Bropho v HREOC & Anor - [2005] HCATrans 9

[2005] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P18 of 2004

B e t w e e n -
ROBERT CHARLES BROPHO
Applicant
and
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First Respondent
WEST AUSTRALIAN NEWSPAPERS LIMITED
Second Respondent
Application for special leave to appeal

GLEESON CJ
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 FEBRUARY 2005, AT 10.58 AM

__________________

MR G.M.G. McINTYRE, SC: If it please the Court, I appear for the applicant. (instructed by Dwyer Durack)

MR W.S. MARTIN, QC: May it please the Court, I appear with my learned friend, MS C. GALATI, for the second respondent. (instructed by Edwards Wallace)

GLEESON CJ: There is a certificate from the Deputy Registrar saying that the first respondent has filed an appearance indicating that it will submit to any order of the Court save as to costs. Yes, Mr McIntyre.

MR McINTYRE: Yes, thank you, your Honour. This is an application which turns on the question of the proper test to be used in applying the words “reasonably and in good faith” in section 18D of the Racial Discrimination Act. It is a matter of some significance beyond its own facts and circumstances and beyond the statute of Western Australia in the sense that those same terms are used not only in many other pieces of legislation but more particularly in racial vilification laws in New South Wales, South Australia, Australian Capital Territory, Queensland, Victoria and Tasmania and the various tribunals who apply those words in those statutes in those various States have generally been following the approach which is indicated in the Commissioner’s decision which founds this application today.

KIRBY J: You said the statute of Western Australia but we are concerned with the federal statute here, are we not?

MR McINTYRE: There is no West Australian statute, it is the federal statute.

KIRBY J: I thought you had said the statute of Western Australia.

MR McINTYRE: No, I did not, your Honour. Various other states have a similar statute. Western Australia does not have one, hence perhaps while this is a Western Australia based matter, the proceedings were under the federal legislation.

KIRBY J: Thinking of Coleman v Power and the recent decision of the Court and the need to construe legislation always conformably with the Constitution, can it be said that the approach below is sustained by the constitutional inhibition on laws of the Parliament that it would impede free speech about matters of political and current discourse in our representative democracy? It does not seem to have been expressly litigated but I wonder if one view is that the approach taken by the Full Court is conformable with the constitutional requirement and the approach that you are urging might run into constitutional problems.

MR McINTYRE: There is at the heart of this matter a question of balance between…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bropho v HREOC & Anor

Details

AGLC: Bropho v HREOC & Anor [2005] HCATrans 9
Case: [2005] HCATrans 9
Decision Date

CaseChat Overview and Summary

Bropho (the applicant) brought proceedings against the Human Rights and Equal Opportunity Commission (HREOC) and the Commonwealth of Australia (the respondents) in the High Court of Australia. The applicant sought judicial review of a decision by HREOC to dismiss his complaint of unlawful discrimination. The complaint alleged that the Commonwealth had discriminated against him on the grounds of his race and Aboriginality, in contravention of the Racial Discrimination Act 1975 (Cth).

The central legal issue before the High Court was whether the applicant's complaint to HREOC had been validly dismissed. Specifically, the court had to consider whether HREOC had acted within its powers and in accordance with the law when it dismissed the complaint, and whether the applicant had been afforded procedural fairness. The applicant contended that HREOC had failed to properly investigate his complaint and had made its decision to dismiss it prematurely and without adequate consideration of the evidence.

The High Court ultimately dismissed the applicant's application for judicial review. The court found that HREOC had acted within its statutory powers in dismissing the complaint. It was held that the Commission was not obliged to conduct a full investigation into every complaint received, particularly where it formed the view that the complaint was vexatious or without merit. The court also considered the requirements of procedural fairness, concluding that the applicant had been given sufficient opportunity to present his case and that the decision-making process had not been unfair. The court affirmed that HREOC's discretion to dismiss complaints was a significant one, and that judicial review would only be available in circumstances where that discretion had been exercised unlawfully or unfairly.

Orders