A School v Human Rights & Equal Opportunity Commission

[1998] FCA 498

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 AND MRS J (ON BEHALF OF HERSELF AND AJ) SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	7 APRIL 1998
PLACE:	ADELAIDE

REASONS FOR DECISION

By application dated 6 April 1998 the applicant sought an order for review of decisions of the first respondent, the Human Rights and Equal Opportunity Commission (“the Commission”), made on 23 March 1998 following an inquiry conducted by the Commission under s 79(1) of the Disability Discrimination Act 1992 (Cth) (“the Act”).  Those decisions concerned a complaint made by the second respondent, Mrs J, on behalf of herself and her daughter, AJ, who had been a student at the school conducted by the applicant (“the school”).  (For the purpose of these reasons I am adopting the descriptions of the complainant and of her daughter used by the Commission).

At the commencement of the hearing, the Commission made two orders under s 87 of the Act firstly in relation to AJ and her parents’ identity, and secondly (as it is recorded in the reasons in relation to the applicant) in terms that, up to release of the reasons for decision of the Commission, the identity of the school be suppressed until the school had been given an opportunity to consider the reasons and to make any submission in relation to the continuation of the suppression order. I am informed by counsel that, in addition, the Commission made a blanket order under s 87 of the Act during the hearing suppressing publication of evidence and exhibits and submissions received during the course of the hearing.

The application having been heard by the Commission on 5-7 November 1998, it published reasons for its decision on 23 March 1998, but initially only to the parties while attempts to conciliate the dispute were pursued. Certain allegations inquired into were found not to have been established. One claim which was made and inquired into was a complaint of direct discrimination by the school against AJ which the Commission dealt with in its reasons at pages 15-27. It ultimately concluded on that claim that AJ was subjected to less favourable treatment, within the meaning of s 5 of the Act, and so found that the complaint of direct discrimination had been substantiated. The Commission also found that the school was only responsible for 25 per cent of the damages suffered by Mrs J and AJ.

It is fair to note that, in the course of the reasons and conclusions of the Commission, it made observations about the conduct of the school, describing at one point the discrimination as being of a relatively minor nature, and at the completion of its reasons saying that although the circumstances were unusual and extremely difficult for all concerned, “the school could and should have striven to do a little more”.

The reasons having been made available to the parties, the Commission then maintained the order suppressing publication of those reasons while further attempts to conciliate the issues between the parties were pursued.  The affidavit material now before me indicates that those efforts have broken down.

The Commission now proposes to publish the reasons for its decision at 12 noon on 8 April 1998.  The version of the reasons proposed to be released will identify the school by name, and will also name the house of the school referred to in that decision.  It proposes that the names of Mrs J and AJ will remain identified by initials, and the names of the staff at the school will also be suppressed and be identified by their gender and the first initial of their surname.

The application for review seeks review of all of the decision adverse to the school finding discrimination on its part, of the attribution of 25 per cent of damages as its responsibility for that conduct, and thirdly the decision proposing release of the reasons for decision publicly on 8 April 1998.

By notice of motion heard urgently, the school seeks an order that the publication of the reasons of the Commission in the form in which they are now proposed to be published be stayed or suppressed either under s 15 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) or under ss 23 or 50 of the Federal Court of Australia Act 1976 (Cth) until the hearing and determination of the principal application for review.  It is that motion which is now before the Court.  It is, in the nature of things, very much an interim or interlocutory relief which is claimed.

In reaching the decision which I am about to announce, I have had regard in part to the fact that the Court proposes to hear the principal application on 4 May 1998, which is a little over three weeks from the date the motion was heard. However, I must be guided by principle and by authority in deciding whether or not to accede to the application made by the motion. In doing so, I must balance the interests of the public in having information as to the names of litigants in the Courts and as to the issues raised by those litigants and, subject to particular consideration of matters under the Act, of the interests of the public in knowing of determinations made by the Commission.

