Non-Disclosure Orders Protect Teacher in Misconduct Investigation

In a case involving allegations of serious misconduct against a teacher, the Industrial Relations Commission granted non-disclosure orders to protect the identities of the respondent and witnesses involved in the ongoing investigation.

Industrial Relations Commission New South Wales Medium Neutral Citation: Secretary of the Department of Education v X [2023] [NAME] 1061 Hearing dates: 8 June 2023 Date of orders: 21 June 2023 Decision date: 21 June 2023 Jurisdiction: Industrial Relations Commission Before: Chief [NAME] and [NAME] Decision:

1. Pursuant to s 164A(1)(a)(i) and (3) of the Industrial Relations Act 1996 the Respondent is to be referred to by the use of the pseudonym 'X', both in respect of this appeal proceeding and in the proceeding below in which the Respondent was the Applicant, being proceeding no. 2022/00187168.

2. Pursuant to s 164A(1)(a) and (3) of the Industrial Relations Act 1996 the disclosure to third parties of any material that identifies, or may lead to the identification of the Respondent, or any witness or other person named in the materials filed in this proceeding or in the proceeding below (other than officers and employees of the Appellant), including the name of the [COMPANY] at which the conduct the subject of the Appellant's investigation is said to have occurred, is prohibited.

3. Pursuant to s 164A(1)(c) and (d) and (3) of the Industrial Relations Act 1996 the publication of any material filed in this proceeding and in the proceeding below, is prohibited.

4. Orders 1, 2 and 3 do not apply to any subsequent proceeding commenced by the Respondent and may be varied or revoked pursuant to s 164A(4) of the Industrial Relations Act 1996 by a single [NAME].

5. Orders 1, 2 and 3 remain in force for 30 years unless varied or revoked sooner. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Threatened dismissal of teacher for alleged misconduct — Application for leave to appeal and appeal from dismissal of notice of motion seeking order that proceedings be dismissed for want of jurisdiction — Non-disclosure orders made in proceedings below pursuant to s 164A of Industrial Relations Act 1996 (NSW) — Application by both Appellant and Respondent for non-disclosure orders to be made in respect of appeal proceedings, despite the parties foreshadowing that appeal proceedings and the proceeding below would be discontinued and there would be no hearing of the matter – Whether necessary in the interests of justice for non-disclosure orders to be made - Non-disclosure orders made Legislation Cited: Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Children's Guardian Act 2019 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW), ss 4, 8 Courts Legislation Amendment Act 2003 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Federal Court of Australia Act 1976 (Cth), s 50 Industrial Commission Rules 2022, r 2.6 Industrial Relations Act 1996 (NSW), ss 89(7), 162(20(b), 164A Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) Young Offenders Act 1997 (NSW) Cases Cited: A (a pseudonym) v [NAME] of Police [2019] [NAME] 1091 Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 [NAME] v NSW Department of Education and Communities (No 2) [2012] [NAME] 72 [NAME] v [NAME] (No 2) [2005] [NAME] 406; 149 IR 80 [NAME] [2014] [NAME] 28; 244 IR 208 Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 Russell v Russell (1976) 134 CLR 495 Tilley v Children's Guardian [2017] NSWCA 174 [NAME] v [NAME] of Police (No 2) [2021] [NAME] 1023 X v Department of Justice and Attorney-General [2011] [NAME] 1010 X v Secretary, Department of Education (No 2) [2022] [NAME] 1092 X v The NSW Department of Education [1999] [NAME] 34 Category: Procedural rulings Parties: Secretary of the Department of Education (Appellant) X (Respondent) Representation: Counsel: [redacted] [NAME] with [NAME] (Respondent Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2022/345194 Publication restriction: No, in respect of this judgment Non-disclosure orders made under s 164A of the Industrial Relations Act 1996 (NSW) and apply in respect of filed material Decision under appeal Court or tribunal: Industrial Relations Commission Citation: [2022] [NAME] 1092 Date of Decision: 26 October 2022 Before: [NAME](s): 2022/187168

DECISION 1. [NAME] are applications by both the Appellant, being the Secretary of the Department of Education (Department) and the Respondent, seeking differing non-disclosure orders pursuant to s 164A of the Industrial Relations Act 1996 (NSW).

2. The circumstances in which the applications are made are a little unusual. The matter was initially listed, on 8 June 2023, for hearing by [NAME] of the Department's application for leave to appeal and appeal, from a decision of [NAME] in X v Secretary, Department of Education (No 2) [2022] [NAME] 1092, dismissing the Department's notice of motion in which it had sought an order that the proceedings be dismissed for want of jurisdiction.

3. The proceeding before [NAME] concerned an application by the Respondent (the Applicant in the proceeding before [NAME]), for an order pursuant to s 89(7) of the Industrial Relations Act, that they not be dismissed from their employment. The Respondent is a teacher employed by the Department. In early 2019 the Department had directed the Respondent to undertake duties away from classroom teaching and commenced an investigation into allegations of misconduct. The allegations are numerous, and some are quite serious and involve conduct of a sexual nature. If sustained, the Department is obliged to report certain of the matters to the Children's Guardian pursuant to the Children's Guardian Act 2019 (NSW).

