Equal Opportunity Tribunal of New South Wales CITATION: Crook -V- Director General, Department Of School Education [1998] NSWEOT COMPLAINANT: David Crook RESPONDENT: Director-General, NSW Department of School Education NUMBER: 49 of 1997 TRIBUNAL: Mr Simon Rice ( Judicial Member ) GROUNDS OF COMPLAINT: Homosexual discrimination in employment and victimisation DATES OF HEARING: 01/19/1998 DATE OF JUDGMENT: 01/23/1998 Complainant: Self -represented LEGAL REPRESENTATIVES: Respondent: Mr A Mullen Crown Solicitor's Office (Solicitors) JUDGMENT IN FAVOUR OF: 1. BACKGROUND Issue of summons to produce documents 100. This matter is listed for a full hearing of the complaint commencing on 9 February 1998. Directions have been made on a number of occasions for the parties to prepare for the hearing. 101. On 21 November 1997 a summons for the production of documents was issued by the Senior Judicial Member of the Tribunal, Judge Murrell, at the request of the complainant, Mr Crook. The summons was directed to the Crown Solicitor, and required production on 19 December 1997 of: "1. Complete discipline records of students Lana Skein, Megan Burtz, Dani Rowe including welfare committee references, suspensions, letters to parents, records of discipline system references, etc. "2. HSC results of all Batlow students since 1985 to present "3. All high school English marks in 1995 Contemporary English (yr 12) students since Yr 7." 102. On 19 December 1997 the parties appeared before the Senior Judicial Member. Mr Crook appeared unrepresented and Mr Mullen, Solicitor, appeared for the Respondent. Acceptance of service 103. Mr Mullen said: "In relation to a summons to produce, issued to the Crown Solicitor's office. No objection is taken in relation to the fact that it was issued to the Crown Solicitor's office rather than the Department. I produce documents in respect of paragraph 1 of the Schedule." (Transcript 19 December 1997 ("transcript") at page 1, lines 28-32). 104. No objection was taken to Mr Crook having access to the documents produced, but Mr Mullen advised that "objection is taken in relation to paragraphs 2 and 3 of the Schedule" to the summons. (Transcript page 1, lines 37-38) 105. It appears from the Education Reform Act, and specifically section 102(2)(i)-(k), that results of Higher School Certificate examinations and related assessments are the responsibility of, at least, the Board of Studies, a corporation constituted by section 99 of that Act, and an entity separate from the Department of School Education. This conclusion is reinforced by the terms of sub-clause (3)(d) of clause 5 which refers to publication of results "by or with the approval of the Board of Studies". 106. Whether the summons seeking these results should properly have been directed to the Board of Studies which is a third party to these proceedings, or to the Department of School Education which is the Respondent to these proceedings, it was in fact directed to the Crown Solicitors. The Crown Solicitor's office has taken no objection to the summons being directed to that office, and has already produced some documents in response to it. It has however objected to production of the results of the Higher School Certificate examinations and related assessments, on instructions I must assume from the, or a, body capable of dealing with the results of the Higher School Certificate examinations and related assessments so as to be able to answer the summons. 107. Mr Mullen said on 19 January 1998 that he was not instructed by the Board of Studies. I can reconcile this with the making of the current objection either by assuming that the Department of Education is in a position to answer the summons if directed to do so, or that the Crown Solicitor's office does have or anticipates having instructions from the Board of Studies. Clarification of paragraph 2 of the summons 108. In relation to paragraph 2 of the summons to produce documents, Mr Mullen on 19 December 1997 submitted "that it is vague and ambiguous and open to interpretation" (Transcript page 3, lines 26-27) 109. On the same day Mr Crook obtained the assistance of the duty solicitor Ms Reheby who then represented Mr Crook on the day in relation to clarification of paragraph 2. Ms Reheby advised the Tribunal that she had clarified with Mr Crook the terms of paragraph 2, and she read onto the record the proposed revised terms of paragraph 2: "The HSC Results for all students at Batlow High School from 1990 to 1995" (Transcript page 12, lines 25-26). 110. At the suggestion of the Senior Judicial Member the terms were further clarified and the Senior Judicial Member stated that paragraph 2 was to read as follows: "HSC exam mark and assessment mark for students who sat or completed the HSC in the years 1990-1995 inclusive" (Transcript page 12, lines 51-53). 111. Ms Reheby added immediately: "All students at Batlow" (Transcript page 12, line 55). No comment is recorded from Mr Mullen. 