Sane v State of Queensland (Queensland Health)
[2023] QIRC 143
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- Unreported Judgment
- Sane v State of Queensland (Queensland Health)[2023] QIRC 143
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Sane v State of Queensland (Queensland Health)[2023] QIRC 143
Sane v State of Queensland (Queensland Health)[2023] QIRC 143
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Sane v State of Queensland (Queensland Health) [2023] QIRC 143 |
PARTIES: | Sane, Vrunda (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2021/191 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 26 May 2023 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
ORDER: | The application is dismissed. |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – application in existing proceedings for suppression order – where Appellant seeks de-identification of personal information or that a decision be removed from publication – where Respondent does not oppose the application – 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 remove a decision from publication or suppress the name of a party or evidence |
LEGISLATION: | Industrial Relations (Tribunals) Rules 2011 (Qld) r 97 Industrial Relations Act 2016 (Qld) ss 451, 580 |
CASES: | 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 Sane v State of Queensland (Queensland Health) [2021] QIRC 270 |
Reasons for Decision
Introduction
- [1]On 25 May 2021, Ms Vrunda Sane (the Appellant) filed an appeal against a promotion decision made by the State of Queensland (Queensland Health) (the Respondent). Ms Sane’s appeal was decided on 5 August 2021 and published on the Supreme Court Library website shortly thereafter.[1]
- [2]Ms Sane wrote to the Industrial Registry on 23 August 2022 requesting guidance about ‘removing’ this decision from the internet such that it would not be publicly available. The Industrial Registry responded to Ms Sane advising that if she sought an order to suppress the decision, she may file an application in existing proceedings. In its correspondence, the Industrial Registry told Ms Sane that ‘the Commission has no control over the Google search function/results.’
- [3]On 11 April 2023, the Appellant filed an application in existing proceedings. In section 4 of her application, Ms Sane says:
This request is to remove the result of my complaint (PSA/2021/191) from being freely available on the INTERNET. I understand that it will be stored in your internal records, which is completely understandable. However, I was not informed that they will be available on the Internet for any of the common public to access.
I work as a genetic counselor [sic] in public and private sector. I see multiple new patients every week.
If I google my name, this document is one of the first hits attached with my name. I do not want this private information RE: internal job promotion available so freely to the general public. Apart from me, this application mentions a number of my colleagues who also work as genetic counselors [sic] in the public as well as private sector. They probably were not aware that I had made this complaint and they may not wish this document to be available on the INTERNET so freely available for all of the patients.
I wish to change the privacy of this document.
Submissions of the parties
- [4]Submissions were not filed by either party. The Industrial Registry wrote to both parties to confirm whether they intended to file submissions.[2] The Respondent did not reply to this correspondence. Ms Sane responded advising that she does not have any further submissions to make and that she ‘[hopes] my request to make my appeal result private will be processed now’.
Legal framework
- [5]The onus of demonstrating that circumstances exist which justify a suppression order lies with the Appellant.
- [6]The general powers of the Queensland Industrial Relations Commission are outlined in s 451 of the Industrial Relations Act 2016 (Qld) (the IR Act). It states:
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.
- [7]Moreover, s 580(5) of the IR Act stipulates 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.
- [8]Section 580(6) of the IR Act says that the Commission may make such a direction absolutely or on conditions.
- [9]In accordance with Section 580(7) of the IR Act, 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.
- [10]Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules) provides the Commission with a power to de-identify decisions and redact information from decisions where 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.
- [11]In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('ARBTU v Aurizon'),[3] O'Connor VP considered an application for the names of individual workers to be de-identified. Vice President O'Connor 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'.[4] 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,[5] 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,[6] and decisions pronounced, in 'open court';[7] second, that evidence is communicated publicly to those present in the court;[8] 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.
- [12]Furthermore, the principles governing the exercise of discretion to issue suppression orders were outlined by the Queensland Court of Appeal in J v L & A Services Pty Ltd (No 2)[9] 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.[10] 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…
- [13]In deciding the Appellant's application, I must have regard to the principle of open justice. Justice Applegarth considered the principle of open justice in R v O'Dempsey (No 3) where his Honour said:[11]
[2] 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.[12]
[3] 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.[13]
Consideration
Rule 97
- [14]Rule 97(3)(b) provides that the court, Commission or registrar may modify a document, before publication,[14] in a way that does not affect the essence of the document.
- [15]Rule 97(3)(a) provides that the Commission may withhold publication of a document.
- [16]Contrary to Ms Sane’s contention in her application that she was not informed that the decision would be ‘available on the Internet for any of the common public to access’, I am satisfied that in the initial contact from the Industrial Registry following the filing of Ms Sane’s appeal notice on 25 May 2021, the parties were informed that ‘in accordance with recent legislative amendments (as at September 2020), decisions issued in Public Service Appeals are, in most instances, published.’[15]
- [17]Similarly, when the decision was released to the parties, it was accompanied by an email from the Industrial Registry which advised ‘Please note, the decision is a released copy only and may be amended prior to publishing on the Supreme Court Library website’.
