Barbaro, Paul v The Human Rights and Equal Opportunity Commission

[1998] FCA 1543

FEDERAL COURT OF AUSTRALIA

Administrative Law – Judicial Review – decision by President of HREOC to confirm decision of Race Discrimination Commissioner not to continue to inquire into allegations of racial discrimination – summary dismissal of application for judicial review – whether the application for judicial review had any reasonable prospect of success – whether the application disclosed any arguable error of law by the President.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Racial Discrimination Act 1975 (Cth), s 24AA
Liquor Licensing Act 1985 (SA), s 139
Liquor Licensing Act 1997 (SA), s 137

General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125

Matter No SG69 OF 1998

PAUL BARBARO v THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and THE STATE OF SOUTH AUSTRALIA

BLACK CJ, VON DOUSSA & MANSFIELD JJ
ADELAIDE
25 NOVEMBER 1998

IN THE FULL COURT OF THE FEDERAL

COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG69  of   1998

BETWEEN:

PAUL BARBARO
APPELLANT

AND:

THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

THE STATE OF SOUTH AUSTRALIA
SECOND RESPONDENT

JUDGES:

BLACK CJ, VON DOUSSA & MANSFIELD JJ

DATE OF ORDER:

25 NOVEMBER 1998

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FULL COURT OF THE FEDERAL

COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

 SG69 of 1998

BETWEEN:

PAUL BARBARO
APPELLANT

AND:

THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

THE STATE OF SOUTH AUSTRALIA
SECOND RESPONDENT

JUDGES:	BLACK CJ, VON DOUSSA & MANSFIELD JJ
DATE:	25 NOVEMBER 1998
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

This is an appeal against an order made by Justice O’Loughlin summarily dismissing an application made by the appellant, Paul Barbaro, for judicial review of a decision made by the President of the Human Rights and Equal Opportunity Commission (“HREOC”), Sir Ronald Wilson, on 21 March 1995. The President’s decision, which was made under s 24AA(2)(b)(i) of the Racial Discrimination Act 1975 (Cth) (“the Act”), confirmed an earlier decision of the Race Discrimination Commissioner made under s 24(2)(d) of the Act not to continue to inquire into the allegations made by Mr Barbaro.

Mr Barbaro had complained to HREOC that the South Australian Liquor Licensing Commissioner (“LLC”) had discriminated against him in relation to his employment at the Adelaide Casino on the ground of his race or ethnic origin.  In particular, he alleged that on those grounds the LLC had decided, on 7 May 1987, not to reinstate his approval to be employed at the Adelaide Casino. 

Mr Barbaro had been temporarily employed by the operator of the Adelaide Casino on 23 June 1986.  On 16 April 1987 he was advised by letter from the LLC that certain matters had come to the LLC’s attention that were so serious that the LLC considered he must withdraw Mr Barbaro’s temporary employment approval pending further inquiry into those matters.

The LLC conducted an inquiry during which Mr Barbaro was interviewed on 30 April 1987.  At that interview matters were put by the LLC to Mr Barbaro concerning the criminal conviction of a number of members of his extended family.  At the completion of his inquiry the LLC determined that he should not give approval to Mr Barbaro’s permanent employment at the Adelaide Casino.

Information revealed at that inquiry, and other information subsequently gathered by the Race Discrimination Commissioner, disclosed that the LLC had received a report from the Commissioner of Police which, in part stated:

“Paul BARBARO has no convictions in this State.

He is a member of a broad family group which, in my opinion can only be described as a major organised crime group.  This conclusion has been reached as follows:

Eighteen members of the group have been convicted of major drug offences.

Each of those persons’ convictions relate to commercial production, possession or sale of indian hemp.

The offences are spread across four States of Australia.

All are of Italian extraction.

All are related by marriage or direct blood lines.

Ten of the eighteen were convicted of offences with other members of the group…”

The substance of Mr Barbaro’s complaint to HREOC, made some six years later in September 1993, was that his temporary employment was terminated because he and his broad family group were of Italian extraction.

The Race Discrimination Commissioner commenced an investigation and obtained a report from the Chief Executive Officer of the South Australian Attorney-General’s Department concerning the circumstances of the withdrawal of the approval of Mr Barbaro’s employment at the Casino.  The Chief Executive Officer explained the background to the LLC’s decision.  By letter dated 30 November 1994 the Race Discrimination Commissioner wrote to Mr Barbaro saying in part:

“It would appear that it was your perceived association or actual relationships with people who have criminal records, rather than your Calabrian ethnic origin, which was the basis for the decision of the LLC.  The fact that you and your family members are of Italian national origin or descent is not germane.  It could not be argued that people of Italian national origin or descent are unable to comply with the assessment of the LLC given that his assessment was based on your relationships with people who have criminal records. …

In the absence of any evidence that your race, national or ethnic origin was the basis for any alleged discrimination in relation to your employment, I have decided not to continue to inquire into your complaint on the basis that it is lacking in substance.”

