Caves v Chan and Ors (No.2)
[2010] FMCA 817
•29 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAVES v CHAN & ORS (No.2) | [2010] FMCA 817 |
| HUMAN RIGHTS – Alleged racial discrimination – membership of ethnic literary association on Christmas Island – requirement of Chinese descent – whether discrimination on ground of race – effect on remedies of amendment to constitution of association to include persons supporting objects of association and who are residents of Christmas Island. |
| Australian Human Rights Commission Act 1986 (Cth), s.46PO Evidence Act 1995 (Cth), s.56(2) International Convention on the Elimination of All Forms of Racial Discrimination, Article 5 Racial Discrimination Act 1975 (Cth), ss.9, 13 |
| Australian Competition and Consumer Commission v Jutsen & Ors [2010] FCA 961 Australian Medical Council v Wilson (1996) 68 FCR 46 Bahonko v Sterjov (2007) 167 IR 43; [2007] FCA 1244 Bropho v State of Western Australia [2004] FCA 1209 Campbell v Kirstenfeldt (2008) EOC 93-515; [2008] FMCA 1356 Caves v Chan & Ors [2010] FMCA 706 Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531 Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 Forozandeh v Sky City Adelaide [2006] FMCA 222 Gama v Qantas Airways Limited (2006) 195 FLR 475; [2006] FMCA 11 Ho v Regulator Australia Pty Ltd [2004] FMCA 62 Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 House v Queanbeyan Community Radio Station (2008) EOC 93-514; [2008] FMCA 897 Oorloff & Anor v Lee & Ors [2004] FMCA 893 Perry v Howard [2005] FCA 1702 Purvis v State of New South Wales Department of Education & Training (2003) 217 CLR 92; [2003] HCA 62 Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 Speirs v Darling Range Brewing Co Pty Ltd [2002] FMCA 126 Travers v State of New South Wales [2000] FCA 1565 |
| Applicant: | TEKOHI CAVES |
| First Respondent: | LEWI CHAN |
| Second Respondent: | NG LAY HWA |
| Third Respondent: | GEE FOO |
| Fourth Respondent: | ALBERT ENG |
| Fifth Respondent: | PANG SWEE HUAT |
| Sixth Respondent: | CHINESE LITERARY ASSOCIATION OF CHRISTMAS ISLAND INC. |
| File Number: | PEG 110 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 28 September 2010 |
| Date of Last Submission: | 28 September 2010 |
| Delivered at: | Perth |
| Delivered on: | 29 October 2010 |
REPRESENTATION
| The Applicant: | In person (by telephone link) |
| The First Respondent: | In person (by telephone link) |
| The Second Respondent: | No appearance |
| The Third Respondent: | In person (by telephone link) |
| The Fourth Respondent: | In person (by telephone link) |
| The Fifth Respondent: | In person (by telephone link) |
| The Sixth Respondent: | No appearance |
DECLARATIONS AND ORDERS
DECLARATIONS:
That sometime in the period between 24 March and 4 April 2008, the sixth respondent, the Chinese Literary Association of Christmas Island Inc. (“the Association”), engaged in conduct rendered unlawful by section 9 of the Racial Discrimination Act 1975 (Cth) by advising Mr Tekohi Caves that he was unable to make application for membership of the Association because he is not of Chinese descent.
ORDERS:
That the application against the first, second, third, fourth and fifth respondents be dismissed.
That the sixth respondent:
(a)place a public notification (“the Public Notice”) in the local Christmas Island newsletter, “The Islander”, in terms as follows:
Chinese Literary Association of Christmas Island Inc – Public Notice by Order of the Federal Magistrates Court of Australia
On 29 October 2010 the Federal Magistrates Court of Australia declared that sometime in the period between 24 March and 4 April 2008, the Chinese Literary Association of Christmas Island Inc. (“the Association”) engaged in conduct rendered unlawful by section 9 of the Racial Discrimination Act 1975 (Cth) by advising Mr Tekohi Caves that he was unable to make application for membership of the Association because he is not of Chinese descent.
On 8 October 2009, the Association amended its Constitution, and it now welcomes membership applications from all residents of Christmas Island regardless of racial descent.
Secretary
Chinese Literary Association of Christmas Island Inc.
(b)place the Public Notice on two separate occasions:
(i)the first in an edition of “The Islander” published no later than 6 December 2010; and
(ii)the second in an edition of “The Islander” published no later than 6 March 2011,
and that the size of the Public Notice should be not less than 15cm in depth x 10cm in width with text in a font size of not less than point 10.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 110 of 2009
| TEKOHI CAVES |
Applicant
And
| LEWI CHAN |
First Respondent
| NG LY HWA |
Second Respondent
| GEE FOO |
Third Respondent
| ALBERT ENG |
Fourth Respondent
| PANG SWEE HUAT |
Fifth Respondent
| CHINESE LITERARY ASSOCIATION OF CHRISTMAS ISLAND INC. |
Sixth Respondent
REASONS FOR JUDGMENT
Introduction
In 2008, Tekohi Caves, whilst resident on Christmas Island, enquired about membership of the Chinese Literary Association of Christmas Island Inc.[1] Mr Caves says that the then Secretary of the Association told him that an application for membership of the Association by a person not of Chinese descent would be refused. Mr Caves brought these proceedings alleging that the Association has discriminated against him on the ground of race.
