Cetera v Department of Human Services

[2006] FCA 883

FEDERAL COURT OF AUSTRALIA

Cetera v Department of Human Services [2006] FCA 883

JOZEF CETERA v DEPARTMENT OF HUMAN SERVICES
VID 592 OF 2006

NORTH J
26 JUNE 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 592 OF 2006

BETWEEN:	JOZEF CETERA APPLICANT
AND:	DEPARTMENT OF HUMAN SERVICES RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	26 JUNE 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application is dismissed.    

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 592 OF 2006

BETWEEN:	JOZEF CETERA APPLICANT
AND:	DEPARTMENT OF HUMAN SERVICES RESPONDENT

JUDGE:	NORTH J
DATE:	26 JUNE 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 30 May 2006, the applicant, Mr Cetera, filed an application with the Court under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), alleging unlawful discrimination and seeking an order that his ‘right to be treated equally’ had been violated. Mr Cetera named the ‘Department of Human Services’ as the respondent. Ms O'Dell, who appeared on behalf of the Director, Legal Services Branch of the Department of Human Services, submitted that the application was without foundation as the named respondent was not a legal entity. However, in light of my decision in relation to the jurisdiction of this Court, it is unnecessary to resolve this issue.

2. With the application, Mr Cetera filed an affidavit which outlined the substance of his complaint and a bundle of documents relating to his case.  Mr Cetera’s affidavit disclosed that he lodged a complaint alleging racial discrimination against the Department of Human Services with the Victorian Equal Opportunity Commission (EOC).  His affidavit complained about the process undertaken by EOC in dealing with his complaint and his failed attempt to review that decision in the Victorian Civil and Administrative Tribunal. 

3. Relevantly, the documents that Mr Cetera filed with the Court demonstrated that he made a complaint of racial discrimination to EOC in Victoria.  It seems that his complaint was rejected and that Mr Cetera may not have complied with the time limit for bringing an application for review.

4. As a consequence, Mr Cetera then lodged a complaint with the Commonwealth Human Rights and Equal Opportunity Commission (HREOC), alleging discrimination by the Office of Housing, Department of Human Services.  By letter dated 10 August 2005, the director of the complaint handling section of HREOC wrote to Mr Cetera stating:

   The Commission is unable to take any further action about your matter at this time.

   The letter explained that HREOC was unable to take the matter further because Mr Cetera had previously pursued the matter with EOC in Victoria. This followed from section 6A(2) of the Racial Discrimination Act 1975 (Cth), which provides:

   6AOperation of State and Territory Laws

   …

   (2)Where:

   (a)a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and

   (b)a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which the person would, but for this subsection, have been entitled to make a complaint under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act;

   the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under the Human Rights and Equal Opportunity Commission Act 1986  alleging that the act or omission is unlawful under a provision of Part II or Part IIA of this Act and any proceedings pending under this Act at the commencement of this section in respect of such a complaint made before that commencement are, by force of this subsection, terminated.

5. In the present application, the jurisdiction of the Court depends on s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) which provides:

   46PO   Application to court if complaint is terminated

   (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.

6. It is a precondition to the making of an application in the Court that a complaint has been made to HREOC and terminated by the President.  There has been no complaint and no termination as required by that section in this case.  As explained in the letter from HREOC to Mr Cetera, HREOC was not competent to consider a complaint in the circumstances where Mr Cetera had already applied to EOC in Victoria. 

7. Consequently there is no reasonable basis in law for the application to this Court and it should be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             26 June 2006

Counsel for the Applicant:	appeared in person
Solicitor for the Respondent:	Ms Z O'Dell
Date of Hearing:	26 June 2006
Date of Judgment:	26 June 2006