Mizner v State of Queensland[2023] QCAT 78

REASONS FOR DECISION

1. [1]
   The Applicant’s substantive proceedings are currently listed for hearing by the Tribunal over four days next month. He now applies for orders under s 90(2) of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) that the hearing be a closed hearing and for orders under s 66(1) of the QCAT Act prohibiting the publication of the contents of any document, thing or information filed in or produced to the Tribunal, any evidence given before the Tribunal and any order made or reasons given by the Tribunal.
2. [2]
   The Respondents oppose such orders being made.

Some Brief Background

3. [3]
   The substantive proceedings involve the Applicant’s discrimination complaint brought under the Anti-Discrimination Act 1991 (“the ADA”) and a “piggy-backed” human rights complaint under the Human Rights Act 2019 (“the HRA”). He asserts that the Respondents have discriminated against him on the grounds of impairment by their treatment of him as a prisoner in custody in a Queensland correctional facility. 
4. [4]
   The Applicant is serving a very long sentence for sexual offences and asserts that he has multiple disabilities which mean he cannot tolerate shared cell accommodation in prison. He is in protection and, due particularly to the overcrowding in the prison in which he is incarcerated, the Respondents seek to be able to have him share a cell if need be.
5. [5]
   The Applicant’s criminal proceedings and these proceedings have previously been the subject of media coverage. They have also been the subject of public discussions on various social media platforms. He has had violent comments directed at him online.
6. [6]
   This application relies principally on an asserted need to close the Court at the hearing and to prohibit publication of any details of the hearing so as to protect the safety of the Applicant and his witnesses and to avoid the risk of physical or mental harm to them.

The Tribunal’s Power to do that

7. [7]
   Section 90 of the QCAT Act provides:

90 PUBLIC HEARING

1. (1)
   Unless an enabling Act that is an Act provides otherwise, a hearing of a proceeding must be held in public.

2. (2)
   However, the tribunal may direct a hearing or a part of a hearing be held in private if the tribunal considers it is necessary—

3. (3)
   The tribunal may make directions about the persons who may attend a hearing or a part of a hearing to be held in private.

3. (4)
   The tribunal may make a direction under this section on the application of a party to the proceeding or on its own initiative.

8. [8]
   Section 66 of the QCAT Act provides:

66 NON-PUBLICATION ORDERS

1. (1)
   The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—

1. (2)
   The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—

2. (2)
   The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.

1. (4)
   The tribunal’s power to act under subsection (1) is exercisable only by—

9. [9]
   Section 48 of the HRA provides that to the extent possible that is consistent with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. This applies to ss 66 and 90 of the QCAT Act.
10. [10]
    The following human rights are potentially relevant to this application: the right to recognition and equality before the law;^[1] the right to protection from torture and cruel, inhuman or degrading treatment;^[2] the right to privacy;^[3] the right to humane treatment when deprived of liberty;^[4] and the right to a fair hearing.^[5]

Open Justice

11. [11]
    Section 31(1) of the HRA provides that a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial tribunal after a fair and public hearing but that, pursuant to sub section (2) to  a tribunal may exclude members of media organisations other persons or the general public from all or part of a hearing in the public interest or the interests of justice.
12. [12]
    Section 25(a) of the HRA includes the right not to have a person’s privacy unlawfully or arbitrarily interfered with and s 25(b) provides that a person has the right not to have their reputation unlawfully attacked. The concept of arbitrariness has been held to require consideration of the proportionality of the interference.^[6] In PJB v Melbourne Health,^[7] Bell J held that the right not to have your privacy ‘arbitrarily’ interfered with extended to:

interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.^[8]

13. [13]
    It is uncontroversial that the applicant has a right not to have his privacy unlawfully or arbitrarily interfered with. The issue arises as to how ss 66 and 90 of the QCAT Act should be construed in light of ss 25 and 31(2) of the HRA. We must construe ss 66 and 90 against the background of human rights to the extent possible in a manner compatible with those rights, here, in particular with ss 25 and 31(2) of the HRA.
14. [14]
    Sub-section (1) of s 90 is a statutory acknowledgment of the principle of open justice, one of the ‘bedrock’ principles of our legal system. Spigelman CJ (as his Honour then was) addressed the Australian Legal Convention in Canberra in 1999 and said:-

The principle of open justice, in its various manifestations, is the basic mechanism of ensuring judicial accountability. The cumulative effect of the requirements to sit in open court, to publish reasons, to accord procedural fairness, to avoid perceived bias and to ensure the fairness of a trial, is the way the judiciary is held accountable to the public.

15. [15]
    Kirby P (as his Honour then was) said in Cachia v Isaacs & Ors:^[9]

The right of access to the courts is a fundamental human right in a society such as ours. It is recognised in Article 14.1 of the International Covenant on Civil and Political Rights, which Australia has ratified. Relevantly, that article provides:- “14.1 All persons shall be equal before the courts and tribunals. In the determination of... his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law...” [Emphasis added]

16. [16]
    As can be seen from those statements of principle, respect for and maintenance of the principle of open justice is as much about protecting the rights of the individuals who choose to use the Courts and Tribunals of this country as it is about ensuring the integrity and accountability of the Judges and Tribunal Members who populate them. Simply put, the principle of open justice is not to be lightly departed from even when Parliament has authorised discretionary departure by legislative provision.
17. [17]
    The Queensland Parliament has, by enacting s 90 of the QCAT Act in its current form, acknowledged that the principle of open justice applies to proceedings in this Tribunal, but also conferred a discretion upon it to determine to close its proceedings and hear them “in camera” if it considers doing so is necessary to achieve any of the purposes that are identified in sub-section 90(2). It is trite to observe that the exercise of the discretion thereby conferred involves a delicate balancing exercise.
18. [18]
    The power in s 66 to prohibit the publication of documents, evidence or information that may enable a person who has appeared before the Tribunal to be identified is not to be exercised lightly, and the party seeking the non-publication must satisfy the Tribunal the order is ‘necessary’ for one of the reasons set out in s 66(2).^[10]

