Review of the Federal Unlawful Discrimination Jurisdiction

Change and Continuity:

September 2000 - September 2002

© Commonwealth of Australia 2003.

Copying is permissible with acknowledgment of the authorship of the Human Rights and Equal Opportunity Commission, Sydney, February, 2003.

Table of Contents iii

Table of Contents

Table of Contents i

Executive Summary 1

Chapter 1 Background 3

1.1 Introduction 3

1.2 Background to Legislative Change 3

1.3 Features of the New Jurisdiction 5

1.4 Background to this Review 7

1.5 Objectives of the Review 8

1.6 Methodology 9

Chapter 2 Jurisprudential Trends 10

2.1 Introduction 10

2.2 Racial Discrimination 11

(A) Grounds of Discrimination: Race, Colour, Descent or National or Ethnic
Origin 11

(B) The Requirement for Intention or Motive 14

(D) Proof of Discrimination – Racism and Reliance upon Inferences 19

(E) Section 18C: Racial Hatred 21

(F) Human Rights and Fundamental Freedoms 29

i. The Law under the HREOC Hearing Function 29

(A) Rights to Equality before the Law – s10 of the RDA. 32

(B) Special Measures – s8(1) of the RDA. 33

(D) Using Civil Proceedings to Challenge a Criminal Conviction 33

(E) Material in Correspondence Failing to show Unlawful Discrimination 34

(A) Damages Awards under the HREOC Hearing Function 34

(B) Damages Awards under the FMS and Federal Court 34

2.3 Sex Discrimination 36

(A) The Relationship between Sex Discrimination and Sexual Harassment 36

(B) Sexual Harassment 38

(D) Part Time Work and Indirect Discrimination on the Ground of Sex (ss5(2) and 7B of the SDA) 45

(E) Maternity Leave – Direct Discrimination on the Basis of a Characteristic that Appertains generally to Sex and Pregnancy (ss5(1)(b) and 7(1)(b) SDA) 46

(F) Marital Status Discrimination (s6 of the SDA) 49

(G) Vicarious Liability – Defence of Taking ‘All Reasonable Steps’ 49

(H) The Meaning of the Word ‘Permits’ in s105 of the SDA 53

(A) Meaning of ‘Services’ 54

(B) Section 42 of the SDA 55

(D) Presumptions in Discrimination Proceedings 56

(E) Unilateral Change of Full Time to Part Time Employment Constitutes Dismissal 57

(A) Damages Awards under the HREOC Hearing Function 57

(B) Damages Awards under the FMS and Federal Court 59

2.4. Disability Discrimination 65

(A) Knowledge of a Disability 65

(B) Manifestation of Disability 67

(D) The Concept of ‘Reasonable Accommodation’ 74

(E) Assistance Animals 78

(F) Jurisdiction 79

(A) Intention to Discriminate 81

(B) The Nexus between the Disability and the ‘Less Favourable Treatment’ 82

(D) Retrospectivity of the DDA 83

(E) Employment 83

(F) Education - Indirect Discrimination 85

(G) Access to Premises 86

(H) Provision of Goods, Services and Facilities 87

(I) Exemptions to the DDA 88

(A) Damages Awards under the HREOC Hearing Function 89

(B) Damages Awards under the Federal Court 90

2.5 Conclusion 93

Chapter 3 Other Applications, Procedural and Evidentiary Matters 94

3.1 Applications for Interim Injunctions 94

3.2 Applications for Summary Dismissal 97

(A) Rationale underlying the Exercise of the Power 98

(B) Exercise ‘Exceptional Caution’ 98

(D) Examples of Matters where the Power has been Exercised 99

3.3 Applications for Extension of Time 99

3.4 Application for Suppression Order 103

3.5 Scope of Applications under s46PO of the HREOC Act to the FMS and Federal Court 103

3.7 Inter-Relationship between the FMS and the Federal Court 107

3.8 Relevance of Other Complaints to HREOC 107

3.8.1 ‘Repeat Complaints’ to HREOC 107

3.9 Procedural Matters 108

Chapter 4 Costs Awards in the FMS and Federal Court 111

4.1 Introduction 111

4.2 Background 111

4.3 Summary of Statistics Regarding Costs Awards 113

4.4 Analysis of Approach of the FMS and Federal Court on the Issue of Costs 115

(A) Relevance of Nature of the Jurisdiction 115

(B) Factors Considered in Exercising Discretion as to Costs Orders 117

(D) Costs Order Sought in relation to Subpoena 123

(A) Relevance of the Nature of the Jurisdiction 123

(B) Other Matters Relevant to the Issue of Costs Discussed by the Federal Court 125

