MAGISTRATES COURTS OF QUEENSLAND

CITATION:	MMM v FFF & Anor [2025] QMC 8
MMM
(Aggrieved)
v FFF
(Respondent) And
Commissioner of Police
(Applicant)
MAG-00112424/23(7)
Magistrates Courts
Domestic Violence – Authorisation to Publish Information

28 February 2025 Brisbane
21 February 2025

Judge JM Brassington, Chief Magistrate
Application is Refused
Domestic and Family Violence Protection Act 2012 – Section 159(2)(a)
Mr Nicholson i/b Commissioner of Police, for Applicant Mr Gnech of Gnech and Associates, for Aggrieved	
PARTIES:		

FILE NO/S:		
DIVISION:		
PROCEEDING:		

DELIVERED ON:		
DELIVERED AT:		
HEARING DATES:		
MAGISTRATE:		
ORDER:		
CATCHWORDS:		
COUNSEL:		
SOLICITORS:		

INTRODUCTION

MMM is the husband of FFF. They have children. MMM and FFF separated in 2023 and are yet to divorce. FFF was, and is, a police officer.

	On the June 2023 MMM filed an application for a protection order in the Magistrates Court. The respondent was FFF. MMM’s application was a cross-application because FFF had already made an application for a protection order in the same Magistrates Court against MMM on 23 June 2023.

Temporary protection orders were made in both the applications and both applications were listed for hearing. The usual hearing directions were made to facilitate the hearing of the applications. These hearing directions included directions for filing evidence by affidavit.

The protection order applications never proceeded to hearing. While affidavits were filed both applications were withdrawn on 6 November 2023. Both MMM and FFF entered, and filed, undertakings to be of good behaviour to the other in their respective applications.

On 24 January 2025 the Commissioner of Police applied to the Court to obtain copies of the documents filed in MMM’s application and for authority to publish information with respect to the domestic violence proceeding.1 The Commissioner appears not to have been originally aware that FFF had applied for a protection order. However in the amended application made on 21 February 2025 similar orders were sought with respect to the application made by FFF.

An application to this Court is necessary because of the provisions of ss. 159 and 160 of the Domestic and Family Violence Protection Act 2012 (“the DFV Act”). Section 159 provides for restriction of publication of information related to domestic violence proceedings, including protection order applications:

A person must not publish—
information given in evidence in a proceeding under this Act in a court; or
information that identifies, or is likely to lead to the identification of, a person as—
a party to a proceeding under this Act; or
a witness in a proceeding under this Act (other than a police officer);
or
a child concerned in a proceeding under this Act.

Maximum penalty—
for an individual—100 penalty units or 2 years imprisonment; or
for a corporation—1000 penalty units.
However, subsection (1) does not apply—
if the court expressly authorises the information to be published; or
if each person to whom the information relates consents to the information being published; or
to the display of a notice in the premises of a court; or
to the publication of information for the purpose of a recognised series of law reports or an official website for the publication of judgments, if the information does not identify, and is not likely to lead to the identification of, a person mentioned in subsection (1)(b); or
to the publication of information for approved research, if the information does not identify, and is not likely to lead to the identification of, a person mentioned in subsection (1)(b); or
if the publication is expressly permitted or required under this or another Act;
or
if the publication is permitted under a regulation.

In this section—

1	The application originally sought documents from the lawyers of both MMM and FFF. However this aspect to the application was not pursued and leave was given to make an amended application on 21 February 2025.

information includes a photograph, picture, videotape and any other visual representation.
publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.

Section 160 of the DFV Act has a prohibition on obtaining copies of a document for a proceeding:
A person is not entitled to a copy of—
any part of the record of a proceeding under this Act; or
any document used or tendered in a proceeding under this Act.

Section 160(2)(c) provides that s. 160(1) does not apply to a person expressly authorised by the court to obtain a copy of the record or document.

Hence, the Commissioner has applied to the Court under ss. 160(2)(c) to release to him the record of the proceeding/s and under s.159(2)(a) to expressly authorise the information to be published. The Commissioner also seeks relief from any implied ‘Harman’ undertaking.

