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Legal Services Commissioner v JXL[2023] QSC 283

Legal Services Commissioner v JXL[2023] QSC 283

SUPREME COURT OF QUEENSLAND

CITATION:

Legal Services Commissioner v JXL [2023] QSC 283

PARTIES:

LEGAL SERVICES COMMISSIONER

(Applicant)

v

JXL

(Respondent)

FILE NO/S:

BS 14327 of 2022

DIVISION:

Trial Division

PROCEEDING:

Hearing of interlocutory applications

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2023

JUDGE:

Crowley J

ORDERS:

  1. The Commissioner’s application for pseudonym orders is dismissed.
  2. JXL’s application for a closed court is dismissed.
  3. The question of costs of each application is reserved.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – JUDGMENTS AND CONVICTIONS – where the respondent was convicted of criminal offences in the Children’s Court of Victoria – where no convictions were recorded – where the Legal Services Commissioner alleges the respondent was required to disclose these convictions when commencing work as a lay associate at a Queensland law practice and when subsequently applying for admission as a legal practitioner – where the Commissioner has commenced proceedings against the respondent seeking injunctive and declaratory relief – whether the Commissioner’s evidence in respect of the respondent’s spent convictions is inadmissible pursuant to ss 148(1) and 184 of the Youth Justice Act 1992 (Qld)

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERALLY – where the Commissioner filed and read affidavits which provided information and exhibited material confirming the fact of the respondent’s spent child convictions – where the affidavits were read in closed court – whether filing and reading the affidavits amounted to ‘publication’ within the meaning of s 3 of the Open Courts Act 2013 (Vic) – whether the Commissioner breached s 534 of the Children, Youth and Families Act 2005 (Vic)

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – where the Commissioner applies for pseudonym orders in respect of the names of persons who have sworn affidavits for the Commissioner in these proceedings – whether pseudonym orders should be made to avoid the risk of the potential prosecution of the deponents of the Commissioner’s affidavits for breaching s 534 of the Children, Youth and Families Act 2005 (Vic)

COURT AND JUDGES – COURTS – JURISDICTION AND POWERS – PROCEEDINGS IN OPEN COURT OR IN CAMERA – where the respondent applies for an order that the Commissioner’s substantive application be heard in a closed court – whether the interests of justice require an order for a closed court

Children and Young Persons Act 1989 (Vic), s 26

Children, Youth and Families Act 2005 (Vic), s 1, s 3, s 523, s 534, s 584

Civil Proceedings Act 2011 (Qld), s 10

Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 3, s 4, s 5, s 9, s 9A

Legal Profession Act 2007 (Qld), s 9, s 11, s 26, s 34, s 703

Open Courts Act 2013 (Vic), s 3

Sentencing Act 1991 (Vic), s 4, s 8

Spent Convictions Act 2021 (Vic), s 3, s 5, s 6, s 7, s 20, s 21

Supreme Court Act 1991 (Qld), s 8

Youth Justice Act 1992 (Qld), s 2, s 148, s 183, s 184

ABC v D1; Ex parte The Herald & Weekly Times Limited [2007] VSC 480, cited

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited

Attorney-General v Leveller Magazine Ltd [1979] AC 440, cited

Emanate Legal Services Pty Ltd v Hood (2021) 7 QR 575; [2021] QCA 94, cited

GHJ v Secretary to the Department of Justice and Community Safety [2019] VSC 89, cited

Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308; [2001] FCA 1747, cited

J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10; [1993] QCA 012, cited

John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; [2004] NSWCA 324, cited

KDN v Secretary to the Department of Families, Fairness and Housing [2023] VSC 479, cited

Porch v State of Victoria [2023] VSC 61, considered

PQR v Secretary, Department of Justice and Regulation (No 1) (2017) VR 45; [2017] VSC 513, cited

Re Edelsten; Ex parte Donnelly (1998) 18 FCR 434, cited

RP v Foreman [2021] VSCA 115, cited

Russell v Russell (1976) 134 CLR 495; [1976] HCA 23, cited

Scott v Scott [1913] AC 417; [1913] UKHL 2, cited

Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19, cited

Taylor v State of Victoria [2023] VSC 320, considered

COUNSEL:

S A McLeod KC, with R C Taylor and C M Doyle, for the applicant

C C Wilson for the respondent

SOLICITORS:

Legal Services Commissioner for the applicant

Donnelly Law Group for the respondent

  1. [1]
    The Legal Services Commissioner has commenced proceedings against JXL, seeking injunctive relief under s 703(2) of the Legal Profession Act 2007 (Qld) to restrain him from working, or seeking to work, as a lay associate of a law practice, unless given approval to do so by the Queensland Law Society.
  2. [2]
    The Commissioner also seeks a declaration that JXL has breached s 34 of the Legal Profession Act, by failing to disclose a suitability matter when applying for admission as a legal practitioner.
  3. [3]
    In seeking this relief, the Commissioner alleges JXL commenced working as a lay associate for a Queensland law practice, in circumstances where he failed to disclose that he had previously been convicted of criminal offences in the Children’s Court of Victoria. She further alleges that JXL subsequently failed to disclose the convictions when he subsequently applied for admission as a legal practitioner.
  4. [4]
    Although no convictions were recorded in respect of the matters for which JXL was dealt with by the Children’s Court of Victoria, and they are now spent convictions, the Commissioner contends that JXL was nevertheless obliged to disclose the convictions in each instance.
  5. [5]
    JXL has given undertakings not to work, or seek to be employed as, a lay associate in a law practice, pending final orders. He has also withdrawn his application for admission. A date has not yet been set for the hearing of the Commissioner’s application.
  6. [6]
    There are now two interlocutory applications that I must decide before I hear the Commissioner’s substantive application. The first is an application by theCommissioner for pseudonym orders to be made in respect of the names of persons who have sworn affidavits for the Commissioner in these proceedings. The second is an application by JXL that the Commissioner’s substantive application be heard in a closed court.
  1. [7]
    The critical issue for determination at the hearing of the Commissioner’s substantive application will be whether JXL was in fact required to disclose his spent child convictions, as the Commissioner alleges. Whilst this issue does not need to be finally determined at this stage, JXL submits it is necessary in deciding the closed court application that I consider the likelihood that he will be successful in resisting the Commissioner’s substantive application, by virtue of the operation and effect of various legislative provisions he identifies. It is therefore necessary that I consider the operation and effect of these provisions for present purposes.
  1. [8]
    It is relevant to note that non-publication and restricted access orders have been made in respect of this proceeding. Those orders will continue to be in force until the final hearing of the Commissioner’s substantive application, which is to be heard by me on a date to be fixed following delivery of this judgment.
  2. [9]
    In accordance with an earlier order made by the Court, I heard these interlocutory applications in a closed court.

