Industrial Relations Commission New South Wales Medium Neutral Citation: Dunlavie v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1043 Hearing dates: 3 May 2023 Date of orders: 9 May 2023 Decision date: 09 May 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: I make the following orders: (1) the Department is released from any obligation to produce the "submission" referred to in pars 4 and 5 of the affidavit of David Aitken affirmed on 6 April 2023; (2) in so far as the Motion seeks an order that item 2 of the Summons be set aside, it is adjourned to a date to be fixed; and (3) the Motion is otherwise dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application to set aside summons to produce – whether privilege over a document warrants an order setting summons aside in part – whether documents sought have apparent relevance – whether disclosure prohibited by s 22 of the Public Interest Disclosures Act 1994 – whether powers of the Commission limited by s 22 – whether as a matter of discretion the Commission ought to set summons aside having regard to the terms of the Public Interest Disclosures Act Legislation Cited: Court Suppression and Non-publication Orders Act 2020 s 8 Industrial Relations Act 1996 Ch 2 Pt 7, ss 98, 146, 164A, 165 Public Interest Disclosures Act 1994 ss 4, 5, 22 Cases Cited: Nichols v Singleton Council (2011) 81 NSWLR 442 Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Department of Education and Communities (2013) 233 IR 345; [2013] NSWIRComm 32 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Williams v Secretary, Department of Education [2022] NSWIRComm 1007 Texts Cited: Nil Category: Procedural rulings Parties: Mark Dunlavie (Appellant) Industrial Relations Secretary (Respondent) Representation: Counsel: M Gibian SC (Appellant) O Fagir (Respondent) Solicitors: Public Service Association of NSW (Appellant) McCabes (Respondent) File Number(s): 2022/00353119 Publication restriction: No DECISION 1. In these proceedings, Mark Dunlavie has appealed against his dismissal as a First Class Correctional Officer with Corrective Services NSW. The proceedings have been brought pursuant to s 98 of the Industrial Relations Act 1996 ("IR Act"). 2. On 14 March 2023 Mr Dunlavie arranged for a summons to produce to be issued ("Summons"), pursuant to s 165 of the IR Act. The Summons was directed to the Secretary of the Department of Communities and Justice ("Department") and sought the production of documents described in seven numbered items in a schedule to the Summons. 3. On 6 April 2023 the Industrial Relations Secretary ("Secretary") filed a notice of motion seeking orders that the Summons be set aside in part ("Motion"). The Motion was supported by an affidavit of David Aitken, a legal officer employed by the Department, affirmed on 6 April 2023. On 19 April 2023 the Secretary filed an outline of submissions in respect of the Motion ("Secretary's Submissions"). 4. Mr Dunlavie resisted the Motion. He read an affidavit of Benjamin David Trainor, a solicitor employed by the Public Service Association of NSW, affirmed on 26 April 2023. He relied on an outline of submissions filed on 27 April 2023 ("Mr Dunlavie's Submissions"). 5. To provide some context to the discussion which follows, I reproduce the following passage from the Secretary's Submissions: "1. The appellant is a former employee of the respondent (Department). On 10 November 2022 the Department dismissed the appellant after giving him an opportunity to resign. The appellant's dismissal followed an investigation and disciplinary process which determined that he had engaged in misconduct. Broadly speaking the misconduct consisted of abuse and mistreatment of colleagues and inmates during the course of his employment at Cooma Correctional Centre (Cooma CC). The investigation [was] largely precipitated by public interest disclosures to the NSW Independent Commission Against Corruption (ICAC), which alleged serious and sustained misconduct by the appellant and several other officers at the Cooma CC. The investigation process itself was long, and took some years to conclude." (Emphasis in original) Item 1 of the Summons 1. The Motion seeks an order that item 1 of the Summons be set aside "to the extent it seeks production of any document not already produced by the respondent". It is not necessary to reproduce the terms of that item. The Secretary relied on the evidence of Mr Aitken, who deposed that all documents sought by item 1 had been produced, save for a "submission" to Shannon Kay, the Custodial Director, dated 21 October 2022 of which Mr Aitken was the author. The Secretary asserted legal professional privilege over that "submission". The Secretary clarified at the hearing of the Motion that to the extent that Mr Dunlavie sought further documents in respect of item 1 of the Summons, they were contemplated by item 2 of the Summons. 2. Mr Dunlavie did not challenge the claim for privilege over the "submission" or press for its production. There was, though, some controversy as to whether the Department had fully complied with item 1 of the Summons. In his affidavit, Mr Trainor described a review he had undertaken of the material produced by the Department in respect of item 1. He deposed that the Department had "failed to produce full copies of the documents sought under item 1, which would include complete transcripts of witness interviews and complete witness statements, both in draft and final form". 3. There was some discussion during the hearing directed towards this controversy. However, it is not necessary to traverse that discussion or to resolve the controversy for the purposes of addressing this aspect of the Motion. 