4. In February 2022 the Department had written to the Respondent setting out some findings as to the factual substance of the allegations and the actions the Department was considering taking based on those findings. The Respondent asserted that the Department's letter constituted a threat to dismiss them and that, for reasons that have not yet been tested but which include that the findings are wrong, or that the conduct found does not amount to serious or reportable misconduct, they were entitled to relief pursuant to s 89(7) of the Industrial Relations Act.

5. The Department maintained that the letter sent in February 2022 did not constitute a threat of dismissal and consequently the Commission did not have jurisdiction to make any order under s 89(7) to restrain the Department from dismissing the Respondent. [NAME] was not persuaded that there was no threat to dismiss the Respondent and indeed, made a positive finding that such a threat did exist. In those circumstances he dismissed the Department's notice of motion. It was from that decision that the Department sought leave to appeal.

6. On 7 June 2023, the [NAME] before the hearing of the application for leave and the appeal, the parties informed [NAME], via the Chief [NAME], that the Department would be discontinuing its application for leave to appeal and appeal in circumstances where the Respondent had agreed to discontinue the substantive proceedings before [NAME]. However, the Respondent then made an oral application for non-disclosure orders pursuant to s 164A of the Industrial Relations Act to "ensure the integrity" of non-disclosure orders that had been made by [NAME] in the proceeding below. The Chief [NAME] directed the Respondent to file a written note in support of its application and maintained the listing on 8 June 2023 before [NAME] for the purposes of hearing the Respondent's application.

7. It is common ground that the Respondent's alleged misconduct is still under investigation by the Department and no final determination has been made by the Department in respect of the matter.

8. The Respondent filed submissions in support of its application late on 7 June 2023. In those submissions the Respondent indicated that it sought the following order: Pursuant to section 164A of the Industrial Relations Act 1996 the following non-disclosure orders are made: a. Pseudonyms are to be used for the Respondent in these proceedings. b. The identity of the Respondent and witnesses other than officers of the Appellant are not to be disclosed. c. Prohibiting the disclosure or publication outside of the immediate parties and representatives of the matter, including by all parties to and witnesses in the proceedings, of: (i) The Appellant's Application for Leave to Appeal and Appeal; and (ii) The materials filed in the Commission in the Appellant's Application for Leave to Appeal and Appeal, including any submissions.

1. The Department filed its own written submission on the morning of 8 June 2023. In those submissions it indicated that it would not make submissions for or against the Respondent's application, but it had determined to make its own application for "more confined orders under s 164A to protect the identity of students who are named in the materials before the Commission." In fact, the application went beyond the protection of the identity of students, with a non-disclosure order also being sought for the protection of the identity of certain witnesses.

2. The Department sought the following orders:

1. Pursuant to section 164A of the Industrial relations Act 1996, the Commission prohibits the disclosure to non-parties of any material that identifies, or may lead to the identification of, any witness or other person named in the materials arising from the Appellant's investigation into the Respondent (other than officers and employees of the Respondent) and the name of the [COMPANY] at which the conduct the subject of the Appellant's investigation is said to have occurred; and 2. Pursuant to section 164A of the Industrial Relations Act 1996, the Commission restricts the publication of evidence and other material before the Commission that identifies, or may lead to the identification of, any witness or other person named in the materials arising from the Appellant's investigation into the Respondent (other than officers and employees of the Respondent) and the name of the [COMPANY] at which the conduct the subject of the Appellant's investigation is said to have occurred; and 3. The above orders are subject to further order of the Commission.

1. The Respondent consents to the orders sought by the Department.

2. During oral submissions before [NAME], for reasons which are discussed below, [NAME], senior counsel for the Respondent, submitted that if the non-disclosure order made by [NAME] on 18 July 2022 was not operative following the publication of his decision on the notice of motion, the Respondent also sought an order prohibiting the disclosure of the documents filed in the proceeding below. [1]

The Non-Disclosure Order made by [NAME]

1. On 18 July 2022 [NAME] made the following order (referred to hereafter as the July Order): (2) Pursuant to section 164A of the Industrial Relations Act 1996 the following non-disclosure orders are made: a. Pseudonyms are to be used for both the Applicant and witnesses other than officers of the Respondent in these proceedings. b. The identity of the Applicant and witnesses other than officers of the Respondent are not to be disclosed. c. Prohibiting the disclosure or publication outside of the immediate parties and representatives of the matter, including by all parties to and witnesses in the proceedings, of: i. The Applicant's Notice of Motion and affidavit in support therein; ii. The Respondent's Notice of Motion and affidavit in support herein; iii. any materials filed before the Commission; iv. all evidence given before the Commission; v. the subject matter of the proceedings; vi. the contents of evidence filed with or received by the Commission. d. This order is to remain in force pending determination and outcome of the Respondent's notice of motion and subject to further order of the Commission. 1. [NAME] did not publish reasons for making the July Order and [NAME] was not provided with the transcript of the hearing of the application for the non-disclosure order. While the Respondent in its written submissions suggested that July Order was made following a contested hearing, [NAME] stated in oral submissions that it was made by consent [2] , which was not refuted by Mr [NAME] for the Department. The transcript of the closing stages of the hearing of the notice of motion on 7 September 2022, which is set out below, appears to confirm that the July Order was either made by consent or at least without opposition from the Department and was intended to be an interim order. There is no suggestion that the July Order was not properly made by [NAME] and the July Order has not been appealed, and no stay was or has been sought in respect of the July Order.

