QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | XY v State of Queensland (Department of AB) [2025] QIRC 248 |
PARTIES: | XY v State of Queensland (Department of AB) |
CASE NO: | PSA/2025/39 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 16 September 2025 |
MEMBER: HEARD AT: | O'Neill IC On the papers |
ORDERS: | The Orders contained in paragraph [188] of these reasons for decision. |
| CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where appellant has applied for a suppression order – where the appellant seeks suppression of identifying information and sealing of the Commission file – where appellant contends that publication of identifying information will exacerbate the impacts of her psychological condition – where the respondent opposes the application – where principles of open justice apply – consideration of principles of open justice and circumstances where Commission may exercise discretion to suppress publication and order a closed hearing – application for suppression order granted on a limited basis |
LEGISLATION: CASES: | Charter of Human Rights and Responsibilities Act 2006 (Vic) Human Rights Act 2019 (Qld) ss 4, 5, 8, 9, 25, 26, 58 Industrial Relations Act 2016 (Qld) ss 429, 451, 580 Industrial Relations (Tribunals) Rules 2011 (Qld) s 97 Practice Direction Number 3 of 2023 – Modification of a Document Before Publication Practice Direction Number 4 of 2023 – Guideline for the Modification of a Document Before Publication Public Sector Act 2022 (Qld) s 276 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66 AB v State of Queensland (Department of Youth Justice) [2021] QIRC 133 Alpert v Commonwealth of Australia (Department of Defence) [2023] FCA 784 Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 Bare v Independent Broad Based Anti-Corruption Commission (2015) 48 VR 129 Barnett v State of Queensland (Queensland Health) [2022] QIRC 424 Health Ombudsman v XPW [2021] QCAT 403 Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623 J v L & A Services Pty Ltd (No 2) [1993] QCA 012; (1995) 2 Qd R 10 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Johnston v Carroll [2024] QSC 2; (2024) 329 IR 365 Kracke v Mental Health Review Board (2009) 29 VAR 1 Mann v Seafarms Queensland Pty Ltd [2025] QIRC 178 Montesin v Brisbane City Council [2024] QIRC 68 Nesbit v Metro North Hospital and Health Service [2021] ICQ 5 Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 193 RY v State of Queensland (Queensland Health) [2023] QIRC 208 Ryde v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307 Schiffer v State of Queensland (Queensland Health) [2021] QIRC 286 South Australia v Totani (2010) 242 CLR 1 State of Queensland v Together Queensland [2012] QCA 353; [2014] 1 Qd R 257 Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301 Waite v State of Queensland (Department of Environment and Science) [2024] QIRC 144 Wilson v State of Queensland (Queensland Police Service) [2022] QIRC 329 |
Reasons for Decision
Introduction
The substantive appeal is a public sector appeal which challenges a disciplinary action decision against Ms XY ('the Appellant') contained in a decision dated 28 February 2025. The proposed disciplinary action in that correspondence was to redeploy the Appellant to a new role with a consequent reduction in classification from an AO8 down to an AO6(4) role.
The substantive appeal has generated a number of applications in existing proceedings which have been filed by the Appellant. This decision deals with one of those applications. On 3 April 2025, the Appellant filed an Application in Existing Proceedings requesting that a suppression order be made in relation to the file and any decisions released by the Commission.
The other applications that have been filed by the Appellant include:
·an application for a stay of all matters;
·an application for further and better disclosure; and
·an application for an adjournment and for leave to amend two of the earlier applications.
This decision will only deal with the Appellant's application for suppression orders. In summary, in that application, the Appellant seeks the following orders from the Commission:
·A suppression order prohibiting publication or public disclosure of "Protected Information" which encompasses any reference that would enable a third party to identify the Appellant or the Appellant's minor child, including:
(a) The Appellant's name, residential address, personal details, professional information, or other identifying information;
(b) The Appellant's child's name, age, health information, or any information likely to identify the child;
(c) The Appellant's personal or health information;
(d) Financial information, cultural or ethnic background, familial details, or other descriptive elements that could identify the Appellant or her child;
(e) Any reference to an application or software to the extent that such reference would identify the Appellant or her child;
(f) The name of the specific Queensland Government department employing the Appellant, her position title, or workplace-specific information likely to identify the Appellant; and
(g) Any file numbers, job titles, dates, or events likely to identify the Appellant or the Appellant's child.
·That all records, documents, decisions, judgments, annexures, and exhibits containing "Protected Information" must be:
(a) Filed confidentially and clearly marked "CONFIDENTIAL – SUBJECT TO SUPPRESSION ORDER, PSA/2025/39" to prevent inadvertent disclosure;
(b) Sealed and accessible only to the Commission, the parties, and their legal representatives, unless otherwise ordered; and
(c) Redacted or anonymised, where necessary, prior to publication or dissemination.
In addition, the Appellant seeks an order that if any oral submissions include "protected information" that the relevant parts of the hearing being conducted in-camera (or private hearing).
The Appellant relies upon ss 451 and 580 of the Industrial Relations Act 2016 (Qld) ('the IR Act') and r 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IRT Rules') as sources of power for making the suppression orders the Appellant seeks.
In support of the suppression application, the Appellant also relies upon ss 25, 26 and 58 of the Human Rights Act 2019 (Qld) ('the HR Act'). The Appellant contends that those provisions collectively require children and families to be protected by society and the State and that public entities (including the Commission) act compatibly with human rights.
The Appellant bears the onus to demonstrate that circumstances exist which would justify making the proposed suppression orders.
The Respondent opposes the application and submits that the application for suppression (on the terms requested) should be declined. The Respondent notes that it remains open to the Commission to make alternative orders, such as restricting search and copy of the case file or removing any reference to the Appellant's minor child.[1]
[1] Respondent's submissions filed 24 April 2025, [33]-[34].
The issue for my determination is whether the Commission should exercise a discretion to make suppression orders in the terms sought by the Appellant or in some other form.
For the reasons that follow I will grant part of the Appellant's application for suppression orders.
Relevant law
Legislation
Section 451 of the IR Act bestows general powers on the Commission, and relevantly provides:
451 General powers
(1)The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2)Without limiting subsection (1), the commission in proceedings may—
…
(c) make an order it considers appropriate.
Section 580(5) of the IR Act relevantly provides:
(5) The court, commission or registrar may direct—
(a) a report, or part of a report, of proceedings in an industrial cause not be published; or
(b) evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.
(Emphasis added)
Sections 25 and 26 of the HR Act relevantly provide:
25 Privacy and reputation
A person has the right—
(a)not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b)not to have the person's reputation unlawfully attacked.
26 Protection of families and children
(1)Families are the fundamental group unit of society and are entitled to be protected by society and the State.
(2)Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child's best interests, because of being a child.
…
Section 58 of the HR Act relevantly provides:
58 Conduct of public entities
(1)It is unlawful for a public entity—
(a)to act or make a decision in a way that is not compatible with human rights; or
(b)in making a decision, to fail to give proper consideration to a human right relevant to the decision.
…
Rule 97 of the IRT Rules provides the Commission with a power to de-identify decisions and redact information for decisions if there is good reason to do so. Rule 97 relevantly provides as follows:
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.
…
Practice Directions
Practice Direction Number 3 of 2023 – Modification of a Document Before Publication ('Practice Direction 3 of 2023') notes at paragraph 2 that:
Rule 97 of the Industrial Relations (Tribunals) Rules 2011 confers discretion on the Tribunal to, in the public interest or for another reason the Tribunal considers appropriate, modify a document, before publication, in a way that does not affect the essence of the document.[2]
[2] Paragraph 1 of Practice Direction 3 of 2023 defines 'the Tribunal' as including the Industrial Court, Industrial Commission and Industrial Registrar.
Practice Direction Number 4 of 2023 – Guideline for the Modification of a Document Before Publication ('Practice Direction 4 of 2023') also provides the following guidance regarding the modification of a document before publication by the Tribunal in paragraph 2:
Open justice is one of the fundamental principles of our justice system.[3] Generally, all hearings and records of proceedings before the Court or Commission are open to the public. The open justice principle may, on rare occasions, be limited where it is necessary to secure the proper administration of justice.
[3] citing Scott v Scott [1913] AC 417.
Practice Direction 4 of 2023 then observes at paragraph 3 that:
Rule 97 of the Industrial Relations (Tribunals) Rules 2011 confers discretion on the Court, Commission, or Industrial Registrar ('Tribunal') to, in the public interest or for another reason the Tribunal considers appropriate, withhold publication of a document, or modify a document, before publication, in a way that does not affect the essence of the document.