This is not a case where the application for review, if successful, will be rendered pointless by the publication of the name of the school.  On the other hand, there is evidence, albeit brief evidence, that the school will be prejudiced by the release of the reasons for the decision of the Commission, if its identity is made public prior to the hearing of the judicial review proceedings.  It is not suggested that that prejudice is measurable in money terms and there is no evidence to suggest that the school would, for instance, lose students or that its waiting list would be shortened or that otherwise it would be prejudiced except by the nature of the adverse publicity which is likely to follow from the publication of the reasons for decision of the Commission.  I accept that, although media reporting must be fair and accurate, it would not necessarily be the case that all of the observations of the Commission which are complimentary of the school would necessarily be included in any fair and accurate report of the proceedings.

My starting point therefore is that the proceedings of the Court and of the Commission should appropriately be made public unless there is reason not to make them public in the interests of justice.  I am guided by the observations of the former Chief Justice of this Court in Australian Broadcasting Commission v Parish 29 ALR 228 to that effect. Bowen CJ said at 232-233:

“It is clear from s 17(1) of the Federal Court of Australia Act 1976 that, in general, [the Court] is obliged to exercise its jurisdiction in open court.  This provision gives statutory force to the principle that justice must be administered publicly in open court and gives recognition to the weight of public interest which attaches to that principle.”

And at 234:

“It is not possible to define in advance the degree of prejudice to the administration of justice, which will justify the making of an order under s 50.  The collocation of the alternative phrase “security of the Commonwealth” suggests Parliament was not dealing with trivialities.”

I take into account the following things when considering whether there is sufficient justification in the circumstances of this case to preserve for the time being the anonymity of the school.

Firstly, the Commission itself considered that the identity of the school should be suppressed during the hearing and at least to the point where an adverse finding had been made against it.  I do not think that that suppression, having regard to the reasons of the Commission, was motivated solely by a desire to protect Mrs J or AJ from being identified in the proceedings by reason of the identification of the name of the school.  The Commission’s reasons indicate that it was the reputation of the school itself which was to be, at least in part, the purpose of the suppression order made in favour of the school.  The fact is that the original order was recognised by the Commission as appropriate, at least until adverse findings had been made against the school.

Secondly, I have considered the submissions put by Ms Powell QC as to the nature of the contentions proposed to be raised on the application for review. This is not the occasion to express any firm view as to whether those contentions are right or wrong. I have not had an opportunity to fully consider them. I have not had the opportunity of hearing what might be said in response to them. However, I do not categorise those submissions as having no merit or, to put it another way, I think there is at least an arguable case on behalf of the school in relation to its application for principal relief under the ADJR Act.

Thirdly, but associated with that, and as Mrs J has herself deposed to as well as put in submissions, the publication of the school’s name is in part the punishment which an adverse finding is intended to, or will, cause to the school. I think that is simply a recognition of the reason why the school makes the application which it presently does. In effect, by publication the school will be punished in a way which, if the application under the ADJR Act is successful, it will not deserve to have been punished. Although there is the capacity for the effect of that punishment to be ameliorated by further publicity, if the Court finds in favour of the school on its application for review and if the media chooses to give publicity to that finding, I am not satisfied that the effect of any punishment experienced by the school by the publicity will be totally, or substantially, ameliorated by any subsequent publicity.

There are some cases where the Court has suppressed material relating to the identity of parties by reason of prejudice or potential prejudice where the appeal has been brought from a tribunal to the Court upon application for review even though the tribunal itself has made a finding adverse to the party whose identity has been sought to be suppressed.  One illustration is provided by Kelson v Forwood (1995) 60 FCR 39, and in particular I refer to the observations of Finn J at 42-43:

“At the opening of the hearing before me the report prepared by the MPRA was tendered. The parties by consent sought and were granted an order under the Federal Court of Australia Act (Cth), s 50 forbidding publication of the Report until further order. Given that the circumstances leading to the creation of the Report and the Report itself are subjects of challenge in these proceedings, and given the potential of the Report to impact upon the reputations of a wide range of individuals (not limited to the applicants) if matter contained in it was published, the case in my view was a clear one warranting such an order: cf Australian Broadcasting Commission v Parish (1980).

