Industrial Relations Commission New South Wales Medium Neutral Citation: Writer v Commissioner of Police [2020] NSWIRComm 1085 Hearing dates: Issue dealt with on the papers Date of orders: 22 December 2020 Decision date: 22 December 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The application by the Commissioner of Police for a non-publication order is rejected Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – application for non-publication order – interlocutory decision – principles to apply Legislation Cited: Industrial Relations Act 1996 (NSW) s 164A Police Act 1990 (NSW) ss 173, 174 Cases Cited: Dr A and Health District (2014) 244 IR 208; [2014] NSWIRComm 28 Category: Procedural and other rulings Parties: Michael Writer (Applicant) Commissioner of Police (Respondent) Representation: Walter Madden Jenkins (Applicant) Makinson D'Apice Lawyers (Respondent) File Number(s): 2019/156958 Publication restriction: No DECISION 1. On 9 May 2019 the Commissioner of Police, by his delegate, made an order pursuant to s 173 of the Police Act 1990 (NSW) with respect to Senior Constable Michael Writer. In these proceedings Senior Constable Writer has applied to the Commission for a review of the order, pursuant to s 174 of the Police Act, on the ground that the order is harsh, unreasonable or unjust. 2. The hearing of the application took place on 24, 25 and 26 August 2020. At the conclusion of that hearing I reserved my decision. 3. On 26 August 2020, after the hearing had concluded, the Commission received an email from the solicitors for the Commissioner of Police which stated in part: "Further, we ask that the Commission consider the following additional orders: … (2) order that there is to be no publication of the name of Ms Rosslyn Sten, Aboriginal Community Liaison Officer. The Respondent submits that Ms Sten's role requires that she maintain the trust and confidence of the Aboriginal community in providing an essential and important link to the NSWPF. In the event Commissioner Sloan makes orders that the Aboriginal community of Richmond PD do not agree with, it may be personally and professionally problematic for Ms Sten, as there may be a perception within the community that Ms Sten gave evidence in support of that order being made. The Respondent accepts that the evidence is relevant to the proceedings, but respectfully submits that this can still be achieved without the publication of Ms Sten's name. As an alternative, the Respondent submits reference to Ms Sten could be a civilian employee of NSWPF. The Respondent acknowledges that these further orders were not raised with the presiding Commissioner. In the event that the Commission requires further information, material or submissions the Respondent respectfully requests that the Commission make the above additional orders on an interim basis." 1. By way of email sent to the Registry on 2 September 2020 the solicitors for Senior Constable Writer informed the Commission that he did not consent to the order sought by the Commissioner of Police being made. 2. On 3 September 2020 I arranged for the Registry to send an email to the parties in the following terms: "On the assumption that the respondent presses for the Commission to make the second order in its email of 26 August 2020, and noting the applicant's position, Commissioner Sloan asks whether the parties wish to be heard on the matter." 1. In an email received by the Registry on 16 September 2020 the solicitors for Senior Constable Writer informed the Commission that he did not wish to be heard on the matter and was content for me to determine whether it was appropriate to make the order in chambers. 2. By way of email sent to the Registry on 21 September 2020, the solicitors for the Commissioner of Police confirmed that he continued to press for an order in relation to non-publication of Ms Sten's name. 3. On 25 November 2020, following a delay caused by a misunderstanding on the part of the Commission, I arranged for the Registry to send an email to the parties in the following terms: "The Commissioner is aware that the respondent presses for an order that Ms Sten's name not be published. In his email of 3 September 2020 (below) he asked whether the parties wished to be heard on the matter. He was under the wrong impression that the parties had indicated that they were content for the matter to be determined in Chambers and he was proceeding on that basis. However, in reviewing the correspondence the Commissioner observed that only the applicant responded directly to the email. The respondent has not stated whether he wishes to be heard further on the application. The Commissioner asks the respondent to inform the Commission whether he desires such a hearing, or is content for the question to be dealt with in Chambers." 1. On 27 November 2020 the solicitors for the Commissioner of Police confirmed, again by way of email, that he was content for the matter to be dealt with in chambers. 2. In my opinion, it is appropriate that the question as to whether the non-publication order sought by the Commissioner of Police ought to be made be dealt with in advance of the Commission determining the substantive matter and publishing its decision in that regard. This decision, therefore, deals only with the application by the Commissioner of Police for an order for the non-publication of Ms Sten's name. 3. The power of the Commission to make non-disclosure orders is contained in s 164A of the Industrial Relations Act 1996 (NSW), which is in these 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) (Repealed) (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. (5) (Repealed) 1. In Dr A and Health District (2014) 244 IR 208; [2014] NSWIRComm 28 the Full Bench observed: "46. The respondent drew the Deputy President's attention to various decisions relating to the making of non disclosure orders including: John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 ('John Fairfax 2004'); Rinehart v Welker [2011] NSWCA 403 ('Rinehart'); Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 293 ALR 384 ('Fairfax Digital'); Harry Day v John Smidmore (No 2) [2005] NSWIRComm 406; (2005) 149 IR 80 ('Smidmore (No 2)'); John Fairfax & Sons Pty Limited v Police Tribunal (1986) 5 NSWLR 465 ('John Fairfax 1986'); R v Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 ('Macfarlane'); and Buttling v NSW Department of Education and Communities (No 2) [2012] NSWIRComm 72 ('Buttling (No 2)'). 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: John Fairfax 2004 per Spigelman CJ at [18]-[21] (Handley JA & Campbell AJA agreeing); Rinehart at [32]; Fairfax Digital at [9]; (2) exceptions to the principle of open justice are strictly defined and applied sparingly: John Fairfax 2004 at [19], [21]; (3) the test in s 164A(3) of the IR Act is the common law test: Smidmore (No 2) at [29]; (4) according to the common law test mere embarrassment or distress is not sufficient to warrant the making of a non-disclosure order: Smidmore (No 2) at [19]; Buttling (No 2) at [26]; 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: Smidmore (No 2) at [32]; Buttling (No 2) at [6]; (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: Buttling (No 2) at [8]. 48. The appellant did not demur from these principles and for our part we respectfully consider they are correct. …" 1. Applying these principles, I am not satisfied that the Commissioner of Police has made out a case for a non-publication order to be made in the terms sought. It is to be observed that the only information that the Commissioner of Police has provided to the Commission is that contained in the email of 26 August 2020. The concerns raised in that email are highly qualified and uncertain. 2. In the first place, the concerns are predicated on an order being made by this Commission which "the Aboriginal community of Richmond PD do not agree with". The reference to "the Aboriginal community of Richmond PD" is itself an amorphous concept. Further, and leaving to one side whether the Commission should be guided by whether or not members of the community agree with its orders, it does not seem to matter whether there is any proper or sound basis for any concerns that the Aboriginal community might have with any such orders. 3. In the second place, it is suggested that "there may be a perception within the community that Ms Sten gave evidence in support of that order being made". This is necessarily speculative. The submission asks the Commission to anticipate the orders that will ultimately be made in the proceedings; how, if at all, those orders are or might be seen to be related to Ms Sten's evidence; and, how the decision of the Commission will be "perceived" by members of the Aboriginal community. 4. Finally, and perhaps more substantively, even were it to be accepted that the concerns raised on behalf of the Commissioner of Police were well-founded, it is not explained how this would be "personally and professionally problematic" for Ms Sten. 5. Having regard to the principles outlined in Dr A and Health District, I am not satisfied that it is necessary in the interests of justice to make an order that there be no publication of Ms Sten's name. The application by the Commissioner of Police for such an order is rejected. Damian Sloan Commissioner ********** 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: 22 December 2020