112. I take it from the transcript therefore that the Tribunal amended the wording of paragraph 2, with the agreement of the parties, so that the summons now seeks production of: HSC exam mark and assessment mark for all students who sat or completed the HSC at Batlow High School in the years 1990-1995 inclusive. Clarification of paragraph 3 of the summons 113. In relation to paragraph 3, Mr Mullen appears from the transcript of 19 December 1997 to have objected to it for its vagueness and uncertainty. In response to the Senior Judicial Member's question "In relation to item 3 what is the difficulty?" (Transcript page 5, lines 26-27), Mr Mullen said: "It doesn't even relate to the specific school which Mr Crook was teaching at." (Transcript page 5, lines 34-35). After some discussion to clarify the terms of paragraph 3, the Senior Judicial Member said : " . . . . you take those students who in 1995 at Batlow High School sat a Higher School Certificate subject of Contemporary English, and then in respect of each of those students obtain their English marks for each year from Yr 7 through to Yr 12." (Transcript page 6 lines 8-14) 114. After further discussion the Senior Judicial Member said to Mr Mullen: "You do understand what he (Mr Crook) is seeking in relation to paragraph 3 do you Mr Mullen?", to which Mr Mullen replied "Yes, your Honour". (Transcript page 7, lines 1-4). Relisting 114. The revised terms of paragraphs 2 and 3 of the summons having been agreed on, the Senior Judicial Member adjourned the summons to a date to be fixed, noting that the documents could be produced informally in the meantime if no objection was taken to their production (Transcript page 13, lines 13-16). Leave was granted to approach the Registrar to have the matter relisted should there be any objection to production. 115. The matter was relisted at Mr Crook's request as a result of a letter dated 28 December 1997 he received from the Crown Solicitor's office. 116. The Tribunal has on file a copy of the letter dated 28 December 1997 Mr Crook received from the Crown Solicitor's office. In it the Crown Solicitor indicates that objection would be taken to production of the documents sought in paragraph 2 of the summons, because of the existence of clause 5 of the Education Reform Regulation 1996 as amended by the Education Reform Amendment (Publication of Results) Regulation 1997. 117. The letter also advises that the documents sought in paragraph 3 of the summons will not be available for production until relevant staff return from leave towards the end of January 1998. The letter does not advise that any objection will be taken in relation to production of those documents. 118. The matter was listed before me at 2.00 pm on Monday, 19 January 1998. Mr Crook appeared unrepresented and Mr Mullen appeared for the Respondent. I undertook to produce a decision by Friday 23 January 1998. 2.OBJECTION TO PRODUCTION Procedure for a summons to produce 200. The procedure in relation to production of documents pursuant to a summons is set out conveniently in Waind v. Hill and National Employers Mutual General Association Limited NSWLR [1978] 376 at 381 (See also Commissioner for Railways v. Small [1938] 38 SR (NSW) 564 at 573-574). The necessary first step is obedience to the summons, that is to say that the witness attends the court, or in this case the Tribunal, with the documents sought. It is then that objection may be taken to producing the documents on grounds, for example, that they are privileged. 201. If the documents are produced they are then in the control of the Tribunal and the next stage is the exercise by the Tribunal of a discretion to allow the parties to have access to the documents (Waind v. Hill at 383A). 202. The Crown Solicitor's letter gives notice to Mr Crook of its intention to object to production of the documents, when the time comes for production. 203. On 19 January 1998 Mr Mullen said that whether clause 5 prohibits production to the Tribunal is an "issue (that) would not be taken up" (Transcript 19 January 1998 at page 6, line 48). No objection therefore is taken to production. Mr Mullen's submission is that clause 5 prohibits the granting of access to Mr Crook (Transcript 19 January 1998 at page 6, lines 56 – 58; page 7, lines 1-7). That is to say, his argument anticipates the second stage of the summons process. 204. Although the documents have not yet been brought to the Tribunal, the Tribunal is being asked to decide, when the documents are produced to the Tribunal as the summons requires, whether and on what terms access should then be given to the parties. Submissions for the Respondent 200. I have given the heading to this paragraph as a matter of convenience. Because of my uncertainty as to the party responsible for providing the documents in answer to the summons, discussed in paragraphs 106 and 107 above, I am not able to say whether Mr Mullen's submissions were on behalf of the Respondent to the substantive proceedings, or on behalf of a closely related third party witness, the Board of Studies. In any event, as I discussed above, I accept Mr Mullen had instructions from the relevant party. Reference I make to the Respondent is reference to the party responsible for providing the documents in answer to the summons. 