4. Even were the premise of the Secretary's position to be accepted, the fact that the "submission" to which Mr Aitken referred attracts legal professional privilege does not necessarily support an order setting aside item 1. It might rather support orders restricting access to that document, following its production to the Commission. 5. I am not persuaded that item 1 of the Summons ought to be set aside. In circumstances where Mr Dunlavie does not press for production of the "submission", and having canvassed the matter with the parties at the hearing, I consider that the more appropriate order is that the Department be released from the obligation to produce that document. Item 2 of the Summons 1. The Motion seeks an order that item 2 of the Summons be set aside. That item calls for the production of "all final and unredacted versions of every statement provided by the [Investigations Branch] to Corrective Services NSW in relation to the investigation of the Allegations". (The term "Allegations", which I will adopt, is defined in the Summons, and refers to the allegations against Mr Dunlavie that were found by Corrective Services NSW to be substantiated and which resulted in the termination of his employment.) 2. It is not necessary that I determine this aspect of the Motion at this time. The parties informed me that they are exploring alternative avenues by which the controversy in respect of item 2 might be resolved. In short, the Department has agreed to produce redacted copies of statements made by various persons to Mr Dunlavie, with unredacted copies made available for inspection by his legal advisors. Mr Dunlavie submitted, in effect, that he would accept production on that basis without prejudice to his rights to press for full production. 3. Having canvassed the matter with the parties during the hearing, I consider that the Motion should be stood over insofar as it relates to item 2 of the Summons, pending Mr Dunlavie determining whether to press for further production, once his legal advisors have had the opportunity to inspect the documents. Items 3, 4 and 7 of the Summons 1. The Motion seeks an order that items 3, 4 and 7 of the Summons be set aside. Items 3 and 4 of the Summons call for the production of all documents containing any communication in relation to the investigation of the Allegations between, respectively, the Professional Standards Branch (item 3) and the Investigations Branch (item 4), and 12 named individuals. Item 7 seeks the production of all correspondence in relation to the Allegations between the Department and the Independent Commission Against Corruption. 2. The Secretary opposes the production of the documents on three bases: firstly, they have no apparent relevance; second, the production of the documents is prohibited by s 22 of the Public Interest Disclosures Act 1994 ("PID Act"); and third, the Commission would not as a matter of discretion let items 3, 4 and 7 of the Summons stand, including on the basis that it would be oppressive and contrary to the interests of justice to require the production of the documents. Apparent relevance 1. On the question of apparent relevance, both parties referred me to Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 ("Blacktown City Council"). I have had particular regard to the observations of Bell P (as his Honour then was) at [65] to [70], with which Brereton and McCallum JJA agreed (see [89] and [98]). I will not reproduce those passages. Both parties acknowledged the observation of Bell P that "apparent relevance" sets a "relatively low threshold" (at [71]). 2. In Blacktown City Council, Bell P observed that it "will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings" (at [80]). Brereton JA stated: "89. I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is 'likely' (or 'on the cards') that the documents sought will materially assist its case, as distinct from that it is 'likely' (or 'on the cards') that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they 'appear relevant in the sense that they relate to the subject matter of the proceedings'; or that they could possibly throw light on the issues in the case. Moreover, documents will add 'in some way' to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence." (Footnotes omitted) 1. The Secretary's Submissions included the following contentions: "13. The issue in this case is whether the applicant engaged in the misconduct alleged against him. That is a matter subject of direct witness evidence. Very considerable volumes of material exposing the investigation process and earlier witness accounts has been produced to date. 14.. The question is whether it is likely that documents constituting communications between the PSB or IB and various persons, or between the Department and ICAC, will add in some way to the evidence of misconduct already adduced. They will not. The disputed categories should therefore be set aside." 1. The Secretary expanded on these submissions during the hearing of the Motion. Significant emphasis was placed on the large amount of material that had been provided to Mr Dunlavie by the Department to date. Some of this material had been voluntarily disclosed to Mr Dunlavie, some had been produced pursuant to the Summons and some was included in the evidence the Secretary had filed in the proceedings. It was argued that the question as to whether the documents sought in the Summons could add to the relevant evidence and the proceedings had to be considered in the context of what had so far been produced. It was said that where there has been significant disclosure of relevant documents, it was not likely, nor was it "on the cards", that the documents sought in the Summons will add to the relevant evidence in the proceedings. 