EES v SDH [2025] QMC 15

MAGISTRATES COURTS OF QUEENSLAND CITATION: EES v SDH [2025] QMC 15 PARTIES: EES (Aggrieved) v SDH (Respondent) And Commissioner of Police (Applicant) FILE NO/S: MAG-00025851/24(2) DIVISION: Magistrates Courts PROCEEDING: Domestic Violence – Authorisation to Publish Information ORIGINATING COURT: Brisbane DELIVERED ON: 24 April 2025 DELIVERED AT: Brisbane HEARING DATES: 11 April 2025 MAGISTRATE: Judge J M Brassington, Chief Magistrate ORDER: Order as per paragraph 75 CATCHWORDS: Domestic and Family Violence Protection Act 2012 – Section 159(2)(a) COUNSEL: M. Nicholson for the Commissioner of Police SOLICITORS: C. Gnech, Gnech and Associates for Respondent Queensland Police Service for Applicant -- 1 of 20 -- 2 [1] On 13 February 2024 an application for a protection order (by way of a police protection notice) was heard in the Brisbane Magistrates Court. The aggrieved was EES.1 The respondent was SDH.2 SDH was a police officer. On that day a temporary protection order was made. [2] The application was contested. Directions for filing additional material by the parties were made and the application was heard by Magistrate Kelly on the 15 th August and 23rd October 2024. On 5 November 2024 her Honour dismissed the application for a protection order. A copy of her reasons has been transcribed. [3] Relevantly, for this matter her Honour considered the evidence and noted that: SDH disputes two of three elements of section 37.3 He maintains that they were not in a couple relationship. He conceded there were acts of domestic violence but that an order was not necessary or desirable.4 [4] As to the concession made by SDH her Honour found: ..so the second issue, under s. 37, is – were there acts of domestic violence, and it is conceded by SDH that his conduct in the recordings, marked exhibit 4, do amount to acts of domestic violence. I would certainly have found that if the concession had not been made. There is clearly verbal and psychological abuse and threats and threatening behaviour contained within those recordings. I will not further consider the second limb of section 37.5 [5] She sets out some of the contents of exhibit 4 in her decision: The recording in exhibit 4 contain exhortations by SDH to EES to respond to his Snapchat messages, and done so in a demanding, entitled, and intimidating way. There are references to retribution for EES not responding to SHD’s Snapchat message. There are accusations that she is playing games with him..6 [6] While her Honour found there was a relevant relationship between SDH and EES she concluded that a protection order was not necessary or desirable to protect EES from domestic violence. [7] On the 16th of May 2024 a discipline investigation was opened by Ethical Standards Command into the conduct of SDH. That investigation was initially conducted by Detective Sergeant Creedon.7 Detective Sergeant Creedon sought to interview SDH on 31 January 2025. That interview was postponed when the legal representatives of SDH raised concerns about the access of Ethical Standards Command to the material filed in the application. Issues as to the existence of a Harman Undertaking were raised.8 Legal advice and the subsequent decision of MMM v FFF & Anor [2025] QMC 8 led to the reallocation of the 1 A pseudonym 2 A pseudonym 3 Section 37 of the DV Act provides that a Court may make a protection order if satisfied that (1) a relevant relationship exists between the aggrieved and respondent (2) the respondent committed domestic violence against the aggrieved and (3) the protection order is necessary or desirable to protect the aggrieved from domestic violence. 4 Decision p. 4 lines 33 - 34 5 Decision p. 13 lines 23 - 29 6 Decision p. 11 lines 10 – lines 43 - 48 7 Affidavit of Detective Superintendent Jackman filed 27 March 2025 (“the Jackman Affidavit”), para. [10] and [11]. 8 Jackman Affidavit, para. [11] -- 2 of 20 -- 3 investigation so that the new investigator would not have access to the material filed in the domestic violence proceeding unless and until leave was granted by the Court.9 [8] The aggrieved, EES, has consented to the release of court documentation.10 The respondent, SDH, declined to provide consent.11 [9] On 28 March 2025 the Commissioner of Police (the Commissioner) applied to the Magistrates Court at Brisbane for the following orders: 1. That pursuant to s. 159(2)(a) the Queensland Police Service is authorised for the purposes of its investigation in accordance with Division 4 subdivision 1 of the Police Service Administration Act 1990 (PSAA) to publish information relating to proceeding MAG-00004464/24 and MAG – 00025851/24(2). 2. That pursuant to s. 160(2)(c) of the Domestic and Family Violence Protection Act 2012 (the DFV Act) the Queensland Police Service is expressly authorised to obtain a copy of the record or document from the Magistrates Court of Queensland. [10] The application was heard by me on 11 April 2025. These are the reasons for my decision. Why Is an Application Necessary? [11] Section 158 of the DFV Act provides that a Court hearing an application under that Act is not open to the public unless the court opens part of the proceeding for a specific purpose. Sections 159 provides for restriction of publication of information related to domestic violence proceedings, including protection order applications: (1) A person must not publish— (a) information given in evidence in a proceeding under this Act in a court; or (b) information that identifies, or is likely to lead to the identification of, a person as— (i) a party to a proceeding under this Act; or (ii) a witness in a proceeding under this Act (other than a police officer); or (iii) a child concerned in a proceeding under this Act. Maximum penalty— (a) for an individual—100 penalty units or 2 years imprisonment; or (b) for a corporation—1000 penalty units. (2) However, subsection (1) does not apply— (a) if the court expressly authorises the information to be published; or (b) if each person to whom the information relates consents to the information being published; or (c) to the display of a notice in the premises of a court; or (d) to the publication of information for the purpose of a recognised series of law reports or an official website for the publication of judgments, if the 9 Jackman affidavit, para. [12] and [13]. 10 Jackman affidavit, para. [15] and Exhibit 1. 