201. Mr Mullen submits that the wording of clause 5 of the Education Reform Regulation 1996 as amended by the Education Reform Amendment (Publication of Results) Regulation 1997 ("clause 5") clearly prohibits access being given to documents produced in compliance with paragraph 2 of the summons. Specifically, he relies on clauses 5 (1)(b), and 5(2); for reference later in this decision I include clause 5(3) as well: 5. Publication of results: section 18A 1. This clause applies to the following results: a.… b. results of School Certificate and Higher School Certificate examinations and related assessments. 1.Results to which this clause applies must not be publicly revealed if the results relating to particular students are revealed. 2.Results relating to a particular student may however be revealed as follows: (a) to the student or to anyone with the student's consent, (b) to the student's parents, (c) to the principal of a school at which the student is enrolled or at which the student was previously enrolled, (d) in the case of results of School Certificate or Higher School Certificate examinations and related assessments by or with the approval of the Board of Studies, by way of the publication of the results of students who the Board considers have achieved outstanding results. 200. As the documents sought by paragraph 2 of the summons meet the description of documents that are the subject of clause 5(1)(b), i.e. results of Higher School Certificate examinations and related assessments, I shall refer to the materials sought by paragraph 2 of the summons as "the results". 201. Mr Mullen relies on clause 5 only, and on no other basis for objecting to access being given to the results. He relies on no authority, or on any argument other than what he submits is the clear wording of the clause. 202. As the Explanatory Note to the Education Reform Amendment (Publication of Results) Regulation 1997 says, that regulation is made under the Education Reform Act 1990, including section 18A (Publication of results of certain tests) and section 130 (the general regulation making power). 203. Section 18A of the Education Reform Act provides, so far as is relevant: 18A Publication of results of certain tests 1. The regulations may make provision for or with respect to the extent to which the results of: a .… b. School Certificate and Higher School Certificate examinations or other assessments may be publicly revealed or kept confidential. 1. The Minister is required to recommend to the Governor that regulations be made under this section and, in making any such recommendation, is to have regard to the privacy of students and the potentially adverse effects of any inappropriate public disclosure of the results. 200. The Education Reform Amendment (Publication of Results) Regulation 1997 was gazetted and commenced on 19 December 1997 (NSW Government Gazette No. 149 10093; 10117-10120). 201. Mr Mullen submits for the Respondent that if the Tribunal were to grant the Complainant access to the results, the results would then certainly have been "publicly revealed" within the meaning of clause 5. 202. I inquired of Mr Mullen whether the power of the Tribunal to make an order pursuant to section 110A prohibiting or restricting the publication or broadcasting of proceedings would in any way alter the position taken by the Respondent. Mr Mullen advised that it would not, and that it remains the Respondent's absolute view that giving access to the documents would be contrary to the prohibition in clause 5. 203. I understand the Respondent's concern to ensure that neither it directly, nor its officers, breach the prohibition in clause 5. The issue for determination is the meaning and extent of the prohibition, so as to ensure that results are not dealt with in a manner proscribed by clause 5. 204. I have a number of difficulties with the full meaning and effect of clause 5 which could not be resolved at the hearing on 19 January 1998 and which will remain unresolved for purposes of this decision. I believe however that a definitive view can be reached on the question of access to the results without resolving some of my uncertainties surrounding the meaning of clause 5. 205. Mr Mullen advised the Tribunal that he is instructed that clause 5 is a prohibition without sanction. If that is correct then I might look for some negotiated way around the prohibition that would satisfy the needs of all parties and enable the substantive matter to proceed to a hearing and resolution. 206. I am sure, however, that officers of the Respondent would have regard at the very least to their public service obligations, perhaps to provisions such as section 66 of the Public Sector Management Act which would expose them to disciplinary proceedings if they were to act contrary to a proscription such as that in clause 5. 