New South Wales Nurses' and Midwives' Association v Health Secretary [2025] NSWIRComm 34

"1. In respect of the 'Collated inspection reports produced in response to 12 a and b of NTP v2.pdf':

a. In respect of the SafeWork NSW report at pages 1-4, the document in its entirety.

b. In respect of the remaining audit reports at pages 5-1030, the following sections:

i. 'Details of Auditors'

ii. 'Principal Facility Contacts'

iii. 'Summary of Results'

iv. 'Overall Performance'

v. 'Opportunities for Improvement'

vi. The second, third, fourth and fifth columns of the audit report table, entitled respectively 'Documents comments', 'Answers given' (also referred to as 'Site observations made', 'Outcome (implementation rating)'; and 'Recommendations', as well as the table entitled 'Recommendations and Action Plan (for completion by the facility)'.

2. In respect of the document 'Completion action plan templates.xlsx':

a. Columns B - E, entitled respectively 'Recommendations', 'Action to be taken', 'Action allocated' and 'Progress update'."

1. The Notice of Motion is supported by a witness statement of Melissa Collins, the Executive Director of the Workplace Relations Branch of the Ministry of Health, filed on 17 November 2025.
2. The Association neither consents to nor opposes the orders sought in the Notice of Motion.

1. The orders sought are in respect of the following documents that the Secretary produced to the Association and which the Association seeks to tender into evidence:

(1) Collated inspection reports produced in response to 12 a and b of NTP v2.pdf (Collated Inspection Reports document); and

(2) Completion action plan templates.xlsx (Completion Action Plans document).

1. The Secretary does not oppose the tender of the Documents, subject to appropriate orders being made to prevent publication of personal contact details of employees and of facts that might identify any potential vulnerability of existing security arrangements.
2. The Documents were referred to in the witness statement of Michelle O'Heffernan, the Director of the Safety and Security and Improvement Team in the Ministry of Health, which was received into evidence and marked "Exhibit HS-30":

"Since October 2023 my team has carried out 32 audits. Each audit has made an average of 40 recommendations for the LHD or other Health Organisation to make improvements in the management of security and violence. The potential evaluative outcomes of an audit for a LHD or other Health Organisation are that there is 'limited implementation', 'partial implementation' and 'substantial implementation' of NSW Health policy requirements as set out in Protecting People and Property. There were only in total '33 limited implementation findings', and these were across 13 sites. This means the majority of findings were that there was 'partial implementation' or 'substantial implementation'.

Following an audit undertaken by my team, the relevant facility receives a report that includes recommendations that the facility is required to include in an action plan to remedy any shortcomings. After twelve months, the facility reports back to my team about how they have addressed recommendations identified by the audit. Accordingly, audits are a part of a process of iterative improvement rather than a certification of a health facility's strengths."[1]

1. The Collated Inspection Reports document includes an Inspection Report of SafeWork NSW (SafeWork Inspection Report) and 32 "Safety and Security Improvement (SASI) Compliance Audit Summary Reports" (Audit reports). The document is 1030 pages. The Audit reports include detailed information on various aspects of hospital operations such as security vulnerabilities, audit results, and recommendations for improvement.
2. The Completion Action Plans document is an Excel document consisting of separate sheets relating to each hospital facility. The sheets consist of tables that outline the relevant hospital's response to the corresponding Audit reports. Each sheet relating to a different facility includes information such as the recommendations from the Audit report, actions to be taken in response to the Audit report, whether responsibility for taking action has been allocated, and a progress update against each recommendation, as either "Completed", "In progress" or "Not Commenced".

1. Ms Collins gave the following evidence in support of the Notice of Motion with respect to the Collated Inspection Reports document:

**"**10. In respect of the SafeWork NSW report (the Report) at pages 1-4 of the document, I am of the view that this Report would generally be subject to confidentiality obligations under s 271 of the Work Health and Safety Act 2011 (NSW). While this information appears to be of a nature that it is able to be provided to the Commission, I consider that the Report contains confidential information and should be treated accordingly. In particular, the names of inspectors and NSW Health employees recorded as being in attendance during the subject inspection should not disclosed where this information is not publicly accessible or anticipated to be a matter of public record (having regard to requirements under the Privacy and Personal Information Protection Act 1998 (NSW) to ensure that personal information).

[REDACTED]

12. At the time of signing this statement, I am informed by the SASI Unit that at least some of the vulnerabilities identified in the above paragraph have not yet been resolved and that there is no certain end date for their resolution. Until these vulnerabilities are resolved, public knowledge of these vulnerabilities may increase the possibility that they are exploited to detriment of patient care, staff safety and public infrastructure.