. . .

If the Report was itself unimpeachable it may well have been the case that its contents should be laid open to discussion by the community: cf Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 123-125. But the report is a fatally flawed one. Reputation should not be put at risk by it.”

In the case of applications for review of Refugee Review Tribunal decisions I note also the comments of Lindgren J in A v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 327 and Sackville J in Minister for Immigration and Ethnic Affairs v A (1994) 54 FCR 333. Sackville J said at 336:

“. . . an order forbidding the publication of the names of persons asserting a claim to refugee status may be necessary in some cases in order to prevent prejudice to the administration of justice.  However having regard to the principles of open justice, I do not think that such orders are to be made as a matter of course.”

An illustration of where the Court, balancing the interests of justice, the public interest in open justice and the interests of a particular litigant, nevertheless declined to make an order prohibiting the publication of a name pending the hearing of an appeal is provided by the decision of Hill J in SRD v the Australian Securities Commission (1994) 52 FCR 187. Hill J at 191 said:

“What is required of me in the present case is the balancing against the prejudice, . . . on the one hand, with the countervailing public interest in open justice, on the other, to determine whether or not a suppression order should be made and if so upon what terms.  As Parish’s case shows it would be an error to consider only the private interests of the applicant or his firm and ignore other relevant public interests such as the preservation of the ability of a party to litigation to effectively achieve the remedy sought and the desirability of open justice.”

I have considered those decisions and the matters to which I have referred.

Bearing in mind the nature of the publicity, the fact that it is recognised by Mrs J that the publicity itself will constitute a penalty, the fact that there is at least an arguable case that the decision of the Commission might be reversed on review, and the fact that the Court can hear this application promptly and proposes to do so on 4 May 1998, it is my view that it is appropriate for the identity of the school not to be disclosed pending the hearing and determination of this application.

I am not satisfied that it is necessary or appropriate on the material presented to me that the Commission’s reasons themselves should not be made available to the public.  I accept that there might be a risk that some persons might identify the school by reason of the publication of those reasons, but there is no material before me going beyond the identification of the school itself in the reasons for decision, and in particular no material which leads me to the view that the publication of the Commission’s reasons at large, using the initials by way of pseudonym for each of the participants in the proceedings, will lead to identification of the school to the general public and in particular that the school will thereby be able to be identified in the public media.

Accordingly, I do not think it appropriate to suppress the publication of the reasons for decision of the Commission, or to stay the proposed release by the Commission of its reasons for decision, provided that the parties continue to be described in the way in which the reasons for decision as initially published to the parties on 23 March 1998 do so; that is, “Mrs J on behalf of herself and AJ” as complainant and “a school” as respondent.

I accordingly make the following orders:

1. The first respondent’s direction pursuant to s 87(1) of the Disability Discrimination Act 1992 (Cth)  that the order suppressing the identity of the school until the school had been given an opportunity to consider the reasons for decision of the Commission dated 23 March 1998, and to make any submission in relation to the continuation of the suppression order be lifted at 12 noon on 8 April 1998, be stayed until the hearing and determination of this application or until such earlier date as the Court or a judge may otherwise order, to the intent that the reasons for decision of the Commission dated 23 March 1997 may be published but so as not to describe therein the applicant or the second respondent or her daughter other than as “a school” or as “Mrs J on behalf of herself and AJ” respectively.

1. I give liberty to apply on the motion to the parties on two days’ notice.

1. The question of costs of the notice of motion is reserved.

1. I will also make an order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), until 4 May 1998, suppressing from publication the names of the applicant and of the second respondent to these proceedings unless the Court or a judge should otherwise order.

1. I also give liberty to apply with respect to that order.

I certify that this and the preceding seven (7) 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
Second Respondent appears in person
Dates of Hearing:	6 & 7 April 1998
Date of Decision:	7 April 1998