Practice Direction 4 of 2023 also observes at paragraph 4(a) that:
The circumstances where the Tribunal may consider it appropriate, in the public interest or for another reason, to modify a document before publication may include:
(a) not releasing identifying information of:
(i) an individual under 18 years of age;
…
(ix) a public sector employee, within the meaning of the Public Sector Act 2022, where identification of the public sector employee may endanger the public sector employee;
…
Paragraph 5 of Practice Direction 4 of 2023 states that:
The decision as to whether or not a document is de-identified and, if so, to what extent, is a matter for the Tribunal to determine.
Relevant Authorities
The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2),[4] ('J v L& A Services Pty Ltd') established six principles governing the exercise of discretion to issue suppression orders which are as follows:
[4] [1993] QCA 012; [1995] 2 Qd R 10.
1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
2. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…
3. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
5. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
(a) Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
(b) A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
(c) An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
6. ... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…
In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[5] ('Aurizon') the respondent sought to have the names of the individual workers who were involved in the dispute to be de-identified. The application was supported by the applicant union. His Honour, Vice President O'Connor relevantly held as follows:
[5] [2021] QIRC 263, [40]-[46].
[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'. 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, 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, and decisions pronounced, in 'open court'; second, that evidence is communicated publicly to those present in the court; 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.
[45] In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice
[46] As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness'. (citations omitted)
In Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor,[6] Deputy President Merrell reviewed the principles of open justice and the power of the Commission to make a suppression order by reference to a number of authorities as follows:
[6] [2024] QIRC 20.
[14] The relevant principles were recently referred to by Snaden J in Alpert v Commonwealth of Australia (Department of Defence)[7] where his Honour stated:
[7] [2023] FCA 784.
11I recently had occasion to survey the authorities that establish the principles that govern applications such as this one. In Naude v DRA Global Limited [2023] FCA 493, [13]-[15], I made the following observations, namely:
In R v Davis (1995) 57 FCR 512 (Wilcox, Burchett and Hill JJ), this court observed (at 514):
Whatever their motives in reporting, [the media's] opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.
The exclusion of public access to the processes with which a court deals is only to be effected in exceptional cases: The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377, 379 [8] (Allsop CJ, Wigney and Abraham JJ; hereafter "Country Care Group"); David Syme & Co v General Motors-Holden's Ltd [1984] 2 NSWLR 294, 299 (Street CJ), 307 (Hutley AP, Samuels JA agreeing). In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131, Kirby P (in dissent but not on this issue) said (at 142-143):
It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms… A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.
It is well accepted that "…mere embarrassment, inconvenience or annoyance will not suffice to ground an application for suppression or non-publication": Keyzer v La Trobe University (2019) 165 ALD 93, 99 [29] (Anastassiou J). It is a feature of open justice that those to whom court processes refer may thereby suffer embarrassment or distress; but "…that is a price the community has to pay for the undoubted benefit of court proceedings being, except in very exceptional circumstances, conducted in public": Williams v Forgie (2003) 54 ATR 236, 239 [14] (Heerey J).
…
21The propositions just stated were met with muted, if any opposition and, with respect, rightly so. This would not be the first time that a court should recognise what is inherent within them. In AA v BB (2013) 296 ALR 353, 389 [182], Bell J recognised that:
Making a non-publication order may be necessary in cases where, in the absence of an order, parties would be deterred from bringing proceedings for the vindication of their legal rights, such as cases involving victims of blackmail, negligence or sexual assault where the person would suffer public ridicule or acute personal embarrassment if his or her identity were to be disclosed in legal proceedings...
(references omitted)
22Dixon J made an equivalent observation in PPP v QQQ (as the representative of the Estate of RRR (deceased)) [2011] VSC 186, [34], namely:
Commonly, parties might be deterred from bringing or concluding proceedings unless public disclosure of their identities could be prevented or because part of the injury complained of may be exacerbated by public disclosure. Thus, it is regarded as being necessary in the interests of the proper administration of justice that orders be made to encourage such plaintiffs to litigate their allegations, seek redress through the courts and, in proper cases, do so without unreasonable risk of aggravation of their injuries…
23So, too, has this court been moved to recognise the point of principle. In Porter v Australian Broadcasting Corporation [2021] FCA 863 (hereafter "Porter"), Jagot J observed (at [84]):
…The administration of justice may be prejudiced in a variety of ways. If, for example, people cannot come to a court confident that some kinds of information can be protected from disclosure if necessary (such as commercially confidential information valuable to a person or a third party, or sensitive information about a person's health, or personal information about parties or third parties of no more than prurient interest to others) then public confidence in and access to justice may itself be undermined.
24Equivalent observations have been made in this court in connection with the disclosure of sensitive commercial information: Clark v Digital Wallet Pty Ltd [2020] FCA 877, [21] (Abraham J). In Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278, Katzmann J observed (at [148]):
It is in the interests of the proper administration of justice that the value of confidential information not be destroyed or diminished. Otherwise, the parties and members of the public might lose confidence in the Court and the Court's processes "might open the way to abuse"…
(My emphasis added)
I am also guided by the following observations made by his Honour, Deputy President Merrell in Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[8] ('Smith'):
[8] [2021] QIRC 327 at T.1-8, lines 12 to 39 citing J v L & A Services Pty Ltd (No 2) [1993] QCA 012; [1995] 2 Qd R 10 at page 45.
(a) information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm or other collateral disadvantage;
(b) additionally, when it is the interests of a party or witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected;
(c) open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public;
(d) public scrutiny is a strong disincentive to false allegations and a powerful incentive to honest evidence, and publicity may attract the attention of persons with material information who are unaware of the proceeding;
(e) if information is suppressed, proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods, and a particular unsatisfactory manifestation of this difficulty occurs when uncertainty as to the particular person concerned lead to speculation concerning other members of a relevant group;
(f) it is important to remember that what appears to be a more liberal approach involving the exercise of a discretionary power in the interests of an individual involves an erosion of fundamental rights and freedoms of the general public;
(g) the occasional misuse or abuse of these rights and freedoms and other disadvantages associated with public information and discussion, which is sometimes misinformed, together with any resultant harm are part of the cost of living in a free, democratic society; and
(h) it is common for sensitive issues to be litigated and for information, which is extremely personal or confidential to be disclosed, and it is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case-by-case basis according to individual judges' subjective views on the merits or demerits of claims to privacy of individual litigants.
(My emphasis added)
In the Smith decision, Deputy President Merrell also considered it to be a relevant factor to the exercise of the discretion that the nature of the appeal also militated against the making of an order sought by the Appellant. The Smith matter involved a public sector appeal against a disciplinary finding. Deputy President Merrell noted that disciplinary findings had been made against Ms Smith as a public service employee. His Honour noted that there can be no dispute that disciplinary proceedings are for the protection of the public.[9] This was a further factor his Honour relied upon in rejecting the application for a suppression order.
[9] Ibid, T.1-10, lines 30-41 citing Nesbit v Metro North Hospital and Health Service [2021] ICQ 5, at paragraph 99.
Whilst expressing sympathy for the appellant, his Honour confirmed that the appellant's privacy concerns did not overcome the principles of open justice. His Honour noted that the publication of private and embarrassing information was part of the nature of public decisions.[10]
[10] Ibid, T.1-10, lines 16-30.
In Montesin v Brisbane City Council ('Montesin'),[11] her Honour, Deputy President Hartigan rejected an application for re-opening of a re-instatement application and suppression orders.
[11] [2024] QIRC 68.
In the substantive application there had been an application by the respondent, Brisbane City Council for leave to have legal representation. That application gave rise to a reported decision, which had been published on the Supreme Court library website in February 2022.[12]
The applicant subsequently on 14 October 2022 requested that the substantive reinstatement application be discontinued.
The applicant via a google search became aware that a search of his name provided a link to the earlier decision on the Supreme Court library website. The applicant filed his application seeking a suppression of the decision on 13 December 2023, some 14 months after the substantive proceeding had been discontinued.
In support of the application the applicant referred to one occasion in which he was assaulted whilst working and other occasions where he was threatened by members of the public. The applicant also raised concerns regarding the safety of his school age children, because they used public transport, in particular, council buses. In addressing those concerns, her Honour noted:
[41] The Applicant then attempts to draw a connection between the fact that the Decision is available online as posing a safety risk to the Applicant as he is fearful it makes it possible for him to be identified as a local government employee and "possibly tracked down and harmed".
[42] The Applicant also refers to the fact that his children catch public transport, and he fears for their safety as well.
[43] Other than the Applicant's bare assertion that he holds a fear, there is no evidence relied on by him that provides a factual foundation for the concern that he holds.
[44] Relevantly, the Applicant does not point to any occasion since 8 February 2022, when the Decision was published, to provide a basis for the relief sought.[13]
[13] Ibid, [41]-[44], per Hartigan DP.
Submissions
I have considered all of the submissions provided by both parties, in addition to the Appellant's affidavit filed on 3 April 2025. Although some of that material may not be specifically referred to in these reasons, it has been considered in determining the application.
