Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209 Hearing dates: 27 August 2018 Date of orders: 27 August 2018 Decision date: 25 September 2018 Before: Bathurst CJ, Beazley P, Basten JA, Gleeson JA, Payne JA Decision: (1) Declare that the District Court of New South Wales, in the exercise of its criminal jurisdiction, has no power to grant leave to any person or body to disclose (a) the identity of the person who made a report, as defined in s 29(6) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), or (b) information from which the identity of that person could be deduced, pursuant to s 29(1)(f)(ii) of the Act. (2) Dismiss the notice of motion dated 1 August 2018 filed by the first respondent in the District Court seeking leave pursuant to s 29(1)(f)(ii) permitting or requiring the Secretary, Department of Family and Community Services, to disclose the identity of persons who made the reports. Catchwords: CHILD WELFARE – care and protection – risk of significant harm reports – whether reports admissible in criminal proceedings – whether person can be compelled to produce or give evidence regarding contents of report in criminal proceedings – whether court in criminal case can compel disclosure of identities of makers of report – Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 24, 29, 29(1)(f)(ii) CRIMINAL PROCEDURE – where accused in criminal trial sought disclosure of identities of persons who made risk of significant harm reports – whether District Court in criminal trial has power to order disclosure of identities – Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 24, 29(1)(f)(ii) STATUTORY INTERPRETATION – principle of legality – where statute prohibited disclosure of identity of makers of reports that child at risk of serious harm – where accused in criminal trial sought disclosure of identities – whether statute affected element of general system of law – whether principle of legality supported construing prohibition as not applicable to criminal proceedings STATUTORY INTERPRETATION – contextual construction – use of legislative history and extrinsic materials to determine legislative purpose WORDS AND PHRASES – "any proceedings" – "relating to" – "proceedings relating to" Legislation Cited: Child Welfare Act 1939 (NSW), ss 81B, 148B Children (Care and Protection) Act 1987 (NSW), s 22 Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 8, 23, 24, 25, 26, 27, 29, 30, 34, 43, 45, 60, 91, 120, 121, 122, 175, 248; Pt 2, Ch 3; Ch 4; Ch 5; Ch 16A Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2000 (NSW), Sch 1 Coroners Act 2009 (NSW), s 24 Crimes Act 1900 (NSW), ss 35, 41, 59, 86 Criminal Procedure Act 1986 (NSW), ss 141, 142 Interpretation Act 1987 (NSW), ss 5, 33 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24 Cain v Glass (No 2) (1985) 3 NSWLR 230 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27 Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 Grey v The Queen [2001] HCA 65; 75 ALJR 1708 Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21 Hayward v R [2018] NSWCCA 104 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322; [1917] HCA 41 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 92 ALJR 248 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R (on the Application of Privacy International) v Investigatory Powers Tribunal [2017] EWCA (Civ) 1868; [2018] 1 WLR 2572 R v Secretary of State to the Home Department; Ex parte Pierson [1998] AC 539 Re Application of the Attorney-General for New South Wales dated 4 April 2014 [2014] NSWCCA 251; 246 A Crim R 150 South West Water Authority v Rumble's [1985] AC 609 SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 Taylor v Public Service Board (NSW) (1976) 137 CLR 208; [1976] HCA 36 Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45; [1989] HCA 24 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 Travelex Ltd v Commissioner of Taxation (Cth) (2010) 241 CLR 510; [2010] HCA 33 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) Parliamentary Debates (Hansard), Legislative Assembly, 11 November 1998, p 9761 Parliamentary Debates (Hansard), Legislative Assembly, 21 June 2000, p 7373 Parliamentary Debates (Hansard), Legislative Council, 25 November 2010, p 28285 S McLeish and O Ciolek, "The Principle of Legality and 'the general system of law'" in D Meagher and M Groves (eds), The Principle of Legality in Australia and New Zealand (The Federation Press, 2017), Chapter 2 Category: Principal judgment Parties: Secretary, Department of Family and Community Services (Applicant) Hayward (a pseudonym) (First Respondent) Director of Public Prosecutions (Second Respondent) District Court of New South Wales (Third Respondent) Representation: Counsel: Mr D Kell SC/Mr A Williams/Ms E Jones (Applicant) Mr S Boland (First Respondent) Mr S Hughes (Second Respondent) Solicitors: Crown Solicitor (Applicant) Blair Criminal Lawyers (First Respondent) Office of Director of Public Prosecutions (Second Respondent) Crown Solicitor (Third Respondent) File Number(s): 2018/253768 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 16 August 2018 Before: Herbert DCJ File Number(s): 2014/00272919 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] headnote [This headnote is not to be read as part of the judgment] The respondent faces trial in the District Court on several counts arising from injuries she allegedly inflicted upon a child. In response to a subpoena, the applicant produced a number of risk of significant harm reports made under Children and Young Persons (Care and Protection) Act 1998 (NSW), within the meaning of "report" as defined in s 29(6) of that Act ("harm reports"). Further harm reports were produced voluntarily, on the understanding that their production could be compelled. Each report was redacted to anonymise the reporter's identity. By way of notice of motion, the respondent sought orders compelling disclosure of the reporters' identities. The primary judge made a preliminary ruling that she had power to make such orders under Care and Protection Act, s 29(1)(f)(ii); the applicant applied to this Court for a declaration to the contrary. The key issue before this Court was whether the District Court in a criminal trial had power under s 29(1)(f)(ii) to make an order that the applicant reveal the identity of a person who had made a harm report. Section 29 relevantly provides: Protection of persons who make reports or provide certain information (1) If, in relation to a child … a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child …: … (d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings): (i) care proceedings in the Children's Court, (ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth, (iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal, (iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013, (v) proceedings under the Coroners Act 2009, and (e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and (f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with: (i) the consent of the person who made the report, or (ii) the leave of a court or other body before which proceedings relating to the report are conducted, and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person. In light of an apparent conflict between decisions of the Court of Criminal Appeal in Re Application of the Attorney-General for New South Wales dated 4 April 2014 [2014] NSWCCA 251; 246 A Crim R 150 and Hayward v R [2018] NSWCCA 104, the Court sat an enlarged bench. The Court (Bathurst CJ; Beazley P; Basten, Gleeson and Payne JJA) made the declaration sought by the applicant and dismissed the respondent's notice of motion in the Court below, holding: 1. Paragraphs (d), (e) and (f) of s 29(1) form a coherent scheme and must be read together: [9], [76], [85]-[86]. 2. The statutory text, context and legislative history all militate against construing "any proceedings", as that term is used in ss 29(1)(d) and (e), as subject to an implied exclusion of criminal proceedings. Accordingly, harm reports are inadmissible in criminal proceedings under s 29(1)(d), and compelled disclosure of their contents is prohibited by s 29(1)(e): [64]-[71], [85], [91]. Hayward v R [2018] NSWCCA 104, followed; Re Application of the Attorney-General for New South Wales dated 4 April 2014 [2014] NSWCCA 251; 246 A Crim R 150, not followed. 3. Subsection 29(1)(f)(ii) does not confer a freestanding power on a court in a criminal case to direct disclosure of the identity of the maker of a harm report. The phrase "proceedings relating to the report" limits the operation of s 29(1)(f)(ii) to the narrow classes of proceedings in which harm reports and their contents may be admissible, under s 29(1)(d): [72]-[76], [94]-[95]. Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45; [1989] HCA 24; Travelex Ltd v Commissioner of Taxation (Cth) (2010) 241 CLR 510; [2010] HCA 33, considered. 4. The principle of legality does not enable the Court to disregard the ordinary and natural meaning of statutory text, nor to impose limitations which the Parliament has addressed and rejected with sufficient clarity: [31]. The legislature has chosen to override any interest an accused person may have in ascertaining the identity of the maker of such a report, so as to protect the interests of vulnerable children as a class; the principle of legality cannot be invoked to subvert that purpose: [90], [92]. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34, applied; Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40; Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39; Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46; X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29; Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7, considered. Judgment 1. THE COURT: On 16 August 2018 Herbert DCJ held that she had power in a criminal trial to order that the Secretary, Department of Family and Community Services (the applicant) provide to the accused (the present respondent) reports of child abuse in a form which would disclose the identity of the makers of the reports, under s 29(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care and Protection Act"). On 17 August 2018, the Secretary sought an order declaring that the District Court has no such power. To avoid further delay of the criminal trial, the application was heard on 27 August 2018; orders to the effect sought by the Secretary were made at the conclusion of the hearing. 