2. The Respondent submitted to [NAME] that the July Order remained operative and that the further orders they sought, which solely relate to the appeal, were necessary to ensure the efficacy and operation of the extant July Order. That is not borne out by the transcript of 7 September 2022: [NAME]: …Now, did we have discussions in relation to 164A? [NAME]: I think that, I wasn't privy to them, but I don't think that the respondent agrees to those orders continuing. Is that correct? [NAME]: Yes. [NAME]: We would ask for you to make an order that they continue, at least until you've given the judgment. [NAME]: So, does the order that's in place expire, in your view, now or when I make my decision? [NAME]: No, it doesn't. It continues to operate. But the only other question is an undertaking that the respondent will not terminate the services of the applicant. [NAME]: I apprehend you have your answer for that, but I'll ask [NAME]. [NAME]: There's no undertaking. [NAME]: You're content then that the orders in relation to 164A don't need changing from your perspective? [NAME]: No, they continue, as I understand. [NAME]: Could I just clear my client's view about that? They will continue until the motion is determined. [NAME]: Or further order. [NAME]: No, no. It says, consistent with the basis on which they were made, which is that we didn't want to force the Commission to have to deal with the issue at the directions hearing, it was said the orders can be made until we come on to deal with the motion and they can be dealt with then. They're made until determination of the motion and subject to further order, which was something that the applicant had suggested, because it was thought that there was some need in case there was some change. In any case, the words "and subject to further order" add nothing. The operate until determination of the motion, from my client's view. And if we want to take our chances with a debate about construction of the orders in the future, so be it. I'm just being clear about my client's view of the effect of the orders. [NAME]: Well, we wish to make submissions on the continuation of the orders, in light of what has just fallen from my learned friend. I just don't understand it. Why - I'm not going to bother, take up your time, Mr [NAME]. I was querying why a party before this tribunal would not be prepared to agree to something subject to further order of the Commission, which means they can have the order vacated on their application or extended on our application or vice versa. It's just beyond me. But, you know, we live in difficult times. [NAME]: All right, I'm not going to make any order on the variation to those today. I'll have a look at the terms. I understand what [NAME] is saying about the final words being a statement of what the case would be anyway. And, given what I understand the respondent's position would be, it's likely that I'll extend them marginally when I make my decision, in either case, whether the proceedings are dismissed or whether the proceedings continue, only for so long as we have - until we're able to actually hear submissions and make a sensible decision about whether the matter continues. So that's effectively a bookmark that we - I'll continue them until we've had the proper submissions about that. [NAME]: Thank you, we're content with that. [NAME]: But at this stage they're not going to be existing subject to an application from the respondent. We will readdress them specifically.

1. In light of the final remarks of the [NAME] is of the view that the July Order continued up to and including publication of the [NAME]'s decision – which was published using a pseudonym - but ceased thereafter. At that point it was incumbent on either party to make a further application to [NAME] for the continuation of the order, or for another non-disclosure order to be made, after determination of the motion. During the hearing before [NAME] Senior Counsel for both sides agreed this was a possible interpretation of the July Order, [3] but [NAME] maintained that if this was the effect of the July Order, [NAME] should make the orders sought, together with an order effectively replicating the July Order, to preserve the effect of the July Order.

2. The effect of the July Order was to prohibit the disclosure or publication, outside of the immediate parties and representatives of the matter, of all material filed with the Commission, not only evidence received and not only the names or other identifying information of the witnesses and students alleged to be involved in the alleged conduct. Sections 164A(1)(c) and (d) permit the making of such an order.

3. The evidence received on the hearing of the motion, and which was included in the Appeal Book, included one affidavit of an officer of the Department and three affidavits of the Department's then solicitor. The solicitor's evidence was voluminous. It contains material which details the many allegations made against the Respondent and names the various and numerous students involved in the alleged conduct, the witnesses and the [COMPANY] at which the alleged conduct occurred.

4. The Appeal Book also contained a copy of the Unfair Dismissal Application filed in the proceeding below, with attachments; the Employer's Response, which sets out in brief, the nature of the allegations made against the Respondent; the Department's notice of motion and an affidavit of another of the Respondent's solicitors which was filed in support of the motion, but ultimately not read. That affidavit had documents annexed to it which also detail the numerous allegations made against the Respondent and names the various and numerous students involved in the alleged conduct, the witnesses and the [COMPANY] at which the alleged conduct occurred.

5. The submissions filed by the parties in respect of the application for leave to appeal and the appeal identify the Respondent and contain some details of the allegations made against the Respondent and the name of the [COMPANY] at which the alleged conduct occurred.

6. Due to the number of allegations spanning a period of several years, the names of students and other persons alleged to be involved in the alleged conduct are many and are littered throughout the materials filed below and consequently, in the appeal. The practicalities of having those names and any other identifying material redacted, as the Department's proposed orders would require, were explored with senior counsel for both parties during the hearing: senior counsel for the Department suggested that a further order might be made whereby a protocol might be put in place in the event that a non-party sought access to the Commission's files which would ensure compliance with the orders; senior counsel for the Respondent, as has already been noted, submitted that [NAME] should make orders, as [NAME] had done, which have the effect of prohibiting the disclosure of any of the filed documents. [4]

Submissions of the Parties 1. The Respondent submitted that there was a proper basis for the making of orders they sought pursuant to s 164A for four reasons.