The Appellant has provided multiple grounds in support of her application for a suppression order. In the 'Consideration' section of this decision I intend to summarise the submissions of the parties under each of those grounds. Preliminary submissions from the Appellant and the Respondent on general principles regarding suppression applications are summarised in the following paragraphs.
The Appellant notes that the principle of open justice serves to maintain transparency and accountability in judicial and quasi-judicial proceedings.
The Appellant then contends that r 97 of the IRT Rules, recognises that this openness can yield to confidentiality where it is in the public interest or for other compelling reasons, such as preventing serious harm or injustice to a party (particularly a vulnerable party). In such instances, redacting or anonymising identifying information is appropriate.
The Appellant submits that the Commission's Practice Directions 3 and 4 of 2023 similarly acknowledge that protective orders (including non-publication or pseudonym orders) may be warranted if the risk of harm, stigma, or injustice outweighs the benefits of complete openness.
The Appellant submits that when deciding whether to make such an order, the Commission performs a balancing test, weighing:
a. The importance of open justice and public scrutiny of Commission proceedings;
b. The nature and extent of the potential harm or prejudice to the Appellant (and her child) if personal details are publicised;
c. The potential for unlawful or arbitrary interference with the Appellant's (and her child's) privacy or reputation under section of the HR Act; and
d. Whether a more limited restriction (e.g., partial redaction) would suffice to prevent serious harm.
The Respondent submits that the principles relating to the exercise of discretion to suppress information have been well established, with the starting point being the "fundamental principle of open justice: 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'".[14]
[14] Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263, [40] per O'Connor VP (citations omitted).
The Respondent further contends that the exercise of a suppression discretion should only occur in exceptional circumstances,[15] and no unnecessary restriction on public access / publication is permissible.[16]
[15] Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor [2024] QIRC 20, [14] per Merrell DP citing Alpert v Commonwealth of Australia (Department of Defence) [2023] FCA 784.
[16] Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 193, [17] per Pratt IC (citations omitted).
The Respondent submits that a comprehensive examination of the principles and recent case law surrounding the exercise of discretion was undertaken by Industrial Commissioner Pratt in Patterson v State of Queensland (Queensland Corrective Services)[17] which provides useful precedent and guidance in this matter:
(a)there must be an appreciable prejudice to the administration of justice or other relevant harm to warrant the imposition of restrictions on public access/recording;
(b)different degrees of restraint are available for different purposes;
(c)embarrassment, loss of privacy, distress and financial harm or other 'collateral damage' are not, in and of themselves, sufficient to warrant the exercise of discretion; and
(d)sensitive, personal and confidential information is commonly litigated and disclosed; the principles of open justice should not be 'whittled away' on a case-by case basis.
[17] [2024] QIRC 193.
The Respondent notes that the Appellant's application appears to be predicated, in part, on a number of assumptions about the information that would be revealed/available in a published decision (for example her residential details, cultural or ethnic background, or her child's name, age, or health information.
The Respondent submits that it is unclear whether the Appellant understands that public sector appeal decisions are not published with the entirety of an application, party submissions or documents supplied to the Commission appended to the decision. The Respondent notes that such decisions are only published with those details that the decision maker considers relevant to explaining their decision.
The Respondent contends that a suppression order is not required for matters that are not material to, or relied upon in the decision.[18] A suppression order should not be granted for matters that effect the essence of the decision.[19]
[18] MacKenzie v State of Queensland (Department of Employment, Small Business and Training) [2023] QIRC 123, [53] per Hartigan DP; Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167.
[19] Waite v State of Queensland (Department of Environment and Science) [2024] QIRC 144, [27] per Power IC.
Consideration
In the submissions attached to the Form 4 Application the Appellant seeks suppression orders pursuant to ss 451 and 580 of the IR Act and r 97 of the IRT Rules.
The relevant source of power in s 580 of the IR Act for making a suppression order is s 580(5) which specifically notes that a direction may be given in an 'industrial cause'.
The phrase 'industrial cause' is defined to include an 'industrial matter' and an 'industrial dispute'.[20] I further note that an 'industrial dispute' is defined as being a dispute or situation likely to give rise to a dispute about an industrial matter.[21]
[20] Industrial Relations Act 2016 (Qld) Schedule 5 ('Sch 5').
[21] Ibid, Sch 5.
In Schedule 5 under the definition of 'industrial matter', the reader is referred to s 9 of the IR Act which relevantly provides as follows:
9 What is an industrial matter
(1) An industrial matter is a matter that affects or relates to -
(a) work done or to be done; or
(b) the privileges, rights or functions of -
(i) employers or employees; or
(ii) persons who have been, or propose to be, or who may become, employers or employees; or
(c)a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.
(2) However, a matter is not an industrial matter if it is the subject of a proceeding for -
(a) an indictable offence; or
(b) a public service appeal.
(3) Without limiting subsection (1) or affecting subsection (2) , a matter is an industrial matter if it relates to a matter mentioned in schedule 1.
(Emphasis added)
The substantive appeal to which the suppression application relates is a public sector appeal brought by the Appellant under the auspices of the Public Sector Act 2022 (Qld) ('the PS Act'). Pursuant to s 9(2)(b) of the IR Act, this type of appeal is not an industrial matter and therefore it cannot be an 'industrial cause'.
This means that s 580 of the IR Act cannot be a source of power for a suppression order given the nature of the substantive appeal.
Human Rights Act 2019
The Appellant also places some reliance on ss 25, 26 and 58 of the HR Act, which the Appellant submits require children and families be protected by society and the State and that public entities (including the Commission) act compatibly with human rights.
The Appellant submits that s 25 of the HR Act specifically provides that a person has a right not to have their privacy, family, home, or correspondence unlawfully or arbitrarily interfered with, and not to have their reputation unlawfully attacked.
The first issue that will require determination is the extent to which the provisions cited by the Appellant apply to the Commission when exercising its jurisdiction to make a suppression order.
The necessary starting point is a consideration of the relevant text of the HR Act.
Section 3 of the HR Act states the main objects as follows:
3 Main objects of Act
The main objects of this Act are—
(a) to protect and promote human rights; and
(b) to help build a culture in the Queensland public sector that respects and promotes human rights; and
(c) to help promote a dialogue about the nature, meaning and scope of human rights.
Section 4 of the HR Act outlines how the objects are to be primarily achieved as follows:
4 How main objects are primarily achieved
The main objects are to be achieved primarily by—
(a) stating the human rights Parliament specifically seeks to protect and promote; and
(b) requiring public entities to act and make decisions in a way compatible with human rights; and
…
(f) requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights; and
(g) conferring jurisdiction on the Supreme Court to declare that a statutory provision can not be interpreted in a way compatible with human rights; and
…
(Emphasis added)
Section 5(1) of the HR Act states that the Act binds all persons, including the State. Section 5(2) of the HR Act relevantly provides:
(2) This Act applies to—
(a)a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3; and
(b)the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3; and
(c)a public entity, to the extent the public entity has functions under part 3, division 4.
(Emphasis added)
In Wood v The King & Anor,[22] his Honour, Davis J in the Supreme Court noted that s 5 of the HR Act, consistently with s 4 of that Act, confirms that functions are bestowed upon all three branches of government. His Honour went on to note that s 5(2(a) concerns the judicial arm of government and prescribes how the HR Act applies to the courts.[23]
[22] [2022] QSC 216.
[23] Ibid, [62].
Sections 8 and 13 of the HR Act relevantly provides:
8 Meaning of compatible with human rights
An act, decision or statutory provision is compatible with human rights if the act, decision or provision –
(a) does not limit a human right; or
(b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
13 Human rights may be limited
(1) A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant –
(a) nature of the human right;
(b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic.
Section 48 of the HR Act is contained in Part 3, Division 3 of the HR Act. Pursuant to s 5(2) of the HR Act the HR Act applies to the extent that a court or tribunal has functions under Part 2, and Part 3, Division 3. Section 48 relevantly provides:
48 Interpretation
(1)All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
(2)If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
The above provisions from the HR Act provide the context for the following analysis as to the extent to which the HR Act impacts the present application for a suppression order.
It is well established that the HR Act and the Victorian equivalent Act[24] do not confer directly enforceable rights or provide independent remedies.[25] Put in another way, the fact that the Appellant is able to establish that one of the rights contained in Part 2 of the HR Act applies, the existence of that right will not (of itself) provide a basis for a suppression order being made in this case.
[24] Charter of Human Rights and Responsibilities Act 2006 (Vic).
[25] Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623 at [197], Bare v Independent Broad Based Anti-Corruption Commission (2015) 48 VR 129 at [184], [443], [668].
