Industrial Relations Commission of New South Wales CITATION : A and The Commission for Children and Young People (No 4) [2000] NSWIRComm 220 APPLICANT A PARTIES : RESPONDENT The Commission for Children and Young People FILE NUMBER: IRC 4490 of 2000 CORAM: Wright J President CATCHWORDS : Practice and procedure - Non-publication orders - Application by media companies to set aside non-publication orders - Jurisdiction of Commission - Tests to be applied - Grounds for grant of non-publication orders - Whether orders "necessary" - Application refused - Orders varied Child Protection (Prohibited Employment) Act 1998 s 9 LEGISLATION CITED : Crimes Act 1900 s 578A Industrial Relations Act 1996 s 84 s 89 s 146 s 162 Attorney-General of New South Wales v Mayas (1988) 14 NSWLR 342 Attorney-General v Walker (1849) 154 ER 833 Australasian Memory Pty Limited v Brien [2000] HCA 30 Connolly v DPP [1964] AC 1254 D'Emden v Pedder (1904) 1 CLR 91 Drinkwater v Amos (1972) 20 FLR 359 Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554 Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38, (2000) 98 IR 1 Grassby v The Queen (1989) 168 CLR 1 Hannan v Lake Macquarie City Council [1998] NSWLEC 98 Hill v The Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201 Hornsby Shire Council v Porter (1990) 19 NSWLR 716 Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 CASES CITED : John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 McPherson v McPherson [1936] AC 177 Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 (1993) 51 IR 193, Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1099 Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 487 Parsons v Martin (1985) 5 FCR 235 Pelechowski v Registrar, Court of Appeal (1999) 73 ALJR 687 R v Richards and Bijkerk [1999] NSWCCA 114 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Reid v Howard (1995) 184 CLR 1 Russell v Russell (1976) 134 CLR 495 Scott v Scott [1913] AC 417 State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447 Stonham v Speaker of the Legislative Assembly (No 2) (1999) 90 IR 334 X v NSW Department of Education and Training (1999) 89 IR 1 HEARING DATES: 09/26/2000; 09/27/2000; 09/29/2000 DATE OF JUDGMENT: 10/31/2000 APPLICANT Mr D M Flaherty of Counsel Solicitor: Mr John Boyd Cameron Gillingham Boyd RESPONDENT Mr I D Bourke of Counsel Solicitor: Mr I V Knight, Crown Solicitor (Ms L Plater and Ms M Barbaro) INTERVENOR Mr T Molomby of Counsel Solicitor: Ms N M de Haas LEGAL REPRESENTATIVES: Catholic Commission for Employment Relations MEDIA COMPANIES Mr G O'L Reynolds SC and Mr K P Smark of Counsel Solicitor: Mr R Coleman for John Fairfax Publications Pty Limited Solicitor: Mr M G O'Brien of Gilbert & Tobin for Nine Network Australia Pty Limited Solicitor: Ms S Dawson of Blake Dawson Waldron for Nationwide News Pty Limited JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WRIGHT J, President Tuesday 31 October 2000 Matter No IRC 4490 of 2000 A AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE Application pursuant to s 9 of the Child Protection (Prohibited Employment) Act 1998. DECISION 1 This decision deals with an application made by certain media companies for the setting aside of non-publication orders made by the Commission in these proceedings on Tuesday 26 September 2000. Before dealing with the matters that require decision it is convenient to refer shortly to certain of the background to the proceedings and to the decision. 2 This is the fourth decision issued in this matter since 26 September 2000. The first decision was given on 26 September when the non-publication orders were made. The second decision was delivered on 27 September at the conclusion of submissions as to the stay application made pursuant to s 9(6) of the Child Protection (Prohibited Employment) Act 1998 (the Act) when the Commission granted a stay of the prohibition as to the applicant by operation of the Act. The third decision was also issued extempore on 29 September at the conclusion of arguments as to the present matter and the related application made by the media companies in which they applied for leave to intervene in the proceedings. 3 During these proceedings, or at least those parts dealing with the present decision, Mr D M Flaherty of counsel appeared for the applicant, Mr I D Bourke of counsel appeared for the respondent Commission for Children and Young People, and Mr T Molomby of counsel appeared for the employer of the applicant. Mr G O'L Reynolds SC and Mr K P Smark of counsel appeared for NationWide News Pty Limited, John Fairfax Publications Pty Limited and Nine Network Australia Pty Limited. Those companies have been earlier referred to as the "media companies" and that description will be used subsequently. 4 The genesis of this part of the proceedings is that during the proceedings on 26 September an application was made by Mr Molomby that a non-publication order be made in the proceedings. After hearing argument from counsel for the various parties, the Commission granted the application. The application was supported by counsel for the applicant. Counsel for the respondent indicated that his client adopted a neutral position on the application; it was a matter for the Commission whether the order was made. When the Commission had decided to accede to the application, and prior to making the orders, two important matters occurred. The first was that counsel for the respondent indicated that, without departing from his client's earlier expressed position, if the Commission was to make the orders sought it should extend them to deal with the identity of the schools and students of the schools at which the applicant had taught prior to taking up his present position. Orders in these terms were made: 1. Until further order of the Commission, there be no publication of the names of (a) the applicant in these proceedings; (b) any school in or by which the applicant has been or is now employed; (c) any student or former student at these schools; and (d) any detail *capable of leading to the identification of any of the above. 2. Until further order these proceedings may be referred to as A and the Commission for Children And Young People. The applicant may be referred to as A and the employer of the applicant as B. 3. Liberty to apply on reasonable notice. (* on 29 September the phrase "capable of leading" was altered to "likely to lead") 5 The second development was that counsel announced their appearance for the first-named of the media companies. (As the proceedings continued, counsel announced appearances successively for the other two media companies.) Senior counsel made submissions as to the inappropriateness of the orders which had been sought but candidly accepted that he had only immediately prior to his appearance received instructions. In those circumstances he was not in a position to assist the Commission as to all of the matters relevant to his application, including the nature of the proceedings or the Commission's powers in relation to them. Consequently, no objection was raised to the actual making of the orders on the basis that, notwithstanding the circumstances which had led to their making, it was appropriate for those orders to be made to preserve the status quo pending his client being in a position to marshal its submissions as to why the orders should have not been made and should be set aside, and also to permit counsel who had up to that stage appeared in the proceedings to prepare their submissions in reply. 6 The hearing as to the media companies' applications commenced during the afternoon of 27 September and late in the proceedings that day, senior counsel made an application that his clients be granted leave to intervene. The Commission delivered its decision on the interlocutory stay application that afternoon and the submissions as to the media companies' application for leave to intervene and to set aside the non-publication orders were adjourned to 29 September 2000. In an attempt to ensure that the submissions as to those matters were then concluded, the Commission made directions that the parties confer to deal with any procedural matters. Liberty to apply was granted during the course of Thursday 28 September should that be necessary. At the commencement of the proceedings on 29 September the Commission was advised by counsel that agreement had been reached as to procedural matters and certain exhibits had been provided to counsel for the media companies on the basis of an undertaking that access would be restricted to counsel. Changed circumstances 7 Because of the way in which the proceedings developed there were a number of changed circumstances since the application made by Mr Molomby was granted on 26 September and when the final submissions were to be made as to the application by the media companies to set aside those orders on 29 September. 8 The changed circumstances, as accepted in substance by the parties, were as follows: (1) The fact that, as Mr Reynolds of Senior Counsel for the various newspaper groups had stressed, unlike the situation when the previous submissions were heard, there was now a contradictor to assist the Commission as to the issues raised by the application. (2) It was now submitted that the decision in X v NSW Department of Education and Training ((1999) 89 IR 1, which was relied upon by counsel who made the application and by the Commission in deciding the application, is wrong in principle and law and as to its facts. (3) There was now an issue raised as to the power of the Commission to grant any non-publication order. (4) The interlocutory stay sought by the applicant, and as supported by his employer, had been granted on terms and a date fixed in December for the final hearing of his application under s 9 of the legislation. 