HREOC Annual Report 2003-2004 : Chapter 5: Legal Services

Human Rights and Equal Opportunity Commission

Annual Report 2003 - 2004

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Chapter 5: Legal Services

The primary responsibilities of the Legal Section are to assist the President or their delegate in the preparation of notices and reports under the Human Rights and Equal Opportunity Commission Act 1986 (Cth); to act as counsel or instructing solicitor for the Commission in interventions and amicus curiae matters; to assist the Commission in work arising from legislation or bills raising human rights issues and to monitor and promote awareness of developments in international and domestic human rights law, including discrimination jurisprudence in the Federal Court and Federal Magistrates Court.

Others responsibilities include acting as counsel or instructing solicitor for the Commission in external litigation such as applications for review of Commission decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth); assisting the Commission to examine enactments or proposed enactments under the Human Rights and Equal Opportunity Commission Act 1986 (Cth); assisting the Commission to consider applications for exemptions under the Sex Discrimination Act 1984 (Cth); responding to applications under the Freedom of Information Act 1982 (Cth) on behalf of the Commission.

Complaints relating to breaches of human rights or discrimination in employment made under the Human Rights and Equal Opportunity Commission Act

Where a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) alleging breaches of human rights or discrimination in employment is received, the Commission attempts to resolve the complaint through the process of conciliation. If the President has not declined the complaint and it is unable to be resolved through conciliation, and the President is satisfied after inquiry that there has been a breach of human rights or discrimination in employment has occurred, the President or their delegate shall report the matter to the Commonwealth Attorney-General. The President can also make recommendations to address any damage suffered by the complainant.

The Attorney-General is then required to present the report to Parliament within 15 sitting days of receipt of the report. The reporting process does not involve the President or delegate making findings that the respondent has acted unlawfully. The President or delegate only has the power to make recommendations in any reports to the Attorney, meaning that a successful complainant does not obtain a binding remedy.

Between 1 July 2003 and 30 June 2004, the following reports were tabled in Parliament by the Minister pursuant to this Commission function (the full reports are available at https://humanrights.gov.au/our-work/legal):

HREOC Report No. 26

Report of an inquiry into a complaint by Mr Kenneth Douglas of age discrimination in the Australian Defence Force

Mr Douglas made a complaint to the Commission alleging discrimination in employment on the ground of age. Mr Douglas joined the Royal Australian Navy (RAN) of the Australian Defence Force (ADF) as a Petty Officer in 1997. In November 1998 Mr Douglas was recommended by his senior officer to appear before an Officer Selection Board (OSB) of the RAN, which would have provided Mr Douglas with an opportunity to be considered for promotion to an officer level as a Direct Entry Seaman. However, the ADF refused to allow him to appear before the November 1998 OSB. Mr Douglas alleged that the reason for the ADF's refusal was his age.

The ADF conceded that age had been one factor in his being denied the opportunity to appear before the November 1998 OSB, though it claimed that age had not been the only significant reason. In particular, the ADF alleged that Mr Douglas had not complied with the requirement that his performance be observed for a period of 3 months before being able to be nominated for commissioned rank. It also alleged that, because of the statutorily prescribed retirement age (55 years) and the fact that Mr Douglas was 49 years old, if he were promoted to Seaman Officer, he would not have been able to satisfy the required post qualification return of service period. The ADF alleged that the ability to satisfy this period was an inherent requirement of the job of a Seaman Officer.

The former President of the Commission found that the primary reason for the ADF's refusal to allow Mr Douglas to appear before the November 1998 OSB was his age. The other reason was the length of time that Mr Douglas had been observed so that his officer potential could be ascertained. However no findings were made in relation to whether the ability to satisfy the return of service period was an inherent requirement of the job of a Seaman Officer, or whether Mr Douglas would have been able to satisfy that requirement.

Consequently the former President found that the ADF had discriminated against Mr Douglas in his employment on the basis of his age by refusing to allow him to appear before the November 1998 OSB, and recommended that:

the ADF pay the complainant the amount of $15,000, being an amount for general damages and loss of opportunity; and
the ADF provide Mr Douglas with a written apology.

The former President completed her inquiry on 10 February 2003 and provided the above findings and recommendations to the Commonwealth. The Commonwealth instituted proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for a review of the former President's findings. The Commonwealth discontinued those proceedings on 2 September 2003. Consequently the President was able to report to the Attorney-General in relation to its inquiry in February 2004.

The report was tabled in the Federal Parliament by the federal Attorney-General on 30 March 2004. In that report, the President noted that the respondent had indicated that it was in the process of complying with the recommendation for the payment of compensation and drafting some form of written apology to Mr Douglas in the form of a letter of regret from the navy.