The Commissioner’s pseudonym application

  1. [10]
    The Commissioner makes her application for pseudonym orders because she is concerned that employees of the Commission who have sworn affidavits for the purposes of the proceeding are at risk of breaching s 534 of the Children, Youth and Families Act 2005 (Vic) (‘CYFA’). Section 534 restricts the publication of certain information or material in respect of persons and proceedings in the Children’s Court of Victoria and makes contravention of those restrictions an offence. The Commissioner is concerned that the deponents of her affidavits may be prosecuted for committing an offence.
  2. [11]
    Several affidavits have already been filed on behalf of the Commissioner in this proceeding. The deponents of those affidavits are staff members employed by the Legal Services Commission. Their affidavits have provided information and exhibited material confirming the fact of JXL’s spent child convictions.
  1. [12]
    Because of her concern, the Commissioner sought the permission of the President of the Children’s Court to publish details of JXL’s spent child convictions for the purposes of this proceeding. The President has not granted that permission. In fact, the President has not made a decision about the matter at all. Instead, the Children’s Court simply provided a written response to the Commissioner’s request, noting that ‘the issue of extraterritoriality of laws arises as the current matter is within the jurisdiction of Queensland’ and stating ‘ultimately the issue of publication will remain subject to the discretion of the Supreme Court of Queensland in its conduct of the proceeding, in light of any relevant/applicable laws.
  2. [13]
    Consequently, the Commissioner seeks pseudonym orders in respect of the names of the makers of the affidavits she relies upon. It is implicit that the Commissioner seeks these orders on the basis that the final hearing of her application would be conducted in open court. She submits that such orders are in the interests of justice as they will afford protection to her witnesses and will not impede the hearing from otherwise being conducted on an open basis.
  1. [14]
    Out of an abundance of caution, senior counsel for the Commissioner was reluctant to read any of the Commissioner’s filed affidavits at the hearing of the interlocutory applications. Ultimately however, he did so, but only on the basis that they were beingheard by me in a closed court and where various non-publication and restricted access orders had previously been made by the Court.
  2. [15]
    JXL submits there is no utility in making the pseudonym orders sought, without also making the closed court order he seeks. He submits that s 534 was breached, and thus an offence was committed, when the Commissioner read her affidavits and their contents were adduced in evidence. He further submits that prohibited publication in contravention of s 534 has, or will, occur upon any material relating to his spent convictions being incorporated into an affidavit or a transcript of the proceeding, unless such disclosure is also secured by non-publication and other orders.
  1. [16]
    Although JXL also initially objected to the admissibility of the Commissioner’s evidence about his spent child convictions on the basis that any such evidence adduced by the Commissioner would breach s 534 of the CYFA and constitute an offence, he subsequently advised the Court after the hearing that he no longer pressed that objection. I nevertheless proceed on the basis that he maintains his other submissions about potential contraventions of s 534 by the Commissioner.
  2. [17]
    Against this brief background, the central issues to be determined in respect of the pseudonym application are therefore:
  1. Has the Commissioner breached s 534 of the CYFA?
  1. Should pseudonym orders be made to avoid the risk of the potential prosecution of the deponents of the Commissioner’s affidavits for a breach of s 534 of the CYFA?

Has the Commissioner breached s 534 of the CYFA??

  1. [18]
    The CYFA is an Act of the Victorian Parliament which provides for community services, child protection and justice matters for children and families in Victoria. Its ambit is broad. The main purposes of the CYFA, set out in s 1 of the Act, reflect the diversity of the matters covered by the CYFA. They include: to provide for community services to support children and families; to provide for the protection of children; and to continue the Children’s Court of Victoria as a specialist court dealing with matters relating to children. In terms of criminal justice, the stated purpose of the Act is to make provision in relation children who have been charged with, or who have been found guilty of, offences.
  2. [19]
    Chapter 5 of the CYFA is titled ‘Children and the criminal law’. It contains provisions that deal with matters such as criminal responsibility of children, proceedings for offences and the types of sentences that may be imposed in respect of offences committed by children. Chapter 7 of the CYFA is titled ‘The Children’s Court of Victoria’. It contains provisions that continue the Children’s Court of Victoria and provide for its constitution and composition, including establishing the office of ‘President of the Children’s Court’ as the judicial officer with administrative responsibility for the business of the Court. The chapter also contains provisions which designate, and confer jurisdiction upon, the various divisions of the Court and provide for the Court’s procedures. One such designated division of the Court is the ‘Criminal Division’, which is given jurisdiction to hear and determine, amongst other things, all charges for summary offences and charges for indictable offences that may be dealt with summarily.
  1. [20]
    Before setting out the terms of s 534, it is pertinent to note the operation of two other specific sections within Chapter 7 of the CYFA. The first is s 523, pursuant to which proceedings in the Court are generally to be conducted in open court. The second is s 584, which has two relevant subsections. Section 584(1) precludes the fact that a person had been charged with an offence, or any order made by the Children’s Court in respect of the charge, from being given in evidence against the person in any legal proceeding, after the end of three years from the date of being charged. However, s 584(2) provides an exception to s 584(1), where either matter is relevant to the facts in issue in the proceeding or it is relevant to matters necessary to be known in order to determine whether or not those facts existed.
  2. [21]
    I am satisfied that the s 584(2) exception operates in this case and thus s 584(1) does not preclude evidence of JXL’s spent child convictions being given in evidence in this proceeding.
  3. [22]
    Part 7.5 of Chapter 7 of the CYFA is headed ‘Restriction on publication of proceedings’. It contains s 534, which relevantly provides:

534 Restriction on publication of proceedings

  1. A person must not publish or cause to be published—
  1. (a)
    except with the permission of the President or of a magistrate under subsection (1A), a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of—
  1. (i)
    the particular venue of the Children's Court, other than the Koori Court (Criminal Division) or the Neighbourhood Justice Division, in which the proceeding was heard; or
  1. (ii)
    a child or other party to the proceeding; or
  1. (iii)
    a witness in the proceeding; or
  1. (b)
    except with the permission of the President or of a magistrate under subsection (1A), a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or
  1. (c)
    except with the permission of the President or of a magistrate under subsection (1A), or of the Secretary under subsection (3), any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.

Penalty:

  1. (a)
    In the case of a body corporate—500 penalty units;
  1. (b)
    In any other case—100 penalty units or imprisonment for 2 years.

(1A) On application to the Court, a magistrate may grant permission for the publication if the magistrate is satisfied that—

  1. (a)
    the circumstances giving rise to the request for permission to publish are an emergency; and
  1. (b)
    publication is reasonably necessary for the safety of—
  1. (i)
    the child, other party or witness referred to in subsection (1); or
  1. (ii)
    any other person or the community.

…

  1. Without limiting the generality of subsections (1), (3), (3A) and (3B) or section 534A(2), the following particulars are deemed to be particulars likely to lead to the identification of a person—
  1. (a)
    the name of the person;
  1. (b)
    the names of—
  1. (i)
    any relative of the person; or
  1. (ii)
    any other person having the care of the person; or
  1. (iii)
    in addition to subparagraphs (i) and (ii), in the case of an Aboriginal person, a member of the Aboriginal community of the person;
  1. (c)
    the name or address of any place of residence of the person, or the locality in which the residence is situated;
  1. (d)
    the name or address of any place of education, training or employment attended by the person, or the locality in which the place is situated.
  1. [23]
    According to its terms, s 534(1) makes it an offence to ‘publish’ or to ‘cause to be published’, without the permission of the President or a magistrate of the Children’s Court:
  1. a report of a proceeding in the court that contains any particulars likely to lead to the identification of a child who is a party to the proceeding;
  2. a picture of a child who is a party to a proceeding; or
  3. any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the court.
  1. [24]
    Sections 534A and 534B exempt certain publications from the s 534 restrictions on publication. Neither of those exemptions are relevant here.
  1. [25]
    Section 3(1) of the CYFA provides that the term ‘publish’ has the same meaning as in the Open Courts Act 2013 (Vic). Section 3 of that Act provides the following definition of ‘publish’:

publish means disseminate or provide access to the public or a section of the public by any means, including by—