11 Jackman affidavit, para. [14] -- 3 of 20 -- 4 information does not identify, and is not likely to lead to the identification of, a person mentioned in subsection (1)(b); or (e) to the publication of information for approved research, if the information does not identify, and is not likely to lead to the identification of, a person mentioned in subsection (1)(b); or (f) if the publication is expressly permitted or required under this or another Act; or (g) if the publication is permitted under a regulation. (3) In this section— information includes a photograph, picture, videotape and any other visual representation. publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication. [12] Section 160 of the DFV Act has a prohibition on obtaining copies of a document for a proceeding: (1) A person is not entitled to a copy of— (a) any part of the record of a proceeding under this Act; or (b) any document used or tendered in a proceeding under this Act. [13] Section 160(2) provides relevantly that the prohibition does not apply to a party to the proceeding12 or to a person expressly authorised by the court to obtain a copy of the record or document.13 [14] The effect of the provisions is that while under s. 160 of the DFV Act a party to a proceeding is entitled to a document or a part of the record that party cannot publish information that identifies or is likely to identify a person as a party to a proceeding or information given in evidence in a proceeding14 unless one of the exceptions in s. 159(2) applies. [15] A person who is not a party to the proceedings is not entitled to any part of the record of the proceedings or any document used or tendered in a proceeding under the Act unless one of the exceptions in s. 160 (2) applies and they too must not publish the material unless one of the exceptions in s. 159(2) of the Act applies. [16] In AAA v BBB [2017[ QMC 25 I considered the meaning of publish in the context that a respondent wished to make a complaint to the Office of the Australian Information Commissioner (OAIC) and found that while publish was defined in a relatively restrictive manner in s. 159(3) of the Act it was still wide enough to capture publication of affidavit material filed in the proceeding to the OAIC for the following reasons [18]: The narrowed definition in s. 159(3) protects routine communications from attracting criminal liability. The Explanatory Notes for the Bill set out both the rationale for the confidentiality provisions and possibly exempt communications15: 12 Section 160(2)(a) of the DV Act. 13 Section 160(2)(c) of the DV Act. 14 Section 159(1) of the DV Act. 15 Domestic and Family Violence Protection Bill 2011 Explanatory Notes (https://www.legislation.qld.gov.au/view/html/inforce/current/act-2012-005#sec.159) -- 4 of 20 -- 5 The Bill proposes that domestic violence proceedings be conducted in a closed court and that there be restrictions on publishing information about proceedings to the public. …… Clause 159 of the Bill prevents information given in evidence or information that is likely to identify, or lead to the identification, of a party, witness, or child concerned in proceedings under the Bill from being published to the public. A person who publishes such information can be prosecuted. The maximum penalty for an individual is 100 penalty units or 2 years imprisonment and for a corporation is 1,000 penalty units. This provision complements the ‘closed court’ provisions of clause 158. Publish is defined in clause 159(3) in terms of publishing ‘to the public’. This is wider than the current meaning of publish in section 82 of the Domestic and Family Violence Protection Act 1989, which also refers to ‘a section of the public’. This means that the Bill does not need to specify all of the exemptions that are referred to in the current provision. The proposed definition of publish will not include a person who is required to copy or forward documents to another person where this is undertaken in the course of representing or assisting a person who is involved in proceedings. The exceptions, set out in clause 159(2), include: circumstances where the court orders publication; notices which are displayed in court; publication of genuine research or in a recognised series of law reports, where individuals are not able to be identified; or where consent has been obtained by the individuals to whom the information relates. It is considered that these provisions effectively balance the need to protect individuals from the publication of highly sensitive and personal information and the need to facilitate the openness and accountability of court processes. Court processes are still subject to scrutiny, through publication in recognised law reports and genuine research, and also through the appeal provisions in part 5, division 5 of the Bill. Further, a court has the discretion to open a court in appropriate circumstances.16 However, none of the examples provided at p. 83 of the notes fit the particular situation in this application: Subclause 159(3) defines information and publish for the purposes of the provision. The definition of publish refers to publishing to the public which is more limited than the definition of publish in section 82 of the Domestic and Family Violence Protection Act 1989. The reason for the prohibition to be limited to publication to the public is to ensure that necessary communication of information related to the proceedings is not hampered. For example, this definition will not prohibit information about the parties to a proceeding from being disclosed in the following circumstances: 16 Ibid, p.19 - 20 -- 5 of 20 -- 6 • a clerk in the Magistrates Court can provide a copy of a court list to a person who is employed by a domestic violence support service to provide court support for persons involved in proceedings • a person named as an aggrieved in a domestic violence order can notify the principal of a school attended by the person’s child that the order prohibits the child’s father from having contact with the child and that the police should be called if the father presents at the school • a person named as an aggrieved in a domestic violence order can provide a copy of the order to a government department that provides housing assistance to support a claim for priority housing • a person named as a respondent in a domestic violence order can provide a copy of an order to a service provider that the respondent approaches to seek assistance in addressing the person’s behaviour. The examples in the explanatory notes focus on the publishing of information to facilitate the court processes or the protection of the aggrieved by disclosure of an existing court order (that technically does reveal the names of parties to the proceeding). None of the examples involve the disclosure