FGC v Commission for Children and Young People and Child Guardian (No 2) [2010] QCAT 362

CITATION: FGC v Commission for Children and Young People and Child Guardian (No 2) [2010] QCAT 362 PARTIES: FGC v Commission for Children and Young People and Child Guardian APPLICATION NUMBER: CML118-10 MATTER TYPE: Childrens matters HEARING DATE: 30 th July 2010 HEARD AT: Brisbane DECISION OF: Ms Julie Cowdroy, Presiding Member Ms Tammy Williams, Member DELIVERED ON: 30 th July 2010 DELIVERED AT: Brisbane CATCHWORDS : Application for non-publication order; s.66 of the Queensland and Administrative Tribunal Act 2009; public interest; where applicant has not been charged with a sexual offence; non publication in the present circumstance justified on the basis that it avoids interfering with the proper administration of justice in the broader sense. ORDERS MADE: 1. Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the name of the applicant in the decision relating to application number CML031-10. 2. Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the name of the witness in the decision relating to application number CML031-10. APPEARANCES and REPRESENTATION (if any): -- 1 of 4 -- ` 2 Counsel appeared on behalf of both parties REASONS FOR DECISION This is an application for a non-publication order. The history of the matter is that an order was made by the Queensland Civil and Administrative Tribunal on the 23 rd July 2010 prohibiting the publication of the name of FGC in relation to a decision made by the Tribunal in the Children’s jurisdiction on 9 th June 2010 in relation to a blue card matter, namely CML31-10. In that decision, a decision was made to set aside an order issuing a negative notice and substituted its decision that a positive notice be issued to FGC and a blue card be given to him. The matter comes before the Tribunal as the previous order was made for a very short term and in fact it expires at 5pm today. The Tribunal heard from Counsel for the Applicant and Counsel on behalf of the Commission. The Tribunal was constituted by Julie Cowdroy and Tammy Williams. The starting point for the Tribunal was to consider the objects of the Act which are set out in Section 3. It provides amongst other things for the enhancement of openness and accountability of public administration. This application is brought under Section 66 of the Queensland and Administrative Tribunal Act 2009, called the QCAT Act. In that section an application can be made by a party to proceedings or an order can be made on the Tribunal’s initiative for non-publication of a range of matters, which are set out in that section. The applicant contended that it was appropriate that the name of FGC be prohibited from publication on a range of reasons; interests of justice, to avoid interfering with the proper administration of justice and that the publication of identifying details would be contrary to the public interest. Counsel sought to distinguish this matter from other blue card matters which have been published. In many of those, charges have been laid or convictions recorded and in the present case no charges have been laid. It was argued that for this reason the need for identification is quite different than where there are cases where there have been convictions or charges and in that context, reference was made to the Criminal Law Sexual Offences Act (1978), which prohibits the publication of the identity of a defendant charged with sexual offences until that person is committed for trial or sentence and the Tribunal gave some weight to that aspect. -- 2 of 4 -- ` 3 One of the arguments that was put by the Counsel for the applicant was that publication of FGC’s name would be contrary to the public interest for if a person that has not been charged or convicted of any offence has been successful in having their blue card restored, it cannot be in the interests of justice because the publication of that person’s name would have a deleterious effect to others in considering whether or not to lodge an application for review. It follows that a person who has been successful in having their blue card restored, if they were to be the subject of consequent media attention and public scrutiny having had their names published, to some extent their success on review would be nugatory, Counsel also sought to distinguish this matter from cases where professionals such as medical practitioners have been found to have acted improperly or un- professionally and particularly where they have been the subject of disciplinary action. It may well be argued that in those circumstances that the public has a right to know the details as well as the names of the practitioner involved. It is the case that other cases have been published since the commencement of the QCAT Act, without any form of de-identification. As it was brought to the Tribunal’s attention by both Counsel, there have been no applications, and this is also to the knowledge of the Tribunal, where a non-publication order has been made, and nor has the Tribunal considered any such applications on it’s own initiative. The fact that other cases have been published and the fact they have been published in an identifiable form does not greatly assist the Tribunal in reaching it’s decision in this case. The argument was put forward in the event of the order for non-publication of FGC’s name being unsuccessful that the Tribunal consider the deletion of certain personal material relevant to FGC on the basis that the information was of a confidential nature and any information published of that nature would be contrary to the public interest. Additionally the Tribunal discussed whether the name of a witness at the hearing, I can say, a supportive witness, who is not a complainant, who was a child when he first met FGC and he is now only nineteen years of age, should be the subject of a non publication order. Counsel for the Commission formally indicated that the Commission had no particular submission on the matter as to whether publication or non-publication should occur. The Tribunal considered the submissions and the material and made a decision in the interests of the public that a non-publication order be granted. The Tribunal therefore prohibits the publication of the name FGC in material which is the subject of the childrens matters before the Tribunal. -- 3 of 4 -- ` 4 It does so on the basis that not withstanding the order for non-publication, the principles of openness and accountability may be achieved and maintained. The public interest is served by permitting the public to access details of blue card matters, the decisions made by this Tribunal and the reasoning behind those decisions. The Tribunal also considered it significant that the publication of identity in cases where blue cards have been restored on review would be likely to deter people from exercising their right to seek review. Non publication in the present circumstance can clearly be justified on the basis that it avoids interfering with the proper administration of justice in the broader sense. On the specific level, FGC has not been charged with a sexual offence; this is distinguishable from cases where there have been charges or convictions and it may well be argued that the public has a right to know the name of the perpetrator. The Tribunal also notes that a short term order was made primarily on the basis to allow the media to make submissions on whether this order should be granted if they so wished. That opportunity has now passed and having heard from both parties the Tribunal makes the orders in the terms set out. -- 4 of 4 --