[1] “the Association”.
Application
The application filed on 6 July 2009 seeks final orders under s.46PO of the Australian Human Rights Commission Act 1986 (Cth),[2] for alleged contraventions of ss.9 and 13 of the Racial Discrimination Act 1975 (Cth).[3]
[2] “AHRC Act”. Prior to 5 August 2009 the AHRC Act was known as the Human Rights and Equal Opportunity Commission Act 1986 (“HREOC Act”). For the sake of convenience all references in these Reasons for Judgment relevant to the current proceedings are to the AHRC Act, which, save for the name change, is relevantly in the same terms as the HREOC Act.
[3] “RD Act”.
Respondents
There are five individual respondents named in the application. Each of the individual respondents was a member of the committee of the sixth respondent, the Association. The Association was added as the sixth respondent by an order of the Court dated 9 August 2010, as amended by a further order on 28 September 2010 to correct the name of the Association to accord with that in the Constitution of the Association.[4]
[4] “Constitution”.
Grounds of application
The grounds of the application, set out in paragraph 3 of the application, are as follows:
“The applicant claims that he is being discriminated against because of his race.
At some time between 24 March 2008 and 4 April 2008, the applicant asked to apply to become a member of the … Chinese Literary Association of Christmas Island (Inc.).
The applicant was advised by the immediate past Secretary of the Chinese Literary Association of Christmas Island (Inc.) that an application for membership by anyone not of Chinese descent would be refused.
On 17 June 2008, the applicant lodged a complaint regarding this matter with the Australian Human Rights Commission.
Between 17 June 2008 and 10 June 2009, the Australian Human Rights Commission mediated this matter between the applicant and the Chinese Literary Association of Christmas Island (Inc.)
The applicant received a Notice of Termination from the Australian Human Rights Commission dated 10 June 2009.”
Mr Caves confirmed that, in so far as the facts that were set out in paragraph 3 of the application, they were true and correct.[5]
[5] Transcript, 28 September 2010, page 3.
Final orders sought
The application seeks final orders in the following terms:
“1.Removal [of] the following words from Clause 5.b of the Chinese Literary Association of Christmas Island (inc.) Constitution… :
“Full membership shall be available to those persons of Chinese decent.”
2.Addition of the following words to Clause 5.b of the Chinese Literary Association of Christmas Island (inc.) Constitution:
“Full membership shall be available to all eligible applicants without regard to racial descent.”
3.Confer Full Membership of the Chinese Literary Association of Christmas Island (inc.) to Mr Tekohi Caves
4.Public Notification in English, Standard Chinese & Malay languages, by advertisement in the local newsletter “The Islander”, of:
a. Orders 1, 2 & 3; and
b. The following statement, “The Chinese Literary Association of Christmas Island welcomes membership applications from all people regardless of racial descent.”
5.Public Notification in English by advertisement in the state newspaper, “The West Australian”, of:
a. Orders 1, 2 & 3; and
b. The following statement, “The Chinese Literary Association of Christmas Island welcomes membership applications from all people regardless of racial descent.””
RD Act provisions
Section 9 of the RD Act prohibits racial discrimination. It provides as follows:
(1) 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.
(1A) ….
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3) ….
(4) ….
Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination relevantly provides as follows:
Article 5
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) …;
(b) …;
(c) …;
(d) Other civil rights, in particular:
(i) …;
(ii) …;
(iii) The right to nationality;
(iv) …;
(v) …;
(vi) …;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
(i) …;
(ii) …;
(iii) …;
(iv) …;
(v) …;
(vi) The right to equal participation in cultural activities;
(f) ….
Mr Caves refers to s.13 of the RD Act as relevant to his application. Section 13 of the RD Act relates to discrimination in the refusal of the provision of goods and services. Whether or not Mr Caves was allowed to join the Association is not a matter related to or involving the refusal of the provision of good and services. Section 13 of the RD Act is irrelevant to the circumstances of this case.
Jurisdiction of the Court
The AHRC Act provides an exclusive regime for remedying contraventions of the RD Act.[6]
[6] Re East; Ex parte Nguyen (1998) 196 CLR 354 at 365-366 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1998] HCA 73 at paras.26 and 31-32 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Bropho v State of Western Australia [2004] FCA 1209 at para.52 per RD Nicholson J; Perry v Howard [2005] FCA 1702 at para.37 per Siopis J.
Section 46PO(1) of the AHRC Act provides as follows:
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Only an “affected person” can make an application to this Court.[7] Mr Caves as the complainant, and the person allegedly discriminated against, is an “affected person” under s.46PO(1) of the AHRC Act.
[7] Oorloff & Anor v Lee & Ors [2004] FMCA 893 at para.55 per Walters FM (“Oorloff”). In Oorloff, where a wife sought to be party to an application to this Court when the complaint to the HREOC was made only by the husband, the wife’s complaint was dismissed for want of jurisdiction: Oorloff at paras.54-56 per Walters FM.