2. As the case required the resolution of an apparent conflict between two cases decided by the Court of Criminal Appeal concerning the operation of s 29(1) of the Care and Protection Act the Court sat an enlarged bench. Issue for determination 1. The Care and Protection Act provides for the making of reports of children at risk in several provisions; for present purposes it is sufficient to note s 24: 24 Report concerning child or young person at risk of significant harm A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Secretary. The Care and Protection Act defines a "child" as a person under the age of 16 years: s 3. As the present case involves reports concerning a child, it is convenient to refer to the operation of the statute with respect to children, although most provisions equally apply to a "young person", defined as a person between 16 and 18 years of age: s 3. 1. The case turns upon the scope and operation of s 29(1) of the Care and Protection Act. Although the power invoked by the respondent is to be found in par (1)(f)(ii), that provision cannot properly be extracted from its statutory context; indeed, the operation of par (1)(f) is directly affected by surrounding provisions. Accordingly it is necessary to have regard to the several relevant parts of the section, which read as follows: 29 Protection of persons who make reports or provide certain information (1) If, in relation to a child … a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child …: (a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and (b) no liability for defamation is incurred because of the report, and (c) the making of the report does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy, and (d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings): (i) care proceedings in the Children's Court, (ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth, (iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal, (iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013, (v) proceedings under the Coroners Act 2009, and (e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and (f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with: (i) the consent of the person who made the report, or (ii) the leave of a court or other body before which proceedings relating to the report are conducted, and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person. (1A) … (2) A court or other body cannot grant leave under subsection (1)(f)(ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice. (3) A court or other body that grants leave under subsection (1)(f)(ii): (a) must state the reasons why leave is granted, and (b) must ensure that the holder of the report is informed that evidence as to the identity of the person who made the report, or from which the identity of that person could be deduced, has been disclosed. (3A) The protections given by this section to a person who makes a report apply to: (a) any person who provided information on the basis of which the report was made, in good faith, to the person, and (b) any person who otherwise was in good faith concerned in making such a report or causing such a report to be made, in the same way as they apply in respect of the person who actually made the report. (4) Subsection (1)(f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent the proper investigation of the report. (4A) Subsection (1)(f) also does not prevent the disclosure to a law enforcement agency of the identity of the person who made the report (the reporter), or information from which the identity of the reporter could be deduced, if: (a) the identity of the reporter, or the information, is disclosed in connection with the investigation of a serious offence or reportable conduct alleged to have been committed or done against a child …, and (b) the disclosure is necessary for the purposes of safeguarding or promoting the safety, welfare and well-being of any child … (whether or not the victim of the alleged offence). (4B) However, subsection (4A) does not apply unless: (a) a senior officer of the law enforcement agency to which the disclosure is made has, before the disclosure is made, certified in writing that obtaining the reporter's consent would prejudice the investigation of the serious offence or reportable conduct concerned, or (b) the person or body that makes the disclosure has, before making the disclosure, certified in writing that it is impractical to obtain the consent of the reporter. (4C) The person or body that discloses to a law enforcement agency the identity of the reporter, or the information from which the identity of the reporter could be deduced, is required to notify the reporter of the disclosure unless: (a) it is not reasonably practicable in the circumstances to do so, or (b) the law enforcement agency to which the disclosure is made has advised the person or body that notifying the reporter would prejudice the investigation of the serious offence or reportable conduct concerned. (5) (Repealed) (6) In this section: … law enforcement agency means any of the following: (a) the NSW Police Force, … report includes a report under sections 24, 25, 27, 120, 121 and 122. reportable conduct means: (a) reportable conduct within the meaning of Part 3A of the Ombudsman Act 1974 or conduct referred to in clause 2 of Schedule 1 to the Child Protection (Working with Children) Act 2012 … … serious offence means: (a) a serious indictable offence within the meaning of the Crimes Act 1900 … Note. It is an offence under section 254 for a person to disclose any information obtained in connection with the administration or execution of this Act, except in certain circumstances. The maximum penalty is 10 penalty units (currently $1,100) or imprisonment for up to 12 months, or both. 1. The definition of "report" covers two categories, namely reports made under ss 24, 25 and 27, which relate to children at risk of harm, and reports made under ss 120, 121 and 122, which relate to homeless children. 2. The power relied on by the respondent in the criminal proceedings for disclosure of the identity of the reporters was to be found in the exception to the general prohibition contained in par (1)(f)(ii). The earlier conflicting decisions were concerned with pars (1)(e) and (1)(d) respectively. 3. In the first case, Re Application of the Attorney-General for New South Wales dated 4 April 2014 [1] ("Re Attorney-General's Application"), the Court held that the principle of legality justified construing "any proceedings" in s 29(1)(e) so as not to apply to criminal proceedings. Accordingly, despite the prohibition in s 29(1)(e) of compulsory production of a report under the Care and Protection Act in "any proceedings", production of reports relevant to issues in a criminal trial could be compelled by subpoena, although material revealing the identity of the reporter should be redacted. In accordance with that ruling, the Secretary provided the respondent with copies of the reports, with redactions. 4. In the second case, Hayward v R, [2] involving an earlier dispute in the present criminal proceedings, a five judge Court of Criminal Appeal held that the words "any proceedings" in s 29(1)(d) applied to criminal proceedings. Accordingly, reports as defined in s 29(6), and evidence of the contents of those reports, were held not to be admissible in criminal proceedings. Whilst Hayward raised significant doubts about the correctness of Re Attorney-General's Application, the Court stopped short of overruling the earlier decision. 5. For the reasons explained below, pars (d), (e) and (f) in subs (1) constitute a coherent scheme and must be read together. The construction of par (f) requires a choice between the differing constructions of (d) and (e) adopted in the two recent cases. Factual and procedural background 1. Ms Hayward is facing trial in the District Court on an indictment containing five counts arising from injuries allegedly inflicted upon a child: 1. detaining a person for advantage in circumstances of aggravation (being in company) (Crimes Act 1900 (NSW), s 86(2)(a)); 2. causing a child to take a poison or noxious thing with intent to cause distress or pain (Crimes Act, s 41); 3. in company, assaulting a child occasioning actual bodily harm (two counts) (Crimes Act, s 59(2)); and 4. in company, recklessly causing grievous bodily harm to a child (Crimes Act, s 35(1)). 1. The hearing of Ms Hayward's criminal trial was fixed to commence on 29 August 2018; there are further pre-trial issues to be determined before a jury is empanelled. The victim is a young boy (aged four at the time of the alleged offences) who resided for a short time with his mother in Ms Hayward's house. The victim's mother is a witness in the trial against Ms Hayward, as is the former domestic partner of Ms Hayward and a third man who allegedly witnessed some of the incidents the subject of the indictment. Although there was no evidence before this Court about the content of any report about the risk of harm to the child, Ms Hayward seeks access to the identities of the makers of the reports in order to be able to test the evidence expected to be given at her trial. 2. The applicant produced on subpoena a number of reports; a second batch of reports was produced informally but on the understanding that production could be compelled. Each of the reports was redacted so that the maker of the report was not identified. 3. By notice of motion filed in the District Court on 15 August 2018, Ms Hayward sought the following orders: "1 Leave is granted pursuant to section 29(1)(f)(ii) of the [Care and Protection Act]; 2 The Secretary … is to disclose the identity of the person(s), or information from which the identity of those person(s) could be deduced, who made the reports identified in: a. Annexure C to the Affidavit of Jessica Caligiore dated 6 July 2018; and b. Annexure E to the Affidavit of Jessica Caligiore dated 27 July 2018. 