The Commissioner seeks to obtain these documents because FFF is a police officer, and the Commissioner wishes to investigate allegations of her having committed acts of domestic violence. This investigation will be undertaken by the Ethical Standards Command.

The matters originally came before me on 29 January 2025. I considered that it was important that the original parties have the right to be heard and directed the application and supporting material be filed on them. The matters came back to Court before me in accordance with the directions on 12 February 2025. Mr. Gnech had recently come into the matter hence the adjournment for hearing to 21 February 2025 to allow time to prepare a response to the application.

FFF opposes the release of all the documents to the Commissioner. I heard the application on 21 February 2025 and adjourned until the 28 February 2025 to consider the application and submissions.

A PRELIMINARY POINT

Mr. Gnech submitted that the Commissioner had, essentially misused confidential information provided by the Court to the Commissioner under s. 162 of the DFV Act. Hence, the very bringing of the application is tainted by illegality.

Section 162 of the DFV Act provides:

The clerk of the court in which any of the following applications are made, or orders are granted, must give notice of the application or order to the police commissioner—
an application for a protection order;
an application for a variation of a domestic violence order;
an application for—
variation of a recognised interstate order; or
registration of a New Zealand order; or

variation of a New Zealand order as it is registered in Queensland or the period for which the order has effect in Queensland; or
revocation of the registration of a New Zealand order;
an order made because of an application mentioned in paragraph (a),
or (c), including a temporary protection order;
an order made on the court’s initiative under section 42;
an order made by the Childrens Court under section 43.
The clerk must give the notice within 1 business day after the day the application is made or order is granted.

Plainly the purpose of s. 162 of the DFV Act is for the Commissioner to be able to carry out certain mandated tasks that he has under the DFV Act. For example, under s. 184 of the DFV Act a police officer must personally serve an order or varied order under the Act. There is no indication that s. 162 was intended by Parliament to give the Commissioner the power to use the information as he chose for a purpose other than the administration of the DFV Act and related purposes.

However, there is no evidence before me that the Commissioner did use the information provided by the Court under s. 162 of the DFV Act to commence either a disciplinary investigation or this application. The only evidence of these matter is in the affidavit of Nicola Brown. Acting Inspector Nicola Brown swore2 that on the 3 July 2023 the Ethical Standards Command became aware that FFF was named as a respondent and a temporary protection order made. The Ethical Standards Command was notified of this fact following the lodgement of a Complaint against a Member.3
What the Complaint against a Member contained is unknown to me and a matter of speculation. There could be many sources of information that a temporary protection order was in place other than confidential communications. For example, the making of a temporary protection order will suspend a weapons license. Section 83 of the DFV Act applies such suspension to a police officer.

Even if there was evidence that information supplied for one purpose was used for another this is a Court of limited jurisdiction. The Supreme Court has injunctive and declaratory remedies that can restrain use of information if satisfied that information was confidential. For example, in Flori v Commissioner of Police [2015]2 Qd R 497 the Commissioner of Police was restrained from using evidence seized pursuant to a search warrant issued under the Police Powers and Responsibilities Act 2000 for the statutory purpose of investigation of criminal offences in disciplinary proceedings against a Queensland Police Officer. Justice Atkinson held that that there is an implied limitation under the Police Powers and Responsibilities Act 2000 that material or information obtained pursuant to a search warrant may only be used for the statutory purpose for which the search warrant was granted. This Court does not have access to such a remedy.

There of course might be scope to consider issues as to wrongful use of confidential information in determining whether the Commissioner should have access to the records of the proceeding. However, as I have noted I am not satisfied that the Commissioner has misused information provided under s. 162 of the DV Act in this matter.

2	Affidavit of Nicola Brown filed 20 February 2025 (“the Brown Affidavit”)
3	See para [6] of the Brown Affidavit.

HOW IS THE DECISION TO BE MADE TO AUTHORISE RELEASE OF THE DOCUMENT?