9 It should be also emphasised that the orders made on 26 September had been regarded since they were made as being in substance orders preserving the situation until there was time for the Commission to properly hear the parties, including, for example, by giving the parties to the proceedings an opportunity to research the relevant issues, and to determine the matter in a more considered way than was earlier the case. In addition, it is to be observed that the present proceedings and decision deal with matters important to the Commission's jurisdiction and functions. The proceedings are the first occasion where there has been a challenge to the Commission's jurisdiction to make non-publication orders. They also involve the first contested proceedings under the Child Protection (Prohibited Employment) Act . The contest extends beyond the issue between the parties as to the making of orders under s 9 of the statute to the issues raised by the media companies as to power to make, and the appropriateness of making, non-publications orders. Submissions for the parties 10 Detailed submissions were made by counsel for each of the parties and interests represented. Because of the importance of this matter an attempt will be made to refer to them in some detail without necessarily capturing all of their detail and incisiveness. The submissions were made at various stages of the proceedings and "around" other issues being dealt with. An attempt will be made nevertheless to set them out in a logical or sequential way. 11 The primary submission on behalf of the media companies was that "it has long been a basic principle that the administration of justice must take place in open court but that it has always accepted, however, that proceedings might be conducted in camera or evidence made the subject of orders restraining its public availability if this were really necessary to secure the proper administration of justice". The submission was made by reference to a number of authorities including the judgment of the Full Bench of the Commission in Court Session in Stonham v Speaker of the Legislative Assembly of New South Wales (No 2) (1999) 90 IR 334 at 348, 352 and 354, and the judgments of the Court of Appeal in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 and John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465. Emphasis was placed upon the significance of the word "necessary" or the notion of "necessity" in the various statements of principle as both illustrating and providing the relevant jurisdictional and discretionary bases for the making of any order of the kind sought here. 12 Reference was made to a number of key passages in particular judgments. The first referred to was the following passage from the judgment of Kirby P, as his Honour then was, in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales at 142 - 143: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging, and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms … A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may care to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. Reliance was also placed on the following passage from the judgment of McHugh JA, as his Honour then was, in John Fairfax & Sons Ltd v Police Tribunal of New South Wales at 476 - 477: The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. 13 Senior Counsel emphasised that, on the basis of the authorities, what is described as the principle of "open justice" is paramount and that whoever seeks to depart from it must make out a case therefor. Further, that the test which must be satisfied before the Court can or should depart from the principle of open justice is whether or not it is "necessary" for the administration of justice that such an order be made: Reid v Howard (1995) 184 CLR 1 at 16. 14 It was submitted that the material available in this application, at its highest, suggests that the school, its students and the applicant would suffer "embarrassment". "Embarrassment" can never justify such an order. To the extent that courts or tribunals have been held to have implied power to deal with this matter, it is not "at large": Reid v Howard; nor is the jurisdiction conferred by the Industrial Relations Act 1996 in s 162(1)(b) sufficient to enable the orders made to have been made or to be continued. Section 162(1) does not provide a relevant source of power. Alternatively, any power that the Commission may have is not a matter resting on its mere discretion; it is one of principle, turning not on convenience but on "necessity". The judgment of Schmidt J in X v NSW Department of Education and Training was incorrect as her Honour did not find that the order made was "necessary" in the relevant sense. It was submitted, as a matter of general principle, on the material available in this application, no case at all had been made out to establish that it is necessary for the proper administration of open justice for the orders presently in place to be maintained. They should be dissolved, except to the extent the orders protected the identity of the complainant in the District Court proceedings in which the applicant was convicted. It was conceded that, to that extent only, the orders may continue. 15 It was submitted that the form of the first order was inappropriate as it infringed the approach laid down by McHugh JA in the Police Tribunal cast at 477 that: Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative - not judicial - power. The only order or direction the Commission should make would be as to the manner in which the relevant persons be referred to in the proceedings (for example by pseudonym). In that regard it was, however, accepted that any publication contrary to such order or direction would constitute punishable contempt because of the power of the Commission in Court Session under s 180 of the Industrial Relations Act to punish contempt of the Commission however constituted and such defiance would come within the next passage of the judgment of McHugh JA where his Honour said: Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself. 16 The media companies also denied the factual basis for the orders sought by the school. It was submitted that there was no relevant "necessity" in the interests of justice. It was mere surmise that the identification of the school or the applicant would upset or cause stress, even "severe distress" to the students even if occurring during an examination period. Even if the submission were correct it was not a sufficient basis for orders in terms of relevant authority: Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 487 at 493. It was irrelevant that there may be difficulties at the school. If it feels some embarrassment as to its decision to employ the applicant or concern that parents at the school may require some explanation as to why that occurred, such matters are legally irrelevant. It was also submitted that there was a substantial public interest in the proceedings being heard in open court. The purpose of the legislation would be promoted if the fact of persons being convicted of prescribed offences was publicly aired. Finally, that the applicant having been earlier identified, for example in earlier parts of these proceedings and in the sentencing proceedings in the District Court, resulted in there being "no basis for ordering suppression because the horse has already bolted": Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 at 358 - 359. As to non-publication orders as to the schools where the applicant was formerly employed, and students of those schools, it was denied that identifying them would have the effect of identifying the applicant. 17 Counsel for the school tendered three newspaper articles which contained reports of these proceedings. The articles were from the Sydney Morning Herald of 27 and 28 September and from the Daily Telegraph of 28 September. As to the first of those articles, counsel reminded the Commission of a submission he had made earlier when he applied for the court to be closed. An application which had been rejected. He referred to the submission earlier made that "some media institutions appear to find a temptation to dance as close as they can to the flame without getting burnt irresistible". He submitted that the submission applies to each of the articles tendered. He also referred to another submission made in the context of the earlier application that the Herald article "had given a number of details which, in combination, vastly narrowed the focus if one was inquisitive at all about the institution concerned". He submitted that a similar situation had occurred in relation to the identity of the complainant because a number of matters were being said in the various articles as to the complainant which, when put together with the name of the applicant in these proceedings if published would lead to, at least in the relevant local or school community, identification of the complainant. It was submitted that when such matters are combined with the local knowledge in the local community, the publication of the applicant's name would, or be likely to, lead to a publication of the kind prohibited, or likely to be prohibited by s 578A of the Crimes Act . He concluded: So in my submission in dancing as close to the flame as they have, the position the media have created is that any publication of any type from now on in connection with these proceedings of the name of the applicant is very likely to involve identification of the complainant. 18 Counsel further submitted that the interference with the course of justice required by the relevant authorities is or arises from the adverse impact on the students; and, using the term disruption as a shorthand expression, disruption occasioned to the students is at least a likely immediate consequence of publicity of the proceedings. In this case the impact of publicity on the very people for whose benefit the subject legislation has been passed. That is, the school students who have been recognised by the legislation as being disadvantaged by reason of their impressionability or immaturity. In a real sense, there is potential damage being inflicted in an area of vital importance to their development, that is their full-time education. Counsel submitted that the legislation recognises that the students have a level of vulnerability so that the likely impact on the children is more severe than the likely impact on the protected parties in extortion cases as referred to in the judgment in the Local Court case. Although counsel accepted that it may be appropriate that the parents whose children go to the school should be advised of the steps taken by the school, it is not appropriate that such advice should come from the media. The parents would certainly not want that information to be conveyed to them by the media with all that entailed. It is a matter essentially for the school itself. This consideration should also be taken into account by the Commission in rejecting the application by the media companies. 19 Counsel elaborated his client's opposition to the media companies' application to set aside the non-publications orders on essentially three bases, as follows: (a) the Commission has power to make and to continue the orders earlier made which derives from its implied jurisdiction to do that which is necessary to enable it to act effectively within such jurisdiction; citing the speech of Lord Morris in Connolly v DPP [1964] AC 1254 at 1301 as referred to by McHugh JA in John Fairfax v Police Tribunal of New South Wales at 476; (b) section 578A of the Crimes Act 1900 prohibits publication of "any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant". The material which has been published as to the present proceedings (and in this regard counsel relied on the three articles published in newspapers on Wednesday 27 and Thursday 28 September) referred to the criminal proceedings as to the applicant in such detail that if the applicant was identified then there was a substantial likelihood that identification of the complainant precluded by that provision would occur; (c) setting aside of the orders would be contrary to, and destructive of, the purposes of the Child Protection (Prohibited Employment) Act if inappropriate publicity was given to these proceedings in such way as to identify the school, the evident purpose of the legislation being to protect children. 