  1. publication in a book, newspaper, magazine or other written publication; or
  2. broadcast by radio or television; or
  3. public exhibition; or
  4. broadcast or electronic communication—

and publication must be construed accordingly…

  1. [26]
    Section 3(1) of the CYFA further provides that, in relation to the Criminal Division, an ‘order’ includes judgment and conviction.
  1. [27]
    JXL’s argument is that once the evidence of his spent child convictions is adduced by the formal reading of the Commissioner’s affidavits, that will amount to a publication of relevant identifying information or material in breach of the restrictions imposed by s 534(1). He says publication involves dissemination of information to another person and that this concept is not confined to the idea of dissemination to the world at large; rather, publication can be to a single person. On his argument therefore:
  1. prohibited publication has already occurred, when the Commissioner read the affidavits she relies upon for the purposes of these interlocutory applications; and
  2. prohibited publication will also occur in the future, if the Commissioner reads any affidavits containing similar information or exhibiting similar material for the purposes of the hearing of the Commissioner’s substantive application; and
  3. prohibited publication has perhaps already occurred, and will further occur, upon the Commissioner filing with the Court any affidavits that contain information or material concerning his spent child convictions
  1. [28]
    I reject those arguments.
  1. [29]
    In my opinion, upon the proper construction of s 534 of the CYFA, neither of the above acts would constitute an offence by breaching any of the specified restrictions on publication. I consider JXL’s arguments misconstrue the breadth of the statutory prohibition on publication created by s 534 of the CYFA and wrongly equate steps taken to adduce evidence in this proceeding as acts of publication.
  1. [30]
    The proper construction of s 534 is of course to be determined having regard to the text of the legislation, the context of the provision and the purposes of the CYFA.[1]
  1. [31]
    The restrictions on publication under s 534 are neither new nor novel. Indeed, s 534 largely replicates the similarly worded prohibition in the now repealed s 26 of the Children and Young Persons Act 1989 (Vic). These statutory prohibitions on publication reflect the strong, long-standing public policy that children who are brought before the Children’s Court are not to be identified by particulars or material being published that is likely to lead to their identification.[2] In the case of young offenders dealt with in the Criminal Division of the Children’s Court, the evident purpose of s 534 is to enable and promote their rehabilitation. In the case of children who are involved in child protection matters in the Family Division, the purposes of s 534 are therapeutic and protective. In all cases, the public policy rationales for the restrictions on publication necessarily include that children should be shielded from the stigma, shame, embarrassment or harm that may be caused to them by identifying particulars or material becoming publicly known.
  1. [32]
    However, s 534 does not provide a blanket prohibition on publication. What is prohibited are the kinds of publications that are prescribed by the express terms of the legislation. Relevantly, in the cases of the restrictions imposed by ss 534(1)(a) and (c), what is prohibited is publication of a report of a proceeding in the court, or some other matter, that will identify a child involved in the proceeding. It is the identification of a child involved in the proceeding that is critical to the restrictions on publication.
  1. [33]
    It is for that reason that pseudonyms are often used to protect the identity of a child who was involved in a proceeding before the Children’s Court. In that respect, I note that in a recently published judgment in the matter of KDN v The Secretary to the Department of Families, Fairness and Housing,[3] which concerned an appeal against an interim accommodation order made by the Children’s Court of Victoria in respect of two children, various pseudonyms were used to refer to the subject children and their parents. As Gorton J there observed:[4]

[2]  Section 534(1) of the Children, Youth and Families Act 2005 provides that a person must not publish or cause to be published a report of a proceeding that contains any particulars likely to lead to the identification of a witness to that proceeding. For this reason, I have given pseudonyms to those persons who appeared as witnesses in the Children’s Court. The parties will be provided with a version of the judgment in which pseudonyms are not used for witnesses.

  1. [34]
    Similarly, in RP v Foreman,[5] an appeal against the refusal of an application for a writ of habeas corpus in relation to a child, where the Children’s Court had made an order conferring parental responsibility and sole care of the child to the Secretary of the Department of Human Services, the Court of Appeal noted that it had replaced the appellants’ names with pseudonyms in order to prevent the identification of the child who was the subject of orders made in the Children’s Court, in accordance with s 534(1) of the CYFA .
  1. [35]
    It is for similar reasons as these that I have now made an order that the respondent in this proceeding is hereafter to be referred to by the pseudonym ‘JXL’.
  1. [36]
    Depending on the nature and circumstances of the case, the making of a pseudonym order may be all that is required in order to observe the statutory restrictions on publication imposed by s 534. There are, of course, other possible actions that may be taken and orders that may be made by the Court to ensure no breach of s 534 occurs in a proceeding. Once such option would be to make an order that the proceeding be conducted in a closed court. That is what was done for the hearing of these interlocutory applications.
  1. [37]
    I do not accept JXL’s submission that, irrespective of the fact that the hearing of these applications took place in a closed court, upon the Commissioner’s affidavits being read there was a prohibited publication of restricted information or material.
  1. [38]
    In my opinion, the reading of the affidavits in closed court does not meet the definition of ‘publish’ in s 3 of the Open Courts Act, as the information and material has not been published to ‘the public’ or a ‘section of the public’, as is required. In my opinion, for the purposes of any potential breach of s 534 of the CYFA, the references to ‘the public’ or a ‘section of the public’ within the s 3 definition of the Open Courts Act plainly contemplate that the term ‘publish’ means publication to a wider audience than the Court, the parties, their lawyers and the court officers and other staff present during the closed court hearing of these applications. Although s 3 refers to ‘disseminate or provide access...by any means’ and then provides a non-exhaustive list of the ways in which information may be disseminated or accessed, in my view the examples provided support the conclusion I have reached.
  1. [39]
    In my opinion, for the purposes of s 534, the Commissioner has not published, or caused to be published, any restricted information or material by filing the affidavits with the Court or by reading the affidavits and thereby putting them into evidence. I do not consider either act constitutes a publication for the purposes of s 534 of the CYFA.
  1. [40]
    In reaching the above conclusions, I have found two recent Supreme Court of Victoria decisions dealing with issues concerning various statutory restrictions on publication to be of assistance.
  1. [41]
    In Taylor v State of Victoria,[6] issues concerning the publication of information and material in supposed breach of various statutory prohibitions were considered. That case concerned an appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) dismissing a father’s application for an order under the Equal Opportunity Act 2010 (Vic). The father had made a request of his daughter’s primary school that he be provided with her school reports. The school refused. At the time of making the request, the father was on remand pending his trial on a number of criminal charges related to his registration and work as a teacher. The father claimed he had been discriminated against in education on various grounds.
  1. [42]
    The notice of appeal filed by the father to commence the proceeding identified him by the pseudonym ‘CZZ’, which had been used in the VCAT proceedings. The father had not, however, sought an order from the Court permitting him to use the pseudonym. The necessity for such an order was considered by Richards J. Her Honour noted that the tribunal had seemingly employed the pseudonym of its own motion in order to comply with s 121 of the Family Law Act 1975 (Cth), which, amongst other things, prohibited the publication of an account of family law proceedings under that Act or any part of such proceedings that identifies a party to the proceedings.[7]
  1. [43]
    With respect to the making of pseudonym orders generally, her Honour observed:[8]

[19]  Pseudonym orders are commonly made in this Court in cases involving sexual offences, family violence, or children, and guardianship matters. These pseudonym orders often complement a statutory restriction on publishing information that may identify a party or someone else involved in the proceeding.

  1. [44]
    Her Honour then examined the scope of the statutory prohibition in s 121 of the Family Law Act, relevantly adopting what had been said by Kenny J in Hinchcliffe v Commissioner of Australian Federal Police[9] about the proper construction of the provision.
  1. [45]
    In Hinchcliffe, Kenny J concluded that before s 121 can be contravened, there must be a dissemination of an account of proceedings, or part of them, under the Act, with an ‘account’ being ‘a narrative, description, retelling, or recital of any such proceeding’.[10] Furthermore, her Honour accepted that dissemination of the account to ‘the public or a section of the public’ referred to ‘a widespread communication with the aim of reaching a wide audience’.[11]
  1. [46]
    In declining to make a pseudonym order, Richards J noted that the proceeding before her was not a family law proceeding and that:[12]

[23]  …Mr Taylor would not have published or disseminated anything about the family law proceeding by commencing this proceeding in his own name. Similarly, he has not published or disseminated anything by filing with this Court documents that identify him and his former wife as parties to the family law proceeding. The publication or dissemination to the public of an account of the family law proceeding is not to be conflated with filing documents in this proceeding, or even with those documents being made available for inspection by a non-party.

