AAA v BBB[2017] QMC 25

MAGISTRATES COURTS OF QUEENSLAND

INTRODUCTION

1. [1]
   On 5 February 2015 AAA filed an application for a protection order naming BBB her then husband, as a respondent. The parties were legally represented and the making of the order was opposed. In accordance with usual practice directions for filing material to facilitate the hearing of the protection order application were made. Pursuant to those directions an affidavit of CCC was filed by AAA in Court exhibiting a prepared psychosocial report by CCC containing information and observations about the relationship of AAA and BBB. BBB and AAA had both received intensive counselling by CCC for about one month. That counselling included individual and joint sessions.
2. [2]
   The protection order application never proceeded to hearing. AAA withdrew the application on 8 July 2015.
3. [3]
   On 1 March 2017 a solicitor, on behalf of BBB, applied to the Court to authorise the release of the affidavit of CCC and the exhibited report for the purposes of pursuing a complaint against CCC to the Office of the Australian Information Commissioner (OAIC) that CCC breached his confidence, including by filing an affidavit in the above referred proceedings.
4. [4]
   An application to this Court is necessary because of the provisions of ss. 159 and 160 of the Domestic and Family Violence Protection Act 2012 (“the DV Act”). Section 159 provides for restriction of publication of information related to domestic violence proceedings, including protection order applications:

1. (1)
   A person must not publish—

1. (a)
   information given in evidence in a proceeding under this Act in a court; or
2. (b)
   information that identifies, or is likely to lead to the identification of, a person as—

1. (i)
   a party to a proceeding under this Act; or
2. (ii)
   a witness in a proceeding under this Act (other than a police officer); or
3. (iii)
   a child concerned in a proceeding under this Act.

Maximum penalty—

1. (a)
   for an individual—100 penalty units or 2 years imprisonment; or
2. (b)
   for a corporation—1000 penalty units.

1. (2)
   However, subsection (1) does not apply—

1. (a)
   if the court expressly authorises the information to be published; or
2. (b)
   if each person to whom the information relates consents to the information being published; or
3. (c)
   to the display of a notice in the premises of a court; or
4. (d)
   to the publication of information for the purpose of a recognised series of law reports or an official website for the publication of judgments, if the information does not identify, and is not likely to lead to the identification of, a person mentioned in subsection (1)(b); or
5. (e)
   to the publication of information for approved research, if the information does not identify, and is not likely to lead to the identification of, a person mentioned in subsection (1)(b); or
6. (f)
   if the publication is expressly permitted or required under this or another Act; or
7. (g)
   if the publication is permitted under a regulation.

1. (3)
   In this section—

information includes a photograph, picture, videotape and any other visual representation.

publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.

1. [5]
   I have viewed the affidavit and report. If they were disclosed to the OAIC it would clearly be a breach of s. 159(1)(b) in that it would identify the parties, a witness and a child in a proceeding under this Act. It may well breach section 159(1)(a) if the affidavit is classified, as was the intent of directions, as evidence given in a proceeding. This issue is further discussed below.
2. [6]
   Section 160 of the DV Act has a prohibition on obtaining copies of a document for a proceeding:

1. (1)
   A person is not entitled to a copy of—

1. (a)
   any part of the record of a proceeding under this Act; or
2. (a)
   any document used or tendered in a proceeding under this Act.

1. [7]
   Section 160(2) provides that s. 160(1) (a) does not apply to a party to a proceeding. However, that exception is subject to s. 159 of the DV Act so even though BBB lawfully has a copy of the affidavit he would not be permitted to publish that document to the OAIC unless one of the exceptions in s. 159(2) applied.
2. [8]
   Hence, BBB has applied to the Court under s. 159(2)(a) to expressly authorise the information to be published to the OAIC.
3. [9]
   The matters originally came before me on 3 March 2017. I considered that it was important that AAA have the right to be heard and directed a written application and supporting material be filed. The matters came back to Court before me in accordance with the directions on 31 August 2017. Having heard from the parties I adjourned for a decision and also to permit the filing of a further affidavit that might redact certain information to protect the privacy of AAA.
4. [10]
   Before turning to the issue of whether publication to the OAIC should be authorised it is necessary to consider two preliminary matters:

1. (i)
   is an affidavit filed in accordance with directions in a contested domestic violence application information given in evidence in a proceeding under this Act in a court?^[1] and
2. (ii)
   is the provision of the affidavit of CCC to the OIAC ‘publishing’ the document in accordance with the meaning under s. 159(3) of the Act?