HREOC Report No. 27

Report of an inquiry into a complaint by Ms KJ concerning events at Woomera Immigration Reception and Processing Centre between 29-30 March 2002

This complaint arose out of the events of 29-30 March 2002 at the Woomera Immigration Reception and Processing Centre (WIRPC). During this time violent protests were staged by detainees within the WIRPC.

Ms KJ¹ and her son MJ were detained in the WIRPC at that time. The focus of the inquiry was on two issues:

Claims made by Ms KJ that she and her son MJ were sprayed with tear gas by officers of Australasian Correctional Management (ACM); and
Claims that MJ was struck with a baton by an ACM officer.

The powers of the President were delegated to Mr Stephen Roder of Counsel for the purposes of conducting the inquiry.

The Delegate found that neither Ms KJ nor MJ were involved in acts of violence at the relevant times. However, they were present in the general area in which violent incidents were taking place.

The Delegate found that the MJ's rights were breached when he was struck with a baton by an unidentified ACM officer. This was found to be inhuman and degrading treatment and was found not to have respected MJ's humanity or inherent dignity. Accordingly, it was inconsistent with and contrary to article 37(a) and (c) of the CRC and articles 7 and 10 of the ICCPR.

The use of tear gas by ACM officers was found, in the particular circumstances of its use, not to constitute a breach of the MJ's human rights. Significantly, the Delegate found that MJ was not 'targeted' with tear gas and it was used by ACM officers in response to a direct threat to their physical safety by other detainees.

The Delegate recommended an apology be issued by the Department on behalf of the Commonwealth. The Department has issued an apology, without prejudice or admission of liability, to Ms KJ.

The Delegate also recommended that ACM conduct a full investigation of the matter. ACM responded that in their view it was appropriate that the matter be referred back to the Australian Federal Police for further investigation and such referral was made.

The report was tabled in the Federal Parliament by the federal Attorney-General on 3 March 2004.

Interventions

The Commission has a statutory function of intervening, with the leave of the Court, in proceedings that involve issues of age, race, sex, marital status, pregnancy and disability discrimination, human rights issues and equal opportunity in employment.

The Commission's intervention functions are contained in:

section 53(1)(g) of the Age Discrimination Act 2004 (Cth);
section 67(1)(l) of the Disability Discrimination Act 1992 (Cth);
sections 11(1)(o) and 31(j) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth);
section 20(1)(e) of the Racial Discrimination Act 1975 (Cth); and
section 48(1)(gb) of the Sex Discrimination Act 1984 (Cth).

The Commission will consider seeking leave to intervene in cases where the human rights or discrimination issues are significant and central to the proceedings, and where these issues are not being addressed by the parties to the proceedings. The guidelines that the Commission uses to determine if it will seek leave to intervene in a matter are publicly available on the Commission's website at: https://humanrights.gov.au/our-work/legal

In exercising those functions, the Commission is seeking to develop Australian law (generally over the long term) such that it is more consistent with human rights standards. The intervention functions also serve an important educative purpose, which the Commission seeks to further enhance by placing all its submissions on its website.

Leave granted to intervene in the financial year

During 2003-04, the Commission was granted leave to intervene in five matters. Summaries of those matters appear below. In selecting those matters, the Commission sought to make strategic use of its intervention powers to augment its ongoing work on human rights issues in areas including immigration detention, discrimination, children's rights and transgender identity.

Al Kateb v DIMIA and Ors (A253 of 2003); MIMIA v Al Khafaji (A254 of 2003); Behrooz and Ors v DIMIA and Ors (A255 of 2003)

In November 2003, the Commission was granted leave to intervene in these three matters which were heard together in the High Court. All three related to the limits on the powers to detain people under the Migration Act 1958 (Cth).

Two of these matters, Al Khafaji and Al Kateb, involved people who were refused protection visas by delegates of the Minister for Immigration and Multicultural and Indigenous Affairs; unsuccessfully sought review of those decisions before the Refugee Review Tribunal; and then wrote to the Minister asking to be removed from Australia.

In both cases, at first instance the Federal Court found that their removal was not "reasonably practicable", as at that time there was no real prospect of those people being removed from Australia in the reasonably foreseeable future. The High Court considered whether ongoing detention is permissible in those circumstances.

The third matter, Behrooz, raises the issue of whether the conditions of immigration detention can render it unlawful. This issue arose following the escape of a number of people from Woomera Immigration Reception and Processing Centre who have since been the subject of criminal charges.

In its written submissions, the Commission submitted that to continue to detain a person where there is no likelihood that they will be removed in the reasonably foreseeable future, or where conditions of detention fall beneath certain basic standards, involves breaches of fundamental rights recognised by international and Australian domestic law, including the Constitution.