207. It may be, and on this I am uncertain, that acting contrary to clause 5 is in itself an offence. Section 124 of the Education Reform Act clearly anticipates the creation by the regulations of offences, as it provides for proceedings for an offence against the regulations to be dealt with summarily before a Local Court. Further, the regulation-making power in the Education Reform Act, section 130, provides that a regulation may create an offence punishable by a penalty not exceeding five penalty units. 208. It is not clear to me, however, that clause 5 is a regulation creating an offence. Clause 5 does not in clear terms say that to act contrary to the provisions of clause 5 is an offence. It may say so inferentially. The term "must not" is used in the clause as a mandate against certain conduct. It is possible that the word "must" has the meaning of "shall" in section 9 (2) of the Interpretation Act 1987: " the word "shall", if used to impose a duty, indicates that the duty must be performed." That is still short, however, of creating an offence. 209. I note that there is in clause 5(2) a proviso to the prohibition: "if the results relating to particular students are revealed." I inquired of Mr Crook whether provision of the HSC results for the students, with the students identified only by a letter of number, would be sufficient for his forensic purpose. It seems to me that if so, the results sought by the summons can be provided without triggering the prohibition in clause 5. 210. Mr Crook was, understandably, not able to form a firm view on this proposition at the time. Nor was Mr Mullen able to say that the results could be provided in this way. Nevertheless I left it with the parties as a way to resolve the matter. If that is not achieved between the parties in the meantime, it remains necessary to decide on the objection based on clause 5. 211. A further means of avoiding the difficulty posed by clause 5 was suggested by Mr Crook at the hearing on 19 January 1998: obtaining the results from the students pursuant to clause 5(3) (see paragraph 206 above). Mr Mullen said he would have no objection to that course. Again, however, if that is not possible it remains necessary to decide on the objection based on clause 5. Submissions of the Complainant 200. Mr Crook read onto the record succinct and helpful submissions which I summarise as follows. 201. First, he says that as the summons to produce the results was issued before the commencement of clause 5, access to the results produced under the summons should not be affected by clause 5. I disagree. 202. Had the results been produced before 19 December 1997, the day on which clause 5 took effect, then the position may have been different. Certainly objection could not have been taken after an order for access had been made, as there is nothing in its terms to indicate that clause 5 has retrospective effect so as to alter the character of an act already done. 203. As it happens the results did not, within the terms of the summons, have to be produced until 19 December 1997 on which date, coincidentally, clause 5 came into effect. It does not matter when the summons was issued: the results were not due to be produced, and were not in fact produced until clause 5 had become effective. 204. Secondly, Mr Crook says that results are sought for Higher School Certificate examinations and related assessments for only the period 1990-1995, and that clause 5 should not be given retrospective effect so as to apply to results from years past. This argument misunderstands the meaning of "retrospectivity". 205. It is true, I believe, that clause 5 does not have retrospective effect; that is, if the results for the period 1990-1995 have already been publicly revealed (which may in fact be the case), then clause 5 does not change this previously permissible act and now, after the event, characterise it as prohibited. 206. Clause 5 is prospective: it says only what cannot be done in the future. But clause 5 does not do is distinguish between past results and future results for these purposes. This is not retrospectivity as no past act is affected: "the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it proscribes in the future" (Robertson v City of Nunawading [1978] VR 819 at 824.10). 207. Third, Mr Crook says that the intent of clause 5 is directed towards publishing results to and in the news media, and is not directed towards the use of the results in court proceedings. I address this argument in more detail below in Part 3. 208. Fourth, and related to his third argument, Mr Crook says that clause 5 makes no reference to the prohibition on the use of the results in courts; I address this argument too in more detail below in Part 3. 