BR v State of Queensland[2022] QIRC 146

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Introduction

1. [1]
   On 18 March 2022, the Appellant filed an application seeking that his identifying information be suppressed from publication by the Queensland Industrial Relations Commission in relation to an appeal brought pursuant to s 194(1)(bb) of the Public Service Act 2008 (Qld).

2. [2]
   The Appellant relies on the following grounds in support of his application, as set out in the schedule attached to his application:

1. At the heart of this public appeal application before this commission are charges which fall under the meaning of prescribed sexual offences (Section 3 Criminal Law (Sexual Offences) Act 1978 (Qld)).

2. Should the Appellant be named, it could be reasonably asserted that his name and details may become public knowledge in connection with the criminal proceedings, in conflict with the Parliaments intention under the Criminal Law (Sexual Offences) Act 1978 (Qld).

3. Given the nature of the alleged criminal acts, if the Appellant’s details were disclosed in these proceedings, it would have an irreparable negative impact on himself and his family.

4. As the Appellant has not been committed for trial or sentenced and intends on defending any proceedings brought by the Public Prosecution, it would be against public interest to allow publication of his details in this matter.

3. [3]
   The Appellant bears the onus of demonstrating circumstances exists which would justify the making of the proposed suppression order.

Relevant legislation and authorities

4. [4]
   Section 451 of the Industrial Relations Act 2016 (Qld) ('the IR Act') bestows general powers on the commission, and relevantly provides:

451. General powers

1. (1)
   The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
2. (2)
   Without limiting subsection (1), the commission in proceedings may—

…

3. (c)
   make an order it considers appropriate.

5. [5]
   Section 580 of the IR Act is set out in the following relevant terms:

580  Confidential material tendered in evidence

…

3. (5)
   The court, commission or registrar may direct—

1. (a)
   a report, or part of a report, of proceedings in an industrial cause not be published; or
2. (b)
   evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.

…

3. (7)
   The direction may be given if the court, commission or registrar considers —

1. (a)
   disclosure of the matter would not be in the public interest; or
2. (b)
   persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.

6. [6]
   Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides the commission with a power to de-identify judgements and redact information for judgements if there is good reason to do so. Rule 97 relevantly provides as follows:

97  Publishing decisions etc.

1. (1)
   The registrar may publish on the QIRC website –

1. (a)
   a decision of the court, commission, or registrar; and
2. (b)
   the notice of the making or the amended of a bargaining instrument

2. (2)
   The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website.

Note -

For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act.

3. (3)
   The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –

1. (a)
   withhold publication of a document; or
2. (b)
   modify a document, before publication, in a way that does not affect the essence of the document.

7. [7]
   Section 3 of the Criminal Law (Sexual Offences) Act 1978 (Qld) ('CLSO Act') contains definitions and relevantly provides the following:

prescribed sexual offence means any of the following offences—

1. (a)
   rape;
2. (b)
   attempt to commit rape;
3. (c)
   assault with intent to commit rape;
4. (d)
   an offence defined in the Criminal Code, section 352.

8. [8]
   Section 10 of the CLSO Act provides as follows:

10.  When other publication of a complainant's or defendant's identity is prohibited

1. (1)
   A person who, by a statement or representation made or published otherwise than in a report concerning an examination of witnesses or a trial, reveals the name, address, school or place of employment, or any other particular that is likely to lead to the identification, of—

1. (a)
   a complainant, at any time; or
2. (b)
   a defendant charged with a prescribed sexual offence to which the statement or representation relates, before the defendant is committed for trial or sentence upon that charge;

commits an offence except where the statement or representation is made or published for an authorised purpose referred to in section 11.

9. [9]
   The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2),^[1] established six principles governing the exercise of discretion to issue suppression orders which are as follows:

1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.

2. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…

3. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.

4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.

5. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:

1. (a)
   Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…

2. (b)
   A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.

3. (c)
   An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.

6. ... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…

Consideration

10. [10]
    At the outset, I note that the Department does not oppose the application for suppression orders sought by the Appellant.

11. [11]
    The Appellant has been charged with seven indictable offences, five of which are counts of sexual assault on various dates. The five counts of sexual assault are prescribed sexual offences within the meaning of s 3 of the CLSO Act. The fact that the Appellant has been charged with these offences are relevant to my consideration of the public service appeal.

12. [12]
    It appears from the material that the Appellant's criminal matter is at a relevantly preliminary stage and there is no indication as to when it might be resolved.

13. [13]
    It follows, that there has been no determination as to the Appellant's culpability with respect to the criminal offences.

14. [14]
    The orders sought by the Appellant include that any publication by the Queensland Industrial Relations Commission of the Appellant's identifying information be suppressed.

15. [15]
    I consider that it is appropriate to issue an order suppressing the Appellant's identifying information on the basis that:

1. (a)
   the Appellant has been charged with a prescribed sexual offence and such an order is necessary to give effect to s 10 of the CLSO Act; and

2. (b)
   given the criminal matter is yet to be heard, I consider it in the interests of justice for such an order to be made.

16. [16]
    The orders sought by the Appellant are that his identifying information be suppressed. In the circumstances of this matter, I consider such information to not only include the Appellant's name and the position he holds, but also the name of the Department and team within which the Appellant is employed.

Order

17. [17]
    Accordingly, I make the following orders:

1. I prohibit the publication of the identity of the Appellant.

2. I direct that only reasons for decision and orders excluding the Appellant's name, job position title, and the name of the Department and team within which the Appellant is employed be released by the Queensland Industrial Relations Commission.