1. [11]
   It is necessary to determine the preliminary matters as if the affidavit of CCC is not information given in evidence in a proceeding under this Act in a court, then Court authorisation of its disclosure, save for issues of identification of the parties, may not be necessary. The same result would ensue if the provision of the affidavit of CCC to the OAIC is not a publication as defined in s. 159(3).

IS AN AFFIDAVIT FILED IN ACCORDANCE WITH DIRECTIONS IN A CONTESTED DOMESTIC VIOLENCE APPLICATION “INFORMATION GIVEN IN EVIDENCE IN A PROCEEDING UNDER THIS ACT IN A COURT”?

1. [12]
   The affidavit of CCC was filed by AAA in accordance with a Magistrate’s direction given on 16 April 2015 to facilitate the final hearing of the application which was contested. While the relevant material was filed and served the application did not proceed to a full hearing (where the affidavit material may or may not have been formally admitted into evidence by a magistrate) as the application was withdrawn by AAA. Some guidance as to the breath of the definition of proceeding can be found in the decision of R v Deemal [2010]2 Qd R 70 where Holmes JA (as she then was) discussed the meaning of “proceeding” and “judicial proceeding”. That case focused on whether sworn evidence at a Queensland Crimes Commission was evidence given in a judicial proceeding for the purpose of a perjury prosecution. However, the decision of Holmes JA also discusses the meaning of the term proceeding and how its meaning must be construed in the context it is used [19]:

19. [19]
    “Proceeding”, Smart J observed in Blake v Norris, is a word:

“capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use ... Any assistance as to its meaning has to be derived from the statutory context and the objects of the legislation in question.”

And, as Young J noted in Corporate Affairs Commission (NSW) v Prime Commodities Pty Ltd & Ors, although “‘proceeding’ usually involves a lis between parties, to be heard before a third party, usually a judge or arbitrator ... this is not necessarily so.” Young J went on to cite a series of cases including Cheney v Spooner as examples of the latter proposition.

20. [20]
    Cheney v Spooner concerned a summons issued under s 16 of the Service and Execution of Process Act 1901 (Cth) for an examination of witnesses as to company affairs, to be conducted under the Companies Act 1899 (NSW). Section 16 enabled the issue of summonses in “any civil or criminal trial or proceeding”. It was argued that the Companies Act provisions enabling the examination did not give rise to a “proceeding”, but, rather, the “mere gathering of information which may result in nothing or may result in the subsequent initiation of some proceeding”. The High Court rejected that argument, holding that the examination was a “proceeding” for the purposes of s 16; the expression was used broadly there to convey:

“... some method permitted by law for moving a Court or judicial officer to some authorized act, or some act of the Court or judicial officer.”

21. [21]
    In my view, the concept of a “proceeding” in s 119 of the Criminal Code is at least as broad.

1. [13]
   In this case the context is that s. 159 is a protective provision designed to give confidentiality to the parties to a proceeding and stop the dissemination of highly sensitive material to the public. If proceeding were narrowly defined to only include evidence actually admitted in a hearing before a magistrate the whole object of the provision would be undermined. In my view the ‘proceeding’ in this case commenced on the filing of the application on 5 February 2015 and that the consequent filing of the affidavit of CCC on 1 April 2015 constituted ‘information given in evidence in a proceeding’.

WOULD BBB GIVING AN AFFIDAVIT OF CCC TO THE OAIC BE “PUBLISHING” THE DOCUMENT IN ACCORDANCE WITH THE MEANING UNDER S.159(3) OF THE ACT?

1. [14]
   This present application proceeded upon the basis that if BBB were to provide to the OAIC a copy of the affidavit of CCC then that action may constitute a criminal offence because he had published the information. However, s. 159(3) of the DV Act provides a deliberately restrictive definition of ‘publish’:

“publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.”

1. [15]
   The narrowed definition in s. 159(3) protects routine communications from attracting criminal liability. The Explanatory Notes for the Bill set out both the rationale for the confidentiality provisions and possibly exempt communications^[2]:

The Bill proposes that domestic violence proceedings be conducted in a closed court and that there be restrictions on publishing information about proceedings to the public.