209. Finally, Mr Crook says that the Tribunal has a power and a duty to obtain all material relevant to its inquiry, and the results sought are such relevant material. This submission relies on section 108 of the Anti-Discrimination Act (NSW) 1977, by which the Tribunal "may inform itself on any matter it thinks fit", and "shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms". 210. The Tribunal cannot engage in or condone conduct which is prohibited by law. The Tribunal's powers and duties under section 108 cannot enable it to require anyone to act contrary to clause 5. I do however discuss in Part 3 the effect that the Tribunal's obligation to discharge its functions may have on any interpretation of clause 5. 3. MEANING OF CLAUSE 5 300. What does "publicly revealed" in clause 5 mean? The expression in clause 5 will have the same meaning it has in section 18A (section 11 Interpretation Act 1987). Authorities 301. The difficulty of complying with a summons to produce documents in the face of an apparent statutory prohibition is well known. The guiding authority through all subsequent cases is Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1. 302. In every case resolution of the difficulty has turned on interpretation of the words of the particular statute, which were invariably in terms such as: "not to divulge to any person". The courts have sometimes dealt too with a qualification to this prohibition along the lines of: "except in performance of duties under the (particular) Act". 303. The authorities have consistently interpreted the term "person" as not extending to a court, and have therefore found that the prohibition does not prevent production to the court. They have found further comfort in the exception, when it has occurred, usually being able to say that to produce the material sought would be part of the performance of the duties of an officer under the particular Act. 304. The authorities therefore, although dealing with the difficulty of complying with a summons to produce documents in the face of an apparent statutory prohibition, are limited to the interpretation of the terms used in the particular statutory prohibition, invariably involving the word "person". The reasoning in the authorities for allowing production in the face of an apparent statutory prohibition is therefore not applicable in this case. None of the authorities considers the meaning of the term "publicly revealed". Nor do they go the extra step to considering the stage of granting access to the parties, although I think it is implicit in the decisions that once produced to the court any issue about divulging information is effectively overcome. 305. From these cases, however, I take an important point of public policy: the authorities are consistent in their narrow construction of a provision that on its face might compromise the court fully discharging its functions. Mr Crook has submitted that the Tribunal should take a similar approach. I agree. In doing so however I have regard to the caution: "whatever the policy behind the rule, if the language is so intractable as to prevent (production of documents) even in Court proceedings, I must give effect to it." (Irvin v Whitrod [1978] Qd R 137). Interpretation Act 1987 306. Section 34(1) of the Interpretation Act 1987 provides that: 1. In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: i. if the provision is ambiguous or obscure, or ii. if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. 300. Section 34(2) is an indicative but not exhaustive list of material that may be considered and includes reference to headings in the printed Act and Regulation, explanatory notes, and second reading speeches. Application of the Interpretation Act 1987 301. Mr Mullen submits that the ordinary meaning of "publicly revealed" would include revealing to a party in legal proceedings for use in those proceedings. This conclusion could be viewed as absurd in some circumstances, such as one I describe below in paragraph 310, although perhaps not "manifestly absurd". Certainly Mr Crook would say that in this case such a conclusion would be unreasonable within the meaning of Section 34(1)(b)(ii) of the Interpretation Act 1987. 302. To test the meaning of "publicly revealed" and see what the "ordinary meaning" of the term would lead to, I ask: to whom is clause 5 directed? Clearly it is directed first to the primary holder of the HSC results that are not to be "publicly revealed". But clause 5 anticipates that other parties will properly have access to some if not all HSC results: a student, a parent, a school principal (see clause 5(3)). The prohibition in clause 5 against "publicly revealing" must extend to them, otherwise the intended effect of the clause could easily be circumvented. 303. Clause 5 must be directed at anyone who properly has access to the HSC results. Consider, however, if the Tribunal were properly to receive some HSC results, say because clause 5 does not preclude production to it, or the results are provided with the consent of the students concerned. Does this mean that the Tribunal, prevented by clause 5 from giving access to the parties, would be subject to a penal sanction, if one exists? If so, such a situation would be curious if not absurd, and requires interpretation of the term "publicly revealed" beyond its "ordinary meaning". 