: Yes I will thank you. HER HONOUR: This particular application was amended by his Honour is that correct? PROSECUTING SERGEANT: Yes that's the case your Honour. Again, the sergeant's statement was incorrect. 1. Her Honour marked the application document as Exhibit 1 and also marked on it "amended on 20 November 2018 to reflect application under CP (Offenders Registration) Act 2000". The marking of the application in that manner by the magistrate was no more than a record of what she was told, erroneously, about something that was said to have occurred on an earlier date. It did not of itself constitute an amendment of the document. Her Honour then looked at the Offenders Registration Act for the first time. The sergeant informed her of the two offences that the Commissioner relied upon as enlivening the Court's power to make an order under s 3E. On the basis of what she had been told about amendment of the application, her Honour accepted the sergeant's assurance that the application had been made within the time limit of 60 days. 2. The learned magistrate noted that there was no express provision in the Offenders Registration Act for the making of consent orders without the Court satisfying itself of the statutory prerequisites. Her Honour considered, correctly, with respect, that she needed to be satisfied of the matters prescribed in s 3E. In support of the application there was provided to the magistrate some intelligence concerning police contact with Mr O'Neill on 9 September 2008 and 3 April 2018. His conduct on each of those occasions was suggestive of sexual thoughts concerning young people. Part of the evidence tendered before the magistrate included an interview that had been conducted with him by police on 10 October 2018. It was not conducted in the context of any charge having been laid or proposed to be laid. He was not under arrest. He was not given any warning before he was questioned. He conceded in the course of that interview "there had been times" when he was using methamphetamine and had sexual thoughts concerning young females of less than 18 years of age. 3. In view of the limited legal issues that arise on this application for judicial review and the narrow jurisdictional basis upon which I am required to decide the matter, it is not necessary for me to consider in detail the evidence that was tendered in support of the application. It is noted that there was no evidence that Mr O'Neill had ever made an approach to any young person of an inappropriate or sexual nature. There was no evidence adduced from a psychologist or psychiatrist to provide any professional opinion on the events of 9 September 2008 on 3 April 2018 or on the contents of the interview conducted on 10 October 2018. There was no expert opinion evidence to the effect that Mr O'Neill's conduct or his answers under police questioning exhibited significant risk factors. As earlier mentioned, he has never been convicted of any offence within Class 1 or Class 2 or any offence of any nature concerning misconduct of any kind towards children. 4. No doubt her Honour felt able to find, under s 3E(2)(a), that Mr O'Neill "poses a risk to the lives or sexual safety of one or more children, or of children generally" on the very scant material tendered by police, in circumstances where, on legal advice, Mr O'Neill was consenting to the order against him. I greatly doubt that the material tendered would have been regarded by the magistrate as of sufficient strength to satisfy her on the test prescribed in s 3E(2)(a) if she had had regard to the matters that she was bound to take into account under s 3AA. However, her Honour's attention was not drawn to s 3AA by either the prosecuting sergeant or Mr O'Neill's solicitor. She therefore did not take into account the list of mandatory considerations under that section. Her Honour's decision would be amenable to being set aside on the basis that there was a failure to take into account relevant considerations that she was bound by law to consider. But, more fundamentally, the decision is amenable to being set aside because there was before the Local Court no document that could be characterised as an application under s 3E as required by s 46 of the Local Court Act. 5. The Court has been invited to consider whether the deficiency in the application document might be disregarded under s 62 of the Local Court Act 2007 as an irregularity. Section 62 provides as follows: 62 Irregularity (1) If, in or in connection with application proceedings or the commencement of application proceedings is a failure to comply with any requirement of this Act or the rules the failure is to be treated as an irregularity and does not nullify the proceedings or any step taken in the proceedings, or any judgment, document or order in the proceedings. (2) Subsection (1) applies to a failure to comply with a requirement relating to time, place, manner, form or content or any other failure. (3) In the case of an irregularity, the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its powers under the rules to allow judgments and to make orders dealing with the proceedings generally. (4) The Court must not take action under subsection (3) on the application of a party unless that application is made within a reasonable time and before the party has taken any fresh step after becoming aware of the irregularity. 1. That section only addresses failures to comply with requirements of the Local Court Act itself. It does not empower the Court to disregard non-compliance with the statutory time limit of 60 days that is fixed by s 3E(3). The result is that the order that her Honour purported to make this day at the conclusion of the proceedings was without jurisdiction. There having been no properly constituted proceeding in the Local Court, an order must be made by this Court setting aside her Honour's decision and a declaration must be made as sought in the summons that Mr O'Neill is not and has not been a registrable person. 2. It was the responsibility of the prosecuting sergeant and the solicitor representing Mr O'Neill to bring to the learned magistrate's attention all relevant provisions that would have a bearing upon the decision she was required to make. It is unsurprising that her Honour did not locate s 3AA herself because, prior to coming on to the bench, she was misled by the form of the application and studied the wrong Act. Neither of these statutes is the subject of high-volume routine proceedings in the Local Court. When her Honour endeavoured to familiarise herself in the course of the hearing with the provision under which the Commissioner actually intended to proceed, she should have been assisted by reference to s 3AA, which is critical to the manner in which the test in s 3E(2)(a) is to be applied. Her Honour should also have been accurately informed of the course of proceedings before Mr Tsavdaridis LCM on 20 November 2018, which had not in fact resulted in any amendment of the filed application. 3. The orders of the Court are as follows: 1. Time is extended for the filing of the summons herein up to and including 14 July 2020. 2. Pursuant to s 69(3)(a) of the Supreme Court Act 1970, the decision and order of the Local Court at Fairfield (Magistrate Seagrave) made on 30 May 2019 under s 3E of the Child Protection (Offenders Registration) Act 2000 in respect of the plaintiff is quashed. 3. Declare that Tony O'Neill did not become a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000 and the Child Protection (Offenders Prohibition Orders) Act 2004 as a result of the order purportedly made by the Local Court at Fairfield on 30 May 2019, being the order that is now quashed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2020