These provisions are not consistent with principles relating to the freedom of communication and the desirability for open courts. Section 81 of the Domestic and Family Violence Protection Act 1989 (Courts to be closed) has been carried over to the Bill (clause 158).

Although clause 158 provides that the court hearing an application under the Act must close the court, the court retains its discretion to open the proceedings or part of the proceedings to the public or a specific person.

This provision continues to allow for an aggrieved to have a support person present. Under clause 42 of the Bill, a court may make or vary a protection order where it convicts a person of an offence involving domestic violence.

These proceedings must be held in open court, however, as with any criminal proceedings, a court can order that persons be excluded from proceedings (see section 70 of the Justices Act 1886).

While courts of law are generally open to the public to promote the proper administration of justice, the nature of the matter being dealt with does allow for some discretion in the application of this principle. A similar example is provided in proceedings that involve children. The provisions of section 99J of the Child Protection Act 1999 and section 20 of the Childrens Court Act 1992 enable a court to be closed. Given the highly sensitive nature of domestic and family violence, and the fact that children are often involved in proceedings, allowing for courts to be closed is considered to be justified in the circumstances.

Clause 159 of the Bill prevents information given in evidence or information that is likely to identify, or lead to the identification, of a party, witness, or child concerned in proceedings under the Bill from being published to the public. A person who publishes such information can be prosecuted. The maximum penalty for an individual is 100 penalty units or 2 years imprisonment and for a corporation is 1,000 penalty units. This provision complements the ‘closed court’ provisions of clause 158.

Publish is defined in clause 159(3) in terms of publishing ‘to the public’. This is wider than the current meaning of publish in section 82 of the Domestic and Family Violence Protection Act 1989, which also refers to ‘a section of the public’. This means that the Bill does not need to specify all of the exemptions that are referred to in the current provision. The proposed definition of publish will not include a person who is required to copy or forward documents to another person where this is undertaken in the course of representing or assisting a person who is involved in proceedings.

The exceptions, set out in clause 159(2), include: circumstances where the court orders publication; notices which are displayed in court; publication of genuine research or in a recognised series of law reports, where individuals are not able to be identified; or where consent has been obtained by the individuals to whom the information relates.

It is considered that these provisions effectively balance the need to protect individuals from the publication of highly sensitive and personal information and the need to facilitate the openness and accountability of court processes. Court processes are still subject to scrutiny, through publication in recognised law reports and genuine research, and also through the appeal provisions in part 5, division 5 of the Bill. Further, a court has the discretion to open a court in appropriate circumstances.^[3]

1. [16]
   However, none of the examples provided at p. 83 of the notes fit the particular situation in this application:

Subclause 159(3) defines information and publish for the purposes of the provision. The definition of publish refers to publishing to the public which is more limited than the definition of publish in section 82 of the Domestic and Family Violence Protection Act 1989. The reason for the prohibition to be limited to publication to the public is to ensure that necessary communication of information related to the proceedings is not hampered. For example, this definition will not prohibit information about the parties to a proceeding from being disclosed in the following circumstances:

• a clerk in the Magistrates Court can provide a copy of a court list to a person who is employed by a domestic violence support service to provide court support for persons involved in proceedings
• a person named as an aggrieved in a domestic violence order can notify the principal of a school attended by the person’s child that the order prohibits the child’s father from having contact with the child and that the police should be called if the father presents at the school
• a person named as an aggrieved in a domestic violence order can provide a copy of the order to a government department that provides housing assistance to support a claim for priority housing
• a person named as a respondent in a domestic violence order can provide a copy of an order to a service provider that the respondent approaches to seek assistance in addressing the person’s behaviour.

