Carson, L. v Minister for Education of Queensland

[1989] FCA 302

Re: LINCOLN CARSON; ADRIAN CARSON by his next friend DAVID CARSON; YASMIN
CARSON by her next friend DAVID CARSON; SLADE APPO by his next friend CLEM
APPO; TRACEY APPO by her next friend DELORES McDONALD and DAMIEN FISHER by his
next friend BARRY FISHER
And: MINISTER FOR EDUCATION OF QUEENSLAND; DIRECTOR GENERAL OF EDUCATION and
RAYMOND THOMAS BEILBY
No. QLD G49 of 1989
FED No. 302
Federal Court - Racial Discrimination - Administrative Law - Injunction
88 ALR 467
25 FCR 326

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)

CATCHWORDS

Federal Court - Practice and procedure - proceedings in Federal Court to 'enforce' interim determination of Human Rights and Equal Opportunities Commission - Federal Court powers

Federal Court - Practice and procedure - accrued jurisdiction - cross-vesting

Racial Discrimination - Aboriginal high school students - Human Rights and Equal Opportunities Commission - power to make interim determination - whether determination made.

Administrative Law - Decisions by educational authorities to exclude students from most schools in Queensland - Education Act and Regulations (Qld.) - whether decision ultra vires power conferred by regulation - question of severance

Administrative Law - natural justice - inquiry by Education Department into question of possible exclusion of students - whether affected parties given opportunity to make submissions.

Injunction - mandatory interlocutory - serious question to be tried - balance of convenience - competing public interest

Racial Discrimination Act 1975-8 (Cth.) ss. 6, 6A, 9, 22, 25Y, 25z, 25zA.

Education Act 1964-88 (Qld.) ss. 21, 21A

Education Regulations 1988 (Qld.) Reg. 36

HEARING

BRISBANE

#DATE 2:6:1989

Counsel for applicants: Mr. W.T. McMillan Q.C. with Mr. L. Boccabella instructed by: Paul Richards & Associates

Counsel for respondents: Mr. G. Brandis instructed by: Crown Solicitor's Office

ORDER

The application for interlocutory relief be dismissed.

The costs of the application be reserved.

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

JUDGE1

By an application which was filed on Wednesday, 31 May 1989, the applicants sought a number of orders. The first was an order giving effect to the interim determination of the Human Rights Commission on 25 May 1989, as amended by the Commission on 30 May 1989, that the respondents permit each of the applicants to return to Kedron State High School until further determination by the Commission or resolution of the complaint be achieved, and that each of the respondents preserve the status quo which existed before 29 March 1989 and all the applicants' other rights in respect of their education until the said determination be made or the complaint be resolved.

1. The second order sought was an order declaring that the decision dated 9 May 1989 by the Director-General of Education that the first, second, fourth and sixth applicants be excluded permanently from all State high schools in Queensland is void and of no effect.

2. Thirdly, the applicants sought an order declaring that the decision by the second respondent dated 9 May 1989 that the third and fifth applicants be excluded permanently from Kedron State High School is void and of no effect. The third and fifth applicants are Yasmin Carson and Tracey Appo. The other applicants are male.

3. The fourth order sought was an order declaring that the decision by the first respondent approving the decisions that I have earlier referred to in respect of the first, second, fourth and sixth applicants was void and of no effect, and a similar declaration was sought in respect of the decision by the Minister for Education approving the decision by the Director-General dated 9 May 1989 that the two female applicants be excluded permanently from Kedron Park State School.

4. The sixth order sought was an order restraining the first and second respondents from preventing each of the applicants from attending Kedron State High School, and there was an order seeking damages and costs.

5. The application for interlocutory relief which was heard on Thursday, 1 June 1989, made two claims. The first was for an interlocutory order giving effect to the interim determination of the Human Rights Commission on 25 May 1989, as amended by the Commission on 30 May 1989, that the respondents permit each of the applicants to return to Kedron State High School until further determination by the Commission or resolution of the complaint be achieved, and that each of the respondents preserve the status quo which existed before 29 March 1989 and all the applicants' other rights in respect of their education until the final hearing of the application or earlier order.

6. The second claim by way of interlocutory relief was expressed in these terms:-
   

"Further and/or in the alternative an Order that the Respondents permit each of the Applicants . . . to attend forthwith as students of the Kedron State High School in the continuation of each of their secondary education and that each of the Applicants be permitted to so attend until judgment in these proceedings."

There were orders for the abridging of time for service.

1. After speaking with senior counsel for the applicants and counsel for the respondents late on Wednesday evening, the matter was listed for directions and for the hearing of interlocutory relief yesterday and, without objection, I received further material at that time and proceeded, notwithstanding the short time frame, to deal with the application for interlocutory relief.

2. The application has its origin in events that occurred prior to and on 6 April 1989 at Kedron State High School. On 30 March 1989, Mr. Beilby, the principal of that High School, temporarily excluded the first applicant, Lincoln Carson, from attendance at Kedron State High School. In his affidavit, Mr. Beilby says:-
   

". . . LINCOLN CARSON being a student at the Kedron State High School was suspended by me from attendance at this School for an assault on a teacher and for no other reason."

The assault is said to have occurred on 29 March 1989, the day prior to the suspension.

1. On 3 April, Mr. Carson complained in writing in general terms about the treatment of his son, Lincoln. The complaint was directed to the Brisbane North Regional Education Officer. On 6 April there was a protest by a number of students at Kedron State High School. That involved the five other applicants and, it seems, a considerable number of other students. In relation to that, Mr. Beilby in his affidavit says:-
   

"On the 6th April, 1989 (having referred to the other five applicants) the abovementioned students led what they described as a sit-in at Kedron State High School. This sit-in was in fact an open challenge to my authority and to the authority of staff of the School. Their conduct was marked by defiance and abuse. They encouraged others to join them in their defiance and to ignore my instructions. Several of them confronted me physically and refused to permit me to leave the walkway area and to return to my Office."