3 In the alternative to Orders 1 and 2, the Secretary … is to produce unredacted copies of the reports identified in: [a. and b. as above]. 4 Any other order the Court sees fit." 1. The affidavits of Ms Caligiore were not read on the hearing of the motion. However, the material was said to be relevant to establishing that the victim's mother, a principal witness against Ms Hayward, had a tendency to engage in violence against children in her care, and a tendency inappropriately to discipline children. (The tendency notices were not before this Court.) Ms Hayward intends to allege that her former domestic partner, who is in custody for abusive conduct, and another man present during some of the incidents, also had a tendency to act violently towards children. 2. The primary judge was invited by the parties to rule on the preliminary question of whether the District Court in a criminal trial had power under s 29(1)(f)(ii) of the Care and Protection Act to make an order that the Secretary reveal the identity of a person who had made a report. On 16 August 2018, the judge ruled that she had "jurisdiction" pursuant to s 29(1)(f)(ii) of the Care and Protection Act to grant leave to disclose the complainant's identity in relation to each of the reports concerning the child, the alleged victim in Ms Hayward's trial. The judge stated: "I find that the answer to the preliminary question is that the District Court does have power to make an order under s 29(1)(f)(ii) of the Care Act. I do, however, note that each individual report would need to be considered to determine if this is a "court… before which proceedings relating to the report are conducted" within the terms of [s 29(1)(f)(ii)]. If this is satisfied then each individual report would need to be considered to determine if the high threshold required by s 29(2) of the Care Act is met." 1. Section 29(1)(f)(i) allows for disclosure where the person who made the report consents. In this Court, an affidavit of Ms Caligiore sworn 24 August 2018 was read to establish that the Secretary had been asked by Ms Hayward's lawyers to facilitate possible voluntary disclosure of the identity of the makers of the reports, but had refused to assist. The Crown case statement in Ms Hayward's criminal trial was also annexed, but provided nothing further of relevance. The construction issue (a) terms of the Care and Protection Act 1. Section 29 is reproduced above. The statutory context is provided by the following outline of key provisions. First, the primary objects of the Care and Protection Act are as follows: 8 What are the objects of this Act? The objects of this Act are to provide: (a) that children … receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (a1) recognition that the primary means of providing for the safety, welfare and well-being of children … is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles …. 1. Chapter 4 of the Care and Protection Act provides for the Secretary "to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child", the power to act being conditioned upon the Secretary's opinion that the child "is in need of care and protection": s 34(1). The basis for the formation of such an opinion will commonly be the result either of a request for assistance, or of a person having reasonable grounds to suspect that the child is "at risk of significant harm" making a report to the Secretary: s 24. The phrase "at risk of significant harm" includes the child having been or being at risk of physical abuse or ill-treatment: s 23(1)(c). 2. Sections 23 and 24 are found in Pt 2 of Ch 3 of the Care and Protection Act, which deals with "reports". Part 2 also includes s 26, which provides that a report may be made anonymously, and, importantly, s 27 which provides for mandatory reporting and relevantly states: 27 Mandatory reporting (1) This section applies to: (a) a person who, in the course of his or her professional work or other paid employment delivers health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children, and (b) a person who holds a management position in an organisation the duties of which include direct responsibility for, or direct supervision of, the provision of health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children. (2) If: (a) a person to whom this section applies has reasonable grounds to suspect that a child is at risk of significant harm, and (b) those grounds arise during the course of or from the person's work, it is the duty of the person to report, as soon as practicable, to the Secretary the name, or a description, of the child and the grounds for suspecting that the child is at risk of significant harm. 1. On receipt of a report, the Secretary is required to make "such investigations and assessment as the Secretary considers necessary to determine whether the child … is at risk of significant harm": s 30(a). Chapter 5 confers powers on the Secretary to remove a child from a place of risk (s 43), and make a "care application" to the Children's Court (s 45). The Children's Court has extensive powers to make interim and final care orders: Ch 5, Pt 2. Appeals from orders of the Children's Court may be made to the District Court where there may be a new hearing: s 91. (b) statutory interpretation – contextual considerations 1. Within this general scheme, s 29 has two functions. Broadly identified, these functions are, first, to prevent reports of harm or possible harm being used in any proceedings, except for purposes provided for in the Care and Protection Act and, secondly, to grant a level of immunity from repercussions for those who make such reports, including non-disclosure of their identities. 2. It is readily apparent that a child who is at risk of significant harm may be the victim of abuse or ill-treatment which involves criminal conduct. Criminal proceedings against the perpetrator are to be anticipated. The issue in the present case involves the interrelation between the level of protection given to the maker of a report and the protections available to a person accused of a criminal offence. In some circumstances the principles underpinning the Care and Protection Act and the principles applied in the administration of criminal justice for the protection of accused persons may conflict. Such conflicts may arise in a number of circumstances; the precise nature of the conflict in the present case has not yet been revealed by the evidence. 3. A person reporting that a child is at risk of significant harm may have been an eye-witness to such harm. In that case, he or she may be a witness for the prosecution in criminal proceedings against the alleged abuser. Counsel for the accused will wish to have available any prior statement made by the witness with respect to the subject matter of the offending, for the purposes of cross-examination. 4. Further, the report of abuse, whether witnessed by the reporter or merely the subject of hearsay accounts, may provide a source of information, for example as to who was present at a relevant incident and may be a potential witness. A defendant who denies that an incident took place may be assisted by knowing of the existence of a potential witness who is not being called by the prosecution. Indeed, if the reporter appears to be an eye-witness and is not being called by the prosecution, his or her identity may be of value to the defence for the same reason. 5. It follows that there is potential for conflict between the demands of fairness to a criminal accused and the mechanism for reporting child abuse deemed necessary for effective care and protection of vulnerable children. It was this potential which led the Court in Re Attorney-General's Application to turn to, and place determinative weight upon, the principle of legality. However, that principle does not necessarily determine the outcome of an exercise in statutory interpretation once a condition of its engagement is satisfied. Nor does it displace other principles of statutory interpretation. Rather, being a requirement for a clear statement of intention, it will not contradict the natural and ordinary meaning of the text, nor justify disregarding otherwise relevant context, statutory history or extrinsic material. It may operate with varying force in different circumstances. 6. The underlying concept may be found in the opinion of Lord Steyn in R v Secretary of State to the Home Department; Ex parte Pierson: [3] "Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption. But this assumption only has prima facie force. It can be displaced by a clear and specific provision to the contrary." 1. To similar effect, though more generally expressed, McHugh J said in Theophanous v Herald & Weekly Times Ltd: [4] "In the practical business of interpreting legal instruments the courts must necessarily also take into account any fact or circumstance that was likely to have been present to the mind of its authors. The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture." McHugh J noted that this was of particular importance in interpreting the Constitution; the proposition holds true for statutes. This language places the principle of legality in its broader context. (c) statutory interpretation – the principle of legality 1. The principle of legality, also known as the clear statement rule, does not follow its own injunction. The strength of the principle and its scope are both contestable and variable. In broad terms, it requires that if Parliament wishes to override or modify fundamental legal rights, freedoms or immunities, or the general system of law, it must express its intention in clear language. In Potter v Minahan, [5] O'Connor J stated that it was "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness". 2. The rationale of the principle was described by the majority in Coco v The Queen [6] in the following terms: "The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." 