BR v State of Queensland - [2022] QIRC 146

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	BR v State of Queensland [2022] QIRC 146
PARTIES:	BR (Appellant) v State of Queensland (Respondent)
PROCEEDING:	Application in existing proceeding
DELIVERED ON:	22 April 2022
MEMBER: HEARD AT:	Hartigan IC On the papers
ORDERS:	1. I prohibit the publication of the identity of the Appellant. 2. I direct that only reasons for decision and orders excluding the Appellant's name, job position title, and the name of the Department and team within which the Appellant is employed be released by the Queensland Industrial Relations Commission.
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – application in existing proceedings for suppression order – where appellant seeks de-identification of personal information – where appellant has been charged with a prescribed sexual offence pursuant to s 3 of the Criminal Law (Sexual Offences) Act 1978 (Qld) – where s 10 of the Criminal Law (Sexual Offences) Act 1978 (Qld) prohibits the publication of certain personal details of a defendant – where appellant submits it can be reasonably asserted that his name and details in connection with the criminal proceedings may become public knowledge – where appellant submits that this conflicts with the intention of the Criminal Law (Sexual Offences) Act 1978 (Qld) – where respondent does not oppose application – where application for suppression order granted
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld), ss 451 and 580 Industrial Relations (Tribunals) Rules 2011 (Qld), r 97 Criminal Law (Sexual Offences Act) 1978 (Qld) ss 3 and 10 J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10

Reasons for Decision

Introduction

On 18 March 2022, the Appellant filed an application seeking that his identifying information be suppressed from publication by the Queensland Industrial Relations Commission in relation to an appeal brought pursuant to s 194(1)(bb) of the Public Service Act 2008 (Qld).
The Appellant relies on the following grounds in support of his application, as set out in the schedule attached to his application:
a.       At the heart of this public appeal application before this commission are charges which fall under the meaning of prescribed sexual offences (Section 3 CriminalLaw (Sexual Offences) Act 1978 (Qld)).
b.       Should the Appellant be named, it could be reasonably asserted that his name and details may become public knowledge in connection with the criminal proceedings, in conflict with the Parliaments intention under the Criminal Law (Sexual Offences) Act 1978 (Qld).
c.       Given the nature of the alleged criminal acts, if the Appellant’s details were disclosed in these proceedings, it would have an irreparable negative impact on himself and his family.
d.        As the Appellant has not been committed for trial or sentenced and intends on defending any proceedings brought by the Public Prosecution, it would be against public interest to allow publication of his details in this matter.
The Appellant bears the onus of demonstrating circumstances exists which would justify the making of the proposed suppression order.

Relevant legislation and authorities

Section 451 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read BR v State of Queensland and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QIRC 146
Decision Date: 22 April 2022

CaseChat Overview and Summary

The case of BR v State of Queensland involved an application by the appellant, a public servant, for a suppression order to de-identify personal information in relation to criminal proceedings against him for a prescribed sexual offence under the Criminal Law (Sexual Offences) Act 1978 (Qld). The application sought to prevent the publication of the appellant's name and details connected with the criminal proceedings, which he argued could become public knowledge and conflict with the intention of the Act. The State of Queensland did not oppose the application. The court was required to determine whether a suppression order should be granted under the relevant legislative provisions, including sections of the Industrial Relations Act 1999 (Qld) and the Industrial Relations (Tribunals) Rules 2011 (Qld), and in light of the principles established in J v L & A Services Pty Ltd (No 2).

The court considered the principles governing the exercise of discretion to issue suppression orders established by the Queensland Court of Appeal, which include the paramount importance of the due administration of justice, freedom of speech, and an open society, balanced against the need to protect individuals from unnecessary public disadvantage. The court noted that the permitted exceptions to open justice are based on actual loss of utility rather than deterrence, and that different degrees of restraint are permissible for different purposes. In this case, the court found that the appellant's concern about the potential public disclosure of his identity in connection with the criminal proceedings was sufficient to warrant the grant of a suppression order.