  1. [47]
    In making the last point, her Honour cited the judgment of John Dixon J in Porch v State of Victoria.[13] That case involved a common law claim for negligence. The plaintiff there had made allegations to police of criminal conduct and family violence said to have been perpetrated by her husband, who was a serving police officer. The plaintiff claimed that the police owed her a duty of care as a complainant and they breached that duty, causing her to suffer injury, loss and damage.
  1. [48]
    After the proceeding had been commenced, a newspaper sought access to the court file to inspect and copy the pleadings. The request was initially declined by the Prothonotary on the basis that provision of the file would constitute a breach of s 534 of the CYFA. Although the plaintiff advised that she consented to the newspaper’s request, the Prothonotary continued to refuse access, albeit on the basis of the statutory restrictions on publication in s 121 of the Family Law Act and s 166(2) of the Family Violence Protection Act 2008 (Vic). Section 166(2)(b) of the Family Violence Protection Act prohibits the publication of a report of a proceeding or an order under the Act that contains any particulars likely to lead to the identification of any person involved in the proceeding.
  1. [49]
    After the initial refusals to grant access, Dixon J dealt with a formal interlocutory application for access filed by the newspaper. His Honour noted that the substantive proceeding was not a proceeding under the CYFA, the Family Law Act or the Family Violence Protection Act, but that the pleadings did make reference to the domestic violence orders that had been made under the Family Violence Protection Act. His Honour further noted that under r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), a person who was a non-party had a prima facie right to inspect and copy pleadings in a proceeding without leave of the Court. I note that r 981 of the Uniform Civil Procedure Rules (Qld) is a similar provision that operates in this jurisdiction.
  1. [50]
    In concluding that there was no proper basis to refuse the newspaper’s request, Dixon J held that the provision of access to a document on a court file was not a ‘publication’ for the purposes of the statutory prohibition on publication provided by s 166(2) of the Family Violence Protection Act. It is pertinent to note that s 4 of that Act defined the term ‘publish’ in identical terms to the definition of the same word in s 3 of the Open Courts Act, which is of course the definition that applies for the purposes of s 534 of the CYFA.
  1. [51]
    In concluding that access to the pleadings was not ‘publication’, his Honour relevantly stated:[14]

[20]  The notion of providing access to a person (the non-party searcher) cannot be conflated with the concept of providing access to the public or a section of the public. What the non-party searcher of the court file does with information gained from the inspection is not governed by the rule. Parliament did not intend to define ‘publish’ in a manner that restricted access [sic, to] defined information from a court file to any person because the text and context of the Act, particularly the notion of providing ‘access to the public’ cannot apply to dissemination of information to individuals as occurs when a court file is searched. The notion of access to the public is different from the notion of access to an individual. Subsequent dissemination of information gained from a court file to the public (which may be publishing) is not a matter governed by the rule or raised for consideration in this application.

[21]  Parliament having chosen to use ordinary words of broad import means they should not be given an unduly narrow or technical meaning as would result if the words ‘the public or section of the public’ were read as ‘a person’.

[22]  I would add that plainly the text and context of the Act excludes a construction that incorporates a pleading in a proceeding in this court as a report of a proceeding or a report about an order made under the Act. The fundamental role of pleadings to define the issues in a civil dispute to be adjudicated by the court, is inconsistent with the concept of a report. The fact that a material fact concerning a proceeding under any of these acts is alleged in a pleading for the necessary purpose of identifying the issues in a civil dispute does not make the pleading an account or a report of a proceeding in the sense identified by these various Acts.

  1. [52]
    Although the above decisions deal with different legislative provisions and it is of course necessary to focus on the precise terms of the CYFA, in my view these cases provide some support for the conclusions I have reached about the proper construction of s 534 of the CYFA and the definition of ‘publish’ in s 3 of the Open Courts Act.
  1. [53]
    For these reasons, I do not consider there has thus far been any prohibited publication of identifying particulars by the Commissioner in breach of s 534 of the CYFA.

Should pseudonym orders be made?

  1. [54]
    The principle of open justice is one of the most fundamental aspects of the justice system in Australia. It is deeply entrenched and a cornerstone of our judicial system.[15]
  1. [55]
    The principle of open justice has two major tenets. First, judicial proceedings are to be conducted publicly and in open view.[16] Justice must not only be done but ‘be seen to be done’. Second, information disclosed in court must be able to be freely communicated.
  1. [56]
    In J v L & A Services Pty Ltd (No 2), the Court summarised the following common law principles of open justice:[17]
  1. Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.
  1. 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. National security provides a further special, broadly analogous exception to the requirement of open justice because of its fundamental importance to the preservation of a democratic society based on the rule of law.
  1. 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.
  1. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
  1. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
  1. 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. 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. 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.
  1. It is the last category which gives rise to the most difficulty because of unresolved questions concerning the nature and ambit of the power. Support for a more liberal approach seems substantially confined to modern authority. Even so, 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”…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…
  1. [57]
    Consistent with the above principles, exceptions to the principle of open justice are few and strictly defined. Given that the principle of open justice is to serve the ‘ends of justice’, it may be necessary to depart from it where circumstances are such that the application of the general rule would frustrate or render impractical the administration of justice, or damage some other public interest for which there is a statutory protection derogating from the rule.[18] Where an exception is made, it commonly manifests in the Court making orders such as non-publication orders, closed court orders or pseudonym orders, but only where such orders are necessary for the proper administration of justice.
  1. [58]
    A pseudonym order is often the most appropriate order to be made as it involves the least restriction upon the principle of open justice.[19]
  1. [59]
    A pseudonym order is an order which obscures the identity of a person in a proceeding or referred to in court documents. The purpose of such an order is to protect the identity of a person. Typically, they are orders pursuant to which parties, witnesses and others involved in a legal proceeding must be described in documents filed and served in the proceeding, or in evidence and submissions, by a pseudonym.[20] A pseudonym order may also extend to the way in which a party or person is to be referred to in any judgment published by the Court.
  1. [60]
    In some cases, a particular legislative provision may expressly prohibit a person being named or identified in a proceeding. In such cases, it may be necessary for the court to make an order that operates as an exception to the general principle, including a pseudonym order. In other cases, the interests of a party or a witness may provide the basis for a pseudonym order. If so, the Court will need to consider whether it is necessary to make a pseudonym order having regard to the interests of the individual and the interests of justice.
  1. [61]
    At common law, the Court may make such an order in the exercise of its inherent power to control the conduct of proceedings for the purpose of administering justice. The principle of open justice now finds statutory expression in s 8 of the Supreme Court Act 1991 (Qld). Section 8(1)(b) of the Supreme Court Act provides that the business of the Court is to be conducted in open court. Section 8(2) provides for exceptions to the general rule, enabling the court to make an order, if the public interest or the interests of justice require, limiting the extent to which the business of the court is open to the public.
  1. [62]
    Where an exception is made to the principle of open justice, it must not extend beyond what is necessary for the proper administration of justice. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.[21]
  1. [63]
    It will ordinarily be necessary for the person seeking a pseudonym order to provide the Court with cogent evidence, capable of persuading the Court that such an order is necessary to secure the proper administration of justice.[22]
  1. [64]
    Having regard to the foregoing, in my view, the Commissioner has not satisfied me there is a proper basis to make the pseudonym orders sought.
  1. [65]
    I do not consider the identified ‘need’ for the orders is one that justifies an exception to the general principle of open justice. As I have explained, I do not consider there has been any breach of s 534 by the Commissioner filing and reading her affidavits in this proceeding thus far. In any event, I do not think it is in the public interest, nor in the interests of justice generally, to make orders that would obscure the identities of the makers of the Commissioner’s affidavits, to protect them from potential prosecution for a breach of s 534. Furthermore, even if it were appropriate to make the orders sought for that purpose, they would not achieve that end. If there was a breach of s 534 committed by the deponents of the affidavits, the identities of those persons would be readily discoverable, irrespective of any pseudonym employed for the purpose of the proceeding.
  1. [66]
    In my view, the Commissioner’s application was misconceived and should be dismissed. As I expressed during the hearing of this application, it is the respondent, and not the deponents of the Commissioner’s affidavits, who should be the subject of a pseudonym order to avoid any potential breach of s 534.