1. In Electrolux Home Products Pty Ltd v Australian Workers' Union, [7] Gleeson CJ justified the principle of legality as "a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted". The function and operation of the principle must be understood within the confines of general principles of statutory construction. Thus, in Project Blue Sky Inc v Australian Broadcasting Authority, [8] the joint judgment stated: "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. [9] The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. [10] In Commissioner for Railways (NSW) v Agalianos, [11] Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. [12] " 1. Consistently with this approach, and with the authorities referred to in the footnotes, "context" will always include established legal principles and rules. [13] The presumptions underlying the principle of legality may thus operate as a qualification of the primary focus on the language of the statute. That does not mean that it is open to the court to disregard the ordinary and natural meaning of the language adopted by the Parliament, nor to impose limitations which the Parliament has addressed and rejected with sufficient clarity. 2. The focus in the present case should be on the element identified by O'Connor J in Potter v Minahan as the "general system of law". That is because the basis for reading down the language of s 29(1) appears to be the proposition that to give the language its natural and ordinary meaning would infringe a basic principle underlying the administration of criminal justice. However, there may be a question as to whether that phrase engages a free standing basis on which clarity of expression is required, separate from individual rights, freedoms and immunities, [14] or whether the protections accorded an accused person in criminal proceedings can be accommodated within the category of individual rights. [15] 3. The phrase was applied by Hayne and Bell JJ in X7 v Australian Crime Commission, [16] to protect the basic principles of the administration of criminal justice. In Lee v New South Wales Crime Commission, [17] Gageler and Keane JJ, after reviewing the authorities, including Potter v Minahan, Bropho v Western Australia, [18] Coco v The Queen and Electrolux Home Products, explained the principle of legality in the following terms: "[313] Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature. [314] The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that '[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve'." 1. Gageler and Keane JJ also made clear that: "[324] The notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused is unsound in principle and is not consistent with Hamilton v Oades [19] …." 1. Crennan J agreed with Gageler and Keane JJ, stating that, in some cases, "a legislative object may involve a public interest which cannot be pursued without some impairment of some private right or immunity": at [126]. 2. It is significant that the information to which the respondent seeks access is the very information the creation of which is the object of the statutory scheme in the Care and Protection Act. The policy underlying the scheme is dependent upon the maintenance of confidentiality as to the source of that material. If the respondent seeks access to the source of the information which the Care and Protection Act seeks to protect, the Court is not engaged in a balancing exercising to determine the proper limits of the statutory policy. If the policy is expressed in clear language, it must be given effect. 3. In the rather more fraught area of intelligence collection by the UK Security Service, the Secret Intelligence Service and the Government Communications Headquarters, the Court of Appeal accepted the absence of judicial review with respect to decisions of the Investigatory Powers Tribunal, established to hear complaints of alleged misuse of statutory investigative powers. Thus, in R (on the Application of Privacy International) v Investigatory Powers Tribunal, [20] Sales LJ noted: "[21] … The principle of legality is an approach to statutory interpretation in the light of a strong presumption that in promulgating statutes Parliament intends to legislate for a liberal democracy subject to the rule of law, respecting human rights and other fundamental principles of the constitution. The rule of law and the ability to have access to a court or tribunal to rule upon legal claims constitute principles of this fundamental character." 1. Whilst, in the absence of an appeal, judicial review is limited to points of law, Sales LJ noted that there is "no neat, absolute division between points of law and points of fact in judicial review proceedings." [21] The Court of Appeal accepted that "[i]t is clear that Parliament's intention in establishing the IPT and in laying down a framework for the special procedural rules which it should follow … was to set up a tribunal capable of considering claims and complaints against the intelligence services under closed conditions which provided complete assurance that there would not be disclosure of sensitive confidential information about their activities." [22] The approach to access to the courts for the purposes of judicial review adopted in Privacy International was similar to that adopted by the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [23] , albeit in a different statutory context. The underlying point is that a careful review of the statutory scheme may reveal an intention to maintain confidentiality in all circumstances. The important point of distinction between this case and other cases is that, at least in some respects, the protection from disclosure of reports is subject to exceptions. These will be considered below. 2. The foregoing considerations indicate that the correct approach to the question of statutory interpretation must involve a number of elements. The exercise is not governed by a set of mutually inconsistent rules of which one must be chosen, but by reference to principles which, because they may pull in different directions, will involve evaluative judgment. In order to apply the principle of legality, it is necessary to identify with a degree of precision that fundamental right, freedom or immunity which is said to be curtailed or abrogated, or that specific element of the general system of law which is similarly affected. Any presumption of non-interference by general words will carry greater or lesser weight according to the precise issues identified. Particularly this is so where there are conflicting purposes operating in different areas of the law. Thus, in the present case there may be tensions between the public interest in ensuring a person charged with a criminal offence has a fair trial and, on the other hand, the need to ensure that child abuse is promptly and adequately reported, which will not occur if conditions of anonymity cannot be maintained. 3. There is one further consideration which must be borne in mind before turning to the application of the relevant principles of statutory construction. That is the terms of s 33 of the Interpretation Act 1987 (NSW), which reads as follows: "33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object." 1. On its face, s 33 is in mandatory terms which may require an approach inconsistent with any general law principle of legality. However, s 5(4) states that "[n]othing in this Act excludes the application to an Act … of a rule of construction applicable to it and not inconsistent with this Act." Further, there tends to be an element of circularity in applying a purposive approach in circumstances where the scope and operation of any identifiable purpose is likely to turn on considerations of statutory construction. 2. The application of any doctrine evoked by the principle of legality therefore requires identification of fundamental rights, freedoms and immunities. That exercise is undoubtedly achievable, even if the boundaries are uncertain; the boundaries of the "general system of law" are even less certain. Although that language has been invoked in relation to the administration of criminal justice, it is appropriate to recall that, when first used by O'Connor J in Potter v Minahan, there was no right of appeal for an accused convicted in a criminal trial and, less than 20 years earlier, the accused did not have a right to give evidence. [24] Further, the statutory obligation of the prosecution to provide potentially exculpatory material to the defence is of recent origin. [25] Earlier common law principles depended on the concept of a fair trial and were rarely applied, of limited scope and required evaluative judgment. [26] (d) legislative history 1. The history of s 29 and its predecessors was traced by Bathurst CJ in Hayward v R. The original predecessor to s 29 of the Care and Protection Act was s 148B of the Child Welfare Act 1939 (NSW), inserted in 1977. That provision incorporated a form of reporting, both voluntary and mandatory, with respect to a child who was a neglected child or had been assaulted or otherwise ill-treated: s 148B(2) and (3). The Director of the then Department of Youth and Community Services was required to investigate any matters notified and, if satisfied that the child may have been assaulted, take further action, including reporting the matter to police: s 148B(5). 