Ekermawi v Australian Human Rights Commission

[2018] FCA 166

FEDERAL COURT OF AUSTRALIA

Ekermawi v Australian Human Rights Commission [2018] FCA 166

File number(s):

NSD 2123 of 2017

Judge:

THAWLEY J

Date of judgment:

23 February 2018

Catchwords:

ADMINISTRATIVE LAW – Statutory intervention – Intervention by the Attorney-General of the Commonwealth of Australia – Whether leave required to intervene

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 18(1)

Australian Human Rights Commission Act 1986 (Cth) ss 46PH(1)(c), 46PH(2)

Federal Court Act 1970 (Cth) s 37M(3)

Federal Court Rules 2011 (Cth) r 9.12

Cases cited:

Dunstan v von Doussa [2008] FCA 97

Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45

The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

Date of hearing:

23 February 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

The Applicant appeared in person

Solicitor for the Respondent:

Ms L Renton of Australian Human Rights Commission

Solicitor for the Intervener:

Mr M Varley of Australian Government Solicitor

ORDERS

NSD 2123 of 2017

BETWEEN:

SAM EKERMAWI

Applicant

AND:

AUSTRALIAN HUMAN RIGHTS COMMISSION

Respondent

COMMONWEALTH OF AUSTRALIA

Intervener

JUDGE:	THAWLEY J
DATE OF ORDER:	23 FEBRUARY 2018

THE COURT ORDERS THAT:

1.To the extent necessary, the Commonwealth Attorney-General be granted leave to intervene in the proceedings under r 9.12 of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

THAWLEY J:

1. On 1 December 2017, the applicant filed an application for extension of time under rule 31.02 of the Federal Court Rules 2011, which deals with applications for an extension of time within which to lodge an application for an order for review under section 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act).  That application was supported by an affidavit affirmed by the applicant on 29 November 2017, also filed 1 December 2017.

2. The applicant is self-represented.

3. The applicant brought complaints in the Australian Human Rights Commission under the Racial Discrimination Act1975 (Cth). It is not necessary for present purposes to set out the factual background to those complaints. The complaints were terminated by the President of the Australian Human Rights Commission under section 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth). Two notices of termination dated 7 September 2017 were issued under section 46PH(2), attaching letters setting out the reasons for the decisions.

4. Section 46PH(1)(c) provides:

   The President may terminate a complaint on any of the following grounds: …

   (c)the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted; …

5. Section 46PH(2) provides:

   If the President terminates a complaint, the President must notify the complainants in writing of the termination and of the reasons for the termination.

6. In addition to the application for extension of time and affidavit referred to above, the applicant also filed, on 1 December 2017, a document entitled “Applicant’s Statement of Claim”, indicating that the applicant sought review under section 5 of the AD(JR) Act of the decision of 7 September 2017 of the President of the Australian Human Rights Commission. It is clear that the applicant intended to refer to the two decisions of 7 September 2017 terminating his complaints under s 46PH(1)(c).

7. The matter was listed today for a case management hearing. At the case management hearing, the Attorney-General for the Commonwealth appeared, and sought leave to intervene under section 18(1) of the AD(JR) Act. Section 18(1) provides:

   The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding before the Federal Court or the Federal Circuit Court under this Act.

8. That section provides the Attorney-General a right to intervene; that is, it is not a matter of the Court granting leave:  see Dunstan v von Doussa [2008] FCA 97 at [14] and [19], per Flick J. If the Attorney-General does intervene, he is deemed by subsection 18(3) to be a party to the proceeding. Whilst the Attorney-General does not need leave to intervene under 18(1), the seeking of leave in the manner which occurred is a convenient mechanism for raising the matter and, if necessary, giving consideration to whether the right can be exercised.

9. A question which perhaps arises on this application is whether an extension of time to seek an order for review is a proceeding “under the [AD(JR)] Act” or whether there is “a proceeding before the Federal Court … under this Act” within the meaning of section 18(1).

10. The application for an extension of time is made under the Federal Court Rules 2011 (Cth) made under the Federal Court Act 1970 (Cth). That does not mean that the application is not also one which is appropriately considered to be one under the AD(JR) Act within the contemplation of s 18(1), having regard to the statutory purpose of that provision.

11. However, it is not necessary to determine that question, as I would in any event grant leave to the Attorney-General to intervene pursuant to rule 9.12 to the extent necessary for the following reasons. Should an extension of time be granted, there would clearly be a proceeding under the AD(JR) Act and the Attorney-General would have a right to intervene under s 18(1). One of the questions which arises in the application for extension of time is the merit of the substantive proceedings if an extension is granted. The Court and the applicant would be assisted by knowing at an early stage what the Attorney-General says as to the merits of the substantive application. It would be appropriate for the Commonwealth to intervene in proceedings of this type such that the respondent, the Australian Human Rights Commission, is not placed in the position of being required to be a protagonist in the proceedings, the undesirability of which was referred to in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at [35]-[36] – see: Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 at [31]-[34]. The applicant did not oppose the intervention. The Attorney-General was content for leave to be granted under rule 9.12 if necessary. Granting leave pursuant to rule 9.12 to the Attorney-General to intervene in the application for extension of time would promote the just resolution of the dispute and is the most efficient way to proceed in the circumstances: s 37M(3) of the Federal Court Act. 

12. In those circumstances, the Court orders that:

    (1)To the extent necessary, the Commonwealth Attorney-General be granted leave to intervene in the proceedings under r 9.12 of the Federal Court Rules 2011 (Cth).

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.

Associate: 

Dated:        23 February 2018