In exercising its intervention function in these matters, the Commission sought to build on its earlier work on the human rights issues arising from detention without reasonably foreseeable end, which includes:

the Commission's report entitled Those who've come across the seas;
HREOC Report number 13 into the indefinite detention of a number of people subject to criminal deportation orders; and
the intervention matters of MIMIA v Al Masri (discussed below and in the Commission's last annual report) and Luu v MIMIA (discussed in the Commission's last three annual reports).

The Commission's submission and supplementary submission are available at: www.humanrights.gov.au/legal/intervention/khafaji.htm and www.humanrights.gov.au/legal/intervention/khafaji_supp.htm

The High Court handed down its decisions in all three matters on 6 August 2004. In short, the Court found in favour of the Department or Minister in each matter. The Commission will report on those decisions in more detail in its 2004-05 Annual Report. In the interim, summaries have been included in the August 2004 edition of the Legal Bulletin (available on the Commission's website at www.humanrights.gov.au/legal/bulletin.html).

Re Manager of Baxter Immigration Detention and Processing Centre and Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Sakhi (M276 of 2003)

In February 2004, the High Court granted the Commission leave to intervene in proceedings brought by four children of the Sakhi family, seeking a writ of habeas corpus and prohibition to secure their release from immigration detention. The children, originally from Afghanistan, were detained with their parents at the Baxter Immigration Detention Centre, pursuant to section 196 of the Migration Act 1958 (Cth). Their application alleged that section 196 was invalid to the extent that it allowed the Government to detain children beyond the limited period of time permissible under the Constitution.

The Commission's submissions are available at: www.humanrights.gov.au/legal/intervention/sakhi.html

Developing its submissions in Al Khafaji, Al Kateb and Behrooz (see above), the Commission submitted that the Constitution only permits the government to detain individuals for as long as is reasonably necessary. In the case of children, detention beyond what is required for initial assessment after arrival and for the purpose of arranging deportation cannot be considered to be reasonably necessary. This is because children will suffer significantly greater detrimental effects as a result of being detained and because children pose a low flight risk and security risk. To the extent that section 196 authorises the detention of children beyond initial assessment and arrangements for deportation, it is constitutionally invalid.

The High Court reserved its decision.

RE ALEX: Hormonal treatment for Gender Identity Disorder

In January 2004, the Commission was granted leave by the Chief Justice of the Family Court to intervene in this matter. The proceedings involved an application by a child welfare authority for medical treatment for a young person for whom they are the guardian. The young person's real name was the subject of a suppression order made by the Court and the Chief Justice's decision uses the pseudonym "Alex" to preserve anonymity.

Alex is 13 years old and has gender dysphoria (gender identity disorder). Alex has from the age of 5 identified as a boy. Alex also has depression, which is linked to his gender dysphoria. A special representative was appointed for him.

The Commission's intervention in this matter developed some of the work undertaken in the Commission's previous interventions in the Family Court, such as:

the "Kevin and Jennifer" case, in respect of transgender marriage (Attorney-General for the Commonwealth & "Kevin & Jennifer" & Human Rights and Equal Opportunity Commission [2003] FamCA 94);
cases regarding consent to surgical treatment by children and consent to medical treatment on behalf of a child ; and
a number of proceedings in respect of sterilisation of young women with disabilities.

Details of these previous interventions are available at: www.humanrights.gov.au/legal/intervention_info.html

In Re Alex, the Commission made submissions in respect of the legal competency of a child to consent to medical treatment, and the relevant human rights principles in the Convention on the Rights of the Child, including the right to express a transgender identity (referring also to State anti-discrimination law and Australian case law), and the right of a child to express their wishes and right to be heard.

The Commission's submissions are available at: www.humanrights.gov.au/legal/intervention/alex.html

Judgement was handed down in April 2004. In summary, the Court gave permission for Alex to initially receive the contraceptive pill. The Court also authorised his treating doctors, in consultation with Alex, to administer further treatment, a hormonal combination involving testosterone, around Alex's 16th birthday. The Court's orders also permitted Alex to enrol at high school under a male name, and gave permission to change the name recorded on his birth certificate. A more detailed summary of the Court's decision appears in the April/May 2004 edition of the Commission's Legal Bulletin (see further below), available on the Commission's website at www.humanrights.gov.au/legal/bulletins/volume_8.htm

Family Provisions Test Case (C2003/4198 and others)

In September 2003, the Commission was granted leave to intervene in the Family Provisions Test Case in the Australian Industrial Relations Commission (AIRC). Those proceedings consist of a number of applications to vary Federal awards to provide workers with more flexibility to balance their work and family responsibilities. The matter is listed for hearing in September and October 2004. The Commission has filed submissions on preliminary issues and an outline of contentions, and proposes to file final written submissions later this year.