JXL’s closed court application

  1. [67]
    JXL makes his application for a closed court hearing because he is concerned that, without such an order, his spent child convictions will be publicly disclosed, contrary to the operation and effect of various legislative provisions which he says would otherwise protect their disclosure. He relies on these same legislative provisions to oppose the Commissioner’s substantive application. He says that under these various legislative provisions, he was never required to disclose his spent child convictions and they should not now be publicly disclosed in this proceeding.
  1. [68]
    The particular legislative provisions JXL relies upon are: s 534(1) of the CYFA, ss 148(1) and 184(2) of the Youth Justice Act 1992 (Qld) (‘YJA’), s 8(2) of the Sentencing Act 1991 (Vic), s 20(1) of the Spent Convictions Act 2021 (Vic) and s 5(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) (‘CLROA’). He says that that the operation and effect of each, and any, of these provisions is that he is not required to disclose his spent child convictions.
  1. [69]
    JXL submits that the task I am required to undertake when considering his application is essentially a balancing exercise, in which I must weigh competing considerations for and against the relief sought. He submits that one of the considerations to which I would have regard is the question of his prospects of success in the substantive application. He further submits that I must consider whether he has shown there is a serious question to be tried in respect of the operation of these various legislative provisions. He says that if I do conclude that there is a serious question to be tried, then that would be a factor to be weighed in favour of making the closed court order he seeks, as he will have shown an ‘adequate basis for protection pending a final determination’.
  1. [70]
    I do not consider these submissions articulate the correct approach to the determination of this application.
  1. [71]
    The application is for an order that the Commissioner’s substantive application be heard in a closed court. To decide that application I must consider the open justice principles I have already referred to above and whether the particular reasons put forward by JXL for seeking that order justify departure from the general principle that the administration of justice occurs in an open, public court. I am not considering whether there is a serious question to be tried or whether JXL has a ‘good arguable case’. JXL must satisfy me that the interests of justice require an order for a closed court to be made. He seeks to do so by relying on the legislative provisions he has identified. If I accept the operation and effect of any of the provisions is as JXL submits, then that will be a factor that I must consider in determining whether it is necessary to make an order for a closed court.
  1. [72]
    The central issues for determination in respect of the closed court application are therefore:
  1. (a)
    Do the legislative provisions identified by JXL protect disclosure of his spent child convictions?
  2. (b)
    If so, do the interests of justice require an order for a closed court?
  1. [73]
    In respect of issue (a) above, it is not necessary for me to finally determine whether JXL was required to disclose his spent child convictions before commencing work as a law associate or when applying for admission to the legal profession, as the Commissioner asserts. Those are issues in dispute that I will ultimately be required to determine when I hear the Commissioner’s substantive application in due course.
  2. [74]
    For present purposes, what I am considering is whether those provisions provide a proper basis for the closed court order as sought, because their operation and effect would otherwise be frustrated or defeated by hearing the substantive application in open court, where the existence of JXL’s spent child convictions, and whether he had an obligation to disclose them, will be ventilated.

Do the legislative provisions identified by JXL protect disclosure of his spent child convictions?

  1. [75]
    Although JXL withdrew his objection to the admissibility of the Commissioner’s evidence, based on s 534 of the CYFA, he nevertheless maintains his objection on the basis of ss 148(1) and 184 of the YJA. He says that not only are these legislative provisions that protect disclosure of his spent child convictions, but they are ‘statutory prohibitions on admissibility’ that preclude the Commissioner’s material being admitted as evidence.
  2. [76]
    I indicated at the hearing of these applications that I would rule on these various objections when I gave judgment. I will therefore consider the objections as part of my consideration of the operation and effect of the legislative provisions identified by JXL.

CYFA, s 534(1)

  1. [77]
    I have already considered this provision in detail for the purposes of the Commissioner’s pseudonym application.
  2. [78]
    Section 534(1) does not protect the disclosure of, or preclude evidence being given about, JXL’s spent child convictions. It is a provision which imposes restrictions on the publication of certain identifying information or material, and which creates an offence for contravention of those restrictions.
  3. [79]
    As I previously noted, although s 584(1) of the CYFA provides that where a person appears in the Children’s Court in respect of a charge, neither the fact of the charge or any order made in respect of the charge may be given in evidence in any legal proceedings against the person after the end of three years from the date of the charge, s 584(2) provides an exception where either of those facts is relevant to the facts in issue in the legal proceedings. I am satisfied that is the case here.
  4. [80]
    Accordingly, the CYFA does not preclude evidence of the spent child convictions being given in these proceedings. However, that will of course need to be done in a way that does not breach the s 534 restrictions on publication.
  5. [81]
    I have already concluded that there is no breach of s 534 committed by the Commissioner filing her affidavits and reading them in closed court for the purposes of these interlocutory applications. The position will be somewhat different, however, if the Commissioner’s substantive application is heard in open court. If that happens, then there will be no restriction on members of the public attending court and being present when evidence is given and submissions are made. Whilst I do not consider the mere formal reading of an affidavit in open court for the purpose of adducing its contents as evidence will, without more, amount to publishing or disclosing its contents to the public or a section of the public, the situation may well be different if oral evidence is given or oral submissions are made about the spent child convictions when members of the public are present.
  6. [82]
    It is for reasons of this kind that on 25 August 2023, I made the pseudonym order, which provides that any reference to the respondent is to be by the initials ‘JXL’. That order operates prospectively. I have also made:
  1. non-publication orders – whereby the parties’ submissions and affidavits filed in relation to the interlocutory applications and the transcript of the closed court hearing of the applications are not to be disclosed to any person who is not a party to the proceedings; not to be published; and are to be sealed until further order of the Court; and
  1. a restricted access order – whereby a person who is not a party or a legal representative of a party is not to inspect or copy a document on the court file without the Court’s leave.
  1. [83]
    At this stage I am satisfied that these orders are adequate to avoid any breach of s 534 of the CYFA.
  2. [84]
    I will hear the parties further in due course as to whether these orders should remain in place and whether any similar or other orders are sought or required in respect of the hearing of the Commissioner’s substantive application.

Sentencing Act, s 8

  1. [85]
    The Sentencing Act is the principal statute dealing with matters relating to the sentencing of persons who have committed offences against the laws of Victoria. Amongst other things, it sets out the principles and procedures that apply when a court sentences an offender.
  2. [86]
    Section 8(2) provides that except as otherwise provided by the Sentencing Act or another Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.
  3. [87]
    JXL says that because he was sentenced in the Children’s Court of Victoria in respect of offences committed against Victorian law, s 8(2) applies in the present case. He says that means that he is not required to disclose his spent child convictions. It is implicit in his argument that if the Commissioner’s substantive application is heard in open court, then he will be ‘deprived’ of this ‘statutory protection’.
  4. [88]
    I reject these submissions.
  5. [89]
    There are several reasons why they are patently flawed, however the shortest and most obvious answer to the argument is that s 4 of the Sentencing Act expressly states that the Act applies to all courts, ‘except the Children’s Court’. That is no doubt due to the fact that the CYFA contains its own comprehensive sentencing procedures and principles that apply when a child is dealt with in that court for an offence.
  6. [90]
    Section 8(2) of the Sentencing Act has no application to this case.

