Kennedy v Deputy Assistant Commissioner Stewart
[2011] QCAT 360
•29 July 2011
| CITATION: | Kennedy v Deputy Assistant Commissioner Stewart [2011] QCAT 360 |
| PARTIES: | Mr Daniel Kennedy |
| v | |
| Deputy Assistant Commissioner Ian Duncan Stewart |
| APPLICATION NUMBER: | OCR296-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Booth, Senior Member |
| DELIVERED ON: | 29 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] Publication of the DVD containing CCTV footage of McDonalds Kingaroy of 22 March 2010 is prohibited. [2] Publication of the CD containing electronic records of interview is prohibited. [3] Publication of the CD of the Disciplinary Process is allowed except for identifying the name, rank and other identifying information of the second officer, which is prohibited. |
| CATCHWORDS: | PRACTICE AND PROCEDURE – non-publication order – where media sought access to electronic copies of filed material – whether in the public interest to allow access Queensland Civil and Administrative Tribunal Act 2009, s 66 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Written submissions were received from Mr T Schmidt, Counsel for the Applicant and Ms C Heffner, A/Principal Legal Officer for the Queensland Police Service.
REASONS FOR DECISION
The Applicant, Constable Daniel Kennedy and the Respondent, Deputy Assistant Commissioner, Mr Ian Stewart made applications for non-publication orders in this matter. The applications were made after a formal request by a journalist from the broadcaster, SBS, to obtain a copy of the DVD evidence, including closed circuit television (CCTV) footage, and two CDs.
Background to the Original Application by Constable Kennedy
On 12 November 2010, Constable Daniel Kennedy filed an application to review a decision of Deputy Assistant Commissioner, Mr Ian Stewart. Constable Kennedy was entitled to seek a review of a disciplinary decision under section 219G of the Crime and Misconduct Act 2001. He sought a review of the sanction imposed by the Deputy Assistant Commissioner.
The incident that led to the imposition of the sanction occurred in Kingaroy after a police football carnival. Constable Kennedy was at McDonalds in Kingaroy when he approached another officer of the QPS (referred to in this decision as the second officer), who was affected by alcohol and was asleep at one of the tables. Constable Kennedy engaged in conduct that resulted in his pleading guilty to a public nuisance charge. He was fined $250 with no conviction recorded.
Constable Kennedy’s conduct was captured by CCTV.
As a result of the incident, a disciplinary investigation by the Queensland Police Service occurred. This included gathering of evidence, including the CCTV footage, a CD containing interviews with various workers who were working at McDonalds that night.
A disciplinary hearing followed the investigation, and a sanction imposed that was the subject of the application to review. A further CD contained a recording of the disciplinary hearing was also part of the evidence.
In this Tribunal, following the filing of the original review application, directions were made about the filing of the written statement of reasons, and relevant documents and responses to these by the applicant. That material was filed under section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009. It consisted of 2 folders of statements and documents totalling 458 pages, the 2 CDs and the DVD containing the CCTV footage.[1]
[1]The CCTV footage is at Page 441A; the CD of interviews is at page 430A and the CD of the Disciplinary Hearing is at page 17A of the documents filed under S21(2) QCAT Act.
A hearing of the review was listed for 28 March 2011, and on 25 March 2011 (with consent of the respondent) the applicant was given leave to withdraw his application.
Application for non-publication order
At various times in May and June 2011, a journalist working at SBS requested access to a number of QCAT files, including files in this matter. The request included access to the CCTV footage. When it was not provided by the Registry, SBS made a formal written request for the CCTV footage.
[10] The parties were advised by the Tribunal of the request to inspect the record of proceedings in this matter and filed Applications for non-publication orders.
[11] SBS was advised of the applications for non-publication orders and made submissions in support of allowing “access to, and publication of edited extracts of the materials.”
The Law
[12] Section 230 of the QCAT Act provides as follows:
230 Record for proceeding
(1) The principal registrar must, for each proceeding, keep a record containing all documents filed in the registry for the proceeding.
(2) A party to a proceeding may, without charge, inspect the record kept for the proceeding under subsection (1).
(3) Another person may, on payment of the prescribed fee (if any)--
(a) inspect a record kept under subsection (1); or
(b) obtain a copy of a part of a record kept under subsection (1).
(4) This section does not authorise, entitle or permit a person to access a part of a record containing anything whose publication or disclosure to the person is prohibited under a non-publication order.
