Commonwealth v Wood

Case [2006] FCA 60


FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Wood [2006] FCA 60

ANTI-DISCRIMINATION – suicide of 15-year-old member of Air Training Corps – complaint by mother under Anti-Discrimination Act 1998 (Tas) – whether as a matter of construction Act applies to Commonwealth and its agents – whether Act permits complaints in respect of discrimination against deceased persons – whether mother has arguable complaint in her own right

CONSTITUTIONAL LAW – whether Act breaches Ch III of the Constitution – whether Anti-Discrimination Tribunal established under the Act is a court of State – whether Act inconsistent with Air Force Act 1923 (Cth) and/or Cadet Forces Regulations 1977 (Cth) – whether Act would impair the capacities of the Commonwealth Executive

WORDS AND PHRASES – “court”, “court of a State”

Act of Settlement 1700 (Imp)
The Constitution of the Commonwealth of Australia ss 77(iii), 109

Judiciary Act 1903 (Cth) s 39
Air Force Act 1923 (Cth) ss 8
Cadet Forces Regulations 1977 (Cth) reg 14(2)

Anti-Discrimination Act 1998 (Tas) ss 3,4,12,14,16,22,60,78,80,84,85(2),86,87,89,90,95,100, 103,106

ActsInterpretation Act 1931 (Tas) s 21(1)(a)
Judicial Review Act 2000 (Tas) ss 17,20, 28-37

Bropho v Western Australia (1990) 171 CLR 1 cited
Jacobsen v Rogers (1995) 182 CLR 572 cited
IW v City of Perth (1997) 191 CLR 1 at 12 cited
Waters v Public Transport Corporation (1991) 173 CLR 349 at 359, 394 cited
Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 at 189 cited
Re Residential Tenancies Tribunal of New South Wales; Ex parte the Defence Housing Authority (1997) 190 CLR 410 discussed
Cain v Doyle (1946) 72 CLR 409 at 424 cited
Telstra Corporation Limited v Worthing (1999) 197 CLR 61 distinguished
Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 cited
CUNA Mutual Group Ltd v Bryant (2000) 102 FCR 270 cited
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 367 cited
J & G Knowles and Associates Pty Ltd v Commissioner of Taxation (2000) 96 FCR 402 at [22]-[29] cited
Kable v Director of Public Prosecutions (1996) 189 CLR 51 cited
Craig v South Australia (1985) 184 CLR 163 cited
Tana v Baxter (1986) 180 CLR 572 cited
Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 discussed
Australian Postal Commission v Dao(No 2) (1986) 6 NSWLR 497 at 515 cited
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 cited
North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 206 ALR 315 applied
Ell v Alberta [2003] 1 SCR 857 at 874 cited
Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372 cited
Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 at [31], [39] discussed
Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258-259 cited
Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 464 cited
Victoria v Commonwealth (The Kakariki) (1937) 58 CLR 618 at 630-631 cited
APLA Ltd v Legal Services Commissioner

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Details
AGLC
Commonwealth v Wood [2006] FCA 60
Case
[2006] FCA 60
Decision Date

CaseChat Overview and Summary

The case of Commonwealth v Wood involved the application of the Tasmanian Anti-Discrimination Act 1998 to conduct by the Commonwealth and its agents, including Mr Smith. The primary dispute centred around whether the Anti-Discrimination Act applied to the Commonwealth and its agents and whether it allowed for complaints to be made in instances where the person discriminated against had died. The respondents, Ms Campbell and Mr Smith, sought to have the application dismissed, arguing that the Act did not apply to them or allow for such complaints.

The legal issues that the court had to decide included whether the Anti-Discrimination Act applied to the Commonwealth and its agents, whether the Act permitted complaints to be made by the deceased person's next of kin, and whether the Act was consistent with other relevant laws, including the Commonwealth's Human Rights and Equal Opportunity Commission Act 1986, the Air Force Act 1923, and the Cadet Forces Regulations. The court also had to determine whether the Act breached Chapter III of the Constitution or impaired the capacities of the Commonwealth Executive.

The court found that the Anti-Discrimination Act did apply to the Commonwealth and its agents, including Mr Smith, and that it did permit complaints to be made by a deceased person's next of kin. The court held that the Act was consistent with other relevant laws and did not breach Chapter III of the Constitution or impair the capacities of the Commonwealth Executive. The court therefore dismissed the application and ordered that the applicants pay the respondents' costs, including reserved costs.

Orders

Orders of the court

1. The application is dismissed.

2. The applicants pay the respondents’ costs, including reserved costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HEEREY J
The present case is concerned with the application of a Tasmanian statute proscribing discriminatory conduct in that State in various areas of activity, including education and training. It is consistent with similar beneficial legislation in other States and Territories and in the Commonwealth itself (which explicitly leaves open resort to State and Territory legislation: Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 4(1)). The executive capacity of the Commonwealth will not be impaired by agents such as Mr Smith being required to conduct themselves in accordance with the Anti-Discrimination Act, along with other Tasmanian laws, as the Manual recognises. Certainly this is so in the absence of any express Commonwealth law to the contrary: cf Pirrie at 183.Conclusion The Anti-Discrimination Act applies to the Commonwealth and its agents. The Act authorises complaints where the person discriminated against has died. Ms Campbell has an arguable complaint in her own right of discrimination contrary to the Act. In conferring on the Anti-Discrimination Tribunal jurisdiction to adjudicate complaints against the Commonwealth the Act does not breach Ch III of the Constitution. The Act is not inconsistent with the Air Force Act or the Cadet Forces Regulations within the meaning of s 109 of the Constitution. The Act does not impair the capacities of the Commonwealth Executive.Orders There will be orders that the application be dismissed and that the applicants pay the respondents’ costs, including reserved costs.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

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