YJA, ss 148(1) and 184(2)

  1. [91]
    The long title of the YJA states it is an Act ‘to provide comprehensively for the laws concerning children who commit, or who are alleged to have committed, offences and for related purposes’. One of the prescribed principal objectives of the YJA, stated in s 2(b), is ‘to establish a code for dealing with children who have, or are alleged to have, committed offences’.
  2. [92]
    Section 148(1) appears in Part 6 of the YJA, which is headed ‘Jurisdiction and proceedings’. Section 184(2) appears in Part 7 of the YJA, which is headed ‘Sentencing’. These parts of the YJA contain provisions that deal with matters such as jurisdiction, procedure, sentencing principles and sentencing options in respect of the sentencing of young offenders.
  1. [93]
    Section 148 states:

148 Evidence of childhood finding of guilt not admissible against adult

  1. In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded.
  2. Subsection (1) applies even though the evidence would otherwise be admissible under the Evidence Act 1977, section 15 and the Criminal Law (Rehabilitation of Offenders) Act 1986, section 5(3)(b).
  1. This section does not prevent a court that is sentencing an adult from receiving information about any other sentence to which the adult is subject if that is necessary to mitigate the effect of the court’s sentence.
  2. For subsection (1), if a person is found guilty as a child of an offence, the person is not taken to have been found guilty as an adult of the offence merely because of the making of a declaration under section 143(4).
  1. [94]
    Section 184 states:

184 Considerationswhetherornottorecord conviction

  1. In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—
    1. (a)
      the nature of the offence; and
    2. (b)
      the child’s age and any previous convictions; and
    3. (c)
      the impact the recording of a conviction will have on the child’s chances of—
      1. (i)
        rehabilitation generally; or
      2. (ii)
        finding or retaining employment.
  1. Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose.
  2. A finding of guilt against a child for an offence without the recording of a conviction stops a subsequent proceeding against the child for the same offence as if a conviction had been recorded.
  1. [95]
    JXL says each of these provisions apply in this case. He relies upon them for his objection to the admissibility of the Commissioner’s evidence, as he says they are ‘statutory prohibitions’ that render evidence of his spent child convictions inadmissible in these proceedings. He also relies upon them for his closed court application, as he says they protect disclosure of his spent child convictions. He says that having regard to youth justice legislation rationales and policy considerations, these provisions ought to be construed liberally and are engaged notwithstanding that his spent child convictions are in respect of offences committed against Victorian laws.
  1. [96]
    I do not accept these arguments. In my view, these provisions have no application here.
  2. [97]
    Notwithstanding the absence of specific relevant definitions within the YJA of the terms ‘offence’ and ‘conviction’, it is abundantly clear that these provisions speak of offences and convictions under the laws of Queensland. That is obvious from the text of the provisions, their purpose, the objects of the YJA and the context in which the provisions appear within the YJA.
  3. [98]
    Amongst other things, the YJA confers jurisdiction upon certain Queensland courts to deal with young persons who have committed, or allegedly committed, criminal offences. In the exercise of that jurisdiction, designated courts hear and determine proceedings for offences and, in the case of offences that are proven, impose sentences or otherwise deal with young offenders in accordance with law. It is in that context that the terms of ss 148 and 184 are to be understood and construed. There is no express statement within the YJA that the terms ‘offence’ or ‘conviction’ are to be construed as meaning an offence or a conviction under laws that pertain in any other jurisdiction. It would be highly unusual if there was. Such a construction also cannot arise by implication. It is extremely unlikely that the Queensland Parliament would have intended to make a law in respect of young offenders in this State that would encroach upon a subject matter within the legislative competence and prerogative of another jurisdiction’s legislature.
  4. [99]
    There are many other textual and contextual indications that the words ‘offence’ and ‘conviction’ within ss 148 and 184 of the YJA only refer to an offence or a conviction for an offence committed under Queensland law. Section 184 provides an obvious example. Whilst s 184(2) states that ‘a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose’, the reference to ‘a conviction’ must be read and considered against the full terms of the section and in the context of the YJA as a whole. Section 184(1) provides for matters that a sentencing court must have regard to when considering whether or not to record a conviction for ‘an offence’. Immediately before s 184, s 183(1) provides that other than under s 183, a conviction is not to be recorded against a child who is found guilty of ‘an offence’. This must necessarily refer to an offence that may be dealt with by a court with jurisdiction under the Act. It is obvious that such offences must be offences under Queensland law as that is the jurisdiction conferred on the courts that may deal with young offenders under the YJA.
  5. [100]
    Similarly, the word ‘offence’ in s 184(1) can only mean an offence under Queensland law. Section 184 is a provision that relates to sentencing of a young offender under the YJA. The jurisdiction of courts that sentence young offenders under the YJA is clearly identified and circumscribed by the Act. Unsurprisingly, it does not include jurisdiction to deal with offences committed against the laws of another Australian State or Territory. That is the context in which s 184(2) appears and what it relates to when it refers to ‘a conviction’.
  6. [101]
    For the same reasons, whilst s 148(1) precludes, in a proceeding against an adult for an offence, evidence that the adult was found guilty as a child of an offence if no conviction was recorded. It is again plain that the childhood ‘offence’ and ‘conviction’ must refer to an offence dealt with under the YJA.
  7. [102]
    It is nonsense to contend that the references to ‘offence’ and ‘conviction’ in ss 148 and 184 might encompass an offence against a Victorian law or a matter for which a conviction was, or was not, recorded by the Children’s Court of Victoria when dealing with such an offence. No general principles of youth justice legislation or broad policy considerations of the kind referred to by JXL compel any other conclusion.
  1. [103]
    I would also add that, in my view, JXL’s argument in respect of s 148(1) is untenable because the present proceeding is not a ‘proceeding against an adult for an offence’. Notwithstanding JXL’s arguments to the contrary, it is plain that this phrase means a proceeding in respect of a criminal charge, however commenced or maintained. This matter is a civil proceeding. By her substantive application, the Commissioner seeks injunctive relief under s 703 of the Legal Profession Act and declaratory relief under s 10 of the Civil Proceedings Act 2011 (Qld), or in the exercise of the Court’s inherent jurisdiction. The bases for seeking such relief are JXL’s alleged failures to comply with disclosure obligations, said to be imposed by ss 26 and 34 of the Legal Profession Act. Section 34 is not an offence provision. Whilst s 26(5) does provide for an offence for a contravention of s 26(1), and the Commissioner seeks to restrain JXL from committing an offence against s 26(5), the simple fact is that the Commissioner’s application is not a proceeding for such an offence. It would contort the meaning of the plain words of s 148(1) of the YJA beyond all sense and reason to construe the phrase ‘a proceeding against an adult for an offence’ as applying to the present proceeding.

Spent Convictions Act, s 20(1)

  1. [104]
    Although he referred to the Spent Convictions Act in his written submissions, JXL did not make any further oral submissions about the Act’s operation or effect during the hearing of these applications.
  2. [105]
    The Spent Convictions Act is an Act of the Victorian Parliament that, amongst other things, establishes a scheme for convictions to become spent automatically or on application. The Act commenced operation in 2021.
  3. [106]
    It is not in dispute that JXL’s spent child convictions are spent convictions by reason of the operation of s 7 of the Spent Convictions Act.
  4. [107]
    Section 20 of the Act relevantly provides:

20  Effect of conviction becoming spent

  1. Subject to this Part—
    1. (a)
      a spent conviction does not form part of a person's criminal record; and
    1. (b)
      a person is not required to disclose to another person—
      1. (i)
        the existence of a spent conviction; or
      1. (ii)
        information in relation to a spent conviction; and
    1. (c)
      a person must not request that another person disclose—
      1. (i)
        the existence of a spent conviction; or
      1. (ii)
        information in relation to a spent conviction.