of sensitive information to the extent sought in this application. Publication to the OAIC of a document containing such personal material is I am satisfied in an entirely different category to the examples used in the section. To disseminate that material (without leave of the Court) would permit the publication of a wide variety of material on the basis that it was to be used for a legitimate purpose (i.e. to make a complaint) without any power for the Court to control the dissemination. It is not outside the realms of possibility that a person could, by making spurious complaints, circulate highly sensitive and confidential material to many persons. The whole purpose of the confidentiality provisions would be completely undermined as there would be no scrutiny of what sort of material was published to what members of the public and malicious or vexatious publication would be possible. This could not be the intent of Parliament. Publication to the OIAC would be publishing to the members of the public by a means of communication (presumably by email or letter). While the definition primarily focuses on dissemination generally or by media the definition is not restricted to that type of publication. Hence, I am satisfied that publishing the affidavit to the OIAC would constitute publishing both information given in evidence in a proceeding under this Act in a court and identifying a party to a proceeding, a witness to a proceeding and a child and the authorisation of the Court is required under s. 159(2)(a) of the DV Act to so publish the information. [17] This application proceeded on the basis that the affidavit material on the Court files contained information given in evidence in a proceeding under this Act in a court 17 and that that if the Commissioner was granted access to the affidavits a referral of those affidavits to Ethical Standards would constitute publication of the documents. I accept this premise. To define ‘public’ to exempt other police officers and persons employed in the Ethical Standards Command would mean that the control of dissemination of confidential 17 See s. 159 of the Act. -- 6 of 20 -- 7 information would be substantially undermined. In effect it would mean that the definition of ‘public’ would be restricted by such an imprecise definition as to make the protection afforded by the legislation provisional on the Commissioner’s determination of who he decided could be provided the material to use for purposes he considered appropriate. [18] Hence, the application by the Commissioner for authorisation to publish certain information in the domestic violence proceedings for the purpose of disciplinary proceedings. [19] The Commissioner already has access to the application, orders and other relevant material filed in the proceeding because of the provisions of s. 162 of the DFV Act and his role in the maintenance of records for the Queensland Police Service. Section 162 of the DFV Act provides: (1) The clerk of the court in which any of the following applications are made, or orders are granted, must give notice of the application or order to the police commissioner— (a) an application for a protection order; (b) an application for a variation of a domestic violence order; (c) an application for— (i) variation of a recognised interstate order; or (ii) registration of a New Zealand order; or (iii) variation of a New Zealand order as it is registered in Queensland or the period for which the order has effect in Queensland; or (iv) revocation of the registration of a New Zealand order; (d) an order made because of an application mentioned in paragraph (a), (b) or (c), including a temporary protection order; (e) an order made on the court’s initiative under section 42; (f) an order made by the Childrens Court under section 43. (2) The clerk must give the notice within 1 business day after the day the application is made or order is granted. [20] The office of Commissioner of Police is established under s. 4.1 of the PSAA. The Commissioner has the responsibility for the efficient and proper administration, management and functioning of the police service in accordance with the law (s. 4.8) and has, to discharge this responsibility, the power to make directions he considers necessary or convenient for the efficient and proper functioning of a police service (s. 4.9). It follows that he would have the management of documents (including affidavits, statements and exhibits prepared and filed in court proceedings including domestic and family violence proceedings) held by the Queensland Police Service. [21] In those circumstances the Commissioner has lawful possession of the relevant documents. However, save for the information sharing provisions in the DFV Act, the Commissioner has no special authorisation to utilise the information, including publishing the information, held for any purpose that he determines. I found in MMM v FFF & Anor [2025] QMC 8 (MMM) the purpose of s. 162 of the DFV Act [15]: is for the Commissioner to be able to carry out certain mandated tasks that he has under the DFV Act. For example, under s. 184 of the DFV Act a police officer must personally serve an order or varied order under the Act. There is no indication that s. 162 was intended by Parliament to give the Commissioner the power to use the information as -- 7 of 20 -- 8 he chose for a purpose other than the administration of the DFV Act and related purposes. [22] The parties have also accepted, as I have, that the Commissioner’s lawful possession of the documents would be also subject to the Harman undertaking. The Harman undertaking is an implied undertaking to the Court that documents obtained because of the compulsory processes of the Court will be used for the purpose for which they were disclosed and not for other purposes.18 HOW IS THE DECISION TO BE MADE TO AUTHORISE RELEASE OF THE DOCUMENT? [23] Sections 159 and 160 provide no guidance as to how the court should make its decision. [24] Given the application is made under the DFV Act the Court must have regard to ss. 3 and 4 of the DFV Act. Section 3 sets out the main objects of the Act: (1) The main objects of this Act are— (a) to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and (b) to prevent or reduce domestic violence and the exposure of children to domestic violence; and (c) to ensure that people who commit domestic violence are held accountable for their actions. (2) The objects are to be achieved mainly by— (a) allowing a court to make a domestic violence order to provide protection against further domestic violence; and (b) giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and (c) imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence. [25] Section 4 sets out the principles for administering the DFV Act: (1) This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount. (2) Subject to subsection (1), this Act is also to be administered under the following principles— (a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised; 18 Harman v Secretary of State and the Home Department (1982)1 AC 280 -- 8 of 20 -- 9 (b) to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act; (c) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change; (d) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics; Examples of people who may be particularly vulnerable to domestic violence— • women • children • Aboriginal people and Torres Strait Islanders • people from a culturally or linguistically diverse background • people with a disability • people who are lesbian, gay, bisexual, transgender or intersex • elderly people (e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection— (i) the person who is most in need of protection in the relationship should be identified; and (ii) only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other; (f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law. [26] The objects and principles support the finding that considerable weight needs to be afforded to the views of EES as s. 4(2)(b) of the DFV Act provides to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act. [27] In MMM I found that aspects of the considerations found relevant to the determination of whether a party should be relieved from the Harman undertaking were also of assistance in determination of applications for authorisation under the DFV Act.19 These considerations were conveniently summarised in Liberty Funding Pty Ltd and Another v Phoenix Capital Ltd (2005) 218 ALR 283: [31] In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show “special circumstances”: see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 ; 110 ALR 685 . It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of “special circumstances” does not require that some extraordinary factors must bear on the 19 MMM, para. [27]. -- 9 of 20 -- 10 question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were: • the nature of the document; • the circumstances under which the document came into existence; • the attitude of the author of the document and any prejudice the author may sustain; • whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; • the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); • the circumstances in which the document came in to the hands of the applicant; and • most importantly of all, the likely contribution of the document to achieving justice in the other proceeding. [28] I noted in MMM20, that the final consideration encompasses the principle articulated in numerous cases that a determination to lift the restraint of the implied undertaking involves a finding that release serves the public interest in achieving justice. That determination may involve a weighing of competing public interest considerations. [29] Relevantly to this application there is a significant public interest in ensuring that, as far as possible, the Court upholds the confidentiality provisions of the legislation. Failure to maintain confidentiality in proceedings could hinder or prevent access to a protective scheme. This is because if a victim of domestic violence knew that the contents of their application for a protection order, and associated documents, could be accessed by their Commissioner, or other employer,21 without their consent, for possible investigation and disciplinary action, there is a very real risk that applicants for domestic violence orders would hesitate to make such applications or to include full disclosure of intimate matters. Disclosure of such material, even with the leave of a Court, in circumstances such as these, has the real potential to inhibit the bringing of protection order applications. That outcome would undermine the objects of the DFV Act to (a) to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives;(b) to prevent or reduce domestic violence and the exposure of children to 20 Para. [24] 21 As noted in MMM [59] the protective role of the Queensland Police Service is not unique. Professions such as medicine, law, nursing, teaching all have disciplinary bodies that oversee and regulate professional conduct not to punish but to protect the public and to promote trust and confidence in the profession by demonstrating a commitment to integrity and ethical behaviour. Such bodies could mount similar arguments as used by the Commissioner to seek to investigate whether a person committed an act or domestic violence or other discreditable acts. -- 10 of 20 -- 11 domestic violence; and (c) to ensure that people who commit domestic violence are held accountable for their actions. [30] There is of course a significant, and competing public interest to ensure that the Commissioner can, by a robust disciplinary regime, maintain the appropriate standards of discipline in the Queensland Police Service. The functions of the police service are varied but they are generally directed to safeguarding and upholding the rule of law and ensuring the protection and safety of the community. The PSAA provides for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers.22 The maintenance of appropriate standards of discipline is to (i) protect the public; (2) uphold ethical standards within the service; and (iii) promote and maintain public confidence and officer’s confidence in the service. [31] The community might be very concerned if persons who had admitted, or being found by a Court to have committed acts of domestic violence were tasked with investigating domestic violence matters. Victims might hesitate to contact the police to get protection if they feared the person investigating their case had themselves committed domestic violence. Again, such an outcome would undermine the objects of the DFV Act. [32] In summary I consider that the relevant considerations for determination of an application to authorise publication of information are as follows: (1) The views of a person who has experienced or fears domestic violence; (2) The nature of the documents including the personal information included in the document; (3) The public interest in maintaining confidentiality including: a. The purpose of publication; b. The risk of further unauthorised publication; c. The risk that victims of domestic violence will be deterred from seeking protection should the Court authorise publication of certain information. (4) The public interest in upholding the ethical standards of the Queensland Police Service and the consequent public confidence in the ability of the Queensland Police Service in investigation of domestic violence offences; (5) Any prejudice to another that may be caused by the authorisation of publication of certain information; (6) Any other relevant circumstances including the protection of the public safety and the upholding of the due administration of justice. 