2. Section 148B contained, in subs (6)(a)-(c), the various immunities from liability now found in s 29(1)(a)-(c), and further provided: "(6) Where a person notifies the Director pursuant to subsection (2) or (3)– … (d) subject to subsections (7) and (8), the notification shall not be admissible in evidence in any proceedings before a court, tribunal or committee and no evidence of its contents is admissible; and (e) subject to subsection (7), a person shall not be compelled in any proceedings before a court, tribunal or committee to produce the notification, or any copy of, or extract from the notification (if it is capable of being produced) or to disclose, or give any evidence of, any of the contents of the notification. (7) Subsection (6)(d) and (e) does not apply in relation to – (a) the admissibility in, or of, evidence of a notification made under subsection (2) or (3); (b) the production of such a notification, a copy thereof or an extract therefrom; or (c) the disclosure or giving of evidence of the contents of such a notification, either – (d) in any proceedings before a court, within the meaning of section 81B, in which the child to whom the notification relates is brought before the court as a neglected child; or (e) in support of, or in answer to, a charge or allegation made in proceedings referred to in subsection (6)(d) or (e) against any person in relation to his exercising or performing any of his powers, duties or functions in pursuance of this Act. (8) Subsection (6)(d) does not apply where a notification under subsection (2) or (3) is tendered in evidence, or evidence in respect of such a notification is given – (a) by the person by whom the notification was, or was caused to be, made; and (b) in answer to a charge or allegation made against him in proceedings referred to in subsection (6)(d)." 1. In s 148B, "'court', except in subsection (7)(d), means any court": s 148B(1). The reference in subs (7)(d) to "proceedings before a court, within the meaning of s 81B," was to proceedings brought before a children's court in relation to a neglected child where the complaint alleged the child had been ill-treated, exposed, or assaulted: s 81B(2). Section 81B permitted the court to take into account a statement or document which would be inadmissible in evidence. 2. It may thus be seen that 40 years ago, dealing with notifications of child abuse, protection was granted to the person making the notification. Evidence of the notification was only admissible in what would now be described as care and protection proceedings in a children's court, or in proceedings brought against a person in relation to the exercise of functions under the Child Welfare Act itself. Otherwise the prohibitions extended to "any court". 3. Although there was no express protection of the identity of the notifier under the Child Welfare Act, at least in civil proceedings brought against a party investigating such a complaint, there was a general law immunity granted in the public interest to preserve the anonymity of informants similar to that allowed to police informers: D v National Society for the Prevention of Cruelty to Children [27] (D v NSPCC). 4. In this State, D v NSPCC was followed and applied in criminal proceedings in Cain v Glass (No 2). [28] McHugh JA (with whom Kirby P agreed), having set out the justification for the rule given by Lord Diplock in D v NSPCC, continued at 247D: "The paramount position of the informer rule produces the result in civil proceedings that the identity of an informer in a criminal case is not admissible in any circumstances. In Marks v Beyfus (1890) 25 QBD 494 the Court of Appeal held (at 500) that, in a civil action for malicious prosecution, the Director of Public Prosecutions could not be compelled, and indeed was not permitted, to name the person whose information led to the prosecution. In Signorotto v Nicholson [1982] VR 413, Fullagar J held that the identity of a police informer could not be revealed in an inquiry held under a Victorian statute although the informer, if called, could give evidence of a conversation directly relevant to the inquiry. In Johnson v McLennan (…6 September 1985, unreported ) Yeldham J held that evidence as to the identity of a police informer was inadmissible in a coronial inquiry. In both Signorotto v Nicholson and Johnson v McLennan the learned judges held that no question of balancing competing public interests arose." McHugh JA then noted that Lord Diplock in D v NSPCC had applied a balancing test, "where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence": at 248B.. 1. Section 22 of the Children (Care and Protection) Act 1987 (NSW) (the 1987 Act) was in substantially the same terms as s 148B. Section 22(1) of the 1987 Act provided that a person who formed the belief upon reasonable grounds that a child "has been, or is in danger of being, abused" or is "in need of care" may notify the Director-General of the Department of Youth and Community Services of that belief. Subsections 22(2)–(4) required certain persons to make such a notification to the Director-General if they had "reasonable grounds to suspect that a child has been abused". Subsections 22(8)–(10) were in the following terms: 22 Notification of child abuse … (8) Where a person notifies the Director-General pursuant to subsection (1) or (4) – (a) the notification shall not, in any proceedings before a court, tribunal or committee, be held to constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct; (b) no liability for defamation is incurred because of the making of the notification; (c) the notification shall not constitute a ground for civil proceedings for malicious prosecution or for conspiracy; (d) the notification shall not be admissible in evidence in any proceedings before a court, tribunal or committee and no evidence of its contents shall be admissible; and (e) a person shall not be compelled in any proceedings before a court, tribunal or committee to produce the notification, or any copy of or extract from the notification, or to disclose, or give any evidence of, any of the contents of the notification. (9) The provisions of subsection (8)(d) and (e) do not apply in relation to – (a) the admissibility in, or of, evidence of a notification under subsection (1) or (4); (b) the production of such a notification, a copy thereof or an extract therefrom; or (c) the disclosure or giving of evidence of the contents of such a notification, either – (d) in any proceedings before the Children's Court under Part 5, or a court hearing or determining an appeal from a decision of the Children's Court under Part 5, before which the child to whom the notification relates is brought for the purposes of proceedings under Part 5; or (e) in support of, or in answer to, a charge or allegation made in proceedings referred to in subsection (8)(d) or (e) against any person in relation to the person's exercising any of that person's functions in pursuance of this Act. (10) Subsection (8)(d) does not apply if a notification under subsection (1) or (4) is tendered in evidence, or evidence in respect of such a notification is given – (a) by the person by whom the notification was caused to be made; and (b) in answer to a charge or allegation made against that person in proceedings referred to in subsection (8)(d). 1. Subsection 22(8)(d) of the 1987 Act restricted the admissibility of "notifications" in any proceedings, subject to the specified exceptions in s 22(9). Significantly, the restrictions on the admissibility of notifications and the power to compel production of notifications under s 22(8)(d) and s 22(8)(e) did not apply in the case of a "charge or allegation … against any person in relation to that person's exercising any of that person's functions in pursuance of" the 1987 Act. The legislature had thus directed its attention to whether criminal proceedings would fall within s 22(8)(d) and s 22(8)(e) and had permitted the admissibility and compulsory production of notifications only in limited cases. 2. The Care and Protection Act, as originally enacted in 1998, contained a somewhat similar provision to s 22(8)(d) of the 1987 Act. Section 29(1)(d) of the Care and Protection Act provided that a "report, or evidence of its contents, is not admissible in any proceedings as evidence against the person who made the report or any other person". Section 29(1)(e) was in substantially similar terms to s 22(8)(e) of the 1987 Act. Both s 29(1)(e) and s 29(1)(f) are in the same form today as when originally enacted in 1998. 3. However, the phrase "before a court, tribunal or committee" contained in s 22(8)(d) and s 22(8)(e) of the 1987 Act was not included in the equivalent provisions of the Care and Protection Act and, more significantly, the exception provided in s 22(9)(e) of the 1987 Act for a report to be admissible in certain criminal proceedings was removed. 4. In the second reading speech introducing the Children and Young Persons (Care and Protection) Bill in the Legislative Assembly on 11 November 1998, the Minister for Community Services made the following remarks: [29] "Honourable members would be well aware of the tragic consequences which can flow when members of the community fail to report to the department circumstances when children, particularly very young children, are at risk of serious harm. The unfortunate reality is that for many people concern that they may be identified as the reporter is a strong impediment to their reporting such children. Clause 29 of this bill significantly extends the protections offered to people making reports. People who notify someone who has the responsibility to make a report will receive protection as if they had made the report themselves. Thus, for example, a teacher who reports his or her concerns to the principal, who then makes a report to the department, will enjoy the same protections under the law as the principal who made the report. A court or other body will be restricted in disclosing the identity of the reporter to those circumstances where it is satisfied that the evidence is of critical importance to the proceedings. Where the court does disclose details of the reporter it must state the reasons why and take steps to let the reporter know. A report will be an exempt document under the Freedom of Information Act. However, the various protections offered will only apply where a report has been made in good faith." 1. Prior to its commencement, s 29 of the Care and Protection Act was amended by Sch 1 of the Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2000 (NSW). Section 29(1)(d) was amended to remove the phrase "as evidence against the person who made the report or any other person" from the provision, and to insert a new exception for "care proceedings" in the Children's Court. After the amendment, s 29(1)(d) stated that a "report, or evidence of its contents, is not admissible in any proceedings (other than care proceedings in the Children's Court, or any appeal arising from those care proceedings)". 