The Appellant's reliance on the HR Act provisions applying to the QIRC appears to be premised on an understanding that the Commission falls within the meaning of a 'public entity' in s 9 of the HR Act, although the submissions do not make clear which sub-provision the Appellant relies upon.
It appears most likely that the Appellant relies upon s 9(1)(a) of the HR Act which relevantly provides that a government entity within the meaning of s 276 of the PS Act is a public entity.
Section 276(2)(g) of the PS Act provides that a court of the State is not a government entity.
Section 429 of the IR Act provides that the Queensland Industrial Relations Commission is established as a court of record in Queensland.
I therefore conclude that for the purposes of s 9(1)(a) of the HR Act, the Commission is not a public entity.
The other relevant possibility from s 9 of the HR Act is s 9(1)(f), which provides that an entity established under an Act when the entity is performing functions of a public nature.
That provision in my view is overridden by s 9(4)(b) of the HR Act which provides that a public entity does not include a court or tribunal, except when acting in an administrative capacity.
As a consequence of the interplay in those provisions, the Commission will only be a public entity when it is acting in an administrative capacity. The HR Act will have a limited impact when the Commission is exercising judicial power.[26]
[26] Wood v The King & Anor [2022] QSC 216, [65] per Davis J.
Making a determination of existing rights and liabilities has been accepted as the defining characteristic of the judicial function.[27] Determining an application for a suppression order like the present application involves the exercise of judicial power by the Commission.[28]
[27] State of Queensland v Together Queensland [2012] QCA 353; [2014] 1 Qd R 257 [69] (Holmes, Muir and White JJA); South Australia v Totani (2010) 242 CLR 1, 86 per Hayne J.
[28] Ryde v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307, [45] per Dwyer IC.
A court or tribunal is only subject to s 58 of the HR Act when it is exercising administrative power (as a consequence of s 9(4)(b) of the HR Act).[29] I am therefore satisfied that s 58 of the HR Act has no application in the determination of the present application and that provision is not engaged.
[29] Wood v The King & Anor [2022] QSC 216, [65] per Davis J.
The proper construction of the HR Act is made more difficult because there appears to be a clear contradiction between the requirement in s 5(2)(a) of the HR Act for a court or tribunal to act compatibly with human rights and s 9(4) which limits the application of the Act to instances where the court or tribunal is exercising administrative power.
This contradiction has been the subject of consideration by the Supreme Court in Queensland. In Wood v The King & Anor,[30] Davis J provided the following observations about reconciling these provisions:
[30] Ibid, [73] – [75]. See also Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623, [219]-[224] per Ryan J.
[73] Difficulties have been encountered with reconciling the equivalent in the Victorian Act to s 5(2)(a) of the Act with the equivalent in the Victorian Act of ss 9 and 58. The conflict is that s 5(2)(a) applies the Act to courts and tribunals exercising functions under Part 2 and Division 3 of Part 3, whereas ss 9 and 58 only seemingly apply human rights to judicial consideration where the court or tribunal is exercising administrative power.
[74] In Kracke v Mental Health Review Board, the construction issue was resolved by adoption of what was described as "the intermediate interpretation" as follows:
250The intermediate interpretation is that the functions referred to in s 6(2)(b) are the functions of applying or enforcing those human rights that relate to court and tribunal proceedings. I think this is the correct interpretation because it respects the structure of the Charter, is most consistent with its purposes in the context of that structure and gives the opening words of s 6(2), and the words 'functions under Part 2' in s 6(2)(b), an appropriately general meaning. …
254In conclusion, under s 6(2)(b), the Charter applies to courts and tribunals 'to the extent that they have functions under Part 2 and Division 3 of Part 3'. The functions under Pt 2 that potentially apply are the functions of applying or enforcing the human rights specified in Pt 2 that relate to court or tribunal proceedings being those specified in ss 10(b) (in its reference to punishment), 21(5)(c), (6), (7), (8) [instances of the right to liberty and security of person which speak of the court's role], 23(2), (3) [children in the criminal process], 24(1), (2), (3) [fair hearing], 25 [rights in criminal proceedings], 26 [right not to be tried or punished more than once] and 27 [retrospective criminal laws] of the Charter. The actual engagement and application of these human rights for courts and tribunals depends upon the scope of the right concerned and the facts and circumstances of the individual proceeding.
[75] That statement of principle made in Kracke was followed by Ryan J in Innes v Electoral Commission of Queensland (No 2). In the absence of a decision of the High Court or an intermediate court of appeal to the contrary, I should and will follow her Honour. (citations omitted)
In light of the above, I will also adopt the intermediate approach in determining this application.
The Commission's function in the present application is to determine whether a discretion should be exercised in favour of granting some form of suppression order.
In analysing the rights set out in Part 2 of the HR Act, I am satisfied that the rights that are potentially engaged are the right to privacy and reputation;[31] the right to protection of families and children;[32] and the right to a fair hearing.[33]
[31] Human Rights Act 2019 (Qld) s 25.
[32] Ibid, s 26.
[33] Ibid, s 31.
Regarding the application of right to privacy and reputation in this matter, I note that the right to privacy is a right to not have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with. (emphasis added)
Some guidance as to the meaning of the underlined terms can be found in the decision of the Victorian Court of Appeal in Thompson v Minogue[34] ('Minogue') which dealt with the equivalent right to s 25 of the HR Act in the Victorian legislation (s 13 of the Charter of Human Rights and Responsibilities Act 2006)[35] where the Court of Appeal held:
·an unlawful interference with a person's privacy is one which infringes an applicable law;[36]
·an arbitrary interference is one which is capricious, or has resulted from conduct, which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought;[37]
·the phrase '…unreasonable in the sense of not being proportionate to the legitimate aim sought' requires a broad and general assessment of whether, in all the circumstances, the interference extends beyond what is reasonably necessary to achieve the statutory or other lawful purpose being pursued;[38] and
·the proportionality that inheres in non-arbitrariness is not the same thing as proportionality for the purposes of s 13 of the Human Rights Act 2019.[39]
[34] [2021] VSCA 358; (2021) 67 VR 301.
[35] Section 13 of the Charter of Human Rights and Responsibilities Act 2006 provides:
[36] Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301 [49] (Kyrou, McLeish and Niall JJA).
[37] Ibid, [55].
[38] Ibid, [56].
[39] Ibid, [56] and Johnston v Carroll [2024] QSC 2; (2024) 329 IR 365, [367](f) (Martin SJA).
The Respondent in its submissions addressing the Appellant's reliance upon ss 25 and 26 of the HR Act note as follows:
(a)The provisions of the HR Act are not absolute, and that a right may be limited where reasonable and demonstrably justifiable.[40]
(b)The publication of information authorised by law is not an arbitrary breach of privacy and provides demonstrable justification for any limitation on the rights of the family and child. The Respondent contends that any other interpretation would be completely inconsistent with a multitude of cases.[41]
[40] Human Rights Act 2019 (Qld) s 8.
[41] Citing as an example, Neil v Lee (No. 2) [2024] QIRC 149.
An unlawful interference is one which infringes an applicable law. The Appellant does not identify any applicable law that she alleges is being infringed.
I am not satisfied that the publication in a Commission decision of information:
·provided by the Appellant:
o in the course of an appeal process commenced by the Appellant; or
o in the course of an application in existing proceedings filed by the Appellant (as part of that appeal process);
·which is relevant to the determination of that proceeding, could be found to be in anyway an unlawful interference, or to arbitrarily interfere with the Appellant's right to privacy.
I am further satisfied that the inclusion of such information in a decision could not constitute an unlawful attack on the Appellant's reputation.
In light of those findings, I am not satisfied that the right to privacy and reputation contained in s 25 of the HR Act is in fact engaged in this matter.
If I am in error in that finding, I am satisfied that pursuant to ss 8 and 13 of the HR Act it would be reasonably and demonstrably justifiable to limit the Appellant's right to privacy and reputation by publishing information she had supplied which was relevant to the determination of an issue before the Commission. This limitation would be in my view entirely consistent with the principle of open justice and the requirement in s 31(3) of the HR Act that all judgments or decisions made by a court or tribunal in a proceeding must be publicly available.
Regarding s 26 of the HR Act, this relevantly provides:
26 Protection of families and children
(1)Families are the fundamental group unit of society and are entitled to be protected by society and the State.
(2)Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child's best interests, because of being a child.
(3)Every person born in Queensland has the right to a name and to be registered, as having been born, under a law of the State as soon as practicable after being born.
I am not satisfied that s 26(3) of the HR Act has any relevance to the present application.
For similar reasoning as is set out immediately above for the rights provided by s 25 of the HR Act, I am not satisfied that the publication of information provided by the Appellant in a decision of the Commission which determines either an appeal or an application that has been brought by the Appellant would constitute an interference with either of the rights provided by s 26(1) and (2) of the HR Act.
