IN THE FEDERAL COURT OF AUSTRALIA
new south wales DISTRICT REGISTRY
No. NSD 2539/2006
On appeal from the Federal Magistrates Court
QANTAS AIRWAYS LIMITED
OUTLINE OF SUBMISSIONS FOR THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Issues To Be Addressed
- The issues on which the Human Rights and Equal Opportunity Commission (“HREOC”) seeks to be heard are as follows:
- the application of Briginshaw v. Briginshaw (1938) 60 CLR 336 in discrimination proceedings;
- the proper approach to drawing inferences of discrimination;
- the application of this Court’s decision in Forbes v. Australian Federal Police (Commonwealth of Australia)  FCAFC 95 with respect to this matter;
- the application of the Limitations Act 1969 (NSW) in proceedings brought pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’), including in relation to the issue of whether the Federal Magistrate, having limited the claim to allegations of discrimination from 1998 onwards, was entitled to have regard to events occurring prior to 1998.
A. The Briginshaw Standard
Summary of submission
- HREOC submits that:
- In all civil proceedings, the standard of evidence required to satisfy a decision-maker will vary depending on the nature of what is alleged, by reference to the inherent seriousness or unlikelihood and/or gravity of consequences of the allegations (see also s.140 of the Evidence Act 1995 (Cth)).
- Discrimination cases should not be approached on the assumption that a higher standard of evidence contemplated in Briginshaw automatically applies. In general, discrimination claims would not require application of a higher standard than is usual.
- To the extent that the Federal Magistrate relied upon some general principle that an allegation of racial discrimination is a serious matter and therefore requires a higher standard of evidence contemplated in Briginshaw, his Honour erred.
Relevant grounds of appeal and cross-appeal
- Grounds (1) and (2) of the Second Further Amended Cross-Appeal filed for the Cross-appellant (‘Mr Gama’), assert that the Federal Magistrate erred:
- by using the Briginshaw test when applying the balance of probability standard with respect to some of the allegations made by the Respondent under the Racial Discrimination Act 1975 (Cth) (‘RDA’) and the Disability Discrimination Act 1992 (Cth) (‘DDA’); or, alternatively,
- by applying the balance of probabilities test with regard to some allegations under the RDA “at such a high level that in the absence of direct evidence of racial discrimination” the RDA is “ineffective”.
- Ground 1 of the Appellant’s (‘Qantas’) Amended Notice of Appeal also raises issues about the drawing of inferences, which is closely connected to the Briginshaw issue.
Application of Briginshaw at first instance
- At - the Federal Magistrate sets out a discussion “about the Briginshaw standard and the drawing of inferences in order to explain the law which I have used to guide me ...” (quotation from ). At  the Federal Magistrate states that the decision of Fullagar J in Department of Health v. Arumugam  VR 319 (at 331) “established that racial discrimination is a serious matter, not to be lightly inferred”, and goes on to state that this was “approved by Heerey, Mansfield and Hely JJ in Sharma v. Legal Aid (Qld)  FCAFC 196”, seemingly referring to  thereof. His Honour appeared to be guided by an apparent statement of principle in Arumugam that allegations of racial discrimination are inherently ‘serious’ in the Briginshaw sense: see at .
The principle in Briginshaw
- In Briginshaw v Briginshaw (1938) 60 CLR 336, 361-2, Dixon J stated:
“… Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
- The issue cannot be approached in a categorical manner. As Dixon J stated, there is no third, intermediate standard of proof. Rather, the standard of evidence required to satisfy a decision-maker on the balance of probabilities is variable, depending on the kinds of factors outlined in Briginshaw. This approach is now reflected in section 140 of the Evidence Act 1995 (Cth); note CEEEIPPAS Union of Australia v. ACCC  FCAFC 132 at .
- In essence, the “Briginshaw test” always applies with respect to what will constitute reasonable satisfaction. In some cases it will require firmer evidence depending on the relevant factors, with the necessary strength of the evidence to achieve a reasonable satisfaction varying depending on the circumstances of the particular case: see further Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-50 (HC).
