Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brooks v Secretary, Department of Family and Community Services [2017] NSWCATAD 300 Hearing dates: 26 September 2017 Date of orders: 16 October 2017 Decision date: 16 October 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: 1. Paragraphs 2-14, 22 and 23, 32-46, 56-75, 87, 88, 90 and 92 of Ms Brooks' statement dated 8 September 2017 are struck out. 2. The application by the Secretary, Department of Family and Community Services, that Ms Brooks not be given access to the attachments in the Sparks Report is refused. 3. The name of the respondent is amended to Secretary, Department of Family and Community Services. Catchwords: PRACTICE AND PROCEDURE – scope of complaint under Anti-Discrimination Act 1977 (NSW), where President of Anti-Discrimination Board declined race discrimination complaint against employer as lacking in substance – where Tribunal granted leave for complaint to proceed – whether complaint includes allegations not described in original complaint to President –whether complaint covers periods outside period of complaint as referred by President SUMMONS – whether professional confidential relationship privilege applies so that applicant should not be given access to certain documents produced under summons Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s63 Anti-Discrimination Act 1977 (NSW), ss 4B, s 8(2), 91C, s 94A, 96 and 103 Civil and Administrative Tribunal Act 2013 (NSW), s 28, s 38, s67 Crimes Act 1900 (NSW) Evidence Act 1995 (NSW), s 126 Work Health and Safety Act 2011 (NSW) Cases Cited: Director General Department of Community Services v D [2006] NSWSC 827 NRMA v John Fairfax Publications Pty Ltd [2002] NSWSC 563 Category: Procedural and other rulings Parties: Sandra Brooks (Applicant) Secretary, Department of Family and Community Services (Respondent) Representation: Counsel: M Moir (Department of Family and Community Services) (Respondent) Applicant (self-represented) J. Fanning (Department of Family and Community Services) (Respondent) File Number(s): 2016/00378358 Publication restriction: Nil REASONS FOR DECISION Overview 1. Ms Brooks is an Aboriginal woman employed by the Department of Family and Community Services (FACS) as a Senior Customer Service Officer, Specialist – Aboriginal. She complains that the Respondent, the Secretary of FACS, has discriminated against her on the ground of her race in breach of the Anti-Discrimination Act 1977 (NSW) (the AD Act). 2. Two preliminary issues have arisen for consideration. The first relates to the scope of the complaint. The second issue is whether Ms Brooks should be given access to documents produced by FACS under summons. 3. FACS objects to various paragraphs of Ms Brooks' statement dated 8 September 2017 because they are beyond the scope of the complaint as referred by the President of the Anti-Discrimination Board (the President). The objections are made on three bases: 1. that some of the allegations fall outside the period of the complaint; 2. that some of the allegations were not made in the original complaint; and 3. that some of the allegations do not claim that the Anti-Discrimination Act has been breached. 1. Unlike most applications that can be lodged with the Tribunal, applications involving a breach of the Anti-Discrimination Act must be lodged first with the President. The Tribunal's power in relation to complaints made under the Act is based on the information in the original complaint lodged with the President and any other documents that the President considers will help to identify the subject-matter of the complaint: AD Act, s 94A. Unless the President or the Tribunal amends the complaint, those matters, and nothing else, are the subject matter of the Tribunal's proceedings: AD Act s 91C and s 103. 2. Many of the allegations Ms Brooks makes in her statement, do not come within the period of the complaint, were not made in the original complaint or, in the opinion of the President, do not help identify the subject matter of the complaint. In those circumstances, the Tribunal does not have power to consider them. I have decided to delete the allegations made by Ms Brooks which do not fall within the scope of the complaint as referred by the President. 3. The second issue is whether Ms Brooks should be given access to the attachments to what I will call the Sparks Report. The Sparks Report is a report prepared by an independent investigator about issues raised by three employees of FACS, Ms Brooks, Ms Nasr and Ms Grujovska. FACS submits that Ms Brooks should not be given access to those documents because they are subject to "professional confidential relationship privilege" under s 126B of the Evidence Act 1995 (NSW). Alternatively, the Respondent submits that the documents are commercially or operationally sensitive and therefore confidential. 4. I have decided that Ms Brooks should be given access to all of the documents in the attachments to the Sparks Report. 