Once again, if I am in error in that finding, I am satisfied that pursuant to ss 8 and 13 of the HR Act it would be reasonably and demonstrably justifiable to limit the Appellant's right to protection of families and children by publishing information she has supplied which was relevant to the determination of an issue before the Commission. This limitation would be in my view entirely consistent with the principle of open justice and the requirement in s 31(3) of the HR Act that all judgments or decisions made by a court or tribunal in a proceeding must be publicly available.
Regarding s 5(2)(a) of the HR Act, this leaves for consideration the application of Division 3 of the HR Act.
Pursuant to s 5(2)(a) of the Act, in exercising its functions the Commission has to consider Division 3 of the HR Act. The relevant provision in Division 3 for the present application is section 48 which deals with interpretation (this is excerpted at paragraph 60).
The relevant statutory provisions for the purpose of the Appellant's application for a suppression order are ss 451 and 580 of the IR Act and r 97 of the IRT Rules. I am not satisfied that there is any ambiguity in those provisions which would give rise to the need to apply s 48 of the HR Act.
I am therefore satisfied that the relevant provisions of the HR Act have no meaningful application in determining the present application for a suppression order.
Protection of families and children
The first ground relied upon by the Appellant is that a suppression order is warranted in this matter to protect the Appellant's privacy and that of the Appellant's child. The Appellant contends that public disclosure of a minor's neurodiversity or a parent's mental health ("Protected Information") poses a significant risk of undue harm, detrimental stigma, or discrimination both to the Appellant and her child.[42]
[42] Form 4 Application filed 3 April 2025, [29] ('the Application'); Appellant's affidavit filed 3 April 2025, [9].
The Appellant's reliance on ss 25 and 26 of the HR Act has been addressed above.
The Respondent in its submissions notes that:
(a)Details of the Appellant's child (including their name, age or health information) are irrelevant to the decision under review. The Respondent notes that whilst there is some reference to the child in the discipline correspondence, these references are not material to the decision.
(b)The Appellant has provided no information as to how her child would be harmed as a result of information reasonably likely to be included in the appeal decision being published.[43]
(c)The Respondent contends that in the absence of evidence demonstrating reasonable concerns, a suppression order should not be granted.[44]
[43] The Respondent acknowledges that sensitive medical information is referenced in the Appellant's submissions, however, the Respondent respectfully questions the degree to which such information would need to be detailed in any decision.
[44] Montesin v Brisbane City Council [2023] QIRC 068, [51]-[56].
In her reply submissions, the Appellant in response to the Respondent's contentions that the Appellant has not provided information as to how her child would be harmed as a result of information reasonably likely to be included in the appeal decision the Appellant:
·relies upon her affidavit and the evidence contained in the medical report of Dr Khoo, Psychiatrist which she submits establishes a concrete, medically certified risk of harm.
·This is premised on the following chain of reasoning, public identification of her name, personal and professional details will foreseeably precipitate psychiatric relapse, which would compromise the Appellant's ability to care for her son.
It is important in my view to note that the context in which this suppression application is brought is a public sector appeal commenced by the Appellant in which the Appellant has chosen to disclose personal information.
The starting point of the assessment as to whether this ground supports the Commission making a suppression order in the terms sought by the Appellant is the open justice principle.
As confirmed by his Honour Vice President O'Connor in the Aurizon[45] decision, the fundamental principle of open justice is 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'.
[45] [2021] QIRC 263 [40]-[46].
To the extent that the Appellant's child, his health or well-being have been mentioned either in the disciplinary process or in this appeal process, it is because these matters have been raised by the Appellant.
I accept the submission made by the Respondent that details of the Appellant's child (including their name, age or health information) are irrelevant to the decision under review and to the issues to be determined in the appeal.
I note that paragraph 4(a)(i) of Practice Direction 4 of 2023 confirms that a reason to modify a document before publication may include not releasing identifying information of an individual under 18 years of age.
I am therefore satisfied that if it is necessary to make some mention of the Appellant's child in a subsequent decision, the child's name will be anonymised. This is consistent with the approach taken by the Commission in Mann v Seafarms Queensland Pty Ltd.[46]
[46] [2025] QIRC 178.
In relation to this ground and the privacy concerns raised by the Appellant, the authorities I have cited, and excerpted above confirm in no uncertain terms that an individual's privacy concerns are not a sound basis to set aside the principle of open justice. Information may not be withheld from the public to save a party from loss of privacy, embarrassment, distress, financial harm or other ''collateral disadvantage''.[47]
[47] J v L & A Services Pty Ltd (No 2) [1993] QCA 012; [1995] 2 Qd R 10 at 44-45.
I am not satisfied on the basis of the information and submissions provided by the Appellant that a suppression order is warranted on this grounds.
Vulnerability of a minor
The Appellant submits that her child is referenced in the disciplinary and appeal documents and as a minor, her child warrants heightened legal protection under s 26 of the HR Act.
The Appellant contends that public disclosure of the child's identity, personal circumstances, a parent's personal vulnerability could trigger undue detrimental stigma, discrimination, or public scrutiny of both the child and the Appellant.[48]
[48] Application, (n 42), [36]; Appellant's affidavit, (n 42), [12].
The Appellant further submits that such disclosure would constitute an arbitrary interference with the child's privacy under s 25(a) of the HR Act, as it reveals personal and familial information without a justifiable reason.
The Respondent submits that this ground appears to be a restatement of the arguments under the ground "protection of families and children" and relies upon its earlier submissions in relation to that ground.
For the reasons set out above when considering the application of the HR Act and under the ground "protection of families and children", I am not satisfied that the Appellant has established an entitlement to a suppression order on this ground.
Respondent's breaches of Directives 01/24, 05/23, and the PS Act (including Code of Practice and WHS Act)
In summary, the Appellant alleges that the Respondent has allegedly breached the Directives set out above and the PS Act in the manner in which it has conducted the disciplinary process.
The Appellant contends that the Respondent commenced an "investigation" into her alleged actions of downloading unauthorised software on to the Appellant's work laptop and that "investigation" was conducted in a manner which contravened the processes established under Directive 01/24 Workplace Investigations ('Directive 01/24'), including a failure to issue a confidentiality directive in a timely manner. The Appellant alleges that the delayed confidentiality measures inadvertently caused information about the investigation to spread and circulate amongst colleagues and departmental employees.
The Appellant further alleges that a workplace instruction to leave her replacement laptop in a cupboard outside the Executive Director's office every afternoon caused workplace
commentary and jokes, which caused her distress.The Appellant submits that irrespective of any disciplinary sanction, the Appellant has effectively borne a substantial penalty in the form of significant and serious harm resulting from the Respondent's investigation and its mismanagement thereof, contravening:
(a)Clause 5.2(a) of Directive 01/24: Failure to treat the Appellant fairly and reasonably;
(b)Clause 5.6(g) of Directive 01/24: Failure to implement timely confidentiality measures thereby undermining a fair investigation;
(c)Clause 5.10 of Directive 01/24, the Code of Practice and the WHS Act Failure to consider the Appellant's deteriorating health, despite her direct correspondence to the Respondent, a medical certificate, and repeated sick leave;
(d)Clause 9.1 of Directive 01/24: Reclassifying the "investigation" as "administrative action" to circumvent mandatory investigation obligations and responsibilities under the PS Act; and
(e)Clauses 9.3(b) and 9.3(d) of Directive 05/23 Discipline ('Directive 05/23'): Engaging Strive Occupational Rehabilitation ("Strive"), which notified the Appellant of disciplinary proceedings before finalising its investigation and without providing specific allegations, potential grounds for discipline, or supporting evidence.
The Appellant submits that within 24 hours of receiving Strive's written notification she sustained serious harm. The Appellant further relies upon her suspension since 23 October 2024, which she contends has isolated her professionally and effectively revealed the existence of a disciplinary process to colleagues and clients, thereby increasing the risk of reputational harm, detrimental stigma, discrimination and prejudice.
The Appellant submits any public disclosure of the Appellant's "Protected Information" would constitute an additional penalty beyond any formal disciplinary outcome, violating the principle of proportionality in disciplinary proceedings and inflicting undue harm on the Appellant's personal vulnerability and professional standing.
The Appellant notes that she has been suspended since 23 October 2024, isolating her professionally and effectively revealing a disciplinary process to colleagues and clients, thereby increasing the risk of reputational harm, detrimental stigma, discrimination and prejudice.
The Appellant contends that multiple departmental employees already possess knowledge of the matter as demonstrated in the Appellant's affidavit. The Appellant in the affidavit filed in support of the application deposes to observing an unusual and marked increase in departmental and other Queensland Government employees viewing her Linkedin profile.[49]
[49] Appellant's affidavit, (n 42), Exhibits D5 and D6.