[13] The documents sought by SBS are part of the record of proceedings and a person may, on payment of a fee, obtain copies of documents that are part of the record of proceedings. Section s230(4) makes explicit that access is subject to any non-publication order.
[14] The non-publication provisions are contained in section 66 of the QCAT Act and provide as follows:
66 Non-publication orders
(1) The Tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order--
(a) the contents of a document or other thing produced to the Tribunal;
(b) evidence given before the Tribunal;
(c) information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified.
(2) The Tribunal may make an order under subsection (1) only if the Tribunal considers the order is necessary--
(a) to avoid interfering with the proper administration of justice; or
(b) to avoid endangering the physical or mental health or safety of a person; or
(c) to avoid offending public decency or morality; or
(d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
(e) for any other reason in the interests of justice.
(3) The Tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
(4) The Tribunal's power to act under subsection (1) is exercisable only by--
(a) the Tribunal as constituted for the proceeding; or
(b) if the Tribunal has not been constituted for the proceeding--a legally qualified member or an adjudicator
Submissions by the Applicant and Respondent
[15] Both the Applicant and the Respondent seek non-publication orders in relation to the CDs and the DVD. The applicant adopted the respondent’s submissions and added further submissions in support of a non-publication order.
[16] As to the nature of the request, the Respondent noted that the request occurred in circumstances when a hearing and determination has not taken place and when the materials have not been formally tendered as items in the hearing of the review.
[17] The Respondent referred to the objects of the QCAT Act that seek to enhance the openness and accountability of public administration. With reference to section 66, the Respondent submitted that the statutory framework starts from a position that “decisions of QCAT will be published unless it is demonstrated that a non-publication order is necessary”.
[18] Particular submissions on the DVD and CD were-
- The DVD contains CCTV of footage from McDonalds that shows a third party, (the second officer) who is in a drunken and vulnerable state prior to and after the incident. The applicant refers to the second officer as the victim of the applicant’s conduct. The applicant submits that publication of the CCTV material is not in the public interest as it would adversely affect the second officer.
- The CD contains electronic recordings of interviews with various employees of McDonalds. These were all third parties. The witnesses all stated that on the night they were not aware of, and did not see any misconduct undertaken by Constable Kennedy, but they did comment on the second officer’s state. It is submitted that it is not in the public interest to publish these interviews as they would have the effect of exposing the second officer’s drunken state to public review and he is not ‘on trial.’
- The CD of the disciplinary process contains the findings and reasons of Deputy Assistant Commissioner Stewart. It states his reasons for the substantiation of the charge and the sanction imposed. It identifies the second officer, that he was affected by alcohol and is an Indigenous person. In the submissions of the Respondent the release of this CD could further effectively victimise the second officer.
[19] As well as endorsing the above submissions, the Applicant submitted that the Tribunal should consider that the CCTV footage could properly be described as offensive and offends morality and decency; that release of the CCTV footage would be more damaging than the publication of the second officer’s name; and that release of the audio accounts of the witnesses would reinforce the incident in a sensationalist manner.
[20] The Applicant also submitted that confidentiality around the names of Special Emergency Response Team officers is maintained nationally, although it was accepted that the applicant himself has been publicly named following his plea of guilty in the Magistrates Court.
[21] The Applicant submitted that access to the Tribunal’s published decision, the sentencing remarks of the Magistrate and the section 21(2) materials provide a sufficient public record and that making a non-publication order would not restrict the proper report of this matter.
Submissions by SBS
[22] SBS noted that it was informed by the QCAT Registrar of the applications about non-publication orders. Though it was not a party to the application, it was of the view that section 28 of the QCAT Act provided the Tribunal with a broad discretion to accept a submission from it.
[23] Its submissions support the release the documents.
[24] It advised that a key part of the materials that SBS wishes to obtain is the DVD of the CCTV footage but has made submissions more broadly concerning the other material.
[25] SBS has indicated that in the event of publication of the DVD, it would:
- Omit the name of the second officer;
- Alter the images of the victim to obscure any physical identity.
[26] As to the publication of the DVD of witness statements, similarly, it would not publish any personal information such as addresses and dates of birth, noting that privacy considerations were also relevant.
[27] SBS argues that publication of the CCTV footage is in the public interest because police conduct is a matter of public interest.
Discussion
[28] The starting point in deciding whether to grant the non-publication orders sought is section 66 of the QCAT Act. The words of the section provide a clear guide as to the discretion afforded to the Tribunal.