On that day, Mr. Beilby temporarily excluded the second to sixth applicants from attendance at Kedron State High School.

1. On 10 April, Mr. Martin, the District Inspector, advised the parents of the six applicants that an "appeal against the temporary suspension" would be heard by him, and in the letter it is noted that the inquiry would be limited to incidents on 6 April 1989. On 12 April, Mr. Richards, the solicitor for each of the applicants, wrote querying the procedure that Mr. Martin had indicated would be followed. It seems that the procedure proposed was a response to the requirements of Regulation 36(3) of the Education Regulations 1988, to which some detailed reference will be made later.

2. About 14 April, Dr. Matheson, the Director-General, wrote to Mr. Richards that action was under way pursuant to s.21A of the Education Act 1964-88 (Qld.) or Regulation 36 and told the parents that they might forward a submission under Regulation 36(3). On 26, 27 and 28 April, 1989, Mr. Martin conducted an inquiry into those suspensions. Each of them, except Lincoln Carson, was present, and I understand that one parent or representative of each of the students, as well as a Mr. James Evans from the Aboriginal Legal Service was present during that inquiry.

3. On 9 May, the Director-General of Education, in writing suspended Lincoln Carson, Slade Appo, Adrian Carson and Damien Fisher from all Queensland State High Schools. He permitted the latter three to enrol at Hendra Centre for Continuing Education or the School of Distance Education at West End, but he restricted Lincoln Carson to enrolling only at the School of Distance Education. Yasmin Carson and Tracey Appo were permanently excluded from Kedron State High School but permitted to enrol elsewhere.

4. By way of example, the letter sent to the parents of Slade Appo said in part, referring to actions of misconduct and disobedience prejudicial to the good order and conduct of the school:-
   

". . . I have decided to exclude Slade permanently from all Queensland State High Schools and with the approval of the Honourable the Acting Minister for Education, Youth and Sport, do so order in accordance with Regulation 36 of the Education Regulations 1988.

To provide him with the opportunity to continue in his studies he has permission to enrol in either (the Hendra Centre for Continuing Education or the School of Distance Education at West End.) . . ."

1. In Tracey Appo's case, the letter said in part:-
   

". . . I have decided to exclude Tracey permanently from the Kedron State High School, and with the approval of the Honourable the Acting Minister for Education, Youth and Sport, do so order in accordance with regulation 36 of the Education Regulations 1988.

I have however, decided to allow Tracey to continue her education by enrolling at any High School in Queensland other than Kedron State High School."

There was a similar letter in relation to Yasmin Carson.

1. On 22 May 1989, Mr. Richards wrote to the Regional Director of the Human Rights and Equal Opportunity Commission in Brisbane. In a detailed letter of four pages, he refers to the various matters that I have outlined and at the foot of the first page says:-
   

"We are therefore instructed to request that the Human Rights Commission make an interim determination to the effect that the abovenamed students return to Kedron State High School forthwith."

A number of grounds is set out, the first of which is as follows:-

"There is substantial evidence of a breach of the Racial Discrimination Act by the Queensland Department of Education in excluding the abovenamed students from Kedron State High School and other schools (as the case may be) the same being supported by the following:-"

And there a volume of written material is referred to.

1. Mr. Richards asserted, amongst other things, that all children suspended were of aboriginal descent. The letter is an assertion that racial discrimination was the basis of their exclusions and the letter ends, rather pre-emptorily, in these terms:-
   

"We are therefore instructed to call upon you to make a decision with respect to this application for an interim determination forthwith. We are also instructed to inform you that should there be no response by 5:00pm on Friday, 26th May 1989, then our clients will have no alternative but to regard the lack of response as an indication that you are failing to make a decision or have made a decision refusing the request for an interim determination."

1. On 25 May 1989, a letter written by Chris Sidoti, the Registrar, to Paul Richards & Associates, refers to the letter of 22 May and in its second paragraph says:-
   

"Please find enclosed a copy of the orders made by Justice Einfeld, President of the Commission pursuant to section 25Y of the Racial Discrimination Act 1975."

What is referred to as "the orders", is a document headed "INTERIM DETERMINATION" in these terms:-

"Upon application by the Race Discrimination Commissioner on 25 May 1989 under section 24A of the Racial Discrimination Act 1975 for the making of an Interim Determination under section 25Y of the said Act in relation to the enrolment of the abovementioned complainants as students at Kedron State High School, Queensland, I hereby make an Interim Determination that the respondent permit each of the complainants to return to Kedron State High School until further determination by the Commission or resolution of the complaint is achieved and that it preserve the status quo which existed before 6 April 1989 and all the complainants' other rights in respect of their education until the said determination is made or the complaint is resolved.

Dated this 25 day of May 1989.

(Sgd.) Justice Marcus Einfeld President of the Human Rights and Equal Opportunity Commission"

It appears that this interim determination was made by Mr. Justice Einfeld on the same day as he received the application from the Commissioner for an interim determination. There is nothing to suggest that it was other than ex parte, on behalf of the present applicants, without notice to any of the other persons proposed to be affected by that order or determination.

1. On 30 May, in Brisbane, there were amendments made to that determination, and the present parties were made respondents to it. Attempts were made to effect a conciliation of the complaints, which were unsuccessful. Enquiries were directed as to what were the opportunities available to each of the applicants in respect of the decisions that had been made by the Director-General with the approval of the Minister. An objection was taken to the jurisdiction of the Commission to make what it called its Interim Determination. That objection was based on s. 6A of the Racial Discrimination Act 1975 precluding the Commission from enquiring into complaints of a certain kind. That decision was reserved by the President and, in any event, is of no present relevance to this application either for principal or interlocutory relief.