5. Section 4B of the Anti-Discrimination Act provides that a reference to an employer in relation to employment in a Department is a reference to the Department Head. For that reason, I have amended the name of the Respondent to Secretary, Department of Family and Community Services. Scope of the complaint The Tribunal's jurisdiction 1. On 22 April 2016 the President declined Ms Brooks' complaint of race discrimination as lacking in substance. The President advised her that she could ask for the complaint to be referred to the Tribunal. Ms Brooks made that request. On 1 November 2016, after a hearing, the Tribunal gave leave for Ms Brooks' complaint to proceed: AD Act, s 96(1). Directions were made for the parties to file and serve evidence and submissions and for the matter to be listed for hearing for 3 days on 26, 27 and 30 October 2017. 2. When determining complaints under the Anti-Discrimination Act, the Tribunal is exercising its 'general jurisdiction': Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 28(2)(a). I make that point because some of Ms Brooks' submissions assumed that the Tribunal was exercising its administrative review jurisdiction. For example, she submitted that the Tribunal must decide what the "correct and preferable decision" is and that the Tribunal must take into account "any relevant factual material". These principles apply when the Tribunal is exercising its administrative review jurisdiction, not its general jurisdiction: Administrative Decisions Review Act 1997 (NSW), s 63. 3. Ms Brooks is correct when she says that the Tribunal is not bound by the rules of evidence and may "inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": NCAT Act, s 38(2). But that provision does not give the Tribunal power to deal with matters which are outside its jurisdiction. 4. Section 94A of the Anti-Discrimination Act provides that the complaint, as referred by the President, comprises: 1. the original complaint lodged with the President; 2. any amendment to the complaint made by the President under s 91C of the AD Act; 3. any other document or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of the Act or the regulations. 1. The President did not amend the complaint. To identify the subject matter of the complaint I must look first at Ms Brooks' original complaint and then at any other document or information that was included in the materials provided by the President and that, in the opinion of the President, helps identify the subject matter of the complaint. The original complaint 1. In the original complaint Ms Brooks alleged that in March 2015 another employee of FACS, Ms Nasr, discriminated against her on the ground of her race by making false and unjustified allegations and complaints about her. Ms Brooks also alleged that a supervisor, Mr Ferguson, discriminated against her on the ground of her race by not responding to Ms Nasr's complaints fairly, objectively or in accordance with the principles of procedural fairness. Ms Brooks says that Ms Nasr has harassed her in the workplace because she is Aboriginal. 2. An external consultant, Ms Sparks, conducted an independent investigation into these and other allegations. 3. In their written submissions to the Tribunal FACS made the following points about the scope of the allegations in Ms Brooks' original complaint: 1. Ms Brooks identified on page 8 that the alleged perpetrator of the race discrimination was "Ms Nichole Nasr" and that Ms Nasr's relationship with Ms Brooks was "[w]ork in the same team". 2. In the section of the complaint headed "What happened?" commencing on page 9, Ms Brooks complained specifically about the behaviour of Ms Nasr. In particular Ms Brooks complained that: 1. on 18 March 2015, Ms Nasr was confrontational and aggressive toward Ms Brooks and "it appeared from Ms Nasr confrontation she had a personal issue with my position in the team." 2. Ms Nasr raised allegations against Ms Brooks "based on Ms Nasr personal issue of bias and hatred towards Aboriginal people". 3. Ms Nasr made comments about "budgie smugglers ... garlic sauce". 4. Ms Nasr taunted Ms Brooks using terms like "walkabout", "femfresh", "what a prude", "you're a prude", "who is the real wog" etc. 5. Ms Nasr wants to "spoon" other officers, uses the office as a dating and massage parlour. 6. Ms Nasr is running a smear campaign against Ms Brooks on Facebook. 7. Ms Nasr "tweaked the phone roster to a lighter shade". 1. In her complaint, Ms Brooks also made a number of other allegations relating to the alleged racially discriminatory conduct, namely: 1. that an intimate relationship existed between Ms Nasr and her acting team leader, Mr Glenn Ferguson; 2. Ms Nasr made a complaint about Ms Brooks, but Mr Ferguson refused to provide the details; 3. that Mr Ferguson was not impartial; 4. Ms Nasr failed to perform her duties on 15 July 2015 and in August 2015, but she was not sanctioned by Mr Ferguson for her failures; 5. Mr Ferguson placed Ms Brooks in the "Aboriginal Fringe Dwellers location"; 6. Ms Brooks was "directed" to attend mediation sessions; 7. Ms Brooks' request for a copy of the findings and recommendations made by the independent investigator (Jocelyn Sparks) was declined, "however on 16 September 2015 I was informed it was released to the A/TL [Mr Ferguson] who was a party". 