2. The reason for the amendment was explained by the Minister for Community Services in the second reading speech for the 2000 bill: [30] "Both the 1987 and the 1998 Care and Protection Acts recognise that it is essential to preserve the confidentiality of people who report abuse. The bill clarifies three aspects of this protection. The first is to make sure that details of a report cannot become publicly available through other non-care court proceedings. A prohibition that simply stops the use of a report in evidence has been found to be insufficient as courts have allowed this sort of information into an open court room. The bill seeks to impose an absolute prohibition in all except care proceedings. Likewise, courts and tribunals are increasingly asking my department to justify whether a disclosure is in fact a report of abuse and so liable to protection. To justify this decision, departmental officers are being required by these courts and tribunals to disclose details of the report, thereby defeating the entire purpose of the provision." 1. It can thus be seen that, by the 2000 Amendment Act, the legislature had limited the admissibility of reports in evidence to "care proceedings", which phrase was defined in s 60 of the Care and Protection Act (both in 2000 and now) as "proceedings under" Chapter 5 of the Care and Protection Act. 2. Section 29(1)(d) was amended again by the Children and Young Persons (Care and Protection) Amendment Act 2010 (NSW). Section 29(1)(d) remains today in materially the same form as it appeared following this amendment. The explanation for the amendments given in the second reading speech for the 2010 bill was as follows: [31] "The bill introduces two important new law reforms which will improve the interface between the child protection jurisdiction and other Courts and Tribunals. Item [1] of the bill will enable child protection reports to be admissible in 'child welfare proceedings' before other Courts and Tribunals such as the Family Court, the Supreme Court, Administrative Decisions Tribunal, Victim's Compensation Tribunal and the Coroner's Court. Allowing these reports to be considered by courts in cases involving children will provide important contextual information, to enable the courts to better determine what is in the best interests of a child or young person and to make fairer decisions. The amendment includes an important proviso – that child protection reports will only be admissible in legal proceedings, provided that the identity of the reporter who makes the risk of harm report is not disclosed. The continued protection of the reporter will not put in jeopardy people's willingness to report children and young persons at risk of significant harm." 1. The legislative history indicates that the object of the legislation was to protect persons making a report, either compulsorily or voluntarily, and to thereby facilitate the object of the protection of children and young people. It is clear that in giving effect to this object, the legislature was at all times concerned to specify the type of proceedings in which a report could be used. 2. Whilst the 1977 Amendment Act and the 1987 Act permitted reports to be used in a limited class of criminal proceedings, in 1998, the Care and Protection Act departed from a legislative scheme limiting the admissibility of reports based on the type of proceeding, and instead imposed a restriction on the use of reports in proceedings. The exceptions in the Care and Protection Act to the restriction on the admissibility of the reports were then limited by the 2000 Amendment Act, although they were again expanded by the 2010 Amendment Act. That expansion did not include criminal proceedings, and the purpose of the expansion was said in the second reading speech to be to "enable courts to better determine what is in the best interests of a child or young person". 3. All operative forms of s 29(1)(d) have limited the admissibility of risk of significant harm reports by reference to types of proceedings, which have never included criminal proceedings. (e) construing the Care and Protection Act, s 29(1) 1. The text of s 29 and the legislative history of the provision show that the legislative purpose was to protect the identity of the maker of a report of risk of significant harm, in addition to, and to a greater extent than, the contents of the report. The reason for protection of identity identified in the extrinsic materials was the chilling effect that inadequate protection could have on the willingness of people to make reports of child endangerment. Such reports were seen to be critical to the object of ensuring the "safety, welfare and well-being" of children as provided for in s 8 of the Care and Protection Act. 2. There are two preliminary issues in relation to the scope and operation of s 29(1) which may arise in some cases but are not raised for present purposes. The first concerns the limitation of the protection to reports made "in good faith", as set out in the chapeau to the subsection. Issues may arise as to the circumstances in which a party in criminal proceedings may wish to challenge the good faith of the reporter. That is not this case. 3. Secondly, the levels of immunity granted with respect to possible proceedings against a reporter for professional misconduct, in defamation, or for malicious prosecution or conspiracy may also be put to one side; they may assume that the identity of the reporter is known or may become known. 4. The relevant issues of construction arise with respect to ss 29(1)(d), (e) and (f), and s 29(2). On one view, the order of ss 29(1)(d) and (e) is curious because questions of compulsory production of a report will usually precede questions of its admissibility in proceedings. Thus, an attempt to compel production by the issue of a subpoena or a notice to produce would usually precede a hearing at which evidence is tendered. The reason for the order may be that the question of compulsion to produce was seen to be subservient to the admission of evidence in the substantive proceedings. It may also be that the order of ss 29(1)(d) and (e) was thought appropriate because s 29(1)(e) also deals with giving evidence (by way of examination or cross-examination in court). In any event, the order does not affect the construction of the provisions, each paragraph dealing with "any proceedings", subject to the qualification in par (d) which excludes from its prohibition five categories of proceedings. The other point of distinction is that s 29(1)(d) focuses upon the report and its contents, whereas s 29(1)(e) focuses upon the recipient of a process seeking production, disclosure (for example, by answers to interrogatories) or the giving of evidence in court. 5. In both Re Attorney-General's Application with respect to s 29(1)(e), and in Hayward v R with respect to s 29(1)(d), it was contended that the exception in subpar (d)(iii) for "proceedings in relation to a child … before the Supreme Court" could include criminal proceedings brought against the abuser of a child. That led Ms Hayward to seek the presentation of the indictment against her in the Supreme Court, rather than the District Court, which would have been the natural venue for the trial. This attempt to bring the case within an exception in s 29(1)(d) was rejected in Hayward v R, the Court holding that the prohibition expressed as applying to "any proceedings" applied to criminal proceedings. It is convenient to identify the reasons for accepting that construction of par (d). 6. In some circumstances, such a broad phrase may be read down to exclude civil, criminal, or other categories of proceedings, depending on the context in which it appears. Nevertheless the ordinary and natural meaning of the term "any proceedings" is apt to include all kinds of proceedings before a court and, again depending on context, before other tribunals and bodies which conduct hearings. The specified exceptions reveal the kinds of proceedings which would otherwise fall within the prohibition; they do not support any implied limitations on the breadth of the prohibition. 7. The exceptions themselves are carefully confined. Subparagraphs (i), (ii) and (iii) expressly encompass proceedings relating to a child or young person. It is true that the connecting phrase "in relation to" can have a broad or a narrow operation. As was said in Technical Products Pty Ltd v State Government Insurance Office (Queensland), [32] of the words "in respect of", they "have a chameleon-like quality in that they commonly reflect the context in which they appear." Further, as French CJ and Hayne J said in Travelex Ltd v Commissioner of Taxation (Cth): [33] "It may readily be accepted that 'in relation to' is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that 'the subject matter of the enquiry, the legislative history, and the facts of the case' are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply 'in relation to' rights." 1. A child may be involved in proceedings in many ways; he or she may be a party, a witness or simply a person named in the proceedings; context is critical. In s 29(1)(d), the excluded proceedings in subpars (i)-(iii) are all proceedings in which the subject matter is the ongoing welfare and well-being of the child. With respect to subpar (iv), the functions of the Guardianship Division of the Civil and Administrative Tribunal (NCAT) include giving consent to special medical treatment on a child, pursuant to s 175 of the Care and Protection Act, in addition to other functions under the Guardianship Act 1987 (NSW) which may include children. With respect to subpar (v), the Coroners Act 2009 (NSW) confers specific jurisdiction on the coroner in cases involving children: 24 Jurisdiction concerning deaths of children and disabled persons (1) A senior coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that the person was (or that there is reasonable cause to suspect that the person was): (a) a child in care, or (b) a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 within the period of 3 years immediately preceding the child's death, or (c) a child who is a sibling of a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 within the period of 3 years immediately preceding the child's death, or (d) a child whose death is or may be due to abuse or neglect or that occurs in suspicious circumstances, or …. 