2. It should be said that no power to legislate with respect to education is given in the Constitution to the Commonwealth. Education, and in particular secondary education, is a State responsibility. However, pursuant to s. 96 of The Constitution, and in other ways the Commonwealth has a significant position in modern day Australia in relation to education. So far as the present applicants are concerned, their education is determined in large measure by the provisions of the Education Act 1964-88 (Qld.) and by the Education Regulations 1988.

3. Section 25 of the Education Act provides:-
   

"For every child attending a State secondary school there shall be provided secondary education that is to say, having regard to the age, ability and aptitude of the child concerned and to the period for which he is expected to receive secondary education, progressive courses of instruction in such subjects and of such duration as the Minister approves."

1. There are a number of sections of the Education Act of direct relevance to these proceedings. All of Section 21 is important. The marginal note is "Exclusion of Pupils". The section reads:-
   

"A child may be excluded from a State school in accordance with the regulations. The regulations shall not authorize the exclusion of a child from a State School otherwise than by order of the Director-General given with the approval of the Minister.

Except as prescribed by regulation a child shall not be excluded from a State school."

1. Section 21A provides for the temporary exclusion of pupils. It provides:-
   

"Notwithstanding the provisions of section 21 of this Act, a principal may temporarily exclude a child from a State school, but immediately on so doing he shall notify the Director-General and any other person prescribed of his action and of his reasons therefor.

The Director-General shall consider expeditiously the circumstances of the case and -

(a) if he is of the opinion that the child should no longer be excluded from the school, he shall notify the principal accordingly, in which case the child shall no longer be excluded from the school;

(b) if he is of the opinion that the child should be excluded from the school, the provisions of section 21 of this Act shall thereupon apply accordingly."

1. Regulation 36 is in these terms:-
   

"(1) With the approval of the Minister, the Director-General may order the exclusion of a student from a State school:-

(a) permanently;

or

(b) for a period specified in such order, when he is satisfied that the student is guilty of disobedience, misconduct or other conduct prejudicial to the good order and discipline of the school.

(2) For the purposes of section 21A of the Act, the person prescribed to be notified of the temporary exclusion of a student shall be the student himself or, if the student is under the age of 18 years, the student's parents.

(3) The student or his parents may upon receipt of a notification of his or their child's temporary exclusion make a submission to the Director-General setting out the reasons why the student should not be excluded."

I should also note s. 22 of the Education Act dealing with wilful disturbances:-

"Any person who wilfully disturbs any school or who upbraids, insults or abuses any teacher, teacher on probation or teacher in training at any school in the presence or hearing of any pupil who is then in or about the school or who is, with others, then assembled for school purposes whether in school or not, commits an offence against this Act."

A pecuniary penalty is then provided. There are further provisions not presently relevant, but the section ends by saying:-

"A person shall not be convicted of an offence against this section if it is shown that he was, at the time in question, a pupil at the school concerned."

1. In education generally, teachers have important responsibilities. There is the duty to control or supervise and, in failing in the exercise of that duty, teachers can be exposed to legal liability. Lord Esher in Williams v. Eady (1893) 10 TLR 41 at 42 said that a teacher "was bound to take such care of his boys as a careful father would take of his boys". The language might be a bit old-fashioned, but the nature of the duty appears from his observations. There are a number of other cases in which the duty is more expressly explored. The House of Lords dealt with the matter in Barnes v. Hampshire County Council (1969) 1 WLR 1563, where an infant had been released early from school. The High Court in Commonwealth v. Introvigne (1982) 150 CLR 258 was concerned with the responsibility of schools to maintain reasonable supervision and discipline in the interests of children's safety: see also Rich v. London County Council (1953) 1 WLR 895, where the duty of a school to supervise in the interests of the public was considered and, more recently, H. v. Pennell and The State of South Australia (1987) 46 SASR 158.

2. The exercise by a teacher of the power to discipline students rests on the necessity to maintain order in and around the school. A case dealing with that question is Hansen v. Cole (1890) 9 NZLR at 272. Reference can also be made to the observations of Lord Reid and Lord Oaksey in Carmathenshire County Council v. Lewis (1955) AC 549 and more generally to the observations by Mason J., as he then was, at p 265 of Introvigne's Case to which I have earlier referred, and the article "The Duty of Schools and Teachers to Protect Pupils from Injury" in 11 Monash University Law Review, p 1.

1. Teachers, no less than other citizens, have rights which include the right not to be assaulted, threatened with violence, insulted in a public place or defamed. Students also have rights. Legally, rights are correlative of duties.

2. These observations are not gratuitous but are germane to the present application.

3. Parliaments both State and Commonwealth can confer rights by statute, and the Commonwealth has done that in relation to questions of racial discrimination in the Racial Discrimination Act 1975. I note first that s. 6 provides:-
   

"This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island, but nothing in this Act renders the Crown liable to be prosecuted for an offence."

1. Section 9 proscribes racial discrimination. Section 9(1) provides:-
   

"It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life."

1. Section 19 establishes a Race Discrimination Commissioner and the functions conferred on the Commission are specified by s. 20 of that Act.

2. Section 22 provides:-
   

"(1) A complaint in writing alleging that a person has done an act that is unlawful by virtue of a provision of Part II (which includes s. 9) may be lodged with the Commission by -

(a) a person aggrieved by the act, on that person's own behalf or on behalf of that person and another person or other persons aggrieved by the act;

. . ."