In Campbell v Kirstenfeldt,[8] this Court discussed limitations on the scope of an application under the AHRC Act, as follows:
[8] (2008) EOC 93-515; [2008] FMCA 1356 (“Campbell”).
14. The scope of the application made to this Court is however limited by s.46PO(3) of the HREOC Act which provides as follows:
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
15. By reason of s.46PO(3)(b) an applicant is permitted to allege in this Court facts different to those alleged in the terminated HREOC complaint, provided that the newly alleged facts are not different in substance from the formerly alleged facts.[9] These provisions do not limit this Court to considering the initial complaint to HREOC, but rather the complaint ultimately considered by HREOC.[10] No doubt difficulties may arise with a complaint generally expressed or lacking details.[11] Given that complaints will often not be prepared by lawyers, and ought not be construed as if they were pleadings, this kind of difficulty will be for the Court to determine as to whether the evidence arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the terminated complaint.[12] [13]
[9] Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 per Katz J; [2000] FCA 1531 at para.39 per Katz J (“Fuji Xerox”).
[10] Travers v State of New South Wales [2000] FCA 1565 at para.8 per Lehane J (“Travers”); Ho v Regulator Australia Pty Ltd [2004] FMCA 62 at para.4 per Driver FM (“Ho”); Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 at para.10 per Driver FM.
[11] Gama v Qantas Airways Limited (2006) 195 FLR 475 at 480 per Raphael FM; [2006] FMCA 11 at para. 9 per Raphael FM (“Gama”). This Court’s decision in Gama was appealed, but not this aspect of the decision: Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69.
[12] Travers at para.8 per Lehane J; Gama FLR at 480 per Raphael FM; FMCA at para.9 per Raphael FM.
[13] Campbell EOC at 74, 770 per Lucev FM; FMCA at paras.14-15 per Lucev FM. Footnotes 9-12 above are reproduced from the text of Campbell. For a more recent discussion of the scope of s.46PO(3) in this regard, see Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at paras.43-48 per Marshall, Rares and Flick JJ, and especially at para.48 where it was said, in the context of a pleading amendment application, that it “is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s.46PO(3)(b) (in particular) permit of some flexibility…the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court.”
In this case, Mr Caves asserts that during the Australian Human Rights Commission[14] conciliation process, the Association amended its Constitution to allow non-Chinese members to join, as long as they were residents of Christmas Island.
[14] “AHRC” (formerly known as the Human Rights and Equal Opportunity Commission, prior to 5 August 2009).
The Court finds that it can take into account amendments to the complaint arising out of the AHRC conciliation process, in accordance with the principles outlined in Campbell above.
AHRC complaint
Mr Caves lodged a complaint against Mr Eddie Tan, the Secretary of the Association, with the AHRC, on 17 June 2008. The complaint was as follows:
I asked Mr Tan if I can join the Chinese Literary Association (aka CLA Club). He said that the CLA only accepts members who are Chinese.
Although the complaint was originally lodged against Mr Tan, the Secretary of the Association, by the time the complaint was terminated it is clear that the complaint was against the Association itself. The letter of 10 June 2009 from the AHRC terminating the complaint provides as follows:
“Your complaint against the Chinese Literary Association of Christmas Island Inc
I am writing to advise you of my decision regarding your complaint against the Chinese Literary Association of Christmas Island Inc (the CLA) in which you allege racial discrimination under the Racial Discrimination Act 1975 (the RDA).
Your complaint
You state you are of English and New Zealand background and claim that in March/April 2008 you were told that you would not be able to join the CLA because you are not of Chinese descent.
Response to your complaint
A copy of your complaint was sent to the CLA on 20 October 2008. The Commission received an informal reply from the CLA on 8 March 2009, the content of which was conveyed to you by email on 18 March 2009
The CLA states that it never received any application for membership from you. The CLA states that membership is open for anyone interested to join. The CLA states that applications for membership are reviewed and approved by the CLA’s committee.”
The scope of proceedings is to be determined by the complaint as terminated by the AHRC, including any amendments made while the matter was before the AHRC, rather than the original terms of the complaint.[15] Thus, Mr Caves cannot include allegations of discrimination not included in the complaint as terminated by the AHRC.[16]
[15] Ho at para.4 per Driver FM.
[16] Fuji Xerox FCR at 582 per Katz J; FCA at para.43 per Katz J; Travers FCA at para.8 per Lehane J.