- The “need to proceed with caution” is established if there is an allegation of fraud or of criminal or moral wrongdoing (such as the allegation of adultery by a married woman at issue in the context of Briginshaw): G v. H (1994) 181 CLR 387 at 399-400. However, it would be incorrect to equate these types of allegations with allegations of discrimination.
Application of Briginshaw in discrimination proceedings
Seriousness and gravity of consequences
- The seriousness of the allegation made, along with the gravity of the consequences flowing from a particular finding, are relevant factors in assessing whether a higher standard of evidence contemplated in Briginshaw should apply.
- In discrimination claims, it is now clear that an applicant need not establish that a respondent acted with a discriminatory motive or intent: note Waters v Public Transport Corporation (1993) 173 CLR 349 at 359 per Mason CJ and Gaudron J; Purvis v. NSW (2003) 217 CLR 92 at , , cf ; Baird v Queensland (2006) 156 FCR 451 at . This diminishes the gravity of any such finding: Victoria v. Macedonian Teachers’ Association of Victoria Inc. (1999) 91 FCR 47 at  (FFC).
- Further, in many cases the allegation will be made against a body corporate or an employer said to be liable for the conduct of employees or agents pursuant to provisions such as s.18 of the RDA and s.123 of the DDA. That fact reduces the significance of any finding of discriminatory behaviour by such a defendant. That is particularly true for a large company such as Qantas.
- No doubt there may still be reputational consequences from a finding of discriminatory conduct. Yet it is difficult to see that those consequences would in general be more severe than a finding that a person has engaged in misleading conduct, provided a medical procedure negligently, unfairly dismissed an employee, made use of another’s copyright for profit, or produced a product which has caused injury to consumers. Certainly, a finding of discrimination would not have the personal consequences that arose in relation to the adultery allegation in the legal and social context in which Briginshaw was decided: cf G v. H (1994) 181 CLR at 399-400; see, eg, Dutt v Central Coast Area Health Service  NSWADT 133, -.
- A further relevant factor identified by Dixon J in Briginshaw is the inherent unlikelihood of the alleged occurrence. For example, in cases alleging fraud or criminal wrongdoing, this factor manifests a “conventional perception that members of our society do not ordinarily engage in” such conduct: cf Neat Holdings (1992) 110 ALR at 450.
- One does not need to make sweeping generalisations about Australian society to suggest that it is not entirely unlikely that a person has been the subject of discrimination because of their race, sex, disability or other such characteristic. It may be hoped that such discrimination is decreasing, not least because of beneficial statutes such as those in question here. Yet common experience of schoolyards or sportsgrounds confirms that such discriminatory behaviour and conduct is not so rare as to suggest that weighty evidence is required to overcome the unlikelihood of such behaviour occurring.
Nature of the cause of action
- More broadly, the nature of the cause of action must also be taken into account in considering the proper application of Briginshaw in a particular context. For a statutory cause of action, that analysis must take account of the statutory subject, scope and purpose, just as the High Court has recently indicated must take place in relation to notions of causation when considered with respect to a statutory cause of action: cf Allianz Australia Insurance Ltd v. GSF Australia Pty Ltd (2005) 221 CLR 568 at - and -; Travel Compensation Fund v. Tamboree (2005) 224 CLR 627 at -, -, - and -. Thus, for example, the assessment of causation for the purposes of a s.82 claim under the Trade Practices Act should take account of the beneficial objects of that Act: note Henville v. Walker (2001) 206 CLR 459 at  per McHugh J; see also s.15AA, Acts Interpretation Act 1901 (Cth).