1. Section 24A provides that the Commissioner, at any time after a complaint is lodged and before various events, none of which is relevant here, may apply to the Commission for the making of an interim determination under s. 25Y or for the variation or revocation of any such determination.

2. Section 25Y(1) provides:-
   

"The Commission, or, where the President is of the opinion that it is expedient that the President alone should perform the functions of the Commission under this section, the President, may, on the application of the Commissioner under section 24A or on the application of a party to an inquiry at any time after the lodgement of the complaint into which that inquiry is held, make an interim determination of such a nature as would, if it were binding and conclusive upon the parties, preserve -

(a) the status quo between the parties to the complaint; or

(b) the rights of the parties to the complaint, pending completion of the matter the subject of the complaint."

Section 25Y(2) importantly provides:-

"(2) An interim determination under sub-section (1) is not binding or conclusive between any of the parties to the determination."

1. Section 25Z commences:-
   

"(1) After holding an inquiry, the Commission may-"

and then is set out various powers of the Commission. The first is to dismiss the complaint. The second is to:-

"find the complaint substantiated and make a determination, which may include any one or more of the following:

(i) a declaration that the respondent has engaged in conduct rendered unlawful by this Act and should not repeat or continue such unlawful conduct;

(ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; . . .

(iv) except where the complaint was dealt with as a representative complaint - a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent; . . ." (my emphasis)

1. Section 25Z(2) provides:-
   

"A determination of the Commission under sub-section (1) is not binding or conclusive between any of the parties to the determination."

1. The Federal Court's jurisdiction under that Act is conferred by s. 25ZA, which provides:-
   

"(1) The Commission or complainant may institute a proceeding in the Federal Court for an order to enforce a determination made pursuant to sub-section 25Y(1) or 25Z(1).

(2) Where the Federal Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under this Act, the Federal Court may make such orders (including a declaration of right) as the Federal Court thinks fit.

(3) Orders made by the Federal Court under sub-section (2) may give effect to a determination of the Commission."

1. It will be necessary to return to those sub-sections later.

2. In very general terms, it is asserted that the exclusion of the applicants from the Kedron State High School is based on discrimination prohibited by the Racial Discrimination Act 1975. There are, however, other bases upon which the application to the Federal Court relies. Mr. Richards in his affidavit refers to grounds other than those based on the Racial Discrimination Act; in particular, ground (C), which is in these terms:-
   

"The Second Respondent has no jurisdiction to exclude the First, Second, Fourth and Fifth Applicants from all State Schools because under both regulation 36 of the Education Regulations 1988 and ss. 21 and 21A of the Education Act 1964-1987 the Second Respondent's power is limited to the exclusion from attendance of one State educational institution only."

1. On the other hand, it was submitted by counsel for the respondents that the allegations of racial discrimination are unfounded, that the decisions that were made permanently to exclude the students were made after an inquiry and calm deliberation and as a matter of discipline. The fact that each of the applicants - if it be true, for the matter was not admitted - was of aboriginal extraction or origin was quite irrelevant. It was submitted the same decisions would be taken independently of the racial or ethnic background of the students involved.

2. I have to say that these competing assertions have never been the subject of submission or ruling by the Commission, whether on an interim, interlocutory or any other basis. The determination, if it be that, made by the President on 25 May 1989 and later varied by him, was made on an ex parte basis. The orders that I am asked to make are based on different material and, in particular, material from both applicants and respondents.

3. The present application is based on s. 25ZA of the Racial Discrimination Act 1975. It is asserted that there is a jurisdiction in the Federal Court to make the interlocutory orders sought by reference to that section. I have to say that the provisions are unhelpfully terse. At the outset, the making of an interim determination is a necessary pre-condition for the exercise of jurisdiction by the Federal Court of its powers, if there be any.

4. I say "if there be any", because it may be argued that s. 25ZA(1) merely gives a right to institute proceedings and the entirety of the Federal Court's powers are to be found solely in s. 25ZA(2). The existence of jurisdiction under that sub-section is based on the Court being satisfied that there has been unlawful conduct. Such a conclusion would not be possible unless there has been a full inquiry. Such a requirement would be harmonious with the circumstances of a finding by the Commission under s. 25Y, that section being directed to final determinations. Consistent with what I said in Aldridge v. Booth (1988) 80 ALR 1, the position of the Federal Court exercising the judicial power of the Commonwealth is to be contrasted with the function of the Commission, and I refer in particular to the observations made there about s. 81(2) of the Sexual Discrimination Act, which apply with relevant modifications to the position under the Racial Discrimination Act.

5. Section 25ZA(2) sits very awkwardly in the statutory scheme where the Commission has made an interim determination, which is then sought to be enforced by a complainant in the Federal Court. I am by no means sure, given the terms of s. 25ZA(2), that the Federal Court has power to "enforce" an interim determination of the Commission under s.25Y. However, in an attempt to give effect to these unhappily expressed provisions, it seems to me that, if there has been an interim determination, the Federal Court should enquire into whether to give effect to it by considering whether, in the circumstances proved before it, it would grant an interlocutory injunction. Section 25ZA, in giving the complainant a right to institute proceedings to enforce an interim determination, must, by necessary implication, confer jurisdiction on the Court to "enforce" such a determination, the determination by the Commission being neither binding nor conclusive. It seems to me that the Federal Court should make such an order only after it is itself satisfied on material properly before it that the circumstances call for the making of an order which would have the effect of giving effect to the interim determination.