It is clear from the AHRC termination letter that ultimately the complaint, as terminated by the AHRC, was against the Association, and not committee members or members of the Association. And, although the complaint appears to have originally been lodged naming Mr Tan, as Secretary of the Association, as the person against whom the complaint was made, it appears that in the process of dealing with the complaint the AHRC has treated the complaint as if, and ultimately terminated the complaint on the basis that, it is a complaint only against the Association. Mr Caves’ complaint cannot therefore be extended to those individual Association committee members now named in the proceedings in this Court.[17] Those individual Association committee members therefore do not have any liability arising out of these proceedings. The complaint, crystallised as being against the Association and in relation to the prior refusal to allow Mr Caves to make an application for membership, was terminated by a letter from the AHRC on 10 June 2009. Thus, matters occurring after that date and not related to the substance of the terminated complaint cannot be considered by the Court in these proceedings. For that reason, Mr Caves’ affidavit of 18 July 2009,[18] which contains email exchanges between Mr Caves and an officer of the Association concerning the alleged refusal of the Association to allow Mr Caves to make an application for membership, and an actual refusal of an application for membership, but on different grounds, and which post-dates 10 June 2009, is therefore irrelevant and inadmissible.[19]
[17] Speirs v Darling Range Brewing Co Pty Ltd [2002] FMCA 126 at para.36 per McInnis FM.
[18] “Mr Caves’ 18 July 2009 Affidavit”.
[19] Evidence Act 1995 (Cth), s.56(2).
It follows that the application as against the five individual respondents, being the first to fifth respondents, must be dismissed. There will be an order accordingly.
History of these proceedings
It is necessary to set out a little of the history of these proceedings.
In response to the application, the first to fifth respondents filed a notice of address for service on 15 July 2009 nominating a Perth lawyer, Mr Schapper, to represent them. Mr Schapper represented the first to fifth respondents until he filed a notice of withdrawal on 15 July 2010 (having previously foreshadowed doing so).
On 24 and 27 July 2009 the Court made orders for mediation ultimately ordering that there be mediation before a Registrar of this Court on or before 31 October 2009. Mediation was then adjourned by the Registrar on 8 October 2009 to 9 December 2009, on 9 December to 24 February 2010 and on 24 February 2010 to a date to be fixed, which was ultimately not fixed.
The matter came back before the Court on 4 June 2010. Mr Caves informed the Court that he understood that, at some stage, an agreement had been reached, and that but for the preparation of draft consent orders, which he understood were to be prepared by the respondents’ lawyer, the matter was complete. Mr Schapper, frankly, and properly, disclosed that:
a)there was some difficulty between the first to fifth respondents and himself;
b)he was not sure what his instructions were;
c)he had not been able to obtain any clarity in relation to his instructions; and
d)the foregoing had then been the position for some time.
Mr Schapper foreshadowed filing a notice of intention to cease to act, and, as indicated above, a notice of withdrawal was filed on 15 July 2010.
By reason of:
a)various orders made by the Court on 4 June 2010, and at 3 subsequent directions hearings,[20] up to and including a directions hearing on 30 August 2010;
b)two affidavits of service filed by Mr Caves;[21] and
c)an unsuccessful attempt by Mr Kelvin Lee at the directions hearing on 30 August 2010 to seek leave to appear for all six respondents,[22]
the Court is, and was earlier, satisfied that each of the six respondents had been:
d)served with all relevant Court orders and documents; and
e)made aware of, and had the opportunity to, file and serve a notice of address for service, and a response to the application, together with affidavits in support of the response.
[20] On 16 July 2010, 9 August 2010 and 30 August 2010.
[21] Sworn by Mr Caves on 27 July 2010 and 2 August 2010.
[22] Caves v Chan & Ors. [2010] FMCA 706 at para.7 per Lucev FM (“Caves (No. 1)”). The Association was added as a sixth respondent at the directions hearing on 9 August 2010. The name of the Association as sixth respondent was amended by further order of the Court on 28 September 2010.
On 6 September 2010 a notice of address for service for the first respondent (Ms Chan) only was filed by facsimile. That notice of address for service is the only document which has been filed in compliance with the Court’s orders of 30 August 2010. Consequently, there is:
a)no further address for service for the second to sixth respondents, save for the electronic address referred to at order 5(b) of the Court’s orders of 30 August 2010;
b)no Response on behalf of any of the respondents; and
c)no affidavit evidence filed on behalf of any of the respondents.
The matter came before the Court on 7 September 2010 at which time the Court indicated that because a notice of address for service had been filed by the first respondent, and that that was some indication of a desire to be heard on the application, there would not be default judgment against the first respondent, or the other respondents, notwithstanding their failure to appear or file any response or any affidavits.[23] The Court further indicated that at hearing the respondents would be restricted as follows:
3. The failure of the first respondent and the other respondents to file a Response or Defence means that the first respondent will be limited, subject to what follows at hearing, to:
(a) cross-examining Mr Caves on:
(i) his affidavit evidence; and
(ii) the Constitution of the Christmas Island Chinese Literary Association Incorporated; and
[23] Caves (No. 1) at para.2 per Lucev FM.
(b) making submissions with respect to Mr Caves’ claim.
4. No additional defence will be able to be put forward because of the failure to file a response or lead any evidence in response to the application. Thus, effectively, the first respondent, and to the extent that the other respondents then might be bound by any finding with respect to the first respondent’s case, will be restricted to arguing that there is no case to answer or that Mr Caves has not made his case out.