The Appellant further contends that whilst the Commission may not ultimately decide upon the validity of each alleged breach, the context of delayed and/or inadequate confidentiality measures demonstrate the continuing risk of further disclosure and harm. The Appellant contends that a formal suppression order is thus warranted to mitigate additional and further reputational damage, and psychological harm.
The first point taken by the Respondent in its submissions is that the Appellant's arguments in support of this ground are predicated on an assumption that her characterisation of events will be accepted by the Commission. The Respondent refutes the various allegations made by the Respondent.
In relation to the screen-shots from the Appellant's Linkedin profile, the Respondent submits that the fact that persons within the broader Queensland Government or IT sectors may have viewed the Appellant's profile is not evidence of a breach of confidentiality.
The Respondent further submits that the Appellant appears to misunderstand confidentiality – that people may have made assumptions that a human resource process was occurring because of management actions put in place to minimise ongoing risk is not a breach of confidentiality.
The Respondent submits that in any event, an (alleged) breach of legislation does not justify a suppression order.
To the extent that the Appellant's reply submissions dated 6 May 2025 address the Respondent's submissions under this ground, I have noted the Appellant's reply submissions.
It is not necessary for the Commission to make findings as to whether the Appellant's various allegations regarding the Respondent's alleged failure to comply with the above named Directives and the PS Act have been established.
Even if the Appellant's allegations at their highest are accepted, I am not satisfied that any of the alleged breaches by the Respondent provide a basis for a suppression order being made. An alleged breach of a Directive, Code of Conduct or the PS Act by a government employee or entity has not been recognised as a permitted exception to the principle of open justice.
I do not accept that an increase in Government employees accessing the Appellant's Linkedin page is evidence of a breach of confidentiality having occurred.
The Court of Appeal in J v L & A Services Pty Ltd(No 2)[50] confirmed that information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage'.
[50] [1993] QCA 012; [1995] 2 Qd R 10 at 44-45.
I am not satisfied that the matters raised by the Appellant go beyond the issue of reputational damage or perceived detrimental stigma or concern about professional damage. There is no evidence of the Appellant experiencing actual discrimination or prejudice in my view.
As noted by the Court of Appeal in J v L & A Services, when it is the interests of a party which is relied upon as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of other involved in the proceeding and others who may be affected.
I also take particular note of the observation made by Deputy President Merrell in Smith[51] that it is common for sensitive issues to be litigated and for information, which is extremely personal or confidential to be disclosed, and it is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case-by-case basis according to individual judges' subjective views on the merits or demerits of claims to privacy of individual litigants.
[51] [2021] QIRC 327 at T.1-8, lines 12 to 39.
As noted earlier, the Smith decision was a public sector appeal in relation to a disciplinary finding. Deputy President Merrell specifically noted that there can be no dispute that disciplinary proceedings are for the protection of the public and this was something that also militated against a suppression order being made.[52] The same situation arises in the present matter.
[52] Ibid, T.1-10, lines 30-41 citing Nesbit v Metro North Hospital and Health Service [2021] ICQ 5, at paragraph 99.
For the reasons set out above, I am not satisfied that the Appellant has established a basis for a suppression order being granted on this ground.
Impact on employment with RespondentThe next ground relied upon by the Appellant is the potential impact on her employment if a suppression order is not made. The Appellant contends that permanent relocation or redeployment may not shield her from workplace discussions generated by disclosed appeal details.
The Applicant also cites the decision of Industrial Commissioner Dwyer in RY v State of Queensland (Queensland Health)[53] where it was held that publishing an appellant's name could lead to unfair and harmful stigma, making employment untenable, effectively imposing a penalty beyond what is warranted. The relevant passages from that decision are as follows:
[34] Noting the importance of strict adherence to the principles of open justice and the limited exceptions, I consider there is a compelling reason why the Appellant's name ought to be suppressed in this matter. While I wholly accept that embarrassment to a party is not a sufficient basis to deviate from the importance of open justice, I consider that the potential for stigmatisation of the Appellant in this matter goes beyond mere embarrassment.
…
[37] It would be a grave injustice if the publication of the Appellant's name led to her being unfairly and harmfully stigmatised. It would potentially make her employment untenable which would indirectly impose a greater penalty on the Appellant than was warranted.
[38] While I accept that the risk of such harm to the Appellant might be low, the consequences if it does occur are sufficiently serious and unjust that non-publication is appropriate in my view.[54]
[53] [2023] QIRC 208.
[54] Ibid, [34], [37]-[38].
By analogy, the Appellant contends that public disclosure of the Appellant's protected information could subject her to detrimental stigma, prejudice and reputational harm, impairing her ability to continue her role, or transfer seamlessly within the Department, thereby compounding the disciplinary process impact.
In the Respondent's submissions, the Respondent rejects the assertion that her privacy and reputation would be unlawfully breached by publication of the decision. The Respondent contends that compliance with the rule of law is, by definition, a lawful act, and any impact on privacy or reputation as a result of the Appellant's own conduct and decision to pursue this appeal process, does not provide justification for a suppression order.[55]
Whilst acknowledging the decision of Industrial Commissioner Dwyer in RY v State of Queensland (Queensland Health),[56] the Respondent goes on to note:
[56] [2023] QIRC 208.
·There are a significant number of decisions that deal with impact on professional reputation, where it has been determined that the potential harm (including professional and financial damage) are insufficient to warrant a departure from the principles of open justice.[57]
·The statement of Industrial Commissioner Dwyer in AB v State of Queensland (Department of Youth Justice):[58]
[9] The details of a grievance before the Commission and the identity of persons involved will always be generally in the public interest. What the Commission regards as an acceptable standard of conduct of employees, or the reasonable standards of conduct that may be required by an employer, or (more importantly) the appropriate sanctions imposed on employees for misconduct, are matters of acute public interest. Such matters should be on the public record to inform not just the parties to proceedings, but the public at large of these standards and expectations.
[10] The identity of a person accused of misconduct is information no less important to the public. In this instance, if the outcome of the appeal is vindication for the applicant, then he will have that on public record and it ought to mitigate any adverse impact of having been the subject of allegations. Alternatively, if the outcome in this matter (or some other matter involving these facts) is an adverse finding for the applicant, the Commission should not suppress his name lest it be complicit in, for example, denying a prospective employer an opportunity to be informed of these important issues in its consideration of the applicant's suitability for employment.
·Industrial Commissioner Dwyer determined that the facts in RY v State of Queensland established that the potential for stigmatisation of the appellant went beyond mere embarrassment. The Respondent contends that the Appellant has not demonstrated such a consequence in this matter.
[57] The Respondent cites the extensive list of cases cited at footnote 51 in Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 193.
[58] [2021] QIRC 133, [9]-[10] per Dwyer IC.
In her reply submissions in relation to this ground, the Appellant submits that the purpose of the order is not intended to shield 'professional reputation' or avert mere 'embarrassment'. The Respondent goes on to contend that Dr Khoo's undisputed opinion confirms a clinically significant risk of psychiatric relapse if identifying details are published.
The difficulty with this submission is that the risk of a psychiatric relapse is relevant to another ground relied upon by the Appellant, that is, 'serious risk of harm', but is of minimal relevance to this ground which relates to the impact on the Appellant's employment with the Respondent. The Appellant has conflated the issue of risk of harm into her submissions in a number of her other grounds relied upon to support the application for a suppression order.
The authorities as a general rule have not accepted potential damage to an applicant's reputation, or to avoid gossip and embarrassment, maintain privacy, or impact on future employment prospects as being a valid reason to suppress an applicant's identity.
To the contrary, authorities such as Smith[59] have noted the importance in the context of public sector appeals arising from disciplinary proceedings that the details of the appellant and other private information not be suppressed given the nature of the appeal and that such appeals are for the protection of the public.
[59] [2021] QIRC 327.
As submitted by the Respondent, Industrial Commissioner Dwyer in AB v State of Queensland (Department of Youth Justice)[60] dismissed an application for a suppression order by an appellant who alleged that publication of the details of his alleged conduct may negatively impact on his professional and personal life. In the relevant paragraphs of the decision excerpted at paragraph [139] above, Industrial Commissioner Dwyer emphasised the importance of the open justice principle in providing relevant information to future employers.
[60] [2021] QIRC 133.
In Barnett v State of Queensland (Queensland Health),[61] the Appellant Ms Barnett applied for a suppression order once again in a public sector appeal arising from a disciplinary process. The basis for the application was that that information that is published and searchable regarding the appeal could adversely affect the Appellant's reputation and future career.
[61] [2022] QIRC 424.