The application of the Commissioner proceeded on the basis that the affidavit material on the Court files contained information given in evidence in a proceeding under this Act in a court 4 and that that if the Commissioner was granted access to the affidavits a referral of those affidavits to Ethical Standards would constitute publication of the documents.5 I accept this premise. Hence, authorisation would be required to both obtain a copy of the proceedings and publish that information for the purpose of disciplinary proceedings.

Sections 159(2) and sections s. 160(2)(c) provide no guidance as to how the court should make its decision to authorise publication or provide documents.

The affidavit material, produced because of a Court order, would be arguably covered by the Harman undertaking because even if the Commissioner was authorised to have a copy of the documents by the Court, he would arguably still be bound by the Harmon undertaking that they be used only for the purposes of the domestic violence proceeding. The Harman undertaking is an implied undertaking to the Court that documents obtained because of the compulsory processes of the Court will be used for the purpose for which they were disclosed and not for other purposes.6

Submissions

The submissions of the Commissioner focused on the factors found to be relevant in dispensing with the Harman undertakings. These are conveniently summarised in Liberty Funding Pty Ltd and Another v Phoenix Capital Ltd (2005) 218 ALR 283:

[31] In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show “special circumstances”: see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 ; 110 ALR 685 . It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:
the nature of the document;
the circumstances under which the document came into existence;
the attitude of the author of the document and any prejudice the author may sustain;

4	See s. 159 of the Act.
5	Similar issues were discussed in AAA v BBB [2017] QMC 3
6	Harman v Secretary of State and the Home Department (1982)1 AC 280

whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
the circumstances in which the document came in to the hands of the applicant; and
most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.

The final consideration encompasses the principle articulated in numerous cases that lifting the restraint of the implied undertaking serves the public interest. It is this aspect that the Commissioner emphasises is the overriding factor in these proceedings. The purpose the Commissioner wishes to be access the documents to ensure that appropriate standards of discipline are maintained in the Queensland Police Service.

The Commissioner submits that if the engagement of officers in misconduct is not adequately addressed then this has potential to damage the reputation of the Queensland Police Service.7 The Commissioner notes that the Queensland Police Service has been criticised for its handling of domestic violence matters, particularly in relation to the police officers who commit domestic and family violence quoting a recent Commission of Inquiry report8:

It is self-evident that QPS members who perpetrate domestic and family violence in their personal lives are likely to also compromise QPS responses to domestic and family violence.9
Mr. Gnech concedes that while an analysis of the factors considered in determination of the issue as to whether the Harman undertaking should be dispensed with is helpful in deciding applications of this type the determinative factor should be the relevant considerations arising from the stated objectives of the DFV Act. He submits that because of the effect of the legislative provisions, particularly the protective and confidentiality provisions, the test for authorising access to the provisions would be in “extraordinary special circumstances.” Further, the evidence establishes FFF is the true victim of domestic violence, and in those circumstances the public interest is engaged to protect her and the there is no public interest that could establish extraordinary special circumstances to authorise release of the material.

CONSIDERATIONS

While acknowledging the relevance of the factors referred to in the cases concerning relief from the Harman undertaking, I also consider that the very nature of the proceedings which have led to the production of the documents sought by the Commissioner give rise to additional powerful considerations that must be considered in the determination of this application.

7	See submissions para. [30]
8	A Call for Change Commission of Inquiry into the Queensland Police Service Responses to Domestic and Family Violence [2022]
9	Ibid, p.178

Obviously given the application is made pursuant to s. 159(2) of the DFV Act the Court must have regard to ss. 3 and 4 of the DFV Act. Section 3 sets out the main objects of the Act:

The main objects of this Act are—
to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and
to prevent or reduce domestic violence and the exposure of children to domestic violence; and
to ensure that people who commit domestic violence are held accountable for their actions.
The objects are to be achieved mainly by—
allowing a court to make a domestic violence order to provide protection against further domestic violence; and
giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and
imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence.