5. The only additional evidence which can be filed between now and the hearing is a copy of the current Constitution of the Association, and the Court proposes to order that Mr Caves, the applicant, file and serve by email an affidavit appending a current copy of the Association’s Constitution and that that be done by 17 September 2010.[24]
[24] Caves (No. 1) at paras.3-5 per Lucev FM.
The Court, foreshadowing a possible further application to appear by Mr Lee, also made orders requiring the filing of an application in a case and an affidavit in support if Mr Lee intended to seek leave to appear on behalf of any of the respondents. No application in a case nor affidavit was filed.
The Court also ordered that Mr Caves file and serve a current copy of the Constitution. A copy of the current Constitution was filed on 17 September 2010 by Mr Caves.
Final hearing – application for leave to appear
The matter came on for final hearing on 28 September 2010 and after cross-examination of Mr Caves by the third and fourth respondents, Ms Foo and Mr Eng, an oral application was made by Mr Lee to appear as a representative for the Association, and to cross-examine Mr Caves.
In support of his application for leave to appear on behalf of the Association Mr Lee, both of his own volition and in response to questions from the Court, submitted that:
a)he is the appointed superintendent of the Association and feels that he has the obligation to stand up and voice his concerns;
b)he is not a lawyer and does not have any legal or other qualifications;
c)he has never argued a discrimination case before a court or tribunal of any kind;
d)he believes that the Constitution should stand, and that after Mr Caves took his claim to the AHRC, the committee made changes to the Constitution to welcome other nationalities or persons who feel that they can make a contribution to the Association to join as members.
Upon hearing Mr Lee’s oral submissions, the Court refused to grant leave to appear, and said that it would later provide, and now does provide, written reasons for doing so.
Mr Lee had previously applied for leave to appear in this matter and was not granted leave. Mr Lee provided no evidence and there was nothing new put in support of his application for leave to appear. That application was not made by way of an application in a case supported by affidavit as ordered by the Court on 7 September 2010. The Court refers, and adopts as applicable in these circumstances, its written reasons in Caves (No 1) disallowing Mr Lee’s application for leave to appear at the directions hearing on 7 September 2010:
7. With respect to any appearance by Mr Kelvin Lee on behalf of the respondents that appearance was not allowed before the Court when Mr Lee sought to appear on 30 August 2010. As the Court apprehends it thus far, Mr Lee is not a legal practitioner, is not a person who regularly appears in the courts and in particular the Federal Courts, and is not a person with professional expertise in racial discrimination matters. Having regard for those matters alone it would be difficult for Mr Lee to be given a right to appear, and especially so taken together with the general rule that a court will not allow an appearance by a person not admitted to practice before it...[25]
[25] Caves (No. 1) at para.7 per Lucev FM citing Australian Competition and Consumer Commission v Jutsen & Ors [2010] FCA 961.
For essentially the same reasons, Mr Lee was not granted leave to appear on behalf of the Association at the final hearing on 28 September 2010.
Evidence
The Constitution
The Court has in evidence before it copies of the Constitution as it:
a)stood at 30 June 2009; and
b)as it presently stands following an amendment passed by special resolution of the Committee of the Association on 8 October 2009.
The Court notes that the Association was incorporated on 31 October 1996.[26] There have been three amendments to the Constitution registered with the Government of Western Australia’s Department of Commerce, those amendments being made on 21 June 2001, 23 October 2006 and 8 October 2009. These appear to be the only amendments made to the Constitution since the Association was incorporated.
[26] According to its Certificate of Incorporation, a copy of which is attached to Mr Caves’ Application.
The Constitution as it stood at 30 June 2009 is the Constitution as it stood at the time of the alleged discrimination. Save for an amendment to the membership and interpretation provisions in the Constitution, the Constitution is the same before and after 8 October 2009.
Clause 2 – Objects of the Constitution provides that the objects of the Association are as follows:
a.represent the Christmas Island Chinese community;
b.preservation of the Chinese tradition, culture and heritage;
c.encourage and propagate Chinese wisdom, as an enrichment of lifestyle and culture; by way of seminars, special courses, workshops, training and festivities;
d.promote better understanding and goodwill among other communities;
e.providing needy aid in whatsoever manner available to improve the welfare of the less fortunate in the community.
There is nothing inherent in these objects requiring members to be of Chinese descent. Exclusion of persons of non-Chinese descent might indeed be contrary to clause 2d of the Constitution. Such an exclusion might exclude a range of persons of non-Chinese descent engaged in activities within the public service, professions, politics (a Chinese speaking Prime Minister of non-Chinese descent, for example), academia and business who might be in a position to promote better understanding and goodwill amongst other communities, and thus advance the objects of the Association. Indeed, Mr Caves gave evidence that part of his motivation in wanting to apply to join the Association was to engage the Association, and its then Secretary, Mr Tan, in a social context so as to assist in improving professional relationships.[27]
[27] Transcript, 28 September 2010, page 6.