- The objects of the DDA are undoubtedly remedial and beneficial: see s.3. Similarly, the preamble to the RDA notes that the Parliament has deemed it desirable to make provision for giving effect to the International Convention on the Elimination of all Forms of Racial Discrimination. The RDA “should be interpreted broadly and beneficially in accordance with the fundamental purposes of the Convention”: Baird v Queensland (2006) 156 FCR 451 at ; see also Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 (Mason CJ and Gaudron J); IW v City of Perth (1997) 191 CLR 1 at 15 (Brennan CJ and McHugh J), 22-23 (Gaudron J), 27 (Toohey J), 39 (Gummow J), 58 (Kirby J).
- It would tend to defeat the beneficial purposes of these Acts to treat discrimination claims as automatically requiring a higher standard of evidence contemplated in Briginshaw. In effect, this would significantly limit the ability of claimants to establish a cause of action, in circumstances where Parliament has provided that cause of action to remedy the identified mischief.
The Arumugam approach should not be followed
- In Arumugam  VR 319, at 330-1, Fullagar J was not seeking to establish a general principle that all findings of racial discrimination are not lightly to be inferred. Rather, his analysis was directed to the particular facts of the case. A categorical approach would be inconsistent with Briginshaw.
- Further, Fullagar J’s consideration of the issue was at a time when discrimination claims were taken to require a discriminatory intent or motive. It is now established that such is not required for the types of discrimination claims at issue here.
- It is incorrect to suggest (as the Federal Magistrate did at ) that the Full Court in Sharma approved any such general principle. As the Court noted at , it was common ground at first instance that “the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw”. The reference to Arumugam in the following sentence appears to reflect the same common position, given that the Court went on to say: “No contrary argument was put on the hearing of the appeal ...”.
- For these reasons, along with the reasons set out above, this aspect of the Arumugam decision does not offer appropriate guidance with respect to the application of Briginshaw to discrimination claims.
Application to Gama
- Insofar as the Federal Magistrate approached the task at hand by reference to a principle “that racial discrimination is a serious matter, not to be lightly inferred” (see judgment at ) then his Honour erred. Such an approach incorrectly assumes that a higher standard of evidence contemplated in Briginshaw automatically applies in discrimination proceedings. Discrimination proceedings should be assessed on a case-by-case basis, taking into account the seriousness, gravity and unlikelihood of the matters alleged, as is the usual approach in other types of civil claims: Macedonian Teachers’ at . In general, there is no basis for suggesting that a higher than normal standard of evidence is required. See further, generally: De Plevitz, “The Briginshaw ‘standard of proof’ in anti-discrimination law” (2003) 27 Melbourne University Law Review 308; Hunyor, “Skin-Deep: Proof and Inferences of Racial Discrimination in Employment” (2003) 25 Sydney Law Review 535.
B. The Drawing of Inferences
Summary of submission
- HREOC submits that:
- In discrimination cases, inferences may play a more important role than usual. It would be inappropriate to adopt an overly strict approach to drawing of inferences in such cases.
- A respondent is in a special position to explain the reasons behind impugned discriminatory conduct. Where an inference is drawn from a failure of a respondent to explain such reasons, this does not reverse the onus of proof.
Relevant grounds of appeal
- Ground (1) of Qantas’s Amended Notice of Appeal asserts that “The Federal Magistrate erred in finding a contravention of section 9(1) of the Racial Discrimination Act 1975 (Cth) by drawing inferences from the facts as found”. Six particulars of this alleged error are then set out. The first of these particulars, (a), will be addressed further below (under the heading “Application of Limitation Periods”). The remaining five particulars addressed different aspects of inferences said to have been drawn by the Federal Magistrate.
Drawing of inferences
- As Brennan and McHugh JJ stated in G v. H (1994) 181 CLR 387 at 390, “the drawing of an inference is part of the process of fact finding”, and it is “an exercise of the ordinary powers of human reason in the light of human experience”. The point is as true with respect to discrimination claims as for any other type of fact finding by Courts. So much was correctly recognised by the Federal Magistrate: at -.
