Brown v Human Rights & Equal Opportunity Commission
[2000] FCA 634
•12 MAY 2000
FEDERAL COURT OF AUSTRALIA
Brown v Human Rights & Equal Opportunity Commission [2000] FCA 634
ADMINISTRATIVE LAW – review of decision of a single Judge of the Court affirming decision of the Human Rights and Equal Opportunity Commission to not enquire into complaints concerning decisions of the Family Court of Australia – ability of the Court to review a decision not to enquire – whether the Commonwealth has an enforceable duty to investigate decisions of the Family Court of Australia and/or to refer the matter for investigation by the Federal Police
Judiciary Act1903 (Cth) s39B
International Covenant on Civil and Political Rights (United Nations, 1966: ATS 1980 No 3) Convention on the Rights of the Child (United Nations, 1989: ATS 1991 No 4)Dietrich v The Queen (1992) 177 CLR 292 referred to
Minister of State for Immigration & Ethnic Affairs v Ah Min Teoh (1995) 183 CLR 273 referred toSALLY BROWN (FORMERLY MERET FIELD) v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION and ANOR
V33 of 2000
SPENDER, MARSHALL AND GYLES JJ
12 MAY 2000
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V33 of 2000
BETWEEN:
SALLY BROWN (FORMERLY MERET FIELD)
APPELLANTAND:
HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENTCOMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTJUDGES:
SPENDER, MARSHALL AND GYLES JJ
DATE OF ORDER:
12 MAY 2000
WHERE MADE:
MELBOURNE
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 FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V33 of 2000
BETWEEN:
SALLY BROWN (FORMERLY MERET FIELD)
APPELLANTAND:
HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENTCOMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT
JUDGES:
SPENDER, MARSHALL AND GYLES JJ
DATE:
12 MAY 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
SPENDER J
This is an appeal against orders made by a single Judge of this Court, North J, on 15 December 1999: Field v Human Rights & Equal Opportunity Commission [1999] FCA 1711.
Ms Brown, who is the appellant, seems unfortunately to misunderstand the nature of the proceedings in the Federal Court. Her submissions, both at first instance and on appeal, have as their focus attempts by her to revive issues which were before the Family Court of Australia, and procedures and orders made by the Family Court of Australia and in this Court.
The application which was before the primary Judge in the Federal Court appears in its amended form at pp 5-7 of the appeal book, inclusive. The applicant sought review of decisions of the Human Rights and Equal Opportunity Commission (the Commission) when it declined to investigate her complaints to that body concerning the Family Court. In a lengthy judgment of some 48 pages, the primary Judge carefully set out his understanding of the complaints made by Ms Brown and the history of the litigation, including a number of applications for special leave to the High Court concerning matters that had their origin in the Family Court.
So far as the actual application made to the Federal Court was concerned, his Honour concluded (at par 76):
“The Commission decided not to enquire further into Mrs Field's complaint for two reasons. One was that the events occurred more than twelve months before the complaint, and the other was that the appeal processes were available through the court system. Either of these reasons was sufficient to sustain the Commission's decision to enquire no further.”
His Honour had earlier said (at par 74) that Mrs Field, as she was then known, contended that she had made a letter of complaint on 7 October 1995 which was within 12 months after the execution of the warrants on 7 May 1995. His Honour continued:
“The correspondence however, shows that the complaint made on 7 October 1995 was dealt with by the Commission on 16 October 1995. No application for review was brought in respect of that decision, and any such review would have been more than two years out of time when the present application was filed on 14 January 1998 …”
Concerning the correctness of the Commission's decision to enquire no further, North J said (at par 76):
“As I have found that there is no ground available to successfully challenge the decision on the first basis given by the Commission, it is not necessary to determine whether the alternative basis was available. However, I should indicate that there is also no basis for a successful challenge to the decision on the alternative basis given by the Commission. The fact that Mrs Field has failed in most applications she has made to the Courts, and has been declared a vexatious litigant, does not mean that there is no system available to her to mount a legal challenge to the execution of the arrest warrants.”