By clause 3 – Powers of the Constitution, the Association has powers including the following:
a.to establish in Christmas Island centres such as schools, colleges, and other institutions (including residential facilities) for the encouragement of the said objects
With respect to applications for membership, clause 6 of the Constitution provides as follows:
a.Applications for Full Membership shall be on such forms as shall be prescribed by the Association from time to time and shall be accompanied by such payment as the Association may from time to time direct;
b.all applications for membership shall be considered by the Committee;
c.when the Committee has received and considered an application or applications for membership, if the Committee has resolved to accept an applicant for Full or a proposed Honorary Membership for admission, then from the time of such resolution such applicant or Honorary Members may exercise all the rights and privileges of the appropriate class of membership;
d.if any application for membership is rejected the amount paid with the application shall be refunded to the applicant;
e.the Constitution and any amendments thereto and any rules or regulations made thereunder from time to time in force shall be binding on all members;
f.annual membership dues for Full Members shall be payable not later than 1st July.
The duties of the Secretary include attendance at all meetings of the Association, preparation and maintenance of its meeting minutes, the keeping of its books and records, and, significantly in the context of this case, the maintenance of a complete and up-to-date list of members.[28] The Secretary is therefore a person able to speak, with authority and knowledge of the Association’s membership, and requirements for membership.
[28] Constitution, cl.12b.
Clause 5 – Class of Membership of the Constitution, prior to 8 October 2009 provided as follows:
a.Honorary Membership:
Honorary Membership may be conferred at a general meeting of the Association on visiting guests or any other persons who have rendered outstanding services to the cause of the Association. Honorary Membership may be conferred for life or a limited period of time as decided by the Association;
b.Full Membership:
Full membership shall be available to those persons of Chinese decent [sic].
After 8 October 2009 clause 5b of the Constitution was amended to provide that:
Full Membership shall be available to persons of Chinese descent and persons who support the objects of the Association who are resident of Christmas Island,
and the phrase “residents of Christmas Island” was defined to mean “anyone with a current residential address on Christmas Island or anyone in possession of a valid Christmas Island Driving Licence.”
By reason of clause 6e of the Constitution the Association was, prior to 8 October 2009, obliged to reject an application for full membership of the Association if the person was not of Chinese descent. After 8 October 2009 the amendment to clause 5b of the Constitution meant that membership was available to persons of other than Chinese descent if they supported the objects of the Association and were residents of Christmas Island.
The Constitution, as it stood prior to 8 October 2009, was clearly discriminatory on the ground of race in that it allowed for persons of non-Chinese descent to be excluded from equal participation in cultural activities solely on the basis of race. After 8 October 2009 the Constitution does not exclude people on the basis of race, but allows people to be included on the basis of their Chinese descent, but also to be included if they are of non-Chinese descent and support the Association’s objects and are resident on Christmas Island. The Constitution as it now stands (that is after 8 October 2009) does not discriminate on the basis of race, whereas prior to 8 October 2009 it did discriminate on the basis of race, specifically against persons of non-Chinese descent.
Mr Caves’ evidence
Mr Caves’ 18 July 2009 Affidavit is, for reasons set out above irrelevant, and therefore inadmissible.[29]
[29] See para.19 above.
The essential thrust of Mr Caves’ evidence is that:
a)at sometime between 24 March 2008 and 4 April 2008, he asked the immediate past Secretary of the Association (there is no dispute that this was Mr Tan) if he could apply to become a member of the Association; and
b)Mr Tan advised Mr Caves that an application for membership of the Association by anyone not of Chinese descent would be refused.
Mr Caves confirmed the above facts, which form part of the grounds of his application, in his oral evidence.[30] Because none of the respondents filed a response or defence or any affidavit evidence there is no challenge, and indeed was no challenge in cross-examination of Mr Caves, to the above essential facts. These essential facts formed the nub of the complaint of discrimination made by Mr Caves. Those facts, and their effect at the time Mr Caves made his enquiry and Mr Tan made his statement, are not altered by suggestions, put in submissions by some of the respondents without supporting evidence, that non-Chinese people were in fact allowed to join the association, or as a consequence of amendments to the Association’s Constitution were now allowed to join the Association. The facts asserted by Mr Caves are entirely consistent with the full membership provisions of clause 5b of the Constitution as it applied at the time of Mr Tan’s alleged remarks.
[30] Transcript, 28 September 2010, pages 2-3.
Cross-examined by the third respondent, Ms Foo, Mr Caves:
a)re-affirmed that in 2008, Mr Caves asked the then Secretary of the Association, Mr Tan, if he could join the Association, and the response he received was that he could not join because the Association only allowed Chinese people to join;
b)said he did not fill in an application form at that time because he had been told that he could not join the Association;
c)said he was aware that an application to join the Association needed to be made in writing and asserted that he made a written application as part of the conciliation process with the AHRC;
d)said he never had the opportunity to join the Association while he was on Christmas Island, and the change to the Constitution on 8 October 2009 allowing people to join the Association if they are residents of Christmas Island made it impossible for him to join as he had left Christmas Island by that time; and
e)said he did not make a formal written application to join the Association after the change in the Constitution allowing residents of Christmas Island to join the Association because by that time he had moved from Christmas Island and would not have been eligible.