- Indeed, there may be greater reason to rely on inferences in this area of law than in others. As the Full Court stated in Sharma  FCAFC 196 at , “It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found”. The Court cited in support of that proposition the decision of the House of Lords in Glasgow City Council v. Zafar  2 All ER 953 at 958; reference was also made to Nagarajan v London Regional Transport  3 WLR 425 at 433. Lord Browne Wilkinson stated in Zafar, with respect to claims under the Race Relations Act 1976 and the Sex Discrimination Act 1975, that such claims “present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them”. His Lordship went on to quote guidance given in an earlier judgment as to drawing inferences of fact in this context, which passage warrants review.
- In this legal context, the Federal Magistrate was entitled to be guided by such human experience and reasonable expectations in engaging in the process of fact finding: cf particular (e) to ground (1) of the Amended Notice of Appeal. This point may also address particular (b) although it is not entirely clear what Qantas is referring to there.
Appeal ground 1(d): Absence of a satisfactory denial
- Particular (d) of ground (1) suggests that the Federal Magistrate erred by finding that the alleged race discrimination could be proved by the absence of a satisfactory denial by Qantas’s witnesses, thereby reversing the onus of proof.
- One of the particular difficulties of establishing discrimination is the necessity to show some nexus between the conduct in question and the impermissible discrimination. Under s.5(1) of the DDA, for example, it is necessary for the aggrieved person to show that the discriminator discriminated on the ground of a disability by doing relevant acts because of the aggrieved person’s disability. Similarly, s.9(1) of the RDA makes it unlawful for a person to do any act involving a distinction (etc) based on race which has certain relevant purposes or effects. These requirements go to the reason that the relevant conduct was undertaken.
- The alleged discriminator is in a special position with regards to explaining why particular conduct was undertaken. That is not to suggest that an alleged discriminator’s explanation is definitive or that drawing fine distinctions “between motive, purpose or effect will greatly assist the resolution of any problem about whether a treatment occurred or was proposed ‘because of’ disability”: Purvis v. NSW (2003) 217 CLR 92 at  per Gummow, Hayne and Heydon JJ. Nevertheless, “motive, purpose, effect may all bear on” the central question of why the aggrieved person was treated as he or she was: Ibid; see further  per Callinan J,  per McHugh and Kirby JJ (in dissent).
- In Weissensteiner v. The Queen (1993) 178 CLR 217, at 227, Mason CJ, Deane and Dawson JJ stated:
“it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, will explain or contradict the evidence against that party, the court may more readily accept that evidence.”
- The principle in Jones v. Dunkel (1959) 101 CLR 298 is a manifestation of this concept. In G v. H (1994) 181 CLR at 391, Brennan and McHugh JJ indicated that in a context where an issue was difficult to prove, but could be resolved by evidence from the other party which evidence has not been given, then “a slight preponderance of evidence” may be sufficient to establish the relevant issue. Taking this approach does not reverse the onus of proof, as positive persuasion still is required.
- HREOC submits that the alleged errors complained of in ground (1) of the Amended Notice of Appeal should be understood in this context.
C. The Forbes Decision
Summary of submission
- HREOC submits that:
- The decision in Forbes turned on the Court’s finding that alleged discriminatory decision was not based on the applicant’s disability but on a genuine belief that she did not have a disability.
- The facts and reasoning in Forbes are distinguishable here.
Relevant grounds of appeal
- In ground 4(c) of the Amended Notice of Appeal, Qantas asserts that the Federal Magistrate erred by failing to follow Forbes v. Australian Federal Police  FCAFC 95. The complaint appears to refer to the analysis of his Honour found at  of the judgment. His Honour there referred to a remark said to be detailed at  and discussed at -. In fact, it appears that the Court was referring to the remark identified at  and discussed at -.
- In Forbes the complainant was a former police officer with the Australian Federal Police (‘AFP’) who complained that she had been discriminated against on the ground of disability, namely a depressive illness. The Federal Magistrates Court had found that the AFP had discriminated against the complainant by withholding information about her medical condition from the AFP Review Panel in relation to an issue of her possible re-employment.