13. Further, for completeness, I note the following parts of the audit reports are not confidential:

a. The first page of the audit report, excepting the 'Details of Auditors' and 'Principal Facility Contacts' sections;

b. The second page of the Audit report, including the 'The Aim of the SASI Compliance Audit', 'Mandatory Requirements' and 'Effectiveness of Current Controls' sections;

c. The first column of the audit report table, titled 'Section';

d. The 'Positive Findings; section; and

e. The 'Effectiveness of controls' section."[2] (Emphasis in original.)

1. Ms Collins gave the following evidence in respect of the Completion Action Plans document:

"14. This document consists, with the exception of the rightmost tab, of tables setting out hospitals' responses to the relevant audit reports. These tables are based on the same template and accordingly have the same structure. As such, it is expedient to refer to general categories of information as they appear consistently across the spreadsheet noting its' size.

[REDACTED]

16. At the time of signing this statement, I am informed by the SASI Unit that at least some of the vulnerabilities identified in the above paragraph have not yet been resolved. Until they are resolved, public knowledge of the specific vulnerabilities of individual facilities may increase the possibility that they are exploited.

17. For completeness, I note the following parts of the document are not confidential:

a. The rightmost tab, titled 'Received'; and

b. Column A of all tabs with the exception of the rightmost tab, titled 'Section'." (Emphasis in original.)

1. Section 164A of the Industrial Relations Act provides as follows:

(1) "non-disclosure order" is any of the following orders--

(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.

(3) The Commission 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.

1. In Secretary of the Department of Education v X,[3] a Full Bench of the Commission considered the principles relevant to making non-disclosure orders pursuant to s 164A of the Industrial Relations Act. These principles have been subsequently summarised in Rawson v Secretary, New South Wales Department of Education[4] as follows:

"1. Pursuant to s 164A(3), the Commission may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice: at [31].

2. The test for a s 164A order is based on the common law test: Day v Smidmore and others (No 2) [2005] NSWIRComm 406; 149 IR 80 ("Day v Smidmore") at [29]: at [31].

3. The principle of open justice requires that proceedings be conducted publicly unless it is necessary to depart from this rule to secure the proper administration of justice: John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at pp 476-477: at [34]-[35].

4. The principle of open justice involves the conduct of hearings in public to maintain confidence in the integrity and independence of the courts: Russell v Russell (1976) 134 CLR 495 at p 520: at [40].

5. Mere embarrassment or distress caused to a person is insufficient to justify a non-publication order: Day v Smidmore at [30]; Dr A at [47]; Buttling v NSW Department of Education and Communities (No 2) [2012] NSWIRComm 72 ("Buttling") at [6]: at [36].

6. Non-disclosure orders should only be made in exceptional circumstances where it is "necessary" to protect the proper administration of justice. The bar to a making a non-disclosure order is a high one: Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 ("Hogan") at [30]-[31]; Buttling at [8] referring to John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344 ("John Fairfax Publications") at [21]; Dr A at [47]: at [43]-[45].

7. The Commission must be satisfied that unacceptable consequences will flow if a non-disclosure order is not made: John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at p 161: at [46]-[47].

8. Protecting the identity of children involved in legal proceedings is a recognised ground for making non-disclosure orders: Writer v Commissioner of Police (No 2) [2021] NSWIRComm 1023 at [4]; A (a pseudonym) v Commissioner of Police [2019] NSWIRComm 1091 at [13]- [18]: at [49].

9. The bar for making a non-disclosure order is high, and it must be shown that it is necessary in the interests of justice: Buttling at [8]; Rinehart at [27]; John Fairfax Publications at [21]: at [44].

10. Anxiety, distress, and humiliation of witnesses can justify non-disclosure orders to protect their identities: X v Department of Justice and Attorney-General [2011] NSWIRComm 1010 ("X v Department of Justice") at [48], [57]."

Collated Inspection Reports - SafeWork Inspection Report

1. We turn first to the Secretary's application for a non-disclosure order in respect of the SafeWork Inspection Report relating to the Liverpool Hospital Emergency Department, being pages 1-4 of the Collated Inspection Reports document.
2. The Secretary seeks the non-disclosure of the SafeWork Inspection Report on the basis that it contains confidential information subject to statutory obligations under s 271 of the Work Health and Safety Act 2011 (NSW), namely personal information such as the names of inspectors and NSW Health employees that is not publicly accessible. The Secretary further contends that she is under an obligation to protect such information in accordance with the Privacy and Personal Information Protection Act 1998 (NSW).
3. The reliance on s 271 of the Work Health and Safety Act is misplaced. The Secretary was obliged to produce the material to the Commission by the issuing of the Notice to Produce, in the manner contemplated and permitted by s 271(3)(d). Once so produced, the question of whether it should be admitted into evidence, and whether that should occur with or without a non-disclosure order is not a question governed by s 271 of the Work Health and Safety Act.
4. We acknowledge the obligations placed on the Secretary by the Privacy and Personal Information Protection Act to prevent the publication of personal information, but such provisions do not apply to the Commission when exercising its powers.[5]
5. We are satisfied that the information contained in the Inspection Report at 5) and 7) under the heading "Summary of Inspector's Observations" ought to be the subject of an order for non-disclosure given that the risks associated with the release of such information as to the security of the facility outweigh the objective of open justice.
6. However, there does not appear to be any need for confidentiality with respect to the name of the Inspectors.
7. We acknowledge that the Secretary's intention, consistent with her obligation to maintain confidentiality, is to protect the names of the persons with whom the Inspectors spoke. It is not apparent to us that the names of the persons with whom the Inspectors spoke could be relevant to any issue in the proceedings.
8. We consider the most practical approach, at this stage, is to receive the document without the names of the persons with whom the Inspectors spoke (on page 3) and without the name of the person to whom the SafeWork Inspection Report was given (on page 1), but in each case leaving in the position titles.
9. We make that decision without prejudice to the Association's right to ultimately press to tender the full document with the names and for the Secretary to renew her application for a non-disclosure order in respect of those names. We can deal with any such application on the resumption of the hearing on 9 December 2025.