…

  1. [108]
    Section 3 provides that a ‘criminal record’, in relation to a person, means a document produced by a law enforcement agency that sets out all convictions of the person.
  1. [109]
    Section 5(1)(a)(i) relevantly defines ‘conviction’ to mean a finding of guilt by a court for an offence, whether or not a conviction is recorded by the court.
  2. [110]
    Section 6 provides that the Spent Convictions Act applies to a conviction imposed before, on, or after, the day on which the Act came into operation.
  3. [111]
    JXL says the operation and effect of s 20(1) is that he was not required to disclose his spent child convictions before working as a lay associate and when applying for admission as a legal practitioner. He further says that s 20(1) applies, and must be observed, in respect of any potential disclosure of his spent child convictions in the present proceeding.
  4. [112]
    Although not precisely delineated, JXL’s argument seems to be directed at both any requirement that might be made of him to disclose his spent child convictions, and any disclosure by the Commissioner of those matters, for the purpose of this proceeding.
  5. [113]
    In respect of the Commissioner, I consider any disclosure by her of JXL’s spent child convictions is permitted by the express terms of the Spent Convictions Act.
  6. [114]
    Section 21(1) of the Act relevantly permits a ‘law enforcement agency’ to disclose a spent conviction to a court for the purposes of performing a function or exercising a power under any Act, or for the purpose of enabling the court to perform a function or exercise a power under any Act. The definition of ‘law enforcement agency’ in s 3 of the Act includes ‘an agency responsible for the performance of functions or activities directed to any law enforcement function’. The definition of ‘law enforcement function’ in s 3 includes ‘the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction for a breach’.
  7. [115]
    The Commissioner asserts, and I accept, that the Legal Services Commission is a ‘law enforcement agency’ and that it has a ‘law enforcement function’ in respect of investigating breaches of the Legal Profession Act. I consider any disclosures of JXL’s spent child convictions by the Commissioner would therefore be within the scope of the s 21 exemption to the operation of s 20(1).
  8. [116]
    Section 20(1) of the Spent Convictions Act is similar in its effect and operation to s 5(2) of the CLROA. In contrast to the absence of oral submissions about the Spent Convictions Act, JXL made extensive oral submissions about the CLROA during the hearing of this application. Accordingly, it is convenient and appropriate to address the remaining arguments JXL makes about the operation and effect of s 20(1) after considering s 5(2) of the CLROA.

CLROA, s 5(2)

  1. [117]
    The long title of the CLROA states it is an ‘Act to provide with respect to the rehabilitation of persons convicted for offences and for related purposes’. The CLROA gives effect to the principal purpose stated in its long title by establishing a regime pursuant to which, subject to particular exceptions, certain matters are excluded from a person’s ‘criminal history’; a ‘conviction’ recorded against a person must not be disclosed once the relevant ‘rehabilitation period’ for the conviction has expired; and a person previously convicted of an offence may lawfully deny the conviction and may not be asked or required to disclose a conviction that is not part of their criminal history.
  1. [118]
    Section 3(1) of the CLROA defines the following fundamental terms:

charge means an allegation formally made in court that a person has committed an offence where—

  1. the allegation is not pursued to a final determination in a court; or
  2. a conviction is not recorded by a court in respect of the allegation; or
  3. a conviction recorded by a court in respect of the allegation is to be deemed, pursuant to law, not to be a conviction.

conviction means a conviction by or before any court for an offence, whether recorded, in Queensland or elsewhere, before or after the date of commencement of this Act.

criminal history means, in relation to any person, the convictions recorded against that person in respect of offences.

  1. [119]
    Section 3(3) further provides that for the CLROA:

A provision of law or rule of legal practice that requires or authorises disclosure of convictions or charges made against any person shall be construed as requiring or authorising disclosure of the criminal history of that person.

  1. [120]
    Section 4 of the CLROA sets out important provisions concerning the construction of the CLROA. It states:

4   Construction of Act

  1. This Act shall be construed so as not to prejudice any provision of law or rule of legal practice that requires, or is to be construed to require, disclosure of the criminal history of any person.
  2. This Act shall be construed so as not to relieve any person from a responsibility that rests on the person to disclose his or her criminal history in connection with seeking admission to or offering himself or herself for selection for any profession, occupation or calling prescribed by regulation.
  3. This Act shall not be construed to prohibit or hinder the provision by any person of particulars of the criminal history of any person to a Crown prosecutor, a police prosecutor or other person prosecuting upon a charge of an offence with a view to those particulars being disclosed to the court in the event of the defendant being convicted.
  1. [121]
    Section 5 deals with matters that are excluded from a person’s criminal history. It states:

5 Matter excluded from criminal history

  1. It is declared that a conviction that is set aside or quashed and a charge are not part of the criminal history of any person.
  2. A person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person’s criminal history or of the criminal history of another person or a charge made against the person or another person.
  1. Subsection (2) does not apply where the requirement or request to disclose a conviction or charge therein referred to is made—
    1. (b)
      for the purposes of an inquiry being conducted pursuant to authority conferred by or under an Act; or
    1. (c)
      in criminal or civil proceedings before a court if the fact of the conviction or charge is relevant to an issue in the proceedings or the court has granted permission for the requisition or request to be made.
  1. [122]
    JXL says s 5(2) protects disclosure of his spent child convictions. He says this follows from the fact that the Children’s Court of Victoria did not record convictions in respect of the matters for which he was dealt with and therefore, according to the definitions of ‘conviction’ and ‘criminal history’ in s 3(1), those convictions do not form part of his criminal history.
  2. [123]
    In response to this point, the Commissioner relies upon the exception in s 5(3) and also the specific exceptions in s 9A, where there is a duty of disclosure in certain cases. Section 9A operates as an exception to s 9, which relevantly states:

9 Duty to disregard certain convictions

  1. Subject to subsection (2), any person or authority charged with the function of assessing a person’s fitness to be admitted to a profession, occupation or calling or for any other purpose shall disregard any conviction that is part of the person’s criminal history in relation to which the rehabilitation period has expired and which has not been revived in respect of the person unless—
    1. (a)
      the person to be assessed is expressly required by law to make disclosure of his or her criminal history; or
    1. (b)
      the person or authority making the assessment is expressly required by law to have regard to the criminal history of the person to be assessed; or
    1. (c)
      the person to be assessed is, by reason of section 4, not relieved from responsibility to disclose his or her criminal history.
  2. The provisions of subsection (1) do not apply where an assessment is to be made of an offender with a view to a court, or the Parole Board Queensland established under the Corrective Services Act 2006, making an appropriate order in relation to the person.
  1. [124]
    Section 9A then relevantly states:

