Crime and Misconduct Commission v Peter Barron, Acting Deputy Commissioner, Queensland Police Service & Alexander (No 2) [2014] QCAT 301

CITATION: Crime and Misconduct Commission v Peter Barron, Acting Deputy Commissioner, Queensland Police Service & Alexander (No 2) [2014] QCAT 301 PARTIES: Crime and Misconduct Commission (Applicant) v Peter Barron, Acting Deputy Commissioner, Queensland Police Service and Stephen John Alexander (Respondents) APPLICATION NUMBER: OCR047-14 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 3 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Publication is prohibited of the report of Dr Ian Lynagh dated 12 November 2013. 2. The Tribunal’s reasons for decision dated 13 May 2014 may be published (other than to the parties to the proceedings) only in a format which does not disclose the contents of the report of Dr Lynagh. 3. The application for non-publication of the name of Stephen John Alexander is refused. CATCHWORDS: OCCUPATIONAL REGULATION – application for non-publication order – where police officer seeks non-publication order in respect of his name and in respect of contents of a health professional report – whether a non-publication is necessary Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 -- 1 of 7 -- 2 Cutbush v Team Maree Property Services (No 3) [2010] QCATA 89, applied Kennedy v Deputy Assistant Commissioner Stewart [2011] QCAT 360, applied Legal Services Commissioner v CBD [2011] QCAT 401, distinguished APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Acting Deputy Commissioner Barron made a disciplinary decision concerning disciplinary charges against Constable Stephen Alexander. The Crime and Misconduct Commission (‘the CMC’) filed an application for review of that decision in the Tribunal. Subsequently, the parties filed joint submissions in respect of the application for review. The Tribunal listed the application for a hearing on the papers. The decision on the review, and the reasons for decision, were issued on 13 May 2014. [2] Acting Deputy Commissioner Barron’s decision imposed a sanction whereby Constable Alexander was dismissed, but the dismissal was suspended on certain conditions as set out in full in my reasons for decision dated 13 May 2014. On the Tribunal’s review, the sanction imposed by the decision-maker was set aside as far as the conditions imposed were concerned and the following conditions substituted: Stephen John Alexander must: (a) not commit any acts of misconduct for a period of two years from the date the sanction was originally imposed, that is, 24 February 2014; (b) perform 100 hours of community service in the next 12 months; (c) From 24 February 2014, meet with a Human Services Officer (HSO) once each month for six months, or such longer period that is recommended by the HSO, to undergo counselling as assessed and recommended by the HSO; and (d) From 24 February 2014, perform duty at the Mt Gravatt Police station and be mentored by a senior officer at the rank of Senior Constable or Sergeant for 100% of his shifts for at least 3 months, subject to a suitable report from the HSO that he is suitable to return to duties without ongoing supervision. [3] Constable Alexander applied for a non-publication order under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). In particular, a non-publication order was sought in respect of an 11 page psychological report of Dr Ian Lynagh, and Constable Alexander’s full name. -- 2 of 7 -- 3 [4] Mr Barron, Acting Deputy Commissioner, did not oppose the application for a non-publication order. The CMC did not oppose the grant of a non- publication order with respect to the psychological report if the Tribunal considered it necessary, but did oppose the grant of a non-publication order with respect to Constable Alexander’s name. [5] I decided the application and made orders which in essence prohibit publication of the contents of Dr Lynagh’s report, but refused a non- publication order regarding Constable Alexander’s name. [6] Constable Alexander has requested reasons for my decision. [7] For completeness, I note that an earlier non-publication order made 21 March 2014 concerning the names and identifying particulars of third parties is also in effect. The matters relied upon by Constable Alexander in seeking a non- publication order [8] Constable Alexander submits that the matter was consensually resolved by the Tribunal. He further submits that the new sanction was not substantially different from the original sanction and that the changes to the conditions could be described as ‘tinkering’ or ‘trivial’. He further submits that had it not been for the review filed by the CMC, his name and the contents of the psychological report would have remained confidential and not made available to the public. [9] Constable Alexander continues to serve as an operational police officer. He submits that policing is dynamic in nature and he will continue to be involved in violent incidents with unsavoury characters who will utilise any advantage available to evade the law. He is concerned that if his name and the contents of the psychological report were made public, that a person could use this information to his or her advantage to unnecessarily inflame a situation and make his job, and