304. From Mr Crook's perspective, the application of the "ordinary meaning" of the term "publicly revealed" so as to compromise his ability to pursue his rights under the Anti-Discrimination Act is unreasonable. Reconciliation of competing rights – Mr Crook's right to pursue his case and HSC students' right to privacy - is an exercise for interpretation. Other use of the term 305. I can find in "Australian Legal Words and Phrases" (Butterworths 1997) no reference to the expression "publicly revealed", or any variation of it such as "publicly reveal", "reveal publicly", or "revealed publicly", being used in other legislation in Australia. Heading 306. The heading to section 18A and to clause 5 itself is "Publication of Results". This may give some indication that "publicly revealed" equates either with the accepted meaning of "publication" for purposes of defamation: bringing to the knowledge of another person, or with the wider meaning for purposes of copyright: making known to the general public. In any event, it is clear to me that some weight must be put on the use of the word "publicly" to qualify "revealed", otherwise the expression would be tautological. Within the context of the section and regulation 307. In section 18A the expression "publicly revealed" is juxtaposed with "confidential" as follows: "The regulations may make provision for … the extent to which (results) … may be publicly revealed or must be kept confidential". This indicates to me a wider meaning of the expression "publicly revealed" than merely to make known to another person, which may be publication for some purposes but could nevertheless be done on a confidential basis. 308. Within clause 5 the term is used only twice, and on each occasion within the following phrase: "Results to which this clause apply must not be publicly revealed" (subclauses (2) and (4)). 309. Sub-clause (3) is worded differently: "Results relating to a particular student may however be revealed as follows". Use of the word "however' seems most sensibly to refer back to sub-clause (2) that prohibits results being "publicly revealed", and thus makes the list of circumstances that follows a list of occasions when, although they amount to publicly revealing results, they would not offend the prohibition. 310. Four such circumstances are listed in sub-clause (3). The first three are quite private in their nature: to the student or to anyone with the student's consent, to the student's parents, and to the relevant school principal. None of these would seem to be an exception to the prohibition against results being "publicly revealed" unless the expression means, in effect, to tell anyone at all. The fourth circumstance in the list is very different in character: it refers to the "publication of the results" which are outstanding. This clearly refers to the results being "publicly revealed" to a wide audience, probably the public at large. Second reading debate 311. Section 18A was introduced by the Education Reform Amendment Act 1997, assented to on 15 December 1997. The second reading debate took place on 22 October 1997 and 11 November 1997. 312. In his second reading speech on 22 October 1997, the Minister for Education and Training, Mr Aquilina, referred to the introduction of section 18A in terms that did not elaborate on the wording of the section (Hansard, page 1201). He makes it clear however that the power in section 18A, to suppress the publication of results of the Higher School Certificate and related assessments, forms part of a strategy to prevent comparison and consequent ranking among students and schools by the general public. Another part of the strategy is to protect calculations relating to the tertiary education rank (TER), which is based in part on results of the Higher School Certificate and related assessments, from being publicly accessible through a Freedom of Information application. A further protection for the TER is that it may be a "related assessment" within the meaning of section 18A. 313. The second reading debate moves freely over issues relating to HSC examination results and the TER. There was consensus that what was being avoided was the publishing of a sort of "league table" of schools and individuals (see for example, Mr Aquilina Hansard, 22 October 1997, page 1202; Mr Richardson, Member for the Hills, Hansard, 11 November 1997, page 1504). 314. It is clear from the Minister's second reading speech that the Government's intention was to ensure that strict limitations would be imposed on the extent to which results would be available for public discussion that would lead to, in the Minister's view, an unwarranted ranking of schools and students. 