2. Mr Dunlavie's Submissions included the following: "15. Dealing with items 3 and 4 together, the communications are relevant and sought for a legitimate forensic purpose. The communications sought are between individuals who purport to be witnesses to either the Allegations or the surrounding circumstances to the Allegations and the disciplinary and investigative arms of the respondent who were involved in the investigation. What individual witnesses communicated to the respondent in relation to the Allegations is plainly relevant to an assessment of whether the Allegations are substantiated. 16. The documents are sought in the context in which the evidence sought to be relied upon by the respondent substantially consists of witness statements which adopt records of interview or witness statements previously prepared by the witness in the course of the investigation of the Allegations conducted by the respondent. Further, a number of the witnesses disclose that they were requested to provide a further statement or clarification after initially having been interviewed. 17. Communications between investigators and individual witnesses in relation to the Allegations, outside of the records of interview and witness statements themselves, are capable of casting light on the issues in the proceedings (namely, the truth or otherwise of the allegations) and will permit appropriate testing of the evidence of the witnesses. Accordingly, the materials are relevant because: a. The communications are 'capable of assisting in cross examination' of the respondent's witnesses. That is, the communications relate to the Allegations and are capable of assisting in cross examination of the respondent witnesses who otherwise give evidence in relation to the Allegations. b. The communications may materially assist on an identified issue, that being, whether the Allegations are true or false to the extent they disclose further information as to the witness' accounts or recollections of the events subject of the Allegations. 18. The substance of respondent's submission in relation to apparent relevance is that there is already a significant volume of evidence in relation to the investigation process and earlier accounts of the witnesses. That is not, in truth, a submission that further documents are not apparently relevant. The submission overlooks that, to the extent the witnesses engaged in additional communications with the respondent in relation to the Allegations, those communications are relevant to understand the full account of the witnesses and must be produced to enable the evidence of the witnesses to be adequately tested. 19. In respect of item 7, the investigation into the appellant's conduct (which led to the Allegations) was precipitated by disclosures made to ICAC and, it is understood, a referral from ICAC to the respondent. It is reasonable to presume that the communications will capture accounts of the conduct as well as post decision events or conduct which may be relevant to the determination of penalty. The communications have legitimate forensic purpose as they may either: a. Assist in cross-examination of the respondent's witnesses; b. Assist on an identified issue that being either whether the allegations are true and if so, what would be the appropriate penalty for the misconduct." (Footnotes omitted) 1. I accept these submissions, and reject the Secretary's contention that the documents sought by items 3, 4 and 7 of the Summons have no apparent relevance to the issues arising in these proceedings. This is for several reasons. 2. The issue in this case is not, as the Secretary contended, solely whether Mr Dunlavie engaged in the misconduct alleged against him. Under Ch 2 Pt 7 of the IR Act, the Commission might also be required to determine the appropriate penalty to impose in respect of any sustained findings of misconduct. The matters to which the Commission may have regard in determining penalty may not be confined to the evidence led as to whether Mr Dunlavie did, or did not, engage in misconduct. 3. Further, the Secretary's submission that the question of whether Mr Dunlavie engaged in misconduct is a matter the "subject of direct witness evidence" is rather to the point. Mr Dunlavie is entitled to challenge that evidence, including through cross-examination. 4. The Secretary did not challenge the characterisation of the Secretary's evidence at par 16 of Mr Dunlavie's Submissions, reproduced at [20] above. To the extent that the Secretary's witnesses adopt statements made during the course of the investigation into the Allegations, I accept that documents that relate to the process by which those statements came to be prepared may have a bearing on the issues in the case or assist Mr Dunlavie in his cross-examination of the witnesses. The documents have apparent relevance in the terms described in Blacktown City Council. 5. The volume of documentation that has already been produced has no bearing on the question of apparent relevance. The fact that the Department holds documents answering the descriptions in items 3, 4 and 7 of the Summons is made clear in Mr Aitken's affidavit. The Commission cannot simply assume, as the Secretary invites it to do, that because a large number of documents have already been produced, nothing else is likely to add to the case. The Public Interest Disclosures Act 1. In his affidavit, Mr Aitken deposed: "11. I have collated and reviewed the documents which fall within categories 3, 4 and 7. 