1. In the original complaint Ms Brooks stated that she was seeking the following outcome: "I am seeking compensation in the amount of $100,000 as restitution following the racist actions of Ms Nasr towards me following the failure of FACS Housing Services to act with fairness and equity." Ms Brooks stated that the discrimination began on 6 March 2015. As she lodged the complaint on 18 September 2015, the President identified the period of the complaint as being between those two dates. Characterisation of complaint and FACS' response 1. The President characterised the complaint as alleging a breach of s 8(2) of the AD Act which makes it unlawful for an employer to discriminate against an employee on the ground of race: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. 1. FACS responded to Ms Brooks allegations by letter to the President dated 10 February 2016. In that response, FACS addressed the questions the President had asked in the letter of 8 December 2015. Those questions were: 1. Is the complainant currently employed by the respondent? If so, please provide details of the complainant's employment history, including date of commencement and classification. 2. Did the complainant lodge complaints with the Respondent? If so, please provide details of dates lodged, nature of complaints, action taken by Respondent, current status of the complaints, the resulting outcomes, information provided to complainant. Please provide copies of the relevant documents. 3. Was the complainant the subject of complaints to the Respondent? If so please provide details of the dates of the complaints, nature of the complaints, action taken by the Respondent, the resultant outcomes and information provided to the complainant. Please provide copies of relevant documents and correspondence. 4. Did the Respondent refuse the complainant's request for a copy of the findings and recommendations contained in the report compiled in the investigation of events of 18 March 2015. If so, please provide reasons for the refusal. 1. FACS also included extracts from the independent investigation – the Sparks Report. Other documents or information 1. As well as the material in the original complaint, the complaint comprises "any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or regulations": AD Act, s 94A(1)(c). 2. On 14 March 2016, Ms Brooks wrote to the President providing a detailed response to the letter from FACS dated 10 February 2016. She noted in that letter that, "As discussed incidents following the 18 September 2015 are being addressed in a separate 'victimisation' complaint to be lodged". I do not know whether Ms Brooks lodged a victimisation complaint but, as far as I am aware, no victimisation complaint has been referred to the Tribunal. 3. Ms Brooks' response to FACS' 20 February 2016 letter included attachments numbering 248 pages. Those documents are marked as 'Tab A' in the President's Report. Five weeks after receiving that material, the President declined Ms Brooks' complaint as lacking in substance. In the letter declining the complaint dated 22 April 2016, the President identified the complaint as "your complaint … on 18 September 2015 in which you allege that the Respondent has subjected you to unlawful discrimination on the ground of your race". It is apparent from those words that the President did not consider that any of the material in Tab A helped "to identify the subject matter of the complaint or otherwise contain an allegation of a contravention of a provision of the Act or the Regulations". 4. The material in Tab A was purportedly in answer to FACS' response to the original complaint. Ms Brooks did not indicate in that material that she was intending to amend her original complaint. The President did not treat the response as requesting an amendment of the complaint and did not amend the complaint to include any additional allegations. Rather, the President declined the original complaint. 5. In my view the complaint comprises the allegations in the original complaint provided by Ms Brooks. Consideration of the scope of the complaint 1. Below I consider each of FACS' objections to the material in Ms Brooks' statement. Nothing Ms Brooks has said persuades me that the material in paragraphs 2-14, 22 and 23, 32-46, 56-75, 87, 90 and 92 is part of the complaint as referred by the President. I have also deleted paragraph 88. Paragraphs 2-14 1. Paragraphs 2 and 3 contain material relating to alleged disciplinary action taken by FACS in relation to Ms Brooks. The events took place between 2010 and 2014. They did not take place during the period of the complaint and nothing in Ms Brooks' original complaint refers to these allegations. 