AB v State of Queensland (Department of Youth Justice) [2021] QIRC 133

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: AB v State of Queensland (Department of Youth Justice) [2021] QIRC 133 PARTIES: AB (Appellant) v State of Queensland (Department of Youth Justice) (Respondent) CASE NO: PSA/2020/38 PROCEEDING: Interlocutory application DELIVERED ON: 7 April 2021 HEARING DATE: 7 April 2021 MEMBER: Industrial Commissioner Dwyer HEARD AT: Brisbane ORDER: 1. The application for a suppression order is dismissed. CATCHWORDS: INDUSTRIAL LAW – Public Service Appeal – application for suppression order LEGISLATION: Industrial Relations Act 2016 (Qld) Industrial Relations (Tribunals) Rules 2011 (Qld) r 97(3)(b) Public Service Act 2008 (Qld) CASES: John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 -- 1 of 4 -- 2 Mayne Logistics Armaguard v Cochrane [2003] QIC 4; (2003) 12 QGIG 1139 R v O’Dempsey (No 3) [2017] QSC 338 Reasons for Decision Delivered ex tempore on 7 April 2021 Background [1] On 6 April 2021, the appellant (AB) filed an application in these proceedings. The application relies on rule 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld), which provides that the Commission may: (3) Modify a document before publication in a way that does not affect the essence of the document. [2] The applicant seeks to have his name either suppressed or de-identified and says that regardless of the outcome of the appeal, the allegations of improper physical restraint of a youth detainee may negatively impact on his professional and personal life. The department opposes the application on the basis of public interest. [3] At the time of delivering this decision I could identify no jurisprudence from the Queensland Industrial Relations Commission or the Court in respect of rule 97(3). There is an older decision under the previous version of the rules which I will come to momentarily. [4] There is significant jurisprudence more broadly with respect to the principles that should inform my discretion to suppress details of a matter, including the name of a party. In R v O’Dempsey (No 3),1 it was held: The principle of open justice is one of the most fundamental aspects of the justice system in Australia. Exceptions to the principle are few and are strictly defined. Our judicial system is based on the notion that proceedings are conducted in open court. Justice must not just be done; it must be seen to be done. [5] Some exceptions to this principle were identified in the decision of John Fairfax Group Pty Ltd v Local Court of New South Wales,2 by President Kirby (as he then was) where he observed: 1 [2017] QSC 338, 2 [2]-[3]. 2 (1991) 26 NSWLR 131, [476]-[477]. -- 2 of 4 -- 3 Exceptions have been allowed by the common law to protect police informers; blackmail cases; and cases involving national security. The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourages its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of a particular case. [6] The decision of President Hall in Mayne Logistics Armaguard v Cochrane involved an unfair dismissal case.3 In that matter, President Hall considered that the evidence that would be traversed dealing with the matters materially in issue would cross over important information involving the security industry, including information about transport and storage of large quantities of cash, systems of work and safety protocols. [7] In that instance, where the applicant was seeking a complete suppression of documentary evidence and a hearing in-camera, President Hall considered that the content of the evidence in the matter would be sufficiently sensitive, and as such, ordered non- publication and a hearing in camera. Consideration [8] I do not consider that the applicant falls into one of these exceptional cases. The reasons cited by him in seeking suppression of his name could equally apply to any applicant in any matter before this Commission. Matters dealt with by the Commission routinely traverse allegations of misconduct which are sometimes serious and invariably contested by the person accused. [9] The details of a grievance before the Commission and the identity of persons involved will always be generally in the public interest. What the Commission regards as an acceptable standard of conduct of employees, or the reasonable standards of conduct that may be required by an employer, or (more importantly) the appropriate sanctions imposed on employees for misconduct, are matters of acute public interest. Such matters should be on the public record to inform not just the parties to proceedings, but the public at large of these standards and expectations. [10] The identity of a person accused of misconduct is information no less important to the public. In this instance, if the outcome of the appeal is vindication for the applicant, then he will have that on public record and it ought to mitigate any adverse impact of having been the subject of allegations. Alternatively, if the outcome in this matter (or some other matter involving these facts) is an adverse finding for the applicant, the Commission should not suppress his name lest it be complicit in, for example, denying a prospective 3 [2003] QIC 4; (2003) 12 QGIG 1139. -- 3 of 4 -- 4 employer an opportunity to be informed of these important issues in its consideration of the applicant’s suitability for employment. [11] Notwithstanding my conclusion with respect to this application, it will not be necessary for me to make any orders. The appeal was filed by the applicant on 6 March 2020. The last material received by the parties was in April of 2020. This appeal entirely predates the amendments to the Public Service Act 2008 (Qld) ('PS Act'). The amendments gave conduct of the hearings to the Commission under the Industrial Relations Act 2016 (Qld), but the amendments did not take effect until 14 September 2020. Prior to the amendments, appeals were dealt with under the PS Act and were not published. [12] In the circumstances, this appeal will be dealt with under the pre-amendment PS Act, and an important consequence of that for the applicant is that the decision in respect of the appeal will not be published to anybody other than the parties. Order [13] In the circumstances I make the following order: 1. The application for a suppression order is dismissed. -- 4 of 4 --