12. I do not know who made the relevant disclosure to ICAC, and the documents do not directly identify that person. The documents do however include communications between the Department and ICAC, and the Department and various identified persons, which relate to allegations of misconduct at Cooma Correctional Centre. 13. Having reviewed the documents, I am concerned that production of the documents to the applicant and/or his representatives might tend to identify a person who made a disclosure of misconduct to the Independent Commission Against Corruption (ICAC) and which was referred to the Department of Communities and Justice by ICAC. 14. The production of the documents may therefore contravene s22(1) of the Public Interest Disclosures Act 1994 (NSW)." (Emphasis in original) 1. Section 22 of the PID Act is relevantly in these terms: 22 Confidentiality guideline (1) An investigating authority or public authority (or officer of an investigating authority or public authority) or public official to whom a public interest disclosure is made or referred is not to disclose information that might identify or tend to identify a person who has made the public interest disclosure unless— (a) the person consents in writing to the disclosure of that information, or it is generally known that the person has made the public interest disclosure as a result of the person having voluntarily identified themselves (otherwise than by making the public interest disclosure) as the person who made the public interest disclosure, or (b) it is essential, having regard to the principles of natural justice, that the identifying information be disclosed to a person whom the information provided by the disclosure may concern, or (c) the investigating authority, public authority, officer or public official is of the opinion that disclosure of the identifying information is necessary to investigate the matter effectively or it is otherwise in the public interest to do so. … 1. It is not in contest that the Department is a "public authority". On the basis of Mr Aitken's evidence I accept that a "public interest disclosure" (as that term is defined in the PID Act) has been made. 2. The question for present purposes is whether s 22 operates either to preclude the Commission from issuing a summons, or the Department from complying with that summons, if it would require the disclosure of information "that might identify or to tend to identify a person who has made the public interest disclosure". 3. The Secretary's Submissions included the following contentions: "17. Section 22 is one of a series of provisions designed to give effect of [sic] the statutory object set out in section 3 of the PID Act. That object is expressed to be 'to encourage and facilitate the disclosure, in the public interest, of corrupt conduct, maladministration, serious and substantial waste, government information contravention and local government pecuniary interest contravention in the public sector by… (a) enhancing and augmenting established procedures for making disclosures concerning such matters, and (b) protecting persons from reprisals that might otherwise be inflicted on them because of those disclosures'. 18. The Department is a 'public authority' within the meaning of the PID Act. As the Aitken affidavit indicates, public interest disclosures were made to ICAC and referred to the Department. Section 22 therefore prohibits the disclosure by the Department of any information which might tend to identify a person who made disclosures to ICAC unless one of the listed exceptions applies. None of the exceptions authorises the production of the documents sought in this case (although one might apply to some of the documents). In particular it could not seriously be suggested that production to the appellant of the communications sought is 'essential, having regard to the principles of natural justice' in circumstances where the allegations against him have been identified in exhaustive detail during the disciplinary process and in the material provided to him following dismissal." (Emphasis in original) 1. Mr Dunlavie contended that s 22 had no application in the current circumstances, given the terms of s 5 of the PID Act. That section is relevantly in these terms: 5 Relationship of this Act and other Acts (1) This Act prevails, to the extent of any inconsistency, over the provisions of any investigation Act. (2) However, nothing in this Act otherwise limits or affects the operation of any Act or the exercise of the functions conferred or imposed on an investigating authority or any other person or body under it. … 1. The term "investigation Act" is defined in s 4 of the PID Act. It does not include the IR Act. Mr Dunlavie submitted that on its terms, s 5(2) should be read as preserving the operation of the IR Act, including the Commission's powers under s 165 of the IR Act to compel production of documents. 2. The Secretary's Submissions contended: "20. There are two possible views of s 5(2). One is that the section merely clarifies that the substantive provisions of the PID Act providing for referrals and investigations of disclosures do not prevent other bodies (such as the Commission) from investigating or considering matters subject of the disclosure. On that view s 5(2) does not qualify s 22(1). A second view is that the effect of s 5(2) is that functions conferred on another body – for example the Commission's powers to issue summonses under the Industrial Relations Act 1996 (NSW) – are wholly unaffected by the PID Act, and s 22(1) has no operation in respect of disclosure pursuant to other statutory provisions." 1. For the reasons which follow, I prefer the second of these constructions and hence I accept the submissions advanced by Mr Dunlavie. 