[29] Section 66(2) provides that the Tribunal may make an order prohibiting the publication of the contents of a document[2] only if it considers the order it is necessary. Section 66(2) then details a number of grounds where such an order may be necessary.
[2] Section 36 of Acts Interpretation Act 1954 defines a document to include a disc.
[30] Before considering these grounds there are two preliminary issues that need to be considered.
[31] The first issue concerns the status of the submission from SBS.
[32] It was the application by the SBS journalist for copies of the DVD and other materials that resulted in the non-publication applications by the parties. Although not a party, SBS has made submissions in response.
[33] It is therefore necessary for the Tribunal to determine whether it may, and if it may, would, consider the SBS submissions.
[34] Section 28(3)(c) provides that the Tribunal may inform itself in any way it considers appropriate.
[35] The Tribunal starts from a position that non-parties do not have an active role in Tribunal proceedings. However, both courts and Tribunals have considered whether the media should be able to be heard on the issues about non-publication orders. The general law authorities lean towards allowing the media a limited capacity to make submissions, with each case being decided by “considering (in) each application both the justice and the practicalities of what is involved”.[3] This approach by the New South Wales Supreme Court is similar to the view taken in the Administrative Appeals Tribunal (AAT) where in a number of decisions the Tribunal has been prepared to hear from a representative of a media organisation who is opposing a non-publication or suppression order.[4]
[3]Nationwide News Pty Ltd v District Court of New South Wales and others (1996) 40 NSWLR 486 at p 490.
[4]Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663 and Re VBW and Australian Prudential Regulation Authority [2005] AATA 1294.
[36] These authorities do not bind the Tribunal which operates under its own statutory regime, but they do assist with interpreting section 28(3)(c). In this case, and limited to the facts before the Tribunal, the Tribunal has concluded that the public interest considerations combined with the helpful, balanced, relevant and relatively brief nature of the submissions mean it is appropriate for the Tribunal to take the views of SBS into consideration in making the decision.
[37] The second issue, raised by the Respondent, was about the status of the documents, and in particular, that the matter did not proceed beyond directions hearings, the application being withdrawn by consent before hearing. The documents the subject of the non-publication application have not been tendered and were not considered by the Tribunal in terms of the substantive application.
[38] The QCAT Act is premised on open hearings (section 90) and as the submissions point out, publication of materials (section 66). This is a statutory regime, and there are important exceptions as to both open hearings and publication.[5]
[5] Queensland College of Teachers v Klemm [2011] QCAT 207 at p 2.
[39] The respondent suggests there may be a principle that differentiates between documents that are part of a hearing and documents filed as before hearing but as part of Tribunal directions.
[40] It is noted that the former Misconduct Tribunal that was responsible for review of disciplinary proceedings only allowed inspection of material to persons who would otherwise have a right to inspect. Other former Tribunals only allowed non-parties to inspect and take copies of documents that had been tendered in a hearing.[6]
[6] For example, the Queensland Anti-Discrimination Tribunal.
[41] This Tribunal however, is governed by the QCAT Act and in deciding whether there should be non-publication as an exception to the principles of openness, it is matters listed in s 66(2), including the public interest and the interests of justice that provide any exception, not the status of filed documents nor the stage of the matter.
DVD containing CCTV footage of McDonalds
[42] The applicant and the respondent seek orders prohibiting the publication of the DVD of the CCTV footage (the footage) on the grounds that it is not in the public interest to publish footage of the second officer in a drunken and vulnerable state and that it clearly shows the second officer’s face. SBS have indicated that if the footage was released they would not identify the second officer, and obscure his physical identity.
[43] The applicant submits that publication of the CCTV footage is more damaging to the second officer than release of his name. SBS submits that embarrassment and sensitivity are not relevant considerations, at least for the purpose of section 66(2)(e).
[44] The test for a non-publication order under section 66(2) is high: the order may only be made “if the Tribunal considers the order is necessary” in the circumstances listed in paragraphs (a) to (e).
[45] The two main arguments put before the Tribunal by the parties and SBS are that, on the one hand, publication would cause distress, embarrassment and “ridicule and public humiliation”, to the second officer (whether identified or not), and on the other hand, the public interest being served by publication of the conduct of the applicant police officer.
[46] It is clear that mere embarrassment will not necessitate a non-publication order.[7]
[7]Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 and cases cited therein at para 10.