2. First, that the orders "reflect the July Orders and are designed to ensure the efficacy and effectiveness of the July Orders." According to the Respondent it would be a "perverse outcome if, notwithstanding the July Orders being extant, their very effectiveness and operation were undermined because the party names were revealed in the appeal proceedings and able to be linked back to the proceedings at first instance."

3. Second, given that the appeal proceedings will be discontinued, by consent, and there will be no hearing of the appeal "the principle of open justice does not arise for application".

4. Third, in any event, there is a real likelihood that, if the name of the Respondent and details relating to the allegations against them become public, this will jeopardise their career prospects and impact on their ability to earn an income, in circumstances where the allegations are denied by the Respondent and the Department has not yet made a final determination in respect of the allegations and the Respondent's ongoing employment.

5. To make good the third submission the Respondent filed in Court and read, an affidavit of the Respondent's solicitor, who deposed, on information and belief that: 1. the Respondent resides in a country town with their spouse and two infant children, and has done so since 2014; 2. the population of the town is approximately 19,500 people; 3. the Respondent worked at the only [COMPANY] in the town before being directed to perform alternative duties, [although this is not the [COMPANY] at which the alleged conduct occurred]; 4. the teaching fraternity in the town is relatively small and close knit and are well known to each other; 5. the nature of the allegations made against the Respondent mean that it would not be practicable for the Respondent to return to classroom teaching, as the nature of the allegations disclosed in conjunction with the Respondent's identity would interfere with any ongoing or potential future employment involving work with children, particular at schools; 6. the Respondent considers that they are well known in the community because they play first grade and representative sport; and 7. the Respondent's spouse comes from a [NAME] in the district, some of whom were [COMPANY].

1. No objection or other challenge was made to this evidence and [NAME] accepts as fact the matters set out in the preceding paragraph. In reaching this view we have also had regard to the material filed in respect of the application for leave to appeal and the appeal, including the Appeal Book, and in particular the serious nature of some of the allegations made against the Respondent. Whether those facts justify the making of the orders sought is discussed later in this decision.

2. Fourth, the Respondent submitted that the publication of the Respondent's name "may jeopardise the prospect of appropriate relief in any future proceedings in circumstances where the issues relating to the Respondent's employment, remain alive and contested".

3. The Department meanwhile submitted that the orders it sought should be made in the interests of justice: 1. to protect the identity of students involved in the Department's investigation, including by suppressing the name of the [COMPANY] at which the alleged conduct is alleged to have occurred, to "protect the children involved"; and 2. to prevent "prejudicing future investigations" on the basis that allowing publication of the names of witnesses may disincline future witnesses from participating in disciplinary investigations.

Applicable Principles 1. 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.

1. Pursuant to 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. In [NAME] [2014] [NAME] 28; 244 IR 208 [NAME] accepted, at [47] – [48], by reference to [NAME] v [NAME] (No 2) [2005] [NAME] 406; 149 IR 80 at [29], that the test in section 164A(3) "is the common law test". In fact what [NAME] said in in [NAME] v [NAME] was that the test in s 164A(3) was "based on the common law test" and referred to the remarks concerning that test in John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477 per [NAME]; John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 at 161B per Mahoney JA and Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 345F per Mahoney JA. 2. [NAME] v [NAME] itself was a decision concerning s 164A(2) which provided that the Commission in Court Session could make any non-disclosure order if it were satisfied that it was desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. That provision was repealed in 2016. [5]

3. As a creature of statute, it is important to note that the Commission has none of the powers inherent to courts of common law and can only do what it is authorised to do by the Industrial Relations Act. It is perhaps also important to note that the common law test as discussed in the decisions referred to in [NAME] v [NAME] were decided before the introduction of the Court Suppression and Non-publication Orders Act 2010 (NSW) which, since 1 July 2011, has governed the making of suppression orders or non-publication orders by courts, albeit preserving, by s 4, any inherent jurisdiction or any powers that a court otherwise has.

4. Nevertheless, the remarks of [NAME] in [COMPANY] v Police Tribunal (NSW) at 476-477 remain apposite when considering whether a non-disclosure order pursuant to s 164A(3) should be made: 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 courtroom.

Accordingly, an order of a 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. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.

1. While the Commission is not a court, the fact that protection against publication and/or disclosure of identifying information, evidence and other material lodged with the Commission can only be obtained if it is necessary to do so in the interests of justice, indicates that the principle of open justice otherwise applies equally to proceedings before the Commission.

2. It is well established that mere embarrassment or distress caused to a person will not be sufficient to justify the making of a non-publication order: [NAME] v [NAME] (No 2) at [30]; [NAME] at [47]. As Boland J, President said in [NAME] v NSW Department of Education and Communities (No 2) [2012] [NAME] 72 at [6]: 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": [NAME] at [32].

1. Boland J, President also referred in [NAME] (at [7]) to the observations of Kirby P in [COMPANY] v [ADDRESS] of New South Wales (1991) 26 NSWLR 131 at 142-143: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging, and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may care to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

1. The fact that the disclosure of distressing and embarrassing material is an incident of open justice was neatly articulated by Basten JA in Tilley v Children's Guardian [2017] NSWCA 174, with whom Meagher and Leeming JJA agreed. That was an appeal from a decision of Fullerton J to uphold a decision of the NSW Civil and Administrative Tribunal which had affirmed the decision of the Children's Guardian not to grant the appellant a "working with children check clearance". While the Court of Appeal dismissed the appeal, it also revoked part of the non-publication order that had been made by Fullerton J. While the Court of Appeal was concerned with the operation of the Court Suppression and Non-publication Orders Act 2010, Basten JA's remarks at [45] – [46] are instructive:

45. While it is true that material revealing the allegations of unlawful conduct was not put before the Tribunal, or the Court, by the appellant, but rather by the Children's Guardian, the presentation of such material was an inevitable consequence of the appellant's application for a clearance and his challenge to the refusal of the Children's Guardian to grant such a clearance. Although the disclosure of such material might well be distressing and embarrassing to the appellant (although he gave no evidence to that effect) he had no basis to resist its disclosure in response to his own application.