- The Full Federal Court overturned the finding of discrimination at first instance on the basis that the decision not to divulge details of the complainant’s medical condition to the Panel was not because of her disability. That was because the Federal Magistrate himself had “specifically found that AFP management made the decision not to give the Panel more detailed information about the Appellant’s medical condition because the information was thought to be irrelevant”: at . As the Court stated at , “In short the AFP acted as it did not because of the Appellant’s disability, but for other reasons”. At , the Court referred to “the AFP’s genuine belief that the Appellant, despite her claims to have suffered from a serious illness, did not have in fact have such an illness”. The Court indicated that whilst that belief “was in fact mistaken”, it explained the decision to regard the information about the medical condition as irrelevant to the question of her re-employment.
Causation in disability discrimination claims
- As noted above, to establish such disability discrimination claims, it is necessary to show that the relevant treatment occurred “because of the aggrieved person’s disability”: see s.5(1) of the DDA. In general, that is likely to require that the discriminator has knowledge of the disability in question such that they can be said to have discriminated because of that disability. If the alleged discriminator establishes that he/she genuinely did not know of or believe that there was a relevant disability then, at least in the ordinary case, it would likely not be possible to establish that discrimination had occurred because of the disability.
- Of course, for the sorts of reasons outlined above in discussing inferences, any such claimed disbelief in the disability being real or genuine would appropriately be viewed with a somewhat wary eye. Account would need to be taken, for example, of possible subconscious feelings or motivations. That is particularly so where there were not reasonable and objective grounds for the respondent to have disbelieved the applicant’s disability, and even more so where there were reasonable and objective grounds to support that disability.
Forbes is distinguishable
- In any event, the Forbes decision was not on point here. The Federal Magistrate indicated at  of the judgment that he regarded the impugned words not as indicating that the relevant person (Mr Hulskamp) did not believe that Mr Gama had a disability, but rather “to be a sarcastic reference to the fact that he had disabilities and made claims for them under Workers Compensation”. Later in the same paragraph His Honour referred to one of Mr Hulskamp’s particular concerns being that “Mr Gama was ‘double dipping’, in other words, claiming Workers Compensation for a non-work related injury, such as an inguinal hernia”.
- This analysis also has to be seen in the context of what His Honour stated at  of the judgment about certain remarks made by Mr Hulskamp in relation to this issue (it is not entirely clear if these remarks were made on the same or a different occasion). Those remarks indicate that Mr Hulskamp considered that Mr Gama was double dipping by claiming both Workers Compensation and sick leave. And, perhaps, that the sicknesses were not ones which should be covered by the workers compensation system in any event. However, his honour’s reasons do not indicate that he accepted that Mr Hulskamp genuinely disbelieved Mr Gama’s disability, or that there was a reasonable and objective basis for Mr Hulskamp to have held such disbelief.
- In this context, the case is not analogous to Forbes because the premise of the remarks was not a genuine belief that there was no disability.
D. Application of Limitation Periods
Summary of submission
- HREOC submits that:
- The Federal Magistrate was entitled to take into consideration events prior to 1998 in considering the post-1998 claims of discrimination.
- The Limitations Act 1969 (NSW) does not apply to proceedings brought under s.46PO(1) of the HREOC Act. Even if that Act did apply, the time would not commence to run until HREOC has terminated an applicant’s complaint.
Grounds of appeal
- In ground (1)(a) of the Amended Notice of Appeal, Qantas suggests that the Federal Magistrate erred by relying on evidence of alleged events prior to 1998 to prove alleged contraventions of the RDA in 1998 and 1999 in circumstances where he had determined that the temporal scope of the claim was limited to the period 1998 to October 2002: see Gama v. Qantas (No 1)  FMCA 11.
Federal Magistrate was entitled to have regard to pre-1998 events
- In that earlier judgment, the Federal Magistrate recorded that counsel for Qantas had conceded “that the history of Mr Gama’s employment with Qantas may have some historical relevance”, and his Honour went on to “agree that events that might have occurred pre-1998 could put the post-1998 events into context”: at  (see also  of the second judgment).