This continues the Commission's earlier work as an intervener in the AIRC, which has included the 1990 Parental Leave Test Case, which established the standard clause for maternity, paternity and adoption leave for awards, and Gunn and Taylor (Aust) Pty Ltd v AMWU [PR918573] 4 June 2002, regarding equal work for equal value and the adequacy of alternative remedies.

The Commission considers that the AIRC's jurisdiction under the Workplace Relations Act 1996 (Cth) complements, but is different to, protections provided for under federal discrimination law. In broad terms, federal discrimination law provides individual complaint based remedies for past acts of discrimination, while the AIRC is empowered to adopt a more systemic approach. The Commission considers that both sets of protections are important. Hence, in addition to the Commission's role in these AIRC proceedings, the Sex Discrimination Commissioner is making submissions on the protections conferred by the Sex Discrimination Act 1984 (Cth) in the area of work and family in the amicus matter of Howe v Qantas (see below).

Catholic Education Office v Clarke (N1693 of 2003)

In May 2004, the Full Federal Court (Sackville, Tamberlin and Stone JJ) granted the Commission leave to intervene in this matter which concerned indirect discrimination under section 6 of the Disability Discrimination Act 1992 (Cth). Mackillop College and the Catholic Education Office appealed against the finding that they had indirectly discriminated against a profoundly deaf student by making him an offer of enrolment that required him to participate in and receive classroom instruction without the assistance of an Auslan (Australian Sign Language) interpreter.

The Commission's submissions are available at: www.humanrights.gov.au/legal/intervention/ceo_clark.html

The Commission's submissions focussed on the proper approach to the test for indirect discrimination. In particular, the submission addresses the issue of 'reasonableness' under section 6(b) of the Disability Discrimination Act 1992 (Cth) and the role of international human rights standards in determining what is 'reasonable'.

The intervention adds to the Commission's earlier work on the application of the Disability Discrimination Act 1992 (Cth) in the area of education, including in the matter of Purvis (discussed below) which dealt with the direct discrimination provisions.

The Full Court dismissed the appeal in a decision handed down on 6 August 2004. The Commission will report on that decision in more detail in its 2004-05 Annual Report. In the interim, a summary has been included in the August 2004 edition of the Legal Bulletin (available on the Commission's website at www.humanrights.gov.au/legal/bulletin.html).

Matters in which the Commission intervened during the period 1 July 2002 and 30 June 2003 and were finalised during the period 1 July 2003 and 30 June 2004

At the time of the Commission's 2002-03 Annual Report, there were two intervention matters which were yet to be finalised as one or more of the parties were seeking special leave to appeal to the High Court. Those matters have now been finalised in the manner discussed below.

NAAV v Minister for Immigration and Multicultural Affairs and NABE v Minister for Immigration and Multicultural Affairs

A summary of the Commission's involvement in these matters before the Full Federal Court in 2002-03 is in last year's Annual Report at www.humanrights.gov.au/annrep02_03/chap3.html

Subsequent to the decisions of the Full Federal Court, the High Court handed down its decision in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. In that case, the High Court adopted a different approach to the interpretation of the key provision of the Migration Act (section 474) to that which had been applied by Full Federal Court in these matters.

As noted in the Commission's 2002-03 annual report, both NAAV and NABE sought special leave to appeal to the High Court from the decision of the Full Federal Court. The Commission decided not to be involved in the special leave applications as the human rights issues raised before the Full Court of the Federal Court were no longer of central relevance.

The appeal in NAAV was conceded by the Minister and the matter was remitted to the Refugee Review Tribunal to be determined according to law (NAAV v MIMIA [2003] HCATrans 356 (12 September 2003)). The appeal in NABE was contested, but the High Court granted leave to appeal, allowed the appeal and remitted the matter to the Full Court of the Federal Court for reconsideration in light of the decision in S157/2002 (NABE v MIMIA [2003] HCATrans 364 (12 September 2003)).

Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (A206 of 2003)

A summary of the Commission's involvement in this matter in 2002-03 is in last year's Annual Report at www.humanrights.gov.au/annrep02_03/chap3.html

These proceedings concerned the lawfulness of the ongoing detention of Mr Al Masri who had asked the Minister to remove him from Australia following the refusal of his protection visa application. Officers of the Minister's department attempted to give effect to that request, but were unsuccessful.

The Federal Court and on appeal the Full Federal Court found that Mr Al Masri had been unlawfully detained for part of the period of his detention as his removal was not 'reasonably practicable', there being no real prospect of Mr Al Masri being removed from Australia in the reasonably foreseeable future.