22 Section 7.1 -- 11 of 20 -- 12 The Submissions of the Parties [33] The Commissioner submits that application is bought under s. 160(2)(c) of the DFV Act because that while the Commissioner has lawful possession of the material the limits of access for disciplinary purposes is uncertain. Hence the Commissioner seeks authorisation to formally obtain the material under s. 160 (2)(c) of the DFV Act. [34] I accept there may be uncertainty as to the limits of the Commissioner’s access and use of material related to domestic violence proceedings. A party to a protection order application is entitled to the record and any document used or tendered in the proceeding. In an unpublished decision I considered the issue of whether the Commissioner was a party to a proceeding and found that he was not. The reasoning was that while the term ‘party’ is used in the DFV Act the term is not defined. Relevantly, while s. 146 of the DFV Act, which provides a party to a proceeding may appear in person or be represented by a lawyer, specifically defines party to include an aggrieved (s. 146(3)) party is not otherwise defined in the DFV Act. A police officer may be an applicant for an order (see s. 100(3)(a) and (c)). It would follow that the applicant police officer, the respondent and the aggrieved must be parties to an application. [35] The Commissioner of Police is tasked with various duties under the DFV Act and also must be notified of various matters: a. Section 36A requires the commissioner to ensure a copy of the respondent’s criminal and domestic violence history is given to the Court or inform a Court if there is no history. That duty arises specially under s. 36A(1)(a) if a police officer makes an application for a protection order. Similar provisions apply for applications for variation made by a police officer. b. With respect to intervention orders the approved provider must give the commissioner o a copy of a non-suitably notice (s. 72)(4)) o Notice of contravention of intervention order (s. 73) o Notice of completion of intervention order (s. 74) c. The commissioner must be give a copy of an application for a variation of a protection order (s. 95). d. Various provisions of the Act provide for the commissioner to keep written records of applications and decision (for example, section 100(5)). e. The clerk of the court must give the commissioner notice of applications and orders and a copy of applications and orders made under the Act (s. 162) f. The Police Commissioner has a right of appearance for an appeal (s. 167) g. The Police Commissioner is an entity for the purpose of sharing and dealing with information (Part 5A) -- 12 of 20 -- 13 [36] As already noted, the Commissioner has the responsibility for the efficient and proper administration, management and functioning of the police service in accordance with the law (s. 4.8) and to discharge this responsibility has the power to make directions he considers necessary or convenient for the efficient and proper functioning of a police service (s. 4.9). [37] I am not persuaded that any of these provisions necessarily make the Commissioner a party to a particular application (as opposed to appeal proceedings). There is a quite distinct separation of the Commissioner’s powers and duties and the duties of a police officer as an applicant in proceedings. Hence, to take possession of certain information for disciplinary proceedings and to publish that information to the Ethical Standards Commission may require the authorisation of the Court. [38] The Commissioner submits that the relevant factors in this application are: (1) The consent of the aggrieved to disclosure (2) The purpose of the investigation which is not to punish the individual but to provide a system of guiding, correcting and rehabilitating and if necessary the discipline of police officers and to ensure appropriate standards of discipline are maintained within the QPS to protect the public and uphold ethical standards within the QPS and promote and maintain public confidence and officers confidence in the QPS; (3) The Ethical Standard Command will maintain confidentiality; and (4) Sensitive or personal information can be redacted. [39] Mr Gnech, for SDH, submits that the applicant, in reliance on the principles for release of the Harman undertaking, must show special circumstances justifying release. He relies on the considerations in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd as previously cited.23 He also notes the factors discussed in MMM, namely: • The significant public interest in ensuring as far as possible, the Court upholds the confidentiality provision of the legislation. Failure to maintain confidentiality in proceedings could hinder or prevent access to a protective scheme. • Authorisation of access to the proceedings will mean SDH’s reasonable expectation to confidentiality in a domestic violence proceeding will be set aside. [40] I consider that, aside from potential differences in emphasis, the parties' submissions regarding the relevant considerations are largely aligned. [41] Mr. Gnech raises two further issues that he argues justify dismissal of the application. [42] Firstly, the QPS pursued a discipline interview with SDH while already in possession of documents filed with the Court in these proceedings in breach of the law. Further because of previous decisions in other jurisdictions the QPS cannot claim that they were ignorant of the law. He submits: 23 Para. [8] of the respondent’s submissions -- 13 of 20 -- 14 These circumstances outline an extraordinary situation and is a compelling factor in favour of dismissing the application. It is submitted it is entirely unacceptable for the QPS to essentially engage in criminal breaches of the Act and then ask the Court to cure those breaches. The Commissioner of Police is the only employer in the state who has the privileged access to this material and should have demonstrated more restraint and responsibility in the management and use of the information.24 [43] Secondly, he argues that the state of the application