In response to cross-examination by the fourth respondent, Mr Eng, Mr Caves said:
a)he did not apply for membership after the Constitution was changed because his original application for membership was still with the Association and he had not had any written confirmation that it was declined, so in the absence of that and with the letter from the AHRC terminating the conciliation he assumed that his membership application had been declined; and
b)even though he knew that he was no longer able to apply to the Association after the change to the Constitution, Mr Caves said that he still continued with the proceedings because he felt that the change to the Constitution was a cynical attempt to block his application for membership by other means.
In re-examination, Mr Caves confirmed that he completed a written membership application form that was forwarded to the Association through the AHRC, and that he understood that a written response from the Association was to be provided by the Association after the Association’s meeting of 2 April 2009, but was not forthcoming.
Respondents’ evidence
The failure of any of the respondents to file a response or defence led to orders, as set out above, which meant that no evidence was led for the respondents in these proceedings. There was no challenge by the respondents to the earlier rulings at the hearing, and no attempt otherwise to have any further evidence admitted.
Respondents’ submissions
Ms Chan, the first respondent, made submissions as follows:
a)the Association is a Chinese service based group, engaging in Chinese cultural activities that welcomes all residents of Christmas Island to join the Association if they qualify; and
b)that prior to the amendment of the Constitution the rules provided that any person could try to apply to join the Association.
Ms Foo made submissions as follows:
a)the Association was incorporated in October 1996, with the main objective then being to preserve its tradition, culture and to take care of any of the needs of the Chinese residents who were illiterate and who needed assistance and care;
b)the Association is only commissioned to take care of the residents of Christmas Island;
c)the Association is small, it is run by volunteers and has no proper income except from donations;
d)the Association has to ask for funding and sponsorship from the Shire and local companies;
e)the Association organises community events and invites the whole community;
f)the Association presently has non-Chinese members; and
g)membership is open to anybody to join with the residents of Christmas Island, because they are too small to get involved in other areas beside Christmas Island.
None of the respondents’ submissions can be taken into account as evidence. In any event, none of the respondents’ submissions take issue with the essential facts asserted by Mr Caves, namely that he was told by Mr Tan that he was not able to join the Association because he was not a person of Chinese descent. And, even if Mr Caves did make an application (as it seems he ultimately did through the AHRC conciliation process), the Association, by reason of the terms of its Constitution, which were binding on its members, including the Committee, could not accept him as a member because he was not of Chinese descent. Thus there was, as Mr Tan effectively said to Mr Caves, no point in Mr Caves applying because his application would not have been accepted.
Mr Caves’ submissions
Mr Caves made the following closing submissions:
a)he believes that he can contribute constructively as a member of the Association, even though he is not a resident of Christmas Island; that he has skills in making applications for funding and accessing resources on the mainland that would have been a benefit to the Association, but that he never had an opportunity to put those skills forward to the Association;
b)that prior to the October 2009 amendments to the Constitution there were no opportunities open to non-Chinese members of the community to become members of the Association and that is what he is, and has been, seeking to have redressed;
c)he sees the Constitutional amendments of October 2009 as having been made in an attempt to block his application for membership; and
d)that all he wanted was to participate in the community of Christmas Island and that he will be satisfied if the Association cannot reject other Christmas Island residents from joining the Association because they are not Chinese.
Consideration
The Court must first be satisfied that there has been unlawful discrimination, before determining whether it has the power to make orders as sought, and if it does, whether or not it should make orders as sought, or any other orders that it thinks fit.[31]
[31] AHRC Act, s.46PO(4)
The inquiry is one to determine whether the treatment of Mr Caves by the respondents had its true basis or real reason in the discrimination on the account of race.[32] The Court must be satisfied, on the balance of probabilities that the respondents engaged in conduct which involved a distinction, exclusion or restriction on Mr Caves because of his race.[33] It is therefore unnecessary for Mr Caves to establish a motive to discriminate.[34]
[32] Forozandeh v Sky City Adelaide [2006] FMCA 222 at para.11 per Lindsay FM (“Forozandeh”). See also Purvis v State of New South Wales Department of Education & Training (2003) 217 CLR 92; [2003] HCA 62.
[33] Forozandeh at para.14 per Lindsay FM.
[34] House v Queanbeyan Community Radio Station (2008) EOC 93-514 at 74, 768 per Neville FM; [2008] FMCA 897 at para.23 per Neville FM, citing Australian Medical Council v Wilson (1996) 68 FCR 46 at 74 per Sackville J.
In the case of Mr Tan’s oral refusal to allow Mr Caves to join the Association as a member, the Court finds that there was discrimination on the basis of race. The Constitution did not allow persons of non-Chinese descent to become full members of the Association, and it is clear, on the evidence, that Mr Tan told Mr Caves that he could not join, or become, a member of the Association because he is not Chinese.
There was an issue raised in the cross-examination indicating that Mr Caves and Mr Tan might have had, as Mr Caves put it in cross-examination, a “difficult and antagonistic relationship”,[35] but there is no requirement on the part of Mr Caves to prove the intention behind the discriminatory act, just that it occurred.