Section 4 sets out the principles for administering the DFV Act:

This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

Subject to subsection (1), this Act is also to be administered under the following principles—
people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
 to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;
Examples of people who may be particularly vulnerable to domestic violence—
women
children
Aboriginal people and Torres Strait Islanders
people from a culturally or linguistically diverse background
people with a disability
people who are lesbian, gay, bisexual, transgender or intersex
elderly people
in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection—

the person who is most in need of protection in the relationship should be identified; and
only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other;

a civil response under this Act should operate in conjunction with, not instead of, the criminal law.

A party in a domestic violence proceeding has an expectation of privacy given the provisions of the DFV Act. The DFV Act has significant privacy protections:

proceedings are in a closed court10 albeit with limited discretion to open the Court;
publication of evidence given in proceedings and the identity of parties, children and witnesses is a criminal offence;11
significant restrictions on who can obtain information under the Act12 even when the sharing of information is to assess whether there is serious threat to the life, health or safety of people or otherwise benefit the aggrieved.13
The purpose of such stringent protection is set out in the explanatory notes of the original provisions:14
While courts of law are generally open to the public to promote the proper administration of justice, the nature of the matter being dealt with does allow for some discretion in the application of this principle. A similar example is provided in proceedings that involve children. The provisions of section 99J of the Child Protection Act 1999 and section 20 of the Childrens Court Act 1992 enable a court to be closed. Given the highly sensitive nature of domestic and family violence, and the fact that children are often involved in proceedings, allowing for courts to be closed is considered to be justified in the circumstances.

It has been recognised that open courts or publication of identifying information may deter victims from reporting domestic and family violence or seeking the protection from the Court for fear that their private and sensitive information could become known to others.15
FFF has given her views on the application in the affidavit:16

I defiantly (sic)17do not want any of the information or documents filed in the domestic violence court to be disclosed to anyone. We lived it, we dealt with it the best we could and though it was finalised in private. I just want to move on with our lives in a positive way.

10	Section 158 of the DV Act
11	Section 159(1) of the DV Act.
12	Section 160(2) of the DV Act.
13	See Part 5A of the DV Act.
14	Domestic and Family Violence Protection Bill 2011 Explanatory Notes - Domestic and Family Violence Protection Bill 2011 explanatory note (accessed 26 February 2025), p. 19
15	Women’s Safety and Justice Taskforce, Hear Her Voice, Report 2 (2022) p. 375 (https://www.womenstaskforce.qld.gov.au/ data/assets/pdf_file/0008/723842/Hear-her-voice-Report- 2-Volume-1.pdf)
16	Affidavit of FFF filed 20 February 2025, paragraphs [33] – [35]
17	? definitely should be the word.

I do not want anyone knowing the details of my personal and traumatic relationship with MMM outside of the strict protections on confidentiality and privacy that are in place for domestic violence court. If it is the case that my employer and any other person within the QPS can access that information in the way proposed, I am certainly going to rethink making any application in the future. Despite the QPS also being my employer, it was my understanding all of this information remained protected and private because of the privacy provisions on the domestic violence court.

Since I became aware of this application to release this material, I have stopped sleeping and have a huge amount of anxiety about what will be done with my personal and private information.

It is evident that the individual in the circumstances of FFF may have mixed motives considering the disclosure is sought by a disciplinary body. Nevertheless I accept that disclosure to an employer of this material would be distressing to any reasonable person. The matters disclosed in the application and affidavit include deeply personal disclosures pertaining to her marriage and children stretching over years. The material also includes her response to the allegations of MMM which again includes deeply personal information.

I must place considerable weight on those views because of the effects of s. 4(2)(b) of the DFV Act that provides to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act.

Of course I also must now consider the views of MMM who is also an aggrieved/applicant. He was initially non-cooperative with the Ethical Standards Command’s investigation.

The affidavit of Adrian Brook-Thomson (filed with the application) indicated that MMM as of 19 November 2024, would not cooperate and does not wish to be involved in the investigation.18 However, that position has now changed. Acting Detective Senior Sergeant Sharon Pickett advises that on 4 February 2025 MMM indicated he was agreeable to the court file with his application being released to the Commissioner and being used for disciplinary proceedings related to FFF. He has given his written consent.19 I note that FFF, in para. [32] of her affidavit indicates that she and MMM are not in a good place and I am hoping we can move forward for the best interest of our children without returning to the domestic violence jurisdiction however we are not heading in a good direction. It concerns me that the police have obtained MMM’s signature to consent to this application.