By letter dated 7 December 1994 Mr Barbaro sought a review of the Race Discrimination Commissioner’s decision by the President. On 21 March 1995 the President confirmed the Commissioner’s decision not to continue to inquire into the complaint on the basis that it was lacking substance. The President, as he was required to do under ss 24AA(4) and (5) of the Act, gave reasons for his decision in which he said:

“…

6.In my opinion, not only is there no evidence that the ethnic origin of the Complainant or his relatives and associates was the dominant reason for the conduct of the Respondent but there is no evidence that the ethnic origin of the Complainant his relatives or associates constituted any reason at all for the conduct.

7.There is no evidence that the Respondent has impaired the Complainant’s enjoyment of human rights by reason of the Complainant’s ethnic origin.”

On 19 August 1997 Mr Barbaro filed the application for an order for judicial review, and sought an extension of time within which to bring the proceedings.  The application states that the grounds of the application are:

“1.The respondent erred in not finding that the conduct complaint(sic) of by the applicant was contrary to Sections 9 and 15 of the Racial Discrimination Act 1975 (Cth).

2.The respondent’s decision not only went against the evidence but also the weight of it.”

On the Court’s own motion the State of South Australia was later joined as a respondent to the application. The State was joined as it is liable under s 139(2) of the Liquor Licensing Act 1985 (SA) and s 137(2) of the Liquor Licensing Act 1997 (SA) for anything done by the LLC in good faith in the exercise or purported exercise of official powers or functions under that Act. The State then moved the Court for orders that the proceedings be summarily dismissed on the ground that they had no reasonable prospect of success. Prior to the motion being heard directions were given requiring the parties to file affidavits and submissions both in relation to the notice of motion and on the substantive issues raised by the application. The submissions and affidavits filed pursuant to those directions, together with the file of HREOC, were before the learned primary Judge on the hearing of the notice of motion for summary dismissal.

On the hearing of that motion the State of South Australia contended that the application had no prospects of success as the material before the Court disclosed no arguable error of law on the part of the President.  Further, the State adduced evidence of a release and discharge executed by Mr Barbaro on 25 March 1996 which it contended constituted a bar to the application for judicial review.  The State also contended that the application was brought so long out of time that no extension of time to bring it should be granted.

The learned primary Judge considered that an extension of time should be granted, but he concluded that the application for judicial review had no reasonable prospect of success and that in any event, any success in the Federal Court would serve no useful purpose because of the effect of the release and discharge that Mr Barbaro had executed.  His Honour ordered therefore that the application for judicial review be dismissed.

The notice of appeal challenged the conclusions of the primary judge as to the effect of the release and discharge in a number of respects. In view, however, of the firm opinion we have reached about the lack of any prospect of the challenge to the President’s decision succeeding, we do not find it necessary to reach any conclusions about the effect of the release and discharge. 

As the primary judge observed, the grounds stated in the application for judicial review failed to identify an error of law, reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth). On the hearing of this appeal the Court invited Mr Barbaro to identify any error of law upon which he sought to rely. In response he said in substance that the President should have determined that the LLC had been guilty of indirect discrimination because he required Mr Barbaro to comply with a condition that he could not fulfil, namely that he not be a member of a family with southern Italian origins. Further, he said that the President’s decision involved an error of law because the material before him established that the LLC had a policy against employing “southern Italians who have broken the law”.

It must, of course, be emphasised that the appeal before us is an appeal from an order summarily dismissing an application for judicial review. The test to be applied is a strict one designed to ensure that claims that may possibly have merit are not summarily dismissed: see General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125. It is however, clear that the primary Judge had the appropriate strict test in mind when he found that the application for judicial review had “no reasonable prospect of success”. That conclusion was reached after his Honour had reviewed the whole matter in some detail.

The grounds of appeal contend that the primary Judge failed to consider all the relevant material which supported Mr Barbaro’s case of racial discrimination.  Mr Barbaro argued that because the primary Judge had referred only to certain letters which he relied upon as evidence of racial discrimination all other material was overlooked.  In our opinion, that argument is without substance.  It does not follow that a Judge has overlooked material simply because it is not referred to.  We consider it is apparent from the reasons for judgment of the primary Judge that he considered the material which had been filed by Mr Barbaro in support of the application for review.

Having ourselves now reviewed the case, we can find no legal basis for a challenge to the conclusion reached by the President that there was “no evidence that the ethnic origin of the Complainant [Mr Barbaro] his relatives or associates constituted any reason at all” for the conduct of which Mr Barbaro complained.  That is sufficient to conclude this matter, but we mention one particular submission made by Mr Barbaro.  He contended that the President should have inferred, from a reference in the report of the Commissioner of Police to the fact that his family was of Italian extraction, that his ethnic origin was a basis for the decision not to reinstate his employment approval. 

Viewing that matter in its overall context we do not consider that the President should have drawn such an inference.  The reference appears in a comprehensive document and is descriptive of the family rather than indicative of any racially-based reason for the views expressed in the report of the Commissioner of Police.

For these reasons the appeal must be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated:             

The Appellant appeared in person
No appearance by the First Respondent
Counsel for the Second Respondent:	Dr N Manetta
Solicitor for the Second Respondent:	Crown Solicitor for the State of South Australia
Date of Hearing:	25 November 1998
Date of Judgment:	25 November 1998