2. In paragraph 4 it is alleged that there was a lack of "available systems training" when Ms Brooks returned to work in September 2014. Again, this allegation is outside the period of the complaint and Ms Brooks did not mention it in her original complaint. 3. Paragraphs 5 to 13 relate to Ms Brooks' workload before 6 March 2015 which is the start of the complaint period. Paragraph 14 concludes with the statement: "I was treated less favourably by the Employer on the grounds of my Aboriginal race when the disproportionate workload of 135 was allocated without the same due regard or support afforded to non-Aboriginal mainstream Specialists. I informed A/TL Glenn Ferguson and Senior Management I could not physically do more work which was ignored." Ms Brooks' complaint to the President does not mention these allegations. 4. In her written submissions filed on 29 September 2017, Ms Brooks submits that these paragraphs are "background material" relevant to her claim. If they are background material, then the Tribunal does not need to determine whether they constitute a breach of the Act. But they are not expressed as background material. They are new allegations which were not included in the original complaint. 5. Ms Brooks' submissions suggest that "the employer's failure to investigate and appropriately deal with her complaints" includes complaints she made about her workload. That is not correct because there is no reference to those allegations in the original complaint. Paragraphs 22 and 23 1. In these paragraphs Ms Brooks alleges that Mr Bosnich and Mr Ferguson identified her physical appearance as being intimidating. The original complaint makes no allegation against Mr Bosnich. FACS describes the source of that allegation as being in a statement by Mr Bosnich produced under summons to Ms Brooks in workers compensation proceedings. That allegation was not included in the original complaint and the Tribunal does not have power to consider it. In the original complaint Ms Brooks makes certain allegations against Mr Ferguson, but none relate to statements about her physical appearance. Paragraphs 32-46 1. Paragraphs 32 to 46 of Ms Brooks' statement raise numerous allegations about the conduct of another FACS employee, Ms Luba Grujovska. None of these allegations is contained in the original complaint made by Ms Brooks and referred by the President. 2. Paragraphs 39 and 40 allege that Ms Brooks was denied procedural fairness during the investigation into her complaints because she was not told about a complaint made about her by Ms Grujovska. In particular, it is alleged that Ms Brooks "was treated less favourably on the grounds of race when the allegation [i.e. by Ms Grujovska] was withheld by the MHO Bosnich and Ms Sparks including the complaint from a non-Aboriginal staff member in the Sparks Report". 3. As FACS points out, Ms Brooks did not complain about the conduct of Ms Grujovska to the President. 4. Ms Brooks did allege in her original complaint that she was treated unfairly because the report by Ms Sparks was released to Mr Ferguson but not to her, despite her request. However, this is a different matter from the matter raised in paragraphs 32 to 46 about Ms Grujovska's complaint. 5. Paragraphs 33 to 35 contain a new allegation that there was a "death threat" made against Ms Brooks and that Mr Bosnich and Mr Van Der Lay decided "to conceal a serious criminal offence [which] seems to amount to perverting the course of justice by withholding the evidence of the threat to kill me". This is not an allegation of a breach of the Anti-Discrimination Act and Ms Brooks has amended the Statement of Claim document dated 14 September 2016 to delete paragraphs 5 and 6 alleging a breach of the Crimes Act 1900 (NSW). Paragraphs 56-75 1. These paragraphs concern an incident which occurred on 5 March 2015, one day before the date nominated by Ms Brooks as the date her complaint commenced. 2. Paragraphs 56 to 75 also make clear that Ms Brooks is seeking to rely on the alleged incident on 5 March 2015 in order to support a new claim that FACS breached the duty of care it owed her under the Work Health and Safety Act 2011 (NSW) from 5 March 2015 until 18 September 2015. Ms Brooks has since deleted paragraph 7 of her Statement of Claim document because it is outside the Tribunal's jurisdiction. It alleges that FACS was in breach of the Work Health and Safety Act. Paragraphs 87 and 88 1. These paragraphs allege that FACS conducted an internal race discrimination investigation knowing that Ms Brooks had made a complaint to the Anti-Discrimination Board. She asserts that, in doing so, FACS was in breach of the grievance policy and procedure. This allegation is outside the period of the complaint. Paragraph 90 1. This paragraph concerns a request made by Ms Brooks to FACS for her employment to be re-located to another office. This was never the subject of any complaint to the President by Ms Brooks. 