20 In further elaboration in response to the submissions of the media companies that there was no power to have made the orders, or to continue them, because such orders were not necessary, or transcended the necessity, of securing "proper administration of justice in proceedings before it" relying upon the discussion by McHugh JA in John Fairfax v Police Tribunal at 476 - 477, reference was made to the judgments of Mahoney JA and Hope AJA in John Fairfax Group v Local Court of New South Wales where it was held that a magistrate in a Local Court had power to issue a "pseudonym order", by reference to the test laid down by McHugh JA, to protect the victims of an extortion attempt. Reference was also made to the elaboration by Mahoney JA of the relevant considerations in the Local Court case, and it was submitted, that the phrase "necessary to secure the proper administration of justice" does not mean that if the relevant order is not made the proceedings will not be able to continue; reference was also made to the following passage in the judgment of Mahoney JA in that case at 161: The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders to prevent them is to be implied as necessary to the proper function of the court. There was also reliance on the following extract from the judgment of Mahoney JA in Attorney General of New South Wales v Mayas (1988) 14 NSWLR 342 at 346: In my opinion, the power to make in camera and non-publication orders is not confined to superior courts. It is a power which, I think, a magistrate may exercise in the course of proceedings in which he determines criminal or civil rights. 21 As to the last matter, it is appropriate to set out the following extract from counsel's written submissions: 6. The Child Protection (Prohibited Employment) Act 1998 is in some respects novel legislation. Its evident purpose is to protect children. It is paradoxical, and destructive of that purpose, if the children meant to be protected suffer serious disruption in their education, indeed lives generally, because of publicity about proceedings brought under this Act. While not parties, the students are not in the same position as non parties in the ordinary case, for they and their interests are the reason for the existence of the subject legislation. Its effectiveness, and whether or not proceedings under it are judged to be frustrated, must be assessed by reference primarily to the effect of such proceedings on the children themselves. Any other approach would disregard, indeed make a nonsense of, the purpose of the legislation. It is no part of the purpose of the legislation to obtain them a benefit in one area at the price of inflicting on them a disadvantage in another. 7. Articles such as those on the front page of The Sydney Morning Herald of 27/9/00, on its page 4 of 28/9/00 and on page 20 of the Daily Telegraph of 28/9/00 show that publicity of these proceedings is highly likely to be prominent and persistent. They involve issues which notoriously are likely to provoke not only controversy but bitter dissension and even near hysteria. (For a foundation of such a position see the quotation from Ms B. Baker "It's the way they are wired" in SMH 28/9/00.) 8. Without protection of the identity of the school, there are likely to be photographers and television camera crews swarming around it, and approaches to children, their parents, and others, for comments. 9. All this would affect relations not only within the school, but between each student and his whole circle of acquaintances. Many parents would feel it necessary to interrogate their children about activities and attitudes in the school. There is likely to e dispute between those, parents or children, who think the teacher should stay and any who think he should go. 10. Any school in this situation would suffer a massive disruption of and distraction from its educational mission which goes far beyond "mere embarrassment". It was suggested in submissions on behalf of the media interests that parents would want to know about the teacher. No parent, however much wanting to know, would want it spread all over the media, the prospect of which is clearly threatened in this case. 22 Counsel for the applicant in supporting the submissions on behalf of the school, also submitted that it was a matter for the school whether, and to what extent, it advised the parents of the employment of the applicant. Although there may be some embarrassment to the applicant, the embarrassment or potential embarrassment suffered by the applicant was not the basis upon which the applicant supported the submissions of the employer which relied on the effect on the students and the school. The issue was the extent that the school and students were likely to suffer. Those who would suffer would be the students as individuals and as members of the school who are assumed by the legislation to be vulnerable and the "messenger" to the school or students should not be the media which may adopt an emotional and ill informed approach. Further, publication of the identity of the applicant or the school could well render any decision that the Commission makes nugatory and of no utility. 23 Counsel for both the applicant and the school, in seeking the retention of the orders earlier made relied on the judgment of Mahoney JA (concurred in by Hope AJA) in the Local Court case at 163 - 164 where his Honour said that there is a well accepted recognition by the courts that, where "necessary", the principle of open courts is to be qualified. This is referred to as "the Scott" qualification: Attorney-General for New South Wales v Mayas Pty Ltd at 345. The qualification is well established and extends beyond the context in that case to informers, security officers and blackmail victims and to other cases where qualification of the open court principle has been seen as "necessary" and the qualification to be imposed "must be commensurate with the purpose for which the jurisdiction exists". Further, the fact that a pseudonym orders may be made in certain cases, such as extortion cases, does not mean that such orders must be made. "The circumstances must warrant the making of such orders in the individual case". In the Local Court case Mahoney JA had held that the limited restriction imposed by the magistrate did not "go beyond what was warranted by the circumstances of the case". 24 Finally, reliance was placed on the following passage from Mahoney JA's judgment at 166: I have adopted the principle established in Scott v Scott that it was within the competence of the court where necessary to direct that a matter, for example, a secret process disclosed in the proceeding but in camera might be ordered validly not to be published outside the proceeding: see Earl Loreburn ([1913] AC at 447 - 448). I had concluded that, if the person in question was identified before the Police Tribunal in circumstances in which, as a police informer his identity should be protected, it will be necessary for that protection that disclosure outside the court be not made of his identity. That, in my opinion, was 'necessary' to the functioning of the Tribunal in so far as it was to protect the identity of a police informer (at 473). 25 The media companies' submissions in reply may be shortly stated. As to the submission relying on s 578A of the Crimes Act that provision, it was said, had a wide operation and there was no basis for the Commission making orders covering in effect the same ground as it did. This submission was made notwithstanding the media companies' earlier express concession that the Commission's orders to the extent that they protected the complainant's identity in the District Court proceedings should remain. The submission made on behalf of the applicant that failure to maintain the orders would or may render the proceedings nugatory was contrary to the evidence before the Commission which showed that his position with his present school was secure subject to obtaining an order under s 9 of the Child Protection (Prohibited Employment) Act . Similarly, there was no basis to suggest that identification of the applicant in these proceedings would otherwise render the proceedings nugatory. Consideration and conclusions 26 For reasons which follow it is concluded that the Commission has jurisdiction to make non-publication orders. The orders the Commission will make at this point will be limited to those orders considered necessary to secure the proper administration of justice in terms of the proceedings in this matter. 27 The initial question to be considered as to the issue of the Commission's power to make or to continue the non-publication orders is whether, in proceedings under s 9 of the C hild Protection (Prohibited Employment) Act , the Commission has its usual powers under the Industrial Relations Act . The general principle is plain. That is, if jurisdiction is conferred on a court already in existence, the legislature is presumed to have taken the court as it finds it; the new jurisdiction is deemed to be exercisable according to the ordinary procedures of that court: see, for example, the judgment of the High Court in Electric Light and Power Supply Corporation Limited v Electricity Commission of New South Wales (1956) 94 CLR 554 at 560. 28 The conferral of power on the Commission by s 9 of the Child Protection (Prohibited Employment) Act has been made on the basis of this principle. This conclusion is confirmed by the form and some of the terms of s 9; particularly subsection (11). It is also confirmed by the terms of a number of other provisions in the Industrial Relations Act , such as s 146 which confers general functions upon the Commission and contains s 146(1)(e) which provides that the those functions include "functions conferred on it by this or any other Act or law". The privative provision in s 179 applies to any decision of the Commission, whether made under the Industrial Relations Act or another statute. The High Court has held that the principle applied to the Industrial Commission of New South Wales, a predecessor of the Commission, when hearing an administrative appeal under a statute other than the Industrial Arbitration Act 1940, which statute constituted the Commission and provided its basic or usual jurisdiction: Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 96. 29 The primary basis upon which jurisdiction should be found to exist is the power provided to the Commission in s 162(1) of the Act which provides: 162(1) The Commission may, subject to this Act, determine its own procedure. 30 Section 162(2)(b) is also relevant. It requires the Commission to conduct its proceedings "publicly" but also gives power "if it considers it necessary, privately". Section 162(1) is not to be construed as if its broad terms were read down by reference to the specifically enumerated powers in s 162(2) including s 162(2)(b); and to the extent that the media companies' submissions relied on a contrary proposition it is rejected. Reference may be made to the recent judgment of the High Court in Australasian Memory Pty Limited v Brien [2000] HCA 30 at [17] where in considering a submission that s 447A(1) of the Corporations Law was to be read down by reference to other particular provisions in the legislation, that contention was rejected; it was there held: As was said in the judgment of the Court in Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421: "It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words." Cogent reasons must be advanced, then if the power given by the general words of s 447A(1) is to be read down. Although the statutes and statutory schemes are significantly different, I do not consider that there is any basis to take a different approach as to the broad terms of s 162(1) of the Industrial Relations Act . 