Introduction

The decision in Australian Broadcasting Corporation v Public Trustee [2022] WASC 85 concerned an application by the ABC under cl 12(8)(d) of sch 1 of the Guardianship and Administration Act 1990 (WA) (the Act) for a direction permitting it to publish reports about guardianship proceedings which identified the parties involved.

The facts concerned an application brought by one of AC's children resulting in orders appointing the daughter as AC's guardian and the Public Trustee as administrator of AC's financial affairs. AC died 15 months later.

The ABC sought to include AC's case in a Four Corners report on the Public Trustee system and public guardian nationally. The children of AC consented to being identified.

The key issue was the construction of cl 12(8)(d) and whether the court had a general discretion or whether exceptional circumstances had to be shown.

Facts

The facts are set out at [6]-[12].

In summary, the ABC was investigating the Public Trustee and public guardian systems nationally and sought to include AC's case as one of four case studies in a Four Corners report ([6]-[9]).

Orders were made in June 2015 appointing AC's daughter as guardian and the Public Trustee as administrator.

AC died 15 months later in September 2016 ([10]). AC's children consented to the application and being identified ([11]-[12]).

Law

The general position under the Act is confidentiality of proceedings, evidenced by ss 112-113 and sch 1 ([15]-[16]). The exceptions are set out in sch 1 cl 12(8), including cl 12(8)(d) which permits publication pursuant to a direction of the Tribunal or court ([16]).

The requirement for confidentiality is consistent with the protection afforded to vulnerable members of the community ([26]). However, statutes affecting open justice should be construed to minimise intrusion on that principle where possible: Hogan v Hinch [2011] HCA 4 at [27] ([28]).

In construing cl 12(8)(d), the ordinary meaning of "notice" and "report" should be adopted in the absence of any contrary intention ([29]-[30]). The clause confers a general discretion on the court, subject only to limits implied from the Act's scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [15] ([33]).

Guidance can be obtained from Family Court decisions on the identically worded Family Law Act provision: AH v SS (2005) 194 FLR 111 at [10]-[11] ([31]-[32]). However, there are no express constraints on the discretion and the court should not impose any not implied from the Act's scope and purpose ([37]).

All logically relevant factors should be considered including privacy, freedom of communication and the represented person's position ([37]).

Analysis

French CJ's statement in Hogan v Hinch supports a broad construction of cl 12(8)(d) to minimise intrusion on open justice ([28]).

The ordinary meaning of "notice" and "report" encompasses the proposed Four Corners program ([29]-[30]).

The clause confers an unconstrained discretion subject only to limits implied from the Act's scope and purpose ([33]).

While guidance can be obtained from Family Court decisions ([31]-[32]), no constraints on the discretion should be imposed other than those implied from the Act ([37]).

Logically relevant factors include privacy, freedom of communication and the represented person's position ([37]).

Here, AC was deceased and the children consented ([39]).

There was public interest in the Public Trustee's operations and the Act's operation ([40]).

The rights of AC and others would not be unduly infringed by the direction. In all the circumstances, the discretion should be exercised to permit identification ([41]).