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