31 Although s 162 (1) is expressed as the Commission having power to determine its own procedure, it is clear from that subsection, when read in the context of s 162 as a whole, that the legislature has used the word "procedure" as one of wide meaning and operation. For example, the terms of s 162(2)(b) demonstrates that the Parliament has legislated on the basis that the power to close the court or to hear proceedings in closed court is a matter of procedure. 32 In any event, it is clear from the judgment of Handley JA in Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 at 392; (1993) 51 IR 193 at 199 - 200 that there is no clear line between matters of procedure and substantive rights. His Honour was considering rights of appeal and observed: A right of appeal appears to be a mere matter of procedure but it has long been recognised that it is also substantive: Colonial Sugar Refining Company v Irving [1905] AC 369 … The right of appeal to the [GREAT] Tribunal was therefore partly substantive. Section 162(1) gives the Commission power to determine its own procedure. As indicated, there is no basis to read down the width of that provision. The powers conferred are sufficient therefore to make the orders of the kind sought. 33 There is, however, an alternative basis for finding that the Commission has relevant power. This derives from a line of cases in relation to the construction of statutory provisions conferring power on inferior courts and administrative tribunals including bodies which have quasi-judicial functions and are bound to act judicially. As considered by Handley JA in Fines at 394 - 395, 202: Like an inferior court, the tribunal has powers derived by implication from the statutory provisions which confer jurisdiction upon it: see Grassby v The Queen (1989) 168 CLR 1. As Dawson J said in that case (at 17): It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from a statutory provisions conferring particular jurisdiction'. 34 His Honour's judgment was concurred with by Mahoney JA and Sheller JA. Mahoney JA made a number of additional observations. For example, his Honour made two references to Grassby v The Queen (at 390, 197 - 198). In the first of those references his Honour referred to the fact that "[a] statutory tribunal exercising judicial or quasi judicial powers has only such jurisdiction and powers as have been given to it by statute, either in express terms or by implication from those terms". His Honour also held that the tribunal, although possessing no relevant express power, had power, in a situation where the appellant had died during the hearing of an appeal, to allow the substitution of a legal personal representative for the deceased. His Honour added "if that be not within the terms of the express grant of power to the Tribunal, it would, in my opinion, be part of the power granted to it by implication, in the sense referred to by Dawson J in Grassby v The Queen (1989) 168 CLR at 16-17". 35 The precise question which calls for determination in this matter as to whether the Commission, when not sitting in Court Session, has the power to make suppression or non-publication orders has not, so far as the researches of counsel have revealed, been the subject of earlier decision of the Commission. Notwithstanding the importance of the authorities referred to above as providing an appropriate basis to identify the existence of relevant power, it is relevant also to refer to two recent decisions of the Commission where the question of implied powers have been considered. The first decision is that of Schmidt J in Hill v The Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201. The second is that of a Full Bench delivered earlier this year in Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38 at [5] - [7]; (2000) 98 IR 1 at 4. In the first of those decisions, her Honour considered whether the Commission had power to make an interlocutory order preserving threatened employment until the Commission could hear and determine the employee's claim for reinstatement. Her Honour observed at 206: There seem to be no authorities which deal with the construction of statutes which establish tribunals such as the Commission. Her Honour had observed immediately prior to that passage: Both parties relied upon the approach taken in various authorities to the construction of statutes which grant particular jurisdiction and powers to various courts - Magistrates' Courts, District Courts and various superior courts of record, including the predecessors to the Industrial Relations Commission of New South Wales in Court Session. and subsequently said at 207: I am conscious, of course, to the difference between a statutory tribunal such as the Commission and a superior court of record, as the Commission in Court Session. Yet it seems to me having reflected upon the matter that the principles of statutory construction which must be applied to the Act in determining the limits of the powers and jurisdiction granted to the Commission, must be similar to those to be applied in determining the powers and jurisdiction granted to the Commission in Court Session by the same legislation. It would be a most peculiar thing after all if particular rules of statutory construction were to be applied to the same statute in determining the powers and jurisdiction of the two bodies established by that statute. 36 Her Honour then discussed the matter by reference to long standing authorities such as the judgment of Sir Samuel Griffith CJ in the High Court in D'Emden v Pedder (1904) 1 CLR 91 at 109 - 110 and the judgment of the Full Federal Court in Parsons v Martin (1985) 5 FCR 235 at 241. In the result her Honour held at 208: In this case the adoption of that case to the construction of provisions of the Act in question in these proceedings, carries with it the necessary conclusion that the Commission is empowered to make an interlocutory order under s 89(7), preserving the employment of an employee who brings a claim under s 84 about a threatened dismissal, so as to ensure that the Commission will be in a position to determine that claim, as provided by s 87(1) of the Act. 37 In the second decision the Full Bench referred to a number of authorities including the judgment of Samuels JA in Hornsby Shire Council v Porter (1990) 19 NSWLR 716 at 725; the judgment of Pearlman CJ in another local government case, Hamman v Lake Macquarie City Council [1998] NSWLEC 98 at [10] - [11], as affirmed by the Court of Appeal in Hamman v Lake Macquarie City Council [1999] NSWCA 82 at [17] and also the judgments, respectively, of the Commonwealth Industrial Court and Schmidt J in this Commission in Drinkwater v Amos (1972) 20 FLR 359 at 361 - 362 and Hill v Director-General of the Department of Education and Training (NSW) at 207. The Full Bench also relied upon the principle in D'Emden v Pedder (1904) 1 CLR 91 at 109 - 110 where Sir Samuel Griffith CJ said: … where any power or control is expressly granted there is included in that grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective. This is, in truth, not a doctrine of any special system of law, but a statement of a necessary rule of construction of all grants of power, whether by unwritten constitution, formal written instrument or other delegation of authority … 38 These decisions of the Commission are, in my view, consistent with the judgment of the Court of Appeal in Fines and of the High Court in Grassby v The Queen . Further, it is in the sense referred to in D'Emden v Pedder that the test referred to in Grassby v The Queen or the term "necessary" is to be understood. As Gaudron , Gummow and Callinan JJ held in Pelechowski v Registrar, Court of Appeal (1999) 73 ALJR 687 at 696 by reference to Attorney -General v Walker (1849) 154 ER 833 at 838 - 839 and State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447 at 452, the term "necessary" in this situation is to be understood in the sense of identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies. It does not have the meaning of "essential"; rather it is to be "subjected to the touchstone of reasonableness". 39 It is clear on this analysis, if the basis of the jurisdiction or power is not to be found in s 162(1) or in s 162(2)(b), then it is to be found in the implied power arising from the particular conferral of power on the Commission under s 9 of the Child Protection (Prohibited Employment) Act . Consideration of the terms of that Act makes plain that the applications which come before the Commission will involve persons who have been convicted of serious sexual offences. The evidence concerning such persons will in many cases include reference to the victims of such sexual offences. It may include reference to alleged victims of other incidents which may not have led to criminal or other proceedings. Absent an implication of the requisite power to suppress, for example, the names of such victims, the conferral of power on the Commission to deal with the important jurisdiction given under that section would be incomplete and in a number of important aspects ineffective. Similarly, and without at this stage considering in detail the appropriate circumstances in which such orders might be made, the nature of the jurisdiction conferred on the Commission under s 9 is itself such that the conferral of power would be necessarily incomplete but for appropriate implication of power to make non-publication or non-identification orders. 40 As to the submission made by reference to s 578A of the Crimes Act , it is convenient to set out the relevant parts of that provision which are: 578A Prohibition of publication identifying victims of certain sexual offences (1) … (2) A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. Penalty: In the case of an individual - 50 penalty units or imprisonment for 6 months, or both; in the case of a corporation - 500 penalty units. (3) This section applies even though the prescribed sexual offence proceedings have been finally disposed of. … The width of the prohibition is shown by the limited circumstances set out in s 578A(4) where the section does not apply. 41 As to the submissions of the applicant relating to the argument that failure to continue the non-publication orders would or may result in the proceedings being rendered nugatory, it is necessary to consider in the relevant perspective the purpose of the particular provision. The section has to be considered in the context of the legislation as a whole which, but for the powers of the Commission and the Administrative Decisions Tribunal under s 9, renders unemployable in child related employment any person to whom the legislation applies. The purpose of the powers given to the Commission and the Tribunal under s 9 is accordingly to consider whether, subject to certain stringent and specified criteria, it is appropriate to remove the prohibition and thus to render the applicant employable in child related employment. Child related employment includes employment as a teacher. 