2. Neither party was able to direct me to any authority which had considered the combined effect of ss 5(2) and 22 of the PID Act, and in particular the extent to which they impacted on the power of the Commission, or indeed of any court or tribunal, to compel production of documents. The Secretary referred me to Nichols v Singleton Council (2011) 81 NSWLR 442 ("Nichols") in which the Court had to determine an application for orders pursuant to s 8 of the Court Suppression and Non-publication Orders Act 2020 to suppress the name of a complainant which had been inadvertently disclosed during discovery. In her decision, Schmidt J considered the operation of s 22 of the PID Act. The terms of that section informed the exercise of her discretion to make the orders sought. Her Honour did not refer to s 5(2) of the PID Act. 3. During the hearing of the Motion I had the following exchange with counsel for the Secretary: "There's no point being coy about this. Her Honour doesn't say 'And forget about subs 5(2). That's got nothing to do with this,' but the same issue arises and her Honour and the parties debating the issue before her must have come to the view that s 5 subs 2 did not render the whole debate moot because there's an extensive debate in the case about s 22 and how it operated in the circumstances of that inadvertent disclosure. Her Honour didn't say, and so far as the judgment reveals no one else said, 'Forget about s 22. It's got no operation here because we have s 5 and, to the extent that this Court is exercising its powers under the Supreme Court Act and/or the Civil Procedure Act, s 22 is inoperative.' Her Honour didn't say that, no one else said it, yet that's precisely the view of s 5 subs 2 which is being advanced here. COMMISSIONER: But can I take it as read though that because an argument appears not to have been raised or dealt with by the judge, that it must necessary [sic – necessarily] have been decided by the judge in a particular way? Isn't that the effect of that submission? FAGIR: Yes. Yes, one would assume in the absence of some contraindication that this issue, which is an obvious one and which these parties at least immediately appreciated to be at the forefront of the debate, one would have to assume that the parties before her Honour and the Court turned their minds to this issue and decided, without saying so, that it didn't supply the answer to the difficult question that they were grappling with. … COMMISSIONER: A judge didn't decide something? FAGIR: Yes, that we've deduced that Schmidt J in the Supreme Court turned her mind to this issue and formed a view about it. That would not be a proper basis on which to decide the question but it is relevant." 1. I have had regard to the Secretary's submissions, and the reliance placed on Nichols. I do not consider that the case greatly advances the Secretary's argument. I have difficulty accepting that Nichols stands as authority for a proposition that was not canvassed, let alone determined, by the Court. 2. This leads to a consideration of the terms of the PID Act itself. It is not necessary that I rehearse at length the principles governing statutory construction. They have been summarised in numerous decisions of the Commission, including Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Department of Education and Communities (2013) 233 IR 345; [2013] NSWIRComm 32 ("Department of Education") at [24] and Williams v Secretary, Department of Education [2022] NSWIRComm 1007 at [33]-[37]. 3. I note in particular the following principles summarised in Department of Education at [24(2)]: the process of statutory construction begins with a textual analysis of the words of a provision – that is, a consideration of the ordinary and grammatical meaning of the words; ordinarily, the legal meaning of a provision of a statute will correspond with the grammatical meaning, but not always; and, the legal meaning is ascertained by reference to the language of the statute viewed as a whole. 4. To my mind, the language of s 5 of the PID Act is clear: the PID Act prevails over the provisions of any investigation Act (as defined) to the extent of any inconsistency, and the operation of any other Act is unaffected. The Secretary accepted at the hearing of the Motion that this was "grammatically most obvious view of the provision". However, he went on to submit: "The reason that we say that grammatically most obvious view would not be adopted in this case is because the provision should be read with an eye to the object of the PID Act including the express object of promoting disclosures by protecting whistle-blower from reprisals. The effect of what you've suggested, Commissioner, is the plain meaning is that the confidentiality guidelines and the whole of the carefully calibrated machinery of the PID Act for the protection of whistle-blowers is immaterial, is a thing writ in water if other proceedings are commenced or there's an application for the exercise of some other statutory power and that, we say, is a result which is unlikely to have been intended because it undermines, we would say, fundamentally the object of the PID Act." 1. There are two observations to make about these submissions. First, they require the Commission to ignore the ordinary and grammatical meaning of s 5 of the PID Act. It is not a case of adopting an alternative construction of the provision, but to attempt its re-writing. The approach for which the Secretary contends would effectively require s 5(1) to be read as referring to any Act, not just an "investigation Act", and for s 5(2) to be ignored. 