Commonwealth v McEvoy - [1999] FCA 105

FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Stamatov [1999] FCA 105
DISCRIMINATION LAW – racial discrimination in employment – judicial review – non-citizen granted employment in defence establishment subject to obtaining security clearance – employee citizen of country where background checking impossible – whether dismissal because clearance could not be obtained “by reason of” national original – whether procedures for obtaining security clearance discriminatory – direct or indirect discrimination – whether discrimination “based on” or “by reason of” national origin – reasonableness of requirement.
WORDS & PHRASES – “national origin”
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Racial Discrimination Act 1975 (Cth), ss 9(1), 9(1A), 15, 18 25Z(1)(b)(ii)
International Convention on the Elimination of All Forms of Racial Discrimination, 1965
Langer v Correctional Services Division-Department of Justice (Victoria) (1993) EOC 92-547 referred to
Ellenbogen v Human Rights and Equal Opportunity Commission and Others (1994) EOC 92-564 referred to
Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission unreported Weinberg J, 21 December 1998 applied
Macabenta v Minister of State for Immigration and Multicultural Affairs unreported, Full Court Federal Court, 18 December 1998 applied
De Silva v Minister for Immigration and Multicultural Affairs unreported, Full Court Federal Court, 24 November 1998 referred to
Ealing London Borough Council v Race Relations Board [1972] AC 342 cited
Macabenta v Minister of State for Immigration and Multicultural Affairs (1998) 154 ALR 591 referred to
March v Stramare (E & MF) Pty Ltd (1991) 171 CLR 506 referred to
Human Rights and Equal Opportunity Commission v Mt Isa Mines (1993) 46 FCR 301 cited
Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 cited
Australian Medical Council v Wilson (1996) 68 FCR 46 cited
COMMONWEALTH OF AUSTRALIA v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSIONER KATHLEEN McEVOY & VENELIN STAMATOV
NO. SG 34 OF 1998
VON DOUSSA J
ADELAIDE
18 FEBRUARY 1999

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 34 OF 1998

BETWEEN:

COMMONWEALTH OF AUSTRALIA
Applicant

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSIONER KATHLEEN McEVOY
First Respondent

AND:

VENELIN STAMATOV
Second Respondent

JUDGE:

VON DOUSSA J

DATE OF ORDER:

18 FEBRUARY 1999

PLACE:

ADELAIDE

THE COURT ORDERS THAT:
1. The application for an order of review be granted.
2.The decision of the Human Rights and Equal Opportunity Commission of 9 February 1998 be set aside.

3. The application for cross review be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 34 OF 1998

BETWEEN:

COMMONWEALTH OF AUSTRALIA
Applicant

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSIONER KATHLEEN McEVOY
First Respondent

AND:

VENELIN STAMATOV
Second Respondent

JUDGE:

VON DOUSSA J

DATE:

18 FEBRUARY 1999

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
VON DOUSSA J:

Before the Court are two applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The first is by the Commonwealth of Australia (the applicant) seeking to review a decision of…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1999] FCA 105
Decision Date: 18 FEBRUARY 1999

CaseChat Overview and Summary

The case of Commonwealth v McEvoy involved the Commonwealth of Australia and the respondent, McEvoy. The dispute revolved around the legality of a decision made by the Human Rights and Equal Opportunity Commission (HREOC) on 9 February 1998. The Commonwealth sought an order of review to challenge the decision of HREOC, while McEvoy applied for a cross review to defend the decision. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the decision made by HREOC was legally sound and whether it was subject to judicial review. The Commonwealth argued that the decision was flawed and should be set aside, while McEvoy contended that the decision should be upheld. The court had to determine whether the decision was made in accordance with the relevant legislation and whether it was free from error.

The court held that the decision of HREOC was indeed subject to judicial review and that it contained errors of law. The court found that HREOC had misinterpreted the relevant legislation, which led to an incorrect application of the law in reaching its decision. Consequently, the court granted the application for an order of review and set aside the decision of HREOC. The application for cross review by McEvoy was dismissed, as the court found that the decision was flawed and should not be upheld.

In summary, the Federal Court of Australia granted the application for an order of review, set aside the decision of HREOC, and dismissed the application for cross review by McEvoy. The court found that the decision was legally flawed and contained errors of law, leading to the conclusion that it was not in accordance with the relevant legislation.

Orders

Orders of the court

1. The application for an order of review be granted.

2. The decision of the Human Rights and Equal Opportunity Commission of 9 February 1998 be set aside.

3. The application for cross review be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 34 OF 1998

BETWEEN:	COMMONWEALTH OF AUSTRALIA Applicant
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSIONER KATHLEEN McEVOY First Respondent
AND:	VENELIN STAMATOV Second Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	18 FEBRUARY 1999
PLACE:	ADELAIDE