1. [17]
   The examples in the explanatory notes focus on the publishing of information to facilitate the court processes or the protection of the aggrieved by disclosure of an existing court order (that technically does reveal the names of parties to the proceeding). None of the examples involve the disclosure of sensitive information to the extent sought in this application. Publication to the OIAC of a document containing such personal material is I am satisfied in an entirely different category to the examples used in the section. To disseminate that material (without leave of the Court) would permit the publication of a wide variety of material on the basis that it was to be used for a legitimate purpose (i.e. to make a complaint) without any power for the Court to control the dissemination. It is not outside the realms of possibility that a person could, by making spurious complaints, circulate highly sensitive and confidential material to many persons. The whole purpose of the confidentiality provisions would be completely undermined as there would be no scrutiny of what sort of material was published to what members of the public and malicious or vexatious publication would be possible. This could not be the intent of Parliament. Publication to the OIAC would be publishing to the members of the public by a means of communication (presumably by email or letter). While the definition primarily focuses on dissemination generally or by media the definition is not restricted to that type of publication.

1. [18]
   Hence, I am satisfied that publishing the affidavit to the OIAC would constitute publishing both information given in evidence in a proceeding under this Act in a court and identifying a party to a proceeding, a witness to a proceeding and a child and the authorisation of the Court is required under s. 159(2)(a) of the DV Act to so publish the information.

HOW IS THE DECISION TO BE MADE TO AUTHORISE RELEASE OF THE DOCUMENT?

1. [19]
   Section 159(2) provides no guidance as to how the court should make its decision.
2. [20]
   Obviously given the application is made pursuant to s. 159(2) of the DV Act the Court must have regard to s. 4 of the DV Act:

1. (1)
   This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
2. (2)
   Subject to subsection (1), this Act is also to be administered under the following principles—

1. (a)
   people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
2. (b)
   to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
3. (c)
   perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
4. (d)
   if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;

Examples of people who may be particularly vulnerable to domestic violence—

• Women
• children
• Aboriginal people and Torres Strait Islanders
• people from a culturally or linguistically diverse background
• people with a disability
• people who are lesbian, gay, bisexual, transgender or intersex
• elderly people

1. (e)
   in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;
2. (f)
   a civil response under this Act should operate in conjunction with, not instead of, the criminal law.

1. [21]
   Section 4(2)(b) is particularly relevant: to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act. It was in accordance with this provision that I directed AAA be given notice of the application and be allowed to make submissions on her views as to the disclosure of the material.
2. [22]
   AA was vehemently opposed to the application as she submitted her privacy would be breached by the disclosure.
3. [23]
   I consider considerable weight should be placed on the views of AAA. A party in a domestic violence proceeding has an expectation of privacy given the provisions of the DV Act. The matters disclosed in the report include deeply personal disclosures pertaining to her marriage and children stretching over many years. I accept that the prospect of this information being disseminated to other persons of whom she has no knowledge would be highly distressing.
4. [24]
   As well as AAA’s distress there is also a significant public interest in ensuring that, as far as possible, the Court upholds the confidentiality provisions of the legislation. These types of applications often include the most intimate and personal information. I consider there is a real risk that applicants for domestic violence orders would hesitate to make such applications, or make full disclosure of intimate matters, if they feared that Courts would authorise the dissemination of their intimate affairs, possibly years after the initial application, upon the application of the respondent. I consider that could discourage the bringing of applications or the inclusion of all facts in an application even in circumstances that the disclosure was to a Government entity. Disclosure of confidential material, even with the leave of a Court, in circumstances such as these, then has the real potential to inhibit the bringing of protection order applications.
5. [25]
   Balanced against those considerations is the consideration that there is a significant public interest in ensuring that confidentiality is maintained in the counselling process. That principle was recognised in R v Baden-Clay^[4] where Douglas J considered a marriage counsellor’s claim of privilege against giving evidence. The claim was based on a two-fold claim: ss10D and 10E of the Family Law Act 1975 (Cth) prohibited her from giving evidence and/or she was entitled to a public interest immunity.
6. [26]
   Sections’ 10D and 10E essentially make confidential communications in family counselling (s. 10D) and limit the admissibility of evidence of anything said, or in the company of a family counsellor conducting family counselling. His Honour, relying on earlier decisions, limited the application of those section to courts exercising jurisdiction by virtue of the Family Law Act. His Honour also considered it was not established before him that there was a public interest privilege in preventing family counsellors from giving evidence. He did however recognise that there was a general importance of encouraging parties to engage in counselling more readily, knowing it was confidential.^[5]