Importantly, his Honour found:
“She has not demonstrated any reviewable error by the Commission in this regard.”
There is no error in his Honour's judgment in this finding. The Commission does not have the power to interfere with or investigate decisions of the Family Court of Australia. Insofar as the application by Ms Brown seeks to revive issues which were before the Family Court of Australia, it misconceives the nature of an application for an order of review in the original jurisdiction of this Court.
Concerning the second respondent, the Commonwealth of Australia, North J noted that Mrs Field sought the same relief against it as she sought against the Commission. That is, she asked the Federal Court to order that the Commonwealth investigate: breaches of international human rights treaties; abuse of power in the Family Court; the unlawful arrest of Mrs Nelson (the appellant’s daughter) and the unlawful apprehension of Margaret (the appellant’s granddaughter); the role of the Victorian HACS in participating in the Family Court proceedings, rather than insisting that the Children's Court proceedings determine the question of custody and access, and the cruel and inhumane treatment caused by breaches of international human rights treaties.
His Honour further noted that the Commonwealth accepted that the Federal Court had jurisdiction to hear the application against the Commonwealth pursuant to s39B of the Judiciary Act1903 (Cth), and as part of the Court's associated jurisdiction. His Honour found that the Commonwealth has no enforceable duty to investigate decisions of the Family Court, or to refer the matter for investigation by the Federal Police.
His Honour referred to the observations of Mason CJ and McHugh J in Dietrich v The Queen (1992) 177 CLR 292 at 305, where their Honours said:
“Ratification of the I.C.C.P.R. as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the I.C.C.P.R. are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions.”
North J referred to a decision of the High Court to the same effect regarding the Convention on the Rights of the Child, in Minister of State for Immigration & Ethnic Affairs v Ah Min Teoh (1995) 183 CLR 273, and particularly to the reasons of Mason CJ and Deane J at 286-7. North J continued (at par 83):
“Thus even if it had been shown that the Commonwealth had acted in breach of the ICCPR or the Convention on the Rights of the Child, in the absence of specific domestic legislation incorporating the international obligations referred to in those instruments, Mrs Field would have no domestic legal rights against the Commonwealth.”
His Honour's conclusion that the Commonwealth has no enforceable duty to investigate decisions of the Family Court of Australia and/or refer the matter for investigation by the Federal Police is not affected by any error.
There is no domestic legislation incorporating the provisions of the International Covenant on Civil and Political Rights (United Nations, 1966: ATS 1980 No 3) or the Convention on the Rights of the Child (United Nations, 1989: ATS 1991 No 4) and it follows that there are no rights which can be exercised by the applicant against the Commonwealth of Australia. It follows, in my opinion, that there has been no error demonstrated in the judgment of North J which lead to the orders he made on 15 December 1999 dismissing Ms Brown's application for review by the Federal Court. In that circumstance, the appeal in my opinion should be dismissed with costs.
MARSHALL J
The primary Judge comprehensively explained in his reasons for judgment why the application before him should be dismissed. His reasons for judgment were detailed, unexceptionable and free from error. The appellant has not demonstrated that there is any error in the primary Judge's reasons for judgment or in his order. I agree with the primary Judge that the application should have been dismissed. No new argument has been put on appeal. It follows that the appeal must be dismissed.
GYLES J
I agree with the conclusions of each of their Honours and concur in the orders proposed.
SPENDER J
The order of the Court is that the appeal be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Marshall and Gyles.
Associate:
Dated: 25 May 2000
Ms S Brown appeared in person. Counsel for the 2nd Respondent: Mr M McInnis Solicitor for the 2nd Respondent: Australian Government Solicitor Date of Hearing: 12 May 2000 Date of Judgment: 12 May 2000 (ex – tempore as revised from the transcript)
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