42 Also relevant is the consideration referred to during submissions that an order made by the Commission under s 9(1), or a stay granted s 9(6), does not require an employer to employ a person in respect of whom an order or stay is granted. An order or stay merely permits employment which would otherwise be prohibited and illegal. It does not require such employment. So considered it is clear that the powers in the Commission under s 9, both at a final and interlocutory stage, are cognate with its powers under, for example, s 84 of the Industrial Relations Act relating to an unfair dismissal. Circumstances might be envisaged where a person might bring, in related applications, proceedings under s 9 of the Child Protection (Prohibited Employment) Act and also s 84 of the Industrial Relations Act . Further, and although it might be rare in practice, a situation may be postulated where the Commission was exercising jurisdiction under s 9 and circumstances arose where, acting on its own motion under s 162(2)(i) of the Industrial Relations Act , the Commission also exercised powers under s 84 and s 89 of that Act. 43 The question then arises is whether the publicity which no doubt will likely occur as a result of the making of the present application would be inconsistent with the grant to the applicant of the right to make the application, and a failure to secure the proper administration of justice in terms of the Commission's jurisdiction under s 9. This is in effect a question whether the failure to continue the non-publication orders would have the effect of rendering nugatory the Commission's jurisdiction under s 9 either at all, or in the event that such an order was made in favour of the applicant. In making the above finding it is not suggested that situation will occur in every application under s 9 of the statute. However, if there had been any doubt that it would occur in this case it is removed by the terms of the newspaper articles tendered by counsel for the school. 44 It may be, as submitted by senior counsel for the media companies, that it was unlikely that the intervening employer will not continue to employ the applicant, subject only to a continuing order under s 9(1) or s 9(6). However, the purpose of the legislation is not to render a person employable by a particular employer but rather to render a person employable in child related employment, subject to the person obtaining an order under s 9(1). Although an order may be subject to conditions, it is not necessary at the interlocutory stage to consider whether any orders, and if so, what orders or conditions would be imposed on the applicant should he be successful in obtaining final relief. Nor is it necessary to restrict in any way the conditions which might be imposed in the context of final relief. The question is, would it be contrary to the administration of justice if, notwithstanding he may have obtained an order under s 9, that the applicant is likely to be rendered unemployable in the relevant area by reason of publication in the media. 45 There are dicta in many of the relevant authorities which specifically provide that the limited circumstances in which a court of law might sit in camera or prohibit publication of its proceedings in whole or in a partial way do not apply to administrative bodies. For example in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 53, Kirby P referred to a number of authorities including the advice of the Privy Council in McPherson v McPherson [1936] AC 177 at 200 where their Lordships held that "publicity is the authentic hall-mark of judicial as distinct from administrative procedure". His Honour also cited as relevant the following passage from the judgment of Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520: It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted "publicly and in open view" ( Scott v Scott [1913] AC 417 at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for "publicity is the authentic hall-mark of judicial as distinct from administrative procedure" ( McPherson v. McPherson [1936] AC 177 at 200). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. If the Act had empowered the Supreme Courts when exercising matrimonial jurisdiction to sit in closed court in appropriate cases I should not have thought that the provision went beyond the power of the Parliament. In requiring them to sit in closed court in all cases - even proceedings for contempt - the Parliament has attempted to obliterate one of their most important attributes. This it cannot do. See also the speech of Viscount Haldane LC in Scott v Scott [1913] AC 417 at 437. 46 It is appropriate to decide this matter generally on the basis of the authorities relating to courts stricto sensu and not by reference to the possibly broader approach available as to administrative bodies for a number of reasons. First, the authorities are not entirely clear; for example, the tribunal, the subject of the judgment in the Police Tribunal case, was an administrative tribunal albeit created by its statute as an inferior court of record. Because of this, McHugh JA dealt with the matter generally on the footing that the tribunal was an inferior court. However, his Honour's judgment may be thought to support the view that there is no relevant difference in this area as between inferior courts and administrative tribunals. Second, the conclusions necessary to decide the present issue may be reached by reference to the authorities decided as to courts. Finally, and in light of the earlier two reasons, it may be appropriate to leave this issue for resolution to another occasion where the circumstances require it to be resolved or in proceedings at Full Bench level of the Commission. In any event, it may not be necessary to determine this question. It may have little practical significance as a non-publication order is unlikely to be made unless a finding is made that it is "necessary" in the relevant sense. If the broader view as to jurisdiction is taken then the finding is crucial to the exercise of the discretion to make the order. If the narrower view is taken, the finding is a sine qua non for both the existence of power and the basis for the exercise of the discretion. 47 The principles laid down by the authorities are clear. Their application in specific cases is not as clear, and particularly so in the present case because it is the first under the legislation which came into force earlier this year. Proceedings brought under the present legislation raise particular difficulties because of the unusual nature of the legislation and the fact it operates at the intersection of a number of different areas including the important area of community activity represented by the education systems of this State. The principles at a general level may be usefully seen in two recent judgments of the Supreme Court. In R v Richards and Bijkerk [1999] NSWCCA 114 at [35] - [39] Spigelman CJ speaking for the Court of Criminal Appeal which also comprised Greg James J and Smart AJ, held in relation to an appeal as to an order to close the court: 35 In his judgment his Honour [the trial judge] quoted from the case of Mr C (1993) 67 A Crim R 562 at 564 to this effect: ... this court has an inherent (or implied) power to make such an order where it is necessary that the public be excluded in order to ensure that justice is done in the particular case ... the authorities make it clear that the circumstances in which it would be appropriate for such a procedure to be followed in any case would have to be exceptional and special. 36 The reference to an inherent power is not appropriate in the case of the District Court, but a reference to an implied power is appropriate - see for example, Grassby (1989) 168 CLR 1 at pp 16 - 17. However, as I have indicated, no question of power has arisen on the submissions made to his Honour or to this Court. 37 The public interest in the open administration of justice has frequently been reiterated. The paramount duty of the courts in administering justice according to law is to ensure that justice is done. All else is subservient to the discharge of this duty. In the ordinary course, court proceedings are conducted in public and exposed to the catharctic glare of publicity. Publicity of proceedings is one of the great protections against the exercise of arbitrary power and a reassurance that justice is administered fairly and impartially. As Lord Hewart put it in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, "Justice must not only be done but be seen to be done". 38 The courts should be open to all, so that anyone who wishes may see how justice is done. The privilege belongs to the public generally and no special privilege is conferred on those who report proceedings. In this regard I refer to the observations of Samuels JA in the case of David Syme & Co Limited v General Motors Holden Limited (1984) 2 NSWLR 294 at 310 where his Honour said: It is well established that in the ordinary course the courts will conduct their proceedings in public. It is fundamental that the courts should be open to all, in order that all who are minded to do so may see how justice is administered ... that entitlement is not limited to those who have business in the courts as litigants; nor, I myself would add, does it confer any special privilege upon those who report proceedings for the press or electronic media. The privilege to see what the courts do and say belongs to the public generally. 39 It is only in wholly exceptional circumstances, where the presence of the public or public knowledge of the proceedings is likely to defeat the paramount duty of the courts, that the courts may proceed in camera. 48 Levine J in Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1099 at [59] - [66] and [78] held, in relation to an application for a pseudonym order by reference to submissions made which, with immaterial exceptions, were accepted as correct: 59 For the plaintiff it was submitted that what is described as the principle of "open justice " is paramount and that whoever seeks to depart from it must make out a case therefor ( Scott v Scott [1913] AC 417 at 437 - 8; Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 at 20D-E per Hunt J; Raybos Australia Pty Limited & Anor v Jones (1985) 2 NSWLR 47 at 54A-C per Kirby P; John Fairfax & Sons Pty Limited v Police Tribunal of NSW & Anor (1986) 5 NSWLR 465 at 477B per McHugh JA). 