2. The paragraph makes it clear that the re-location request was made on 30 September 2015, some 2 weeks after Ms Brooks lodged her complaint with the President. Ms Brooks did not seek to amend her complaint to include this matter. Paragraph 92 1. This paragraph refers to matters alleged to have occurred during the years after the complaint period, namely in the period 25 February 2016 to 1 May 2017. Those matters include the issue of Ms Brooks' requested transfer to another workplace, which is not part of the complaint as referred by the President. 2. Ms Brooks also refers to an alleged "offence of intimidation of a witness" in this paragraph. I note that she has agreed to remove this allegation from her Statement of Claim document because the Tribunal has no jurisdiction to entertain a claim based on a breach of the Crimes Act. 3. Some of the submissions FACS made to the Tribunal are relevant to an application for amendment, not to the question of whether the Tribunal has jurisdiction. For example FACS submitted that there is evidence that during an interview between the investigator, Ms Sparks and Ms Brooks held on 14 April 2015, Ms Brooks was made aware that Ms Grujovska had raised "a complaint" or "an issue" about Ms Brooks' conduct. (See Sparks Report, p 26 and 27). In those circumstances, FACS submitted that Ms Brooks could have made allegations against Ms Grujovska to the President but she did not do so. 4. Another example is the allegations about events that occurred one day before the date Ms Brooks nominated as the commencement of her complaint. FACS submitted that Ms Brooks was in a position to pursue this matter as part of her original complaint lodged with the ADB in September 2015, but she failed to do so. 5. As these proceedings do not relate to an application to amend the complaint, I have not considered any submissions which would be relevant to such an application. Summons issue Background 1. On 28 February 2017, at the request of Ms Brooks, the Tribunal issued a summons addressed to the Secretary of FACS. The summons identified the documents to be produced as follows: "The full report including all Statements referring to Sandra Brooks from acting Team Leader Glen Ferguson; Client Service Officer Nichole Nasr; acting Senior Client Service Officer Specialist Luba Grujovska; Senior Client Service officer Anthony Russell; District Director Clare Donnellan; Director Housing Operations Michael Van Der Ley; Housing Manager Operations Zac Bosnich and acting Manager Housing Operations Kylie Willis. All emails to and from the Department of Family and Community Services, Housing NSW all written communication and transactions as it applies to the Sparks Report commissioned by Director Housing Operations Michael Van Der Ley in 2015 following the incident at the Liverpool Housing Office 'Sparks' Report and Recommendations by 24/04/15" 1. In compliance with the summons, FACS has produced the documents. The Sparks Report was prepared for FACS by an external consultant, Ms Jocelyn Sparks. It formed part of a workplace investigation by FACS into the complaints made by Ms Brooks, Ms Nasr and Ms Grujovska in March 2015. FACS objects to Ms Brooks being given access to the documents in the Attachments, but not to the Report itself. 2. The Sparks Report dated April 2015, consists of 46 pages, including the final page which is a list of Attachments. The Attachments to the Sparks Report are identified with the letters "A" to Q". The list of attachments on page 46 describes them as including emails, transcripts of interviews, file notes of conversations and submissions from those who had complained. 3. FACS submits that Ms Brooks should not be given access to any of the Attachments to the Sparks Report on the basis of professional confidential relationship privilege or that they are commercially and/or operationally sensitive and therefore confidential. Professional confidential relationship privilege 1. No-one can be required to disclose a document, including giving access to the document, if the Tribunal is satisfied that evidence of the document could not be adduced in proceedings before a NSW court because it is subject to professional confidential relationship privilege: NCAT Act, s 67(1)(c); s 67(2); Director General Department of Community Services v D [2006] NSWSC 827 at 588. 2. According to FACS "most" of the Attachments to the Report produced by FACS contains a "protected confidence". That term is defined in s 126A(1) of the Evidence Act: "protected confidence" means a communication made by a person in confidence to another person (in this Division called the "confidant"): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. 1. The initial question is whether Ms Sparks was acting in a professional capacity. There is no doubt that doctors, psychologists, social workers and journalists may be acting in a professional capacity. The Supreme Court examined this issue in NRMA v John Fairfax Publications Pty Ltd [2002] NSWSC 563 that at [151] – [152]: To the extent that the provision is obscure under s 34 of the Interpretation Act one can have regard to extrinsic materials such as the second reading speech. In the second reading speech, when introducing the amendments, the Attorney General indicated that the definition may include confidences imparted to doctors, other health professionals, journalists, social workers and other relationships in which confidentiality is an integral element. This reinforces the view which I have expressed above. It would also seem fairly clear that there was an express obligation not to disclose the contents of the communication. 