Sane v State of Queensland (Queensland Health)

Case [2023] QIRC 143

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sane v State of Queensland (Queensland Health) [2023] QIRC 143

PARTIES:

Sane, Vrunda
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
CASE NO.: PSA/2021/191

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

 26 May 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 or that a decision be removed from publication – 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 remove a decision from publication or suppress the 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

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

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

Sane v State of Queensland (Queensland Health) [2021] QIRC 270

Reasons for Decision

Introduction

  1. On 25 May 2021, Ms Vrunda Sane (the Appellant) filed an appeal against a promotion decision made by the State of Queensland (Queensland Health) (the Respondent). Ms Sane’s appeal was decided on 5 August 2021 and published on the Supreme Court Library website shortly thereafter.[1]

  2. Ms Sane wrote to the Industrial Registry on 23 August 2022 requesting guidance about ‘removing’ this decision from the internet such that it would not be publicly available. The Industrial Registry responded to Ms Sane advising that if she sought an order to suppress the decision, she may file an application in existing proceedings. In its correspondence, the Industrial Registry told Ms Sane that ‘the Commission has no control over the Google search function/results.’

  1. On 11 April 2023, the Appellant filed an application in existing proceedings. In section 4 of her application, Ms Sane says:

This request is to remove the result of my complaint (PSA/2021/191) from being freely available on the INTERNET. I understand that it will be stored in your internal records, which is completely understandable. However, I was not informed that they will be available on the Internet for any of the common public to access.

I work as a genetic counselor [sic] in public and private sector. I see multiple new patients every week.

If I google my name, this document is one of the first hits attached with my name. I do not want this private information RE: internal job promotion available so freely to the general public. Apart from me, this application mentions a number of my colleagues who also work as genetic counselors [sic] in the public as well as private…

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AGLC
Sane v State of Queensland (Queensland Health) [2023] QIRC 143
Case
[2023] QIRC 143
Decision Date

CaseChat Overview and Summary

The matter of Sane v State of Queensland (Queensland Health) involved the Appellant seeking a suppression order to de-identify personal information or to have a decision removed from publication. The Respondent did not oppose the application. The case was heard by the Queensland Industrial Relations Commission, which had to decide whether to grant the application for a suppression order under Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld). This rule allows the Commission to de-identify decisions and redact information from decisions where there is good reason to do so, balancing this against the principle of open justice.

The Commission had to consider whether there was a good reason to de-identify the personal information or remove the decision from publication. The principle of open justice was a central consideration, which requires that justice be seen to be done. However, the principle is not absolute and allows for exceptions, such as to protect the privacy of individuals, particularly those who are victims of sexual assault or discrimination, children, or those whose private financial affairs are relevant to a decision. The Commission also has the power to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm. In deciding whether to exercise the discretion to anonymise a decision, the Commission must weigh these considerations against the principle of open justice.

The Commission determined that there was no good reason to de-identify the personal information or to remove the decision from publication. The Appellant did not provide sufficient justification for the suppression order, and the Respondent did not oppose the application. The Commission considered the principle of open justice and the circumstances of the case but concluded that the public interest in maintaining the transparency of the proceedings outweighed any potential harm to the Appellant. Therefore, the application for a suppression order was not granted.

The orders made by the Commission were that the application is dismissed. The Commission found that there was no good reason to de-identify the personal information or to remove the decision from publication. The principle of open justice and the circumstances of the case did not support the Appellant's request for a suppression order.

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'),[3] 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'.[4] 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,[5] 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,[6] and decisions pronounced, in 'open court';[7] second, that evidence is communicated publicly to those present in the court;[8] 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.[3] [2021] QIRC 263 ('ARBTU v Aurizon').[4] R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259]. [5] Chief Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 Australian Law Journal 290, 292. [6] 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') .[7] Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114, 122; Ho v Loneragan [2013] WASCA 20.[8] A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450.

Ratio Decidendi

Legal Principle Established

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