As noted in the Commission's 2002-03 Annual Report, the Minister sought special leave to appeal to the High Court from the decision of the Full Federal Court. On 14 August 2003 the High Court rejected the Minister's application for special leave to appeal (HCATrans 305). However, as noted above, the High Court considered similar issues in the matters of Al Khafaji and Al Kateb.

Amicus curiae

Section 46PV of the Human Rights and Equal Opportunity Commission Act provides that the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Disability Discrimination Commissioner, the Human Rights Commissioner, the Race Discrimination Commissioner and the Sex Discrimination Commissioner may, with permission of the Federal Court or Federal Magistrates Court, seek to appear as amicus curiae (or friend of the Court) in the hearings of complaints that have been terminated by the President.

Guidelines for the exercise of this function are publicly available on the Commission's website at https://humanrights.gov.au/our-work/legal/information-about-amicus-curiae-role

As with the Commission's intervention functions, the Commissioners attempt to enhance the educative role of their amicus functions by placing all submissions on the Commission's website.

During 2003-04, Commissioners were granted leave to appear as amicus curiae in four matters. Summaries of those matters appear below. Also set out below is the summary of a matter in which the acting Disability Discrimination Commissioner was granted leave to appear as amicus in 2002-03 and the decision is yet to be handed down (Access for All Alliance (Hervey Bay) v Hervey Bay City Council).

Howe v Qantas Airways Limited

Ms Howe commenced proceedings in the Federal Magistrates Court of Australia in Sydney, alleging that she had been unlawfully discriminated against on the basis of her sex, pregnancy and family responsibilities in the course of her employment with Qantas Airways Limited ('Qantas'). Ms Howe was employed by Qantas in the position of Customer Service Manager ('CSM') Long Haul. The discrimination was said to have arisen by reason of, inter alia:

the allocation of certain ground duties to Ms Howe after she became pregnant, but prior to the taking of maternity leave, and the refusal to pay Ms Howe her base salary as a CSM during the periods in which she was transferred to ground duties; and
the requirement to work full-time and without flexibility in order to maintain her position as CSM upon her return from maternity leave.

Qantas denied the allegations of discrimination and submitted, inter alia, that any act done was in compliance with the relevant award or enterprise agreement and section 40(1)(f) of the Sex Discrimination Act 1984 (Cth) operated as a complete defence.

The Sex Discrimination Commissioner limited her role as amicus curiae to issues that arose concerning:

the proper construction of section 40 of the Sex Discrimination Act 1984 (Cth), particularly in the context of awards and certified agreements; and
the indirect sex discrimination claim brought by Ms Howe in respect of the requirement to work full-time and without flexibility in order to maintain her position as CSM upon her return from maternity leave (sections 5(2) and 7B of the Sex Discrimination Act 1984 (Cth)).

The Sex Discrimination Commissioner sought and was granted leave to file supplementary submissions in relation to the issues raised during the hearing (held in April 2004). A further hearing has been listed for 17 August 2004 to allow the parties and the Sex Discrimination Commissioner the opportunity to make oral submissions in relation to the matters raised in the written submissions.

Jacomb v The Australian Municipal Administrative Clerical and Services Union (V477 of 2003)

This is an important matter, as it is the first time the special measures provision in section 7D of the Sex Discrimination Act 1984 (Cth) has directly arisen for consideration by a Court. That section provides that a person does not discriminate against another person by taking 'special measures' for the purpose of achieving substantive equality between certain classes of people including, relevantly, men and women.

Mr Jacomb alleged that he had been unlawfully discriminated against on the basis of his sex by the Australian Municipal Administrative Clerical and Services Union (the 'Union'). The discrimination was said to have arisen by reason of the recently certified rules of the Union which provided that particular elected positions in the Branch Executive were available only to women. Mr Jacomb claimed that there was no substantive inequality in the Union that needed to be addressed by way of affirmative action policies, and the relevant provisions in the Rules meant that a disproportionate number of women (compared to the numbers of women who were members of the Union) were on the Branch Executive. The Union defended the proceedings on the basis that those parts of the Rules referred to by Mr Jacomb were special measures within the meaning of section 7D of the Sex Discrimination Act 1984 (Cth) and, as such, were not discriminatory.

The matter was listed for hearing before Crennan J in the Federal Court of Australia in Victoria on 8 April 2004. The Sex Discrimination Commissioner was granted leave to appear as amicus curiae in the proceedings. The Sex Discrimination Commissioner filed detailed written submissions and Counsel appeared on behalf of the Sex Discrimination Commissioner at the hearing, making brief oral submissions. The Commissioner's submissions are available at: www.humanrights.gov.au/legal/amicus/jacomb.html

Those submissions went principally to the interpretation of section 7D and the test that should be applied in determining whether a measure was a special measure within the meaning of that section. The submissions also dealt with the legislative history of sections 7D and 33 of the Sex Discrimination Act 1984 (Cth). Section 33 was an earlier, somewhat similar provision, which was effectively superseded by section 7D in 1995.