6. The first difficulty in this case is that, in my opinion, there has been no interim determination made by the Commission. "Interim" and "interlocutory" are terms sometimes used as synonyms and sometimes used with different connotations. "Interim" is frequently used in circumstances of urgency, and applying to ex parte orders in existence only for sufficient time to enable the parties affected by the order to have an opportunity of making submissions in respect of the continuation of the order. "Interlocutory" is sometimes used in a different sense, meaning "pending final determination" but incorporating the notion that each party has had the opportunity of presenting material as to whether an order pending final determination should be made. Here, it seems to me, that "interim", particularly as applied by the Commission, is used in the second sense, that is, until the final hearing or determination of the complaint. Yet it was made without any notice to the persons affected by it and in the absence of any opportunity on the part of those persons to present material.

7. More importantly, it seems to me that there has been no determination. "Determination", when used in s. 25Y, to my mind, is used in the same sense and with the same connotation as it is used in the following section. In my opinion, it requires the Commission to reach a finding, albeit on an interim basis, as to whether to make a determination of the kind referred to in s. 25Z.

8. After submissions by the respondents had concluded, counsel for the applicants, in reply, tendered to the Court a facsimiled document dated Thursday, 1 June 1989, over the hand of the President of the Human Rights and Equal Opportunity Commission. The second sentence of the first paragraph of that document says:-
   

". . . advice has been communicated to me that Mr. Justice Spender of the Federal Court has asked that I supply some information concerning (the Commission's determination)."

As the record of these proceedings will make plain, that is not correct. I was told by senior counsel for the applicants that a request had been made of the Commission for the reasons for the making of the interim order, and it was expected that those reasons would be available in the course of the day. It was certainly not the case that I asked anybody to provide any information. My function is to decide on the evidence that the parties put before me and not to make my own enquiries. My position is to be contrasted with those whose function is either to conciliate or to enquire.

1. In this document, the President of the Commission says:-
   

"On reading the material, I formed the view that an arguable case of racial discrimination was available and that the wellbeing and education of the children required that the status quo prior to their exclusion from Kedron State High School be restored pending a full inquiry into the matter under the Racial Discrimination Act."

He indicated in that letter that he has fixed Monday 19 June for the hearing of the inquiry, which is to continue until completed.

1. In the view I take of the Act, it is not sufficient that there be shown on material, be it ex parte or on notice, that there is an arguable case of racial discrimination. It is necessary for the Commission or the President to reach a determination, albeit of an interim nature; it is insufficient for that purpose simply that there be an arguable case of racial discrimination. The making of an interim determination involves, in my opinion, a more stringent requirement than the making of an interlocutory injunction by a court. The reason for intervention has to be addressed. An interim determination is an interim finding of racial discrimination, and the Commission should be conscious of the significance and possible serious consequences of it. It is important that a body whose task is the maintenance and enhancement of human rights, does not itself fail to accord rights to parties who may be affected by its conduct.

2. In my respectful opinion, the interim determination of the President, or what purported to be such a determination, was not that for which s. 25Y of the Act calls. Should I be wrong in that conclusion, it is necessary to consider whether the Court could make the order sought and then whether it should.

3. To make an order giving effect to the interim determination would have the effect of granting an interlocutory injunction with mandatory implications.

4. At p 708 of Commercial litigation: Pre-emptive Remedies, the learned authors, Goldrein and Wilkinson, note the Supreme Court practice in the United Kingdom:-
   "The Supreme Court Practice 1988 states at 29/1/5:
   

'The Court has jurisdiction to grant a mandatory injunction upon an interlocutory application (per Fry L.J. in Bonner v. Great Western Railway

(1883) 24 Ch D 1, p 10; and see Collison v. Warren (1901) 1 Ch 812 (application by defendants) but it is a very exceptional form of relief (Canadian Pacific Railway v. Gaud (1949) 2 KB 239 (C.A.)).'"

1. As to mandatory interlocutory injunctions, Gibbs C.J. said in State of Queensland v. Australian Telecommunications Commission (1985) 59 ALR 243 at 244:-
   

"In deciding whether to grant an interlocutory injunction the first question for the Court is whether there is a serious question to be tried (see Australian Coarse Grain Pool Pty. Ltd. v. Barley Marketing Board (Qld.) (1982) 57 ALJR 425; 46 ALR 398; Tableland Peanuts Pty. Ltd. v. Peanut Marketing Board (1984) 58 ALJR 283; 52 ALR 651 and Epitoma Pty. Ltd. v. A.M.I.E.U. (No. 2) (1984) 54 ALR 730. That question having been answered in the affirmative, it is then necessary to consider whether the balance of convenience is in favour of the grant or refusal of the injunction."

At p 245, he said:-

"It is a very nice question where the balance of convenience lies in the present case but in the end two considerations have inclined me in favour of the view that I ought not to grant an interlocutory injunction at the present stage. The first of those considerations is that what is sought is a mandatory injunction. In Redland Bricks Ltd. v. Morris (1970) AC 652, the House of Lords held that the grant of a mandatory injunction is never made as of course and that a factor to be taken into consideration is that the defendant has not behaved unreasonably but only wrongly. According to Halsbury's Laws of England Vol. 24, para. 948, the position regarding the grant of a mandatory injunction on an interlocutory application is as follows: 'a Mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction widll be granted on an interlocutory application.' Megarry J. stated the principle in Shepherd Homes Ltd. v. Sandham (1971) 1 Ch 340 at 351, in the following words:' . . . on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction."

I note that these observations have not been received with unanimous approval. Certainly they were followed by Northrop J. in Australian National Airlines Commission v. Commonwealth of Australia (1986) 66 ALR 545, and Foster J. in Midland Milk Pty. Ltd. v. Victorian Dairy Industry Authority (1988) 82 ALR 279.

