Equal Opportunity Tribunal of New South Wales CITATION: Ventura -V- Walt Disney Television Animation Pty. Ltd. [1998] NSWEOT COMPLAINANT: Fe Ventura RESPONDENT: Walt Disney Television Animation Pty Ltd NUMBER: 32 of 1997 TRIBUNAL: Judge H G Murrell S.C. ( Senior Judicial Member ) GROUNDS OF COMPLAINT: Sex and disability discrimination in employment, and victimisation DATES OF HEARING: 04/24/1998 DATE OF JUDGMENT: 04/24/1998 Complainant: Ms M Reheby Legal Aid Commission (Solicitor) LEGAL REPRESENTATIVES: Respondent: Mr D Lloyd (Solicitor) JUDGMENT IN FAVOUR OF: Respondent Summary Background 1. The complainant's complaint alleged sex discrimination in the course of her employment by the respondent. The conduct in question included the display of sexually explicit material and frequent swearing in the workplace. 2. Pursuant to section 110A(1)(b) of the Anti-Discrimination Act 1977 (the Act), the complainant sought a non-publication direction prohibiting identification of herself. 3. The complainant asserted that publication of her identity would cause embarrassment and would aggravate the stress from which she already suffered. Held 4. The alleged sexual conduct is not in the same category as that in Loder v O'Callaghan (1984) EOC 90-025. Many proceedings before the Tribunal concern allegations of a personal and sensitive nature . The complainant's embarrassment and stress are an insufficient basis to depart from the general rule that the Tribunal's proceedings are to be openly administered. 5. Application refused. EQUAL OPPORTUNITY TRIBUNAL NO. 32 of 1998 FE VENTURA -v- WALT DISNEY TELEVISION ANIMATION PTY. LTD. APPLICATION FOR A SECTION 110A(1)(b) NON-PUBLICATION DIRECTION 1.1 Pursuant to section 110A(1)(b) of the Anti-Discrimination Act 1977 , the complainant seeks a direction prohibiting the disclosure of any information or the doing of any thing which identifies or may lead to the identification of the complainant. 1.2 The complainant is a former employee of the respondent. She has lodged a complaint alleging sexual and disability discrimination in employment and victimisation. The alleged conduct of which she complains is as follows. (1) The display of sexually explicit material in the work place. (2) Frequent swearing in the work place. (3) The denial of promotion because the complainant aired her objection to the display of sexually explicit material. (4) The failure to accommodate the complainant's request that because of her chronic sinusitis she be permitted to work near an open window. 1.3 The complainant argues that, having regard to the respondent's identity, it is likely that the proceedings will arouse considerable media interest. The complainant contends that the Tribunal should make a non-publication direction because some of the conduct in question is in the nature of sexual harassment. She says that the facts may be construed as reflecting adversely on her. She asserts that the allegations give rise to embarrassment. She says that she is already suffering stress as a result of the respondent's conduct and media attention will only aggravate the problem. It is the complainant's submission that the public interest would be unaffected by non-publication of her name. 1.4 Section 110A(1) provides: 110A. (1) Where, before the holding of an inquiry, at any stage during the holding of an inquiry or after the holding of an inquiry, the Tribunal considers it appropriate to do so (whether on its own motion or on the application of a party to the inquiry), the Tribunal may give directions prohibiting or restricting: . . . (b) the disclosure of any information or the doing of any thing which identifies, or may lead to the identification of, any person (whether or not a party to the inquiry or a witness summoned by, or appearing before, the Tribunal) who may, in the opinion of the Tribunal, be adversely affected by being so identified. 1.5 In support of her application, the complainant relies upon the following observations made by Judge Graham in Murphy v Ramos Pty Limited and Anor (No.2)(1990) EOC 92-309 at 78,096. His Honour said: In a case where allegations of sexual harassment are made it is of course obvious and notorious that the allegations are sometimes said to reflect adversely on a complainant himself or herself. It is in any event embarrassing and a matter of some concern for a complainant to have her identity so publicised. The analogous situation of the victim of a sexual offence is recognised as a special case in the Crimes Act of this state and for similar reasons privacy is commonly accorded to the victims of sexual assault. 1.6 I do not consider the situation of a complainant under the Anti-Discrimination Act to be closely analogous to that of a victim of a sexual offence who is required to give evidence in criminal proceedings. A victim of a sexual offence who is a witness for the prosecution in criminal proceedings is not a party to those proceedings. The victim does not initiate the criminal proceedings and stands to gain nothing through the proceedings. Criminal proceedings are often lengthy and arduous for the victim. There is a very important public interest in the making of complaints about the commission of serious crimes. 1.7 I note that in Murphy v Ramos Pty Limited the conduct about which complaint was made was the making of suggestive remarks, touching and masturbating in front of the complainant, ie conduct of an explicit nature particularly directed at the complainant. 