that of his colleagues, more difficult. He further says that if a criminal attempts to use the information to his advantage at a future incident there could be severe consequences. He suggests that unnecessary inflammation of an incident could endanger or cause injury to either the criminal themselves or a member of the public, or Constable Alexander or one of his colleagues. He argues that it is a matter of public record that in very recent times organised criminals are gathering intelligence about individual police officers. [10] He suggests that the risks of future physical danger and potential for abuse of the information do not need to be taken. He further submits that it is contrary to the public interest to allow the material to be published and that it is therefore in the interests of justice for the Tribunal to make a non- publication order in the terms sought. [11] It is also argued that publication of the information is unnecessary to achieve openness and accountability in public administration and that it is -- 3 of 7 -- 4 relevant that the purpose of disciplinary proceedings is not punitive, but protective. When can the Tribunal make a non-publication order? [12] Section 66 of the QCAT Act provides that the Tribunal may make an order prohibiting the publication of evidence or information before the Tribunal. However it may make an order to this effect only if it considers the order is necessary on any of specified grounds. The grounds include to avoid endangering the physical or mental health or safety of a person; to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or for any other reason in the interests of justice.1 [13] As was observed by the then President of the Tribunal, QCAT’s discretion to grant a non-publication order … is underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts.2 [14] The learned President further observed that the principle applied, irrespective of whether the information had previously been published, or not.3 He held in effect that it was for an applicant seeking non-publication orders to demonstrate special circumstances justifying the order.4 [15] In Kennedy v Deputy Assistant Commissioner Stewart5 the Tribunal discussed the requirements of s 66. The Tribunal said that: The test for a non-publication order under section 66(2) is high: the order may only may only be made “if the Tribunal considers the order is necessary” in the circumstances listed in paragraphs (a) to (e).6 [16] Some reliance was placed by Constable Alexander on Legal Services Commissioner v CBD7 in which a non-publication order was made. However in that case, the primary ground for a non-publication order was CBD’s mental wellbeing given the diagnosis and prognosis contained in his psychiatric report (this is not the case for Constable Alexander). Also, the Legal Profession Act 2007 (Qld), provided that CBD’s name and details of the disciplinary order would appear in a disciplinary register. In that case, the orders of the Tribunal were made under the Legal Profession Act 2007, not the QCAT Act. Because of these differences, I do not find this case helpful in considering the matter currently before me. This is discussed further below. Do grounds exist which make a non-publication order necessary? 1 QCAT Act s 66(2). 2 Cutbush v Team Maree Property Services (No 3) [2010] QCATA 89 at [8]. 3 Ibid. 4 Ibid [9]. 5 [2011] QCAT 360 at [53]. 6 Ibid [44]. 7 [2012] QCA 69 and [2011] QCAT 401. -- 4 of 7 -- 5 [17] The psychological report of Dr Lynagh contain highly personal details concerning Constable Alexander’s life history, testing results and clinical observations. The life history set out details both personal, family (including childhood) history and employment history, as well as personal interests. In the ordinary course, these details would remain confidential as between the health professional and the patient. Contrary to the situation, for example, in CBD’s case referred to above where concerns were held about deterioration on CBD’s mental health and increased risk of suicide, there is no suggestion that the disclosure of this information could per se endanger Constable Alexander’s health. [18] That said, although details of whole life history no doubt informed Dr Lynagh’s report, much of this information is not directly relevant to disciplinary proceedings and the outcome of them. I am satisfied that having such detailed personal family and employment information in the public domain does present a potential risk of abuse. Although I do not, (for the reasons discussed later), consider it is a matter of public record that organised criminals are gathering intelligence about individual police officers, I am satisfied that there is risk of abuse of this very detailed personal information by persons with ill-intent. Its publication may make Constable Alexander potentially vulnerable to unintended risks and consequences. I am satisfied that it is not in the interests of justice to expose him to those risks. [19] Accordingly, I am satisfied that it is necessary to prohibit publication of the contents of the report of Dr Lynagh, to avoid the publication of information whose publication to the broader public would not be in the interests of justice. [20] However, in respect of publication of Constable