Mizner v State of Queensland (Corrective Services) & anors

[2024] QCAT 469

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mizner v State of Queensland (Corrective Services) & anors [2024] QCAT 469

PARTIES:

JASON MIZNER

(applicant)

v

STATE OF QUEENSLAND (CORRECTIVE SERVICES)

(respondent)

JOEL SMITH

(second respondent)

APPLICATION NO/S:

ADL004-22

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

29 October 2024

HEARING DATES:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Colin Forrest
Senior Member Traves

ORDERS:

1.    A copy of the reasons of the Tribunal delivered on 13 August 2024 (Reasons for Decision) determining the complaint made by the Applicant and referred to the Tribunal on 24 December 2021 will be prepared, excluding the following paragraphs, which will be marked at the locations of the omitted parts “excluded from publication by order of the Tribunal dated 29 October 2024 until further order”:

a)   subparagraphs (i) to (iii) of paragraph 16;

b)     subparagraphs (i) to (iii) of paragraph 29; and

c)   subparagraph (ii) of paragraph 60.

2. Subject to paragraphs 3 and 4, pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication (other than to the legal representatives of the parties and to the parties themselves) of:

a)   the contents of a document or thing filed in or produced to the Tribunal;

b)     evidence given before the Tribunal; and

c)   subparagraphs (i) to (iii) of paragraph 16, subparagraphs (i) to (iii) of paragraph 29 and subparagraph (ii) of paragraph 60 of the Reasons for Decision, insofar as such publication refers to the Confidential Information (as defined below) is prohibited without further order of the Tribunal.

Confidential Information means the following criteria from any version or iteration of the ‘Prisoner Accommodation Management – Cell Allocation’ Custodial Operations Practice Direction (Cell Allocation COPD):

(a) [excluded from publication by order of the Tribunal dated 29 October 2024 until further order];
(b) [excluded from publication by order of the Tribunal dated 29 October 2024 until further order];
(c) [excluded from publication by order of the Tribunal dated 29 October 2024 until further order].

3.    The Applicant is permitted to publish, for the purposes of any appeal to the Court of Appeal, the Reasons for Decision in this proceeding, the draft (and any further) reasons regarding non-publication, any material filed in these proceedings, anything produced to the Tribunal, and any evidence given before the Tribunal.

4.    A copy of the reasons of the Tribunal with respect to non-publication of the Reasons for Decision (Reasons for Publication Order) (being these reasons, will be prepared and published, excluding any paragraphs that refer to Confidential Information, including in these Orders themselves under the definition “Confidential Information”, marking the locations of the omitted parts with words to the effect of “excluded from publication by order of the Tribunal dated 29 October 2024 until further order”.

5. Pursuant to section 66(1) of the QCAT Act, the publication of the paragraphs in the Reasons for Publication Order that refer to Confidential Information, including in these Orders themselves under the definition “Confidential Information”, other than to the legal representatives of the parties and to the parties themselves, is prohibited without further order of the Tribunal or the Court of Appeal.

6.    For the avoidance of doubt, the reference to the parties insofar as it concerns the Respondents is a reference that includes the employees of the First Respondent.

CATCHWORDS:

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where decision in substantive proceedings delivered – where existing non-publication order held to apply – where non-publication of certain criteria for cell allocation considered necessary to avoid endangering the physical or mental health or safety of prisoners and to avoid publication of confidential information where that would be contrary to the public interest

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66, s 125, s 166

APPEARANCES & REPRESENTATION:
Applicant:	E Lewsey, instructed by Legal Aid Queensland
Respondent:	C Murdoch KC, with A B Fraser, instructed by Crown Law

REASONS FOR DECISION

1. We delivered our decision in substantive proceedings between these parties on 13 August, 2024. Our reasons for decision included reference to matters that had been the subject of a non-disclosure Order made on 29 July 2022 pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) by a different Member of the Tribunal on an interim application relating to the production of documents by the Respondents whilst the substantive proceedings were being case-managed to final hearing.

2. The Applicant had requested production of documents considered relevant to the substantive proceedings. Those included “all versions of the “Do Not Double Up” (DNDU) list criteria and/or any Custodial Operation Practice Directives (COPD) regarding DNDU decisions from July 2020 until [the time of the application]”.

3. In response, the Respondents sought and obtained the non-disclosure Order referred to above on the basis that the documents sought by the Applicant contain highly sensitive information that could reasonably be expected to pose a risk to the security or good order of a corrective services facility.

4. The Tribunal’s Order then prohibited publication (other than to the parties, their legal representatives and a described group of other related persons) of the following documents:-

   (i) copies of all assessments of the Applicant's suitability for shared cell

   arrangements/"Do Not- Double Up" (DNDU) assessments, from approximately 25 January 2017 until the date of the Order;

   (ii) All versions of the DNDU list criteria from July 2020 until the date of the Order;

   (iii) The Applicant’s QCS Psychologist notes/records relating to the Applicant’s ability/inability to share a cell over the period 1 July 2020 to 31 July 2021.  

