149 IR 80
Hogan v Australian Crime Commission [2010] HCA 21
Source
Original judgment source is linked above.
Catchwords
149 IR 80
Hogan v Australian Crime Commission [2010] HCA 21
Judgment (3 paragraphs)
[1]
Solicitors:
Maurice Blackburn Lawyers
Sparke Helmore Lawyers (respondent)
File Number(s): 2024/151572
Publication restriction: Orders made pursuant to s 164A of the Industrial Relations Act 1996 (NSW) on 11 September 2024.
[2]
ex tempore DECISION
On 19 August 2024, the Secretary of the Department of Education ("Department") emailed the Registrar of the Industrial Relations Commission seeking orders pursuant to s 164A of the Industrial Relations Act 1996 (NSW) ("the Act"). The form of the orders sought were opposed by the applicant. On 22 August 2024, the Department filed a Notice of Motion seeking the orders along with a statement in support of Peter McMahon Rogers dated 20 August 2024.
The Notice of Motion was listed on the first day of the hearing of the matter. After hearing from the parties, I decided to make the orders sought by the respondent with one change relating to an exception for the provision to be provided to the Office of the Children's Guardian. The Orders I made were as follows:
1. Pursuant to s 164A(1)(a) of the Industrial Relations Act 1996, each of the following is prohibited:
a. the disclosure, sharing or publication of any information or material (including but not limited to a name, address, health information or image) that identifies, or may lead to the identification of the [School], a current or former student of the [School] or another school;
b. the doing of any other thing that identifies, or may lead to the identification of, the [School], a current or former student of the [School] or another school.
2. Pursuant to s 164A(1)(c) of the Industrial Relations Act 1996, access to the Commission file in the matter of Mai Rawson v Secretary New South Wales Department of Education (file no. 2024/00151572) is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties and NSW Education Standards Authority and the Office of the Children's Guardian) may be granted access.
3. These orders remain in force for 30 years unless varied or revoked sooner.
The proceedings concerned an application by the applicant, for an order for relief in respect of unfair dismissal filed pursuant to s 84 of the Industrial Relations Act. The Applicant was a teacher employed by the Department. On 4 April 2024 the applicant's employment was terminated after the Department found that she engaged in misconduct. There are five allegations which can broadly be summarised as:
1. The applicant did not obey lawful and reasonable directions of her superiors on several occasions to discuss her performance;
2. The applicant failed to maintain professional boundaries with particular students;
3. The applicant held a clandestine meeting with four students to gather information to implicate another student in misconduct;
4. Failure to engage professionally with a parent on at least one occasion; and
5. Removing a student from class to have a private conversation to ask why he'd asked her a question in a class.
Ultimately, after a number of days of hearing before this Commission, parties resolved the matter and have discontinued the proceedings a short time ago. The basis upon which the orders were sought by the Department was set out in its email to the Commission of 19 August 2024 as follows:
"The Respondent considers that it is in the interests of justice, in accordance with section 164(3) of the Industrial Relations Act 1996 for such orders to be made because of the confidential nature of the evidence in this matter and particularly noting that:
● medical records of former students are being disclosed, including in respect of suicidal ideation
● publication of the names of students who made complaints can act as a deterrent for current students of the Department of Education, and particularly at the School, from pursuing complaints in the future
● the former students who give evidence are detailing matters which occurred when they were minors, and some of the persons named in the evidence are currently students and/or minors
● various witnesses who were former students are currently employed and/or attend the School and will be readily identifiable, which may have an adverse impact on their mental health and future prospects
● the non-disclosure orders will assist in mitigating various health issues of witnesses, and
● there is ultimately no inconvenience to the Applicant.
Further, given the unique nature of the School and its small size compared to other high schools, the Respondent considers that it is also in the interests of justice for the name of the School to be captured by the orders as disclosure of the School name may lead to identification of current or former students, including due to their ongoing attendance and/or employment at the School.
