Commission Submission Amicus Curiae - Clarke v Oceania Judo

FEDERAL MAGISTRATES COURT
OF AUSTRALIA
ADELAIDE REGISTRY
No ADG 304 OF 2006

BETWEEN:

ANTHONY LAURENCE CLARKE
Applicant

and

OCEANIA JUDO UNION INC
Respondent

OUTLINE OF SUBMISSIONS OF THE ACTING DISABILITY DISCRIMINATION COMMISSIONER

ON THE ISSUE OF JURISDICTION

Introduction 

1. These submissions have been prepared for the assistance of the Court in the event that the Commissioner is given leave to appear as amicus curiae on 22 February 2007 and given an opportunity to make submissions on the issue of jurisdiction. These submissions address the contentions of the respondent asserting lack of jurisdiction in this Court to entertain these proceedings only in so far as it affects the operation of the Disability Discrimination Act 1992 (Cth) (the Disability Discrimination Act).

Relevant statutory scheme

Disability Discrimination Act

2 The objects clause of the Disability Discrimination Act states that it is “[a]n Act relating to discrimination on the ground of disability”.

3 “[D]isability” in relation to a person is defined in s 4.1 The word “discriminate” has the meaning given by sections 5 to 9 (inclusive).

4 Relevantly, subsection 5 (1) defines disability discrimination in the following terms:

For the purposes of this Disability Discrimination Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.2

…

5 The proscription against the alleged discrimination in the present case is found in section 28. Section 28(1) relevantly provides:

It is unlawful for a person to discriminate against another person on the ground of the other person’s disability…by excluding that other person from a sporting activity….3

The Court has jurisdiction in this matter

6 Section 10 of the Federal Magistrate’s Act 1999 (Cth) states that the Federal Magistrates Court has such jurisdiction as is given to it by legislation.

7 Jurisdiction is conferred on the Federal Magistrate’s Court by section 49B of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) “with respect to civil matters arising under Part 11B or 11C” of the Disability Discrimination Act.  As the complaint was terminated under s46PH of the HREOC Act the applicant is entitled to bring this application alleging “unlawful discrimination” in the Federal Magistrates Court by virtue of s46PO of the said Act. Both these provisions are in Part 11B of the HEREOC Act.

8 “[U]nlawful discrimination” is defined in s3 of the HREOC Act to mean any acts, omissions that are unlawful under Part 2 of the Disability Discrimination Act.

9 Section 28 (1) of the Disability Discrimination Act (which is in Part 2 of the said Act) renders unlawful discrimination against a person on the ground of a person’s disability.

10 Under section 28 a person discriminates against another person on the ground of a person’s disability of the person if, because of the person’s disability, the discriminator treats or proposes to treat4 the aggrieved person less favourably.

11 The respondent asserts in its written submissions5 and the affidavit of Ms Hargrave (the president of the respondent),6 that this Court lacks jurisdiction in the present case regarding the matters alleged to be arising under section 28 of the Disability Discrimination Act, on the basis that the respondent is incorporated in New Zealand, and, the decision of the executive of the respondent to exclude the applicant from the tournament was made in New Zealand.

12 In the absence of pleadings, the following matters are evident from the documents filed by the parties:

1. The decision to exclude the applicant from the tournament was communicated to the applicant’s coach (who was in Australia) by e-mail on 30 October 2005 from the secretary of the respondent (who was also in Australia at that time) at the direction of the president of the respondent7;
2. The telephone conversation between the applicant and Ms Hargrave on 1 November 2005, in which the decision to exclude the applicant from the tournament was confirmed and discussed, occurred whilst they were both in Australia8; and
3. The competition from which the applicant was excluded was scheduled to take place in Australia on 5 November 2005.

13 The Court has jurisdiction to determine these proceedings as the discrimination alleged under section 28 of the Disability Discrimination Act appears clearly to have occurred in Australia in view of the matters set out in paragraph 12. A lesser set of facts would have sufficed to bestow jurisdiction. In this regard, it is noted that, whilst subsection 12(2) states that, subject to this section, the Disability Discrimination Act “applies throughout Australia” subsection 12(13) states that provisions like section 28 “have effect in relation to discrimination within Australia involving persons or things, or matters arising outside Australia”.9

14 It follows from the terms of sections 12(13) and 28 of the Disability Discrimination Act, that the respondent’s assertion that the Court is without jurisdiction, because it was incorporated in New Zealand, and, that the decision by the executive of the respondent was allegedly made there, misconceives the purport of these provisions. The application of section 28 is not deflected merely because the respondent was incorporated in New Zealand and/or the decision of the executive was allegedly made there, as section 28 applies to any act or omission that amounts to treating or proposing to treat an applicant in a discriminatory way within the meaning of section 5.

15 The words “treats or proposes to treat” in section 28 should be given their wide and ordinary meaning. Oxford and Macquarie dictionaries say that a person “treats” another person in a particular way if the first person deals with, behaves or acts towards the second person in a specified way. The matters noted in paragraph 12 clearly fall within the meaning of the phrase “treat or proposes to treat” in section 28. Such matters clearly occurred within Australia.

16 The question whether s28 of the Disability Discrimination Act has extra territorial effect or not does not arise on the facts of the present proceedings.

……………………………….
Sashi Maharaj QC
Counsel for the Acting Disability Discrimination Commissioner
19 February 2007

Footnotes