Crennan J has reserved her decision.

Kelly Country v Beers (DZ5 of 2003)

This matter before the Federal Magistrates Court in Darwin concerned allegations of racial vilification in the respondent's comedy performances. The Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner was granted leave to appear as amicus curiae. The parties were unrepresented.

The applicant claimed that the performances of the respondent (who performs stand-up comedy under the stage name "King Billy Cokebottle") racially vilify Indigenous people and contravene section 18C of the Racial Discrimination Act 1975 (Cth). The applicant alleged that "the respondent portrays aboriginal persons as rude, stupid, unable to pronounce longer words....dirty, ill educated, always drunk (or at least always drinking), and always swearing".

The Commissioner filed written submissions and made brief oral submissions in respect of the interpretation of section 18D(a) of the Racial Discrimination Act 1975 (Cth), which creates an exemption to the provisions of section 18C. The Commission did not seek to make submissions on the manner in which the case should be determined. The Commission's submissions are available at: www.humanrights.gov.au/legal/amicus/kelly_country.html

Brown FM dismissed the complaint, finding that the applicant had not made out the elements of section 18C and that the exemption under section 18D(a) applied. A more detailed summary of his Honour's decision may be found in the supplement to the Commission's publication Federal Discrimination Law 2004 (see below) which is available on the Commission's website at: www.humanrights.gov.au/legal/fed_discrimination_law_04/index.htm

Thorn v Woolworths Pty Ltd & Cat & Dog Management Board of South Australia

Mr Thorn made an application to the Federal Magistrates Court alleging disability discrimination against Woolworths in the provision of goods, services and facilities and access to premises by refusing to allow him to enter its stores when accompanied by his dog. Mr Thorn alleged that his dog was trained to alleviate the effects of his disability (epilepsy), and was thus an assistance animal within the meaning of section 9 of the Disability Discrimination Act 1992 (Cth). The Acting Disability Discrimination Commissioner has raised a number of issues regarding that provision in a discussion paper available at: www.humanrights.gov.au/disability_rights/inquiries/animal03/report.htm

In response Woolworths claimed that the Dog & Cat Management Board of South Australia had advised them that under the Dog and Cat Management Board Act 1995 (SA) and the Australian Food and Hygiene Regulations 1990 (SA), only guide dogs were entitled to access the premises of food retailers such as Woolworths. Hence Woolworths claimed that it would be in breach of South Australian law if it were to allow Mr Thorn to enter the store with the dog.

Mr Thorn further alleged that the Cat & Dog Management Board of South Australia had discriminated against him by refusing to recognise his dog as an assistance animal.

Federal Magistrate Mead granted leave to the Acting Disability Discrimination Commissioner to appear as amicus curiae on 31 July 2003. On 1 September 2003 the Acting Disability Discrimination Commissioner made written submissions regarding the application of section109 of the Constitution. However Mr Thorn settled his claim with Woolworths in September 2003, and consequently discontinued proceedings against Woolworths.

Access for All Alliance (Hervey Bay) v Hervey Bay City Council

As noted above, the Acting Disability Discrimination Commissioner is awaiting a decision in this matter in which he was granted leave in the 2002-03 financial year. A summary of the Commissioner's involvement in this matter in 2002-03 is in last year's Annual Report.

The case concerns allegations of disability discrimination by the respondent Council in the provisions of services. Central to the application is the claim that certain Council facilities are inaccessible to people with mobility disabilities.

The Acting Disability Discrimination Commissioner made submissions on the correct approach to key issues under the Disability Discrimination Act 1992 (Cth) including the interpretation of 'reasonableness' in the context of allegations of indirect discrimination and the concept of 'unjustifiable hardship'.

Human Rights Education and Promotion

As noted above, the Commission considers the intervention and amicus functions contribute to the Commission's human rights education work by demonstrating how human rights principles may be applied to resolve factual and legal issues before domestic courts.

The Legal Section is also involved in other aspects of the Commission's human rights education and promotion work, particularly those projects involving a focus upon domestic and international law. Two of the Legal Section's more significant human rights education projects for 2003-04 are described below.

Federal Discrimination Law 2004

The publication 'Federal Discrimination Law 2004' provides an overview of key issues in federal discrimination law. It examines:

The jurisprudence that has been developed by courts and tribunals in unlawful discrimination matters brought under the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth);
The manner in which interlocutory applications, procedural and evidentiary matters and awards of costs have been dealt with in the Federal Court and Federal Magistrates Court since the function of hearing federal unlawful discrimination matters was transferred from the Commission to those courts on 13 April 2000; and
The principles which have been applied to damages awards in cases where breaches of the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) have been found and gives an overview of damages awards made since the transfer of the hearing function.