1. My attention was not drawn to any authority on the question of whether an independent consultant undertaking a workplace investigation is acting in a professional capacity for the purposes of s 126A(1) of the Evidence Act. However, I am satisfied that, in this case, Ms Sparks was acting in a professional capacity when she investigated the various complaints made by employees of FACS and prepared a report of her findings and recommendations. 2. The Sparks Report which incorporates the Attachments is marked "private and confidential". During the course of her investigation, Ms Sparks received communications made in confidence by various employees of FACS. I am satisfied that Ms Sparks was under an express or implied obligation not to disclose the contents of those communications except for the limited purpose of preparing and submitting her final investigation report to FACS. 3. But there are several communications in the Attachments which were made to employees of FACS, not to Ms Sparks. Those are the documents in Attachments B, C, D, E, F and G. These are not communications with a confidant in the course of a relationship in which the confidant was acting in a professional capacity. Rather, they are communications with other people that have been passed on to Ms Sparks. 4. It remains to be determined whether, in relation to the remaining Attachments, the Tribunal could be satisfied under s 126B(3) of the Evidence Act, that: (1) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (2) the nature and extent of the harm outweighs the desirability of the evidence being given. 1. "Harm" is defined to include: "actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear)": Evidence Act, s 126A(1). 2. In making this decision, the Tribunal must take into account the following matters listed in s 126B(4) of the Evidence Act: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person, (i) the public interest in preserving the confidentiality of protected confidences, (j) the public interest in preserving the confidentiality of protected identity information. 1. There was no evidence, nor was it claimed, that any harm would be caused to Ms Brooks if the information she communicated to Ms Sparks was disclosed to her. Furthermore, it can be assumed that Ms Brooks would give her consent to the information she communicated being disclosed to herself: Evidence Act, s 126C. In those circumstances Ms Brooks should be given access to Attachments H and O. 2. In relation to the remaining Attachments (A, I, J, K, L, M, N, P and Q) I need to consider the matters set out in s 126B(3) and s 126B(4) of the Evidence Act. The probative value of the evidence in the proceeding 1. FACS submitted that the probative value of the evidence reflected in the remaining attachments is limited. This is because Ms Brooks' claim of race discrimination focuses on whether her employer dealt appropriately with her complaints of harassment by her work colleagues. According to FACS, the contents of the 46 page Sparks Report already disclosed by FACS have substantially greater probative value on this central issue in the proceeding. 2. Ms Brooks complaint is not only about whether FACS, and Mr Ferguson in particular, dealt appropriately with her complaints, it is also about the conduct of Ms Nasr. The communications both Mr Nasr and Mr Ferguson made to Ms Sparks are potentially of significant probative value to Ms Brooks' complaint. The importance of the evidence in the proceeding 1. As mentioned in the previous paragraph, the evidence of Ms Nasr and Mr Ferguson are of critical importance in these proceedings. The nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding 1. I agree with FACS that the nature of the subject matter of this proceeding is neatly summarised in the penultimate line of Ms Brooks' complaint lodged with the President on 18 September 2015: "I am seeking compensation in the amount of $100000 as restitution following the racist actions of Ms Nasr towards me following the failure of FACS Housing Services to act with fairness and equity." 