I note that in her affidavit FFF sets out an alarming and concerning history of domestic violence allegedly perpetrated by MMM including going through her phone, financial control, accusing her of having an affair, becoming jealous of her, attending premises (after separation) without permission and allegations made of the commission of a serious criminal offence20. In mid-2023 she made a complaint against MMM to police. She was ultimately informed he would not be charged with an offence.

In para. [9] she states:

18	Affidavit Adrian Brook-Thomson filed 24 January 2025 para. [5]
19	Affidavit of Sharon Picket filed 10 February 2025
20	Para. [7] and [8] of Affidavit of MMM filed 20 February 2025

“MMM also threw me off a bed, called me names and threatened to take out a domestic violence order against me to end my Police career. This threat was ongoing for many years.

Acting Detective Inspector Nicole Brown states that she is aware that MMM has been interviewed by Ethical Standards Command in relation to FFF’s alleged conduct. The compulsory discipline interview for FFF with respect to the investigation has been postponed pending the outcome of these proceedings.21 I am informed if the affidavit material is not released, the disciplinary investigation involving FFF will continue based on the version provided by MMM in his interview. It is then argued that permission to access the affidavit material will enable investigators to conduct a fully informed investigation.

I am not able to make findings of fact as to who is most in need of protection in this case because I have not had the opportunity to hear and see the parties. Nevertheless, I note that FFF has provided a sworn affidavit detailing the most serious examples of domestic violence. I also note the report of the Police Prosecutor22 who wrote in a report to his Inspector:

Worth noting, at the review mention the Magistrate had expressed his wishes for the matter to be resolved, commenting that he could not identify any ‘acts of domestic violence’ perpetrated by FFF toward MMM disclosed in his application as required by
s. 37 (DVPA Qld) hence motivating the defence to resolve.

I am confident that the Ethical Standards Command is educated in the nuances of domestically abusive and coercive behaviour. It would be a most unfortunate outcome that accessing a protective scheme that has as its paramount purpose the object of maximising the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives23 could trigger disciplinary proceedings against a person seeking protection and that the person who is alleged to be the abuser is the person whose allegations are used as the basis of that investigation.

That result would not only impact FFF but in my view would have a significant impact on many who may consider seeking protection from domestic violence. If a victim of domestic violence knew that the contents of their applications could be accessed by their employer for possible disciplinary action, there is a very real risk that applicants for domestic violence orders would hesitate to make such applications or to include full disclosure of intimate matters. Disclosure of such material, even with the leave of a Court, in circumstances such as these, then has the real potential to inhibit the bringing of protection order applications.

It is unfortunately notorious that on many occasions those seeking the aid of the Court to get protection from domestic violence face retaliatory action by the way of a domestic violence cross-application. This was recognised by Parliament when the DFV Act was introduced in 2011:24

21	Para. [9] of Picket affidavit.
22	Annexure SD-01 of FFF’s affidavit.
23	S.3(1)(a) of the DV Act.
24	Domestic and Family Violence Protection Bill 2011 explanatory note, page. 3

Lastly, the Bill aims to ensure that the person who is most in need of protection is identified. This is particularly important where cross-applications are made, which is where each party to a relationship alleges domestic violence against the other and which often result in cross-orders. During consultation, stakeholders reported a disproportionate number of cross-applications and cross-orders and expressed the concern that in many instances domestic violence orders are made against both people involved. This is inconsistent with the notion that domestic violence is characterised by one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. Both people in a relationship can not be a victim and perpetrator of this type of violence at the same time. A cross- application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings. Also, violence used in self-defence and to protect children can be misconstrued as domestic violence if a broader view of the circumstances is not taken.

