NCAT Act 2013 Section 49, (1)
* What is it? * What are the implications? * Why is it part of the Act? * Are agencies using it?
"Section 49 of the NCAT Act gives the Tribunal a discretion to exclude the public from the hearing 'if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.'" Bettington v Commissioner of Police (2021) NSWCATAP 110, (32).
NCAT Deputy President Hennessy & SM Walker
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Interpreting the NCAT Act 2013 Section 49(1):
"In Statutory Interpretation in Australia, Pearce and Geddes (9th ed, 2019, LexisNexis Butterworths at 33) had regard to the following passage from the High Court’s decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; (Kiefel CJ, Nettle and Gordon JJ) at [14], as summarising the contemporary approach to statutory construction:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
Considerations of context and purpose include the consequences of adopting the ordinary or grammatical meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384; 153 ALR 490 at [78]:
The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." Bettington v Commissioner of Police (2021) NSWCATAP 110, (38).NCAT Deputy President Hennessy & SM Walker
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
Considerations of context and purpose include the consequences of adopting the ordinary or grammatical meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384; 153 ALR 490 at [78]:
The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." Bettington v Commissioner of Police (2021) NSWCATAP 110, (38).NCAT Deputy President Hennessy & SM Walker
The NCAT Act 2013 Section 49(1) may be the most ill-applied clause of the NCAT Act.
It says plainly and simply:
"A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise."
Taken at its most basic Statutory Interpretation, in particular the natural and ordinary meaning and construction of the Clause, this means that any Tribunal hearing allows members of the public to sit in the gallery and witness and listen to the hearing.
However, what the Tribunal has been doing for a VERY long time is use Section 49(1) to exclude one of the parties to the proceedings.
This in effect gives the party remaining full and unrestricted access to the Tribunal, without any obstruction or objection to any comment by the excluded party.
This does not exemplify any degree of procedural fairness, most particularly when the party being pushed outside is not legally represented and is not legally qualified.
This has complete procedural relevance and should ignite serious public concern, if not outrage, when the NCAT openly invites self-representation but opts to sit you outside the principal's office!
In the Freedom of Information arena, any person can request access to NSW government information under the GIPA Act 2009.
It is reasonable to expect that some of the requested documents might encompass legal documents or personal information, or perhaps health records.
These are not documents that should be discussed in an open hearing before a public and reporting gallery.
As such, it is also reasonable to expect that the public gallery should be vacated to facilitate the necessary discussions between the parties and the Tribunal, in order for the Tribunal to determine whether or not it will direct that such documents be released.
There can be no doubt a conversation with the Tribunal about so-called confidential documents CAN be had with both parties present. Tribunal members and legal representatives are well-equipped to use the proper language facilitating the discussion whilst ensuring confidentiality at first phase.
Invoking Clause 49(1) in the midst of proceedings, without affording a party to those proceedings the opportunity to rightfully object and make submissions, has serious implications for that excluded party, as it is generally directed towards members of the public including an unrepresented and / or unqualified person.
It is a clause that is abused and misused equally by solicitors, including the NSW Crown Solicitor, and by the NCAT.
To date it has been founded on a game of bluff, where naive Applicants are ushered out of Tribunal Hearings believing the NCAT knows best and legal representatives are 'doing the right thing.'
An Order under Section 49(1) must be sought through Application to the NCAT.
However, there are numerous accounts of Agency legal representatives simply requesting this Order verbally during a Hearing and the Tribunal promptly granting it, seeing the other party swiftly removed.
An example of this kind of abuse of the legislation and absence of procedural fairness was when, in March 2017, the Port Stephens Council in-house solicitor Lisa Marshall sought and secured an Order under the NCAT Act 2013 Section 49(1) to effectivelly ensure both she and Council's Governance Manager Tony Wickham maintained the full and unobstructed attention of a Tribunal Senior Member, successfully impressing upon that member that a serious risk of harm existed should requested information be released to a member of the public. Further compounding this unacceptable situation, if that were remotely possible, the Tribunal Member allowed the Respondent to make a secondary confidential Statement, and invited the Applicant's summonsed witness into the confidential session with Council, then also denied due cross-examination of both Tony Wickham and the applicant's summonsed witness once returned to open session of the hearing.
