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Parliamentary Questions


Question Without Notice No. 754 asked in the Legislative Council on 7 August 2019 by Hon Michael Mischin

Parliament: 40 Session: 1

BENNETT BROOK DISABILITY JUSTICE CENTRE — SUPREME COURT INJUNCTION

754. Hon MICHAEL MISCHIN to the Minister for Disability Services:

I refer to the minister's answers to questions yesterday regarding the Bennett Brook Disability Justice Centre and the government's injunction restraining the publication of information concerning it.

(1) Can the minister identify the precise provisions of the Declared Places (Mentally Impaired Accused) Act 2015 that expressly prohibit the identification of a resident at the centre and which he claims ''obliged'' the chief executive officer of the Department of Communities to apply for an injunction?

(2) Apart from the injunction granted on 3 August, when was the other injunction to which he referred granted and by whom and what did it restrain?

(3) Will the minister now table the applications filed in the Supreme Court, any orders made by the Supreme Court and any evidence and submissions filed by the state to support these injunctions; and, if not, why not?

(4) Has the minister read order 4 of the orders made by His Honour Justice Tottle on 3 August 2019; and, if so, does he maintain his view that reporting of escapes, assaults and failures to comply with leave-of-absence conditions of residents is not gagged; and, if so, why?

Hon STEPHEN DAWSON replied:

I thank the honourable member for some notice of the question. This is a long question and it will be a long answer, but it is important that I put it on the record.

(1) It is section 59(1) of the Declared Places (Mentally Impaired Accused) Act 2015.

(2) On 27 May 2019, the Hon Justice Curthoys granted an injunction restraining Nine Network Australia Pty Ltd from publishing certain information. The orders made were: that the Nine Network be restrained from publishing the report relating to the resident until further order of this Court; that the Nine Network remove any publication referring to or depicting the resident from all of its online platforms; and that there be liberty to apply on 24 hours' notice.

On 23 July 2019, following an application by the Disability Services Commission to reduce the scope of the orders, Hon Justice Curthoys varied those orders —

1. The orders made by the Hon Justice Curthoys on 27 May 2019 are vacated.

2. The Defendant is restrained from publishing any material that identifies � (''the Resident'').

3. Any footage of the Resident is to be wholly pixelated, including the Resident's face and body.

4. The Defendant is restrained from publishing any information concerning any resident (as defined in section 3 of the Declared Places (Mentally Impaired Accused) Act 2015 (WA)) that:

(a) discloses events (or details thereof) or alleged conduct that occurred at a DSC Declared Place, or in connection with a resident's custody at a DSC Declared Place, including during leaves of absence; and

(b) which information has not been made public by:

(i) the First Plaintiff;

(ii) a Government Department or agency, or an authorised representative thereof;

(iii) a Minister, or an authorised representative thereof; or

(iv) any other body with legal authority to make the disclosure.

5. For the avoidance of doubt, subject to any written law or court order, order 4 does not restrain the Defendant from publishing information that has been made public in:

(a) Parliament; or

(b) a Court (other than a document already filed in this matter), Tribunal or Commission sitting in public.

6. For the purposes of order 4, a ''DSC Declared Place'' means a declared place (as defined in section 23 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA)) that is established by the First Plaintiff under the Disability Services Act 1993 (WA).

7. There be liberty to apply.

(3) I table the attached orders with appropriate redactions. The applications, evidence and submissions filed in the Supreme Court will not be tabled, as those documents reveal the information that the department is seeking and required to protect.

[See paper 2903.]

(4) Yes, I have read the orders as the members opposite have and, yes, I do maintain that view. I note that Channel Nine ran its story on this matter whilst constrained by substantially similar orders. I also note that the matter is being heard again on Friday and I trust that the Supreme Court will deal with the matter appropriately.