4.5 Summary and Conclusion 127

Appendix A Statistics Regarding Costs Awards 129

1. Decisions in the FMS 129

Table A: Substantive decisions of the FMS 130

Table B: Applications for Summary Dismissal of the FMS 132

2. Decisions in the Federal Court 133

2.1.1 Substantive Decisions 134

Table C: Substantive Decisions of the Federal Court at First Instance 135

2.1.2 Applications for Summary Dismissal 135

Table D: Decisions on applications for summary dismissal of the Federal Court of Australia at first instance 135

2.1.3 Applications for Extension of Time 135

2.1.4 Interim Injunctions 136

2.1.5 Other Procedural Matters 136

2.2.1 Substantive Decisions 136

2.2.2 Appeal of Summary Dismissal 137

2.2.3 Applications for Extensions of Time 137

2.4.1 Substantive Decisions 137

Table E: Substantive Decisions of the Federal Court 138

2.4.2 Non-Substantive Decisions 138

Table F: Non-Substantive Decisions of the Federal Court 138

2.4.3 All Decisions 138

Executive Summary 1

Executive Summary

On 13 April 2000, the function for the hearing of complaints of unlawful discrimination under the Racial Discrimination Act 1975 (Cth) (RDA), Sex Discrimination Act 1984 (Cth) (SDA) and the Disability Discrimination Act 1992 (Cth) (DDA) was, after 14 years of operation, removed from the Human Rights and Equal Opportunity Commission (HREOC) and vested in the Federal Court and the Federal Magistrates Service (FMS). This change to the administration of federal unlawful discrimination law was met with some trepidation by the sections of the community that feared that the development of jurisprudence in the area would be compromised by a more legalistic approach by the judiciary and that the capacity of the FMS and the Federal Court to make costs orders would result in applicants being burdened, as a matter of course, with the costs of the respondent if their proceedings were not successful.

After those legislative changes, HREOC remained the federal body responsible for the administration of complaints of unlawful discrimination and also continued to exercise other functions relevant to the development of the jurisdiction, such as the function of undertaking research for the purposes of promoting the objects of RDA, SDA and DDA. In that context, HREOC undertook to review the operation of the new jurisdiction for a two year period from the date of the first decision being handed down (being 13 September 2000 to 13 September 2002) so as to:

· assess the nature of the jurisprudence that was emerging from the FMS and the Federal Court in respect of unlawful discrimination law;

· enable it to more fully consider concerns that the transfer of the jurisdiction would result in the law being interpreted in a more ‘conservative’ fashion than it was by HREOC;

· consider the manner in which interlocutory applications, procedural and evidentiary matters were being dealt with by the FMS and the Federal Court; and

· analyse statistically the costs orders that were being made by the FMS and the Federal Court and the principles that were being applied in the making of such orders.

In summary, the review makes the following conclusions:

· to the extent that it is possible to comment on jurisprudential trends after only two years, the interpretation and development of the law under the RDA and SDA by the Federal Court and FMS was largely consistent with the principles that had been developed by HREOC and the courts that reviewed its decisions during the duration of its jurisdiction;

· some principles under the DDA have been interpreted by the FMS and the Federal Court in a more restrictive manner since the jurisdiction was transferred. However, that more restrictive approach has taken place in the context of the administrative law review of a decision of HREOC. The matter in which HREOC’s decision was challenged (which is now awaiting hearing by the High Court on 29 April 2003) would have proceeded whether HREOC did or did not retain its hearing function. In those circumstances, it is not necessarily correct to attribute any narrowing of the relevant principles under the DDA to the transfer of jurisdiction to the FMS and Federal Court. If a restrictive approach is ultimately favoured by the
High Court then it may be that the appropriate response is legislative amendment of the DDA rather than directing criticism at the FMS and Federal Court; and

· where an applicant was unsuccessful in proceedings substantively relating to an application arising out of a complaint of unlawful discrimination, the FMS and the Federal Court did not order, as a matter of course, that the unsuccessful applicant pay the costs of the respondent. The FMS did so in 64% of decisions made during the review period and the Federal Court did so in 50% of decisions.