- Having decided that the claim was limited to allegations of discrimination from 1998 onwards, his Honour’s approach to the pre-1998 events was correct. It is a commonplace that earlier events may throw light on later events, which later events are the subject of the claim.
- Section 46PO(3) of the HREOC Act provides that the unlawful discrimination which is the subject of the claim must be the same in substance as the unlawful discrimination that was the subject of the terminated complaint, or must arise out of substantially the same acts (etc) that were the subject of the terminated complaint. That restriction goes to the nature of the cause of action and not to the nature of evidence which may be invoked to prove that cause of action. As Katz J stated in Charles v. Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at , s.46PO(3) “is only incidentally concerned with those allegations of fact which can be made in an application under s.46PO(1)” of the Act.
- No high degree of exactitude should be required of applications to HREOC. Section 46PO(3) manifests the policy of the Act “of ensuring there exists an opportunity for the attempted conciliation of complaints before they are litigated”: Charles at . As Lehane J stated in Travers v. NSW  FCA 1565 at , “it must be recognised that the terms of section 46PO(3) suggests a degree of flexibility ... and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading”.
Application of Limitations Act 1969 (NSW)
- HREOC understands that an application may be made by Mr Gama to challenge the decision of the Federal Magistrate in his first decision, dated 16 January 2006, in which certain claims of unlawful discrimination prior to 1998 were struck out. One aspect of that decision was a finding that s.14(1)(b) of the Limitation Act 1969 (NSW) applied to these claims pursuant to s.79 of the Judiciary Act 1903 (Cth). In case leave is granted, the following brief points may be made in this respect.
- First, the Federal Magistrate was in error to apply s.14(1)(b) because the claim made pursuant to s.46PO of the HREOC Act was not a cause of action founded tort. It was not a tortious claim for breach of statutory duty. Rather, it was a claim pursuant to a statutory cause of action created by s.46PO in terms.
- If any provision of the Limitation Act of NSW applied it would be s.14(1)(d). Such a suggestion would, however, face certain difficulties. It is not clear that such provisions apply to statutory damages or compensation claims of the kind at issue here: cf Ardeshirian v. Robe River Iron Associates (1993) 43 FCR 475 at 486-7.
- In any event, s.79 of the Judiciary Act only picks up the laws of the States “in all cases to which they are applicable” and “except as otherwise provided by the Constitution or the laws of the Commonwealth”. Section 46PO(2) provides for its own limitation period in relation to claims, namely an application must be made within 28 days after the date of issue of HREOC’s termination of the complaint pursuant to s.46PH(2), or within such further time as the Court concerned allows. Further, pursuant to s.46PH(1)(b), the President may terminate a complaint made to HREOC on the grounds that “the complaint was lodged more than 12 months after the alleged unlawful discrimination took place”.
- The Federal Parliament has thus addressed the issue of time limitations, choosing to do so in limited terms. In this context, there is no room for application of some other limitation period derived from a State Act.
- Moreover, even if s.14(1)(d) did apply, time would begin to run from the date of termination of the complaint by the President pursuant to s.46PH of the HREOC Act. It is only at that time that the cause of action “first accrues to the plaintiff” because that is a necessary precondition of being able to pursue the cause of action created by s.46PO: Baird v State of Queensland (2005) 146 FCR 571, - per Dowsett J (his Honour’s substantive decision was overturned on appeal, but not in relation to this point: (2006) 156 FCR 451); see also, generally, Wardley Australia Limited & Anor v State of Western Australia (1992) 175 CLR 514.
- Of course, this does not provide an applicant with a limitless freedom to litigate old matters. The court retains its power to permanently stay proceedings where a significant lapse of time so requires: see, eg, Douglas v State of Queensland (No 2)  FCA 1288; Batistatos v RTA (NSW) (2006) 226 CLR 256.
6 September 2007
J K Kirk
Counsel for HREOC