1. More recently, Gummow J. in Businessworld Computers Pty. Ltd. v. Australian Telecommunications Commission (1988) 82 ALR 499, declined to follow the observations by Gibbs C.J. Gummow J. noted that the Shepherd Homes Ltd.'s Case predated American Cyanamid Co. v. Ethicon Ltd. (1975) AC 396. At p 502, he noted also that the remarks of Megarry J. in that case have recently been discussed and distinguished by Hoffmann J. in Films Rover International Ltd. v. Cannon Film Sales Ltd. (1986) 3 All ER 772. I will not repeat that analysis by Hoffmann J., except to note the passage which appears in Gummow J.'s judgment at 503:-
   

"In addition to all these practical considerations, there is also what might be loosely called a 'due process' question. An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring him temporarily to refrain from action. The court is therefore more reluctant to make such an order against a party who has not had the protection of a full hearing at trial."

Gummow J., having referred to the history of the development of the remedy, said later on that page:-

"All that may usefully be said was perhaps said long ago by Knight Bruce V.C. in North of England Junction Railway Co. v. Clarence Railway Co.

(1884) 1 Coll 507 at 521-2; 63 ER 520 at 526-7: 'This branch of (the court's) jurisdiction may be one not fit to be exercised without particular caution, but certainly it is one fit and necessary, under certain circumstances, to be exercised. Under what circumstances it should be exercised must be a matter for judicial discretion, in each several case.'"

After referring to the observations by Gibbs C.J. in the Australian Telecommunications Commission's Case and the fact that some other judges of the Federal Court have followed it, he said:-

". . . for reasons I have given, I would eschew any such principle. I would prefer the course taken by both Powell J. in Fletcher Challenge Ltd. v. Fletcher Challenge Pty. Ltd. (1981) 1 NSWLR 196 at 207-8 and Sheppard J. in Holiday Inns

(Pacific) Inc. v. Leisure Developments (Qld.) Pty. Ltd. (Federal Court of Australia, 7 October 1987, unreported, pp 18-25), as exemplifying the proper approach in administering the remedy of interlocutory mandatory injunction."

1. I do the applicants no disservice if I proceed on the basis indicated by Gummow J., and I will do that, except that I note the tenor of the judgment of Mason A.C.J., in Castlemaine Tooheys Limited v. The State of South Australia (1986) 161 CLR 148, as recorded in the headnote:-
   

"In order to secure an interlocutory injunction a plaintiff must, in the majority of cases, establish that there is a serious question to be tried. But in some cases, where the public interest would be adversely affected by the grant of an injunction, the plaintiff may need to show a probability, even a distinct probability, of success." success."

I note that there is in this case an element of public interest, and it is not merely litigation inter partes.

1. I turn now to some of the factual material.

2. It was pointed out that some of the material annexed to Mr. Richards' affidavit filed on 31 May 1989 was not sworn either directly to or on an information and belief basis. Notwithstanding that circumstance, I have had regard to all of the material referred to in the annexures to Mr. Richards' affidavits.

3. Four aspects in particular have been referred to in the submissions.

4. First, the observation that each of the applicants is of aboriginal extraction.

5. Second, Slade Appo says in paragraphs 5 and 6 of his affidavit that he saw Mr. Beilby catch two white students smoking what appeared to be cannabis, saw him take the students to his office, and that they came out laughing and told him they had been let off with being groundsmen for a week. His affidavit then continues:-
   

"Because aboriginal students had been accused of being drugtakers without excuse, I then approached the headmaster to ask him what had happened. He told us to mind our own business and that it was subject to further investigation. About three months later, myself and a number of other students approached him to ask him what had happened as a result of that incident. At this time, Mr. Bielby, showed us the drug which he said was marijuana and which he had in a plastic bag. He said that there were still further investigations taking place. However the students continued at the school without punishment and I believe that no action was taken by Mr. Beilby. As he had by contrast accused aboriginal students falsely of being involved in drugs, myself and other aboriginal students began to feel that he was discriminating in favour of white students who were doing wrong and at the same time accusing aboriginal students of doing the wrong thing when there was no evidence at all."

1. Reference was particularly made to paragraph 7 of Adrian Carson's statutory declaration. He says that he was standing talking to a group of students in the vicinity of the toilet when Mr. Beilby told a number of them to go to his office. His affidavit continues:-
   

"Other white students had been in the same area doing the same thing, but had not been ordered to go to the office. He did not apply any punishment at this time, but merely make statements such as, 'You don't want to competition (sic) with me as I rarely lose competitions'."

And, finally, specific reference was made to the declaration of Margaret McLeod. This is the only one which has a specific and direct bearing on the assertion of racial prejudice on the part of Mr. Beilby, the others suggesting that such was to be inferred by a general course of perceived discrimination. In paragraph 3 of her statement, Mrs. McLeod says that she had a conversation with Mr. Beilby to this effect:-

"The discussion surrounded a fight which had apparently taken place in the school yard when Rose Kyle had been involved in a physical altercation with a non-aboriginal girl as a result of which the non-aboriginal girl claimed to have received an injury. The discussion also related to claims that the non-aboriginal student had been calling aboriginal female students "black sluts" over a period of time and that Rose Kyle had got angry about that. Apparently Elizabeth had come to break up the fight. Apparently Tracey McLoud (my daughter) had merely watched. Bielby said that the aboriginal students were hanging around in gangs and he was sick and tired of black gangs around his school running riot. He said he would clean them up.

I asked how many in these black gangs. He said that more than two makes a gang. I said was it only aboriginal students that were running riot as he described it. He said that that was the way he saw it. He said that he was going to clean the school up and get rid of the black gangs. I said something to the effect that it was difficult enough getting aboriginal students into school and getting them to keep going to school without him chasing them out. He said words which I clearly remember, 'if I have my way I am going to get rid of all the black kids out of the school. They should be together in a school of their own'.