1. It follows that there is a clear genus reflected in the exceptions, being proceedings in which the subject matter in issue is the welfare or wellbeing of the child. That genus is distinct from proceedings in which a person is prosecuted for causing injury or death to a child. Accordingly, the exceptions do not encompass such criminal proceedings. Nor do they support an implication that the general prohibition with respect to "any proceedings" excludes such criminal proceedings. 2. The legislature has expressed itself in clear terms that the proceedings in which a report of risk of harm to a child are admissible are those proceedings, and only those proceedings, identified in s 29(1)(d). That intention is confirmed by the legislative history set out above. 3. Turning to s 29(1)(e), two critical features should be noted. First, the purpose of the provision is to remove compellability both with respect to production of the document (the report) and with respect to disclosure of its contents in evidence. Secondly, and by way of contrast with par (d), it contains no exceptions. Indeed, while assuming that evidence may be given of the contents of a report (consistently with the exceptions in par (d)), it nevertheless denies compellability. To read an implied limitation into the phrase "any proceedings" in par (e) would not only involve giving the same phrase in closely related provisions different meanings, but would render the relationship between the provisions incoherent. 4. Section 29(1)(f) imposes a blanket prohibition on the disclosure of the identity of the maker of a report; it is not in terms limited to proceedings. It provides an exception, understandably, where the maker consents, thereby waiving his or her right to anonymity. Relevantly, it also permits disclosure with leave of a court, the relevant court being identified by reference to "proceedings relating to the report". That phrase appears to assume, consistently with par (d) that there are classes of proceedings in which the report may be considered. 5. The respondent submitted that this language is apt to include the court before which her criminal proceedings are pending. She argued that the question of the admissibility of the report and its contents (in s 29(1)(d)) and the identity of the maker of the report (in s 29(1)(f)) are separate matters addressed in different terms. That submission cannot be accepted. Rather, so far as possible the various provisions in s 29 should be read harmoniously to give effect to the identified legislative purpose of protecting the identity of the maker of a risk of harm report, thereby avoiding the chilling effect that inadequate protection could have on the willingness of people to make reports of child endangerment. The structure of s 29(1), the provisions which precede s 29(1)(f), in particular pars (d) and (e), and those which appear later, in particular s 29(2), demonstrate that "proceedings relating to the report" in which the identity of the maker of a report may be disclosed are those proceedings identified by way of exceptions in s 29(1)(d). It assumes that the report is available to the court, having passed through the gateways of ss 29(1)(d) and (e). 6. Proceedings do not "relate to" a document which is not able to be described as part of the subject-matter of the proceeding, and which cannot even form evidence in the proceeding. If the phrase "proceedings relating to the report" refers to proceedings in which the report and its contents may be admitted in evidence, the words "proceedings relating to the report" make sense, but apply only to those proceedings identified in s 29(1)(d). Even when a report is admissible in a proceeding identified in s 29(1)(d), the identity of the maker is only to be disclosed if the court so orders. The court referred to in (f) must be one with jurisdiction over proceedings identified in (d)(i)-(v). 7. That conclusion is underlined by s 29(2) which identifies the circumstances in which a court may grant leave under s 29(1)(f)(ii). Section 29(2) requires the court to be satisfied that the evidence, namely the identity of the maker of the report, is of critical importance in the proceedings. It is implausible that the identity of the maker of a report could be of "critical importance" in any proceeding in which the document could play no part. 8. In this way s 29(1)(f)(ii) operates coherently within the structure of s 29, but does not confer or permit, by way of exception to its general prohibition on disclosure, a freestanding power for a court in a criminal case to direct disclosure of the identity of the maker of a report of risk of significant harm to a child. (f) reasoning in Re Attorney-General's Reference 1. In Re Attorney-General's Reference, the Court applied the principle of legality to read down the phrase "in any proceedings" in s 29(1)(e) so that it "should not be construed so as to preclude the accused in a criminal trial from compelling, by subpoena, production of … reports that are relevant to the issues at the trial": at [29]. That conclusion is not consistent with the construction of s 29(1) adopted above. However, the construction adopted above is consistent with the reasoning and the decision in Hayward v R. 2. Where there are inconsistent decisions involving the construction of legislation, it is necessary to choose between them. The difficulty is not avoided by identifying each decision (and the present proceeding) as involving different statutory provisions. As explained above, it is not possible, consistently with principle, to construe the different elements of s 29 of the Care and Protection Act independently of each other. In these circumstances, it is not necessary for the court to be comfortably satisfied that one decision is wrong in order not to follow it. However, it is appropriate to identify those parts of the reasoning in the non-preferred decision which are not accepted. 3. The reasoning of the Court in Re Attorney-General's Reference involved the following steps. First, the Court acknowledged, with respect to s 29, "that its purpose is to provide protections to persons who make reports in good faith to the [Secretary] concerning children or young persons who are at risk of harm or are homeless": at [24]. That protection included the protection from disclosure of the identity of persons making reports. However, the Court then noted that the prohibition was "not absolute", because disclosure could occur with the consent of the reporter, or with leave of a court, pursuant to s 29(1)(f)(ii): at [25]. 4. The second step addressed the operation of s 29(1)(e), prohibiting the compelled production of reports or the disclosure of their contents. Again, the reasoning noted that the prohibition was not absolute as it did not extend to the "voluntary production of reports or disclosure of their contents", provided the identity of the reporter was not revealed "except in accordance with s 29(1)(f)": at [27]. (Whether the assumption as to voluntary production was correct might require consideration of the terms of s 248 of the Care and Protection Act, conferring specific powers on the Secretary to "furnish a prescribed body with information relating to the safety, welfare and well-being of a particular child …": s 248(1)(a), and see Ch 16A. The issue was not raised in this case and need not be determined.) 5. Thirdly, the prohibition on admissibility of a report in evidence provided by s 29(1)(d) was noted as being expressly subject to exceptions: at [27]. 6. The fourth stage of the reasoning drew these three elements together, leading to what were described as "arbitrary consequences" which might flow in particular cases, depending on whether or not the exceptions were triggered and material released. Thus, it was reasoned, a person who could not compel the production of the report, or disclosure of the identity of the reporter, might nevertheless obtain the report, including the identity of the reporter, if those matters were voluntarily disclosed, possibly in other proceedings: at [27]. 7. Fifthly, given these arbitrary consequences, and thus that an accused person in a criminal trial might obtain the report and the identity of the reporter, it was held that the legislature had not expressed an intention to abrogate the rights of an accused to a fair trial with unmistakable and unambiguous language, having squarely confronted the potential effects on a fair trial: at [29], [30]. 8. Finally, although not relied upon to support the reasoning, a further anomaly was identified in par (f) which was said to provide "some confirmation that the present issue was not addressed by the legislature": at [31]. The reasoning envisaged the possible anomaly that a court might be prevented by s 29(1)(e) from requiring a witness to give evidence of the contents of a report, but could nevertheless, pursuant to par (f), require the witness to identify the maker of the report. 