is so unsatisfactory that it justifies dismissal. In particular, he submits: • The affidavit of Jackman is deficient in information of exactly how Jackman or the Ethical Standards Command became aware of the protection notice, the making of the temporary protection order, the filing of material and the determination of the application. • The affidavit of Jackman is hearsay upon hearsay. • The other police officers who were tasked with the investigation (Officers’ Creedon and Pickett) have not given details of their access. • The affidavit of Jackman fails to explain why the material is necessary and how the investigation is impeded. There is no evidence of evidence of this nature and this means the application fails. [44] In summary he submits: In light of all the circumstances, it is submitted that the application, together with the supporting evidence, is grossly inadequate to meet any initial threshold. Furthermore, it certainly does not satisfy the elevated threshold of ‘extraordinary special circumstances’ required to justify breaching the critical confidentiality protections inherit in the Queensland domestic violence legislative framework. The application has not produced evidence to demonstrate a public interest argument justifying the release of the material. Conclusions on Dismissal for Misuse of the Material [45] There is some support for the respondent’s contention that the possible breach by the Commissioner of ss. 159 and 160 may be a relevant factor in the dismissal of an application. There is authority that when considering the release of a Harman undertaking the conduct of the parties is a relevant consideration. In Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95 the Full Court of the Federal Court held: [108] These considerations may well be relevant in a case where a person has sought to obtain some forensic advantage by refraining from seeking appropriate orders in advance of using the relevant documents the subject of the Hearne v Street obligation. If a breach is found then, as Yates J said in Forty Two at [95], the breach will always be a significant concern. But where, as here, any assumed breach was the result of the lawyers reasonably not appreciating that there might be a Hearne v Street issue, or reasonably taking a position in good faith that the Hearne v Street obligation did not apply 24 Para. [15] and [16] of the respondent’s submissions -- 14 of 20 -- 15 to the documents and no forensic advantage was sought to be or was in fact obtained by the failure to seek, or a decision to refrain from seeking, appropriate orders, the guiding consideration should be whether orders would have been made had they been sought before the use was made of the documents. In the present case, the answer to that issue would undoubtedly be in the affirmative in the circumstances we have described above. [46] The Full Court explicitly states at [106] that: The fact that orders were not sought by the respondents before they made use of the information in the Jones FASOC and Jones 2 FAD is not a reason to withhold orders releasing them from the obligation (if it exists, which we consider it does not) and granting leave to use the documents for the purpose of the Napier proceeding retrospectively. As in Slea at [44]: It is important to properly characterise the nature of the obligation breached by the litigant, and the relevant conduct of the party found in breach. The breach found by Almond J involved the consideration of a complex factual matrix and uncertain law. There was a genuine dispute over the question whether a breach had occurred at all. This was not a case of flagrant breach of an order of the Court, or of an order only amenable to adjustment on appeal. It did not involve special circumstance that would require a step to be taken by the Connective Companies to rectify a state of affairs (such as the return of a child to jurisdiction) before justice could be achieved. The impugned conduct involved the initiation of a proceeding which would thereafter continue under the supervision and management of the Court. [47] The only evidence before me as to the reasons for the use of documents is the Affidavit of Jackson where he relevantly states:25 Following the court decision on 5 November 2024 Detective Sergeant Creedon progressed the discipline investigation and sought to interview the respondent on 31 January 2025. I am aware that representations made by legal officers acting for the respondent raised issues surrounding the Harman Undertaking in respect to this matter. Detective Sergeant Creedon subsequently sought advice from the Professional Practice Manager of the State Case Management Unit. The interview with the respondent was subsequently postponed to occur on a date to be fixed. I am aware of a recent decision by Chief Magistrate Brassington in response to an application made by the Commissioner of Police seeking leave under the DV Act to obtain and publish material for the purposes of a disciplinary investigation. As a result, consideration was given to reallocating responsibility for the investigation into the contact of SDH to a new investigator, to ensure the integrity of the investigation, to the extent that the new investigator. 25 Jackson Affidavit, para. [12] -- 15 of 20 -- 16 [48] Mr. Gnech has referred to me the decision of ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85 to demonstrate that the QPS should have been on notice with respect to the issues surroundings ss . 159 and 160 of the DFV Act. That decision was a review of disciplinary finding and sanctions imposed by the respondent. Some of the disciplinary findings concerned domestic violence allegations. Relevantly at para. [100] the acting senior member records that the applicant objects to the Tribunal referring to material used in the domestic violence proceedings involving the applicant’s application for a protection order against DEF and DEF’s application taken by the Queensland Police Service on her behalf for a protection order against the applicant. The acting senior member upholds Assistant Commissioner Carless’s possession of the documents [101]: I accept the respondent’s submission that the Queensland Police Service or DEF26are parties to the proceedings and they are entitled to the copies of documents used in the proceedings. [49] The acting senior member references s. 160 of the DFV Act. The acting senior member then notes that in any event he does not rely on the documents as he has relied on the applicant’s own admissions. The acting senior member finds that for this reason there is no utility in