- [18]From time to time, parties make an application in existing proceedings to have their names removed from a decision. There are also occasions where the Commission may act on its own initiative to issue a decision employing a pseudonym or using initials rather the name of a party to a matter.
- [19]It seems to me that rule 97(3)(b) does not authorise me to remove a document once publication has occurred, redact Ms Sane’s name and re-publish it. The time for Ms Sane to request suppression of her name was prior to the publication of the decision.
- [20]Rule 97(3)(a) has no application here as the decision was published many months ago. It is too late for me to ‘withhold publication’. The time for Ms Sane to request that publication be withheld was prior to the publication of the decision.
- [21]For that reason, I decline to remove the decision from publication or remove Ms Sane’s name from the decision under rule 97.
Section 580 of the IR Act
- [22]Other recent decisions of the Commission regarding applications for suppression of names or other identifying information have considered s 580 of the IR Act (set out above at paragraphs [7]-[9]). Section 580 refers to confidential material tendered in evidence.
- [23]Ms Sane’s application for suppression of her name post-publication of the decision or removal of the decision from publication is not made on the basis of confidential evidence presented in her appeal submissions. I therefore find that s 580 has no application and I decline to suppress Ms Sane’s name or remove the document from publication under this provision.
Section 451 of the IR Act
- [24]There may be an argument that I am able to make an order under the general powers provided for in s 451 that the decision be removed from the Supreme Court Library website or removed and re-published with the suppression of Ms Sane’s name (and those of her colleagues). I consider that the starting point in making a suppression order is that considered by O'Connor VP in ARBTU v Aurizon:
[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.
- [25]In that same decision, O'Connor VP states that the rules to which the open justice principle gives rise are not absolute, and that while the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions. His Honour points to the power rule 97 gives the Commission to de-identify judgements if there is a good reason to do so.
- [26]As I have determined above, I do not think that rule 97 is of assistance in this matter. If I am to suppress Ms Sane’s name, I would be doing so under the general powers of the Commission. In deciding to make such an order, I would consider the arguments put forward by Ms Sane and consider whether they fall within the category of exceptions to the principles of open justice as outlined in J v L & A Services Pty Ltd (No 2).
Ms Sane’s privacy concerns
- [27]Ms Sane did not make any submissions. In her application, Ms Sane says that she does not want the decision to be publicly available online for privacy reasons. Ms Sane explains that she is a genetic counsellor and she does not want her patients to be able to read the decision by searching her name using the Google search engine. Further, Ms Sane notes that her colleagues may have been unaware that she filed a public service appeal in 2021 and those colleagues may not want the decision to be available online either.
- [28]The Queensland Court of Appeal specifically addressed matters of this nature in J v L & A Services Pty Ltd (No 2):
…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…
- [29]I would characterise Ms Sane’s privacy concerns as being a request to suppress her name or remove the decision from publication merely to save her from ‘loss of privacy, embarrassment… or other "collateral disadvantage"’.
- [30]As discussed above at [15]-[16], Ms Sane was put on notice that the decision would be published on the Supreme Court Library website when she filed her appeal and when the decision was released to the parties. The Registry has since advised Ms Sane that the Commission has no control over Google search results.
- [31]Ultimately, Ms Sane has not demonstrated that her circumstances are such that I should depart from the well-established principles set out in J v L & A Services Pty Ltd (No 2).
Conclusion
- [32]For the reasons given above, I do not find that rule 97 or section 580 of the IR Act are enlivened by Ms Sane’s application for suppression of her name from the decision released on 5 August 2021 or for the decision to be removed from publication.
- [33]Further, even if there was an argument that I grant the application under the general powers of the Commission afforded by s 451, I would decline to do so on the basis that, for the reasons given above, Ms Sane has not demonstrated exceptional circumstances such that the well-established principles of open justice should be dismissed and that her name should be suppressed from the published decision or the decision removed from publication.
Order
- [34]I make the following order:
The application is dismissed.
Footnotes
[1] Sane v State of Queensland (Queensland Health) [2021] QIRC 270.
[2] Emails from the Industrial Registry to the parties dated 3 May 2023 and 15 May 2023.
[3] [2021] QIRC 263 ('ARBTU v Aurizon').
[4] R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259].
[5] Chief Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 Australian Law Journal 290, 292.
[6] Scott v Scott [1913] AC 417, 434–5 ('Scott v Scott'); Dickason v Dickason (1913) 17 CLR 50, 51; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476–7 ('John Fairfax') .
[7] Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114, 122; Ho v Loneragan [2013] WASCA 20.
[8] A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450.
[9] [1995] 2 Qd R 10 ('J v L & A Services No 2').
[10] R v Tait (1979) 46 FLR 386.
[11] [2017] QSC 338, [2]-[3].
[12] John Fairfax (n 7) [17] – [20]; J v L & A Services Pty Ltd (No 2) (n 10) 44-45.
[13] Scott v Scott (n 7); Russell v Russell (1976) 134 CLR 495, 520.
[14] Emphasis added.
[15] I note that the Public Service Act 2008 (Qld) was applicable at the time when the Appellant filed her appeal. That act has since been repealed and on 1 March 2023, the Public Sector Act 2022 (Qld) was enacted.