OHS: no conviction = no public publication

 

DHG v State of Queensland (represented by the Department of Justice and Attorney-General) [2013] QSC 89

 

JUDGE: Boddice J
ORDER: The parties are to prepare minutes of orders in accordance with these reasons. I shall hear the parties as to costs.
CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – where the applicant pleaded guilty to breaching the Workplace Health and Safety Act 1995 (Qld) – where the Industrial Magistrate ordered that no conviction be recorded – where the respondent published on its website details of the applicant’s plea and sentence – whether the website is a record‖ for the purpose of s 12(3)(b) – where s 12(3A) permits a record of a conviction to be kept by the department whether the web pages are excused by s 12(3A) where the respondent has published on its website details of the applicant’s plea and sentence – where the applicant seeks declaration and orders requiring the removal of that information from the web pages on the basis that it breaches s 12(3)(b) – whether the court should make such ordersThe applicant previously obtain a no conviction order pursuant to s 12 P&SA and sought a declaration for removal from the department’s public website of its particulars in relation to the plea of guilty.

Held, granting the declaration:

  1. The WPHSA or its predecessor  does not limit the discretion under s 12 P&SA, and it is presumed the legislature intended the competing legislation be read together [19] & [20] in the absence of an express provision to the contrary, and in such circumstances,  the applicant was afforded the protection of s 12 P&SA [21];
  2. The website publication is a record under s 12(3)(b) P&SA [26];
  3. The exemption in s 12(3A) of “…if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative” does not extend to the public website publication of a no conviction order under s 12 PS&A. It is contrary to the discretion exercised under s 12 P&SA to publish the conviction and would negate the benefit of such a discretion being exercised [33];
  4. There is nothing in the national policy of Safe Work Australia or the department’s which renders the publication of the particulars of a no conviction offender necessary to achieve the functions and objects of the legislation [34];
  5. It would be contrary the principles of statutory construction to infer such an intention in the absence of a clear provision to that effect [35].

 

David Cormack – Brisbane Barrister

 

 

Related Posts

Recent Comments

    Categories