46. There is, no doubt, a public interest in allowing a person against whom allegations of sexual assault have been made to test and, if possible, answer those allegations in the course of seeking a clearance from the Children's Guardian. That process does not engage the public interest in open justice. Nor is it necessary to consider whether the appeal to the Tribunal was properly undertaken in conditions of anonymity. However, when the matter reached a court, the principle of open justice was engaged and a suppression or non-publication order could only be made in the circumstances envisaged by s 8(1).

1. As already noted, while the Commission is not a Court, 'conditions of anonymity' can only be obtained if it is necessary to do so in the interests of justice. Consequently, when a party applies to the Commission for relief, including from an adverse decision or action of an administrator, that party must expect that the previously private matter will, unless the interests of justice otherwise necessitate, be made public.

2. The principle of open justice, at its heart, involves the conduct of hearings in public in order that justice may, quite literally, be seen to be done. As Gibbs J as [NAME] then was, explained in Russell v Russell (1976) 134 CLR 495 at 520: It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted "publicly and in open view" (Scott v Scott [1913] AC 417 at 441; [1911–13] All ER Rep 1 at 11). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for "publicity is the authentic hall-mark of judicial, as distinct from administrative, procedure" McPherson v McPherson (1976) 9 ALR 103 at 123 [1936] AC 177 at 200; [1935] All ER Rep 105 at 109.

1. It is important to record that the present appeal proceedings have not been heard and will not be heard. Material has been filed but has not been referred to in open Court. Such material was admitted into evidence in the proceedings below, however it is or was subject to a non-disclosure order. The merits of the substantive application below have not been heard and will not be heard.

2. That the principle of open justice is principally concerned with the conduct of public hearings is reflected in the fact there is no common law right to inspect court records: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512. A non-party will not be given access to the Commission's file without leave: Industrial Commission Rules 2022, r 2.6. This is a matter to which we will return below.

3. That the bar to the making of a non-disclosure order is a high one is made plain by the use of the word 'necessary' in s 164A(3). As the High Court stated in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30] and [31] (in the context of considering s 50 of the Federal Court of Australia Act 1976 (Cth) which allowed the Court to make orders prohibiting the publication of evidence), "'necessary' is a strong word" and "[i]t is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics."

4. In [NAME] J, President stated at [8]: Section 164A(3)(b) [now s 164A(3)] makes it clear the Commission must be satisfied that it is "necessary" to make a non-disclosure order in the interests of justice. The use of the word "necessary" reinforces the legislative intention that such orders should only be made in exceptional circumstances: see [NAME] at [27] and [COMPANY] v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 where Spigelman CJ (with whom Handley JA and Campbell AJA agreed) stated at [21]: [21] From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, e.g. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)

1. The above remarks were approved by [NAME] in [NAME] at [47].

2. The remarks of Mahoney JA in [COMPANY] v [ADDRESS] of New South Wales (1991) 26 NSWLR 131 at 161, who was considering whether pseudonym orders were "necessary to secure the proper administration of justice", provide a useful guide to determine whether non-disclosure orders made by regarded as 'necessary': This leads to the consideration of what is meant by "necessary to secure the proper administration of justice" in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be — or at least will be assumed to be — that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by [NAME] is based.

1. In short, when determining whether a non-disclosure order should be made the Commission needs to be satisfied that unacceptable consequences will flow, or may be assumed to flow, if such an order is not made.

2. One unacceptable consequence would be if children were to be exposed to psychological stress, embarrassment, humiliation or social stigmatism, by reason of their involvement, or alleged involvement, in a particular event being made public, particularly if the event involves alleged sexual misconduct. Non-disclosure orders are made not only to protect the privacy of children and shield them from psychological or other harm, but also so they are not discouraged from reporting misconduct, particularly sexual misconduct and from giving evidence in any subsequent administrative or judicial proceeding. It is in the public interest and in the interests of justice, for witnesses, including children, to give evidence.

3. The need to protect the identity of children involved in legal proceedings is recognised in numerous pieces of legislation, e.g. Children and Young Persons (Care and Protection) Act 1998 (NSW), Adoption Act 2000 (NSW), Crimes (Domestic and Personal Violence) Act 2007 (NSW); Children (Criminal Proceedings) Act 1987 (NSW); Young Offenders Act 1997 (NSW). While such legislation does not apply in this case, the Commission not infrequently makes non-disclosure orders to protect children: see [NAME] v [NAME] of Police (No 2) [2021] [NAME] 1023 at [4]; A (a pseudonym) v [NAME] of Police [2019] [NAME] 1091 at [13] – [18].