So:
* The Applicant was ejected from the proceedings
* The Applicant was not afforded due process to make submissions about being ejected from the proceedings
* The Respondent was allowed to make a secondary confidential written statement
* The Applicant's summonsed witness was invited into the confidential part of the hearing
* The Applicant was prevented from cross-examining his summonsed witness
* The Applicant was prevented from cross-examing the Respondent
The Tribunal Member did not invite any submissions to the opposing party to the proceedings. The Tribunal Member did not question the opposing party about the claimed risk of harm. The Tribunal Member actually prevented cross-examination of Tony Wickham about the claim. This was all based on the confidential discussions that excluded the Applicant.
What has transpired since March 2017 is the revelation that the claims of a serious risk of harm, claims which secured the confidential session under Section 49(1), were completely fabricated by Port Stephens Council, based on an unlawful agreement between Tony Wickham and a member of the public, and that no actual claim of a risk of harm was or has ever been made against the targeted victim. Council documents released through the GIPA Act 2009 record Tony Wickham personnaly suggesting the use of the risk-of-harm clause.
Reading the case law at McEwan v Port Stephens Council (2017) NSWCATAD 269, which makes reference to "molestation of a person" and the "Crimes, Domestic and Personal Violence Act 2007", it is understandable why Council's Tony Wickham later gave a public presentation of the achievements, inclusive of the false claims of a serious risk of harm.
SUCH IS THE DANGER OF THE NCAT ACT 2013 SECTION 49(1)!
(It would take some four years for the Applicant Mr McEwan to finally clear his name when the Tribunal determined in McEwan v Port Stephens Council (2021) NSWCATAD 110, (160): "There is not a scintilla of evidence that the "safety or well-being" of any person would or might be affected or impacted if the applicant accessed the disputed information presently redacted in the documents released to him".
There can be no disputing this documented type of conduct by senior Agency personnel, and a very experienced and resource-flushed NSW government agency, was deliberately orchestrated to take advantage of the Applicant at that time, who was unrepresented and unqualified.
There are many other instances and examples of saboteur-like behaviour by NSW legal representatives and NSW government agencies, including the CSO, who work to manipulate the legislation, shutting out parties to proceedings unnecessarily and unethically if not unlawfully.
The abuse of the NCAT Act 2013 Section 49(1) permeates right through the NCAT, not contained just within the Freedom of Information arena, but through the State's Guardianship "enterprise" on a scale that is incomprehensible. The NSW Trustee and Guardian, TAG, uses this section of the legislation to privately petition the NCAT, locking out the public and concerned family members of TAG clients, preventing the full and proper scrutiny of TAG records and valid release of government information.
Of course, the NSW Police Service is renowned for tapping into the NCAT Act 2013 Section 49(1) at every opportunity, where a party to proceedings is denied access to their own records and information!
Such cases recording the ill-applied invoking of this Clause will be published and referred to in due course.
This Site has highlighted the Agency Port Stephens Council as an example of falsifying evidence and securing exclusive access to the Tribunal under Section 49(1) Orders as a result, causing insurmountable damage to innocent members of the public.
It is disgraceful the NCAT makes it so easy for agencies to hide in the shadows, make untested claims, denying procedural fairness to the public, and preventing the accurate reporting of caselaw.
The NCAT Act 2013 Section 49(1) is indisputably a clause to be raised as a question of law in the NSW Supreme Court.
To do so requires the approval of the President of the NCAT.
The Administrator of this Site Telina Webb urges the public to push back against this clause, standing firm against it and demanding it is brought before the NSW Supreme Court, because it is destined to continue to harm the public which makes it an issue of public interest and importance.
The public has the right to expect more from NSW government agencies, the NCAT, and from the whole NSW Justice System.