9. There are a number of reasons why this analysis should not be accepted. First, it failed to accord the terms of subs 29(1) a coherent reading, based upon the structure and inter-relationship of the various elements. For example, it did not expressly address the particular nature of the exceptions in par (d), nor the ordinary meaning of the phrase "any proceedings" in each of pars (d) and (e). Paragraphs (d) and (e) must be read together to make sense of their respective prohibitions. While, pursuant to (d), the contents of a report are not inadmissible in, for example, care proceedings, nevertheless par (e) prevents a person being compelled to disclose the contents of a report in any proceedings, including the proceedings which are excepted from the inadmissibility principle in par (d). Accepting that, once disclosed in an excepted proceeding, the report may be available to a person in other proceedings, it does not follow that the prohibition on compulsion to produce need be read down. 10. To similar effect, reading the provisions together, it is not any court which can grant leave to reveal the identity of the maker of the report, pursuant to par (f), but only the court before which proceedings relating to the report are conducted, namely those proceedings in which the report is admissible, in accordance with par (d). 11. Secondly, to identify limits on the scope of the prohibitions does not of itself provide a basis for expanding those limits so as to read the prohibitions otherwise than in accordance with their natural and ordinary meaning. Once it is accepted that the provisions allow for the tendering of reports in some circumstances, and for the identification of the reporter in some circumstances, it does not follow that the consequences for criminal proceedings will be "arbitrary". Whether an accused person in criminal proceedings has access to witnesses or documents will often depend on the scope of the investigations undertaken by the police and upon the obligation of the prosecutor to provide the results to the accused. There will be circumstances in which materials in the possession of the prosecution, or available to it, are not disclosed. As noted above, that will not uncommonly include information as to the identity of an informant; more generally it will include material subject to public immunity. 12. Thirdly, attention to the nature of the specific right, or the aspect of the general system for the administration of criminal justice, said to be impaired is important. It is significant that s 29 is not directed to any aspect of a criminal trial; its effect on a criminal trial is, at the highest, incidental to its purpose. Thus it does not affect the power of a criminal court to take all appropriate steps to prevent an accused being convicted as a result of an unfair trial; nor does it impinge on the power of an appeal court to set aside a conviction so obtained. 13. The Criminal Organisation Act 2009 (Qld) conferred power on the Supreme Court of Queensland to make a declaration that a particular organisation was a "criminal organisation", on the basis of "criminal intelligence" (that is, information relating to actual or suspected criminal activity), which could not be disclosed to the respondent to the application. In Condon v Pompano Pty Ltd [34] the High Court considered a challenge to the constitutionality of these powers and procedural limitations. Two factors were critical in rejecting the challenge. First, as noted by French CJ, "[t]he process is analogous in some respects to that used in the determination of public immunity claims in the exercise of the inherent power of the Supreme Court": at [78]. Secondly, and relevantly in relation to the criminal trial to be held in the present case, the legislative scheme did not purport to diminish or interfere with the independence and impartiality of the court exercising criminal jurisdiction, nor to diminish its inherent power to address, potentially by way of a permanent stay, proceedings which might constitute an unfair trial. 14. Accepting that the principle of legality was engaged, the language of s 29(1)(e), read in its context, and taking into account the legislative history of the section as a whole, cogently demonstrates that the legislature intended that the unqualified prohibition on the compelled production of a s 24 report should apply to criminal proceedings. Further, the exception in s 29(1)(f)(ii) to the protection of the identity of the maker of a report was limited to "proceedings relating to the report", being those proceedings specifically identified by the legislature in s 29(1)(d). The legislature has chosen to override any interest an accused person may have in ascertaining the identity of the maker of such a report, so as to protect the interests of vulnerable children as a class. 15. For these reasons, Re Attorney-General's Application should not be followed. Conclusions 1. The legislature was concerned to specify in s 29(1)(d) of the Care and Protection Act the types of proceedings in which a report or the content of a report could be admitted in evidence. The clear wording of s 29(1)(e) forbids the use of compulsory process in "any proceedings" to compel production of a report of a risk of harm to a child, and the giving of evidence about the contents of a report. To imply an exception for criminal proceedings against a person accused of mistreating a child would be to subvert the clear and uncontested purpose of the section. The principle of legality does not require such an implication. 2. At all times since its enactment, s 29(1)(f)(ii) has referred to "proceedings relating to the report", in contradistinction to the expression "any proceedings" used in s 29(1)(e). The words of limitation in s 29(1)(f)(ii) should be understood by reference to the legislative scheme disclosed in pars (d), (e) and (f) to describe and define the relevant proceedings. The words of limitation in subpar (f)(ii) must relate to those proceedings identified by the legislature in s 29(1)(d), being ones where the report may be admissible in evidence. Those proceedings do not include a criminal trial. 3. That conclusion is underpinned by the terms of s 29(2) which provide that before making an order under s 29(1)(f)(ii) the Court must be satisfied that evidence of the identity of the maker of a report is of critical importance in the proceedings and that "failure to admit it" (in evidence) would cause prejudice to the proper administration of justice. That conclusion is only capable of being reached in a case where the report itself is admissible in evidence. Any wider application would not be a coherent application of the provision. 4. Accordingly, the criminal proceedings before the primary judge are not "proceedings relating to the report", within the meaning of s 29(1)(f)(ii). The primary judge had no power to order the Secretary to identify the maker of a report under s 29(6), nor to produce the unredacted reports, nor to provide information from which the identity of that person could be deduced. The Notice of Motion dated 1 August 2018 should have been dismissed. 5. It was also submitted on behalf of Ms Hayward that it would be an inappropriate fragmentation of the criminal trial for this Court to intervene at this stage under s 69 of the Supreme Court Act 1970 (NSW). Whilst in principle the fragmentation of a criminal trial should be avoided if at all possible, the present case was one involving starkly inconsistent decisions of the Court of Criminal Appeal. Resolution of the inconsistency in approach disclosed in the two appellate decisions concerning an important aspect of the regime for child protection and safety in NSW was a sufficient basis for this Court to intervene. 6. For these reasons the Court made orders granting the declaration sought by the Secretary and dismissing the respondent's motion. ********** Endnotes 1. [2014] NSWCCA 251; 246 A Crim R 150 (Macfarlan JA; Beazley P and Bellew J agreeing). 2. [2018] NSWCCA 104 (Bathurst CJ; Hoeben CJ at CL, Price, Fullerton and Garling JJ agreeing). 3. [1998] AC 539 at 587. 4. (1994) 182 CLR 104 at 196; [1994] HCA 46. 5. (1908) 7 CLR 277 at 304; [1908] HCA 63. 6. (1994) 179 CLR 427 at 437; [1994] HCA 15. 7. (2004) 221 CLR 309; [2004] HCA 40 at [21]. 8. (1998) 194 CLR 355; [1998] HCA 28. 9. See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ. 10. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole". 11. (1955) 92 CLR 390 at 397. 12. Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J. 13. See also CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); [1997] HCA 2; SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ), [35]-[37] (Gageler J). 14. S McLeish and O Ciolek, "The Principle of Legality and 'the general system of law'" in D Meagher and M Groves (eds), The Principle of Legality in Australia and New Zealand (The Federation Press, 2017), Chapter 2. 15. See eg, D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) p 257. 16. (2013) 248 CLR 92; [2013] HCA 29 at [86]-[87]. 17. See also (2013) 251 CLR 196; [2013] HCA 39 at [171]-[173] (Kiefel J), (Hayne J at [58] and Bell J at [255] agreeing). 18. (1990) 171 CLR 1; [1990] HCA 24. 19. (1989) 166 CLR 486; [1989] HCA 21. 20. R (on the Application of Privacy International) v Investigatory Powers Tribunal [2017] EWCA (Civ) 1868; [2018] 1 WLR 2572 ("Privacy International"). 21. Privacy International at [44]. 22. Privacy International at [42]. 23. [2018] HCA 4; 92 ALJR 248. 24. Cf Criminal Law and Evidence Amendment Act 1891 (NSW); Criminal Appeal Act 1912 (NSW). 25. Criminal Procedure Act 1986 (NSW), ss 141 and 142;. 26. See Grey v The Queen [2001] HCA 65; 75 ALJR 1708; Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 at [17]. 27. [1978] AC 171 at 219E-G (Lord Diplock), 229F-H (Lord Hailsham of St Marylebone), 241F (Lord Simon of Glaisdale) and 242 (Lord Kilbrandon agreeing with Lord Hailsham). 28. (1985) 3 NSWLR 230 at 246G-248C. 29. Parliamentary Debates (Hansard), Legislative Assembly, 11 November 1998, p 9761. 30. Parliamentary Debates (Hansard), Legislative Assembly, 21 June 2000, p 7373. 31. Parliamentary Debates (Hansard), Legislative Council, 25 November 2010, p 28285. 32. (1989) 167 CLR 45 at 47 (Brennan, Deane and Gaudron JJ); [1989] HCA 24. 33. (2010) 241 CLR 510; [2010] HCA 33 at [25] (footnotes omitted). 34. (2013) 252 CLR 38; [2013] HCA 7. Amendments 26 September 2018 - [44] Grammatical change to first sentence. [68] Adding "(d)" to "29(1)", second sentence. [90] Changing "29(f)(ii) to read (29(a)(f)(ii). 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: 26 September 2018