4. Before considering the application of the above principles to the facts of the matter before us, we make some observations in respect of the three cases principally relied upon by the Respondent and their applicability to the present application, namely X v The NSW Department of Education [1999] [NAME] 34; X v Department of Justice and Attorney-General [2011] [NAME] 1010 and [NAME] [2014] [NAME] 28; 244 IR 208.

5. In X v The NSW Department for Education a schoolteacher applied for an order, pursuant to s 162(2)(b) of the Industrial Relations Act, that unfair dismissal proceedings in which the teacher sought reinstatement, be held in private. [NAME] declined to make the order but did make orders to the effect that the name of the applicant, three witnesses and the [COMPANY] were to be kept confidential. The applicant had been dismissed following an investigation that found he had engaged in a sexual relationship with a [NAME] at the [COMPANY]. The relationship was not denied by the applicant or [NAME], who was 18 years of age at the time of the relationship.

6. The need to suppress the names of the [NAME], the witnesses and the [COMPANY] was not disputed, and [NAME] agreed to the making of orders, although it must be observed that in so doing she did not identify the source of her power to do so. Section 164A was only inserted into the Industrial Relations Act on 1 January 2004 by the Courts Legislation Amendment Act 2003 (NSW).

7. The applicant in that case submitted, among other things, that "the practical utility of [the] proceedings [i.e. his reinstatement as a teacher] would be frustrated if they were not conducted in camera, given specified factors which included the country town where the [COMPANY] was located; the country town where the applicant resided the employment circumstances of the applicant's wife; that of [NAME]'s mother; the identity of various witnesses to be called and disputes within the local community, which in the applicant's view had given rise to the application."

8. In deciding that the applicant's name should be suppressed [NAME] made the following remarks: That the hearing of the application in public might be embarrassing for the applicant is not a basis upon which a view could properly be formed that it is 'necessary' to hear this case in private. Many applicants before the Commission and other courts and tribunals are in that respect in a similar position to the applicant. In the circumstances of this case however, it is relevant that identification of the applicant makes the identification of [NAME] much more likely. Also of concern is the possibility that the purpose of the application might be frustrated by a public hearing of the application. That is a matter about which the parties are at odds of course. The applicant will raise how the respondent conducted its investigation as an issue in the case. The respondent will oppose any evidence being given in relation to the community controversy the applicant asserts has arisen as a result. It would be most unfortunate if the hearing of an application itself exacerbated any unfair aspect of a dismissal, so as to make inevitable a finding that reinstatement was impracticable. It seems to me no real answer to the applicant's argument that if the hearing makes an order of reinstatement impracticable, that an order of re-employment might be considered under s 89 as an alternative. On balance, I have concluded that while it is not necessary that this application be heard in private, the name of the applicant as well as that of the other three witnesses in question and the [COMPANY] should not be made public. The primary issues appear to be whether admitted conduct some years ago and the circumstances in which that conduct came to the attention of the respondent and was investigated by it, were such that the dismissal of the applicant was harsh, unreasonable and unjust. The conduct has never apparently been the subject of any complaint by [NAME] and until its investigation by the respondent was regarded by both she and the applicant as a private matter between the two of them. The respondent, after investigating allegations made against the applicant, took a different view and dismissed the applicant from his employment as a teacher at a [COMPANY]. If a public controversy has arisen as the result of the respondent's investigation, it would be most unfortunate if the hearing of this application exacerbated any unfair aspect of the dismissal in such a way as to make inevitable a finding that reinstatement was impractical.

1. The decision of [NAME] to suppress the name of the applicant was based on both the fact that the disclosure of his name might lead to the identification of [NAME], as well as the fact that it might also affect the prospects of reinstatement being practicable. In the present matter numerous students have been identified in the materials filed with the Commission as being involved in the alleged conduct of the Respondent, such that it is less likely, although not impossible, that the disclosure of the Respondent's name might lead to the identification of the students.

2. In X v Department of Justice and Attorney-[NAME] made orders, by consent, pursuant to s 164A substituting pseudonyms for the names of the applicant, who sought relief from an alleged unfair dismissal, and certain of the respondent's witnesses. The applicant had been employed in the [NAME] and had been found by his employer to have engaged in sexual harassment and inappropriate use of the email system. The applicant denied the allegations.

3. There was unchallenged evidence before the [NAME] that the witnesses, who were colleagues of the applicant, were suffering anxiety, distress and humiliation as a result of having their identities published as part of the proceedings and the [NAME] accepted that it was appropriate to make a non-disclosure order to protect their identities.

4. The applicant in X v Department of Justice and Attorney-General relied on [NAME]'s decision in X v The NSW Department of Education to submit that suppression of his name was necessary as "[i]f there is a 'public furore' over the issues in the proceedings, then it would undermine practicability of reinstatement if the applicant was successful." [NAME] accepted this submission, stating at [27]: I accept that, in the present circumstances, an order of reinstatement or reemployment would be rendered futile if, ultimately, the dismissal of X is held to be harsh, unreasonable or unjust.

1. It is not clear from the decision, why the Commission took this view, particularly in circumstances where the applicant's claim was that he had not engaged in the conduct alleged and therefore his dismissal was unjust. If successful in 'clearing his name' (to use [NAME] C's expression at [21]) there is no obvious reason, and no evidence was lead, why public disclosure of his name would necessarily preclude his reinstatement or reemployment. While it may well have been the case that reinstatement would be difficult in circumstances where a number of colleagues had given evidence against him, that was a circumstance that would exist regardless whether his name was supressed or not.

