Barnett v State of Queensland (Queensland Health)
[2022] QIRC 424
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- Unreported Judgment
- Barnett v State of Queensland (Queensland Health)[2022] QIRC 424
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Barnett v State of Queensland (Queensland Health)[2022] QIRC 424
Barnett v State of Queensland (Queensland Health)[2022] QIRC 424
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Barnett v State of Queensland (Queensland Health) [2022] QIRC 424 |
PARTIES: | Barnett, Nina (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2021/441 |
PROCEEDING: | Application in existing proceeding |
DELIVERED ON: | 3 November 2022 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | The application is dismissed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – application in existing proceedings for suppression order – where appellant seeks de-identification of personal information – where respondent has no material interest in the outcome – application for suppression order not granted EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – principle of open justice – consideration of circumstances where the Commission may exercise discretion to suppress name of a party or evidence |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 451 and 580 Industrial Relations (Tribunals) Rules 2011 (Qld), r 97 Public Interest Disclosure Act 2010 (Qld), s 65 Public Service Act 2008 (Qld), s 194 |
CASES: | AB v State of Queensland (Department of Youth Justice) [2021] QIRC 133 Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 R v O'Dempsey (No 3) [2017] QSC 338 Schiffer v State of Queensland (Queensland Health) [2021] QIRC 286 |
Reasons for Decision
Introduction
- [1]On 24 December 2021, a public service appeal was filed by Ms Nina Barnett ('the Appellant') pursuant to s 194 of the Public Service Act 2008 (Qld) against a disciplinary finding made by the State of Queensland (Queensland Health) ('the Respondent') following a show cause process in her employment ('the appeal').
- [2]On 28 March 2022, the Appellant filed an application in existing proceedings, seeking that the Appellant's name and any identifying information in the decision of the appeal be suppressed and de-identified from publication.
- [3]The basis upon which the Appellant files this application is outlined in the following terms:
I am making application to have my name suppressed and be de-identified as part of my appeal - matter number PSA/2021/441.
I request any reference to my name be listed as "ABC".
That any publication of the decision does not contain my name or any identifying information.
I make this request to protect my reputation and professional career.
Legal framework
- [4]The Appellant bears the onus of demonstrating circumstances exists which would justify the making of the suppression order.
- [5]Section 451 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides for general powers of the Queensland Industrial Relations Commission ('the Commission'), including the following:
451 General powers
- (1)The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
- (2)Without limiting subsection (1), the commission in proceedings may—
…
- (c)make an order it considers appropriate.
- [6]Section 580(5) of the IR Act provides that the Commission may direct the following:
- (5)The court, commission or registrar may direct—
- (a)a report, or part of a report, of proceedings in an industrial cause not be published; or
- (b)evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.
- [7]Section 580(6) of the IR Act provides that the Commission may make such a direction absolutely or on conditions.
- [8]Section 580(7) of the IR Act provides that the direction may be given if the Commission considers the following:
- (a)disclosure of the matter would not be in the public interest; or
- (b)persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.
- [9]Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules') provides the Commission with a power to de-identify judgments and redact information for judgments if there is good reason to do so:
97 Publishing decisions etc.
- (1)The registrar may publish on the QIRC website –
- (a)a decision of the court, commission, or registrar; and
- (b)the notice of the making or the amended of a bargaining instrument
- (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)The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –
- (a)withhold publication of a document; or
- (b)modify a document, before publication, in a way that does not affect the essence of the document.
- [10]Vice-President O'Connor considered an application for workers to be de-identified in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[1] and held:
[40] The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'. This is a central feature of the administration of justice under the common law.
[41] The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in 'open court'; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
[42] However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.
[43] The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power…
[44] It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
- [11]The Queensland Court of Appeal in J v L & A Services Pty Ltd (No 2)[2] outlined principles governing the exercise of discretion to issue suppression orders which are as follows:
- 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.
- 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…
- 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.
- No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
- Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
- (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…
- (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.
- (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.
- ... 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…
Submissions of the parties
- [12]The Appellant submits that she has had an extensive career working for the Queensland Government and that information that is published and searchable regarding the appeal could adversely affect the Appellant's reputation and future career.
- [13]The Appellant highlights that she has maintained confidentiality of her matters throughout the process and questions whether the Respondent has effectively maintained confidentiality based on the Respondent's conduct to date.