60 The test which must be satisfied before the Court can or should depart from the principle of open justice is whether or not it is " necessary " for the administration of justice that such an order be made: John Fairfax & Sons Pty Limited v Police Tribunal of NSW & Anor at 476-477 per McHugh JA; John Fairfax Group Pty Limited & Anor v Local Court of NSW & Ors (1992) 26 NSWLR 131 at 161B per Mahoney JA; Attorney General for NSW v Mayas Pty Limited (1988) 14 NSWLR 342 at 345F per Mahoney JA. 61 The material available in this application, at its highest, suggests that the witnesses or third parties identified by the witness such as their families would suffer "embarrassment". "Embarrassment" can never justify such an order: Scott v Scott at 438 and 439; Raybos at 54C; Fairfax v Local Court at 143 and 163; Fairfax v Local Court at 3 per Kirby P; Savvas (1989) 43 A Crim R 331 at 335 - 6. In the instant case in relation to none of the complainants is there material that would permit any application on his behalf to maintain the status quo or to preclude the vacation of the order by reason of any such complainant falling into categories recognised, more often in the criminal law: informers, victims of blackmail or where interests of the security of State are involved; or, in civil cases, the protection of confidentiality. 62 Examples of witnesses in criminal trials being given a pseudonym because it is " necessary to secure the proper administration of justice " can be found in Savvas at 335-336; Mr C (1993) 67 A Crim R 562 at 564-565; The Queen v Ngo, Tran & Dao , ( Wood CJ at CL 16 July 1999, unreported). 63 The inherent power of the Court to deal with this matter has been at least recognised ( Reid v Howard (1995) 184 CLR 1 at 16); it is not " at large " ( Reid (supra) ) nor is the jurisdiction conferred by s 23 of the Supreme Court Act 1970 ( Reid (supra)) . That section provides that the "Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales". Section 80(b) (subject to any Act the business of the Court may be conducted in the absence of the public - (b) where the presence of the public will defeat the ends of justice), does not derogate from the nature of the power the Court can exercise as identified especially in Scott v Scott at 438: not a matter resting in the judge's " mere discretion "; it is one of principle, turning on " not convenience " but on " necessity ". This is to be contrasted with the situation arising under s 50 of the Federal Court Act or s 373(4) of the Industrial Relations Act 1988 (Cth.): As to the former see Australian Broadcasting Corporation v Parish (1980) 43 FLR 129 as to the latter see Chambers v James Cook University of North Queensland (1995) 61 IR 145. 64 Pausing there, it is submitted, as a matter of general principle, on the material available in this application, no case at all has been made out to establish that it is necessary for the proper administration of " open justice " for the orders presently in place to be maintained. 65 It is further submitted that the principles of open justice and " necessity " as applying in the circumstances of this litigation direct attention to factors that would make pseudonym orders inimical to the administration of open justice. 66 Orders in relation to pseudonyms would prevent what is described as the beneficial aspects of an " open trial" as identified by Wigmore , Evidence 3rd ed. Volume 6 para 1834 where it is stated that the publicity of the judicial proceeding is a requirement of much broader bearing that its mere effect upon the quality of testimony. Its operation tends to "improve " the quality of testimony especially in the modern era where publicity given by media reports of trials is often the means of securing useful evidence. The openness of the trial would discourage false testimony, might induce people to come forward once the identity of witnesses is disclosed (and this can operate in the defendant's favour as well as the plaintiff's) and it would increase public respect for the trial process (see also Raybos at 52B per Kirby P). … 78 In John Fairfax Group v Local Court of NSW Kirby P said at 141C: At common law the rule is absolute, as the Law Lords were at pains to stress in Scott v Scott and have done since both in the Privy Council ... and in the House of Lords ... Exceptions have been allowed by the common law to protect police informers ... blackmail cases ... and cases involving national security... The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of Court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case. 49 Accordingly, justice is normally to be exercised in open court. It will only be in rare and exceptional cases where a court or tribunal will make an order having a different effect, and then only where it is "necessary" for the administration of justice that an order be made. 50 There are, however, within these principles some situations where an order may appropriately be made. As Kirby P held in the passage last cited in the judgment of Levine J, "[i]f the very openness of the Court proceedings would destroy the attainment of justice in the particular case … or discourage its attainment in cases generally or would derogate from even more urgent considerations of public interest …" the relevant necessity arises. 51 Similar observations were made by his Honour in Raybos Australia Pty Ltd v Jones at 54: It is clear that the common law admits certain exceptions to the general rule of publicity. Scott v Scott acknowledged certain exceptions. Others have been proposed or accepted by courts. They include cases where a court is charged with the responsibility for a child invoked by the Queen as parens patriae; cases where the court is charged with the responsibility for the mentally ill; cases where trade secrets, secret documents or communications or secret processes are involved; cases where disclosure in a public trial would defeat the whole object of the action (as in blackmail cases or cases involving police informers); to keep order in court; in certain circumstances of national security and in the performance of administrative or other action that may properly be dealt with in Chambers. (emphasis added) 52 I do not consider that there is any statement in the other cases relied upon in the submissions to the Commission which denies the correctness of those statements, the principle laid down or its application as identified. 53 In light of the conclusions reached in this matter, and the approach taken, it is not strictly necessary to determine whether, as the media companies submit, the decision of Schmidt J in X v NSW Department of Education and Training was correct in principle or in fact since in the present decision, the Commission has independently considered the leading authorities and has reached a decision based on them. However, a consideration of her Honour's decision indicates the issue was approached in terms of the relevant principles. For example, it was made clear (at 8) that her Honour had considered the application to hear the proceedings in private on the basis of whether it was "necessary" to do so. 54 Turning then to the grounds relied upon by those supporting non-publication orders and the submissions of media companies that they should be dissolved, the Commission concludes that each of the grounds relied upon for the maintenance of the orders has been made out as being "necessary" for the proper administration of justice in these proceedings although it is appropriate that the orders made should be varied. It is considered that each of the three grounds separately satisfies the "necessary" test. However, the primary basis upon which the decision is made is the first ground. In conjunction with that ground, the other two grounds cumulatively represent a compelling case for maintaining orders. The three grounds may be summarised as: first, the potential of the identification of the applicant in the proceedings to render nugatory the proceedings themselves; second, the inappropriate identification, should the applicant be identified, of the complainant in the proceedings which led to his conviction and the potential otherwise should the applicant be identified of leading to further stress or trauma to the complainant in those proceedings; and, third, the potential or reality of damage or harm to the students at the school at which the applicant is presently teaching, in the event of either the applicant or the school being identified by the media, it being reasonably clear that identification of one would lead to identification of the other. It is not considered that the effect such orders might have on the quality of the evidence is such that they should not be made. 55 As to the first ground, and as earlier observed, the purpose of the powers vested in the Commission under s 9 is, in certain limited circumstances and subject to the meeting of the stringent specified criteria, to render employable in child related employment, including teaching, a person who has by the operation of the statute been rendered relevantly unemployable. The Commission finds on the basis of the material before it, including the matters reported in the three newspaper articles tendered by counsel for the school and on the basis of the applicant's history of employment since the offences occurred, that it is more likely than not that publicity by way of identification of the applicant or the school will render any order which the Commission might make in favour of the applicant nugatory. If not in relation to the school where he is presently employed, and that possibility is not foreclosed, at least otherwise. To paraphrase the words of Kirby P in the cases earlier considered, identification of the applicant is likely to "defeat the whole object of the action" and is likely to "destroy the attainment of justice in the particular case". See also the similar formulation by McHugh JA in the Police Tribunal case at 481 where his Honour referred to the purpose of an order being "to enable the Tribunal to act effectively within its jurisdiction" as providing the jurisdictional foundation for the making of such orders. In view of the grounds of the opposition by various parties to the removal of the orders made, it has not been feasible to refer in any detail to the content of the matters relied on by them. 56 As to the second ground, although there is considerable substance in the submissions of senior counsel for the media companies when he observed that the submissions made in reliance upon s 578A of the Crimes Act do not give sufficient weight to the continuing practical and legal effect of the prohibition contained in the section and the criminal offence created by it, nevertheless and notwithstanding the scope of the statutory prohibition on publication contained in that provision, the factual circumstances before the Commission as to this ground present a rather unusual situation. The terms of the newspaper articles go some considerable distance towards identifying, if not the applicant personally, at least the school at which he is presently employed. The identification of the school is likely to lead to the identification of the applicant. This circumstance also has a real potential to identify, at least in the community where the offences occurred, both the applicant and the complainant. 