5. In our recent decision, we relevantly set out some of those DNDU list criteria and we discussed some of the material contained in assessments and QCS Psychologist notes relating to the Applicant’s suitability for shared cell arrangements.   

1. Mindful of the non-publication Order made in 2022, after we delivered our decision in the substantive proceedings, we directed that it not be published to anyone other than the parties until further order, and we invited submissions from the parties as to whether the non-publication Order of 29 July 2022 should be given permanent effect or whether any other non-publication Order should be made and, if so, then in what form.

2. Written submissions were received from the Respondents. After having received those written submissions and having had some time to consider them, the legal representatives for the Applicant advised the Tribunal that the Applicant did not intend to make any submissions on the matter.  

3. For the Respondents, it was submitted that the Order of 29 July 2022 was a final order as it did not specify its duration. It did not say, for example, “until further order” or “until the conclusion of the substantive proceedings in this matter.” Nevertheless, having made that submission, the Respondents set out the terms of an Order that they seek from the Tribunal now “out of an abundance of caution so as to maintain the confidentiality of particular criteria for shared cell arrangements.[1]”  That order they seek is as follows:-

   [1] Respondents’ outline of submissions at paragraph [5].

1. A copy of the reasons of the Tribunal delivered on 13 August 2024 (Reasons for Decision) determining the complaint made by the Applicant and referred to the Tribunal on 24 December 2021 will be prepared, excluding the following paragraphs, which will be marked at the locations of the omitted parts “excluded from publication by order of the Tribunal dated 29 October 2024 until further order”:

(a) subparagraphs (i) to (iii) of paragraph 16;
(b) subparagraphs (i) to (iii) of paragraph 29; and
(c) subparagraph (ii) of paragraph 60.

2. Subject to paragraphs 3 and 4, pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication (other than to the legal representatives of the parties and to the parties themselves) of:

(a) the contents of a document or thing filed in or produced to the Tribunal;
(b) evidence given before the Tribunal; and
(c) subparagraphs (i) to (iii) of paragraph 16, subparagraphs (i) to (iii) of paragraph 29 and subparagraph (ii) of paragraph 60 of the Reasons for Decision, insofar as such publication refers to the Confidential Information (as defined below) is prohibited without further order of the Tribunal.
Confidential Information means the following criteria from any version or iteration of the ‘Prisoner Accommodation Management – Cell Allocation’ Custodial Operations Practice Direction (Cell Allocation COPD):
(a) [excluded from publication by order of the Tribunal dated 29 October 2024 until further order];
(b) [excluded from publication by order of the Tribunal dated 29 October 2024 until further order];
(c) [excluded from publication by order of the Tribunal dated 29 October 2024 until further order].

3. The Applicant is permitted to publish, for the purposes of any appeal to the Court of Appeal, the Reasons for Decision in this proceeding, the draft (and any further) reasons regarding non-publication, any material filed in these proceedings, anything produced to the Tribunal, and any evidence given before the Tribunal.

4. A copy of the reasons of the Tribunal with respect to non-publication of the Reasons for Decision (Reasons for Publication Order) (being these reasons, will be prepared and published, excluding any paragraphs that refer to Confidential Information, marking the locations of the omitted parts with words to the effect of “excluded from publication by order of the Tribunal dated 29 October 2024 until further order”.

5. Pursuant to section 66(1) of the QCAT Act, the publication of the paragraphs in the Reasons for Publication Order that refer to Confidential Information, other than to the legal representatives of the parties and to the parties themselves, is prohibited without further order of the Tribunal or the Court of Appeal.

6. For the avoidance of doubt, the reference to the parties insofar as it concerns the Respondents is a reference that includes the employees of the First Respondent.

1. We are satisfied that if there is no temporal limitation to an Order made pursuant to s.66(1) of the QCAT Act within the Order itself, then there is nothing in the section or the QCAT Act itself that otherwise limits the non-publication Order. In fact, s.125 (2) of the QCAT Act requires the Tribunal to ensure the publication of its final decision or its reasons for its final decision do not include something the subject of a non-publication order if including the thing in the publication of the reasons would contravene the order. Clearly, the effect of this sub-section is that the Order of 2022, with no temporal limitation, is final and should not be overturned except with the consent of the parties or on demonstration of error through the usual appellate process.

2. In any event, we, too, are satisfied, in all the circumstances, that the non-publication provided for in the 2022 Order that is sought to be preserved by the Respondents and given further effect to by the Order they ask the Tribunal to now make, is appropriate. It is appropriate both to avoid endangering the health or safety of inmates and staff at the Wolston Correctional Centre and to avoid the publication of confidential information whose publication would be contrary to the public interest, both relevant criteria under s.166(2). We also observe that the Applicant makes absolutely no submission in opposition to the position advanced for the Respondents. That suggests the Applicant himself does not consider non-publication inappropriate.

[11] Accordingly, we see no reason not to make an Order in the terms now sought by the Respondents and so we do. We just add some further words in paragraphs 4 and 5 of that proposed order so as to include reference to non-publication of the relevant material in the actual order we now make.