acceding to the applicant’s request to remove domestic violence proceeding documents from the material and he declines to do so. [50] I do not understand that the acting senior member has in any way criticised Assistant Commissioner Carless for the possession and use of the documents. Rather the acting senior member determines not to rely on the domestic violence documentation as he has concerns about the unreliability of untested material given in other proceedings in the context of a bitter family breakdown in which allegations are made for some perceived advantage in the fight for children and property. The acting senior member avoided reliance of affidavits containing allegation and counter-allegation.27 [51] I consider it open to consider that anyone reading the decision may well not consider that the use of the documents produced in the domestic violence proceedings was in any way criticised and indeed was to some extent sanctioned. [52] Given my previous discussion as to who is a party to a proceeding and the difference between the lawful possession of documents (which the Commissioner undoubtedly has) and the use of those documents without authorisation in unrelated proceedings I obviously have found that the issue is considerably more complex then was explored in the decision of ABC. However, I see no reason to reject the statement of Jackson that the full extent of the protection was not appreciated until publication of the decision of MMM. [53] In those circumstances I am not satisfied that the conduct of the Commissioner or the Ethical Standards Command was deliberate disregard of the law and that the circumstances do not justify the summary dismissal of the application. [54] As to the second preliminary point raised by the respondent – the content of the application – I consider that is conveniently dealt with in considering the substance of the application. 26 The aggrieved 27 See para. [103] -- 16 of 20 -- 17 Conclusions on Application [55] I turn to the substance of the application. [56] I consider the following are the relevant considerations in this case: The Consent of the Aggrieved [57] The aggrieved, EES, consents to publication and the use of the documents. Section 4(2)(b) of the DFV Act provides that to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act. Upon the admission of SDH in the proceeding EES has experienced domestic violence. Hence her views have to be had regard to when considering the application. I should note that the presence of consent in some ways may be of less weight than active opposition of an aggrieved. Active opposition of an aggrieved may mean a decision to release information may cause distress to an aggrieved that cannot be ameliorated by any action of the Court. This will mean that the determination of the Court may be in conflict with the paramount principle that the DFV Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.28 In those circumstances authorisation would only be appropriate if the order would, in other ways, promote the safety, protection and wellbeing of people who fear or experience domestic violence. For example, it may be that the material is so compelling to demonstrate that a police officer has perpetrated significant acts of domestic violence that not to authorise release of the material to the Commissioner for investigation would cause people who fear or experience domestic violence to hesitate in seeking police protection because of the presence of police credibly suspected of committing domestic violence. [58] SDH has submitted an affidavit where he swears that he has been the victim of domestic violence perpetrated by EES. He notes29 that had he considered he was in a relevant relationship he would have bought an application. Given the complexity of the relationship as canvassed by Magistrate Kelly in her reasons I can accept that some actions of EES, would if accepted by a Court constitute domestic violence. However, I also note that his opposition to the release of material is in the context of his being subject to a disciplinary investigation where his private conduct might well ultimately be found to be misconduct as it meets the criteria cited in ABC v Assistant Commissioner Maurice Carless: (a) it is of such a nature as to erode public confidence in the police service; or (b) it may be regarded as morally or socially blameworthy in a policeman; or (c) it affects the police officer’s fitness to discharge his duties as a police officer (d) it clearly affects the status and authority of the police officer in the discharge of his public duties.30 28 Section 4(1) of the DFV Act. 29 Para. [10] of his affidavit. 30 Para. [140] -- 17 of 20 -- 18 The Nature of the Documents [59] The Commissioner seeks the Court records of the proceedings which will include affidavits, recordings and the decision of Magistrate Kelly. The most compelling aspect of the documents sought is the concession of the SDH that his conduct in the recordings, marked exhibit 4, do amount to domestic violence.31 Exhibit 4 is a disc with recorded messages. As Magistrate Kelly records: They are messages sent by SDH to EES. The messages and the recordings are in the main threatening, intimidating, abusive, aggressive, demanding, manipulative and concerning. Some of the references to things are confusing, but the general gist of the messages are that SDH is attempting to dominate EES by having her answer the messages on Snapchat; demanding that she send sexual images to him; berating her for her conduct with other men. They were undated but accepted that at least some of the recordings were from February 2024. I am not listing all the words that are said in the messages, but there are many concerning statements made by SDH within those recordings, including one quote, “You have a lot – a lot to make up for, let me tell you. And I guarantee you I will ruin you and ruin your entire future”.32 The public interest in maintaining confidentiality including: (1) The purpose of publication; (2) The risk of further unauthorised publication; (3) The risk that victims of domestic violence will be deterred from seeking protection should the Court authorise publication of certain information. [60] There is significant public interest in maintaining confidentiality. It has been recognised that open courts or publication of identifying information may deter victims from reporting domestic and family violence or seeking the protection from the Court for fear that their private and sensitive information could become known to others.33 It is a human right not to have a person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and not to have a person’s reputation unlawfully attacked.34 There is significant public interest in ensuring that a victim of domestic violence is not deterred from seeking protection out of fear that their employer, or another interested person, will have access to deeply personal information. Authorisation of access over-rides the existing confidentiality principles and thus discourage victims of domestic violence from accessing a protective scheme and risks undermining the very objects of the legislative scheme which is to maximise the safety, protection and wellbeing of people who fear domestic violence as set out in s. 3 of the DFV Act. [61] In this case the certain information sought is to be published by the Commissioner to the Ethical Standards Command. In those circumstances there is little risk of further unauthorised publication at large. 