Although the applicant opposed the form of the orders sought by the Department, she did not oppose any orders being made. Counsel for the applicant made oral submissions with respect to the applicant's opposition to the form orders being made. In summary, the applicant argued that:
1. The non-disclosure orders should not be made in respect to adult witnesses who are giving evidence in the proceedings about matters that occurred when they were children.
2. The name of the School should not be the subject of a non-disclosure order.
Applicable Principles
Section 164A of the Industrial Relations Act 1996 provides as follows:
(1) "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.
(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.
In opposing the order, the applicant referred the Commission to Chan v Commonwealth of Australia as represented by the NDIS Quality and Safeguards Commission (No 2) [2023] FCA 1538 where Shariff J gave detailed consideration of the principle of open justice at [72]-[89]. In Secretary of the Department of Education v X [2023] NSWIRComm 1061 ("X"), a Full Bench of the Commission considered the principles relevant to making s 164A at length at [30]-[66]. The principles relevant to this matter can be crystallised 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].
Relevant to this matter, the Full Bench in X stated the following at [67]-[69]:
"67. First, the Full Bench is satisfied, and the parties are agreed, that it is necessary in the interest of justice to make orders protecting the identity of the students and witnesses involved in this matter.
68. It is a reasonable to assume that a consequence of the names of the students being made public is that those students may experience psychological stress, embarrassment, humiliation or other social stigmatism. This would be an entirely unacceptable outcome and orders should clearly be made to protect their identity. While it is debatable whether the name of the school need be suppressed, in circumstances where there are numerous students alleged to have been the subject of the Respondent's conduct and therefore the naming of the school alone would not necessarily identify any individual student (unlike in X v The NSW Department of Education) and the Respondent is no longer teaching at the subject school, as the school is located in a country area of New South Wales, the Full Bench is satisfied that there is sufficient risk of the students and witnesses being identified so as to justify the making of orders protecting the name of the school.
69. Protection of the identity of the students and other witnesses in the proceedings is also in the interests of justice so as not to discourage the reporting of misconduct generally, particularly sexual misconduct, but also to ensure that witnesses give frank and truthful evidence in any subsequent administrative or judicial proceeding, both in respect of this matter specifically, but also in respect of similar future matters, as was submitted by the Appellant."
The applicant sought to distinguish the circumstances of this case from X on the basis that the allegations made by the children in that matter were sexual in nature. Clearly, that is not the case in these proceedings. It was put that the complaints were different in this matter and the Commission should have no concern with the protection of the witnesses' identity, where they are now adults. It was put that the issues the witnesses would give evidence about are not at all sensitive.
There is an important public public interest in protecting the identity of students so as not to discourage the reporting of underperformance and misconduct allegedly engaged in by teachers in an educational setting. If the Commission does not make the orders sought, the unacceptable consequence is that children may be reluctant to come forward with complaints about performance or misconduct concerns in respect of their teachers in the future. There is an important public interest in children being protected from the consequences of poor teaching practices. I reject the applicant's submissions that such complaints are not sensitive. At least some of the complaints in this matter have led to the dismissal of the applicant by the Department. The power indifference that exists between children and teachers already serves as a deterrent to children reporting concerns. I find that the orders are necessary in the interests of justice for the reasons I have just articulated.
I am similarly satisfied that there is a need to make the orders as they relate to de-identifying the School. This is not to protect the interests of the School or the Department or to save them from any reputational damage that may flow. I make the order because if the name of the School is not suppressed, the identity of the witnesses may become known. In this regard, I note the highly specialised nature of the School and its size make it more likely that if the orders are not made, the identity of the witnesses protected by the balance of the orders will become known.
[3]
Amendments
27 September 2024 - Minor amendments made
30 September 2024 - Minor amendment made
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 30 September 2024
Parties
Applicant/Plaintiff:
Rawson
Respondent/Defendant:
Secretary, New South Wales Department of Education