2. Second, I am acutely conscious of the objects of the PID Act and the protections which it seeks to provide to those making public interest disclosures, including through s 22. However, a requirement, through a summons issued pursuant to s 165 of the IR Act, that a party disclose information that otherwise could not be disclosed pursuant to s 22 does not leave a person who made a public interest disclosure bereft of protection. The Commission has the discretion to limit access to documents produced, permit the redaction of documents and to make non-disclosure orders pursuant to s 164A of the IR Act. The Commission's discretion 1. In the Secretary's Submissions he contended that, whether or not s 22 strictly prohibits disclosure, the express object of the PID Act is to prevent disclosure of the identity of complainants except in limited circumstances. Although the Commission is not strictly speaking a custodian of the PID Act, it should as a general proposition avoid taking steps "which undermine the carefully designed scheme of the PID Act". Even if the Commission as a matter of jurisdiction may require disclosure "contrary to s 22", it would not exercise that discretion without a very good reason to do so, and no such reason existed in this case. 2. At the hearing of the Motion, the Secretary further submitted that it would be an abuse of process to require the production of documents that would otherwise be prohibited from disclosure under s 22. He also argued that requiring disclosure of the documents would "inevitably have a chilling effect [on] the willingness of employees to report misconduct and their willingness to participate frankly and opening in investigation processes". 3. In his affidavit, Mr Aitken deposed: "15. Whether or not the production would strictly speaking contravene the Public Interest Disclosures Act 1994 (NSW), I would be concerned by the production of the documents to the applicant and the disclosure to the applicant of the identity of complainants. This is because the complainants identified in those documents provided information to the Professional Standards Branch in confidence concerning allegations of misconduct about the appellant, that in part led to the termination of his employment. In my view it is possible that the appellant might reasonably assume that one of these complainants is the maker of the public interest disclosure to the ICAC and seek to take reprisal action against them for doing so." 1. The "scheme" of the PID Act to which the Secretary referred includes s 5(2). For the reasons canvassed above, the protections afforded by s 22 do not limit the powers of the Commission under the IR Act. The Secretary has not adequately explained why the Commission would place constraints on its powers when the legislature has not seen fit to do so. 2. Further, as Mr Dunlavie submitted, s 22 does not impose an unqualified prohibition on the disclosure of information which might identify or tend to identify a person who has made a public interest disclosure. It contains exemptions, with that in s 22(1)(c) in particular being capable of a wide application. 3. It is also significant that items 3 and 4 of the Summons identify 12 named individuals. In a letter to Mr Dunlavie dated 16 November 2021, which is attached to Mr Dunlavie's Application for Public Sector Disciplinary Appeal, the Department identified 11 of those individuals as having participated in the investigation into the Allegations, including by providing information, being interviewed and/or providing statements. The twelfth was identified in a further letter from the Department to Mr Dunlavie dated 26 June 2022, which is also attached to the Application. The terms of those letters suggest that documentation in relation to the individuals' participation in the investigation was provided to Mr Dunlavie at the time. 4. The provision of this information to Mr Dunlavie limits the weight that can be afforded to the Secretary's concerns as to the "chilling effect" that disclosure of the documents may have on the conduct of future obligations, and the concerns alluded to by Mr Aitken in this regard at par 15 of his affidavit. 5. Further in this regard, Mr Dunlavie has been aware since November 2021, and certainly by no later than June 2022, that each of the individuals named in items 3 and 4 of the Summons had participated in the investigation into the Allegations. There is no evidence that he has taken reprisal action against any of them. In the circumstances, little weight can be attached to the concerns expressed by Mr Aitken that Mr Dunlavie may in future do so. 6. I am mindful of the obligation imposed on the Commission by s 146 of the IR Act that in exercising its functions the Commission "must take into account the public interest". I have taken the public interest into account in considering the Secretary's contention, having particular regard to the terms of the PID Act. I am not persuaded that the arguments advanced by the Secretary support an order that items 3, 4 and 7 of the Summons be set aside. They might support an application for the redaction of certain information, for orders limiting access to the documents or for other appropriate orders under s 164A of the IR Act. This is a matter to be determined if and when such an application is made. Orders 1. I make the following orders: 1. the Department is released from any obligation to produce the "submission" referred to in pars 4 and 5 of the affidavit of David Aitken affirmed on 6 April 2023; 2. in so far as the Motion seeks an order that item 2 of the Summons be set aside, it is adjourned to a date to be fixed; and 3. the Motion is otherwise dismissed. 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: 09 May 2023