He said something to the effect that the girls would be allowed to continue in the schools provided they followed the rules rigidly and if there was any further incident, the girl would be expelled."

I should note that Mr. Beilby in his affidavit denies any racial prejudice or discrimination, in emphatic terms. I will come to his affidavit more fully later, but I do note that he asserts that the applicants were excluded from the school by him for reasons of discipline and for no other reason.

1. The respondents have filed fifteen affidavits. I have had regard to all of them, but I want specifically to refer to some aspects.

2. First, the affidavit of Georgina Archer, who is a class teacher at Kedron State High School. She says in her affidavit that, after the events of 6 April there had been a number of staff meetings concerning the suspensions and, in paragraph 11 she says:-
   

"Teachers at all meetings referred to above expressed indignation at the suggestion of racism in the said suspensions when in fact the said suspensions occurred purely for disciplinary reasons. It was clear to me that a number of teachers were hurt by this suggestion."

She says:-

"I am of the view that if the abovementioned Complainants are reintroduced to Kedron State High School there will be enormous disruption for the smooth running and peaceful functioning of the school."

She asserts:-

"I, along with other teachers at the school, would not be able confidently to fulfil my duties in a safe environment and free from anxiety. I say this in view of the history of violence and breaches of discipline that have occurred at the school in recent months with which the abovementioned complainants have been associated."

1. Deborah Mary Rose Gregg is acting subject master of English at Kedron State High School. She refers particularly to the events of the sit-in where she heard Jennifer Hall, the Deputy Principal, being verbally abused by one of the female students. I should note that there is no identification that either of the female applicants was the person responsible for the language which appears in paragraph 6 of her affidavit. However, she does say:-
   

"I also observed three boys Adrian Carson, Slade Appo and Damien Fisher blocking the pathway of the principal Mr. Ray Beilby to his office."

She also speaks of the environment in the school and the teachers views, in similar terms to those referred to in Georgina Archer's affidavit.

1. Tricia-Anne Velthuizen is a year 12 student. She knows four of the complainants. She speaks of student reaction to the various events. In paragraph 5 of her affidavit she says:-
   

"I am aware that the Complainants and their representatives have alleged that the reasons for their suspension were because of racist attitudes by the Headmaster, Mr. Beilby and otherwise because they were racially discriminated against. I have been a student at the school for 5 years, during which time I have never witnessed any racist behaviour by Mr. Beilby or the staff."

She speaks of the atmosphere of the school as being extremely strained and tense at the time of the sit-in and that, since the suspension, the atmosphere has improved.

1. Finally, I refer to the affidavit of Mahommed Ishan Fuad Muthalib, who is a year 12 student at the school and who is the school captain. He apparently was selected by a ballot of all the current year 12 students and a separate ballot by the staff. He is a Sri Lankan Australian. He says in paragraph 9 of his affidavit:-
   

"I have never during the time of my attendance at the school witnessed any racial prejudice by either Mr. Beilby or any other members of the teaching staff. On one occasion, when I was in Grade 8, another student made an insulting racist remark to me to the effect that I could not be Class Captain because I was dark skinned. With the exception of that incident alone, I have not witnessed any racist attitudes at the school directed either at me or others."

I suspect that he may be overstating the situation somewhat.

1. Mr. Beilby's affidavit canvasses, in some detail, the basis of his action.

2. On this material, this much can be said. Any suggestion of or evidence to support racial discrimination is diffuse and consists of assertion and generally is of a background kind. That material is disputed or denied in the most positive of terms. The factual matters are not capable of resolution on any interlocutory basis. One has to have regard to the nature of the material advanced and that which has been produced in reply.

3. As to the questions of balance of convenience, I have been seriously troubled, particularly by the position of Adrian Carson. However, it appears from what I was told that he will be able to do any examinations in the subjects for which he is enrolled presently at Kedron, at Hendra, and that between now and when the Commission's hearing is to resume in the middle of June there will be no classes conducted at Kedron, but only examinations. The consideration of an imminent hearing, of course, has a large bearing on my decision, but I also take into account, on the other hand, the possible consequences for the respondents and, in my opinion, they could be very serious. The orders sought are of the same kind, though not of the same duration, as are finally sought.

4. Having regard then to the principles to which I have earlier referred, yesterday in the exercise of my discretion I declined to make any orders pursuant to s. 25ZA of the Racial Discrimination Act. That, however, is not the end of the matter.

5. The applicants in these proceedings have relied in the grounds and in the orders sought on some aspects of administrative law.

6. A primary point of this kind is that on 10 April, when Mr. Martin, the District Inspector, wrote to the parents of the students advising them that they were suspended, he told them that "an appeal against the temporary suspension" would be heard by him. On 12 April, the letter from Messrs. Paul Richards & Associates asking as to the method of inquiry and the details of specific allegations, was responded to by the Director-General who indicated the nature of the inquiry and referred to the action being taken in accordance with s. 21A or Regulation 36, the letter of 17 April referring to "temporary exclusion" of students and referring to the "temporary exclusion" having been made already under s. 21A of the Act. The submission in respect of this ground was that there had been no opportunity to be heard on the question of permanent exclusion. Reference is made to s. 21 and Regulation 36. It was said that the procedure adopted had ignored the right to be heard by a party who might be affected by the inquiry: Mahon v. Air New Zealand (1984) 1 AC 808, particularly at 820-1 and White v. Ryde Municipal Council (1977) 2 NSWLR 909 was referred to. It was said that the Federal Court had jurisdiction to deal with this aspect of the case, a submission not challenged by the respondents. For the applicants it was said that s. 32(1) of the Federal Court Act, conferring accrued jurisdiction on the Court, was enlivened. In any event, s. 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld.), provides:-
   

"The Federal Court has and may exercise original and appellate jurisdiction with respect to State matters."