315. It is notorious that this issue arose in large part because of publication, in a widely circulating Sydney daily paper, of TER assessments from Mount Druitt High School, and such was commented on by Mr O'Doherty, Opposition Member for Ku-ring-gai, in the second reading debate (Hansard, 11 November 1997, page 1517). 316. The intention behind section 18A, clearly expressed by both the Government and Opposition, is to ensure that there would not be, in Mr Aquilina's words, "educationally harmful, misleading and inaccurate" publication (Hansard, 22 October 1997, page 1202). 317. In the second reading debate Mr O'Doherty foreshadowed an amendment to the Government's proposed wording for section 18A (2). He said that his amendment would "seek to maintain the spirit of the privacy to the individual that the Government wants to build into this Act for the…Higher School Certificate" (Hansard, 11 November 1997, page 1499). 318. Mr O'Doherty moved an amendment to the proposed wording of section 18A (2) that would require the Minister "to have regard to the privacy of students and the potentially adverse effects of any inappropriate public disclosure of the results". 319. He referred to the Opposition's acceptance of "the principle of privacy for individual results" (Hansard, 11 November 1997, page 1517). In moving his amendment he said he was "not proposing that information be provided that allows a similar headline (to the Mount Druitt headline) to be run in the future". He said that his amendment would enable "the Minister to make regulations and release information in such a way that prevents inappropriate public disclosure of results", and that his amendment "makes the point that the Parliament wants to object not to any public knowledge but, specifically, to any inappropriate public disclosure of the results" (page 1517). Further he said that "this amendment allows the government to tell the media that they ought not reveal information in an inappropriate way, in a way that would adversely affect individuals". 320. The government supported Mr O'Doherty's amendment. Section 18A (2) now requires the Minister "to have regard to the privacy of students and the potentially adverse effects of any inappropriate public disclosure of the results". 321. While section 18A(2) requires only that the Minister "is to have regard" to the question of inappropriate public disclosure, the extensive references to this issue in the parliamentary debates indicate to me that the regulations anticipated by section 18A would be intended, in the words of Mr O'Doherty when introducing the amendment, "to object not to any public knowledge but, quite specifically, to any inappropriate public disclosure of the results" (my emphasis). 322. Although "having regard to" a consideration is something less than giving effect to it, I must assume that the Minister, in drafting clause 5, did do as section 18A (2) requires, and that clause 5 can properly be read in light of Parliament's concern to avoid "inappropriate public disclosure of the results." 323. In interpreting the meaning of the term "publicly revealed" in section 18A and clause 5 so that its application does not give rise to an absurd or unreasonable result, I have regard to i. the ordinary meaning of the term, ii. the terms of section 18A (2), iii. the second reading debate, iv. the heading given to section 18A and to clause 5, v. the other terms with which the term appears in the Act and Regulation, and vi. the public policy concern to construe narrowly a provision that on its face might compromise the Tribunal in fully discharging its functions. 4. FINDING 400. I have decided that the prohibition in clause 5 against results being "publicly revealed" does not extend to granting parties to Tribunal proceedings access to documents produced in answer to a summons, for purposes of enabling the parties to prepare for, and the Tribunal to determine, the substantive matter before it. Such access is not inappropriate public disclosure as is intended by the term "publicly revealed" in clause 5. 401. The parties whom Mr Mullen represents in objecting to an order being made for access can, in my view, now comply with the Tribunal's direction, knowing that Mr Crook will have access to the results consistently with the proper of clause 5. 402. Accordingly I direct compliance with the summons issued by Mr Crook on 21 November. I note that documents that answer the description in paragraph 1 of the summons have already been produced, that no objection has in fact been taken to production of documents that answer the description in paragraph 2 of the summons, and that no objection has been taken to documents that answer the description in paragraph 3 of the summons. 403. I adjourn the summons to 30 January 1998 at which stage I expect the results to be produced and access granted to the parties. 404. I note that no order as to costs was sought, and I make no order. 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.