Lui v State of Queensland (Department of Energy and Public Works)
[2023] QIRC 91
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- Unreported Judgment
- Lui v State of Queensland (Department of Energy and Public Works)[2023] QIRC 91
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Lui v State of Queensland (Department of Energy and Public Works)[2023] QIRC 91
Lui v State of Queensland (Department of Energy and Public Works)[2023] QIRC 91
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lui v State of Queensland (Department of Energy and Public Works) [2023] QIRC 091 |
PARTIES: | Lui, Sin Oi (Appellant) v State of Queensland (Department of Energy and Public Works) (Respondent) |
CASE NO.: | PSA/2023/3 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 27 March 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 – 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 suppress 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 Barnett v State of Queensland (Queensland Health) [2022] QIRC 424 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 4 January 2023, Ms Sin Oi Lui (the Appellant) filed a fair treatment appeal regarding a decision of the State of Queensland (Department of Energy and Public Works) (the Respondent) that Ms Lui’s role remain at the classification of Professional Officer Level 4 (PO4) and not be reclassified to Professional Officer Level 5 (PO5) level.
- [2]Ms Lui’s appeal was decided on 1 February 2023 with the decision published on the Supreme Court Library website shortly thereafter.[1]
- [3]On 24 February 2023, the Appellant sent an email to the Industrial Registry requesting that her full name be ‘hidden’ from the decision.
- [4]On 27 February 2023, the Registry replied to the Appellant’s correspondence and indicated that a Form 4 - Application in existing proceedings needed to be filed for the Appellant to apply for a suppression order.
- [5]On 2 March 2023, the Appellant filed an application in existing proceedings seeking that her name be suppressed from the decision.
- [6]In section 4 of her application in existing proceedings, the Appellant outlines the basis upon which she files her application. The Appellant says:
… Regarding the decision to be published on the Supreme Court Library website, may I request my full name to be suppressed from the decision? The fact to be disclosed is fine but with my full name on the decision to be released, I feel very uncomfortable with my privacy (full name) being disclosed in the Supreme Court library website.
Could you please kindly consider my situation?
Thanks, Sin Oi.
No submissions from the parties
- [7]The Respondent does not object to the application and neither party has filed submissions.
- [8]The Department wrote to the Registry on 7 March 2023 stating, ‘On behalf of the Respondent, the Department does not object to the Applicant’s request for suppression of their identity. The Department does not wish to provide any further submissions.’
- [9]On 16 March 2023, the Appellant also confirmed that she did not intend to make further submissions. Ms Lui advised the Registry, ‘With reference to your Directions Order regarding my application to suppress my name from the decision, please be advised that there is no additional information to be provided extra to my completed Form 4 submitted before’.
- [10]Ms Lui therefore relies upon the reason outlined in her application, being that she feels uncomfortable with her full name being disclosed on the Supreme Court Library website for privacy reasons. I will consider Ms Lui’s application on this basis.
- [11]While the Respondent does not object to the application, I must consider the relevant legal principles in deciding whether to suppress the Appellant’s name and identity from the decision.
Legal framework
- [12]The onus of demonstrating that circumstances exist which justify a suppression order lies with the Appellant.
- [13]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.
- [14]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.
- [15]Section 580(6) of the IR Act says that the Commission may make such a direction absolutely or on conditions.
- [16]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.
- [17]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.
- [18]In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('ARBTU v Aurizon'),[2] 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'.[3] 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,[4] 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,[5] and decisions pronounced, in 'open court';[6] second, that evidence is communicated publicly to those present in the court;[7] 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.
- [19]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)[8] 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.[9] 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…
- [20]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:[10]
[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.[11]
[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.[12]
Consideration
Rule 97
- [21]Rule 97(3)(b) provides that the court, Commission or registrar may modify a document, before publication,[13] in a way that does not affect the essence of the document.
- [22]I am satisfied that in the initial contact from the QIRC following the filing of Ms Lui’s appeal notice, the parties were informed that 'decisions issued in Public Service Appeals are, in most instances, published.’[14]
- [23]I have reviewed the correspondence on the file, and I note that on the day that the decision was released to the parties, it was attached to an email which read:
Good afternoon,
Please find attached the written decision filed in the Industrial Registry and released today in the above matter.
Please note, the decision is a released copy only and may be amended prior to publishing on the Supreme Court Library website.
- [24]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.
- [25]It seems to me that rule 97(3)(b) does not authorise me to remove a document once publication has occurred, redact Ms Lui’s name and re-publish it.
- [26]The time for Ms Lui to request suppression of her name was prior to the publication of the decision.
- [27]For that reason, I decline to remove Ms Lui’s name from the decision under rule 97.
Section 580 of the IR Act
- [28]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 [14]-[16]). Section 580 refers to confidential material tendered in evidence.
- [29]Ms Lui’s application for suppression of her name post-publication of the decision 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 Lui’s name under this provision.
Section 451 of the IR Act
- [30]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 and re-published with the suppression of Ms Lui’s name. 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.
- [31]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.
- [32]As I have determined above, I do not think that rule 97 is of assistance in this matter. If I am to suppress Ms Lui’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 Lui 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 Lui’s discomfort and privacy concerns
- [33]Ms Lui did not make any submissions. In her application, she says that while she does not seek to challenge ‘the fact to be disclosed’, she feels uncomfortable with her name being published in the decision for privacy reasons.
- [34]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…
- [35]I would characterise Ms Lui’s privacy concerns and feelings of discomfort as being a request to suppress her name merely to save her from ‘loss of privacy, embarrassment… or other "collateral disadvantage"’. Ms Lui 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
- [36]For the reasons given above, I do not find that rule 97 or section 580 of the IR Act are enlivened by Ms Lui’s application for suppression of her name from the decision released on 1 February 2023.
- [37]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 Lui 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.
Order
- [38]I make the following order:
The application is dismissed.
Footnotes
[1] Lui v State of Queensland (Department of Energy and Public Works) [2023] QIRC 031.
[2] [2021] QIRC 263 ('ARBTU v Aurizon').
[3] R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259].
[4] Chief Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 Australian Law Journal 290, 292.
[5] 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') .
[6] Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114, 122; Ho v Loneragan [2013] WASCA 20.
[7] A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450.
[8] [1995] 2 Qd R 10 ('J v L & A Services No 2').
[9] R v Tait (1979) 46 FLR 386.
[10] [2017] QSC 338, [2]-[3].
[11] John Fairfax (n 7) [17] – [20]; J v L & A Services Pty Ltd (No 2) (n 10) 44-45.
[12] Scott v Scott (n 7); Russell v Russell (1976) 134 CLR 495, 520.
[13] Emphasis added.
[14] 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. Accordingly, the Appellant’s appeal is now referred to as a ‘public sector appeal’.