Lui v State of Queensland (Department of Energy and Public Works)

Case [2023] QIRC 91

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lui v State of Queensland (Department of Energy and Public Works) [2023] QIRC 091

PARTIES:

Lui, Sin Oi
(Appellant)

v

State of Queensland (Department of Energy and Public Works)
(Respondent)
CASE NO.: PSA/2023/3

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

 27 March 2023

MEMBER:

HEARD AT:

Pidgeon IC

On the papers

ORDER: 

 The application is dismissed.
CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Application in existing proceedings for suppression order – where Appellant seeks de-identification of personal information – where Respondent does not oppose the application – application for suppression order not granted

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – principle of open justice – consideration of circumstances where the Commission may exercise discretion to suppress name of a party or evidence
LEGISLATION:

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

Industrial Relations Act 2016 (Qld) ss 451, 580
CASES:

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

Barnett v State of Queensland(Queensland Health) [2022] QIRC 424

J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10

R v O'Dempsey (No 3) [2017] QSC 338

Schiffer v State of Queensland (Queensland Health) [2021] QIRC 286

Reasons for Decision

Introduction

  1. On 4 January 2023, Ms Sin Oi Lui (the Appellant) filed a fair treatment appeal regarding a decision of the State of Queensland (Department of Energy and Public Works) (the Respondent) that Ms Lui’s role remain at the classification of Professional Officer Level 4 (PO4) and not be reclassified to Professional Officer Level 5 (PO5) level.

  2. Ms Lui’s appeal was decided on 1 February 2023 with the decision published on the Supreme Court Library website shortly thereafter.[1]

  3. On 24 February 2023, the Appellant sent an email to the Industrial Registry requesting that her full name be ‘hidden’ from the decision.

  4. On 27 February 2023, the Registry replied to the Appellant’s correspondence and indicated that a Form 4 - Application in existing proceedings needed to be filed for the Appellant to apply for a suppression order.

  5. On 2 March 2023, the Appellant filed an application in existing proceedings seeking that her name be suppressed from the decision.

  6. In section 4 of her application in existing proceedings, the Appellant outlines the basis upon which she files her application. The Appellant says:

    … Regarding the decision to be published on the Supreme Court Library website, may I request my full name to be suppressed from the decision? The fact to be disclosed is fine but with my full name on the decision to be released, I feel very uncomfortable with my privacy (full name) being disclosed in the Supreme Court library website.

    Could you please kindly consider my situation?

    Thanks, Sin Oi.

No submissions from the parties

  1. The Respondent does not object to the application and neither party has…

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AGLC
Lui v State of Queensland (Department of Energy and Public Works) [2023] QIRC 91
Case
[2023] QIRC 91
Decision Date

CaseChat Overview and Summary

In the case of Lui v State of Queensland (Department of Energy and Public Works), the appellant sought a suppression order to de-identify personal information contained within the proceedings. The Queensland Industrial Relations Commission (QIRC) was the forum for this application, where the respondent, the State of Queensland (Department of Energy and Public Works), did not oppose the application. The central legal issue before the court was whether the Commission had the authority under Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) to de-identify and redact information from its decisions. This rule allows the court, commission, or registrar to withhold publication or modify a document if doing so is in the public interest or for another appropriate reason. The court also had to consider the principle of open justice, which generally mandates that judicial proceedings be conducted openly, and whether this principle could be overridden in certain circumstances.

The Commission, in reviewing the application, considered the overarching principle of open justice, which dictates that justice should be administered in an open manner to maintain public confidence in the judicial system. However, the court acknowledged that the principle of open justice is not absolute and that there are exceptions where the identities of parties or witnesses may be withheld to prevent harm or prejudice. The court referenced the case of Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd, where it was held that the names of individual workers could be de-identified if necessary. The court determined that there was a good reason to exercise the discretion to de-identify personal information in this case. However, despite the respondent's non-opposition, the application for a suppression order was ultimately dismissed. The court found that while there was a valid basis to protect personal information, the application did not meet the criteria set out under Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld).

The court's decision was grounded in the balance between the public interest in open justice and the protection of individual privacy and potential harm. The Commission's power to de-identify and redact information was acknowledged, but the application did not sufficiently justify the need for a suppression order. Consequently, the application was dismissed, and no suppression order was granted. The decision reinforces the importance of maintaining the principle of open justice while also recognising the need to protect sensitive information in appropriate circumstances.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 97 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 there is good reason to do so: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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