57 Although this may not be, strictly speaking, a breach of s 578A, and may not lead to the commission of an offence under that section when properly construed, nevertheless such an identification would appear to be inconsistent with the intention of the legislature. At least that is so as when it is recognised that the legislation was intended to protect a person in the situation of the complainant. Such considerations may thus not be adequately dealt with by the criminal sanction contained in the section. The Commission considers that it is necessary for the proper administration of justice that these proceedings not become a means whereby a person who is intended to be the beneficiary of the protection provided by the provision in the Crimes Act loses that protection even if only in a partial way. For example, in a particular community. It may be that the legislature in enacting the present legislation did not give adequate consideration to its potential to lead to adverse consequences to persons whom the legislation was designed to protect which presumably includes not only children or young people generally but also the complainants in, or victims of, prior offences whether those offences were prosecuted or not. Nevertheless, it is clear on the authorities that where it is necessary for the proper administration of justice that some limitation of identification or publication be made, it is open not only to superior courts, but also to statutory tribunals and inferior courts to make appropriate orders, even if the scope of their powers is narrow. 58 The harm in relation to affected persons, it should be stressed, is not merely "embarrassment" in terms of the authorities: see for example Marsden v Amalgamated Television Services Pty Limited at [61]. What is at issue here is of considerably greater significance. There can be no public interest in, nor can it be described as mere "embarrassment", for there to be a direct or indirect identification of a complainant in a prior criminal proceeding, even when those proceedings took place some years ago, and this is particularly so where the complainant was then a young person. The media companies' initial concession accepted this situation. Clearly, these proceedings do not provide a basis or the occasion for going behind any relevant conviction. Similarly, they are not the occasion, unless it was absolutely necessary, to place a complainant in a situation of reliving the distress, hurt or humiliation of earlier proceedings or incidents which led to them. To permit these proceedings to have that effect or potential would be contrary to the proper administration of justice and, to again paraphrase passages earlier cited from Kirby P, to permit that situation to occur would discourage the attainment of justice in relevant cases generally both in this Commission and otherwise. It could not be seriously considered that the legislature intended that the existence of the right given by s 9 of the Act, and the exercise of that right, could by publicity as to the proceedings lead to further stress or distress for the victim of the offences or her family. The cumulative effect of the matters relevant to the first two grounds also provides the necessary basis to maintain orders as to the schools where the applicant was previously employed and students at those schools. Absent those orders the orders as to the applicant and complaint are unlikely to be effective. 59 Similarly, thus leading to the third ground, it could not be seriously expected that the legislature intended that the exercise of the right to make an application under s 9 could lead to disruption to the schooling of children irrespective of whether they were children of the school connected with the original offences or of a subsequent employer of an applicant. The terms of the articles in evidence show that there is potential for that to occur. Again, this is not a question of mere "embarrassment" but disruption to the schooling of persons who have no connection to the charges except for the applicant's current employment. It is not for the Commission to decide at this stage whether it was appropriate for the school to have employed the applicant. It was not illegal to do so at the time it occurred. Considered and apparently carefully weighed material has been placed before the Commission as to decisions which were taken by the school at that time. It is not illegal to continue to employ the applicant subject to the grant of final or interlocutory relief under s 9. This is not to say that parents and other staff at the school may not or should not be appropriately advised of relevant facts and circumstances, and as much was accepted by counsel for the school. However, as counsel submitted, the parents would wish that advice to come from the school itself rather than the media. 60 Counsel for both the school and the applicant stressed that the legislation proceeds on the basis of vulnerability and impressionability on the part of the children and that these considerations should be taken into account in evaluating their submissions. It should, however, be stated that the vulnerability and associated concepts applicable to children arising from the legislation relates particularly to the question of inappropriate sexual conduct by persons in whose care children have been entrusted. It may not necessarily follow that the legislature intended that children and young people be treated as vulnerable and impressionable for all purposes, including publicity which might be given to the school they attend. Nevertheless, heightened publicity of an adverse kind in relation to their school cannot be considered as in the interests of the students or likely to have any effect other than to disrupt their education. The time of year when the orders were made was clearly a time when any disruption to schooling or education should be kept at an absolute minimum. That situation still persists. The Commission considers it is contrary to the proper administration of justice and necessary for its proper administration in these proceedings that such disruption not arise from the fact of these proceedings. However, monitoring of the orders made should occur to permit the school, in its own way, to notify members of the school community of appropriate circumstances relating to this matter. At the appropriate time, modifications will be made as to the orders in that respect. 61 It is appropriate as to the final ground relied on by the media companies to observe that although McHugh JA held in the Police Tribunal case that the tribunal had no power to prohibit the publication of the identity of a potential witness whose identity had been revealed in proceedings in open court, his Honour arrived at that conclusion upon a particular basis. His Honour held that the tribunal's order in that respect was not "necessary" for the exercise of its jurisdiction in the proceedings or more generally; for example, it "was not designed to prevent the publication of evidence whose publication would destroy the object of the proceedings". His Honour's judgment continued at 480 - 481: So the Tribunal must have at least concluded that is was not necessary to enable it to act effectively within its jurisdiction that the anonymity of Mr "X" should be protected from disclosure in its proceedings. If that is so, I do not see how the exercise of its jurisdiction required the making of the order in question since the order did nothing to facilitate the exercise of the Tribunal's jurisdiction. … The order in question was simply designed to protect a person who was not a party or witness from the perceived effects of evidence given publicly in the Tribunal. The order was not designed to prevent the publication of evidence whose publication would destroy the object of the proceedings . It was not an order made in pursuance of a requirement of public policy or of a statutory provision. If the tribunal had jurisdiction to make this order, it must have jurisdiction to make an order protecting a stranger from the detrimental consequences of publishing any evidence given before it. That would be extending the jurisdiction of an inferior tribunal beyond anything ever previously suggested. The statements in the cases to which I have referred deny the power to the superior courts. It is not possible to grant it to tribunals with limited jurisdiction. Accordingly, in my opinion the order of the Tribunal was beyond its powers. This is not a case of a body of limited jurisdiction wrongly exercising a power which it does have. The purpose of the order was not to enable the Tribunal to act effectively within its jurisdiction but to prevent people outside the Tribunal publishing evidence which had been given in public before the Tribunal . Accordingly the order was one which the Tribunal simply had no power to make. (emphasis added) 62 Although Mahoney JA and Hope AJA in the Local Courts case may have considered his Honour's decision was made on a wider basis I do not consider that is the case. His Honour's reasons subsequent to the passages set out above are, in my opinion, to be seen as an analysis and conclusion that there was an absence of express power in circumstances where the implied power had already been held to have been exceeded because the tribunal's orders, as his Honour found, were not "necessary" in the way laid down by the authorities as a prerequisite to the existence of the implied power. 63 It follows, therefore, that McHugh JA's judgment in the Police Tribunal case is not authority contrary to the proposition that a non-publication order may be made by a statutory tribunal or inferior court as to the identity of a person who might have been identified in the proceedings where it is relevantly "necessary" for the proper administration of justice. 64 The approach by McHugh JA in the Police Tribunal case and in Mayas Pty Limited as to the question of prior reference to or publication of the identity of persons the subject of subsequent suppression or pseudonym orders is not without some difficulty. If the submissions of the media companies as to this matter are accepted, it would leave the proper administration of justice and its protection to a variety of circumstances which, at least in other situations to those before his Honour, would raise some doubt as to the effectiveness of the legal system to protect its own processes. For example, the rigid application of their approach could bring about a situation where the ability of a court or tribunal to protect the administration of justice in proceedings before it could depend upon the "happenstance" of the timing of an application by counsel or an application made by, for example, an unrepresented litigant or, in proceedings before the Commission, by an officer or employee of an industrial organisation (see s 166 of the Industrial Relations Act ) who would not be a practising lawyer, although in some circumstances may be legally qualified. It also leaves the possibility that the legal effectiveness of the orders of a court or tribunal may depend on mere accident or inadvertence; for example, the possibility of an advocate or witness inadvertently, or perhaps intentionally, referring to an individual prematurely or inappropriately. 