1.8 Section 110A should be considered in the context of section 101B of the Act, which provides as follow.: 101B(1) An inquiry shall be held in public unless a direction under subsection (2) is in force in respect of the inquiry. (2) Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Tribunal considers it appropriate to do so (whether on its own motion or on the application of a party to the inquiry), the Tribunal may direct that the whole or any part of the inquiry be held in private. (3) A direction under subsection (2) may specify the persons who may be present at the inquiry to which the direction relates. 1.9 Sections 101B and 110A were introduced by Act 17 of 1984 . In the second reading speech on 2 May 1984 at 79, the Premier stated: In August last year I stated in the House that, in my view, the judicial member of the Equal Opportunity Tribunal should have a discretion to hear evidence in private. Honourable members will recall the cases of alleged sexual harassment dealt with by the tribunal last year and the wide spread publicity given to the evidence by the news media. At that time I said that many members of the public were concerned about the explicit nature of some of the evidence that was publicised. At that time the tribunal held that it had no power to direct that the hearings be held in private. The bill will enable the tribunal to hear evidence in private where that is the appropriate course. Also the tribunal will be able to restrict or prohibit publication of details of proceedings or the identity of persons concerned with proceedings, again where this is appropriate. Of course, exclusion of the public from court or tribunal proceedings or restriction of publication of proceedings is a serious matter. Therefore, the bill makes it clear that proceedings are to be in public unless the tribunal directs otherwise. 1.10 It is clear that at least one of the matters to which the Premier was referring was Loder v O'Callaghan (1984) EOC 90-025, because on 9 May 1974 at 468 Mr Dowd said the following: The unfortunate publicity concerning the Loder case where a lot of people entertained themselves day after day at the expense of other people whether warranted or otherwise was an inglorious and unedifying spectacle. The government correctly decided that should cease. No-one will complain if they think they are going to be subjected to that sort of hearing. 1.11 The conduct of which the complainant complains in these proceedings is not in the same category as that in Loder . Nor is it in the same category as that in Murphy , where conduct such as masturbation was directed at the complainant personally. 1.12 For the purpose of this application I accept that, for the reasons which she has given, the complainant is a person who may be "adversely affected" by being identified. 1.13 That being the case, I turn to consider whether it is "appropriate" to make the non-publication direction which is sought. 1.14 The starting point is that justice should be openly administered, whether in a court or in a tribunal. In Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 at 55 Kirby P. made the following statement. . . . by our tradition, the open administration of justice is the rule. Statutory derogation from openness is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loathe to expand the field of secret justice: see Australian Broadcasting Corporation v Parish (1980) 43 FLR 129 at 133, 135-136; 29 ALR 228 at 233-234, 236; see also Re Armstrong and State of Wisconsin (1972) 7 CCC(2d) 331; CB v The Queen (1982) 62 CCC(2d) 107. 1.15 At 55E the President said the following. The principles which support and justify the open doors of our courts likewise require that what passes in court should be capable of being reported. The entitlement to report to the public at large what is seen and heard in open court is a corollary of the access to the court of those members of the public who choose to attend. See also John Fairfax Group Pty Limited v Local Court of New South Wales (1991) 26 NSWLR 131, particularly at 143. 1.16 In D M v T D (unreported, NSWSC, 4 February 1994) Cole J stated: A prospective litigant is not, merely because of embarrassment which may be caused by disclosure of that person's name, entitled to come before the Court seeking non-publication of her name. Embarrassment to the plaintiff or the plaintiff's family is not sufficient as Lord Donaldson and Malcolm CJ made clear. Nor, in my view, can a plaintiff obtain an order for effective non disclosure of her name and address by indicating that, because of embarrassment flowing from disclosure, she may consider not suing. There must be much more than embarrassment or disclosure of damaging circumstances affecting a prospective plaintiff. 1.17 Proceedings before the Equal Opportunity Tribunal raise issues of broad public interest and concern. Very often the proceedings deal with behaviour of a personal and sensitive nature. Of itself, this fact could rarely qualify proceedings as "appropriate" proceedings in which to make a non-publication direction. It is imperative that, where possible, Tribunal proceedings be conducted openly. A tribunal designed to remedy situations of unfairness and inequality must be vigilant to maintain high standards of openness, fairness and equality in relation to its own procedures. 1.18 The application is refused. The refusal of the application does not preclude the complainant from making an application at a later stage of the proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.