T9986 - 10 May - Preliminary
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Andrew Scott Gunston and Commissioner of Police
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:
[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
[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
[11] In John Fairfax and Sons v Police Tribunal4, McHugh JA said at 476:
[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 Appearances: Date and place of hearing: 1 No.A53/1993, unreported, Supreme Court of Tasmania |