31 32 See p. 6 – 7, Decision of Magistrate Kelly 33 Women’s Safety and Justice Taskforce, Hear Her Voice, Report 2 (2022) p. 375 (https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0008/723842/Hear-her-voice-Report- 2-Volume-1.pdf) 34 Section 25 of the Human Rights Act 2019. -- 18 of 20 -- 19 The public interest in upholding the ethical standards of the Queensland Police Service and the consequent public confidence in the ability of the Queensland Police Service in investigation of domestic violence offences. [62] As already discussed the purpose of the investigation by Ethical Standards Command proposes is not to punish but rather is to uphold ethical standards to maintain public confidence the ability of the QPS and its officers to investigate matters involving domestic and family violence. [63] I accept that the public, and in particular, victims of domestic violence might be very concerned if a person admitted to committing acts of domestic violence of the type described by Magistrate Kelly was tasked with investigating domestic violence matters without any further exploration by the Commissioner as to the fitness of that person to undertake such investigations. A victim of domestic violence might well hesitate to complain to police because of a lack of confidence in who might potentially investigate the matter. [64] Such such an outcome would effectively thwart the objects of the Act to maximise the safety, protection and wellbeing of people who fear domestic violence. Any prejudice to another that may be caused by the authorisation of publication of certain information [65] I accept that release of the information sought may have an effect on the welfare of SDH as he deposes in his affidavit.35 Any other relevant circumstances including the protection of the public safety and the upholding of the due administration of justice. [66] The respondent’s contention is that the application is deficient as it is vague as to why the material is necessary as the investigation can continue without the material and there is no evidence which supports the Court granting the application. [67] I don’t consider that the vagueness as to the relevance of the material is a justified criticism. If the Commissioner can’t properly access the material to determine if it would support a disciplinary investigation, then the Commissioner or his delegate cannot posit a view on how the material may assist. While EES is cooperative it is not known what her recall of events is without reference to the documentary evidence tendered in the proceeding. The most reliable information – the decision of Magistrate Kelly and Exhibit 4 – is not, without authorisation, available to the Commissioner. Conclusion [68] The DFV Act recognises, by entrusting the Court with both a power to authorise access and publication of information given in evidence in a proceeding, there are certain circumstances that justify the usual presumption of confidentiality be displaced. 35 Affidavit of SDH p. 7 -- 19 of 20 -- 20 [69] The difficulty is to identify those circumstances. Such circumstances are necessarily rare because there is a risk that any erosion of confidentiality will deter victims from seeking the protection that is the very purpose of the DFV Act. [70] The circumstances to justify authorisation must demonstrate to a Court that authorisation will best uphold the objectives of the DFV Act to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives. [71] Confidentiality is not an end in itself. The purpose of confidentiality is to promote the objects of the Act: (a) to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and (b) to prevent or reduce domestic violence and the exposure of children to domestic violence; and (c) to ensure that people who commit domestic violence are held accountable for their actions. [72] In this matter I find that there would be a very significant risk that victims of domestic violence would reasonably consider that the investigation of domestic violence by the Queensland Police Service is compromised by having a potential perpetrator investigating domestic violence matters. There is a very significant risk that victims of domestic violence may hesitate in seeking police assistance in these circumstances. This is particularly so where there is very cogent, reliable evidence available that demonstrates the commission of those acts of domestic violence and where the victim of those acts supports the authorisation application. [73] Of course a complete investigation may establish that in the complex circumstances of this matter that SDH’s conduct did not compromise his fitness to serve as a police officer. [74] To refuse authorisation in these circumstances significantly risks undermining the very objects of the Act. It follows that the interests of justice are best served by authorising publication of information relating to the relevant domestic and family violence proceeding for the purpose of investigation and authorising the Queensland Police Service to obtain a copy of the record or document filed in the proceeding including the transcript of the decision, the exhibits and the affidavits. [75] Accordingly I order: 1. That pursuant to s. 159(2)(a) the Queensland Police Service is authorised for the purposes of its investigation in accordance with Division 4 subdivision 1 of the Police Service Administration Act 1990 to publish information relating to proceeding MAG- 00004464/24 and MAG – 00025851/24(2). That pursuant to s. 160(2)(c) of the Domestic and Family Violence Protection Act 2012 the Queensland Police Service is expressly authorised to obtain a copy of the record or document from the Magistrates Court of Queensland. -- 20 of 20 --