Mrs Cowell and Fleur Cowell v A School
HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
No. H97/168
Between:
Mrs Cowell and Fleur Cowell
Complainants
and
A School
Respondent
REASONS
FOR DECISION OF INQUIRY COMMISSIONER
THE HON WILLIAM CARTER QC IN RELATION TO A SUPPRESSION ORDER
Date of Decision: 14 November 2000
#DATE 14:11:2000
On 10 October 2000 Commissioner McEvoy handed down her decision in respect of
this inquiry. The Commissioner dismissed the complaints the subject of the
inquiry.
There is one outstanding issue remaining in relation to a suppression order
and, following the expiration of the term of Commissioner McEvoy, I have been
appointed as Inquiry Commissioner to consider this issue.
The progress of this matter, including its remitter by the Federal Court for
rehearing by the Commission, is set out in Commissioner McEvoy's decision of 10
October 2000 and I do not need to repeat it here. In her decision, Commissioner
McEvoy described the situation in respect of the suppression orders in this
case as follows:
In relation to the suppression orders, Mansfield J, in separate reasons for
decision, also published on 11 November 1998, made the following
direction:
"Pursuant to section 50, [of the Federal Court of Australia Act 1976 (Cth)]
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."
In the course of the public hearing which I conducted in this matter, on
application by Mrs Cowell I indicated that I would vary the Commission's
suppression order to the extent that it would no longer apply to the identity
of Fleur. However, I indicated to Mrs Cowell that in my view she had still to
make application to the Federal Court of Australia to have Mansfield J's order
discharged or varied. Mrs Cowell has advised that she has made an application
to the Federal Court of Australia to vary the order of Mansfield J insofar as
it related to the second respondent to the proceedings before him and that, by
consent, this variation has been granted. I have been provided with a copy of
the order of Mansfield J dated 19 January 2000 to this effect. Under these
circumstances the order suppressing the publication of the names of Fleur and
Mrs Cowell no longer applies. I have made no order in relation to the name of
the School and the teachers and to this extent the Commission's suppression
order and that of the Federal Court continues to apply. However, in light of my
findings I can see no reason why the entirety of the suppression order should
not be lifted and I give either party leave to make application to the
Commission for this to occur. Of course, further variation of the order of
Mansfield J of 11 November 1998 would also be necessary.
On 13 October 2000 Mrs Cowell made application to the Commission for the
lifting of the suppression order on the name of the school and the teachers. On
31 October 2000 she provided written submissions in support of that
application.
Mrs Cowell argued that the school's name was suppressed only because Fleur's
name was suppressed and that a suppression order on the respondent was no
longer appropriate. She submitted that no hardship or prejudice would be caused
to the school and that it was in the public interest that questions such as
discrimination in education be generally known and discussed.
On 8 November 2000 the respondent provided written submissions to the
Commission opposing the lifting of the suppression order. The school argued
that it would be prejudiced if its name were to be published before the
allegations were finally determined, in circumstances in which judicial review
might be sought. In the respondent's view, the maintenance of the suppression
order would be in the interests of the administration of justice and would have
the effect of bringing litigation between the parties to finality.
I have taken into account all of the material in the submissions made to me and
I am of the opinion that the suppression order on the name of the school, the
teachers and the house should be lifted. I am of the view that, in
circumstances in which the respondent is the successful party before the
Commission, its name and the names of members of its staff should be available
publicly. The usual position in regard to a Commission hearing is that it be
conducted in public and that evidence be made publicly available. In the
absence of any compelling reasons to the contrary, and in the circumstances
where the complainant's name is in the public domain, I do not consider it
appropriate to continue with the suppression orders in this case.
However, I note that the name of the school, the teachers and the house remain
the subject of a Federal Court suppression order. His Honour Mansfield J was
specific as to the process whereby the parties could approach the court for the
variation or lifting of this order. Until the Commission is advised that that
order is lifted in its entirety or is varied to the extent necessary to allow
the publication of the relevant names, the Commission will not publish the name
of the school, any teachers or the house. Any party or other person wishing to
publish the names should also be aware of the terms of the Federal Court order
and should act in compliance with it.
Insofar as Commissioner McEvoy suppressed the name of a student witness
(referred to in the decision as "Mr PX") I think that the situation is somewhat
different. He was a student at the school, he came voluntarily to give evidence
at the behest of Mrs Cowell in the context of finding a "comparator" and he was
in no way connected with the alleged discrimination. In the circumstances, and
given that Mrs Cowell has not specifically applied for the lifting of the
suppression order on his name, I consider that the Commission's suppression
order on his name should be maintained.
Dated this day of November 2000
___________________________
The Hon William Carter QC
Inquiry Commissioner