Industrial Commissioner Power dismissed the application and noted at paragraph [22]:
It is not unusual for parties in proceedings of this type to indicate a preference to have the details of any contentious workplace issues, including names of those involved, remain confidential. However, in most circumstances, this preference alone is not consistent with the primacy of open justice and the requirement that proceedings are on the public record to inform both the parties to the proceedings and the public at large. To justify withholding information from the public, information of specific harm, in the nature of that outlined in J v L & A Services Pty Ltd (No 2) must be evident. That information is not present in this matter.[62]
[62] Ibid, [22] per Power IC.
In Wilson v State of Queensland (Queensland Police Service),[63] Industrial Commissioner Dwyer, once again in the context of an application for a suppression order in a public service appeal noted:
[60] Further, the suppression of Ms Wilson's name purely to protect her reputation and further employment prospects is precisely contrary to the principles that demand her name be published. The outcome of these proceedings ought to be open for the consideration by prospective employers and co-workers who may be aware or may need to be aware of them. It is a narrower public interest that dictates that, where Ms Wilson has made this appeal challenging the decision to refer her to an IME, those aware of it, or those who ought to be aware of it, should have a clear opportunity to see and understand how the issue was resolved by the commission.
(Emphasis added)
[63] [2022] QIRC 329, [60] per Dwyer IC.
The decision of Industrial Commissioner Dwyer in RY v State of Queensland (Queensland Health)[64] does not establish some general principle that where an applicant for a suppression order is able to point to some plausible evidence that stigmatisation may occur, that this alone warrants a suppression order being made in every case. To the contrary the decision in RY is an example of the application of the principles of open justice to the particular facts of that case.
[64] [2023] QIRC 208.
In this matter, the Appellant's reasons for seeking a suppression order in my view fall within the grounds of privacy, embarrassment, distress and potential 'collateral damage' to the Appellant's reputation and career. I accept the submission from the Respondent that the Appellant has not demonstrated that the potential for stigmatisation or reputational damage goes beyond mere embarrassment in this matter.
For the reasons set out above, I am not satisfied that the Appellant has established a basis for a suppression order being made on this ground.
Immigration status and limited support
The next ground relied upon by the Appellant in support of her application is her status as an immigrant and having limited support available to her.
In the Appellant's affidavit she deposes to the fact that she immigrated to Australia and she has minimal familial support in Queensland. The Appellant further states that her ongoing and continued employment and mental health are critical for her child's stability.[65]
[65] Appellant's affidavit, (n 42), [30].
The Appellant submits that any deterioration in the Appellant's personal vulnerability triggered by the disclosure of the Appellant's personal information, would negatively affect her child's stability and care.
The Respondent submits that persons who have immigrated to Australia (with little or no family) are required to accept the requirements of the Australian judicial system, including the commitment to the open justice principle.
The status of the Appellant as an immigrant, and the fact that she has limited familial support in Australia is not a recognised ground for excusing the operation of the open justice principle.
Whilst noting that these issues may have presented difficulties for the Appellant, I am not satisfied that they provide a basis for a suppression order being made by the Commission.
Serious risk of harm
The final ground relied upon by the Appellant in support of her suppression application is that if a suppression order is not made, there is a serious risk of harm being suffered by the Appellant or her child.
In the Appellant's affidavit she deposes that on 29 August 2024 she suffered a severe life threatening psychological injury requiring hospitalisation and ongoing care.[66] The Appellant further deposes that medical evidence from her treating doctor, Dr Khoo, Consultant Psychiatrist confirms that public disclosure of her private health information or other protected information may aggravate her condition and trigger further harm to her mental health.[67]
[66] Appellant's affidavit filed 3 April 2025, [10].
[67] Ibid.
The Appellant's submissions largely repeat word for word what is contained in the Appellant's affidavit, other than also contending that revealing the Appellant's personal details or vulnerability may constitute an unlawful interference with her privacy (in reliance on s 25 of the HR Act) if it is not strictly necessary for the open administration of justice.
The Appellant has exhibited to her affidavit two reports from Dr Jon-Paul Khoo, Consultant Psychiatrist. The first report is dated 3 April 2025 and is addressed 'To Whom It May Concern'.[68]
[68] Ibid, Exhibit 'A' – medical report of Dr Khoo dated 3 April 2025.
I have considered the contents of that report in some detail and on the basis of the information provided by Dr Khoo I am satisfied that the Appellant has established that there is some basis for a concern that publication of information that identifies her may cause her to suffer further harm.
The Appellant exhibited to her affidavit a second report from Dr Khoo dated 31 January 2025.[69] That report contains a similar history to the first report but then goes on to address the causes or explanation for amnesia that the Appellant has suffered since August 2024. As a consequence, I consider this report to be of limited relevance in determining the application.
[69] Appellant's affidavit filed 3 April 2025, Exhibit 'B' – medical report of Dr Khoo dated 31 January 2025.
In response to this ground, the Respondent initially notes that much of the information that the Appellant is seeking to have suppressed (which she describes as "protected information") is either:
·Irrelevant information; or
·Is relied upon by the Appellant in both the jurisdictional and substantive matter. The Respondent cites the example of the Appellant seeking to rely upon her medical information as justification for her out of time lodgement and to challenge the delegate's disciplinary finding.
The Respondent further submits that suppression of the information material to the decision is inherently inconsistent with the principles of open justice. In pressing that submission, the Respondent particularly notes, the Appellant's request that the details of the software (that is core to the decision being challenged) be suppressed.
The Respondent further refers to the decision of Industrial Commissioner Hartigan (as her Honour then was) in Schiffer v State of Queensland (Queensland Health)[70] ('Schiffer') in considering medical advice as to the potential impact on an Appellant of disclosure of sensitive information.
[70] [2021] QIRC 286.
The Schiffer decision involved a reinstatement application. The Applicant sought an order to suppress personal identifying information and file details. In that matter the Applicant relied upon a report from her treating Psychiatrist, Dr Luke O'Regan. That medical report confirmed that the Applicant had been his patient since April 2018 and was recovering from mental illness including depression.
Dr O'Regan further requested that the Applicant "be protected from adverse publicity as far as possible" and that "adverse findings or personal details relating to the [Applicant's] psychological or personal history is likely to lead to significant anxiety and suffering". Industrial Commissioner Hartigan addressed this evidence in the following way:
[17] The medical information provided by the Applicant is somewhat limited insofar as it does not go beyond stating that the Applicant is "recovering from a mental illness including Depression." Whilst an opinion is expressed by both Dr O'Regan and Dr Fleming that publication of information in the Applicant's matter may lead to an adverse effect on the Applicant's mental health, neither of the opinions express an opinion as to the possible extent of such an adverse impact, nor do they provide an explanation, in the circumstances of this matter, of the significance that such an adverse impact would have on the Applicant.
[18] Accordingly, I am not able to make an assessment, on the limited information before me, as to the extent of any adverse impact on the Applicant and why such an impact provides a basis for the Applicant's matter to fall within one of the exceptions to the principles of open justice. I also note that Dr O'Regan states that an adverse finding might likely lead to significant anxiety and suffering. It is trite to note that an application in the terms sought by the Applicant will not preclude the risk, as there is in all litigation, of an adverse finding or findings being made against the Applicant in the final determination of the matter.
…
[22] The matters raised by the Applicant do not presently fall within the category of an exception to the principles of open justice. It is, unfortunately, not unusual for litigants appearing before this Commission to be suffering from psychological conditions, including depression, when litigating their matters. Further, it is accepted that a litigant's involvement in proceedings before any Court or Tribunal may lead to an increased likelihood of them suffering anxiety. There is nothing in the material currently before me that persuades me that an exception to the principles of open justice apply in the particular circumstances of this matter.
In Schiffer, the Commission ultimately dismissed the application for a suppression order.
The Appellant has cited and relied upon the decision of the New South Wales Court of Appeal in John Fairfax Group Pty Ltd v Local Court of New South Wales,[71] that decision was an appeal to the Court of Appeal from a Magistrate's decision in the course of a committal hearing to make a pseudonym order suppressing the names of five multi-national companies which were alleged to have been the victims of extortion. That order was challenged by a number of media organisations.
[71] (1991) 26 NSWLR 131.
Given the significant factual differences between that matter and the current application, I consider that authority to be of limited relevance.
The Appellant has also cited and relied upon a decision from the Queensland Civil and Administrative Tribunal ('QCAT') of Health Ombudsman v XPW.[72] That decision involved disciplinary proceedings against a medical practitioner. The decision has some limited discussion at the end of the decision about maintaining an interim non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) based on medical evidence that such an order was necessary to avoid endangering the respondent's mental health. The content of the medical evidence and the nature of the risk or danger to the respondent's mental health is not explained in the decision. I therefore consider this decision to be of limited assistance in determining the application.
[72] [2021] QCAT 403.
I have addressed the decision of Schiffer in some detail above. A significant factual difference between Schiffer and the current matter is that there is evidence before the Commission from the medical report of Dr Khoo that differentiates the current matter from the facts and medical evidence in Schiffer.