1. In respect of the remaining Audit reports at pages 5-1030, we are satisfied that the Secretary has established a proper basis to make the following information in the Collated Inspection Reports document the subject of a non-disclosure order pursuant to s 164A of the Industrial Relations Act (using the numbering in [1] of Annexure A to the application):

(1) (b)(iii) 'Summary of Results'.

(2) (b)(iv) 'Overall Performance'.

(3) (b)(v) 'Opportunities for Improvement'.

(4) (b)(vi) The second, third, fourth and fifth columns of the audit report table, entitled respectively 'Documents comments', 'Answers given' (also referred to as 'Site observations made'), 'Outcome (implementation rating)'; and 'Recommendations', as well as the table entitled 'Recommendations and Action Plan (for completion by the facility)'.

1. Disclosing the information above poses a risk to the community by potentially revealing security vulnerabilities at hospital facilities. This information could be misused. In this case, the interests of achieving the important objectives of open justice are outweighed by the need to protect the relevant facilities and public safety.

Details of Auditors and Principal Facility Contact in the Collated Inspection Reports

1. What remains to be considered are the following sections of the Collated Inspection Reports, namely (using the numbering in paragraph 1 of Annexure A):

(1) (b)(i) 'Details of Auditors'; and

(2) (b)(ii) 'Principal Facility Contacts'

1. The Secretary contends that this information should not be disclosed because it reveals personal information about NSW Health staff, such as employment circumstances, staffing patterns, and private contact details not intended for public disclosure.
2. Further, at least in respect of the Principal Facility Contacts sections, it is contended that the availability of the contact details may create a vulnerability to the security arrangements of the facility, such as an increased likelihood that credentials could be replicated or compromised to allow for unauthorised access to facilities.
3. We gave this aspect of the application separate consideration because of a concern that such information may well be discoverable and in the public domain already. However, in light of Ms Collins's uncontested evidence that publishing such information gives rise to a potential security issue, we are content to make the order sought in respect of these categories.

1. Finally, we are also satisfied that it is in the interests of justice that a non-disclosure order should be made in respect of the following information contained in the Completion Action Plans as sought:

(1) Columns B-E, titled respectively 'Recommendations', 'Action to be taken', 'Action allocated' and 'Progress update'.

1. Disclosing this information also poses a risk to the community by potentially revealing security vulnerabilities at hospital facilities. The interests of achieving the important objectives of open justice are outweighed by the need to protect the relevant facilities and public safety.

1. Upon the confidentiality order being made, the Full Bench intends to receive the documents into evidence with the identified redactions without prejudice to any further application to tender the balance of the document(s).

1. During the course of the hearing, the Secretary raised the issue of whether the evidence in support of the Notice of Motion might also be subject to a s 164A order. We have decided to first publish the written reasons to the parties only, and provide the parties with 72 hours to review the decision and notify the Commission if they consider that any part of the reasons should be redacted in the version to be published online, in order to comply with the non-disclosure orders made.

(1) The Secretary is to file an amended application setting out the order to be made that reflects this decision by 4pm on 4 December 2025.

(2) The Association is to file a redacted version of the documents for tender, removing those names and phone numbers identified in this decision by 4pm on 8 December 2025.

10 December 2025 - Redactions made to parts of [11] and [12] to comply with the non-disclosure order made by the Commission pursuant to s 164A(1)(c) of the Industrial Relations Act 1996 (NSW).

[1] Witness statement, Michelle O'Heffernan, 10 July 2025 at [16]-[17]

[2] Witness statement, Michelle Collins, 17 November 2025 at [10]-[13].

[3] [2023] NSWIRComm 1061 at [30]-[66].

[4] [2024] NSWIRComm 1060 at [1]-[10].

[5] Privacy and Personal Information Protection Act 1998 (NSW) s 6(1).