2. Lastly, the Respondent relied on [NAME]. In that matter Dr A was alleged to have treated an elderly patient in such a way as to place the patient at "risk of substantial harm" by placing a pillow over the patient's face on two occasions. Dr A strenuously denied both allegations. The Chief Executive of the respondent made findings that allegation one was sustained but allegation two was not. He wrote to Dr A advising him that a recommendation had been made that Dr A's employment be terminated and he was minded to accept the recommendation. He invited Dr A's response. Dr A then commenced unfair dismissal proceedings and filed a notice of motion seeking an injunction restraining the threatened dismissal (which was resolved by the respondent giving an undertaking to provide notice of any decision to terminate Dr A's employment) and sought non-publication orders.

3. The respondent did not oppose the making of non-publication orders as sought by Dr A and in they were duly made by [NAME]. The effect of the orders were that the names of various persons involved in the proceeding, including Dr A, were identified by pseudonyms. Dr A's employment was subsequently terminated, and the respondent applied for the lifting of the non-publication orders. [NAME] determined that there was no basis to continue the orders, save for in respect of the patient involved.

4. Dr A applied and was granted a 24 hour delay before the orders of [NAME] took effect and then filed an application for leave to appeal and to appeal from the decision and orders of [NAME]. He also applied for, and was granted, a stay of [NAME]'s decision, orders and directions regarding the lifting of the non-publication orders, pending the hearing of the appeal. The hearing of the substantive unfair dismissal claim, which was due to commence four days later, was also vacated. 5. [NAME] found that the decision of [NAME]: "… was infected by error for the reason that, inter alia, [NAME] failed to set out any material findings of fact and any conclusions or ultimate findings of fact reached and failed to identify the relevant legal principles he applied to the facts. The result being that it is not known on what basis [NAME] determined it was no longer necessary in the interest of justice to maintain the non-disclosure orders, leaving open the inference there was no such basis."

1. In arriving at this view [NAME] canvassed some of the matters it considered should have been taken into account by [NAME]. Dr A had submitted that the effect of publicly identifying him would do damage to him beyond mere embarrassment or distress, including by making reinstatement or reemployment impracticable even if he were successful. [NAME] stated at [50] – [52]: It is apparent that the appellant's concern about his identity being revealed was not only damage to his reputation simpliciter, but also the consequences of the damage to his professional standing and reputation in terms of its effect on his capacity to earn his livelihood and continue his career as a medical practitioner. It seems to us no small thing for a medical doctor of some 23 years' standing to be accused of what is tantamount to criminal assault of a patient. If the doctor's identity were made public it would undoubtedly have a strong potential to undermine the confidence of the public and the profession in the doctor. … In our opinion, in exercising the obligation to act with equity and in undertaking the balancing exercise required by s 164A(3) in weighing up the fundamental public interest in maintaining a system of open justice against the interest of Dr A, [NAME] was obliged to consider the plainly obvious question of whether making public the identity of Dr A would, or would have the potential, to seriously jeopardise his career and livelihood as a medical practitioner in circumstances where the allegations against the doctor are yet to be tested before the relevant tribunal. There is no indication in the record of proceedings that [NAME] undertook this exercise.

1. In marking these remarks [NAME] did not determine that the balancing exercise required by s 164A(3) fell in favour of the continuation of the non-disclosure orders, only that [NAME] ought to have considered the impact of disclosure on Dr A (and witnesses) when determining whether to revoke the orders, as it made clear abundantly clear at [57]: There is nothing in the Deputy President's decision to show whether he considered the impact of revealing Dr A's identity on his career prospects or ability to earn his livelihood as a medical practitioner or whether it might affect the practicability of reinstatement. Nor is it apparent that in deciding the non-disclosure order in respect of the "other professionals..." should be revoked, [NAME] gave any consideration to the consequences for those professionals of lifting the order in circumstances where [NAME] had considered it proper to make the order. Moreover, no consideration appears to have been given to whether revoking the non-disclosure orders applying to the applicant, other clinicians and the [NAME] might have the effect of revealing the identity of the patient. Revocation may or may not have that effect, but it was not any part of the Deputy President's consideration.

1. Lastly, we observe that in Dr A the respondent applied to have extant non-disclosure orders revoked. As [NAME] explained at [63] – [64]: The issue that the Deputy President needed to come to terms with, but did not, was whether circumstances had changed since the time [NAME] made the orders in August 2013 that would provide the basis for revoking the orders. Clearly, the fact that the respondent might "prefer the matter to proceed in the usual way" (whatever that might mean) was not a proper basis to revoke the orders. In the absence of any indication to the contrary, [NAME] was required to accept that [NAME] understood the basis upon which the non-disclosure orders were to be made and that the orders were regularly made under s 164A(3). It was not contended that [NAME] had no basis upon which to make the orders. In that respect, we note that whilst the respondent did not oppose the non-disclosure orders being made, the solicitor for the respondent indicated to [NAME] that it was a matter for the Commission whether the orders should be made. That is to say, it was a matter for [NAME] to be satisfied it was necessary to make the orders in the interest of justice and not on the basis there was no opposition to the making of the orders.