Alexander’s name, I am not satisfied that a non-publication order is necessary. It appears that in making the application, Constable Alexander relies upon the possible grounds under s 66(2) which relate to avoiding interference with physical and mental health and safety of persons or avoiding publication of information which would be contrary to the public interest; or that it is otherwise in the interests of justice to prohibit publication. [21] It appears to be argued that the confidential nature of the internal police disciplinary regime is a basis for keeping the information confidential, as it would have been if there had not been a review. However, there was a review. In the circumstances, the QCAT Act provides for when a non- publication order may be made. The confidentiality of the internal police disciplinary regime is not of itself a relevant consideration. [22] It is well-established that disciplinary proceedings are protective, not punitive. However, this does not affect the principle of open justice. It provides no basis in itself for a non-publication order. In the ordinary course, as is the case in other types of Tribunal proceedings, publication of the name of a person disciplined is published by QCAT, unless a non- publication order is made or an enabling Act provides otherwise. -- 5 of 7 -- 6 [23] Although the Tribunal in deciding the review application accepted the joint submission of the parties, it is not the case that disciplinary matters can be resolved by consent or consensually. The Tribunal must exercise its discretion in determining the proceeding. This is so, irrespective of whether the Tribunal decides to confirm or amend the original decision, and whether, if amended, any amendments to it are large or small in nature, and whether or not the parties filed joint or individual submissions. Although an oral hearing was not held, the decision made on the review was an exercise of discretion by the Tribunal and the decision made was the decision of the Tribunal. In any event, there is no ground in s 66, which would make a non-publication order necessary as a consequence of joint submissions having been made by the parties. [24] It is argued that publication of Constable Alexander’s name could result in unnecessarily inflaming policing situations; that access and use of this by criminal persons may make his job more difficult; and possibly, place him and others in danger or at risk of injury. Although there is no evidence before the Tribunal that this is the case, I am asked, in effect, to take judicial notice that in very recent times organised criminals are gathering intelligence about individual police officers. [25] Broadly speaking, judicial notice may be taken of notorious facts which are so well known to persons generally that they are not seriously disputable. Whereas I am aware from media reports that there have been some suggestions that organised criminals may be gathering intelligence about police officers, this is a long way short of it being a matter of public record of which judicial notice could be taken. [26] As already indicated, I will make orders about non-publication concerning Dr Lynagh’s report. Therefore, any remaining potential risk identified in Constable Alexander’s application is broadly that criminal persons with whom Constable Alexander may have dealings may become aware that he has been the subject of disciplinary proceedings, the basis of them, and the sanction imposed on him. [27] Every serving police officer who is subject to disciplinary proceedings before the Tribunal could no doubt make the same argument in the same vague and general terms, that is, that criminal persons who become aware of the disciplinary proceedings might seek to use the information about those proceedings against the officer. However, the Parliament has not provided for all such matters to be subject to non-publication. It has provided for s 66 of the QCAT Act to govern whether or a non-publication order is made. [28] As discussed above, there is no evidence that organised criminal persons are gathering intelligence on police officers. There is no evidence that any police officer subject to and named in QCAT disciplinary proceedings has experienced the issues raised. Constable Alexander is represented by the Queensland Police Union Legal Group which might reasonably be expected to know whether any such issues have been reported to the Queensland Police Union. If so, evidence to this effect might reasonably -- 6 of 7 -- 7 have been expected to be filed about this in support of the application. Further, there is no evidence that Constable Alexander personally has particular reason to believe that he may be of interest to organised criminal persons, other than to say that he is a serving police officer. [29] In the circumstances, there is no basis for a non-publication order in respect of Constable Alexander’s name. I find that a non-publication order in respect of his name is not necessary. [30] I make orders accordingly. The reasons for decision on the review which have been issued to the parties will require some minor amendment so that publication to the public is in a format which does not disclose contents of Dr Lynagh’s report. I also make an order to that effect. -- 7 of 7 --