The publication is one of the few addressing this interesting and complex area.

The Commission's earlier publication, Change and Continuity: Review of the Federal Unlawful Discrimination Jurisdiction, September 2000 - September 2002 ('Change and Continuity') provided a review of the first two years of the federal unlawful discrimination jurisdiction following its transfer from the Commission to the Federal Court and the Federal Magistrates Court. That publication can be downloaded from the Commission's website at: www.humanrights.gov.au/legal/fed_discrimination_law_04/index.htm

Federal Discrimination Law 2004 builds on and updates the material presented in Change and Continuity, but also takes a broader focus and is not limited to a comparative discussion of the periods before and after the transfer of the jurisdiction to the Federal Court and Federal Magistrates Court.

During 2003-04, the President and members of the Legal section gave seminars around Australia to promote and distribute the publication. Further seminars are to take place during the remainder of 2004.

Legal Bulletin and associated seminars

The Legal Section has also continued to publish its quarterly Legal Bulletin, providing an update on domestic and international human rights law. The Legal Bulletin is published on the Commission's website and links sent on the legal section's email list (see https://humanrights.gov.au/about/mailing-lists to subscribe).

In connection with each new edition of the Legal Bulletin, the Legal Section has organised a seminar on a topic of current interest in domestic or international human rights law. The Seminars and speakers for 2003-04 were as follows:

July 2003 - discussion of the decision of the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54, presented by the Deputy Director of the Legal Section.
September 2003 - discussion of the decision in Mayer v Australian Nuclear Science and Technology Organisation (2003) FMCA 209 and other relevant Federal discrimination cases dealing with the Sex Discrimination Act 1984 (Cth), family responsibilities and maternity leave, presented by Mr Simeon Beckett of the New South Wales Bar;
December 2003 - discussion of the decision of the United Nations Human Rights Committee in Young v Australia No. 941/2000, U.N. Doc. CCPR/C/78/D/941/2000 and the associated procedural issues, presented by Ms Michelle Hannon, pro-bono solicitor at Gilbert and Tobin.
March 2004 - presentation on the decision of the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180, presented by Sarah Pritchard of the New South Wales Bar and Ms Jenni Millbank, Senior Lecturer at Sydney University Law School.
May 2004 - overview of the Human Rights Act 2004 (ACT), presented by Ms Kate Eastman of the New South Wales Bar.

Review of administrative decisions made by the Commission

The Commission is often a party to proceedings in courts or tribunals involving judicial review or merits review of the Commission's administrative decisions. Members of the Commission and Commission officers are also sometimes party to such proceedings. The Commission, Commission member or Commission officer is named as a respondent in those matters.

Judicial review

Judicial review of Commission decisions generally involves an application to the Federal Court or the Federal Magistrates Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

In accordance with established legal principle, the Commission (as decision maker) usually submits to the jurisdiction of the Court in these matters, leaving the substantive parties (usually the complainant and respondent to the complaint that was before the Commission) to present the matter to the Court. In a very small number of matters, the Commission does not submit, but even then limits its role to assisting the Court rather than adopting a contentious or adversarial approach.

The numbers of applications made under Administrative Decisions (Judicial Review) Act 1977 (Cth) for the years 2001-04 are shown in the table below.

Table 31: Trends in numbers of ADJR Act applications where the Commission is named as respondent

Year	2001-02	2002-03	2003-04
Total	4	7	3

Alexander Purvis (on behalf of Daniel Hoggan) v State of New South Wales (Department of Education) and Human Rights and Equal Opportunity Commission (2003) 78 ALJR 1

This matter was discussed in the Commission's annual report last year. As there noted, this was a case under the Administrative Decisions (Judicial Review) Act 1977 (Cth) where the Commission played an active part in the proceedings.

Daniel Hoggan suffered a severe brain injury when about seven months old which resulted in him suffering from severe behavioral problems and other disabilities. He attended Year 7 of South Grafton High School from April 1997 until he was excluded in December 1997. On 13 November 2000, Hearing Commissioner Innes, in response to a complaint lodged with the Commission on Daniel Hoggan's behalf, found that the Department of Education had directly discriminated against him on the basis of his disability by excluding him from school, and by certain other acts and omissions in connection with its management of him while attending the school.

The Department sought review of the Commission's decision in the Federal Court. On 29 August 2001, Emmet J held that the Commission had erred in law and set the decision aside. An appeal by Mr Purvis to the Full Federal Court was dismissed on 24 April 2002.