9A Disclosure of particulars in special cases

  1. Notwithstanding any other provision of this Act, a person who is an applicant for a position, office or status specified in column 1 of the following table and who is requested or required in furtherance of the person’s application to furnish the information hereinafter in this subsection referred to shall disclose—
  1. the person’s criminal history concerning offences specified in column 2 and set opposite the position, office or status applied for; and
  2. convictions recorded against the person in respect of offences specified in column 2 and set opposite the position, office or status applied for, being convictions that pursuant to any law are to be deemed not to be convictions…
  1. [125]
    Item 20 of column 1 within the table that follows, specifies the position, office or status of ‘[a]n applicant for admission to the legal profession under the admission rules made under the Supreme Court of Queensland Act 1991, section 85’. Column 2 of the table specifies the corresponding information to be disclosed in respect of item 20 as ‘[c]ontraventions of any law whether committed in Queensland or elsewhere’.
  2. [126]
    Both parties made detailed submissions about whether these various provisions of the CLROA impacted upon JXL’s disclosure requirements under ss 26 and 34 of the Legal Profession Act. The Commissioner’s case is that s 3(3) and one or more of the exceptions in ss 5(3) or 9A of the CLROA apply and, irrespective, ss 9(1)(e) and 11 of the Legal Profession Act and the overriding duty of an applicant for admission to the legal profession to make full and frank disclosure requires disclosure of spent convictions regardless of the provisions of the CLROA. JXL’s case is that the exceptions in ss 5(3) and 9A of the CLROA do not apply, that s 5(2) does, and that he was not required to disclose his spent child convictions by reason of ss 9(1)(e) and 11 of the Legal Profession Act or otherwise.
  3. [127]
    JXL makes similar types of arguments in respect of s 20(1) of the Spent Convictions Act. The Commissioner contends that s 20(1) did not apply at the relevant times that are the subject of the alleged failures to disclose the spent child convictions, because JXL commenced employment as a lay associate in 2017 and applied for admission in 2020, before the Act commenced operation. However, JXL maintains that s 20(1) does apply, because it is given retrospective application by s 6 of that Act.
  4. [128]
    It is not necessary, nor appropriate, that I attempt to resolve these disputed issues at this stage. These are the very matters that I will need to determine once I have fully heard the Commissioner’s substantive application. As I have noted, at present I am only considering the operation and effect of the various legislative provisions JXL relies upon for the purposes of his application for a closed court hearing of the Commissioner’s substantive application.
  5. [129]
    In order to determine the present application, I will simply assume for present purposes that JXL’s arguments about s 5(2) of the CLROA or s 20(1) of the Spent Convictions Act are correct.
  6. [130]
    However, it does not automatically follow from making that assumption in favour of JXL that I would make an order for a closed court. JXL must still satisfy me that the interests of justice require such an order to be made.

Do the interests of justice require an order for a closed court?

  1. [131]
    I do not consider s 5(2) of the CLROA or s 20(1) of the Spent Convictions Act provide a proper basis to make an order for a closed court.
  2. [132]
    No benefit, right or privilege that JXL may have under either s 20(1) of the Spent Convictions Act or s 5(2) of the CLROA will be precluded or prejudiced simply because the Commissioner’s substantive application may be heard in open court. He will not be ‘required’ to disclose his spent child convictions. He will not be ‘deprived of the protection that is otherwise contemplated by the legislation’.
  3. [133]
    Further, even if JXL’s arguments are correct, impermissible disclosure would still occur at the hearing of the substantive application, contrary to s 5(2) of the CLROA at least, by the Commissioner adducing evidence or making submissions about his spent child convictions, irrespective of whether the court is closed.
  4. [134]
    It seems that the real reason why JXL seeks an order for a closed court is because he is concerned that if the court is open, any member of the public may attend and be present during the hearing of the substantive application and they may therefore hear of his spent child convictions. If that were to happen, it would most likely occur during the submissions of the parties. His fear seems to be that if the matter proceeds in open court and it ultimately turns out that his arguments were correct and he did not need to disclose his spent child convictions before working as a lay associate or when applying for admission to the legal profession, there will have been impermissible and unnecessary disclosure during the hearing, which may cause him embarrassment or some type of reputational harm.
  5. [135]
    I do not consider those factors tip the balance in favour of an order for a closed court.
  6. [136]
    It must be borne firmly in mind that an order for a closed court is an exception to the principle of open justice. The principle of open justice is fundamental and of paramount importance to our system of justice. The Commissioner’s substantive application concerns matters of importance to the administration of justice and it is very much in the public interest for the proceeding to be open and able to be freely observed and reported upon, as far as practicable.
  7. [137]
    I am not satisfied an order for a closed court is required in the interests of justice.

Orders

  1. [138]
    I make the following orders:
    1. The Commissioner’s application for pseudonym orders is dismissed.
    2. JXL’s application for a closed court is dismissed.
    3. The question of costs of each application is reserved.

Footnotes

[1]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[2]GHJ v Secretary to the Department of Justice and Community Safety [2019] VSC 89, [15] (Ginnane J).

[3][2023] VSC 479 (Gorton J).

[4]Ibid [2] (Gorton J).

[5][2021] VSCA 115.

[6][2023] VSC 320 (‘Taylor’).

[7]Ibid [17].

[8] Ibid [19], citing various statutory provisions, including s 534 of the CYFA.

[9](2001) 118 FCR 308 (‘Hinchcliffe’).

[10] Ibid 323 [53].

[11] Ibid 324 [54], quoting Re Edelsten; Ex parte Donnelly (1988) 18 FCR 434, 436 (Morling J).

[12]Taylor, [23].

[13][2023] VSC 61.

[14]Ibid [20]–[22] (footnotes omitted).

[15]John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344, 352–3 [17]–[20] (Spigelman CJ); J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10, 44–5 (Fitzgerald P and Lee J) (‘L & A Services’).

[16]Scott v Scott [1913] AC 417, 441 (Earl of Halsbury); Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J).

[17]L & A Services, 44 –5 (Fitzgerald P and Lee J).

[18]Emanate Legal Services Pty Ltd v Hood (2021) 7 QR 575, 589 [32] (Brown J, Fraser and McMurdo JJA agreeing), citing Attorney-General v Leveller Magazine Ltd [1979] AC 440.

[19]PQR v Secretary, Department of Justice and Regulation (No 1) (2017) 53 VR 45, 70–1 [66]

[20] Ibid 70 [65] (Bell J).

[21]L & A Services, 44 (Fitzgerald P and Lee J).

[22]Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19, [4] (Santamaria, Ferguson and McLeish JJA), citing ABC v D1; Ex parte The Herald & Weekly Times Limited [2007] VSC 480, [65]–[71] (J Forrest J).

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v JXL

  • Shortened Case Name:

    Legal Services Commissioner v JXL

  • MNC:

    [2023] QSC 283

  • Court:

    QSC

  • Judge(s):

    Crowley J

  • Date:

    15 Dec 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ABC v D1 and Ors; ex parte the Hearld and Weekly Times Ltd [2007] VSC 480
1 citation
Jump To
Cite 1 - [2007] VSC 480
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
1 citation
Jump To
Cite 1 - [2009] HCA 41
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
1 citation
Jump To
Cite 1 - (2009) 239 CLR 27
Attorney-General v Leveller Magazine Ltd (1979) AC 440
1 citation
Jump To
Cite 1 - (1979) AC 440
Emanate Legal Services Pty Ltd v Hood(2021) 7 QR 575; [2021] QCA 94
2 citations
Jump To
Cite 1 - [2021] QCA 94
Cite 2 - (2021) 7 QR 575
Gibbons v Wright (1954) 91 CLR 423
2 citations
Jump To
Cite 1 - (1954) 91 CLR 423
Cite 2 - (1954) 91 CLR 423
Hamill v Wright [2018] QSC 197
2 citations
Jump To
Cite 1 - [2018] QSC 197
Cite 2 - [2018] QSC 197
Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308
1 citation
Jump To
Cite 1 - (2001) 118 FCR 308
Hinchcliffe v Commissioner of Australian Federal Police [2001] FCA 1747
1 citation
Jump To
Cite 1 - [2001] FCA 1747
J v L & A Services Pty Ltd[1995] 2 Qd R 10; [1993] QCA 12
3 citations
Jump To
Cite 1 - [1993] QCA 12
Cite 2 - [1995] 2 Qd R 10
Cite 3 - [1995] 2 Qd R 10
John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344
1 citation
Jump To
Cite 1 - (2004) 61 NSWLR 344
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324
1 citation
Jump To
Cite 1 - [2004] NSWCA 324
Russell -v- Russell (1976) 134 CLR 495
1 citation
Jump To
Cite 1 - (1976) 134 CLR 495
Russell v Russell [1976] HCA 23
1 citation
Jump To
Cite 1 - [1976] HCA 23
Scott v Scott [1913] UKHL 2
1 citation
Jump To
Cite 1 - [1913] UKHL 2
Scott v Scott (1913) A.C., 417
1 citation
Jump To
Cite 1 - (1913) A.C., 417

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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