- [14]The Appellant notes that an email was sent to all Queensland public servants on behalf of the Queensland Premier regarding obligations in reporting and managing public interest disclosures. The Appellant submits that media and other services will be doing searches on matters around corrupt conduct in the public service. The Appellant submits that her matter is about corrupt conduct, disclosures, and management by the Respondent.
- [15]The Appellant further submits that there is a distinct lack of clarity on how the Respondent is managing the Appellant's public interest disclosures.
- [16]The Respondent, at the outset, submits that it has no material interest in the outcome of the Appellant's application for suppression. The Respondent outlines several applicable legal principles to assist the Commission in the exercise of its discretion. In particular, the Respondent outlines the decisions of AB v State of Queensland (Department of Youth Justice)[3] and Schiffer v State of Queensland (Queensland Health)[4] with respect to risk to reputation and future career prospects.
- [17]With respect to the Appellant's submissions regarding her public interest disclosures, the Respondent submits, to the extent the Appellant's submissions suggest that her identity should be suppressed because she has made a public interest disclosure in relation to separate matters, s 65(3)(c) of the Public Interest Disclosure Act 2010 (Qld) specifically contemplates this occurrence and provides for an exception to confidentiality for proceedings in a court or tribunal.
Consideration
- [18]The Appellant submits that the application is sought to protect her reputation and professional standing as the information in the appeal could adversely affect her reputation and future career if it is published and searchable.
- [19]The Appellant contends that issues surrounding corrupt conduct are topical at the moment and media and other services are likely to conduct searches on these matters in the public service.
- [20]The matters raised by the Appellant do not fall within the category of exceptions to the principles of open justice as outlined in J v L & A Services Pty Ltd (No 2). It is accepted that a litigant's involvement in proceedings before any court or tribunal has the potential to result in public interest or media attention. This outcome is not, of itself, a basis upon which to depart from the principles of open justice.
- [21]Further, the matters relied upon by the Appellant are similar to those considered in J v L & A Services Pty Ltd (No 2) as the type of information that should not be withheld from the public. The grounds upon which an application of this kind may be successful include where the information goes beyond withholding information from the public to save a party from the loss of privacy, embarrassment, distress, financial harm or other 'collateral damage'. In this matter, the Appellant's reasons for seeking this application do not go beyond this category and are firmly within the grounds of privacy, embarrassment, distress and potential 'collateral damage' to the Appellant's reputation and career.
- [22]It is not unusual for parties in proceedings of this type to indicate a preference to have the details of any contentious workplace issues, including names of those involved, remain confidential. However, in most circumstances, this preference alone is not consistent with the primacy of open justice and the requirement that proceedings are on the public record to inform both the parties to the proceedings and the public at large. To justify withholding information from the public, information of specific harm, in the nature of that outlined in J v L & A Services Pty Ltd (No 2) must be evident. That information is not present in this matter.
- [23]The principle of open justice is not something to be dismissed lightly. As held in R v O'Dempsey (No 3):[5]
The principle of open justice is one of the most fundamental aspects of the justice system in Australia. Exceptions to the principle are few and are strictly defined.
Our judicial system is based on the notion that proceedings are conducted in open court. Justice must not just be done; it must be seen to be done.
- [24]The Appellant made the following submission regarding her public interest disclosure ('PID') status:
Finally, given my PID status and issues discussed at hearing on 29 March 2022 it appears that my PID status and the required protections and my disclosures may be in dispute with the health service. There is a distinct lack of clarity on how the Health Service is managing my disclosures.
- [25]The relevance of matters involving the Appellant's PID is unclear, however I note the operation of s 65(3)(c) of the Public Interest Disclosure Act 2010 (Qld) providing an exception to confidentiality for proceedings in a court or tribunal.
- [26]It should be noted that a decision not to grant a suppression order is not intended to burden any party, rather, it is made to adhere to the principles of open justice which are in keeping with the public interest.
Conclusion
- [27]For the foregoing reasons, I do not consider it appropriate to de-identify the name of the Appellant in the appeal pursuant to r 97 of the Rules, or to issue orders suppressing details of the appeal pursuant to s 580 of the IR Act.
Order
- [28]I make the following order:
The application is dismissed.