1. The extent of the duty to accord natural justice and what was in fact done in the circumstances of the present case have not been fully canvassed in this application. It would, in my opinion, not be a sound exercise of the judicial discretion on the present material to grant what would be in effect a mandatory interlocutory injunction based on the alleged denial of natural justice. The same inquiry as to where the balance of convenience lies is relevant here as it is in relation to the earlier matters that I have discussed.

2. The final aspect of the matter, which troubles me considerably more than any of the preceding, concerns the extent of the powers of the Director-General of Education under the Education Act 1964-88, and whether what was done in the circumstances of the four male applicants was ultra vires his powers.

3. I should say that both the natural justice point and the ultra vires point have nothing to do with the Racial Discrimination Act or the Human Rights and Equal Opportunity Commission.

4. It will be remembered that s. 21, which I earlier referred to, said that a person can be excluded only in the circumstances provided for by the Regulations, and that Regulation 36 permitted the Director, with the approval of the Minister, to order the exclusion of a student from a school when he is satisfied that the student is guilty of disobedience, misconduct or other conduct prejudicial to the good order and discipline of the school. I am strongly inclined to think that, however inconvenient or unfortunate such a conclusion might be, the law of Queensland permits the Director-General of Education to suspend a student from a school and does not permit him to exclude a student from any school other than the school at which he is attending. This is a conclusion based simply on the construction of Regulation 36 and s. 21. The basis for exclusion is the requirement that the Director-General is satisfied that the student is guilty of disobedience, misconduct or other conduct prejudicial to the good order and discipline of the school.

5. My present view is that, while the Director-General has and had power to exclude the four male applicants from Kedron State High School, as he did in respect of the two female applicants, he did not and does not have the power to exclude them from all other high schools in Queensland, or any other high school, in the absence of his reaching the satisfaction for which Regulation 36 calls in respect of any other school.

6. The question is whether the decision falls in toto as being beyond power, or whether that part of it which would be within power can be severed, so that the valid exercise of the power operates. In my declining yesterday to grant interlocutory relief on this ground, I considered the question of severance and the implications of that question. Not without hesitation, I took the view that I should decline the grant of interlocutory relief. I did that because, in addition to all the various factors that I have already referred to in relation to the other bases for intervention, and recognising that the resolution of factual questions did not impinge on this aspect of the matter, there are two important additional considerations.

7. The first is that the difficult issue of severance was never canvassed before me, and the second was that the gravamen of the application for interlocutory relief is to permit or enable the applicants to attend Kedron State High School. There is no reason why the Director-General could not forthwith, with the approval of the Minister, make an order that is clearly within his power under s. 21 and Regulation 36, excluding one or more of the applicants from Kedron State High School.

8. In relation to the question of severance, in the work by Aronson and Franklin, Review of Administrative Action, 1987 The Law Book Company Limited, the learned authors say at p 218:-
   

"Normally, if an act or decision is successfully impugned, it is completely nullified. But sometimes the Court can save some aspects of the act or decision. It depends upon whether the Court can identify good and bad parts of the act or decision, and whether it is prepared to regard them as discrete aspects, so that the good may be severed from the bad. The criteria of severability are rarely stated."

And later on the same page, the learned authors say:-

"Where the impugned act is not obviously composed of discrete parts, the decision on severability seems to turn on whether severance is possible without judicial usurpation of the impugned decisionmaker's power. This involves either an inquiry into or (more commonly) supposition as to whether the decision would have been made without the bad element in it."

A number of cases are cited in the footnotes in support of that approach.

1. In Thames Water Authority v. Elmbridge Borough Council (1983) QB 570, Dillon L.M. at 583 rejected a submission that in public law there is an overriding requirement that an excessive exercise of power will be wholly void, and not merely void as to the excess, unless the document exercising the power is so worded as to include words describing the permitted exercise of the power as well as further words describing the excess in such a way that the excess can be excised by the use of a blue pencil, leaving unaltered the wording in the document expressly covering the permitted exercise of the power. That case and other related cases were extensively reviewed by McNeil J. in R. v. Secretary of State for Transport; ex parte Greater London Council (1986) 1 QB 556.

2. Shortly put, there is no blue pencil rule. In the sixth edition of Wade's book Administrative Law at p 339, dealing with the severance of good from bad, the learned author succinctly summarises the position:-
   

". . . there is no 'blue pencil rule' requiring the bad part of the order to be identifiable in the order itself."

1. For the above reasons, then, I decline to grant interlocutory relief.

2. As to the question of the Racial Discrimination Act, that can be left to the consideration of the Commission and to the no doubt careful and deliberate inquiry which it will commence on 19 June. There it will be for the Commission in its administrative function to address the question of whether it is satisfied that the complaints are substantiated and, if so, what should be done about them.

3. As to the principal proceedings, it is competent for the Court to grant the orders sought notwithstanding that the basis for jurisdiction in the Federal Court under the Racial Discrimination Act has been found by me not to have been made out. It seems to me that I ought to give directions to the parties, particularly as to how the complaints on natural justice and ultra vires ought to be resolved at a final hearing. It may be more appropriate if I do that on Tuesday 13 June, after my reasons for judgment have been reduced to writing and the parties have had an opportunity to consider them.

4. But it seems to me that there is a matter of some merit as to the width of the order made by the Director-General, and I propose to give to the parties the opportunity of considering what I have said and what directions I ought to make for the further resolution of the proceedings in this Court.

5. I reserve the costs of the application.