Many, particularly those who may be subject to a disciplinary proceeding like FFF, may avoid seeking needed protection if they suspect or fear that simply the filing of a cross- application, without any determination by a Court that domestic violence occurred, will trigger disciplinary investigations and possibly an application from the Commissioner to have access to the all the records of the relevant proceedings.

Such an outcome would effectively thwart the very objects of the legislative scheme which is to maximise the safety, protection and wellbeing of people who fear domestic violence as set out in s. 3 of the DFV Act.

Consequently, there is a significant public interest in ensuring that, as far as possible, the Court upholds the confidentiality provisions of the legislation. Failure to maintain confidentiality in proceedings could hinder or prevent access to a protective scheme.

There is of course a significant public interest to ensure that the Commissioner can, by a robust disciplinary regime, maintain the appropriate standards of discipline in the QPS. The functions of the police service are varied but they are generally directed to safeguarding and upholding the rule of law and ensuring the protection and safety of the community. The Police Service Administration Act 1990 provides for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers.25 The maintenance of appropriate standards of discipline is to (i) protect the public; (2) uphold ethical standards within the service; and (iii) promote and maintain public confidence and officer’s confidence in the service. The investigation that the Ethical Standards Command proposes is not to punish FFF but rather is to uphold ethical standards to maintain public confidence the ability of the QPS and its officers to investigate matters involving domestic and family violence.

I accept that the public might be very concerned if persons found to have committed acts of domestic violence were tasked with investigating domestic violence matters.

In support of the submission that the public interest in this matter overrode the expectation of confidentiality the Commissioner referred to the statements in Woolgar v Chief Constable of the Sussex Police and another [1999] 3 All ER 604. That case involved a police investigation of a death in a nursing home involving an allegation of over- administration of di-morphine. The matron was arrested and interviewed. Criminal charges

25	Section 7.1

were not laid but the matter was referred to a disciplinary body. An application by the matron to restrain the police from disclosing to the disciplinary body was dismissed. The Court summarised the competing public interests and the paramountcy of public safety as follows:

Essentially Mr Wadsworth's submission was and is that when the appellant answered questions when interviewed by the police she did so in the reasonable belief that what she said would go no further unless it was used by the police for the purposes of criminal proceedings. The caution administered to her so indicated, and in order to safeguard the free flow of information to the police it is essential that those who give information should be able to have confidence that what they say will not be used for some collateral purpose.

However, in my judgment, where a regulatory body such as the UKCC, operating in the field of public health and safety, seeks access to confidential material in the possession of the police, being material which the police are reasonably persuaded is of some relevance to the subject matter of an inquiry being conducted by the regulatory body, then a countervailing public interest is shown to exist which, as in this case, entitles the police to release the material to the regulatory body on the basis that save in so far as it may be used by the regulatory body for the purposes of its own inquiry, the confidentiality which already attaches to the material will be maintained. As Mr Horan said in para 14 of his skeleton argument:
'A properly and efficiently regulated nursing profession is necessary in the interest of the medical welfare of the country, to keep the public safe, and to protect the rights and freedoms of those vulnerable individuals in need of nursing care. A necessary part of such regulation is the ensuring of the free flow of the best available information to those charged by statute with the responsibility to regulate.'
Putting the matter in convention terms Lord Lester submitted, and I would accept, that disclosure is 'necessary in a democratic society in the interests of … public safety or … for the protection of health or morals, or for the protection of the rights and freedoms of others.'

Similar points were made in In Johnston v Allen [2024] NSWSC 187:

I was referred by counsel to the decision of Robb J in EB v GB [2020] NSWSC 1291 . In that case (which incidentally was a protective matter) the defendants had foreshadowed making an OLSC complaint against the former solicitor for the plaintiff about the solicitor’s conduct in the proceedings and in related proceedings. An application was made for leave to use certain documents prepared in the proceedings for the purposes of the foreshadowed complaint proceedings. The application was not opposed by the plaintiff or, in the end, by the solicitor. Indeed, he made a cross- application for leave to use his own list of specified documents for the defence of the foreshadowed complaint.

