Background
3 The applicant, Thomas, is contended to have a number of disabilities within the meaning of s 4 of the DDA, including Autism Spectrum Disorder, fine and gross motor skill delay and an intellectual disability. It is also contended that Thomas has a range of behaviours which are alleged to be manifestations of his disabilities (including slapping, biting, exposure and breaking items). He brings this proceeding through his litigation representative, Ms Melissa Kemp, who is his mother.
4 The respondent, through the Department of Education and Training, operates Mount View Primary School and Eastern Ranges School, both of which Thomas attended during the period of the alleged discrimination, which runs from February 2012 to 17 December 2017. At least at the time the respondent filed its defence in April 2018, Thomas was still attending Eastern Ranges School. There is no dispute that the respondent is an educational authority and an educational provider for the purposes of ss 4 and 22 of the DDA.
5 The respondent admits, by reference to medical evidence, that Thomas has Autism Spectrum Disorder and an intellectual disability, and that he has severe expressive language impairment and severe receptive language impairment. It is apparent from the pleadings that Thomas's educational and social needs are, in the context of a school environment, considerable.
6 In September 2016, a complaint was made on Thomas's behalf to the Australian Human Rights Commission, under s 46P of the Australian Human Rights Commission Act 1986 (Cth). That complaint was terminated by the Commission on 7 July 2017, and the applicant commenced proceedings in this Court on 5 September 2017. After he had commenced proceedings, a second complaint he had lodged in the Commission was terminated (on 9 May 2018) and amendments were made to the current proceeding to bring into this proceeding the substance of the allegations in the second complaint. The allegations made in both sets of complaints to the Commission were set out in an amended statement of claim dated 7 March 2018. The settlement that has been reached by the parties deals with all allegations made on behalf of Thomas.
7 The conduct alleged to constitute unlawful discrimination falls into several categories. There are allegations that:
(a) Throughout his schooling, Thomas has been subjected to segregation and exclusion;
(b) The respondent failed to provide a reasonable adjustment to Thomas, namely a "functional behaviour assessment" of the kind alleged in the amended statement of claim;
(c) The respondent failed to provide a reasonable adjustment to Thomas, namely what is described as a "functional communication method" in order to enable him to communicate effectively while he was at school; and
(d) The respondent failed to provide a reasonable adjustment to Thomas, namely what is described as a "structured social skills program" which would assist him in socialising with his peers and interacting with them.
8 Each of the four categories of conduct above are also alleged to involve breaches of the Disability Standards for Education 2005 (Cth), made under s 31 of the DDA. It is further alleged that the respondent indirectly discriminated against Thomas by imposing a condition or requirement on him that he access the education curriculum at the two schools without what is described in the amended statement of claim as a "functional behaviour assessment/ behaviour intervention plan". In other words, the allegation at [7(b)] above is put as both direct and indirect discrimination.
9 Declaratory relief and damages were sought in relation to all the claims.
10 By its defence, the respondent denies that any unlawful discrimination has occurred, and denies that there have been any contraventions of the Disability Standards. It contends that, to the extent necessary, Thomas was provided with "specialist support services" within the meaning of the Disability Standards, and that reasonable adjustments within the meaning of the DDA have been provided to Thomas to assist him to access and participate in his education.
11 In its defence, the respondent sets out an extensive list of the support services and adjustments it contends it has provided to Thomas during the period of the alleged discrimination. It also denies there was any segregation or exclusion of the kind alleged by the applicant, and contends that any arrangements which had been in place for Thomas at his schools in terms of seating were made taking into account not only Thomas's needs, but the needs of other students, together with any risks to the health and safety of other students posed by Thomas's behaviour or, at times, by his state of health. The respondent disputes the need for the kind of "functional behaviour assessment" the applicant contended should have been provided and contested the characterisation of such an assessment (at least as alleged by the applicant) as a reasonable adjustment. The respondent denies that Thomas "required" an augmentative and alternative communication method of the kind alleged by the applicant in order to communicate. It further contends that in terms of the social skills which were included in Thomas's curriculum, specific and appropriate methods were used to teach Thomas necessary social skills and to incorporate them into his interactions with his peers.
12 The pleadings having been filed, the matter was referred to mediation before a Registrar and the mediation commenced on 28 May 2018. The Court was informed on 3 July 2018 that the parties had reached an agreed resolution of the proceeding. In the affidavit in support of the application for approval of the settlement, the applicant's solicitor, Ms Claire Pirie, deposes (at [3]) that the final terms of settlement were executed on 24 July 2018. This application for approval of the settlement was made on 27 July 2018. It is, as I have noted, supported by an affidavit of Ms Pirie, affirmed on 27 July 2018. The settlement deed is exhibited to her affidavit, as is an opinion of counsel concerning whether the settlement reached is in the applicant's best interests.
13 The Court was informed that the respondent was aware of the interlocutory application, and indeed on 3 July 2017, a Registrar of this Court ordered that the applicant file such an application. The Court was informed that the interlocutory application would be served on the respondent, but that the applicant did not intend to serve a copy of the affidavit as "it contains confidential and legally sensitive information, namely the opinion of Counsel in relation to the settlement". The applicant requested that "the enclosed documents be treated as confidential and not be released without Court order".
14 On 22 August 2018, the parties were informed that the Court proposed to make orders substantially in the same form as those made by the Court in Elliott v State of Victoria [2018] FCA 1029, and were given an opportunity to make submissions about that proposed form of order. No submissions were made by either party.
15 In Elliott, at [24]-[25], I said:
I am also satisfied it is appropriate to make limited orders pursuant to s 37AG of the Federal Court of Australia Act 1976 (Cth), preserving the confidentiality of the opinion given by counsel, and the terms of settlement. I am satisfied that the protection afforded by the prospect of a confidentiality regime under s 37AG as to the final terms of settlement, including but not limited to any payment made, has encouraged and facilitated the resolution of the proceeding. I consider it unlikely that such a settlement would have occurred without the prospect of such protection. The interests of the administration of justice are served by the making of limited orders to preserve the confidentiality of the terms, and of counsel's opinion. The interests of justice are served not only for these parties, but so that future parties can also have confidence the Court may be prepared to facilitate the resolution of these kinds of proceedings by including such orders in any approval of a settlement. The resources of the parties and the Court have been conserved, and finality has been brought to a dispute which would have been intensive and time consuming for all concerned. Instead, the parties and potential witnesses on both sides, including the teachers involved, and Jennifer and her family, can move on. It is to be hoped that the future will be positive for Jennifer.
I am not persuaded there is anything about the interlocutory application itself, or the body of the supporting affidavit, which justifies orders under s 37AG. The manner in which an application for final orders is made, and the affidavit evidence to support it (aside from the terms of settlement themselves and counsel's opinion) do not have the necessary quality of confidence about them. There are no wider interests served by making orders under s 37AG in respect of these documents, and indeed the interests of justice are better served by these documents being publicly available so that the basis for the Court's final orders has some public form.
16 I adhere to those opinions and propose to adopt the same approach in this proceeding.