Consideration 1. As already stated at [16] above, the July Order is no longer operative. Nevertheless, the fact that it was made, and no challenge has been made to the appropriateness of the order, combined with the fact that the Appellant has ultimately made no submission against the Respondent's application or the 'renewal' of the July Order, [6] commend the making of non-disclosure orders which preserve the effect of the July Orders. If [NAME] were not to make such orders, it would, as the Respondent submitted, undermine the effect and operation of orders which were otherwise properly made, in circumstances where no material was presented to indicate, and no submission was made, that circumstances are now such that it is not necessary, in the interests of justice, for the material filed below (and hence on the appeal) to be protected. On the contrary, there are two matters which further support the view that [NAME] should take steps to essentially maintain the status quo.

2. The first is that the decision below was published using a pseudonym and with redactions in line with the July Order. While it seems [NAME] anticipated revisiting the question of the necessity of non-disclosure orders, as the proceedings below are to be discontinued, this will no longer occur, with the result that, at least in respect of the judgment, the July Order has had permanent effect. It would not be appropriate for there to be a published decision which uses a pseudonym without there being an extant order justifying the publication of the decision in this way.

3. The second matter concerns the change in circumstances since the making of the July Order, namely the decision of the Respondent to discontinue their challenge to their threatened dismissal. To pick up on the remarks of Basten JA in [NAME] v Children's Guardian, the Respondent, against whom serious allegations have been made, is entitled to test and, if possible, answer those allegations, and to do so initially in private, during the course of the investigation and disciplinary process conducted by their employer. When they filed their Unfair Dismissal Application the principle of open justice was engaged and to maintain "conditions of anonymity" the Respondent had to establish that it was necessary in the interests of justice that a non-disclosure order be made. They did so in this case. They have now decided, by their decision to discontinue their Unfair Dismissal Application, to essentially retreat to the conditions of anonymity afforded by their employer's investigative and disciplinary processes. As was observed above, the principle of open justice is principally concerned with public hearings. In light of the Respondent's decision, there will be no hearing of the substantive claim or of the appeal. This development supports the need for orders which reflect and support the July Orders. 4. [NAME] is of the view that the above matters are sufficiently exceptional to justify the making of non-disclosure orders as sought by both parties, noting that the orders sought by the Appellant are consented to by the Respondent, [NAME] is also satisfied that even if the July Order had not been made, that the circumstances are such that it is necessary in the interests of justice, for such orders to be made.

5. First, [NAME] 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.

6. 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 [COMPANY] 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 [COMPANY] alone would not necessarily identify any individual [NAME] (unlike in X v The NSW Department of Education) and the Respondent is no longer teaching at the subject [COMPANY], as the [COMPANY] is located in a country area of New South Wales, [NAME] 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 [COMPANY].

7. 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.

8. As regards suppression of the name of the Respondent, there is little doubt that disclosure of the nature of the allegations made against the Respondent will cause them extreme embarrassment and distress, but this alone does not justify a non-disclosure order.

9. The Respondent submits that their career prospects and ability to earn and income will be impacted if their name and details of the allegations are made public. This is, however, a potentiality that affects every unfair dismissal applicant who has been dismissed for misconduct. The Respondent also submits, relying on X v The NSW Department of Education; X v Department of Justice and Attorney-[NAME], that the publication of his name may jeopardise the prospect of appropriate relief in any future proceedings in circumstances where the issues relating to the Respondent's employment "remain alive and contested." 10. [NAME] accepts that, by reason of the facts outlined at [26] above, the Respondent's career prospects and ability to earn an income will be significantly and adversely impacted if their name and details of the allegations are made public. This fact, combined with: 1. the fact that the Respondent denies the alleged conduct and the Appellant has not concluded its investigation into the matter; and 2. the potential, albeit remote, possibility (as accepted by senior counsel for the Appellant [7] ) that revelation of the Respondent's name may, in this case, result in the students and witnesses allegedly involved in the alleged conduct being identified; and 3. the fact that the Respondent proposes to discontinue their application for relief in respect of the threatened dismissal, and the Appellant proposes to discontinue its application for leave to appeal and appeal, such that there will be no hearing of either the appeal or the substantive matter, indicate that it is necessary in the interests of justice to make orders protecting the identity of the Respondent.

Orders 1. [NAME] is mindful that orders made pursuant to s 164A should be no wider, and operate for no longer, than reasonably necessary to achieve the purpose for which they are made. Normally this would not require suppression of the whole of the Commission's file. However, as was discussed at [21] above, there some practical difficulties in having the names of the Respondent, the [COMPANY], the students and other witnesses redacted, given the sheer number of references to them throughout the materials filed. In those circumstances and to ensure conformity with the July Orders, [NAME] makes the following orders:

5. Orders 1, 2 and 3 remain in force for 30 years unless varied or revoked sooner.

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Endnotes 1. Tcpt, 8 June 2023, p 21 (10) – (28). 2. Tcpt, 8 June 2023, p 11(42) 3. Tcpt, 8 June 203, p 11 (4)-(8) ([NAME]); p 18 (24) - (34) ([NAME]). 4. Tcpt, 8 June 2033, p 19 (28) – 21 (33). 5. Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) 6. Tcpt, 8 June 2023, p 21 (30) – (33). 7. Tcpt, 8 June 2023, p 22(50) – 23(1).

Amendments 30 August 2023 - 1. At [6] correction of typographical error in the date from "7 June 2033" to "7 June 2023".

2. Correction of typographical error in [70] correcting "justifying" to "justify". 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 August 2023