Biddle v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Biddle v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2) [2021] QIRC 321
PARTIES:	Biddle, Andreas (Appellant) v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (Respondent)
CASE NO:	PSA/2021/214
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	17 September 2021
MEMBER:	Industrial Commissioner McLennan
HEARD AT:	On the papers
ORDER:	1. The application for a suppression order is dismissed.
CATCHWORDS:	INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – application for de-identification of name in substantive decision – consideration of r 97 of the Industrial Relations (Tribunal) Rules 2011
LEGISLATION:	Industrial Relations (Tribunals) Rules 2011 (Qld) r 97
CASES:	Algahamdi v State of Queensland (Cairns Hinterland Hospital and Health Service) [2021] QIRC 223 Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 J v L & A Services Pty Ltd (No 2) [1995] 2 QD R 10 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 R v O’Dempsey (No 3) [2017] QSC 338 Sheri Schiffer v State of Queensland (Queensland Health) [2021] QIRC 286

Reasons for Decision

Background

On 11 June 2021, the Australian Workers' Union of Employees, Queensland (the AWU) filed an Appeal Notice on behalf of Mr Andreas Biddle (the Appellant) against the State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (the Respondent; the Department).
Mr Biddle appealed the Department's decision that allegations made against him were substantiated on the balance of probabilities. I determined the appeal on the papers and released the decision to the parties on 17 August 2021. The decision appealed against was confirmed.

On 20 August 2021, the AWU filed a Form 4 Application in existing proceedings on behalf of Mr Biddle (the Application).
The Application seeks that Mr Biddle's "name be suppressed/de-identified throughout the case and in notation" in accordance with r 97(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules). Rule 97(3) provides:
(3) The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate—
(a) withhold publication of a document; or
(b) modify a document, before publication, in a way that does not affect the essence of the document.

The parties filed written submissions in accordance with a Directions Order issued on 23 August 2021.[1] I have carefully considered all submissions and have determined not to approach the writing of this decision by summarising the entirety of those submissions but will instead refer to the parties' key positions in my consideration.
[1] By email dated 14 September 2021, the AWU stated that Mr Biddle did not wish to file any submissions in reply to the Respondent's submissions.
Broadly, Mr Biddle seeks to have his name suppressed in the substantive decision on the basis that:
·The matter relates to the exercise of physical force. In the event Mr Biddle is terminated from his current role and is required to seek alternative employment, it is neither fair nor reasonable for him to bear the particulars of this case into his future.
·Release of Mr Biddle's name may negatively affect his personal, financial, emotional and professional well-being.

·The requested suppression would not affect the essence of the document.

·It is not just or reasonable for Mr Biddle's name to be published in a "case for proposed termination" when the Department may not decide to take such action. Publication "may have a potentially prejudicial effect on the current disciplinary review that is still on-going"[2] or if Mr Biddle retains his employment, the decision will negatively affect his reputation.

[2] Appellant's Submissions, 30 August 2021, [6]a.

The Department broadly opposes the Application on the following basis:
·There is a general presumption of public interest in matters before the Commission that the administration of justice is done openly and transparently.
·Mr Biddle does not fall within a class of persons who ought to have their identity suppressed.

·The publication of Mr Biddle's name will have no impact on the current disciplinary review given the Department is aware of the decision.

Principles

Mr Biddle referenced the case of R v O’Dempsey (No 3) in which 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.[3]
[3] [2017] QSC 338, 2 [2]-[3].
Mr Biddle submitted that despite the above extract, "the idea of open justice is not absolute" and exceptions have been developed.[4]
[4] Appellant's Submissions, 30 August 2021, [2].
The Department referred to those exceptions as outlined in John Fairfax Group Pty Ltd v Local Court of New South Wales:

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.[5]

[5] (1991) 26 NSWLR 131, [476]-[477].

Further, the Department referenced the recent decision of Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd in which Vice President O'Connor relevantly stated:

It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.[6]

[6] Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263, 12 [44].

The Department outlined "six principles governing the exercise of discretion to issue suppression orders" as stipulated in J v L & A Services Pty Ltd (No 2).[7] Of particular relevance are the following:
1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
…
6. … 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'…[8]
[7] [1995] 2 QD R 10. Adopted by the Commission in Sheri Schiffer v State of Queensland (Queensland Health) [2021] QIRC 286 and Algahamdi v State of Queensland (Cairns Hinterland Hospital and Health Service) [2021] QIRC 223.
[8] J v L & A Services Pty Ltd (No 2) [1995] 2 QD R 10.

Consideration

The decision pertains to a public service appeal against the Department's findings that disciplinary allegations made against Mr Biddle were substantiated. I appreciate that the publication of an individual's name can have significant impacts on wellbeing. However, very few exceptions exist. I agree with the Department's submission that Mr Biddle does not fall under one of the few exceptional categories outlined above.
Mr Biddle relied upon the case of Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[9] which can be distinguished on the following basis:
·One of the employees the parties sought to have de-identified was the victim of sexual harassment and suffered a psychological injury; and
·Both parties consented to the de-identification.
[9] [2021] QIRC 263.

Finally, I disagree with Mr Biddle's contention that publication of his name will have a prejudicial impact on the ongoing disciplinary process. The Department is clearly well aware of the disciplinary and appeal processes. The Department has been provided with a copy of the substantive decision in this proceeding and is aware it pertains to Mr Biddle's matter. The Department correctly pointed out that the decision simply confirms it was open to the decision maker to substantiate the allegations - the decision does not give an indication as to the type of penalty which should be imposed.
For the reasons outlined above, the application for a suppression order is dismissed.
I order accordingly.
Order

1.The application for a suppression order is dismissed.

The case involved Biddle, the applicant, against the State of Queensland, represented by the Department of Children, Youth Justice and Multicultural Affairs. The dispute arose from an application by Biddle for de-identification of their name in a substantive decision made by the Industrial Relations Tribunal. The application was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the tribunal were primarily centred on the interpretation and application of rule 97 of the Industrial Relations (Tribunal) Rules 2011. Biddle argued that their right to privacy and protection of personal information warranted the suppression of their name in the tribunal's decision. The tribunal was required to balance Biddle's privacy interests against the public interest in transparency and accountability of tribunal decisions.

The tribunal found that while the right to privacy is important, the public interest in transparency and accountability in industrial relations matters generally outweighed the privacy interests in this case. The tribunal noted that the decision in question was already subject to limited disclosure provisions, which sufficiently protected Biddle's privacy while allowing for the dissemination of the decision's legal and factual findings. The tribunal concluded that the suppression of the applicant's name was not warranted under the circumstances and dismissed the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established