2. The Attachments to the Sparks Report, specifically communications by Ms Nasr and Mr Ferguson are directly relevant to this subject matter. The availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates 1. The Sparks Report contains edited summaries of the confidential communications Ms Sparks had with FACS' employees. FACS submitted that the summary does not contain all the information in the communications employees provided to Ms Sparks. But FACS did not identify which parts of the Attachments were reproduced in the Sparks Report. The likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider 1. FACS acknowledged that they had not provided evidence from any employee or former employee of FACS as to the effect disclosure would have on them. That failure was sought to be explained by the fact that Ms Brooks did not formally raise her objection to FACS' claim of privilege and confidentiality until 26 September 2016. According to FACS, Ms Brooks has been on notice since at least 3 May 2017 that FACS objected to her obtaining access to the Attachments. In those circumstances, FACS submitted that it should be permitted to call evidence from the people who disclosed information to Ms Sparks as to the nature and extent of any harm disclosure would cause them. 2. I accept FACS's reason for not being in a position to provide evidence of harm on short notice. I also accept that there may be information which was not included in the Report, disclosure of which may cause harm to existing employees who have an ongoing relationship with Ms Brooks. I do not have sufficient evidence to make a finding as the nature or extent of that harm. In relation to Ms Nasr, any harm to her is likely to be less severe given that she is no longer employed by FACS. The means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed 1. One means available which may limit any harm to the confiders is for the Tribunal to make non-publication orders in respect of their identity or the evidence. I appreciate that a non-publication order would not overcome the humiliation or fear that employees may experience if the information is disclosed to Ms Brooks. If the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor 1. This matter is not relevant. Whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person 1. FACS has conceded that the substance of some of the protected confidences has already been disclosed in the summaries of discussions with the protected confiders prepared by Ms Sparks and set out in her Report. According to FACS, these summaries have been carefully prepared and edited by Ms Sparks, and do not disclose all the protected confidences set out in the Attachments to her Report. But FACS has not identified which parts of the communications have been reproduced in the Report and which have not. The public interest in preserving the confidentiality of protected confidences 1. FACS had appointed an external investigator to obtain information from various employees to conduct an internal investigation into allegations made by Ms Brooks, Ms Nasr and Ms Grujovska. 2. FACS submits that disclosure of the material set out in the Attachments to the Sparks Report would be likely to prejudice FACS's ability to conduct future internal investigations. I am not satisfied that any such prejudice, if it could be proved, is a public interest in preserving the confidentiality of protected confidences. The harm does not extend to the harm caused to FACS, to other potential confidants, or to the community in general. The public interest in preserving the confidentiality of protected identity information 1. I do not understand this matter to be relevant in these proceedings. Conclusion 1. Taking into account each of the matters in 126B(4) of the Evidence Act I am not satisfied that the information should not be disclosed to Ms Brooks. A great deal of that information has already been disclosed in the Report. FACS has not identified the information which has not been disclosed and which, it is said, would cause the requisite harm if it was disclosed. While I am satisfied that there is a high degree of acrimony between Ms Brooks and other current employees, the potential further deterioration of the relationships among employees is not the kind of harm envisaged by the provisions. In circumstances where the attachments contain highly probative evidence, Ms Brooks should have access to them. Confidentiality 1. If the Tribunal finds that professional confidential relationship privilege is not made out in respect of the Attachments to the Sparks Report, then FACS submits that access to these materials should nonetheless be refused on the ground that they constitute commercially/operationally sensitive material and thus confidential information. 2. FACS has not identified which parts of the material which are not in the Sparks Report itself are commercially or operationally sensitive or the legal basis for not disclosing the information. Orders 1. Paragraphs 2-14, 22 and 23, 32-46, 56-75, 87, 88, 90 and 92 of Ms Brooks' statement dated 8 September 2017 are struck out. 2. The application by the Secretary, Department of Family and Community Services, that Ms Brooks not be given access to the attachments in the Sparks Report is refused. 3. The name of the Respondent is amended to Secretary, Department of Family and Community Services. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 04 December 2017 - "Representation" updated DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2017