1. [27]
   Hence there is a public interest component in BBB’s favour that he should be able to pursue a legitimate complaint that his privacy has been breached by the alleged wrongful disclosure of counselling communications that included highly personal information made during marriage counselling sessions where he had an assurance and expectation that those disclosures would be confidential.^[6] A robust complaint structure is one of the ways the legislature has put in place to ensure the confidentiality of certain communications. Hence there is a real public interest in ensuring BBB’s right to make a complaint is not stymied by not being able to show the document that he is complaining about.
2. [28]
   Another relevant consideration is to whom the information is to be disseminated to by the authorisation of the Court. In this matter the destination for the material is the OAIC. The OAIC has provided a letter to BBB with respect to how the report may be handled:^[7]

The OAIC collects, holds, uses and discloses personal information to carry out its functions and activities, amongst other legislation the Privacy Act. One of these functions and activities include the handling of privacy complaints.

If the OAIC received a copy of the affidavit, it would be handled in accordance with the OAIC’s usual case management practices. The affidavit if relevant to the complaint, would be shared between the parties to the complaint, but would otherwise be held securely by the OAIC in accordance with the Archives Act 1983 (Cth) and the Privacy Act 1988 (Cth).

1. [29]
   Obviously, the Court would have significant confidence that the OAIC would take all available steps to safeguard the privacy of the information. The respondent to the complaint (CCC) with whom the material would have to be shared is the author of the original material and has his own professional responsibilities and ethical obligations to ensure that the information is treated securely. Thus, the disclosure of the material in this case carries with it little risk of misuse or that the material would be further distributed or that the privacy of AAA would be compromised.
2. [30]
   The final relevant consideration is whether the original report (that includes the personal disclosures of AAA) can be redacted to remove most of the personal information. A version has been provided in the affidavit of BBB filed on 14 September 2017. However, even the redacted version would still reveal the name of AAA and information about the matrimonial breakdown that she would find painful. Release of the redacted version, while preferable to preserve the confidences of AAA, may also give rise to a potential prejudice to CCC that the full report is not before the OAIC. A fair reading of the full report indicates that the great majority of the report is informed by the disclosures of AAA and not the communications made by BBB to CCC. It appears to me inevitable if the redacted version (as given to me) is only given then the full situation would not be before the OAIC.

CONCLUSION

1. [31]
   This is a very finely balanced application. To refuse leave would essentially stymie the right of BBB to use a lawful complaint mechanism to address his complaint that his confidential communications with a counsellor have been wrongly revealed. To grant leave means that AAA’s reasonable expectation to confidentiality in a domestic violence proceeding, where she has revealed the most intimate of details, will be violated. Having seen and heard her submissions in the application there is a real possibility that such a disclosure would cause her significant distress that could not be ameliorated by any order that I could make.
2. [32]
   I do not consider redaction of the report before release provides a viable solution: the redacted version does not provide the full picture of what CCC was reporting, the full sources of the information and his conclusions. Those matters might be highly significant to any complaint.
3. [33]
   Balancing all of the considerations I have referred to in this decision I have reached the view that the primary consideration in my decision must be those set out in s. 4(1) of the DV Act:

This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

1. [34]
   I consider that the protections offered by the DV Act would be significantly undermined if those making applications were to think that the highly personal information could be released for dissemination to others, even if there were legitimate purposes, for that release.
2. [35]
   Essentially this is a case where the interests of either AAA or BBB must prevail. I consider that upholding the objects of the DV Act the interests of AAA should prevail.
3. [36]
   Hence, I refuse authorisation for the applicant to publish to the OAIC Exhibit B of the affidavit of CCC filed on 1 April 2015.
4. [37]
   I will however authorise BBB to publish the following information to the OAIC:

1. a.That he (BBB) was a party to a domestic violence proceeding;
2. b.That he (BBB) and his then wife took part in marriage counselling;
3. c.That part of his (BBB) affidavit filed in the Cairns Registry 18 August 2017 from paragraph (16) through to (21) on the basis that the name of his former wife be referred to as AAA;
4. d.A copy of the CV of CCC being exhibit A of the affidavit of CCC filed on 1 April 2015;
5. e.The full name of CCC and that CCC was a witness in the proceeding; and
6. f.A copy of these reasons.

1. [38]
   I have reached the view that this information will sufficiently allow the consideration of BBB’s complaint without compromising the privacy of AAA and the objects of the DV Act.