Tasmanian Government Logo

Tasmanian Industrial Commission

 
Link to the Tas government site

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

Andrew Scott Gunston
(T9986 of 2002)

and

Commissioner of Police

 

COMMISSIONER T J ABEY

HOBART, 10 MAY 2002

Industrial dispute - Police Award - alleged unfair termination of employment - application for closed hearing - media coverage - public interest - application denied

Reasons for Preliminary Decision

[1]  This matter concerns an application by Mr Andrew Gunston, formerly a Sergeant in the Tasmania Police Department. Mr Gunston contends that he was unfairly dismissed by the Commissioner of Police and seeks reinstatement.

[2]  When this matter came on for hearing on 1 May 2002, counsel for the applicant, Mr P Tree, applied for a closed hearing pursuant to the Industrial Relations Act 1984 (the Act), s. 26, which states:

"26. (1) The proceedings of the Commission shall be conducted in public unless, at any stage of the proceedings, the Commission, of its own motion or on the application of any of the parties, directs that the proceedings be conducted in private.

(2) Where the Commission directs that any proceedings shall be conducted in private, all persons (other than the parties, their representatives, any interveners, the officers of the Commission, and any witness under examination) shall withdraw."

[3]  After hearing submissions on the application in private, I issued a decision on transcript denying the application. I now publish reasons for that decision.

[4]  Mr Tree advised that the incident which led to the dismissal concerned an allegation that Mr Gunston had performed oral sex on a woman in a Queenstown hotel. Mr Gunston was off duty at the time.

[5]  There were two grounds for the application.

[6]  Firstly, an open hearing would inevitably lead to widespread media coverage. This in turn would lead to severe embarrassment, in particular for the woman involved in the incident, who was to be a witness in the proceedings.

[7]  Secondly, widespread media attention would inevitably link the officer's name to the conduct in question. This might well enhance the force of any submission from the Commissioner of Police on the matter of impracticability of reinstatement, in the event that this Commission found the dismissal to be unfair.

[8]  Mr M Miller, representing the Commissioner of Police, strongly opposed the application. He referred in particular to the judgement of Underwood J in R v Matterson and anor ex parte Christine Debra Moles (No 2).1

[9]  Underwood J said:2

"6. Any application to suppress from public scrutiny either a part or the whole of a judicial proceeding is a fundamental concern of the court. Consent of all parties to the making of a suppression order although relevant, (ABC v Parish [1979-1980] 29 ALR 228 at 254) is not decisive. Admission of the public to attend curial proceedings and the publication of those proceedings is an attribute of a court. Consequently, the rule is that generally, the administration of justice must be open to full public scrutiny and comment.

...

7. The common law rule that the administration of justice must be done in public has been re-affirmed on many occasions since Scott and was not called into doubt in these proceedings. See eg, McPherson v McPherson [1936] AC 177; Russell v Russell [1976] 134 CLR 495; R v Tait [1979] 46 FLR 386. It is required in order to maintain public confidence in our system of justice and to safeguard against judicial arbitrariness.

8. Notwithstanding the importance of the common law rule, it has been recognised that when adherence to it would defeat the very purpose it was designed to satisfy namely, the interests of justice, it may be abrogated but no more than is necessary for the purpose of doing justice."

[10] Underwood J adopted with approval a number of conclusions from a judgement of Lee J in R v L and A Services Pty Ltd. Mr Miller submitted that the following extracts in particular are relevant to these proceedings:3

"'1 Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.

...

(a) Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information ...

...

Even so, information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other "collateral disadvantage", to use the expression adopted in R v Tait.

...

Further, public scrutiny is a strong disincentive to false allegations and a powerful incentive to honest evidence, and publicity may attract the attention of persons with material information who are unaware of the proceeding. Again, as was pointed out by McHugh JA in John Fairfax and Sons Ltd v Police Tribunal of New South Wales, if information is suppressed "proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods ..."""

[11] In John Fairfax and Sons v Police Tribunal4, McHugh JA said at 476:

"The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the court room. Accordingly, an order of the court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it."

[12] Mr Miller said that the media knew the identity of Mr Gunston and the matter had already been the subject of media reports, albeit without identities being disclosed.

[13] Mr Miller submitted that the applicant could have pursued the matter through an appeal to the Police Disciplinary Board, the proceedings of which are expressly closed to the media and public. Mr Gunston had exercised a choice to take the matter to the Industrial Commission in the knowledge that proceedings may well be public.

[14] It is clear from the scheme of the Act that there is a presumption that hearings will be conducted in public.

[15] Whilst discretion resides in the Commission to conduct proceedings in private, the Act offers no guidance as to circumstances whereby that might be exercised. In the absence of anything put to me to the contrary, I accept that the principles outlined in the authorities above apply with equal force to the proceedings of this Commission.

[16] In my experience, "closed hearings" are used sparingly in this jurisdiction. Examples of circumstances where a closed hearing might be considered would include confidential financial information and the protection of minors.

[17] It is clear from the authorities that unwelcome publicity and/or public embarrassment do not constitute sound reasons for closing a hearing, and hence I reject this aspect of Mr Tree's application.

[18] There is greater force in the second leg of Mr Tree's submission. This hearing is, however, essentially a review of a disciplinary procedure against Mr Gunston. This can be distinguished from an investigation at first instance, which would, of course, be rendered a non-event if carried out in the public gaze.

[19] There are legitimate public interest considerations in this review and for that reason alone transparency is of the utmost importance. Perhaps this is even more so given that the Police Department is the custodian of public law and order. In my view, this consideration outweighs by a considerable margin the anxiety expressed by Mr Tree.

[20] Whether or not the practicability of reinstatement becomes an issue is a matter for the future. In the event that it does, the fact that the Commissioner of Police strongly opposed this application [as is his right], may well be a factor to be taken into account.

[21] It should be emphasised that the Commission only has the discretion to conduct a hearing in public or private. It does not have the power to suppress the names of witnesses or direct the media. I would observe that had such power existed, suppression of the names [as distinct from the evidence] of civilian witnesses would have been a serious consideration. The fact that they have given evidence in a very difficult environment, without the necessity to issue summons, is to their considerable credit.

[22] The application to conduct these proceedings in private is denied.

 

T J Abey
COMMISSIONER

Appearances:
Mr P Tree with Mr C Green, for the applicant
Mr M Miller with Mr F Ogle, for the respondent

Date and place of hearing:
2002
May 1
Hobart

1 No.A53/1993, unreported, Supreme Court of Tasmania
2 Supra para 6
3 Supra para 11
4 (1986) 5 NSWLR 465