DHG v State of Queensland[2013] QSC 89

SUPREME COURT OF QUEENSLAND

[1] The applicant complains that certain information contained on web pages controlled by the respondent breaches the provisions of the Penalties and Sentences Act 1992 (Qld) (“the Act”).  The applicant seeks declarations and orders requiring the removal of that information from those web pages.  The applicant also seeks ancillary relief.

[2] The respondent resists the application contending the material does not breach the Act.  Alternatively, the respondent contends the material may lawfully be published as it is necessary for the legitimate performance of the respondent’s functions in administering the Work Health and Safety Act 2011 (Qld) (“the WHS Act”).

Background

[3] On 10 August 2009 an employee of the applicant’s employer sustained fatal crush injuries at work.  The employer subsequently pleaded guilty to breaching s 24(1) of the Workplace Health and Safety Act 1995 (Qld) (“the 1995 Act”).

[4] The applicant was subsequently charged with a breach of s 167 of the 1995 Act in respect of the incident. 

[5] On 13 December 2011, the applicant pleaded guilty to a breach of the 1995 Act.  He was fined a substantial sum, and ordered to pay costs.  However, the Industrial Magistrate, pursuant to s 12 of the Act, ordered that no conviction be recorded in respect of the applicant.  The Industrial Magistrate found that to record a conviction would impact on the applicant’s employment, and economic wellbeing.

[6] On 22 February 2013, a Google search of the applicant’s name was performed.  It revealed that web pages operated by the respondent’s Department of Justice and Attorney-General, in respect of workplace health and safety, contained particulars of the prosecution of the employer and the applicant.  The pages specifically named the applicant, and recorded details of his sentence.

The Act

[7] Section 12 of the Act provides:

“12.  Court to consider whether or not to record conviction

(1)A court may exercise a discretion to record or not record a conviction as provided by this Act.

(2)In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

(a)the nature of the offence; and

(b)the offender’s character and age; and

(c)the impact that recording a conviction will have on the offender’s—

(i)economic or social wellbeing; or

(ii)chances of finding employment.

(3)Except as otherwise expressly provided by this or another Act—

(a)a conviction without recording the conviction is taken not to be a conviction for any purpose; and

(b)the conviction must not be entered in any records except—

(i)in the records of the court before which the offender was convicted; and

(ii)in the offender’s criminal history but only for the purposes of subsection (4)(b).

(3A)Despite subsection (3)(b), the conviction may be entered in a record kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.

(4)A conviction without the recording of a conviction—

(a)does not stop a court from making any other order that it may make under this or another Act because of the conviction; and

(b)has the same result as if a conviction had been recorded for the purposes of—

(i)appeals against sentence; and

(ii)proceedings for variation or contravention of sentence; and

(iii)proceedings against the offender for a subsequent offence;

and

(iv)subsequent proceedings against the offender for the same offence.

(5)If the offender is convicted of a subsequent offence, the court sentencing the offender may disregard a conviction that was ordered not to be recorded but which, under subsection (3)(b)(ii), is entered in the offender’s criminal history.

(6)If—

(a)a court—

(i)convicts an offender of an offence; and

(ii)does not record a conviction; and

(iii)makes a probation order or community service order for the offender; and

(b)the offender is subsequently dealt with by a court for the same offence in any way in which it could deal with the offender if the offender had just been convicted by or before it of the offence;

the conviction for the offence must be recorded by the second court.

(7) Despite subsection (6), the second court is not required to record the conviction for the offence if-

(a)the offender is the subject of a community service order or probation order; and

(b)the reason the court is dealing with the offender for the same offence is because the offender has applied for a revocation of the community service order or probation order; and

(c)the offender has not breached the community service order or probation order.”

[8] The rationale for the discretion to record or not record a conviction was explained in R v Briese, ex parte Attorney-General:[1]

“…It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received.  The potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.”

[9] At the time Briese was decided, s 12 did not contain the exception in subsection (3A).  That subsection was inserted in 2008.[2]  The explanatory note for this amendment states: 

“Section (3A) provides that despite s 12(3)(b), the conviction may be entered into a record kept by the department, prosecuting authority or the offender’s legal representative if recording the conviction is necessary for the legitimate performance of their functions.  This would include, for example, a notation on a prosecutor’s file about the outcome of prosecution.”

Applicant’s Submissions

[10] The applicant contends that s 12(3)(b) of the Act has been breached as the applicant’s conviction has been entered into a “record” other than those specified in s 12(3)(b) of the Act.  The word “record”, in context, refers to a writing “meant to preserve, for an appreciable time the memory or knowledge of a fact or event, even in an informal or unofficial fashion with the object of subsequent retrieval of the information”.[3]  The applicant contends this interpretation is consistent with relevant authority.[4]

[11] The applicant contends the information on the web pages is stored by a computer in a manner which allows retrieval of that information.  Such a manner preserves the memory or knowledge of that information for “an appreciable period”.  The publishing policy of the respondent’s department states that “cases will appear on the website for five years”.

[12] The applicant further contends that s 12(3A) of the Act has no application as the entry of such information onto the web pages is not “necessary” for the legitimate performance of the department’s functions.

Respondent’s Submissions

[13] The respondent contends the information on the web pages does not constitute a “record” for the purposes of s 12 of the Act.  That word, in context, refers to a record of information in a permanent form.  Where, as here, the information is kept for a period of only five years, there is no permanence.

[14] Alternatively, the respondent contends that if the information on the web pages does constitute a record, its publication is excused by s 12(3A) of the Act.  The objects and functions of the WHS Act require the respondent to have regard to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from other particular types of substances or plant as is reasonably practicable. 