[35] Transcript, 28 September 2010, page 6.
The question then arises as to whether this discriminatory conduct can be imputed to the Association. The Court finds that it can be imputed to the Association, as Mr Tan was the former secretary, and a representative of the Association, who spoke with actual, apparent or ostensible authority on the question of membership, and was, in his response to Mr Caves, reflecting the actual provisions of the Constitution, which were binding on Mr Tan.[36]
[36] Constitution, cl.6e
As to Mr Caves’ submission that the changes to the Constitution were made in a cynical attempt to prevent him from joining the Association, that does not give rise to an act of racial discrimination, as quite clearly Mr Caves could make an application to join the Association if he were a resident of Christmas Island, and further, in amending the Constitution there is no act of discrimination made against Mr Caves on the basis of his race.
The Court therefore considers that Mr Caves was unlawfully discriminated against by the Association, on the basis of race, contrary to s.9 of the RD Act, sometime between 24 March 2008 and 4 April 2008 when he was told by Mr Tan that any application by Mr Caves for membership of the Association would be refused.
For reasons set out above, the first to fifth respondents can not be found individually liable, and the application against them must be dismissed.
Power of the Court to make the orders sought
The power of the Court to make orders if it is satisfied that there has been unlawful discrimination is set out in s.46PO(4) of the AHRC Act, as follows:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re‑employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
The Court will therefore make a declaration, pursuant to s.46PO(4)(a) of the AHRC Act, that the Association has committed an act of unlawful discrimination in advising Mr Caves that any application by him for membership of the Association would be refused.
The Court will not make orders in the terms of orders 1 and 2 sought by Mr Caves, as the amendment to the Constitution made effective 8 October 2009 achieves what is sought by those orders, namely to allow membership to be granted to non-Chinese people in a manner which is non-discriminatory under the RD Act.
The Court will not make an order in terms of order 3 sought by Mr Caves because, as was pointed out to Mr Caves at the hearing and ultimately conceded by him, it would be futile to confer full membership on Mr Caves as he is no longer a resident of Christmas Island. The requirement now in the Constitution for members of the Association to be residents is not, on the evidence, discriminatory under the RD Act.
As to orders 4 and 5 sought by Mr Caves, the Court understands that Mr Caves was genuinely affected by not being able to make an application to join as a member of the Association and that he “will be satisfied in the knowledge that the …[Association] … cannot do this to another resident on Christmas Island again.”[37]
[37] Transcript, 28 September 2010, page 17.
The Court is prepared to make orders, similar to those set out in order 4 sought by Mr Caves, namely that there be public notification placed in the local newsletter, “The Islander”, but in the following terms (which differ from those sought by Mr Caves):
“Chinese Literary Association of Christmas Island Inc – Public Notice by Order of the Federal Magistrates Court of Australia
On 29 October 2010 the Federal Magistrates Court of Australia declared that sometime in the period between 24 March and 4 April 2008, the Chinese Literary Association of Christmas Island Inc. (“the Association”) engaged in conduct rendered unlawful by section 9 of the Racial Discrimination Act 1975 (Cth) by advising Mr Tekohi Caves that he was unable to make application for membership of the Association because he is not of Chinese descent.
On 8 October 2009, the Association amended its Constitution, and it now welcomes membership applications from all residents of Christmas Island regardless of racial descent.
Secretary
Chinese Literary Association of Christmas Island Inc.”[38]
[38] “Public Notice”.
The Association should place the Public Notice on two separate occasions not more than three months apart. The Public Notice should be at least 15cm in depth and 10cm in width, in at least 10 point font size.
The Court has made provision for two, well separated, advertisements to be placed in “The Islander” to ensure a greater possibility of the most number of Christmas Island residents seeing the advertisement, and of the advertisement having the desired effect and reaching a wide intended audience. The Public Notice will only be required to be in English, and given the amendments to the Constitution restricting membership of the Association to residents of Christmas Island, the Court will not order that the Public Notice be placed in any publication generally circulating outside of Christmas Island.
The Court is satisfied that the Association has already amended its Constitution, as to the requirements for membership, in a manner likely to prevent any future racial discrimination in relation to Association membership.
Conclusion
The Court has concluded that:
a)the application must be dismissed as against the first, second, third, fourth and fifth respondents because they were not the subject of the complaint terminated by the AHRC, and because, consequently, there is no relevant or admissible evidence against those respondents;
b)the sixth respondent, the Association, did sometime in the period between 24 March 2008 and 4 April 2008 engage in conduct rendered unlawful by s.9 of RD Act by advising Mr Caves that any application by him for membership of the Association would be refused because he is not of Chinese descent; and
c)the sixth respondent, the Association, must place a Public Notice in the local Christmas Island newsletter, “The Islander”, advising of this Court’s declaration of unlawful conduct in relation to Mr Caves, and advising that the Association has amended its Constitution, and that it now welcomes membership applications from all residents of Christmas Island regardless of racial descent.
The Court will hear the parties as to costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 29 October 2010
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