The court granted the application for a suppression order, prohibiting the publication of the appellant's identity and directing that only the reasons for decision and orders excluding the appellant's name, job position title, and the name of the Department and team within which the appellant is employed be released by the Queensland Industrial Relations Commission. The court considered that the suppression order was necessary to protect the appellant from unnecessary public disadvantage and to uphold the intention of the Criminal Law (Sexual Offences) Act 1978 (Qld).

Orders

Orders of the court

1. I prohibit the publication of the identity of the Appellant.

2. I direct that only reasons for decision and orders excluding the Appellant's name, job position title, and the name of the Department and team within which the Appellant is employed be released by the Queensland Industrial Relations Commission.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 580 of the IR Act is set out in the following relevant terms: 580 Confidential material tendered in evidence …(5) The court, commission or registrar may direct—(a)a report, or part of a report, of proceedings in an industrial cause not be published; or (b)evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.…(7) The direction may be given if the court, commission or registrar considers —(a)disclosure of the matter would not be in the public interest; or(b)persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides the commission with a power to de-identify judgements and redact information for judgements if there is good reason to do so. Rule 97 relevantly provides as follows:97 Publishing decisions etc. (1)The registrar may publish on the QIRC website – (a)a decision of the court, commission, or registrar; and (b)the notice of the making or the amended of a bargaining instrument (2)The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website. Note - For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act. (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. Section 3 of the Criminal Law (Sexual Offences) Act 1978 (Qld) ('CLSO Act') contains definitions and relevantly provides the following: prescribed sexual offence means any of the following offences—(a) rape;(b) attempt to commit rape;(c) assault with intent to commit rape;(d) an offence defined in the Criminal Code, section 352. Section 10 of the CLSO Act provides as follows:10 When other publication of a complainant's or defendant's identity is prohibited(1)A person who, by a statement or representation made or published otherwise than in a report concerning an examination of witnesses or a trial, reveals the name, address, school or place of employment, or any other particular that is likely to lead to the identification, of—(a)a complainant, at any time; or(b)a defendant charged with a prescribed sexual offence to which the statement or representation relates, before the defendant is committed for trial or sentence upon that charge;commits an offence except where the statement or representation is made or published for an authorised purpose referred to in section 11. The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2),[1] established six principles governing the exercise of discretion to issue suppression orders which are as follows:[1][1993] QCA 012; [1995] 2 Qd R 10.1. 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.2. 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…3. 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.4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.5. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:(a) 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…(b) 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.

Decision

Reasons for decision

Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides the commission with a power to de-identify judgements and redact information for judgements if there is good reason to do so. Rule 97 relevantly provides as follows:97 Publishing decisions etc. (1)The registrar may publish on the QIRC website – (a)a decision of the court, commission, or registrar; and (b)the notice of the making or the amended of a bargaining instrument (2)The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website. Note - For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act. (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. Section 3 of the Criminal Law (Sexual Offences) Act 1978 (Qld) ('CLSO Act') contains definitions and relevantly provides the following: prescribed sexual offence means any of the following offences—(a) rape;(b) attempt to commit rape;(c) assault with intent to commit rape;(d) an offence defined in the Criminal Code, section 352. Section 10 of the CLSO Act provides as follows:10 When other publication of a complainant's or defendant's identity is prohibited(1)A person who, by a statement or representation made or published otherwise than in a report concerning an examination of witnesses or a trial, reveals the name, address, school or place of employment, or any other particular that is likely to lead to the identification, of—(a)a complainant, at any time; or(b)a defendant charged with a prescribed sexual offence to which the statement or representation relates, before the defendant is committed for trial or sentence upon that charge;commits an offence except where the statement or representation is made or published for an authorised purpose referred to in section 11. The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2),[1] established six principles governing the exercise of discretion to issue suppression orders which are as follows:[1][1993] QCA 012; [1995] 2 Qd R 10.1. 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.2. 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…3. 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.4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.5. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:(a) 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…(b) 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.