[15] The respondent submitted it was only by publishing details identifying that the applicant has been found to have previously breached workplace health and safety laws that workers and other persons may be given “the highest level of protection”.[5]

Discussion

[16] A central tenet of the Act is a recognition that the recording of a conviction can lead to significant consequences for an offender, both socially and economically.  It is against that background that the Act reposes a discretion, in the judicial officer imposing sentence, to record or not record a conviction. 

[17] Various factors are to be considered in the exercise of that discretion.  Relevantly, for present purposes, they include the nature and seriousness of the offence and the likely consequences of a conviction on the social and economic wellbeing of the offender.

[18] The WHS Act, and its predecessor, the 1995 Act, contain offences which may be committed by employers, and their officers.  There is nothing in those Acts which expressly limits the operation of s 12 of the Act, in respect of the discretion to record or not record a conviction against individual offenders. 

[19] Accordingly, unless it can be shown that the provisions of the WHS Act, and the 1995 Act, repeal by implication the provisions of the Act, there is a presumption that the legislature intended that “both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.”[6]

[20] Having considered the various provisions, there is no basis for an implied presumption. The provisions are not so inconsistent that they cannot stand together.[7] The Acts must be read subject to the other.

[21] That being so, there is no reason why the WHS Act should be interpreted in a manner which denies the applicant the protection, if appropriate, afforded by s 12 of the Act. 

Do the web pages constitute a “record”?

[22] The term “record” is not defined in the Act.  Its proper meaning is to be determined having regard to its ordinary meaning, and the context in which it appears within the legislation.

[23] While the word “record”, in legislation dealing with the sentencing of offenders, may connote a formal record, such as a criminal history, the context of the term in the Act is consistent with “record” including documents of a less formal nature.  This interpretation is consistent with the references to criminal history and departmental records. 

[24] The dictionary definition of “record” relied on by the respondent supports “record” having an expanded meaning.  The Concise Oxford Dictionary refers to: “written or other permanent record”. A record includes a written record.

[25] A prohibition on a record containing any reference to a conviction, where no conviction was recorded, is apt to refer to all written records.  A written record is documentation of permanence.  The fact that it may later be destroyed after a period of time does not alter the permanence of the written record whilst it exists.

[26] The web pages the subject of the application constitute a record within the meaning of s 12 of the Act.  They are stored on a computer, in a written form.  They are readily accessible to members of the public. 

Are the web pages excused by Section 12(3A) of the Act?

[27] The prohibition in s 12 of the Act is clear.  The exception provided by s 12(3A) is limited to records kept by a department, prosecuting authority or the offender’s legal representative “if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative” (my emphasis).

[28] Section 12(3A) would allow the respondent to retain details of the applicant’s conviction in its internal records, for the purposes of recording the outcome of the prosecution.  The retention of such a record would be necessary for the legitimate performance of functions of the respondent’s department as it would ensure access to relevant information by departmental officers.  However, the retention of such information on web pages accessible to members of the general public gives rise to different considerations.

[29] The regulator’s functions, set out in s 152 of the WHS Act, are expressed in broad terms.  The objects of the Act provide guidance to a proper comprehension of the breadth of those functions. 

[30] The respondent’s publication policy, developed in accordance with the national compliance and enforcement policy published by Safe Work Australia, specifically refers to the publication of information to members of the public in order to raise awareness of work, health and safety laws.[8]  Examples of such publication include information about enforcement actions including “summarising cases on their websites”. 

[31] Whilst the respondent referred to the national policy and the national legislative scheme, it did not rely upon either as the basis for authorising the publications in question.  Instead, the respondent contended that its obligations to carry out its functions pursuant to the WHS Act authorised the publications in question.

[32] The functions and objects of the legislation are properly and adequately met by providing to members of the general public details of the circumstances of a prosecution, identifying the risk, the breach, the damage, and the outcome.  They are the factors relevant to ensuring the protection of employees in the workplace.  These factors can properly be detailed without recording the conviction of an offender who has received the benefit of an order that no conviction be recorded. 

[33] Identification of a particular offender who has the benefit of an order that no conviction be recorded adds nothing, unless it is intended that by naming the offender, fellow employees or commercial organisations may have regard to the circumstances of the conviction, in determining whether to work with the offender, or to enter into contractual relationships with the offender.  Such a purpose is contrary to the rationale for the discretionary power in s 12 of the Act.  It would also completely negate the benefit of an order that no conviction be recorded in respect of an offence.

[34] There is nothing in the national policy, or in the respondent’s own policy which renders publication of the conviction of an offender, who has received the benefit of an order that no conviction be recorded, necessary to ensure satisfaction of the functions and objects of the WHS Act.

[35] It would also be contrary to the principles of statutory construction to infer such an intention into the WHS Act, without a clear provision to that effect.  Other legislation contains specific provisions that a conviction includes any conviction, whether or not no conviction has been recorded as part of the sentence.[9]

Conclusions

[36] The web pages identified by the applicant contain a record of the applicant’s conviction, in breach of s 12 of the Act.  The maintenance of those web pages, accessible to members of the general public, is not necessary for the legitimate functions of the department. 

[37] The information contained within the web pages could be properly disseminated to members of the public without recording the applicant’s conviction.  Such dissemination will not result in any detriment to the department meeting the objects and functions of the relevant legislation. 

[38] The parties are to prepare minutes of orders in accordance with these reasons. I shall hear the parties as to costs.