His Honour granted leave to the defendants (and to the solicitor on his cross- application). He reasoned (at [11]):
I am satisfied that, at least in cases where the party to proceedings, or a legal representative who has participated in proceedings, does not actively oppose a party involved in those proceedings seeking a release from the Harman

restriction, for the purpose of using documents produced for the purpose of the proceedings to make or defend a disciplinary complaint against a lawyer arising out of the conduct of the proceedings, the Court should readily find that there is a good reason why the restriction should not apply. It is in the interests of the proper administration of justice that the Court should facilitate, and not in any way impede, the making of legitimate disciplinary complaints about the conduct of lawyers involved in proceedings before the Court, and in the pursuit of the investigation and prosecution of the complaints fully in accordance with the processes established by the legislation that creates the mechanism for the supervision of lawyers within this State.

Similar considerations would apply in cases where there are allegations of misconduct against a police officer in that it is in the public’s interest that such disciplinary investigations into possible misconduct are not thwarted. I do note however that neither case involved disclosure of such deeply personal material produced in the context of robust statutory protection of the confidentiality of the parties.

A further relevant consideration is that the information is to be disseminated to the Ethical Standards Command of the Queensland Police Service. I would have significant confidence in those circumstances that the information would not be wrongly disseminated and would be used for the stated purposes of investigation.

CONCLUSIONS

In determining applications of this nature each determination will turn on its own facts. For example, where a magistrate has made a finding that a serving police officer committed acts of domestic violence and that a protection order was necessary to protect an aggrieved from further acts then the public interest in upholding the integrity of the Queensland Police Force may indeed be the deciding factor in permitting access to the proceedings or at least the decision of the magistrate.

In this matter the following matters are particularly relevant:

FFF has provided sworn evidence that she has suffered significant acts of domestic violence perpetrated by MMM;
FFF filed her application for protection first;
MMM filed a cross-application;
Since both applications were withdrawn there is no finding by a magistrate that acts of domestic violence were committed by FFF;
A magistrate did urge that the matter be resolved as he could not identify any acts of domestic violence in MMM’s allegation;
The Ethical Standards investigation will continue given MMM’s cooperation.
Refusing the Commissioner access to the proceedings will mean that the disciplinary investigation will proceed without access to the domestic violence proceedings. However, given that MMM has now chosen to cooperate this may well cause prejudice to FFF. However, the mandated interview with the investigators will allow FFF the choice to share her account of past domestic violence to perhaps give context to MMM’s claims.

To authorise access to the proceedings means that FFF’s reasonable expectation to confidentiality in a domestic violence proceeding, will be set aside. Having read her submissions in the application there is a real possibility that such a disclosure would cause her significant distress that could not be ameliorated by any order that I could make. She is opposed to release even if it means the investigation will not have a true picture of the severity of the domestic violence she has stated she experienced. Further, for the reasons already discussed I am satisfied granting this application may deter others in a similar position from bringing domestic violence applications thus endangering their safety and perhaps the safety of their children.

Balancing all the considerations I have referred to in this decision I have reached the view that the primary consideration in my decision must be those set out in s. 4(1) of the DV Act:

This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

I consider that the protections offered by the DFV Act would be significantly undermined if those making applications were to think that the highly personal information could be released for dissemination to others, including their employer. There is likely to be in many domestic violence proceedings information that an employer might consider relevant to determine the suitability of a person for their employment. The protective role of the Queensland Police Service is not unique. Professions such as medicine, law, nursing, teaching all have disciplinary bodies that oversee and regulate professional conduct not to punish but to protect the public and to promote trust and confidence in the profession by demonstrating a commitment to integrity and ethical behaviour. Such bodies could mount similar arguments as used by the Commissioner to seek to investigate whether a person committed an act or domestic violence or other discreditable acts.

Given the very real potential that victims of domestic violence may be deterred from seeking protection because of the fear of reprisal applications triggering similar investigatory action I consider that the public interest in this case is best served by refusing the Commissioner’s application.

J Brassington Chief Magistrate 28 February 2025