Brady v State of Queensland (Queensland Health) (No. 2)

Case [2024] QIRC 63

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Brady v State of Queensland (Queensland Health) (No. 2) [2024] QIRC 063

PARTIES:

Brady, Susan
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
CASE NO: PSA/2023/232

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

 14 March 2024

MEMBER:

HEARD AT:

Pidgeon IC

On the papers

ORDER: 

The application for suppression of XY’s name in the decision relating to PSA/2023/232 is granted.
CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – application in existing proceedings for suppression order – where the Respondent in existing proceedings makes an application for suppression – application for suppression granted

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – consideration of circumstances where the Commission may exercise discretion to modify a previously published decision
LEGISLATION:

Industrial Relations (Tribunals) Rules 2011 (Qld) r 97

Industrial Relations Act 2016 (Qld) s 451
CASES:

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

Brady v State of Queensland (Queensland Health) (No. 1) [2024] QIRC 035

Reasons for Decision

Introduction

  1. Following the release of my decision in Brady v State of Queensland (Queensland Health) (No. 1) on 14 February 2024,[1] the Respondent filed an application on 16 February 2024 for the suppression of the personal details of a Queensland Health employee in the decision.

  2. The subject of that decision was a fair treatment appeal filed by Ms Susan Brady against the internal review decision of Mr Damian Green, Acting Deputy Director-General, Corporate Services, Queensland Health dated 9 November 2023. Mr Green confirmed the earlier decision of Mr Nick Steele, Deputy Director-General, regarding an individual employee grievance raised by Ms Brady. I dismissed Ms Brady’s appeal and confirmed Mr Green’s internal review decision.

  3. In its application, the Respondent requests the suppression of the personal details of XY on the basis that Ms Brady’s grievances against them had not been substantiated and date back between eight and ten years. The Respondent contends that its request to suppress XY’s identity would ‘not effect the essence of the document or decision, or impact on the principles of open justice’, namely because: XY is not a party to the appeal; the facts of the matter do not turn on XY’s involvement in the original grievance; and the public sector appeal was instead focussed on the reasonableness of Mr Green’s decision not to allow an internal review of Ms Brady’s grievances against XY which had been finalised in 2018. The Respondent also argues that naming XY in relation to unsubstantiated grievances against them would be prejudicial to them, their wellbeing, and their future career prospects.

  1. While my decision in Brady v State of Queensland (Queensland Health) was briefly published on the Supreme Court Library website, my chambers requested that the decision be removed from publication pending the determination of the Respondent’s application for suppression.

  2. At a mention before me on 22 February 2024, Ms Brady objected to the Respondent’s application. I subsequently issued directions…

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Details
AGLC
Brady v State of Queensland (Queensland Health) (No. 2) [2024] QIRC 63
Case
[2024] QIRC 63
Decision Date

CaseChat Overview and Summary

In the case of Brady v State of Queensland (Queensland Health) (No. 2), the primary issue before the court was the application for a suppression order to de-identify the name of an individual, XY, from a published decision. The respondent in the existing proceedings sought this order to prevent the public disclosure of XY's identity, citing reasons that aligned with the principles of open justice and the protection of certain individuals from potential harm. The court was tasked with determining whether the suppression order should be granted, considering the statutory powers and discretions available under Rule 97(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld).

The legal issues involved interpreting the scope of the Commission's power to de-identify and redact information from decisions, as provided by Rule 97(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld). The court had to balance the principle of open justice with the discretion to withhold or modify information where it is deemed appropriate in the public interest or for other reasons. The court examined whether the reasons presented for suppressing XY's name met the criteria for exercising such discretion, particularly in cases where the individual is a victim of sexual assault, discrimination, or where their private financial affairs are relevant.

The court granted the application for suppression, finding that there were compelling reasons to de-identify XY's name in the decision relating to PSA/2023/232. The court recognised that the discretion to anonymise a decision could be exercised to protect victims of sexual assault or discrimination, children, and individuals whose private financial affairs are relevant to a decision. Additionally, the court considered that suppressing XY's name was necessary to avoid potential harm and to maintain the integrity of the proceedings. The court concluded that the suppression order was appropriate in this instance, ensuring that the essence of the decision was not compromised while protecting XY's identity.

The court's decision was made in accordance with the principles outlined in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd, where the Vice President considered similar issues regarding the de-identification of individual workers' names. The court's reasoning was consistent with the statutory provisions and the broader principles of open justice, which require that justice be done and seen to be done. The final order was that the application for suppression of XY’s name in the decision relating to PSA/2023/232 was granted, thereby ensuring the protection of XY's identity and privacy.

Orders

Orders of the court

The application for suppression of XY’s name in the decision relating to PSA/2023/232 is granted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 97(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (‘the Rules’) provides the Commission with a power to de-identify decisions and redact information from decisions where it is considered appropriate and the modifications will not affect the essence of the document: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. In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd (‘ARBTU v Aurizon’),[2] O’Connor VP considered an application for the names of individual workers to be de-identified. Vice President O’Connor held: [40] The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'.[3] This is a central feature of the administration of justice under the common law.[41] The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure,[4] it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted,[5] and decisions pronounced, in 'open court';[6] second, that evidence is communicated publicly to those present in the court;[7] and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.[42] However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.[43] The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power…[44] 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.[2] [2021] QIRC 263 ('ARBTU v Aurizon').[3] R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259]. [4] Chief Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 Australian Law Journal 290, 292. [5] Scott v Scott [1913] AC 417, 434–5 ('Scott v Scott'); Dickason v Dickason (1913) 17 CLR 50, 51; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476–7 ('John Fairfax') .[6] Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114, 122; Ho v Loneragan [2013] WASCA 20.[7] A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450.

Ratio Decidendi

Legal Principle Established

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