A School v Human Rights and Equal Opportunity Commission

[1998] FCA 1455

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 45 of 1998

BETWEEN:

A SCHOOL
Applicant

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First Respondent

MRS J (on behalf of herself and AJ)
Second Respondent

JUDGE:	MANSFIELD J
DATE:	11 NOVEMBER 1998
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:        I propose to deliver reasons for my decision which will involve the matter being referred back to the Human Rights and Equal Opportunity Commission (“the Commission”) for partial rehearing and, in one respect, for determination of an issue.  I am asked by the parties that their respective identities not be published until the Commission has further called on the matter, and depending upon its then decision, until it has finally determined the complaint.

Under s 87 of the Disability Discrimination Act 1992 (Cth) the Commission, in relation to matters before it, has power to direct that certain information not be published, either absolutely or except in a certain way and to such persons as the Commission specifies, including information which might enable a person appearing before the Commission to be identified.

When this matter was first before the Commission, it exercised its power under s 87 in respect of the identity of the complainants and of the school concerned. I do not need to refer to its reasons for doing so. In my view, it would be in the interests of the administration of justice that the reasons to be published and the orders to be made by the Court do not remove from the Commission the opportunity to exercise its powers under s 87 again, either in the way in which it previously did, or in some different way, when the matter is relisted for hearing before the Commission. The publication by the Court of the parties’ identities would, in a practical sense, render nugatory the utility of the Commission exercising its power under s 87. In the particular circumstances, in my view the Court ought not produce that effect by publishing the names of the complainants before the Commission or of the school about whom their complaint was made.

I propose therefore to make an order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) forbidding until further order the publication of the names of the applicant and of the second respondent in these proceedings, and the names of the teachers at the school and of the house at the school to which the younger respondent was attached.

I do so not in any sense to restrict the exercise of the power of the Commission under s 87, but to preserve that power so that it may be exercised meaningfully. Consequently, the fact of my making that order should not be seen by the Commission in any way as inhibiting it as to the view it might take about the proper exercise of its power under s 87 when the matter comes before it again. It may then choose to make no order. In the light of the attitude of the Commission at that time, or in the light of the decision which the Commission might ultimately make, it may then be appropriate for the order which I am proposing to make to be discharged. I expect that the parties will inform the Court of any order that the Commission makes at an early stage in its rehearing or after determination of the complaint. In the event of the Commission publishing the names of the school, or of one or other of the complainants, I anticipate that the parties will notify the Court, and consent to an order discharging or varying the order which I propose to make at least to that extent. It may also be, as events evolve, that one or other of the parties in any event no longer considers it appropriate for the order which I propose to make to be continued.

For both those reasons I therefore propose to give liberty to apply to have the order which I am about to make varied or discharged.  As there may be persons other than the school or the respondents who have a legitimate interest in whether the orders so made should be maintained, I will give liberty to apply to any person with a proper and sufficient interest to discharge or vary the orders which I am about to make.

Pursuant to s 50, I make an order forbidding until further order the publication of the names of the applicant and of the second respondent to these proceedings and the names of the teachers at the school who were involved in the matters about which the complaint to the Commission was concerned, and the name of the house at the school to which the younger respondent was attached upon her enrolment at the school. I give liberty generally to the parties, and any person showing a proper and sufficient interest in so doing, to apply to vary or discharge that order.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:

Counsel for the Applicant:  Ms L Powell QC
Solicitors for the Applicant:  Mellor Olsson

First Respondent files submitting Appearance

Counsel for the Second Respondent:  Mr S Tilmouth QC
  with him
  Ms S Lorenz

Hearing Date:  11 November 1998

Date of Decision:  11 November 1998