The matter before the Commission is an application by Christian McDonald pursuant to section 84 of the Industrial Relations Act 1996 ('the Act') for relief in relation to unfair dismissal. Prior to the termination of the applicant's employment, he was a Senior Constable in the NSW Police Force. The respondent to the application is the Commissioner of Police.
This interlocutory decision is in relation to a Notice of Motion filed by the applicant which seeks an order pursuant to section 164A of the Act prohibiting the disclosure of the applicant's name, address, picture and/or any matter that would identify the applicant and/or lead to identification of the applicant. I have treated the motion as an application for such an order.
Section 164A of the Act is in the following terms:
164A Powers of Commission as to the disclosure of matters before the Commission
(1) A "non-disclosure order" is any of the following orders:
(a) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or
(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,
(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission,
(c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings.
(2) The Commission in Court Session may make any non-disclosure order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.
(3) The Commission (other than in Court Session) may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice.
(4) The Commission may from time to time vary or revoke an order it has made under this section.
(5) Nothing in this section operates to limit any power of the Commission in Court Session apart from this section to make a non-disclosure order or any other order prohibiting or restricting the disclosure or publication of matters before the Commission.
The supporting grounds and reasons set out in the Notice of Motion as filed were not pressed at the hearing of the motion and no evidence was led by the applicant which touched upon those initial grounds and reasons. I don't propose to deal further with those grounds and reasons in this interlocutory decision.
The evidence in support of the motion was in the form of an affidavit affirmed by Veronica Feng Lee which was admitted into evidence over the objection of the respondent. Ms Lee is a member of the firm of solicitors which represents the applicant. The matters to which Ms Lee deposed were:
1. The applicant holds fears about the implications of being named in these proceedings.
2. The matters raised by the applicant in these proceedings could attract significant media or public attention and cause the applicant's name to be widely disseminated.
3. The applicant was diagnosed with an adjustment disorder and that psychological injury was work related.
4. The applicant has read an article in the Daily Telegraph which reported that a NSW police sergeant received two bullets through the internal mail system which he believed was a death threat. The sergeant was described in the article as a whistle blower, apparently because he had "dobbed in" a colleague for engaging in certain conduct of a sexual nature.
5. The applicant and three former colleagues had requested certain investigation files for the purpose of investigating a potential complaint of misuse of public resources and maladministration.
6. As a result of the experiences set out in his unfair dismissal application, the applicant has suffered harm and is fearful of reprisals as a result of the matters raised above.
7. In relation to concerns about being named in the proceedings, the applicant is concerned about retaliation and he is currently residing interstate because he is worried about experiencing the treatment described in the Daily Telegraph article.
8. The applicant is also fearful that if his name is published, it will make it difficult for him to go back to any police station because he will be considered a whistle blower.
It was submitted on behalf of the applicant that he was not seeking that the proceedings be held in private but only that he be identified by his initials rather than his full name.
It was put that police whistle blowers are targeted. The applicant had previously been targeted for reasons which would contravene Part 4C of the Anti-Discrimination Act 1997, the Occupational Health and Safety Act 2000 and the Work Health and Safety 2011.
The application for a non-disclosure order was opposed by the respondent. In relation to the "interests of justice" test in subsection 164A(3) the respondent relied upon the following extract from the Court of Appeal judgement (Kirby P, Mahoney JA and Hope JA) in John Fairfax Group Pty Ltd & Anor v Local Court of NSW & Ors (1992) 26 NSWLR 131 (at 161B per Mahoney JA):
This leads to the consideration of what is meant by "necessary to secure the proper administration of justice" in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court.
The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard
Counsel for the respondent submitted that this passage from the Court of Appeal judgement supports the necessity for some broader implications than just this proceeding, and the applicant in this matter, to satisfy the "interests of justice" test.
A relevant authority in this jurisdiction is the decision of the Full Bench of this Commission in Doctor A and Health District [2014] NSWIRComm 28. After citing a number of authorities, the Full Bench in that matter (Boland AJ, Acting President, Stanton C, Newall C), stated as follows (but omitting references to the authorities):
[47] In referring to these authorities the main points sought to be made by the respondent were that:
(1) the principle of open justice is a fundamental aspect of the legal system and the conduct of proceedings in public is an essential quality of an Australian court of justice:
(2) exceptions to the principle of open justice are strictly defined and applied sparingly:
(3) the test in s 164A(3) of the IR Act is the common law test:
(4) according to the common law test mere embarrassment or distress is not sufficient to warrant the making of a non-disclosure order. Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress, would be inimical to the ordinary rule that courts should conduct their proceedings publicly and in open view:
(5) the "necessary" requirement in s 164A(3)(b) of the IR Act reinforces the legislative intention that non-disclosure orders should only be made in exceptional circumstances.
[48] The appellant did not demur from these principles and for our part we respectfully consider they are correct.
In the present matter the connection between an apparent threat to another police officer who blew the whistle on a colleague, as reported in the Daily Telegraph article, and the situation in which the applicant in this matter finds himself, is far too tenuous to support the making of an order in the nature of a pseudonym order.
The claim based on the potential impact on the applicant's health of the publication of his name in these proceedings is not supported by any medical evidence.
In my assessment, this application for a non-disclosure order falls foul of points (4) and (5) as enunciated by the Full Bench in Dr A.
I decline to make an order pursuant to section 164A of the Act. To the extent that the applicant's Notice of Motion has been treated as an application for such an order, that application is dismissed.
I so order.
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Decision last updated: 10 June 2016