65 It is, however, unusual in terms of the cases referred to, to identify a situation where, as here, it has been held as the primary basis for the making of the order was that the remedy provided by the legislature may be rendered nugatory but for the continuation of orders, albeit in altered form, and with the proper administration of justice thereby preserved and thus necessary for the proper discharge of, in this case, the Commission's jurisdiction. In those circumstances it had not been considered that the authorities stand in the way of the orders which will be made. Indeed, it is important to observe that in neither of the cases in which McHugh JA referred to the prior reference in court to the identity of the person whose identity was subsequently suppressed, was it considered that the effectiveness of the administration of justice in the instant proceedings required the non-identification of the particular person whose identity was the subject of the order at first instance. That is not the situation here. 66 The judgment in Mayas Pty Limited turned on whether actual knowledge of the order made in that case was necessary for publication inconsistent with it to constitute contempt of court. The primary basis upon which the case was decided involved a rejection of the claimant's submissions that actual knowledge of the order made by the magistrate was necessary for the opponent's publication inconsistent with it, to constitute contempt of court. 67 The court, having held that that conclusion was sufficient to dismiss the summons, then dealt with a submission of the opponent that the magistrate had no power to make the order. As is clear from the judgment of McHugh JA the only basis proffered by the claimant as to power was s 77A of the Crimes Act and although counsel for the claimant did not rely upon it, another provision of the Crimes Act , s 578, was also considered by the court in determining that no statutory provision supported the order made. It was in that context that McHugh JA held that if a court allows evidence to be given in open court then in the absence of statutory authority it has no power to prevent the publication of part of the evidence. 68 The judgment of Mahoney JA, at 348, shows the very limited way in which the matter had been argued. The claimant's case as put to the court was not based upon the inherent powers of a magistrate in committal proceedings nor it appears was it based upon the related conceptual framework deriving from the learning of the courts as to implied powers. His Honour's judgment makes plain that no other source of power was relied upon by the claimant in that matter other than the specified statutory power said to have been given by s 77A of the Crimes Act . Accordingly, it was on that basis that the court rejected the submissions made. In my opinion, the approach of McHugh JA should be seen in this context. In other words, the absence of an express statutory power was a key basis that told against the power to make the order in those circumstances. 69 Mahoney JA said in the Local Court case at 166 that he had in the Police Tribunal case adopted the principle established in Scott v Scott , at 447 - 448 per Earl Loreburn , that it was within the competence of a court, where necessary, to direct that a matter disclosed in the proceedings in camera might be ordered validly not to be disclosed outside the proceedings, on the basis that a direction or order to that effect was "necessary" to the functioning of the tribunal. McHugh JA in the last-mentioned case held that the tribunal must have concluded that the fact that legislation setting up the tribunal had not conferred a specific power to prohibit publication of evidence did not necessarily invalidate the order made at first instance. Such an order was, however, only valid if it was really necessary to secure the proper administration of justice in proceedings before it. His Honour's judgment thus turned upon his conclusions that the tribunal must have concluded that it was not necessary to enable it to act effectively within its jurisdiction that the anonymity of the proposed witness should be protected from disclosure in its proceedings and the order in question was simply designed to protect a person who was not a party or witness from the perceived effects of evidence given publicly in the tribunal. It was not designed to prevent the publication of evidence whose publication would destroy the object of the proceedings: Police Tribunal at 476 - 477, 480. 70 The situation in these proceedings is quite different to the situations in the Police Tribunal case and in Mayas Pty Ltd . Although in some of the cases there is reference to what might be termed closed categories of cases where non-publication or in camera orders may be made (for example, Scott v Scott at 434, 437 where reference is made to "defined exceptions" as to wardship, lunacy and secret process proceedings) the approach set out in the judgments of Kirby P cited at paragraphs [50] and [51] makes clear that the principle is not narrowed to defined exceptions. The more general statements of principle must be considered and applied in these proceedings since they relate to a novel and unusual jurisdiction not being exercised by a court but by an arbitral or administrative body, although one required to act judicially. 71 I consider that the way in which McHugh JA approached the matter does not lay down any rule as to the matter now before the Commission where it has been decided that the continuation in an appropriate form of a non-publication order should be made to preserve the proper administration of justice in the present proceedings in terms of recognised authorities and clear statements of principle derived from judgments of Kirby P and McHugh JA referred to at paragraph [55]. In those circumstances and in light of the finding as to the necessity required, the Commission holds that it has jurisdiction to make the orders or to continue them in a modified form. In my opinion, where after considerable debate and there is a clear contradictor, a tribunal or court concludes that the proper administration of justice requires non-identification orders or non-publication orders on the basis that its process and proceedings may be rendered nugatory but for the making of such orders, that finding provides the jurisdictional and discretionary basis, on even the narrowest ground, to make such an order notwithstanding any prior reference to the identity of an affected person either in or outside court. 72 Returning then to the orders, it is appropriate to modify the original orders to make clear that the Industrial Registrar in notifying the Commissioner of Police as required by s 9(10) of the statute may, on an appropriately confidential basis, advise the Commissioner of Police of the identity of the school and of the applicant. Similarly, it may be appropriate should the orders continue to require the applicant to notify any future employer of any orders made in these proceedings. However, that is a matter to be considered in the final proceedings. 73 It is also considered appropriate, however, to replace the orders made in light of the more detailed submissions in this part of the proceedings. The first order made should be reformulated in terms of the approach which Mahoney JA said in Local Court (at 166) was in relevant circumstances appropriate. The second order should be made more particular and thus clearer for the purposes of the proceedings. Although order 2 will more directly lead to the considerations as to contempt referred to by McHugh JA noted in paragraph [15] above, it does not obviate the need to retain the first order in modified form. 74 Finally, it should be made clear that the decisions on these matters involve no finding as to the merits or otherwise of the applicant's application under s 9, except to the extent that such matters have already been considered for the purpose of making the interlocutory stay order. Those matters may have to be considered again in the final proceedings listed for hearing in December. Similarly, the tests and considerations here applied have been those laid down by superior courts in relation to situations concerning the proper administration of justice and do not in any way condone the conduct of the applicant which led to his conviction. It is also relevant to observe that the legislation being considered is, not surprisingly in terms of its subject matter, history and purposes, almost unique. Although the Commission in deciding the present application has followed well established principles, because they were dealing with entirely different factual circumstances none of the cases provides or refers to any comparable factual situation to that which has been considered in these proceedings. For example, the questions relating to the interests of school children do not appear to feature in any of the decided cases, other than the judgment of Schmidt J earlier referred to. 75 The Commission therefore makes the following orders: 1. The application made by the media companies for the setting aside of the non-publication orders made on 26 September 2000 is refused. 2. Those orders, however, are replaced by the following orders numbered 1, 2, 3, 4 and 5: 1. The Commission orders and directs that, until further order of the Commission, there shall be no publication in any report of these proceedings of the names of (a) the applicant in these proceedings; (b) any school in or by which the applicant has been or is now employed; (c) any student or former student at these schools; and (d) any detail likely to lead to the identification of any of the above. 2. The Commission orders and directs, until further order of the Commission that - (a) the applicant shall be referred to as A; (b) the school where and by which the applicant is now employed shall be referred to as B; (c) the schools where the applicant was previously employed shall be referred to in chronological order as C, D et cetera, as necessary; and (d) students at such schools, including the complainant in relation to the applicant's convictions, shall be referred to by appropriate letters of the alphabet as a pseudonym which, in the event of disagreement between those appearing in the proceedings, shall be nominated by the Commission. 3. Nothing in these orders is to prevent the Industrial Registrar providing in relation to order numbered 2 made by the Commission on 27 September 2000, the identity of the applicant and school at which he is currently employed to the Commissioner of Police on an appropriately confidential basis. 4. Leave is granted to the school, after conferring with representatives of the applicant and the respondent, to file short minutes of orders varying these orders to permit it to advise appropriate members of the school community of these proceedings, facts relevant to them, and the orders made in the proceedings. 5. Liberty to apply granted in relation to the orders made on 26 September 2000, and as varied today, to the applicant, the respondent Commission for Children and Young People, and to the school. _______________________ 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.