The High Court granted Mr Purvis special leave to appeal. The Commission which played no active role in the earlier proceedings made oral and written submissions to the court. Those submissions can be found at: www.humanrights.gov.au/legal/purvis.htm and www.humanrights.gov.au/legal/purvis_additional.html

On 11 November 2003 the court delivered its decision. By a majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) the court dismissed the appeal with costs. McHugh and Kirby JJ would have allowed the appeal.

A key issue before the court concerned the application of section 5(1) of the Disability Discrimination Act 1992. That section, which contains the definition of direct discrimination, requires a comparison between the treatment accorded to the aggrieved person by the alleged discriminator and the treatment it accorded, or that it would accord, to a person without the disability in circumstances that are the same or not materially different. The majority of the court (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) agreed with the approach taken by the Federal Court at first instance and on appeal that the comparison should be between the treatment accorded by the school to Daniel Hoggan and the treatment that would have been accorded to a student who was not disabled but who had acted as Daniel Hoggan had acted. The majority held that as the Hearing Commissioner had not applied section 5(1) in this way the appeal had to be dismissed. McHugh and Kirby JJ, in dissent, and in accordance with the submission of the Commission, agreed with the approach taken by the Hearing Commissioner.

Another significant issue for consideration by the court concerned the definition of disability in section 4(g) of the Act. The definition provides that 'disability' means 'a disorder ... that results in disturbed behaviour'. The court (with the exception of Callinan J who did not see a need to reach a conclusion on this issue) disagreed with the approach taken by the Federal Court at first instance and on appeal, and found that the behavioural manifestation of an underlying disorder is itself a disability for the purposes of the Act. Thus, in Daniel Hoggan's case the disturbed behaviour that resulted from his disorder was an aspect of his disability. The view of the court was in accordance with the submission of the Commission.

Merits review

Some decisions of the Commission or Commission staff (acting under instruments of delegation) are subject to merits review by the Administrative Appeals Tribunal. Those include decisions made under the Freedom of Information Act 1982 (Cth) and decisions on applications for temporary exemptions under section 44 of the Sex Discrimination Act 1984 (Cth) and section 55 of the Disability Discrimination Act 1992 (Cth).

A significant case involving merits review of a temporary exemption decision that the Commission has been involved in during 2003-04 was the matter of Catholic Education Office (Diocese of Sydney) v Human Rights and Equal Opportunity Commission.

In that matter, the Catholic Education Office (CEO) applied to the Administrative Appeals Tribunal for review of a decision of the Commission of 27 February 2003, where the Commission declined to grant to the CEO a temporary exemption pursuant to section 44 of the Sex Discrimination Act 1984 (Cth). The exemption application related to a proposal by the CEO to offer primary teacher training scholarships to male students only. The CEO stated that the aim of the proposed scholarship scheme was to increase the number of male primary school teachers so that boys have male role models. The CEO also suggested that having access to male role models will help improve the 'substantive equality of boys and girls' in primary schools. The Commission declined to grant a temporary exemption in relation to the relevant provisions of the SDA on the basis that the CEO had failed to demonstrate that the exemption sought was "reasonable".

The CEO's application was withdrawn on 19 March 2004. Also on 19 March 2004, the Commission granted the CEO an exemption to offer 24 scholarships of equal value, of which 12 would be offered to males and 12 offered to female HSC students who enrol in Primary Teacher Training at university. The exemption is subject to a number of conditions.

Those proceedings raised issues which also arose in relation to the Sex Discrimination Amendment (Teaching Profession) Bill 2004 (see above).

International Work

Meeting of the Commission on Human Rights

In April 2004, the Acting Director of the Legal Section assisted the President at the 60th session of the United Nations Commission on Human Rights (and the associated meeting of the International Co-ordinating Committee of Human Rights Institutions). The Commission meets each March/April for six weeks in Geneva. The President was given the opportunity to address the Commission for a short period of time.

Asia-Pacific Forum: 8^th Annual Meeting

A senior legal officer attended the 8th Annual Meeting of the Asia-Pacific Forum (APF) in Kathmandu, Nepal from 16-18 February 2004. The officer provided assistance in the form of research, advice and drafting to the APF's Advisory Council of Jurists in its considerations of a reference on the Rule of Law in Countering Terrorism. The Advisory Council of Jurists conducted their deliberations and prepared a draft report on the reference over two days before presenting the draft report to the Meeting on the third and final day.

Placement from the South Korean Human Rights Commission

A legal/policy officer employed by the South Korean Human Rights Commission) spent two weeks with the Legal Section during December 2003. The objects achieved during that placement included providing an overview of the Legal Section's practice and internal procedures and providing practical experience in the day to day work of the section.

Endnotes

The names of the complainant and her son were suppressed to protect their privacy and human rights.

19 November 2004