A further point of differentiation between this matter and Schiffer is that Dr Khoo has specifically opined in his report of 3 April 2025 that if the Appellant's personal, professional and confidential information is made accessible to the public it is likely to have a significant and adverse impact on her mental health and wellbeing.
I am satisfied that the medical evidence of Dr Khoo provides more detail as to the nature of the harm, and the risks of harm that the Appellant may suffer if the Appellant is identified in a decision and the reasons for this. Further, there is no other evidence that contradicts the opinion of Dr Khoo, or which would cause me to not accept his evidence.
Given that evidence, I am satisfied that the Appellant has established that some limited form of suppression order is appropriate in this case because of the risk of potential harm to the Appellant if her identity is made public.
Scope of the suppression order
It is then necessary to determine the scope of the suppression order.
I would observe that it is unlikely that any form of suppression order could be crafted to guarantee that the Appellant would not be identified, unless it involved an order for non-publication of all decisions. I note that the Appellant in her application seeks only a partial suppression approach, which ensures that only those details necessary to prevent serious harm are withheld.
It is appropriate in my view that the identity of the Appellant be anonymised in this decision and in any further decision required in appeal PSA/2025/39 by identifying the Appellant as 'XY'. If it is necessary in any further decision to refer to the Appellant's child, the child will be identified as 'UV'.
The Appellant has sought that the specific name of the Queensland Government department employing the Appellant be anonymised or de-identified. I accept that there is some risk that the Appellant's identity may be revealed if the employing department is named (given the Department involved), therefore, in this decision and any further decision in PSA/2025/39 the Respondent will be identified as 'State of Queensland (Department of AB)'.
The Appellant has also sought an order that any reference to an application or software to the extent that such reference would identify the Appellant or her child also be suppressed. The Respondent in its submissions contends that suppression of information material to the decision is inconsistent with the principles of open justice. The Respondent opposes the suppression of the details of the software involved.
I am not satisfied that the naming of the software involved would lead to any risk of the identification of the Appellant's child. The Appellant has also failed to explain how naming of the software program involved in the incident would lead to her being identified. If the matter is so notorious that simply naming the software would identify the Appellant, it is difficult to see how any suppression order short of a blanket non-publication order would protect the Appellant's identity.
Rule 97(3) of the IRT Rules authorises the Commission to modify a document before publication in a way that does not affect the essence of the document (emphasis added). Redaction of the name of the software would in my view affect the essence of any future decision which considers the basis of the disciplinary process and the disciplinary action that has been proposed.
Further, as noted earlier in these reasons, public sector appeals, particularly where the subject matter of the appeal is a disciplinary decision, are fundamentally for the protection of the public.[73] As a consequence, I consider that it is not in the public interest to anonymise the name of the software involved in the incident. In any future decision in this appeal where there is a need to reference the software involved, the software will be named.
[73] Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 327, T.1-10, lines 30-41 citing Nesbit v Metro North Hospital and Health Service [2021] ICQ 5, at paragraph 99.
I do not intend to make an order for suppression of the health information provided by the Appellant (at least at this time) because depending on how that information is relied upon in the future, it may be necessary to provide some aspect of that health information so that the essence of the decision is not affected.
I am not satisfied in light of s 31(3) of the HR Act and the open justice principles that it would be appropriate to order that any hearing required in the resolution of appeal PSA/2025/39 or any of the interlocutory applications be held in private. This would be a substantial divergence from the principles of open justice which is simply not warranted in my view.
The Appellant has also sought an order that the Commission file be sealed from public search. I believe in light of the medical information that has been provided by the Appellant, that such an order is appropriate.
Conclusion
I am satisfied that for the reasons set out above, the discretion for the Commission to make suppression orders has been enlivened in this particular case and that a limited basis for setting aside the principle of open justice has been established.
Order
Accordingly, I make the following order:
1. The application is granted.
2. In this decision and any further decision in PSA/2025/39:
(a)the name of the Appellant be anonymised to 'XY';
(b)the name of the Appellant's child be anonymised to 'UV';
(c) the name of the employment Department be anonymised to the 'Department of AB'.
3. Pursuant to section 451(2)(c) of the Industrial Relations Act 2016 (Qld), the entire content of the file held in the Queensland Industrial Relations Commission Registry for matter number PSA/2025/39 be sealed and withheld from release or search, subject to Directions 4, 5 and 6 of this Order.
4. Any transcripts or audio recordings of proceedings on the file held in the Queensland Industrial Relations Commission Registry for matter number PSA/2025/39 may be searched by and released to the parties to matter number PSA/2025/39.
5. In relation to any material searched for or released pursuant to Direction 3 of this Order, the parties (and any representatives of the parties) must:
(a)treat the material as confidential and ensure it is kept secured at their place of residence or business; and
(b) not disseminate the material to anyone who is not a party to these proceedings (or a representative of a party) or use the material for purposes not related to matter number PSA/2025/39 except with leave of the Commission.
6. Directions 4 and 5 will remain in place until further or other Order from the Queensland Industrial Relations Commission.
13 Privacy and reputation
A person has the right–
(a)not to have that person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b)not to have that person's reputation unlawfully attacked.
- AGLC
- XY v State of Queensland (Department of AB) [2025] QIRC 248
- Case
- [2025] QIRC 248
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether the appellant's psychological condition and other personal circumstances justified a suppression order, and if so, to what extent. The court also needed to consider whether any provisions in the Industrial Relations (Tribunals) Rules 2011 (Qld) needed to be read compatibly with the Human Rights Act 2019 (Qld). The court examined the principles established in J v L & A Services Pty Ltd regarding the exercise of discretion to issue suppression orders, and considered the open justice principle and its exceptions.
The court found that while the open justice principle is fundamental to the justice system, there are circumstances where it may be limited, particularly when the publication of information would cause significant harm to an individual. The court noted the appellant's severe psychological injury and the medical evidence indicating that disclosure of her information could aggravate her condition. The court also considered the appellant's status as an immigrant and her limited support network, but found these factors insufficient to justify a suppression order. Ultimately, the court granted a limited suppression order to protect the appellant's identifying information, ensuring that her personal details would not be published.
The court ordered that the appellant's identifying information be suppressed and that the Commission file be sealed, except for the necessary information required for the administration of justice. This decision balanced the appellant's right to privacy and protection from harm with the principle of open justice.
Orders
Orders of the court
The Orders contained in paragraph [188] of these reasons for decision.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For the reasons set out above, I am not satisfied that the Appellant has established a basis for a suppression order being made on this ground. Immigration status and limited support The next ground relied upon by the Appellant in support of her application is her status as an immigrant and having limited support available to her. In the Appellant's affidavit she deposes to the fact that she immigrated to Australia and she has minimal familial support in Queensland. The Appellant further states that her ongoing and continued employment and mental health are critical for her child's stability.[65][65] Appellant's affidavit, (n 42), [30]. The Appellant submits that any deterioration in the Appellant's personal vulnerability triggered by the disclosure of the Appellant's personal information, would negatively affect her child's stability and care. The Respondent submits that persons who have immigrated to Australia (with little or no family) are required to accept the requirements of the Australian judicial system, including the commitment to the open justice principle. The status of the Appellant as an immigrant, and the fact that she has limited familial support in Australia is not a recognised ground for excusing the operation of the open justice principle. Whilst noting that these issues may have presented difficulties for the Appellant, I am not satisfied that they provide a basis for a suppression order being made by the Commission. Serious risk of harm The final ground relied upon by the Appellant in support of her suppression application is that if a suppression order is not made, there is a serious risk of harm being suffered by the Appellant or her child. In the Appellant's affidavit she deposes that on 29 August 2024 she suffered a severe life threatening psychological injury requiring hospitalisation and ongoing care.[66] The Appellant further deposes that medical evidence from her treating doctor, Dr Khoo, Consultant Psychiatrist confirms that public disclosure of her private health information or other protected information may aggravate her condition and trigger further harm to her mental health.[67][66] Appellant's affidavit filed 3 April 2025, [10].[67] Ibid. The Appellant's submissions largely repeat word for word what is contained in the Appellant's affidavit, other than also contending that revealing the Appellant's personal details or vulnerability may constitute an unlawful interference with her privacy (in reliance on s 25 of the HR Act) if it is not strictly necessary for the open administration of justice. The Appellant has exhibited to her affidavit two reports from Dr Jon-Paul Khoo, Consultant Psychiatrist. The first report is dated 3 April 2025 and is addressed 'To Whom It May Concern'.[68] [68] Ibid, Exhibit 'A' – medical report of Dr Khoo dated 3 April 2025. I have considered the contents of that report in some detail and on the basis of the information provided by Dr Khoo I am satisfied that the Appellant has established that there is some basis for a concern that publication of information that identifies her may cause her to suffer further harm.