Chapter 1: Background 9

Chapter 1
Background

1.1 Introduction

This is a review of the unlawful discrimination jurisdiction of the FMS[1] and Federal Court for the period 13 September 2000 (the date of the first decision under the jurisdiction) to 13 September 2002 (the review period). In particular, the review focuses on the jurisprudential development of the law of unlawful discrimination during this time as well as the manner in which costs orders have been made in the jurisdiction during that period.

So as to understand the purpose of this paper, it is necessary to appreciate the changes in the administration of federal unlawful discrimination legislation over the last decade.

1.2 Background to Legislative Change

1.2.1 The Scheme Prior to 1995

The federal unlawful discrimination regime administered by HREOC under
the RDA, SDA and DDA from the period 1992 to 1995 consisted of the following features:

· the Race Discrimination Commissioner, Sex Discrimination Commissioner and Disability Discrimination Commissioner investigated and attempted to conciliate complaints of unlawful discrimination under the RDA, SDA
and DDA;

· where the relevant Commissioner determined that the investigation into the complaint would not continue because, for example, the alleged act the subject of the complaint was not unlawful, the complaint was out of time or lacking in substance, the complainant could request an internal review by the President of the Commissioner’s decision and;

· where the complaint was not conciliable and the Commissioner was of the view that it should be referred for a hearing, the hearing was conducted by HREOC and the complaint either dismissed or substantiated.

The need for reform of federal unlawful discrimination legislation in Australia resulted from the High Court decision of Brandy v HREOC[2]. The High Court considered the operation of provisions of the RDA[3] that required HREOC, upon completion of a hearing of a complaint, to register with the Federal Court registry, the determination made by it in relation to a substantiated complaint. Upon registration, the determination was to have effect as if it were an order of the Federal Court. The High Court held that the provisions were unconstitutional as their effect was to vest judicial power in HREOC contrary to Chapter III of
the Constitution.

1.2.2 Legislative Reform

The Government responded to the decision of Brandy v HREOC[4] by introducing the Human Rights Legislation Amendment Act 1995 (Cth) which repealed the registration and enforcement provisions of the RDA, SDA and DDA and provided that if a complainant sought to enforce a determination of HREOC then the complaint would need to be the subject of a hearing de novo by the Federal Court and an order in the complainant’s favour which could then
be enforced.

The obvious disadvantage of this regime was that a complainant could pursue his or her complaint through a hearing before HREOC (and possibly incur legal fees in doing so), have the complaint substantiated and a determination made in his or her favour, only to have to re-run the proceedings before the
Federal Court in the event that the respondent did not comply with
HREOC’s determination.

The Human Rights Legislation Amendment Bill 1996 (HRLA Bill) was the Government’s ultimate response to the situation created by Brandy v HREOC.[5] The HRLA Bill and its subsequent manifestations,[6] proposed to amend provisions of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), RDA, SDA and DDA so as to implement the following significant changes to the functions of HREOC and the federal unlawful discrimination regime:

· the complaint handling provisions in the RDA, SDA and DDA were repealed and replaced with a uniform scheme in the HREOC Act;

· responsibility for the investigation and conciliation of complaints was removed from the Race Discrimination Commissioner, Sex Discrimination Commissioner and Disability Discrimination Commissioner and vested in the President;

· the right to an internal review by the President of matters terminated by reason of, for example, being out of time or lacking in substance,
was removed;

· HREOC’s hearing function into complaints of unlawful discrimination under the RDA, SDA and DDA was repealed and provision made for complainants to commence proceedings in relation to their complaint before the Federal Court[7] in the event that it was not conciliated when before HREOC for investigation;

· the Race Discrimination Commissioner, Sex Discrimination Commissioner, Disability Discrimination Commissioner, Human Rights Commissioner and Aboriginal and Torres Strait Islander Social Justice Commissioner were given an amicus curiae function in relation to proceedings arising out of a complaint before the Federal Court or the FMS.

1.3 Features of the New Jurisdiction

There were features of the new unlawful discrimination jurisdiction in the Federal Court that departed significantly from the jurisdiction exercised by HREOC.[8] In particular, there was no provision in the HRLA Bill to prevent costs orders being made in relation to unlawful discrimination proceedings (no such orders could be made by HREOC). Furthermore, while the HRLA Bill provided that the Federal Court would not be ‘bound by technicalities or legal forms’, the rules of evidence would still apply whereas they had not before HREOC. This feature tied in with a more generalised interest of practitioners, advocacy groups and HREOC itself as to how unlawful discrimination jurisprudence would develop in the Federal Court once the jurisdiction was transferred from the specialist tribunal at HREOC.