[47] However, publishing the footage would go further than mere embarrassment or over-sensitivity. It exposes the second officer to view again what has happened to him and his own circumstances at the time of the conduct. Obscuring the physical features of the second officer cannot obscure what happened to him at McDonalds on that evening. The second officer is not the subject of the disciplinary process under review yet publication would allow SBS to broadcast material showing him, de-identified or not, in a drunken state and being treated disrespectfully by another police officer. The public could view the footage similarly. The potential for ridicule and public humiliation of a third party in this case are more than mere embarrassment.
[48] The applicant’s conduct has already been the subject of Magistrates Court proceedings in which he pleaded guilty and was punished. Those criminal proceedings have been publicly reported. The guilty plea, punishment and public reporting serve the legitimate public interest in police conduct.
[49] Further, the principles of openness and accountability can be achieved and maintained by publication of details of the disciplinary proceedings, a matter that will be determined in favour of publication (subject to conditions) in this decision.
[50] In weighing up the competing interests, and considering the public need for information about police behaviour is not compromised, a non-publication order of the CCTV footage is considered necessary on the basis that publication of the information would be contrary to the public interest.
[51] It is not necessary to consider, therefore, the applicant’s submission that publication of the footage would fall under section 66(2)(c) as offending public decency or morality. However, it would not be an unreasonable conclusion that the behaviour in question is capable of offending public decency.
CD containing electronic records of interview
[52] The Respondent opposes the release of the CD containing electronic records of interview of employees of McDonalds. Their evidence, although lengthy, ultimately did not illuminate the incident that was the subject of the disciplinary process. However the interviews did include observations about the second officer and included a number of comments about his drunken state. The applicant submitted that the release of audio accounts would reinforce the incident in a sensationalist manner.
[53] The Respondent submits that publication of this information does not provide any information that would enhance the QCAT Act’s object to “enhance the openness and accountability of public administration.” That is, publication would not advance the public interest in openness and accountability. However this is not the test required by section 66, which is that publication would be contrary to the public interest.[8]
[8] s 66(2)(d).
[54] SBS indicated that this material is ancillary to the main story relating to police conduct but that a non-publication order “is unnecessary, and could set a dangerous precedent”.
[55] In referring to s 66(2) factors, starting from a principle of openness, it would seem unnecessary to make a non-publication order on public interest grounds. The Tribunal does not think that non-publication is warranted on the basis that it might adversely affect the likelihood of civilian witnesses assisting future QPS investigations. The Tribunal also notes the SBS submission that it would not publish personal information of witnesses if it were to use the statements.
[56] However, section 66(2)(e) provides that the Tribunal may make a non-publication order if it is necessary to do so “in the interests of justice”.
[57] It is salient that not one witness saw Constable Kennedy’s conduct or the incident the subject of the disciplinary action, but that the statements comment unfavourably on the second officer. In the context of this matter, this is irrelevant comment, and is prejudicial to the second officer.
[58] In Cutbush,[9] the President of the Tribunal said:
The phrase “in the interests of justice” is not defined in the QCAT Act but generally confers a broad discretionary power on the decision-maker… The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers the order is necessary.
[9] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [7].
[59] In this case, the information is not relevant to the Tribunal’s consideration of the application that was before it; reflects adversely on non-parties; and potentially exposes witnesses to identification and commentary about their evidence.
[60] The Tribunal concludes that, given the irrelevant and unfavourable comments about the second officer, it is in the interest of justice to make the non-publication order about the information contained on the CD.
CD of the Disciplinary Process
[61] This CD is a transcript of parts of the hearing, and contains an electronic version of the transcript of the reasons for decision. As well, it contains the reasons for substantiation of the charge and the sanction imposed. The Applicant and Respondent oppose its release.
[62] The Tribunal does not consider that the rigorous test for non-publication is satisfied except for excluding the name and details of the second officer. This is because it is in the public interest that relevant details of police disciplinary matters are published and made available to the community.
[63] However, for the reasons outlined above, the personal details, including the name and rank of the second officer, should not be in the public domain, and accordingly those details are subject to a non-publication order under section 66.
Orders
Publication of the DVD containing CCTV footage of McDonalds Kingaroy of 22 March 2010 is prohibited.
Publication of the CD containing electronic records of interview is prohibited.
Publication of the CD of the Disciplinary Process is allowed except for identifying the name, rank and other identifying information of the second officer, which is prohibited.
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