Determining this Application

19. [19]
    In this balancing exercise, the Tribunal must be persuaded that closing the courtroom is “necessary” to achieve one or more of the statutorily identified purposes. In this matter, the Applicant is not claiming that all the identified purposes are relevant, but rather just a few. In fact, his application, in our judgment, realistically and ultimately points to only one of the identified purposes being potentially engaged.  Though, for the Applicant, some submissions have been made that closing the proceedings would avoid offending public decency or morality, we have little difficulty in rejecting those before turning to consider the principal submission, namely, that closing the Court and prohibiting publication of details of the proceedings is necessary to avoid endangering the physical or mental health or safety of a person.
20. [20]
    In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim,^[11] the New South Wales Court of Criminal Appeal considered the meaning of the word “necessary” where, as here, it is used in a statute as the connection between a proposed order and an identified purpose. Their Honours said that its meaning depends on the context in which it is used and that considering identified purposes such as ‘avoidance” will “involve matters of degree”. Explaining that, their Honours said that the proposed order may diminish the risk of that which is to be avoided or may obviate the risk entirely. Their Honours said “[a]ll of these variables may affect what is considered necessary in particular circumstances.”
21. [21]
    For the Applicant, it is submitted that further media coverage of this matter, one likely consequence of conducting the hearing in open court, puts him and one of his proposed witnesses at risk of being assaulted whilst they continue to serve their sentences in prison and that the presence of such risk must take its toll on their mental well-being as well.
22. [22]
    Though the disdain with which some sexual offenders are viewed by sections of the community and, no doubt, the narrower community of prison inmates, is reasonably well known, thus explaining the need to keep certain prisoners, such as the Applicant, in separate “protective” custody, we do not consider that we can simply take judicial notice that there remains such an appreciable risk to the safety of the Applicant when he is housed in protective custody and has another nine-ten years of his custodial sentence to complete to be satisfied that closing the proceedings is necessary to avoid endangering his health or safety or that of his proposed witness. We simply do not consider we can determine that there is such a level of risk posed by conducting the proceedings, as usual, in open court that makes it necessary to take the exceptional step of closing the court and prohibiting publication of all detail to avoid it. 
23. [23]
    If the Applicant is concerned about some risk to his health and safety, he has not been too timid to assert his rights and to make his substantive application to this Tribunal in the first instance, knowing that the general statutory position is that the proceedings will be heard in open court and that he would be required to persuade the Tribunal of necessity, if it was to be otherwise. This is something he is only attempting to do now very close to the allocated hearing dates. In our judgment, there ought to be no unnecessary encouragement of individuals to litigate where they might not otherwise by too readily shielding them from public opprobrium they may perceive will potentially attend the chosen pursuit of their asserted rights in an open forum.
24. [24]
    We are not satisfied it is necessary to close the court and prohibit publication of details of the matter to avoid endangering the health and safety of the Applicant or his proposed witness. Further, we do not consider that the Applicant’s or his proposed witness’ right to privacy will be unlawfully or arbitrarily interfered with if those orders are not made.
25. [25]
    For the Applicant, it was also submitted that closure and non-publication is necessary to avoid endangering the health and safety of the victims of the offending for which he is incarcerated and the members of their families. We do not accept this. Though there is some evidence adduced of some dissatisfaction on the part of a family member of a victim, expressed when they learned of these proceedings by the Applicant, that does not support a finding that their health and safety will be so endangered by open proceedings that closure and non-publication is necessary.

The Applicant’s Alternative Submission

26. [26]
    Ultimately, for the Applicant, it was submitted that if this Tribunal is not persuaded to order a closed hearing and/or non-publication in the terms sought, that consideration at least be given to the making of a non-publication order in relation to his proposed witness.
27. [27]
    The Applicant relied upon an affidavit of his solicitor in support of this application. The solicitor deposed to having met with the Applicant’s fellow prisoner who the Applicant proposes to call to give evidence in support of his claim. She deposed to certain matters of relevance that he had told her. Most significantly, for this application, that proposed witness told the solicitor that he was willing to provide his evidence only on condition that his identity as a witness in this proceeding is suppressed. The reason he gave for this was his fear of retribution at the hands of other prisoners.
28. [28]
    Without having to determine whether that fear is reasonably or legitimately held by this proposed witness, for the purposes of this application, it is accepted that he will not give evidence in these proceedings unless his identity is supressed. Section 66(2)(e) of the QCAT Act identifies one of the purposes for making a non-publication order as one of it being “in the interests of justice”. We are satisfied that it is in the interests of justice for the Applicant to be able to adduce evidence from a witness that he and his legal representatives consider will assist his case. If supressing the publication of the identity of the witness is necessary to facilitate that, we consider that a proper use of the power given to the Tribunal. We are satisfied that it is necessary in the interests of justice.
29. [29]
    We would order as follows:

    1. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009, the publication of any information arising in the course of these proceedings before the Tribunal that may enable the Applicant’s witness who is also a prisoner to be identified other than to the parties to the proceeding, their legal representatives or experts, is prohibited.
    2. The Application is otherwise dismissed.